EEOC Sues Staffing Firm Over Email

EEOCIt is rare today for an employer to provide documentary evidence that makes it easy to show age discrimination in hiring

However, when a Princeton, N.J.-based IT staffing firm learned of an applicant’s date of birth, the company sent the applicant an email stating that he would no longer be considered for the position because he was “born in 1945” and “age will matter.”

The EEOC has charged the company, Diverse Lynx, with violating the Age Discrimination in Employment Act of 1967 by failing to refer a job applicant because of his age . The EEOC filed a lawsuit this week in U.S. District Court for the District of New Jersey (EEOC v. Diverse Lynx, Civil Action No. 17-cv-03220) after first attempting to reach a pre-litigation settlement through its conciliation process.

The ADEA prohibits employment discrimination based on age, including discrimination in referrals by employment agencies.

Kevin Berry, the EEOC’s New York District director, said, “The firm told the man, ‘age will matter.’ Actually, the only things that matter are abilities and qualifications … .”

Unfortunately, the lawsuit represents an aberration for the EEOC, which  has done remarkably  little in the past decade to combat epidemic age discrimination in hiring in the United States.

Despite receiving more than 20,000 age discrimination complaints in 2016, the EEOC filed only TWO lawsuits with age discrimination claims.

Not Such a Great Time to Celebrate Older Americans Month?

Logos2Not everyone may agree that this month – which is Older Americans Month – is “the perfect time to celebrate what getting older looks like today.”

The U.S. Department of Health and Human Services tells us the theme of 2017 Older American’s Month is  “Age Out Loud” to “give aging a new voice—one that reflects what today’s older adults have to say.”

Here goes …

A lot of the older Americans I know are fraught with anxiety, most recently focused on President Donald Trump’s proposed revised healthcare plan. An estimated 25 million older Americans currently live on the edge. They fear our billionaire president and the Corporate lackeys in Congress will dump them  into a penurious old age and premature death by limiting their access to quality health care.

Meanwhile, Congressional inaction continues to allow American employers to drive older Americans out of good jobs in their 40s and 50s through epidemic and unaddressed age discrimination in employment.

The Age Discrimination in Employment Act of 1967 (ADEA) was weak when it was adopted 50 years ago when compared to  Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, gender and national origin.  Since then it has been eviscerated by the U.S. Supreme Court, which has made it almost impossible to win a federal age discrimination lawsuit.

Unemployed older Americans are forced to spend down their savings and work in low-paid gigs or part-time jobs until they are 62 and qualify for Social Security, which will mean they receive significantly lower benefits  for the rest of their lives compared to richer folk who can wait longer to retire.

Women fare the worst in our rigged system. The National Council on Aging says women make $4,500 less annually in Social Security than men due to lower lifetime earnings, time taken off for caregiving, occupational segregation into lower wage work, and other issues. Older women of color fare worst of all. (SSA, 2015).

The NCOA estimates that the more than 25 million Americans aged 60+ who are economically insecure struggle with rising housing and health care bills, inadequate nutrition, lack of access to transportation, diminished savings, and job loss. For older adults who are above the poverty level, the NCOA states, one major adverse life event can change today’s realities into tomorrow’s troubles.

Texas Roadhouse Suit Settled $12 million

texas-roadhouseA major age discrimination lawsuit brought by the EEOC against Texas Roadhouse was settled out of court Friday for $12 million.

A four-week trial in the cased ended in February in a hung jury. The retrial was scheduled for next month.

The EEOC brought a class action “pattern or practice” lawsuit against the Kentucky-based company in 2011 charging  the chain had refused for years to hire workers aged 40 and above for front-of-the-house positions (i.e. servers, hosts, server assistants and bartenders).

Clearly, $12 million won’t break the bank for Texas Roadhouse, a national restaurant chain that  earned $400 million in gross profits in 2016. However, Texas Roadhouse also  agreed, as part of the settlement, to stop discriminating on the basis of age in the future and to increase its recruitment and hiring of employees aged 40 and older for front-of-the-house positions.

Hopefully, the case will serve as a warning to other national restaurant chains that refuse to hire older workers for front–of-the-house positions.

The EEOC also said Texas Roadhouse will establish the position of diversity director and pay for a compliance monitor to oversee the terms of the three and a half-year consent decree. Continue reading “Texas Roadhouse Suit Settled $12 million”

Behind the Scenes: Discrimination by Job Search Engines

WalmartGreeterSeveral years ago, I filed a formal complaint with the EEOC that attorney internet job search web sites were blatantly discriminating in hiring on the basis of age.

I did this after finding dozens of ads targeting members of the most recent graduating class(es) on Lawjobs.com.

