Note: Since the mistrial, the parties agreed to engage in settlement talks. If the talks fail, an EEOC spokesperson said the EEOC “is ready” to re-try the case on May 15. PGB.
The problem with age discrimination in employment is that it is a deep-seated almost primal bias that goes largely unrecognized in society.
That may be one reason why a federal jury in Boston deadlocked Friday after a four-week trial in a major age discrimination case brought by the EEOC against Texas Roadhouse, a nationwide chain of 500 steakhouses that has a history of rejecting older applicants for “front of the house”positions like host or server.
In the trial, as reported by Peter Gosselin on the website ProPublica, the EEOC introduced evidence that the company routinely refused to hire older applicants, affixing demeaning labels to applications, such as “Old’ ‘N Chubby,” “OLD,” “little old lady,” and “middle age… Doesn’t really fit our image.”
Of the almost 200,000 people Texas Roadhouse hired over the years for front-of-the-house jobs, fewer than 3,000 were over the age of 40 – a disparity so great the EEOC’s expert witness estimated the odds of it happening absent discrimination at one in 781 billion.
Asked whether Texas Roadhouse did in fact discriminate on the basis of age, the company’s then-human resources director, Dee Shaughnessy, allegedly replied: “Did we do it? Of course we did it. All you have to do is walk in the front door of our restaurants and see what people look like.”
Just look at the Careers page on its website!
Instead of acknowledging and correcting the problem, Texas Roadhouse went on the offensive. The company exploited the equivalent of a loophole by challenging whether the EEOC has the authority to file an age discrimination lawsuit in the absence a complaint from a disappointed job seeker. And Texas Roadhouse CEO and founder W. Kent Taylor complained to the U.S. Congress, where two Republican Senators, Rand Paul and Lamar Alexander, took up the torch.
Of course, behind the scenes was the ever-present U.S. Chamber of Commerce, which issued a report last year blasting the EEOC for its supposed over-zealousness and “questionable enforcement tactics and legal theories.”
U.S. District Court Judge Denise J. Casper on Friday declared a mistrial in the case after the jury came back for the third day to say it could not reach a unanimous decision. The EEOC says it intends to re-try the case.
It’s hard to prosecute age discrimination in a society that worships youth. But age discrimination is no different from any other kind of discrimination, including race or sex discrimination. Discrimination is based upon false stereotypes, animus toward a discrete group (in this case, older Americans) and fear (of disease and death). And age discrimination is just as harmful. It relegates older workers to chronic unemployment, forcing them to spend down their savings, skip needed health care, take Social Security as soon as possible. Many, especially women, suffer poverty in old age. Society picks up the tab in the form of increased health and social service costs.
Why would anyone who cares about human rights, especially older Americans, spend their money at Texas Roadhouse. Don’t patronize a restaurant that engages in age discrimination.