Updated: Overcoming Age Discrimination in Employment

smokeI have updated my book, Overcoming Age Discrimination in Employment,  to include an important appeals court decision involving age discrimination in hiring.

The U.S. Court of Appeals for the 11th Circuit, based in Atlanta,  ruled last year that older job applicants have no protection whatsoever from systemic and calculated age discrimination in hiring – also known as disparate impact discrimination – under the Age Discrimination in Employment Act of 1967.

The 11th Circuit’s ruling in Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., technically affects only Georgia, Florida and Alabama. However, it could influence other federal circuits or lead to a difference in opinion between the circuits that ends up before the U.S. Supreme Court.

The 11th Circuit’s decision was shocking because evidence in the case showed the defendant, R.J. Reynolds Tobacco, hired two staffing agencies (Pinstripe and Kelly) to use internet software to weed out the resumes of applicants for a territory sales manager job who had more than eight years of experience. An estimated 20,000  older job applicants filed on-line applications for the  position; their applications were diverted to a digital trash can sight unseen.

Writing for the majority, Judge William Pryor held that the disparate impact provision of the ADEA only creates a cause of action for employees and cannot be the basis of a claim by a job applicant. The majority rejected the EEOC’s position that the ADEA does permit disparate impact lawsuits by job applicants, ruling the EEOC  was not due any deference.

Few would argue that age discrimination in hiring is devastating to older workers, many of whom are forced into a financially ill-advised early retirement and end up in poverty in their old age.

My book, Overcoming Age Discrimination in Employment, originally published in Jan. 2016, helps individuals and employers understand  key provisions of the Age Discrimination in Employment Act and how the law is interpreted by the federal courts.  It was a follow up to an earlier book, Betrayed: The Legalization of Age Discrimination in the Workplace, where I argue for repeal of the ADEA. Age should be added as a protected class to Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. That way at least older workers would have equal rights under the law.

The ADEA was weak and riddled with loopholes when it was adopted 50 years ago. Since then it has been eviscerated by the U.S. Supreme Court and federal appellate courts (like the 11th Circuit Court of Appeals).

Older workers literally have been second class citizens under federal law for 50 years. Isn’t that long enough?





Warning to Job Search Engines About Age Discrimination in Hiring

madigan-lisa Illinois Attorney General Lisa Madigan has warned six national career and job search companies that some of their search functions could violate state and federal age discrimination laws.

In a press release Thursday, Madigan announced she has sent letters seeking information about company practices from  Chicago-based CareerBuilder, Indeed, Beyond.com, Ladders, Inc., Monster Worldwide Inc. and Vault.

Madigan expressed concern about practices that appear to prevent older workers from creating accurate resumes and profiles when searching for new careers and submitting information to potential employers.

In particular, she focused upon sites that require job seekers to input dates of previous work experience and education but only allow those born after a certain year to do so. For example, one company provided 1980 as the earliest possible choice for users’ education or previous employment start dates.  Users over the age of 52 were unable to complete accurate profiles to apply for available positions.

Madigan’s Civil Rights Bureau is examining these practices.

It’s no secret that internet job search engines for years have quietly used software to divert applications by older workers into a digital trash can.

The problem of discriminatory practices by job search engines vividly came to light in a 2012 lawsuit filed against R.J. Reynolds Tobacco Co. by Richard M. Villarreal, who at age 49 submitted the first of several  unsuccessful internet job applications to Reynolds. Villarreal filed an age discrimination lawsuit after learning that Reynolds  had contracted with two recruiting firms to develop internet screening tools to screen out applicants having eight to ten years of experience. CareerBuilder.com was a defendant in that case.

The Villarreal case ultimately was gutted by the U.S. Court of Appeals for the 11th Circuit in Atlanta, which ruled that job applicants cannot sue employers under the federal Age Discrimination in Employment Act (ADEA) for promulgating policies and practices that discriminate in hiring on the basis of age. The appeals court said the ADEA does not cover job applicants, only employers.

Since then, a federal judge in San Francisco ruled in the case of Rabin v. PriceWaterhouseCoopers that the ADEA does permit so-called disparate impact lawsuits on behalf of job applicants.

Madigan cites both the ADEA and the Illinois Human Rights Act.

“Today’s workforce includes many people working in their 70’s and 80’s,” Madigan said in the release. “Barring older people from commonly used job-search sites because of their age is discriminatory and negatively impacts our economy.”

