Role of Job Site and Staffing Services in Age Discrimination

noworkplacediscriminationDocuments filed in connection with a federal lawsuit shed light on the appalling role of America’s leading on-line job sites and recruiting  agencies in the on-going epidemic of age discrimination in hiring.

The lawsuit,  Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc. and CareerBuilder, LLC,  names as co-defendants with Reynolds,  CareerBuilder, which describes itself as America’s leading on-line job site, and  Pinstripe, an international staffing firm that is now known as Cielo.

Richard Villarreal applied for a job as Territory Manager with R.J. Reynolds in late 2007 at the age of 49.

According to court papers filed by the EEOC, Villarreal learned about the vacancy on a CareerBuilder website, which directed him to a Reynolds website, where he applied for the position. He was never contacted by Reynolds.

Reynolds hired Kelly Services, an international recruiting service based in Troy, Michigan, from 2007 to 2008 to screen applicants for the Territory Manager positions.  Kelly applied the following Resume Review Guidelines provided by Reynolds:

“ … desired characteristics of the “targeted candidate,” including “2-3 years out of college,” and characteristics of candidates to “stay away from,” including applicants who were “in sales for 8-10 years.”

Kelly Services rejected Villarreal’s November 2007 application because he had more than eight years of sales experience and was out of college longer than three years.

Villarreal applied a total of six times for the position of Territory Manager from 2007 to 2012.  Each time, the EEOC states, Villarreal’s application was rejected in favor of “younger, less experienced workers.”

In 2009, Reynolds replaced Kelly Services with another staffing firm, Pinstripe,  which continued to apply the “resume review guidelines” In addition, Pinstripe developed a profile for preferred Territory Management candidates called, “Blue Chip TM.”  Pinstripe surveyed recent hires (who skewed younger because of the resume review guidelines) and concluded that 67 percent of Blue Chip TMs had no prior experience or 1-2 years of work experience, while only nine percent had six or more years of prior experience.

From 2007 to 2010, Reynolds hired 1,024 Territory Managers. Only 19 or 1.85% were over the age of 40.

Of the applications screened by Kelly, about 48 percent (9,100 of 19,086) were from individuals with eight or more years of sales experience. Of the applications screened by Pinstripe from February 1, 2010 through July 10, 2010, more than 49 percent (12,727 out of 25,729) were from individuals with ten or more years of experience.

Villarreal filed a lawsuit in 2010 alleging that the  policies and practices used by Reynolds, Pinstripe and CareerBuilder for screening applicants for the position of Territory Manager intentionally disfavored and had a disparate impact on applicants aged 40 an older.

Another sorry aspect to this case is that, despite the overwhelming evidence, Villarreal’s lawsuit was DISMISSED on two technicalities!  A federal judge agreed with Reynolds that the ADEA does not permit disparate impact lawsuits by job applicants, and that Villarreal had failed to meet the ADEA’s 180-day statute of  limitations.

Reynolds and the company’s co-defendants were scott free, until Villarreal appealed to the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.

The EEOC filed an amicus brief that publicly disclosed  facts about the egregious role of job site and service agencies in the case.

Fortunately, a measure of justice has, for now, managed to infiltrate a system that is obviously stacked against older job applicants. A three-judge panel of the 11th Circuit court this week reinstated Villarreal’s lawsuit, holding that job applicants can file ADEA disparate impact claims and the 180-day statute of limitations should be tolled on equitable grounds if the applicant has no way of knowing that s/he was a victim of age discrimination during the limitations period.

Unfortunately, at least three other federal circuits have ruled that job applicants like Villarreal cannot file disparate impact lawsuits, which is the equivalent of a green light for discriminatory employers in those circuits. 

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Author: pgb

Attorney at Law, author and blogger.

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