Federal Judge says Facts Not Plausible

U.S. District Judge Andrew L. Carter, Jr. of the Southern District of New York threw out the paralegal”s age discrimination claims because, he said, they were speculative and unsupported by plausible facts.

But what is a plausible fact?

Judge Carter is around the same age as the plaintiff in the case, Terri Jablonski, 49, and that’s where the similarities end. He’s a male graduate of Harvard Law School who was appointed to his position by President Barack Obama in 2011. He earns around $200,000 a year and enjoys lifetime tenure.

Jablonski is a female Haverford College graduate who earned a paralegal certificate from New York University. She has 19 years of experience as a paralegal and, according to her attorney, excellent references. But she has hit a roadblock.

 Jablonski filed 41 unsuccessful job applications with the legal staffing firm, Special Counsel, Inc., from August 2, 2013 to July 21, 2015. She was never hired or even referred for placement.

Continue reading “Federal Judge says Facts Not Plausible”

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EEOC: Do Qualifications matter or not?

The EEOC appears to be hopelessly confused about the significance of  qualifications in age discrimination case.

This week, the EEOC filed a rare lawsuit alleging age discrimination in hiring. The  EEOC charges that CBS Stations Group of Texas violated the Age Discrimination in Employment Act  (ADEA) when it failed to hire Tammy Campbell, 42, for a full-time traffic reporter position because of her age.  An EEOC press release states the station hired a 24-year old female applicant  who was less qualified than Campbell.

The case contradicts the EEOC’s dismissal last month of a lawsuit filed by a 60-year-old woman who was rejected for one of five attorney positions with the Social Security Administration. The novice hiring officer testified the woman was more qualified than some or all of the younger applicants but that he didn’t consider objective qualifications. He said he based his hiring decisions entirely upon whom he thought would be the best fit for the “culture” of the agency.

Do qualifications count, as in the Texas case, or are they irrelevant, as in the Social Security case?

Continue reading “EEOC: Do Qualifications matter or not?”

Large Study Finds Systemic Age Discrimination in High Tech

Silicon ValleyThe only thing shocking about a new study showing that rampant age discrimination exists in the high tech industry is that anyone didn’t already know that.

However, Visier Insights Report: The Truth About Ageism in the Tech Industry, provides fascinating detail based upon a solid database of  330,000 employees from 43 large U.S. enterprises.

A Canada-based provider of workforce analytic services to companies around the world, Visier concludes “systemic ageism” exists in the high tech industry compared to the non-tech industry. The average tech worker is 38 years old, compared to 43 years old for non-tech workers. The average manager in the tech industry is 42 years old, compared to 47 for non-tech industries.

It has been known for years that age discrimination in rampant in Silicon Valley but the EEOC, which is charged with enforcing the Age Discrimination in Employment Act,  has almost completely ignored the problem, even as national magazines featured stories about 30-year-old tech workers flocking to plastic surgeons in an effort to appear young .

The Visier report  is more proof that the high tech workforce is marked by “significant” over-representation of millennials, between the ages of 20 and 33, and Gen X workers, between the ages of 34 and 51. Millennials comprise 42.6 percent of the high tech workforce  compared to 26.1 percent of the non-tech workforce, and Gen X workers comprise 42.6 percent of the high tech workforce compared to 46.4 percent of the non-tech workforce. Continue reading “Large Study Finds Systemic Age Discrimination in High Tech”

EEOC Refuses to Comment About Allowing Hiring Officer to Ignore Objective Qualifications in Age Discrimination Case

lipnic
Acting EEOC Commissioner Victoria A. Lipnic

The EEOC  has declined to comment on its decision to uphold an administrative ruling that dismissed an age discrimination case where a hiring officer said he ignored objective qualifications and hired workers based on cultural fit. 

The ruling by Carlton M. Hadden, director of the EEOC Office of Federal Operations, involved an allegation of age discrimination by a 60-year-old woman who was not selected for one of five vacancies for the position of attorney decision-writer at a new Social Security Administration office in Reno, NV in 2011.

The novice hiring officer testified that he completely ignored objective qualifications when he selected five applicants under the age of 40.   After three or four applicants declined the job, the hiring officer selected a 42-year-old male applicant. The hiring officer initially said he rejected the 60-year-old female applicant because she lacked enthusiasm during a 20-minute telephone interview. He agreed  she was more objectively qualified than most or all of the other applicants but said she did not fit within his perception of SSA “culture.” 

Hadden upheld an Administrative Law Judge’s finding that “reliance on subjective criteria is appropriate and necessary when the selection, as here, involves consideration of collegial, professional, teamwork, and administrative abilities that do not lend themselves to objective measurement.” Continue reading “EEOC Refuses to Comment About Allowing Hiring Officer to Ignore Objective Qualifications in Age Discrimination Case”

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.”

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.

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, which includes Alabama, Georgia and Florida, is the first 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.

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 only 1.85 percent (19) were over the age of 40.

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

EEOC Files 2nd Hiring Discriminaton Lawsuit

After ignoring the problem for years, the EEOC has filed its second lawsuit in recent months alleging age discrimination in hiring

The EEOC announced last week that it had filed a suit alleging the Commonwealth of Pennsylvania’s Office of Open Records OOR) engaged in age discrimination in violation of the Age Discrimination in Employment Act of 1967 when it failed to  hire attorney Joseph Bednarik for a vacant appeals officer position in 2008.

The lawEEOCsuit follows on the heels of an earlier case filed by the EEOC against the City of Milpitas in California’s Silicon Valley, which allegedly discriminated on the basis of age when a panel of three city officials chose a candidate for the position of executive secretary to the city manager. The successful applicant, 39, was rated as less qualified than the individuals who were not selected, who were aged 42, 55, 56 and 58 years of age.

Both lawsuits were filed after the EEOC was unable to reach a pre-litigation settlement with the employers through its conciliation process.

In the latest case, the EEOC states in its complaint that Bednarik heard of the position through “word-of-mouth” and sent a letter of interest to an OOR hiring official. Bednarik, who graduated with honors from George Washington University Law School,  had been practicing for about 30 years, including 17 years with the Pennsylvania Human Relations Commission. During an interview with Terry Mutchler, the executive director of the OOR, and Barry Fox, OOR’s Deputy Director, Mutchler allegedly “expressed some concern that Bednarik would not have a long tenure with OOR because he had already worked for the Commonwealth for 17 years and might be nearing retirement.”The OOR selected a 40-year-old candidate who had significantly less experience than Bednarik for the position. Continue reading “EEOC Files 2nd Hiring Discriminaton Lawsuit”