Setback for Plaintiffs in Google Age Discrimination Case

GoogleA major age discrimination lawsuit against search engine giant, Google, suffered a setback recently when a federal judge refused to allow the plaintiffs to amend their complaint.

Such an action is ordinarily permitted. In fact, a federal court rule provides that a “court should freely give leave [to amend] when justice so requires.” However, U.S. District Judge Beth Labson Freeman rejected the request on the grounds the plaintiffs failed to show “diligence” in filing the motion to amend.

The case was filed in April 2015 by Robert Heath, a software engineer who was interviewed but not hired by Google in 2011. Heath alleges Google failed to hire him after an in-person interview because he was 60 years of age at the time. According to the lawsuit, the median age of Google’s 28,000 employees in 2013 was 29 while the median age for computer programmers in the United States was 42.8 and the median age for software developers is 40.6.

A second plaintiff subsequently joined the case, Cheryl Fillekes, a  40+ programmer who was invited for in-person interviews by Google in 2007, 2010, 2011 and 2013 but was never hired. She earned a P.hD. geophysics from the University of Chicago.

In March, the plaintiffs sought to amend the original complaint to permit  a class action claim under California’s Fair Employment and Housing Act (FEHA). The FEHA would have been another arrow in the plaintiffs’ quiver.  Not only did Judge Freeman reject the request, she wrote the plaintiffs’ created “havoc” by failing to file a timely motion for conditional certification under the federal Age Discrimination in Employment Act (ADEA).

California’s FEHA permits a plaintiff to file a traditional class action lawsuit, which is not permitted under the Age Discrimination in Employment Act of 1967. The ADEA has a unique class certification feature.

Under the ADEA, the court can order an employer to divulge the names and contact information of other potential class members, who then are permitted to “opt in” to the plaintiffs’ lawsuit.

Heath and Fillekes have asked the Court to order Google to divulge the names and contact information of engineering applicants who applied for a job since 2010, received an in person interview, and were refused employment.

Google claims it cannot identify potential plaintiffs because it received “over one million” applications for engineering positions since 2010. According to Google, “there is no systemic or reliable way of identifying applicants who were 40 or more years of age when they submitted applications or interviewed in-person since Google does not collect information about an applicant’s age.

Moreover, Google argues the plaintiffs are not entitled to class certification under the ADEA because “Because plaintiffs have no evidence whatsoever of a unifying scheme” and the plaintiffs’ allegations are “so idiosyncratic and distinct.”

Google asked the court to protect Google from “a frivolous expedition conducted at its own expense, and to avoid stirring up litigation through unwarranted notice … ”

Google claims that it “rigorously forbids discrimination of any kind,” including age discrimination.

Would Trump Halt Age Discrimination by Feds?

TrumpIn his address to the Detroit Economic Club on Monday, GOP Presidential hopeful Donald Trump said something that could have tremendous impact on the problem of age discrimination in employment.

He promised to immediately cancel all of President Barack Obama’s “illegal and overreaching executive orders.”

Older workers have been subject to blatant age discrimination in hiring by our nation’s largest employer, the U.S. government, since President Barack Obama signed an executive order in 2010 that essentially created an exemption to the Age Discrimination in Employment Act of 1967 (ADEA) for federal agencies.

President Obama’s order allows federal agencies to bypass older workers and hire “recent graduates.” The ADEA unambiguously states that it is unlawful for any employer “to fail or refuse to hire” any individual “because of such individual’s age.” Obama’s order has a disparate impact upon older workers because the vast majority of recent graduates are under age 30.

Paradoxically, President Obama claimed that merit-based civil service rules put the federal government at a “competitive disadvantage compared to private-sector employers when it comes to hiring qualified applicants for entry-level positions.” The point of civil service regulations is, of course, to hire the best qualified applicant. Obama’s order enables federal agencies to hire young applicants with fewer qualifications than older applicants. Continue reading “Would Trump Halt Age Discrimination by Feds?”

Term Limits for the Supreme Court

supremesImmediately upon losing the Democratic nomination for the presidency, Vermont Senator Bernie Sanders called on  progressives to unite behind Hillary Clinton in November to preserve the Supreme Court’s majority in favor of “a woman’s right to choose” and LGBT causes.

Meanwhile, GOP Presidential Candidate Donald Trump has expressed confidence that Supreme Court fears will keep Republicans loyal in the ballot box. Trump has vowed to nominate conservative candidates to the Court.

The fact that U.S. Supreme Court justices enjoy the perk of lifetime tenure is driving the American election to a sobering extent this year, pointing to the need to implement term limits for U.S. Supreme Court Justices.

The majority of the nine-member Court is eligible for Social Security: Ruth Bader Ginsburg is 83, Anthony M. Kennedy, 80  Stephen G. Breyer, 77, ,  Clarence Thomas, 68, Samuel A. Alito Jr., 66, and Sonya Sotomayor, 62.  The youngest Justice is Elena Kagan, 56.

It is likely that several Justices will be forced to step down by ill health or even death in the foreseeable future. The next President will nominate candidates to fill the vacancies.

It cannot be healthy for the election of a new U.S. President to be  so profoundly influenced by fear surrounding the potential makeup of the U.S. Supreme Court.