Months later, the EEOC, which supposedly implements the Age Discrimination in Employment Act (ADEA), sent me a piece of paper saying that it was not going to do anything but I could file a lawsuit if I wanted to. Not being independently wealthy, I had no choice but to pass.

Today, I looked again. I found absolutely no ads on Lawjobs.com for “recent graduates” or “members of the Class of….”  What does this mean?

Does it mean the search engine is not engaging in age discrimination or does it mean that age discrimination is now taking place behind the scenes?

It’s hard to conclude that Lawjobs.com has gone “straight” given a series of events that have come to light which showcase the role of internet job search engines in age discrimination.

In the case of Villarreal v. R.J. Reynolds Tobacco, the plaintiff applied a half-dozen times for a territory sales manager job only to learn the company was using internet software behind the scenes on Careerbuilder.com to target resumes from workers  with fewer than eight years of experience.

Reynolds hired 1,024 applicants for territory sales manager positions over a three-year period, of whom only 19 were over the age of 40.

A federal appeals court last year eliminated any prospect for a class action lawsuit in the Reynolds case when it ruled the ADEA does not cover job applicants who are the victims of systemic and calculated age discrimination in hiring because they are not “employees.” This ruling, by the 11th Circuit Court of Appeals in Atlanta,  remains in effect today in Georgia, Florida and Alabama.

Illinois Attorney General Lisa Madigan issued a press release recently stating she began  investigating alleged age discrimination by internet search engines after a 70-year-old man complained that a resume building tool on Jobr, an app owned by Monster Worldwide, excluded job applicants over the age of 52. A drop down menu required applicants to select the year they graduated or got their first job but the dates only went back to 1980.

Madigan queried six job search engines about their practices. So far, three have responded, CareerBuilder, Beyond and Indeed. All admitted to using resume building software containing age limitations that deter older applicants; all said they fixed the software upon learning of Madigan’s concerns.

I think it is reasonable to conclude that many (if not most) internet search engines for years have silently engaged in age discrimination against older job applicants. This has contributed to longstanding chronic unemployment for older workers, who often are forced to retire as soon as they become eligible to receive Social Security benefits, whereupon they quietly disappear from government employment statistics. Age discrimination in hiring makes it impossible for older job applicants to earn a decent wage and to finance a secure retirement. As a result, many, particularly women, endure an old age marked by difficult choices, anxiety and poverty.

But who is going to stop it?

Madigan told NPR that her office simply wants to stop the specific practice that relates to discriminatory resume building tools but not file a lawsuit.

The AARP has done virtually nothing about age discrimination in employment for 50 years; It wrote an amicus or friend of the court brief in the Reynolds case.

The EEOC is almost completely absent from the age discrimination scene, despite an unprecedented increase in age discrimination complaints during and since the Great Recession. It filed two – yes, two – lawsuits with age discrimination claims last year. Age discrimination complaints comprise almost a quarter of all complaints received by the EEOC.

Me? Alas, I still can’t afford to finance years of complex litigation against some of America’s largest corporations.

My 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, chronicles the epic failure of all three branches of government to address the completely predictable problem of age discrimination during and since the collapse of Wall Street. It is an  appalling abdication of governmental responsibility and it continues.

U.N.: World Leader in Ageism

Untied NationsHypocrisy in the non-profit sector is particularly nauseating (for obvious reasons) but the United Nations may take the cake with its rule on mandatory retirement.

The U.N. General Assembly in 2015  adopted a resolution that will take effect on January 1, 2018 to raise its mandatory retirement age from 60 to 65.

In October 2016, the organization hired as its new leader António Guterres, who is 67.

Firstly, how can it be acceptable for an organization to force out perfectly competent workers on their 65th birthday but exempt the leadership of the organization? According to the U.N. resolution, a worker can continue to work after age 65 only in “exceptional circumstances” and “when it is in the interest of the Organization.”

Secondly, why age 65? That makes as much sense as age 60. It’s  a  arbitrary age. There is no basis to conclude that workers – especially office workers  – suddenly decline at a particular age.  Guterres is an example of the fact that aging is individualistic and depends on many factors that have nothing to do with a calendar.

Zero Discrimination Day – Except for Age Discrimination?

On March 1, the U.N. celebrated “Zero Discrimination Day,” which  it says celebrates everyone’s right to live a full life with dignity regardless of age, gender, sexuality, nationality, ethnicity, skin color, height, weight, profession, education, and beliefs.

Maybe someone should tell the U.N. that mandatory retirement is a form of age discrimination. It was banned in the U.S. in 1967 under the U.S. Age Discrimination in Employment Act, except with respect to a few limited categories (ex. public safety workers, high ranking executives, elected officials, etc.). Presumably the United Nations is exempted from the ADEA through a treaty.

