Reynolds Tobacco ‘Walks” in Case of Internet Screening to Exclude Older Job Applicants

smokeA federal appeals court panel in Atlanta this week dismissed the tattered remains of an important lawsuit alleging age discrimination in hiring against R. J. Reynolds Tobacco Co..

In other words, R.J. Reynolds will face no legal consequences for conducting a several year campaign of internet screening to weed out the applications of older workers and target workers who were “2-3 years out of college” who “easily adjusts to change.”

The 11th Circuit’s decision effectively grants immunity to employers in Alabama, Florida and Georgia who engage in systemic age discrimination in hiring.

Meanwhile,  the U.S. Supreme Court  has refused to hear an appeal of a landmark decision by the full 11th Circuit of Appeals last October holding that job applicants are not covered under the Age Discrimination in Employment Act of 1967. The appeals court said Richard Villarreal could not sue Reynolds under a “disparate” impact because Villarreal “has no status as an employee.”  The disparate impact theory is used to attack a supposedly neutral policy or practice that has a disproportionate, negative impact on a protected group.

The 11th Circuit was the first court in the nation to rule that the ADEA covers only employees. The ADEA has been used to protect job applicants for decades.

After the dismissal of Villarreal’s systemic discrimination claim, his only remaining claim involved intentional discrimination. A three-judge panel of the 11th Circuit on Tuesday upheld the dismissal of this claim because it was not filed within 180 days of the alleged violation.

Federal courts have concluded that Villarreal – who appears to be a victim of gross and provable age discrimination in hiring – has no remedy under federal law.

The 11th Circuit panel said Villarreal’s disparate treatment argument was not eligible to be considered under a so-called continuing violation theory. The panel said this doctrine applies to minor incidents that alone would not be actionable but which become actionable due to their “cumulative” effect … That is not so for Villarreal. He is not challenging the cumulative effect of R.J. Reynolds multiple refusals to hire older applicants; instead he is challenging each individual refusal-to-hire.”

From 2007 to 2010, Reynolds dumped more than 20,000 applications from older workers into a digital trash can. Reynolds hired 1,024 regional territory managers during this period of whom 1.85 percent (19) were over the age of 40.

Villarreal did not file an age discrimination claim against Reynolds in 2009 when, at the age of 49,  he was not hired the first time for a territory manager position.  He argued that Reynolds did not respond to his application and he had no way of knowing why he wasn’t selected. He finally sued in 2012 – after filing five unsuccessful applications for the position – after a whistleblower disclosed that  Reynolds had a policy of screening out Internet applications by older workers.

Villarreal also argued the statute of limitations should be waived under the doctrine of equitable tolling but the lower court rejected that argument on the grounds that Villarreal failed to inquire about why he was not hired in 2009 and, thus, failed to pursue his rights diligently.

Other defendants in the case were Kelly Staffing and Pinstripe Staffing. CareerBuilder earlier reached a settlement.

Dear EEOC Commissioners …

 

EEOCThe following comments are made in response to the EEOC’s invitation for public comment regarding the EEOC’s discussion of the 50th Anniversary  of the Age Discrimination in Employment Act of 1967 (ADEA) at its June 14, 2017 meeting.

I am a licensed attorney and the author of Betrayed: The Legalization of Age Discrimination in the Workplace (2014) and Overcoming Age Discrimination in the Workplace (2016).  I am the editor of a syndicated employment law blog, When the Abuser Goes to Work and I edit a blog called Age Discrimination in Employment.  I have been quoted in many national publications about the problem of age discrimination in employment in the United States.

I am surprised that it was not mentioned at your meeting that a major reason for the on-going epidemic of age discrimination in employment in America is the legal inequality of older workers.

I urge the EEOC advocate for repeal of the ADEA. Age should be added as a protected class to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, sex, religion, color and national origin.  This would ensure uniform treatment under the law of all forms of harmful employment discrimination, including age discrimination. It is not a radical move; Australia did it in 2008.

