Updated: Overcoming Age Discrimination in Employment

smokeI have updated my book, Overcoming Age Discrimination in Employment,  to include an important appeals court decision involving age discrimination in hiring.

The U.S. Court of Appeals for the 11th Circuit, based in Atlanta,  ruled last year that older job applicants have no protection whatsoever from systemic and calculated age discrimination in hiring – also known as disparate impact discrimination – under the Age Discrimination in Employment Act of 1967.

The 11th Circuit’s ruling in Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., technically affects only Georgia, Florida and Alabama. However, it could influence other federal circuits or lead to a difference in opinion between the circuits that ends up before the U.S. Supreme Court.

The 11th Circuit’s decision was shocking because evidence in the case showed the defendant, R.J. Reynolds Tobacco, hired two staffing agencies (Pinstripe and Kelly) to use internet software to weed out the resumes of applicants for a territory sales manager job who had more than eight years of experience. An estimated 20,000  older job applicants filed on-line applications for the  position; their applications were diverted to a digital trash can sight unseen.

Writing for the majority, Judge William Pryor held that the disparate impact provision of the ADEA only creates a cause of action for employees and cannot be the basis of a claim by a job applicant. The majority rejected the EEOC’s position that the ADEA does permit disparate impact lawsuits by job applicants, ruling the EEOC  was not due any deference.

Few would argue that age discrimination in hiring is devastating to older workers, many of whom are forced into a financially ill-advised early retirement and end up in poverty in their old age.

My book, Overcoming Age Discrimination in Employment, originally published in Jan. 2016, helps individuals and employers understand  key provisions of the Age Discrimination in Employment Act and how the law is interpreted by the federal courts.  It was a follow up to an earlier book, Betrayed: The Legalization of Age Discrimination in the Workplace, where I argue for repeal of the ADEA. Age should be added 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. That way at least older workers would have equal rights under the law.

The ADEA was weak and riddled with loopholes when it was adopted 50 years ago. Since then it has been eviscerated by the U.S. Supreme Court and federal appellate courts (like the 11th Circuit Court of Appeals).

Older workers literally have been second class citizens under federal law for 50 years. Isn’t that long enough?





Legal ‘Pacs’ Lobby for Age Discrimination in Hiring

inequality scaleIt would be a public relations nightmare for a single American corporation to wage the battle against older workers that is going on in federal court right now.

That’s why major American corporations are hiding behind the equivalent of  “legal” super PACs (political action committees) to make their case. These PACs are akin to “political” super PACs that allow big donors to influence the course of national U.S. elections.

These legal super PACs, with their deep corporate pockets, include:

  • The Equal Employment Advisory Council (EEAC), which calls itself “a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination.” When you read the name, you may think the organization promotes equal employment but, alas, it lobbies for a membership base that includes “over 250 major U.S. corporations” whose primary interest is economic,  not equal rights.
  • The U.S. Chamber of Commerce describes itself the “world’s largest business organization.” It represents the interests of more than 3 million businesses, including leading industry associations and large corporations. The chamber claims it protects business interests in Washington, D.C. but it also lobbies federal courts around the country.

The EEAC and the Chamber both have filed briefs to protect employers “rights” to engage in blatant age discrimination in hiring in the case of Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., etc. Continue reading “Legal ‘Pacs’ Lobby for Age Discrimination in Hiring”

Huge Settlement in Livermore Lab Age Discrimination Case

In one of the largest settlements in history of an age discrimination case, the National Nuclear Security Administration’s Livermore National Laboratory has agreed to pay $37.25 million to 129 workers who were laid off during a workforce restructuring  in 2008.

LivermoreThe plaintiffs were long-standing Lab administrative employees with an average age of 54 who were laid off in 2008, seven months after a consortium led by Bechtel, a private management company, won a contract from the U.S. Department of Energy to manage the Lab. Other consortium members are the University of California, Babcock and Wilcox, Washington Division of URS Corporation, and Battelle.

Judge Robert Freedman of the Alameda County Superior Court ruled in 2012  the case could proceed to trial after finding the plaintiffs had presented sufficient statistical evidence that the layoff had a disproportionate impact on employees over the age of 40. In 2013, the claims of five “test plaintiffs” were litigated in two separate jury trials. The first trial, alleging breach of the plaintiffs’ employment contracts, resulted in a verdict for the plaintiffs and an award of $2.73 million in damages. The second trial alleged age discrimination and this time the Laboratory prevailed.  Both verdicts were appealed.

Judge Freedman encouraged the parties  to participate in mediation, which after several months led to the settlement.  Under the terms of the settlement, the Lab does not admit guilt.

One plaintiff did not settle her case, which now will move forward independently..

Plaintiff Elaine Andrews, who had worked at the Lab for 30 years, told the Livermore Patch that many of the laid-off workers were too young to retire and were unable to find jobs during the Great Recession.

“Many lost their homes and suffered physical and mental issues from the stress of losing their livelihood,” said Andrews.

Continue reading “Huge Settlement in Livermore Lab Age Discrimination Case”

Appeals Court finds Inference of Age Discrimination

mEGAPHONEA federal appeals court panel recently overturned the dismissal of an age discrimination case brought by a border patrol agent in Arizona against the U.S. Department of Homeland Security (DHS).

The U.S. District Court of Appeals for the Ninth Circuit in San Francisco, CA, ruled in France v. Johnson that Arizona DHS Agent John M. France presented sufficient evidence to proceed in his claim that he was denied a promotion by the DHS in violation of the Age Discrimination in Employment Act of 1967.

In March 2007, Robert Gilbert was appointed Tucson Sector Chief Patrol Agent and established a pilot program named “Architecture for Success” which created an opportunity for a promotion to a pay grade of GS-15.  Four candidates were selected for promotion; they were aged 44, 45, 47 and 48. France, the oldest applicant at age 54, was not selected.

The DHS argued that France lacked leadership, flexibility and innovation.  Gilbert stated that France failed an interview for promotion because he had a big mouth and did not know “when to turn it on or off.”

A key factor was evidence that Gilbert had repeated retirement discussions with France after France said he did not want to retire.

Continue reading “Appeals Court finds Inference of Age Discrimination”


Silicon Valley has been an unapologetic apartheid state for young workers for years but this could be about to change.

A class action age discrimination lawsuit was filed against Google, Inc. on April 22 by software engineer Robert Heath who was interviewed but not hired for a position at Google in 2011 when he was 60-years-of-age. The lawsuit alleges Google has demonstrated a pattern and practice of violating the Age Discrimination in Employment and the California Fair Employment and Housing Act.

According to the lawsuit, Google’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.  Meanwhile, 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. According to the lawsuit, Google had 53,000 employees in 2014 and revenues of approximately $66 billion.

Google’s position with respect to age discrimination is completely inexplicable. The company last year made a public commitment to increase race and gender diversity in its workforce, and released workforce statistics relating to those characteristics. But Google was completely silent with respect to  age and did not release age-related statistics. It was as if Google’s position was that age is not a factor in workforce diversity.