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.”

Ineptitude at #OscarsSoYoung

nydailynewsThe inept bumbling of the Academy of Motion Picture Arts and Sciences came full circle Sunday night when an  apparent effort to honor two iconic older actors imploded.

This at a time when the Academy is under fire for age discrimination.

Warren Beatty and Faye Dunaway, stars of the classic 1967 movie, Bonnie and Clyde, were selected to announce the most important award of the evening, best picture of 2017. Unfortunately, they were handed the wrong envelope by the accounting firm PriceWaterhouseCoopers and, as a result, Dunaway mistakenly announced  the wrong movie  won the big award.

After producers of La La Land had thanked their mothers, a show producer stepped in to correct the mistake and the real winner, Moonlight, was announced. Beatty and Dunaway, both in their 70s, were left looking like dazed and confused before an audience of 34 million viewers.

A flurry of tweets and headlines from around the world blame Beatty and Dunaway, who were handed the wrong envelope by PriceWaterhouseCoopers.

The sorry episode follows a controversial effort by the Academy, led by President Cheryl Boon Isaacs, to boost diversity in membership  after African-Americans failed to be nominated for top acting awards two years in a row.  Of the Academy’s 6,000-odd voting members, 94%  were white.  But instead of pursuing a thoughtful, nuanced approach, the Academy used a sledgehammer.

Without any evidence that the age of voting members was actually responsible for the so-called whitewash of 2015-2016, the Academy adopted a retroactive membership rule limiting members’ voting status to a decade, with renewal contingent upon whether the member is still “active” in film. This effort to purge older members from the voting roster occurred amid a backdrop of well-publicized age discrimination in Hollywood that forces older members out of the industry. A public outcry ensued after a 91-year-old white male member threatened to sue the Academy for age discrimination.

Ironically, an analysis by Economist last year found that the characteristics of Academy voting members was not primarily responsible for the lack of minority nominations in 2015-2016.

The Economist concluded that lack of diversity is an industry-wide problem and blamed drama schools (shown in the Screen Actor’s Guild membership) and casting offices.

Moreover,  the Economist analyzed Oscar nominations since 2000 and found that while black actors received only 10% percent of Oscar nominations, they went on to win 15 percent of the Oscars. This is a higher proportion than their representation (12.6%) in the American population.

Black actors received 15% of the coveted golden statuettes, a bit above their share of the general population.

There is much more serious under-representation of other minority groups. The Economist found that just 3% of nominations have gone to  Hispanic actors (16% of the population) and 1% to those with Asian backgrounds. (Note that Academy this year finally gave an honorary Oscar to Chinese actor Jackie Chan, a veteran of 56 years in the film industry, during a pre-Oscar dinner. Chan appeared to be sitting in the last row of a balcony at the Oscars).

Isaacs told Oscar viewers Sunday that she is proud “to see all the new faces among this year’s nominees.” She continued, “Tonight is proof that art has no borders, art has no single language and art does not belong to a single faith.”

Unfortunately, Oscar night  was also proof that art is not immune to age discrimination.

 

Will the Real Third World Country Please Stand Up?

philippinesThe Philippines, a Third-World country,  adopted a new age discrimination ban last year that in some important respects is stronger than that of the U.S.’s Age Discrimination in Employment Act of 1964. 

For example, the Philippines law, which went into effect this month, makes it illegal to require job applicants to divulge their birth date or age.

According to the EEOC, it is not illegal under the ADEA to ask job applicants their age though such a request may be seen as evidence of intent to discriminate.(Of course, this is meaningless as the vast majority of job applicants will not sue).

The Philippines law makes it unlawful for an employer to publish “in any form of media” an employment advertisement that states a preference or limitation with respect to age.

Technically, it is illegal for an employer in the U.S. to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her age (40 or older). Yet, employers have for many years advertised with impunity in ways that clearly express an age bias  (ex., “enthusiastic employees for a young, dynamic company” or recent/new undergraduates).  

The Philippines law makes it illegal to deny “any employment application” because of the individuals age.

Theoretically, it is illegal under the ADEA for  employers to recruit new employees in a way that discriminates against them because of their age (40 or older). But many employers, including the EEOC and the U.S. Department of Labor, operate programs that do just that. They recruit and hire recent college or law school graduates, the vast majority of whom are under the age of 40.

According to the DOL: “Applicants must graduate from law school in Spring/Summer 2018 or be finishing a judicial clerkship or fellowship in time to start the Honors Program in September 2018.”

Finally, the Philippines’ new law prohibits mandatory retirement. The ADEA permits mandatory retirement in some circumstances, including public safety positions ( broadly defined) and high ranking executives.

So which is the real Third World country?