Age discrimination in employment currently is treated by the EEOC and federal courts as a pesky, lesser and secondary offense. This, despite an overwhelming body of research that shows that age discrimination, like other forms of discrimination, is based upon false stereotypes, irrational fears and deep-seated animus.  Moreover, age discrimination, like other forms of illegal discrimination, has a devastating impact on both individuals and the American economy.

Age was originally proposed for inclusion as a protected class in Title VII in 1964 but was omitted when it was determined more study was needed.

When the ADEA was passed in 1967, it was far weaker than Title VII and it became weaker still in succeeding years due to adverse and some would argue arbitrary rulings by federal appeals courts (i.e. Villarreal v. R.J. Reynolds Tobacco Company, 806 F. 3d 1288 – (11th Cir. 2015) and the U.S. Supreme Court (i.e. Gross v. FBL Financial Services, 557 US 167 (2009).

Attorneys today are reluctant to accept ADEA cases because even patently obvious cases are almost impossible to win due to arbitrary barriers erected by the law and court system. Also, unlike Title VII, the ADEA does not provide compensatory or punitive damages. Indeed, a plaintiff who has incurred no monetary damages may get no damages (or attorney fees) whatsoever despite having suffered egregious age discrimination. Lesser damages under the ADEA is a major deterrent to the enforcement of older workers’ rights.

The ADEA also is burdened by antiquated and arbitrary rules, such as permitting  age discrimination that is not required by ‘business necessity,” and including mandatory retirement for public safety workers, which forces older workers out of the workplace despite the fact they are healthy and fit for their jobs.

After 50 years of inequality for older workers, isn’t it time to do what Congress should have done in 1964 – include age as a protected class under Title VII.

In addition to the above, I propose the following:

  •  The EEOC should develop a national action plan for addressing age discrimination in employment.
  • The EEOC should demonstrate leadership and courage to ensure that older workers are protected from what is now unabashed, epidemic and unaddressed age discrimination in hiring by private sector industries, including high tech and academia, and our nation’s largest employer, the federal government.
  • The EEOC should ensure that an appropriate percentage of its resources are devoted to combating age discrimination. In 2016, the EEOC filed only two lawsuits with age discrimination complaints, despite the fact that age discrimination complaints comprise almost a quarter of all complaints received by the Agency. This indicates a lack of commitment by the Agency to enforcing the ADEA.
  • It should be a top priority for the Agency to educate EEOC staffers, including hearing officers, about the nature and impact of age discrimination, which is currently given short -shrift by many in the Agency.
  • The EEOC should introduce a national education campaign to dispel myths and stereotypes about older workers.
  • The EEOC should discontinue the EEOC Attorney Honor Program which results in disparate impact age discrimination in hiring. This program sends a message to private sector employers that age discrimination is appropriate and will be tolerated by the Agency. Any applicant, regardless of age, should be able to compete for any job at the EEOC.

Throughout and since the Great Recession, millions of America’s older workers (especially women) have been forced out of the workplace by age discrimination and into an impoverished retirement. I believe it is long past the time for the EEOC to step-up and demonstrate an unwavering commitment to combat all forms of irrational and harmful discrimination, including age discrimination.

‘CEO Act!on for Diversity & Inclusion’ Omits Age Bias

Blind

Tim Ryan, the CEO of PricewaterhouseCoopers, recently announced a new campaign to address lack of diversity in the business community that appears to target every protected group except older workers.

PWC is in the midst of an age discrimination lawsuit that alleges the corporation has made it virtually impossible for older workers to apply for entry-level jobs.

Ryan, who also is PwC’s senior partner, announced June 12 on  CBS television that PwC is taking a leadership role in  “CEO Act!on for Diversity and Inclusion.”  He said more than 150 CEOs of Fortune 500 companies have signed up for the new initiative, including the leaders of IBM, Proctor and Gamble, Under Armour and CBS.

