Behind the Scenes: Discrimination by Job Search Engines

WalmartGreeterSeveral years ago, I filed a formal complaint with the EEOC that attorney internet job search web sites were blatantly discriminating in hiring on the basis of age.

I did this after finding dozens of ads targeting members of the most recent graduating class(es) on Lawjobs.com.

Months later, the EEOC, which supposedly implements the Age Discrimination in Employment Act (ADEA), sent me a piece of paper saying that it was not going to do anything but I could file a lawsuit if I wanted to. Not being independently wealthy, I had no choice but to pass.

Today, I looked again. I found absolutely no ads on Lawjobs.com for “recent graduates” or “members of the Class of….”  What does this mean?

Does it mean the search engine is not engaging in age discrimination or does it mean that age discrimination is now taking place behind the scenes?

It’s hard to conclude that Lawjobs.com has gone “straight” given a series of events that have come to light which showcase the role of internet job search engines in age discrimination.

In the case of Villarreal v. R.J. Reynolds Tobacco, the plaintiff applied a half-dozen times for a territory sales manager job only to learn the company was using internet software behind the scenes on Careerbuilder.com to target resumes from workers  with fewer than eight years of experience.

Reynolds hired 1,024 applicants for territory sales manager positions over a three-year period, of whom only 19 were over the age of 40.

A federal appeals court last year eliminated any prospect for a class action lawsuit in the Reynolds case when it ruled the ADEA does not cover job applicants who are the victims of systemic and calculated age discrimination in hiring because they are not “employees.” This ruling, by the 11th Circuit Court of Appeals in Atlanta,  remains in effect today in Georgia, Florida and Alabama.

Illinois Attorney General Lisa Madigan issued a press release recently stating she began  investigating alleged age discrimination by internet search engines after a 70-year-old man complained that a resume building tool on Jobr, an app owned by Monster Worldwide, excluded job applicants over the age of 52. A drop down menu required applicants to select the year they graduated or got their first job but the dates only went back to 1980.

Madigan queried six job search engines about their practices. So far, three have responded, CareerBuilder, Beyond and Indeed. All admitted to using resume building software containing age limitations that deter older applicants; all said they fixed the software upon learning of Madigan’s concerns.

I think it is reasonable to conclude that many (if not most) internet search engines for years have silently engaged in age discrimination against older job applicants. This has contributed to longstanding chronic unemployment for older workers, who often are forced to retire as soon as they become eligible to receive Social Security benefits, whereupon they quietly disappear from government employment statistics. Age discrimination in hiring makes it impossible for older job applicants to earn a decent wage and to finance a secure retirement. As a result, many, particularly women, endure an old age marked by difficult choices, anxiety and poverty.

But who is going to stop it?

Madigan told NPR that her office simply wants to stop the specific practice that relates to discriminatory resume building tools but not file a lawsuit.

The AARP has done virtually nothing about age discrimination in employment for 50 years; It wrote an amicus or friend of the court brief in the Reynolds case.

The EEOC is almost completely absent from the age discrimination scene, despite an unprecedented increase in age discrimination complaints during and since the Great Recession. It filed two – yes, two – lawsuits with age discrimination claims last year. Age discrimination complaints comprise almost a quarter of all complaints received by the EEOC.

Me? Alas, I still can’t afford to finance years of complex litigation against some of America’s largest corporations.

My 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, chronicles the epic failure of all three branches of government to address the completely predictable problem of age discrimination during and since the collapse of Wall Street. It is an  appalling abdication of governmental responsibility and it continues.

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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 employees.

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.”