Ineptitude at #OscarsSoYoung

nydailynewsThe inept bumbling of the Academy of Motion Picture Arts and Sciences came full circle Sunday night when an  apparent effort to honor two iconic older actors imploded.

This at a time when the Academy is under fire for age discrimination.

Warren Beatty and Faye Dunaway, stars of the classic 1967 movie, Bonnie and Clyde, were selected to announce the most important award of the evening, best picture of 2017. Unfortunately, they were handed the wrong envelope by the accounting firm PriceWaterhouseCoopers and, as a result, Dunaway mistakenly announced  the wrong movie  won the big award.

After producers of La La Land had thanked their mothers, a show producer stepped in to correct the mistake and the real winner, Moonlight, was announced. Beatty and Dunaway, both in their 70s, were left looking like dazed and confused before an audience of 34 million viewers.

A flurry of tweets and headlines from around the world blame Beatty and Dunaway, who were handed the wrong envelope by PriceWaterhouseCoopers.

The sorry episode follows a controversial effort by the Academy, led by President Cheryl Boon Isaacs, to boost diversity in membership  after African-Americans failed to be nominated for top acting awards two years in a row.  Of the Academy’s 6,000-odd voting members, 94%  were white.  But instead of pursuing a thoughtful, nuanced approach, the Academy used a sledgehammer.

Without any evidence that the age of voting members was actually responsible for the so-called whitewash of 2015-2016, the Academy adopted a retroactive membership rule limiting members’ voting status to a decade, with renewal contingent upon whether the member is still “active” in film. This effort to purge older members from the voting roster occurred amid a backdrop of well-publicized age discrimination in Hollywood that forces older members out of the industry. A public outcry ensued after a 91-year-old white male member threatened to sue the Academy for age discrimination.

Ironically, an analysis by Economist last year found that the characteristics of Academy voting members was not primarily responsible for the lack of minority nominations in 2015-2016.

The Economist concluded that lack of diversity is an industry-wide problem and blamed drama schools (shown in the Screen Actor’s Guild membership) and casting offices.

Moreover,  the Economist analyzed Oscar nominations since 2000 and found that while black actors received only 10% percent of Oscar nominations, they went on to win 15 percent of the Oscars. This is a higher proportion than their representation (12.6%) in the American population.

Black actors received 15% of the coveted golden statuettes, a bit above their share of the general population.

There is much more serious under-representation of other minority groups. The Economist found that just 3% of nominations have gone to  Hispanic actors (16% of the population) and 1% to those with Asian backgrounds. (Note that Academy this year finally gave an honorary Oscar to Chinese actor Jackie Chan, a veteran of 56 years in the film industry, during a pre-Oscar dinner. Chan appeared to be sitting in the last row of a balcony at the Oscars).

Isaacs told Oscar viewers Sunday that she is proud “to see all the new faces among this year’s nominees.” She continued, “Tonight is proof that art has no borders, art has no single language and art does not belong to a single faith.”

Unfortunately, Oscar night  was also proof that art is not immune to age discrimination.


Will the Real Third World Country Please Stand Up?

philippinesThe Philippines, a Third-World country,  adopted a new age discrimination ban last year that in some important respects is stronger than that of the U.S.’s Age Discrimination in Employment Act of 1964. 

For example, the Philippines law, which went into effect this month, makes it illegal to require job applicants to divulge their birth date or age.

According to the EEOC, it is not illegal under the ADEA to ask job applicants their age though such a request may be seen as evidence of intent to discriminate.(Of course, this is meaningless as the vast majority of job applicants will not sue).

The Philippines law makes it unlawful for an employer to publish “in any form of media” an employment advertisement that states a preference or limitation with respect to age.

Technically, it is illegal for an employer in the U.S. to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her age (40 or older). Yet, employers have for many years advertised with impunity in ways that clearly express an age bias  (ex., “enthusiastic employees for a young, dynamic company” or recent/new undergraduates).  

The Philippines law makes it illegal to deny “any employment application” because of the individuals age.

Theoretically, it is illegal under the ADEA for  employers to recruit new employees in a way that discriminates against them because of their age (40 or older). But many employers, including the EEOC and the U.S. Department of Labor, operate programs that do just that. They recruit and hire recent college or law school graduates, the vast majority of whom are under the age of 40.

