Forces Converge Around Hiring Discrimination
Employers today have more efficient tools in their toolbox to discriminate on the basis of age, including screening guidelines that toss out all job applications filed via the internet by older workers.
Whole industries are notorious for discriminating against older workers, especially the high-tech industry in Silicon Valley.
As I note in my new book, Overcoming Age Discrimination in Employment: An Essential Guide for Workers, Advocates & Employers, overwhelming research shows that age discrimination in hiring is epidemic but almost completely unaddressed in the United States.
This is why a legal battle that is taking place in the U.S. Court of Appeals for the 11th Circuit in Atlanta is important. This is why corporate America is marshaling its vast resources to overturn a recent 2-1 ruling by a three-judge panel of the 11th Circuit in the case of Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc. and CareerBuilder, LLC,
The panel said Richard Villarreal, an unsuccessful job applicant, could sue the tobacco company under a disparate impact theory, which challenges broad employment policies that adversely affect one “protected” group of workers more than others. The majority essentially deferred to the U.S. Equal Employment Opportunity Commission’s (EEOC) interpretation of the ADEA.
The majority’s ruling conflicts with other federal circuits that have addressed the issue and which hold that the Age Discrimination in Employment Act of 1964 (ADEA) does not permit job applicants to file disparate impact lawsuits. These federal circuits say the ADEA lacks the same authorizing language as Title VII of the Civil Rights Act of 1964, which permits job applicants to file disparate impact lawsuits on the basis of race, sex, religion, color and national origin.
The Equal Employment Advisory Council (EEAC), an association of America’s 250 largest corporations, has filed a friend-of-the-court brief in the Villarreal case arguing the 11th Circuit panel’s ruling will contribute to “frivolous class-based litigation while virtually assuring that employers will have no meaningful opportunity to prevent or successfully defend such claims.”
Ironically, this is the very situation that has faced job applicants for 50 years with respect to age discrimination in hiring.
In 2007, Villarreal, at the age of 49, responded to an ad by R.J. Reynolds on CareerBuilder for a regional Territory Manager position. He filed a total of six applications over the next few years but was not hired. Reynolds either never responded to Villarreal or summarily rejected his applications.
in 2010, Villarreal learned that Reynolds had retained Kelly Services, an international recruiting service based in Troy, Michigan, to screen applicants for the Territory Manager positions using the following “Resume Review Guidelines”:
“… desired characteristics of the ‘targeted candidate,’ including ‘2-3 years out of college,’ and characteristics of candidates to ‘stay away from,’ including applicants who were ‘in sales for 8-10 years.’”
Reynolds replaced Kelly Services in 2009 with another staffing firm, Pinstripe, which developed a profile for preferred Territory Management candidates called, “Blue Chip TM.” Pinstripe surveyed recent hires (who skewed younger because of the application of Reynold’s resume review guidelines) and concluded that 67 percent of Blue Chip TMs had no prior experience or 1-2 years of work experience, while only nine percent had six or more years of prior experience.
From 2007 to 2010, Reynolds hired 1,024 regional Territory Managers. Only 19 or 1.85% were over the age of 40. The applications of more than 20,000 workers had been dumped into a digital trash can.
The procedural morass encountered by Villarreal’s lawsuit is almost too complicated (and hard to believe) to describe.
Suffice to say, the U.S. Equal Employment Opportunity Commission did not pursue litigation but issued Villarreal a Notice of Right to Sue. Villarreal filed a lawsuit alleging that the policies of Reynolds, Pinstripe and CareerBuilder intentionally disfavored and had a disparate impact on applicants aged 40 an older. A federal judge immediately dismissed the case on the grounds that the ADEA does not permit job applicants to file disparate impact lawsuits and because Villarreal’s lawsuit was filed more than 180-days after Reynolds first rejected Villarreal in 2007. The court declined Villarreal’s request to equitably toll the EEOC’s statute of limitations because Villarreal supposedly did not do enough find out why Reynolds had failed to respond to his 2007 job application.
Villarreal’s attorneys argued “the facts necessary to support [his’] charge of discrimination were not apparent to him, and could not have been apparent to him, until less than a month before he filed his May 17, 2010 EEOC charge.”
According to the EEAC, “sophisticated” employers typically do not ask about or collect the ages of employees (which completely ignores the fact that employers can easily determine the age of applicants through screening tools which assess years of experience, appearance, etc. like the ones used by Reynolds ). The EEAC also notes that employers are required by the EEOC to collect information about race, ethnicity and gender but not age. So the EEAC’s position, however improbable, appears to be that employers don’t know job applicants’ ages.
The EEAC also argues that that requiring equal justice for older workers will call into the question the legality of “myriad legitimate hiring programs – such as college recruiting, paid internships, and law firm summer hiring programs – that are universally well regarded but by their very nature are likely to impose an adverse impact on older workers.” The EEAC notes that such programs are offered by the federal government, including the U.S. Department of Labor.
The EEAC’s brief is weak but it is only one of many that will be filed in the weeks ahead by American corporations that for years have forced older workers out of the workplace by epidemic and unaddressed age discrimination in employment.