EEOC Files Rare Age Discrimination in Hiring Claim

The EEOC did something this week that it hardly ever does – it sued an employer for age discrimination in hiring.

The EEOC alleges that the City of Milpitas in California’s Silicon Valley violated federal law by choosing a younger candidate over older applicants with greater qualifications for the position of executive secretary to the city manager.

AccorEEOCding to the EEOC, the City of Milpitas failed to hire four qualified applicants who scored higher than the person selected in a three-person panel review of the candidates.  The individuals who were not selected were 55, 42, 56 and 58 years old. Instead, EEOC alleges the city hired a younger applicant (age 39) who was less qualified than these people, without a valid justification for disregarding the panel rankings.
Age discrimination in hiring is undoubtedly the most common kind of age discrimination and it is particularly blatant in Silicon Valley, which has been a virtual apartheid state for young workers for years. It is interesting that the EEOC chose to sue a government employer in Silicon Valley because private tech companies in Silicon Valley have been the focus of   scrutiny in recent months for discriminatory hiring practices

A  60-year-old software engineer who was not hired by Google in 2011 filed a class action age discrimination lawsuit against Google earlier this year. The lawsuit  alleges the company’s workforce is “grossly disproportionate” with respect to age. The lawsuit asserts the median age of the 28,000 employees who worked for Google in 2013 was 29.  The U.S. Department of Labor reports the median age for computer programmers in the United States is 42.8 and the median age for software developers is 40.6.

Meanwhile, EEOC Senior Counsel Cathy Ventrell-Monsees, in a speech last summer, singled out open and flagrant age discrimination in the high-tech industry, adding, “Some of our officers have made it a priority in looking at age discrimination in the tech industry.”

Private attorneys are reluctant to take any age discrimination case to hostile federal courts but particularly cases that alleges age discrimination in hiring. Job applicants may suspect they didn’t get the job because of age discrimination but it’s hard for them to know for sure. They don’t know the identity or qualifications of their competitors for the job. And they don’t know the employer’s hiring criterion.

Judges allow employers to evade accountability for discriminatory hiring when they accept as true a subjective reason for the employer’s hiring decision (i.e., the successful candidate was more enthusiastic, the older candidate sounded bored).

The EEOC lawsuit was filed in U.S. District Court, Northern District of California (EEOC v. City of Milpitas, Case No. 5:15-cv-04444) after attempts failed to reach a pre-litigation settlement through its conciliation process.  EEOC’s suit seeks, among other things, monetary damages for the four applicants and injunctive relief intended to prevent a recurrence of age discrimination in City of Milpitas government.

“Older workers continue to face discrimination based on age due to negative stereotypes and inaccurate assumptions about their abilities,” said EEOC San Francisco Acting Regional Attorney Jonathan Peck.  “It is important for employers to ensure that such stereotyping does not impact a person’s ability to be employed.  Employment decisions must be based on merit, not age.”

EEOC San Francisco District Director William R. Tamayo added, “Age discrimination remains a problem, making up 23 percent of all EEOC charges filed in the United States last year.  It is important that employers not ignore the value that older workers can bring to their workforce.”

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