According to the DOL: “Applicants must graduate from law school in Spring/Summer 2018 or be finishing a judicial clerkship or fellowship in time to start the Honors Program in September 2018.”

Finally, the Philippines’ new law prohibits mandatory retirement. The ADEA permits mandatory retirement in some circumstances, including public safety positions ( broadly defined) and high ranking executives.

So which is the real Third World country?

PricewaterhouseCoopers’ Defense: Older Job Applicants Can’t Sue for Systematic Discrimination

Note: U.S. District Judge John S. Tigar has rejected PwC’s argument that the Age Discrimination in Employment Act does not permit job applicants to file disparate impact lawsuits alleging systemic age discrimination. The case will proceed.

pwcSo PricewaterhouseCoopers, the second largest professional services firm in the world, is being sued for refusing to hire older applicants to work as accountants.

But instead of waging a defense to that charge, PwC is arguing the Age Discrimination in Employment Act (ADEA) doesn’t allow job applicants to sue for systemic discrimination.

PwC attorney Joshua Z. Rabinovitz of Kirkland & Ellis LLP recently urged a federal judge in San Francisco to follow the lead of a federal appeals court in Atlanta  and rule that the ADEA does not permit job applicants to sue for disparate impact discrimination.

The disparate impact theory of discrimination is invoked when an employer adopts a practice or policy that has a disproportionate and negative impact upon a protected group.

Rabinovitz said the ADEA was not amended when its sister statute, Title VII of the Civil Rights Act , was amended in 1972 to permit disparate impact lawsuits by job applicants. Therefore, he said, the ADEA does not allow disparate impact lawsuits by job applicants. Title VII covers discrimination on the basis of race, sex, color, national origin and religion.

The suit was filed by Steve Rabin, 53, a certified public accountant who was rejected in 2013 for a position at PwC. He alleges that PwC relies almost exclusively upon campus recruiting to fill entry-level positions and does not post vacancies on its public web site. The only way to apply for a job is through PwC’s “Campus track recruitment tool, which requires a college affiliation.”  The lawsuit also notes that PwC  maintains a mandatory early retirement policy that requires partners to retire by age 60 which allegedly discourages the hiring of  experienced older applicants.

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.

Daniel B. Kohrman, an attorney for AARP Foundation Litigation,  argued the ADEA prohibits age discrimination against “any individual” who is aged 40 and above, which could include job applicants.

Ironically, pervasive discrimination against older job applicants was why Congress adopted the ADEA in the first place.

According to Congressional testimony leading up to the passage of the ADEA, job applicants  in 1964 who were over the age of 55  were barred from half of all job openings in the private sector. Workers over 45 were barred from a quarter of these jobs, and workers over 65 were barred from almost all of them.

In addition to the AARP Foundation Litigation, the  case was filed by the New York firm of Outten & Golden,  and the San Francisco firm, The Liu Law Firm.

New Acting EEOC Commissioner to Make Age Discrimination a Priority

Victoria Lipnic, tlipniche new acting chair of the Equal Employment Opportunity Commission, has indicated the agency under her leadership will focus more on the problem of age discrimination in employment.

According to Corporate Counsel, Lipnic said age discrimination and equal pay will be her priorities.

During an employment law presentation at the Chicago offices of her former employer, the law firm Seyfarth Shaw, Lipnic noted that 2017 marks  the 50th anniversary of Age Discrimination in Employment Act. “[W]e will be doing a number of things related to that. It should get a high-profile this year,” she said.

The EEOC virtually ignored a major increase in age discrimination complaints during and since the recession. Meanwhile, President Barack Obama sent a signal to the private sector that age discrimination would be overlooked when he signed an executive order in 2010 permitting age discrimination in federal hiring. Last year, the EEOC  received 20,857 age discrimination complaints but filed only two lawsuits with age discrimination claims.

President Donald Trump selected Lipnic, a former Assistant Secretary of Labor, as the acting chair of the EEOC on Jan. 25, replacing Democrat Jenny R. Lang.  Lipnic joined the EEOC in 2010 via a recess appointment made by President Obama. She is currently the only GOP on the four-member commission.

She said the Trump administration has been very clear that it is interested in job growth and this attitude will influence the agency’s priorities in the future.

In private practice, Lipnic specialized in management-side labor and employment law.

Seriously. Why Patronize Texas Roadhouse?

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.

Thtexas-roadhousee 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.