Few would argue that age discrimination is an irrational and harmful form of discrimination that effectively denies older workers the right to work.  Possibly high paid staffers at the U.N. don’t need to earn money after age 65 but workers around the world do. 

Continue reading “U.N.: World Leader in Ageism”

Updated: Overcoming Age Discrimination in Employment

smokeI have updated my book, Overcoming Age Discrimination in Employment,  to include an important appeals court decision involving age discrimination in hiring.

The U.S. Court of Appeals for the 11th Circuit, based in Atlanta,  ruled last year that older job applicants have no protection whatsoever from systemic and calculated age discrimination in hiring – also known as disparate impact discrimination – under the Age Discrimination in Employment Act of 1967.

The 11th Circuit’s ruling in Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., technically affects only Georgia, Florida and Alabama. However, it could influence other federal circuits or lead to a difference in opinion between the circuits that ends up before the U.S. Supreme Court.

The 11th Circuit’s decision was shocking because evidence in the case showed the defendant, R.J. Reynolds Tobacco, hired two staffing agencies (Pinstripe and Kelly) to use internet software to weed out the resumes of applicants for a territory sales manager job who had more than eight years of experience. An estimated 20,000  older job applicants filed on-line applications for the  position; their applications were diverted to a digital trash can sight unseen.

Writing for the majority, Judge William Pryor held that the disparate impact provision of the ADEA only creates a cause of action for employees and cannot be the basis of a claim by a job applicant. The majority rejected the EEOC’s position that the ADEA does permit disparate impact lawsuits by job applicants, ruling the EEOC  was not due any deference.

Few would argue that age discrimination in hiring is devastating to older workers, many of whom are forced into a financially ill-advised early retirement and end up in poverty in their old age.

My book, Overcoming Age Discrimination in Employment, originally published in Jan. 2016, helps individuals and employers understand  key provisions of the Age Discrimination in Employment Act and how the law is interpreted by the federal courts.  It was a follow up to an earlier book, Betrayed: The Legalization of Age Discrimination in the Workplace, where I argue for repeal of the ADEA. Age should be added as a protected class to Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. That way at least older workers would have equal rights under the law.

The ADEA was weak and riddled with loopholes when it was adopted 50 years ago. Since then it has been eviscerated by the U.S. Supreme Court and federal appellate courts (like the 11th Circuit Court of Appeals).

Older workers literally have been second class citizens under federal law for 50 years. Isn’t that long enough?

 

 

 

 

Warning to Job Search Engines About Age Discrimination in Hiring

madigan-lisa Illinois Attorney General Lisa Madigan has warned six national career and job search companies that some of their search functions could violate state and federal age discrimination laws.

In a press release Thursday, Madigan announced she has sent letters seeking information about company practices from  Chicago-based CareerBuilder, Indeed, Beyond.com, Ladders, Inc., Monster Worldwide Inc. and Vault.

Madigan expressed concern about practices that appear to prevent older workers from creating accurate resumes and profiles when searching for new careers and submitting information to potential employers.

In particular, she focused upon sites that require job seekers to input dates of previous work experience and education but only allow those born after a certain year to do so. For example, one company provided 1980 as the earliest possible choice for users’ education or previous employment start dates.  Users over the age of 52 were unable to complete accurate profiles to apply for available positions.

Madigan’s Civil Rights Bureau is examining these practices.

It’s no secret that internet job search engines for years have quietly used software to divert applications by older workers into a digital trash can.

The problem of discriminatory practices by job search engines vividly came to light in a 2012 lawsuit filed against R.J. Reynolds Tobacco Co. by Richard M. Villarreal, who at age 49 submitted the first of several  unsuccessful internet job applications to Reynolds. Villarreal filed an age discrimination lawsuit after learning that Reynolds  had contracted with two recruiting firms to develop internet screening tools to screen out applicants having eight to ten years of experience. CareerBuilder.com was a defendant in that case.

The Villarreal case ultimately was gutted by the U.S. Court of Appeals for the 11th Circuit in Atlanta, which ruled that job applicants cannot sue employers under the federal Age Discrimination in Employment Act (ADEA) for promulgating policies and practices that discriminate in hiring on the basis of age. The appeals court said the ADEA does not cover job applicants, only employees.

Since then, a federal judge in San Francisco ruled in the case of Rabin v. PriceWaterhouseCoopers that the ADEA does permit so-called disparate impact lawsuits on behalf of job applicants.

Madigan cites both the ADEA and the Illinois Human Rights Act.

“Today’s workforce includes many people working in their 70’s and 80’s,” Madigan said in the release. “Barring older people from commonly used job-search sites because of their age is discriminatory and negatively impacts our economy.”