Systemic Age Discrimination in Hiring Ignored, Overlooked

Several states are acting to ban employers from discriminating against job applicants on the basis of prior criminal records and lack of credit worthiness.

Wouldn’t it be nice if there was also a national movement to bar employers from discriminating  against job applicants whose only “crime” is that they are aged 40 and above?

Technically, it’s already illegal for employers to discriminate on the basis of age but the Age Discrimination in Employment Act of 1967 is widely ignored when it comes to hiring. Legions of older workers talk about sending out dozens – even hundreds – of resumes and receiving no response. Why? Employers and staffing agencies use internet resume review screening tools to weed out older workers.

The evidence of systemic age discrimination in hiring was overwhelming in a lawsuit filed by job applicant Richard Villarreal. In 2007, at the age of computer49, Villarreal began submitting online applications to work as a territory  manager for R.J. Reynolds Tobacco.  A total of six applications filed by Villarreal were rejected in favor of younger, less experienced applicants.  Villarreal learned in 2010 that Reynolds, in combination with outside staffing agencies,  was using “resume review guidelines” to week out applications from older applicants. 

The guidelines told recruiters to target candidates who are “2–3 YEARS OUT OF COLLEGE” and to “STAY AWAY FROM” candidates with “8–10 YEARS” of prior sales experience.

Reynolds hired  1,024 people as Territory Managers from September 2007 to July 2010 but only 19 or 1.85 percent were over the age of 40 as a result of the resume screening process.

Villarreal alleged in his lawsuit that he was a victim of  disparate treatment (intentional discrimination) and disparate impact discrimination (a neutral policy that disproportionately impacts older workers). However, a federal court judge dismissed the case after ruling the disparate treatment claim was filed after the expiration of the ADEA’s 180-day statute of limitations and  the ADEA does not allow job applicants to file disparate impact claims.

Bucking a national trend, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta recently reinstated Villarreal’s case in a 2-1 ruling. The majority said  job applicants could file disparate impact claims and that the statute of limitations in Villarreal’s case should be equitably tolled because Villarreal had no way of knowing that he was a victim of age discrimination until 2010. The panel notes that Villarreal had too few facts to support an age discrimination claim until  a statistical analysis was conduct in 2010.  

Other defendants in the case are CareerBuilder.com, the internet search giant, and Pinstripe, Inc., a technology consulting firm based in Charlotte, NC.

The ruling in Villarreal v. R.J. Reynolds Tobacco Company, Pinstripe, Inc.  Careerbuilder, LLC. technically applies only in the 11th Circuit, which  has jurisdiction over Alabama, Florida and Georgia. At least three other federal circuits have ruled that job applicants cannot file disparate impact claims.

The decision in the Villarreal case creates a conflict among the federal circuits that can only be resolved by the U.S. Supreme Court.

Earlier this month,  the New Jersey Assembly Labor Committee released a bill—A2298—seeking to prohibit most credit checks on employees. Meanwhile, at least 52 U.S. municipalities and 18 states have adopted “ban the box” laws that eliminate questions pertaining to criminal background on government job applications. 

The AARP and the EEOC have not gone so far as to wage a battle against widespread and unaddressed age discrimination in hiring, though they did file supportive legal briefs in Villarreal’s appeal.  The U.S. Chamber of Commerce filed a brief in opposition.

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Author: pgb

Attorney at Law, author and blogger.

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