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.

Will the AARP Fight for Seniors or Itself?

AARPHouse Speaker Paul Ryan’s proposal to essentially privatize Medicare to cut costs is causing fear among older Americans who rely upon Medicare for health coverage.

Who is fighting to  protect the interests of older Americans?

Today, the AARP’s web site features the “Ultimate Super Bowl Quiz,” hot travel deals, and suggestions about what movies to watch this weekend. Toward the bottom of the page, there are two links, “AARP on the Front Lines Defending Medicare,” and “Tell Congress to Protect Medicare.”

The AARP has a complicated relationship with Medicare. It is the nation’s largest purveyor of supplemental Medi-gap health insurance, reaping literally billions each year in profits from seniors who are essentially forced to purchase catastrophic coverage to stave off health-induced financial disaster. One reason that seniors must purchase Medi-gap insurance in the first place is the AARP.

The AARP has a major conflict of interest with respect to Medicare.

The AARP was sharply criticized several years ago as selling out older Americans when it supported Obamacare, which cut $716 billion from Medicare to pay for its $1.9 trillion expansion of coverage to low-income Americans. Not coincidentally, the AARP obtained the equivalent of a waiver in the new law when Obama abandoned reforms that would have saved seniors hundreds of dollars in Medi-gap premiums a year.

Clearly, the AARP is not a disinterested party in the debate over the future of Medicare but it is, unfortunately, the elephant in the room by virtue of its 38 million members, many of whom joined to take advantage of AARP licensing deals that purportedly give members a small discount on hotels, car rentals, etc.

On its web site, the AARP states reassuringly that it has launched a “national campaign to fight proposals to turn Medicare into a voucher system.” But what does that really mean? No vouchers unless the AARP gets its cut?

Laura Polacheck, the communications director of the AARP Utah, on Feb. 1 issued a press release condemning  House Speaker Paul Ryan’s proposal to privatize the government-run health program for people with disabilities and those aged 65 and older. Polacheck says AARP staff and volunteers will remind members of Congress that Ryan’s proposal would put more than 300,000 Utah seniors’ benefits at risk, as well as the benefits of over 400,000 workers who are set to transition to Medicare over the next 15 years.

That’s all fine and good but older Americans would be wise to demand transparency from the AARP. What does the AARP have to gain and what do older Americans have to lose?

After an investigation by the Center for Media and Democracy, the AARP last year was pressured into dropping its membership in the right-wing American Legislative Exchange Council, an organization affiliated with the Koch brothers that drafts and promotes bills that would undermine and privatize Social Security and Medicare. The AARP, a “trustee level” sponsor of ALEC’s 2016 annual meeting, claimed it was merely taking advantage of ” an opportunity to engage with state legislators and advance our members’ priorities.”

I have long bemoaned the absence of a true advocacy group for older America, such as the DaneAge Association in Denmark.

The AARP has done virtually nothing for 50 years to combat the legal inequality of older Americans in the workplace. Apparently, the AARP has no marketing incentive to pay more than lip service to this issue.

DaneAge is an independent, non-profit national membership organization founded in 1986 to provide advocacy “through an ongoing dialogue with the government and the public, promoting a society without age barriers and ageism.”  DaneAge has 690,000 members in 217 local chapters across Denmark, including 15,775 volunteers who engage in local advocacy. Among other things, the organization, which has approximately 100 staff members,  provides “free-of-charge and impartial legal advice and counsel” by lawyers and other professionals.

Denmark is widely regarded as having the highest quality of life  for its citizens in the world.

EEOC Files only TWO Lawsuits with Age Discrimination Claims in 2016

Despite receiving 20,857 complaints of age discrimination in employment 2016 (a 3.5% increase over 2015) the EEOC filed only two lawsuits with age discrimination claims in 2016.

That’s an 85.7% decrease from 2015.

In 2015, the  EEOC filed 14 lawsuits with age discrimination claims, having received 20,144 complaints of age discrimination that year.

The EEOC generally filed fewer lawsuits in 2016, perhaps in keeping with its greater emphasis on strategic enforcement and mediation/conciliation. However, the steepest decline by far came with respect to age discrimination claims.

Here are the types and number of lawsuits filed by the EEOC in 2016 compared to 2015 and the percentage increase/decrease.

  • Title VII of the Civil Rights Act (race, sex, religion, color and national origin): 46 lawsuits in 2016 compared to 83 in 2015 (a decrease of 44.5%).
  • Americans with Disability Act: 36 lawsuits in 2016 compared to 53 in 2015 (a decrease of 32%).
  • Equal Pay Act: 5 lawsuits in 2016 compared to 7 in 2015 (a decrease of 28%).
  • Genetic Information Non-Discrimination  Act  : 2 in 2016 compared to 1 in 2015 (an increase of 50%).

It appears that 2016 marks the lowest number of lawsuits with age discrimination claims filed by the EEOC since it took over responsibility for enforcing the ADEA from the U.S.  Department of Labor in 1978.  It is certainly the lowest since 2002.

Astoundingly, the EEOC devoted the same degree of litigation effort to the Genetic Information Non-Discrimination  Act of 2008 as the ADEA, GINA prohibits employers from discriminating on the basis of genetic information. Only 238 GINA complaints were lodged in 2016 but the EEOC filed two lawsuits with GINA claims last year.

The EEOC did little to help older workers in the Recession and continues to ignore age discrimination.

