Legal ‘Pacs’ Lobby for Age Discrimination in Hiring

inequality scaleIt would be a public relations nightmare for a single American corporation to wage the battle against older workers that is going on in federal court right now.

That’s why major American corporations are hiding behind the equivalent of  “legal” super PACs (political action committees) to make their case. These PACs are akin to “political” super PACs that allow big donors to influence the course of national U.S. elections.

These legal super PACs, with their deep corporate pockets, include:

  • The Equal Employment Advisory Council (EEAC), which calls itself “a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination.” When you read the name, you may think the organization promotes equal employment but, alas, it lobbies for a membership base that includes “over 250 major U.S. corporations” whose primary interest is economic,  not equal rights.
  • The U.S. Chamber of Commerce describes itself the “world’s largest business organization.” It represents the interests of more than 3 million businesses, including leading industry associations and large corporations. The chamber claims it protects business interests in Washington, D.C. but it also lobbies federal courts around the country.

The EEAC and the Chamber both have filed briefs to protect employers “rights” to engage in blatant age discrimination in hiring in the case of Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., etc.

They are asking the full 11th Circuit Court of Appeals in Atlanta to overturn a split decision  by a circuit three-judge panel that held job applicants  aged 40 and older are entitled to file disparate impact lawsuits against employers with discriminatory hiring practices.  You may be surprised to learn that older job applicants can’t already do this. After-all, Title VII of the Civil Rights Act permits  job applicants to file disparate impact lawsuits on the basis of race, sex, color, religion and national origin.  This is just one of many ways that the Age Discrimination in Employment Act fails older workers.

Many employers today use screening tools to eliminate applications filed over the internet by older workers.

Richard Villarreal,  in 2007 at the age of 49, responded to an ad by R.J. Reynolds on CareerBuilder for a position as a regional Territory Manager. He got no response from Reynolds. The Georgia  resident applied for the position a total of  five times  between 2007 and 2010 and was rejected each time

In 2010, Villarreal filed a lawsuit after learning that Reynolds had retained national recruiting firms, Kelly Services and Pinstripe (now operating as Cielo, Inc.),  to develop screening tools to bypass applicants who  worked  in sales for more than eight years.

From 2007 to 2010, Reynolds hired 1,024 regional territory managers. Only 1.85 percent (19) were over the age of 40.  Reynolds, CareerBuilder and the staffing firms allegedly dumped more than 20,000 applications from older workers into a digital trash can.

How can anyone defend this kind of blatant and overt age discrimination?

The EEAC and Chamber are relying upon a “parade of horribles” to frighten the full 11th Circuit into submission. They argue that employers “might” face liability for holding on-campus recruiting programs or for “honors programs” designed to hire recent graduates (like the ones that are unfortunately in use by the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice). Never mind that a variant of this argument historically has been used to justify the most outrageous sex and race discrimination (i.e., giving women the vote will destroy the family) .

The PACS also are trying to get the case dismissed on a technicality involving the statute of limitations, which give the 11th Circuit the opportunity to avoid making a difficult decision in the case. They argue that Villarreal did not exercise due diligence to discover he was  a victim of age discrimination in 2007 and did not file an age discrimination complaint within the EEOC’s 180-day statute of limitations.

This folks is the sorry state of justice with respect to epidemic and unaddressed age discrimination in hiring that is particularly devastating to older women, often leading directly to decades of impoverishment in their remaining years.

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Author: pgb

Attorney at Law, author and blogger.

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