The candidates for the Presidency are stoking fear that the Court will divide along political lines and impose a distinct and unwanted ideology on the American public. But that ploy works precisely because the Court has voted along ideological lines for years. Continue reading “Term Limits for the Supreme Court”

Cashing in on Mandatory Retirement

NJIt’s hard to sympathize with Drew Lieb.

He recently filed a lawsuit alleging age discrimination by the New Jersey Office of Homeland Security and Civil Preparedness.

I don’t know whether Lieb lost his $130,000-a-year position as Deputy Director of the state homeland office because of age discrimination. I do know that New Jersey Watchdog  reported that Lieb previously retired as a New Jersey state trooper with a pension of $96,144. So the taxpayers of New Jersey were paying Lieb a total of $226,144 a year, including his salary and his pension.

In the private sector, pensions are virtually extinct. According to one study, the number of Fortune 500 companies offering traditional defined benefit pension plans dropped 86 percent from 1998 to 2013, from 251 to 34. Many employers do not offer workers any retirement plan and those that do offer 401K plans, which are based on worker contributions.

Lieb’s case demonstrates a failing of the Age Discrimination in Employment Act of 1967, which permits states to require public safety officers to retire at age 55.  This age limit is purely subjective. Many 55-year-old public safety officers are more capable of performing their jobs than younger officers who are less fit.  And mandatory retirement effectively allows public safety workers to retire from one public safety job with a fat pension just to take a similar public safety job with a fat paycheck.

Many states allow public safety officials to retire even sooner, after they have accumulated a predetermined number of years of service.


City accused of firing older women in bogus reorganizations

shooting-ducksThe city of Naples, FL, is facing a federal class action lawsuit for allegedly targeting female employees over the age of 40 for termination in bogus “reduction in force” or “reorganization” schemes.

According to the lawsuit, Naples has used the pretext of layoffs and departmental reorganizations to get rid of older female employees for at least four years. The lawsuit was filed by three veteran female employees, all in their 50s, who worked for the city’s building department.

According to the lawsuit, older female employees  are told their positions are being eliminated and  then presented with a severance agreement that gives them the option to “retire” or be involuntarily separated from the job. Younger, less qualified workers are hired to take their place.

The lawsuit alleges the so-called reductions in force were a pretext for sex and age discrimination.

The lawsuit,  filed earlier this month in U.S. District Court for the Middle District of Florida, Fort Myers Division, is Orstad, Fabrini and Kateley v. City of Naples, Florida.

Report: Strategic Ways to Tackle Workplace Age Discrimination

After a year-lGlobeong study, the Australian Human Rights Commission has issued a breakthrough report recommending concrete ways that government can tackle age discrimination in employment.

Australia is light years ahead of the United States with respect to age discrimination in employment, which is seen as a drag on the nation’s gross domestic product and a drain on public coffers through unnecessary social welfare costs. U.S. policy-makers, by contrast, have done virtually nothing to address our nation’s rapidly aging workforce. Moreover, incredibly, the federal government actually engages in age discrimination in hiring, while ignoring widespread complaints of age discrimination in hiring.

The  report, entitled Willing to Work, could be a  starting point for an American initiative to combat age discrimination.

One of the report’s recommendations is to encourage the governing bodies of Australia’s nine states and territories to leverage their “capacity to shape and influence the market” through procurement strategies designed to place older and disabled workers into jobs. Government suppliers would be asked to demonstrate their commitment to workplace diversity strategies,  non-discriminatory recruitment and retention practices. They also would be asked to set and report upon voluntary targets for the employment of older and disabled workers.

The report recommends a several-pronged national approach:

  • Establish a Minister for Longevity. (This is the equivalent of a U.S. Cabinet minister post).
  • Develop a national action plan to address employment discrimination on the basis of age and disability that includes “targets, actions, performance indicators and timeframes.”
  • Expand the mission of the country’s Workplace Gender Equality Agency, which would be called Workplace Gender Equality and Diversity Agency.
  • Introduce a  national education campaigns to dispel myths and stereotypes about older people and people with disabilities.
  • Adopt targets for employment and retention of older people and people with disability in the public service.

Continue reading “Report: Strategic Ways to Tackle Workplace Age Discrimination”

Someone Like Gloria Swanson but … Younger

NormaDesmond“All right Mr. DeMille, I’m ready for my close up,” pronounced Norma Desmond, the fading silent movie star in Sunset Boulevard (1950).

The role of Norma Desmond was played by 50-year-old Gloria Swanson, a great actress who received an Academy Award nomination for the part. Today, Swanson probably would be considered too old for the role.

Rampant age discrimination in the entertainment industry prompted California’s Assembly this week  to vote 71-4  to prohibit entertainment industry recruitment websites from disclosing actors’ ages or dates of birth without their consent. The bill will now go to California’s Senate.

The premise of the bill is that websites such as IMdB, which lists actors’ birthdates, facilitate age discrimination against women.

Several actresses have spoken out in recent months about the problem.

Actress Maggie Gyllenhall said she was deemed too old at age 37 to play the lover of a 55-year-old man.  Oscar-winner Ann Hathaway, 32, said she now loses parts to 24-year-olds. And British actress Emma Thompson recalls “saying years and years ago, when I was 35, that they’d have to exhume somebody to play my leading man … If anything, it’s got worse.”