According to the campaign’s web page, the signatories agree upon the “need to address honestly and head-on the concerns and needs of our diverse employees and increase equity for all, including Blacks, Latinos, Asians, Native Americans, LGBTQ, disabled, veterans and women.”

There is no mention of older workers.

Steve Rabin, 53, a certified public  accountant, sued PwC in 2013, claiming the corporation relies almost exclusively upon campus recruiting to fill entry-level positions and does not post job vacancies on its public web site. He alleged the only way to apply for a job is through PwC’s campus track recruitment tool, which requires a college affiliation.

The lawsuit states the average age of PwC’s workforce in 2011 was 27, while the median age of accountants and auditors in the U.S. was 43.2.

The corporation attempted unsuccessfully in February to persuade a federal judge in San Francisco to follow the lead of another federal appeals court in Atlanta and rule the Age Discrimination in Employment Act (ADEA) does not permit job applicants to sue for disparate impact discrimination. This is a type of discrimination that occurs when an employer adopts a seemingly neutral practice or policy that has a disproportionate, negative impact upon a protected group. U.S. District Judge John S. Tigar denied the motion and refused PwC’s request to dismiss the case without a trial.

Signatories to the diversity campaign plan to support education about “unconscious bias” to minimize any potential “blind spots” an employee “might have but wasn’t aware of previously.” A good place to start  might be age discrimination.

Though the ADEA was passed 50 years ago to protect older workers from irrational and harmful discrimination, the problem remains hidden, epidemic and unaddressed in American society.

Ninth Circuit Ruling Widens Gulf Between Private and Public Employees under the ADEA

puzzlepieceA federal appeals court disagreed with four other federal circuits this week to hold that a political subdivision of a state need not have 20 or more employees to be sued under the Age Discrimination in Employment Act.

The ruling reinstated a lawsuit filed against the rural Mount Lemmon Fire Department, near Tucson, AZ,  by fire fighters John Guido, 46, and Dennis Rankin, 54, both captains, who claimed they were fired in 2000 because they were the oldest full-time firefighters in the district.

A three-judge panel of the 9th circuit  appeals court overturned the lower court ‘s decision to grant the Fire District’s motion to dismiss the case without a trial on the grounds that the district did not meet the ADEA’s threshold requirement of  having 20 or more employees.

The appeals court held that the 20-employee minimum does not apply to political subdivisions of the State.

The issue comes down to the wording of a 1974 amendment to the ADEA that extended the law’s reach to “employers having at least 20 workers, and to the Federal and State Governments.”  The 9th Circuit panel said the plain reading of the clause shows that the first sentences does not include the second sentence. In other words, federal and state governments are not subject to the 20-worker requirement.

The case highlights a problem inherent with the ADEA – employees are subject to differing treatment depending upon whether they work for private or public sector employers.

In 2009, the U.S. Supreme Court in Gross v. FBL Financial Services raised the standard of proof in age discrimination cases by requiring that plaintiffs show that age discrimination was the “but for” or determinative cause of an adverse employment action (i.e. demotion, dismissal).  The U.S. District Court of Appeals for the District of Columbia Circuit subsequently ruled that  the section of the ADEA that covers federal sector workers stipulates that “all personnel actions … shall be made free from any discrimination based on age.” Therefore, the appeals court said, the Gross decision does not apply to federal sector employees because it could “impermissably permit age bias to infect employment decisions. This means that theoretically, at least, it is easier for federal  sector workers to prove age discrimination than private sector workers.

 

Two Colleges Settle Age Discrimination Lawsuits

RejectedHigher education ranks behind Silicon Valley in terms of brazen and epidemic age discrimination in employment but there were two developments last week that may signal future change.

Attorneys for a 63-year-old former professor in women and gender studies (WGS) at Minnesota State University Moorhead announced that she will receive $150,000 in a settlement of her age discrimination case.

And the EEOC announced a $60,000 settlement in a 2014 lawsuit filed against City College of Chicago for refusing to hire a 66-year-old adjunct professor of English for a full-time faculty position.

