A 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.