The largest number of EEOC lawsuits with age discrimination claims since 2002 was in 2006, when the EEOC filed 50 lawsuits with age discrimination claims. The number has decreased almost every year since then, even though the number of age discrimination complaints has never dipped below its pre-recession level of under 20,000.

Even with the supposed “recovery” since the recession, research continues to signal that age discrimination is a major problem for American workers.  For example, a 2015 study by the National Bureau of Economic Research that involved sending out 40,000 resumes found significant evidence of age discrimination in hiring against older women.

In my book, Betrayed: The Legalization of  Age Discrimination in the Workplace, I question why older workers must file a complaint with the EEOC  before they can proceed to federal court. I note the EEOC virtually ignored an unprecedented increase in age discrimination claims in the Recession and consistently devotes a disproportionately small  percentage of its resources to age discrimination claims.

It’s almost as if the EEOC does not recognize that age discrimination is a serious civil rights violation that profoundly affects all workers – including older women and minorities. It causes terrible human suffering and, for many older Americans, contributes to poverty in old age.

#OscarsSoYoung

academyThe Academy of Motion Picture Arts and Sciences announced the finalists this week for the coveted Oscar awards and, sure enough, there was much more diversity than in the past.

It appears the hashtag #OscarsSoWhite – adopted after no African-American actor received an Oscar nomination for two consecutive years – will be retired (for this season anyway).

But a question remains about the degree to which the Academy’s progress came at the expense of  its oldest (predominately white male) members.

The Academy Board of Directors took a short cut to boost diversity last year . Instead of pursuing a thoughtful and deliberate course of action, it adopted a new and retroactive membership rule that was obviously intended to reduce the number of older voting members. According to published reports, the Academy limited most members’ voting status to a decade, with renewal contingent upon whether the member is still “active” in film.

Did  the Academy merely swap one kind of discrimination for another?

The Academy’s new membership rule disproportionately disenfranchises older professionals, many of whom are forced out of the entertainment industry due to pervasive age discrimination. In short, they can’t remain active because no one will hire them because of their age.

Ironically, while the Academy was stripping its oldest members of their voting rights, the CA legislature was debating a proposed bill to combat age discrimination in the entertainment industry.

California Governor Jerry Brown last Fall signed into law a bill that allows actors to demand that their ages be removed from leading casting web sites, such as Internet Movie Database (IMDb). This law is currently being contested by IMDb.

In addition to the new membership rule, the Academy, with almost 7,000 members, has been engaged in an unprecedented recruitment campaign, directly mainly at women and minorities.

Vocal opposition to the Academy’s blatant assault on older members fueled a huge and bitter backlash that reportedly has resulted in fewer older members being ousted from voting membership.  The Academy has declined to say how many older members have been deemed “inactive” and  stripped of their voting status.

The whole episode is unsettling and undermines the Academy’s stated mission of honoring excellence in the industry. If the Academy is correct, its members do not vote for excellence at all but for familiarity, age and “tribe.”

In the past, the inference  was that the Academy failed to recognize excellent performances by African-American actors  because of race discrimination. Should we infer that  the minority actors who were nominated for Oscars this year owe the honor to age discrimination?

Behind the Story: Legal Inequality of Older Workers

pbsPBS NewsHour recently aired a shocking story about a highly educated older woman hurtling toward financial disaster because she hasn’t been able to find work for years due to age discrimination in employment. 

These types of stories generally bemoan and debunk false ageist stereotypes but rarely go beyond the surface to ask why.

Why does the media fail to acknowledge how the American legal system permits and even encourages age discrimination in employment?

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I indisputably show that a major reason for widespread and unaddressed age discrimination in the United States is the lack of protection afforded to older workers under federal law.

Consider:

  • When the Age Discrimination in Employment Act of 1967 (ADEA) was adopted it was far weaker than Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin.
  • The U.S. Supreme Court in 2009 effectively eviscerated the already weak ADEA, interpreting the law to make it far more difficult for older workers to prevail in an age discrimination lawsuit in federal courts.
  • The U.S. Congress for years has failed to pass legislation (i.e. Protecting Older Workers Against Discrimination Act) that would reverse at least some of the damage caused by the  2009 U.S. Supreme Court decision.
  • Though President Barack Obama vowed during his first campaign to strengthen the ADEA, he did  the opposite. He signed an executive order in 2010 that permits the nation’s largest employer, the federal government, to engage in age discrimination in hiring. Furthermore, his administration sanctioned age discrimination by America’s largest corporations.
  • Despite a major increase in age discrimination complaints since the recession, the EEOC has done virtually nothing to combat the problem.

It is  frustrating when a mainstream national media outlet seems clueless about the legal underpinnings of age discrimination employment.

Would employers be vigilant about halting race or sex discrimination in employment if there were no legal consequences for these behaviors? History indicates not. So why should age discrimination be any different?

Rampant age discrimination in employment will continue unabated until there are effective legal sanctions. 

I have proposed repealing the ADEA and adding age 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. Age was initially included in Title VII but was excluded when Congress decided more study was needed on the problem. Older workers deserve the same rights as other victims of illegal discrimination.

Society must stop condoning age discrimination in employment. America loses valuable knowledge and experience when older workers are consigned to long-term unemployment, under-employment and early retirement. And age discrimination is expensive. Society subsidizes age discrimination through increased health and social services costs that result from discriminatory firings and layoffs and the refusal to hire older workers.

Finally, the human toll of age discrimination is no less severe than with other types of discrimination.Someone once said the measure of a civilization is how it treats its weakest members.