Minnesota State University Moorhead 

Claudia Murphy had served as a professor in MSUM’s WGS program for more than six years when she claimed the university in 2015 required a PhD in WGS, which was not offered anywhere until 1995, as a way to exclude her from a prestigious position in the program. Murphy, who had a PhD in philosophy, was then  terminated.

The person hired for the job received her PhD in WGS in 2015.

According to her attorneys, the search committee agreed that a PhD in either WGS, feminist studies or a related field would be acceptable but its decision was overruled by Randy Cagle, dean of the College of Humanities and Social Sciences, who decided that only a terminal degree in WGS or feminist studies was acceptable. Murphy appealed to MSUM’s human resources department and university President Anne Blackhurst, but both declined to intervene. MSUM denied the allegation of age discrimination.

Murphy was represented by Schaefer Halleen, a Minneapolis law firm.

City College of Chicago

The EEOC announced a $60,000 settlement in a 2014 age discrimination lawsuit filed against City Colleges of Chicago for refusing to hire Nancy Sullivan, 66,  for a full-time faculty position.

According to the EEOC, Sullivan had worked there as an adjunct professor for five years and had a stellar record and excellent recommendations from several full-time faculty members. Nevertheless, she was passed over in favor of two substantially younger and less experienced candidates.

The settlement also mandates that City Colleges train its employees on age discrimination and report to EEOC any complaints of age discrimination it receives.

EEOC Regional Attorney Gregory Gochanour said it was not the first time the EEOC had sued City Colleges for age discrimination. In 2006, the EEOC challenged an employment decision by City Colleges that was strikingly similar to one in Sullivan’s case. The EEOC charged that City Colleges violated the ADEA by refusing to hire another one of its adjunct instructors in its English department for a full-time faculty position. The earlier case was also was settled by consent decree.  Gochanour expressed hope that City Colleges will be vigilant going forward and will not let discrimination infect future employment decisions.

EEOC Rebuked For Failing to Enforce Age Discrimination Law

birthday cakeThe EEOC was told repeatedly Wednesday that both it and the Age Discrimination in Employment Act of 1967 are doing a poor job of protecting older workers, particularly older women, from age discrimination in employment.

The experts were invited by EEOC Acting  Chair Victoria A. Lipnic to an EEOC meeting to commemorate the 50th anniversary of the ADEA.

Lipnic noted that “with so many more people working and living longer, we can’t afford to allow age discrimination to waste the knowledge, skills, and talent of older workers.” She expressed hope that “ we can work together to fulfill the promise of this important civil rights law to ensure opportunities are based on ability, not age.”

Senior Attorney Laurie McCann of the AARP Foundation Litigation blasted the EEOC’s lack of enforcement effort with respect to the ADEA.

She noted that only two ADEA cases were brought by the EEOC last year out of 86 merit lawsuits filed by the EEOC and that neither  case appears to involve systemic discrimination. She said older workers need the EEOC to “step up and vigorously defend” EEOC age discrimination regulations and to fight “thinly veiled efforts” by employers to exclude older workers from applying for jobs.

McCann was particularly critical of the EEOC’s failure to address blatant discrimination in Silicon Valley, where only 8 percent of firms include “age” in their diversity and inclusion policies, and in the entertainment industry, where older writers and other workers are excluded.

“In the 50th anniversary year of the enactment of the ADEA,” McMann said, “ageism unfortunately remains pervasive in the American labor force.”

McCann noted that in recent years the U.S. Supreme Court and other federal courts have diminished the ADEA’s protections and erected barriers to age discrimination suits. She said the ADEA has been treated like a “second-class civil rights statute.” Nevertheless, she said, “there is much the EEOC can do within its existing authority to update and strengthen substantive policies and to bolster its enforcement activities under the ADEA.”

Among other things, she urged the EEOC to make age-related inquiries for job applications “presumptively unlawful”; to bar requests for date of birth, graduation dates, or similar information unless age is a bona fide occupational qualification; and to prohibit online job sites from using menus and algorithms that have the effect of screening out older applicants.

Patrick Button, an assistant professor of economics at Tulane University, said age discrimination is still common, especially for older women who experience “sex plus age” discrimination. He concluded that “while age discrimination laws seem to help mitigate some age discrimination faced by older men, older women face more age discrimination, and current age discrimination laws do a poor job of protecting older women, who are even more economically vulnerable.”

Continue reading “EEOC Rebuked For Failing to Enforce Age Discrimination Law”

Is the EEOC Relevant to the Age Discrimination in Employment Act?

JohnsonSignsADEAThe EEOC  at its June 14 meeting plans to “launch” a commemoration of the 50th anniversary of the passage of the Age Discrimination in Employment Act (ADEA) called, “The ADEA @ 50 – More Relevant Than Ever.”

The title is oddly neutral and ignores the reality that the ADEA for years has been largely irrelevant to epidemic and unaddressed age discrimination in the United States.  This is not a surprise, of course, given the irrelevance of the EEOC.  Consider:

  • Though 22.8 percent of the 99,503 charges of workplace discrimination complaints filed with the EEOC in 2016 involved age discrimination, the EEOC filed only two lawsuits with age discrimination claims that year.  The EEOC also filed two lawsuits in 2016 under the Genetic Information Non-Discrimination Act, which comprised three percent of all complaints filed with the EEOC that year.
  • The small fraction of cases where the EEOC  found reasonable cause to believe that age discrimination occurred were automatically diverted to mediation – which is a free service  provided by the EEOC that allows employers to settle age discrimination cases out of court for peanuts without any admission of guilt. Victims of age discrimination –  two-thirds of whom have lost their jobs – typically walk away with less than $20,000.  Most are not represented by an attorney and have no real choice but to settle because the EEOC refuses to go to court to enforce the ADEA on their behalf.
  • According to its web site: “The EEOC’s Attorney Honor Program hires third-year law students, full-time graduate law students, and judicial law clerks for permanent agency positions.”  Given that the vast majority of students and clerks are under the age of 30, this program has an obvious disparate impact on older attorneys. The ADEA prohibits using age as a factor in hiring decisions. Moreover, when President Lyndon Baines Johnson signed the ADEA into law in 1967, he said, “This act does not compel employers and labor unions and employment agencies to choose a person aged 40 to 65 over another person. It does require that one simple question be answered fairly: Who has the best qualifications for the job?”

In my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace, I suggest that the EEOC  wastes the time and money of the vast majority of  age discrimination victims, who are required to file their complaints first with the Agency and then wait 60 days before they can go to court.  In almost all instances, the EEOC spits out a “right to sue” form letter giving the complainant permission to file an individual lawsuit against the employer.

It is not likely that the EEOC’s own failure – one might say, dereliction of duty – to enforce the ADEA will be raised by  invited panelists at the upcoming commemoration. A cynic might suppose that this is one reason that these panelists were invited to the event and not moi, the author of Betrayed: The Legalization of Age Discrimination in the Workplace.

For the record, in my book,  I urge Congress to repeal the ADEA and make age a protected class under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. Older workers should at least receive the same legal rights accorded to other victims of irrational and harmful employment discrimination. At present, Title VII offers far more protection to victims of discrimination than does the ADEA.

The EEOC states the upcoming meeting “will explore the state of age discrimination in America today and the challenges it poses for the future.”

The meeting is open “for public observation,” which, given the fact it is taking place in Washington, DC, probably means it will be attended mostly by lobbyists and attorneys who represent major employers.  It is unfortunate the EEOC is not streaming the meeting for general public consumption over the internet. Again, this is not surprising given that the EEOC does not, as yet,  permit discrimination victims to file their complaints on-line.

JohnsonSignsADEA
President Lyndon Baines Johnson signs the Age Discrimination in Employment Act on Dec. 15,1967.