‘CEO Act!on for Diversity & Inclusion’ Omits Age Bias

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Tim Ryan, the CEO of PricewaterhouseCoopers, recently announced a new campaign to address lack of diversity in the business community that appears to target every protected group except older workers.

PWC is in the midst of an age discrimination lawsuit that alleges the corporation has made it virtually impossible for older workers to apply for entry-level jobs.

Ryan, who also is PwC’s senior partner, announced June 12 on  CBS television that PwC is taking a leadership role in  “CEO Act!on for Diversity and Inclusion.”  He said more than 150 CEOs of Fortune 500 companies have signed up for the new initiative, including the leaders of IBM, Proctor and Gamble, Under Armour and CBS.

According to the campaign’s web page, the signatories agree upon the “need to address honestly and head-on the concerns and needs of our diverse employees and increase equity for all, including Blacks, Latinos, Asians, Native Americans, LGBTQ, disabled, veterans and women.”

There is no mention of older workers.

Steve Rabin, 53, a certified public  accountant, sued PwC in 2013, claiming the corporation relies almost exclusively upon campus recruiting to fill entry-level positions and does not post job vacancies on its public web site. He alleged the only way to apply for a job is through PwC’s campus track recruitment tool, which requires a college affiliation.

The lawsuit states the average age of PwC’s workforce in 2011 was 27, while the median age of accountants and auditors in the U.S. was 43.2.

The corporation attempted unsuccessfully in February to persuade a federal judge in San Francisco to follow the lead of another federal appeals court in Atlanta and rule the Age Discrimination in Employment Act (ADEA) does not permit job applicants to sue for disparate impact discrimination. This is a type of discrimination that occurs when an employer adopts a seemingly neutral practice or policy that has a disproportionate, negative impact upon a protected group. U.S. District Judge John S. Tigar denied the motion and refused PwC’s request to dismiss the case without a trial.

Signatories to the diversity campaign plan to support education about “unconscious bias” to minimize any potential “blind spots” an employee “might have but wasn’t aware of previously.” A good place to start  might be age discrimination.

Though the ADEA was passed 50 years ago to protect older workers from irrational and harmful discrimination, the problem remains hidden, epidemic and unaddressed in American society.

PricewaterhouseCoopers’ Defense: Older Job Applicants Can’t Sue for Systematic Discrimination

Note: U.S. District Judge John S. Tigar has rejected PwC’s argument that the Age Discrimination in Employment Act does not permit job applicants to file disparate impact lawsuits alleging systemic age discrimination. The case will proceed.

pwcSo PricewaterhouseCoopers, the second largest professional services firm in the world, is being sued for refusing to hire older applicants to work as accountants.

But instead of waging a defense to that charge, PwC is arguing the Age Discrimination in Employment Act (ADEA) doesn’t allow job applicants to sue for systemic discrimination.

PwC attorney Joshua Z. Rabinovitz of Kirkland & Ellis LLP recently urged a federal judge in San Francisco to follow the lead of a federal appeals court in Atlanta  and rule that the ADEA does not permit job applicants to sue for disparate impact discrimination.

The disparate impact theory of discrimination is invoked when an employer adopts a practice or policy that has a disproportionate and negative impact upon a protected group.

Rabinovitz said the ADEA was not amended when its sister statute, Title VII of the Civil Rights Act , was amended in 1972 to permit disparate impact lawsuits by job applicants. Therefore, he said, the ADEA does not allow disparate impact lawsuits by job applicants. Title VII covers discrimination on the basis of race, sex, color, national origin and religion.

The suit was filed by Steve Rabin, 53, a certified public accountant who was rejected in 2013 for a position at PwC. He alleges that PwC relies almost exclusively upon campus recruiting to fill entry-level positions and does not post vacancies on its public web site. The only way to apply for a job is through PwC’s “Campus track recruitment tool, which requires a college affiliation.”  The lawsuit also notes that PwC  maintains a mandatory early retirement policy that requires partners to retire by age 60 which allegedly discourages the hiring of  experienced older applicants.

The average age of PwC’s workforce in 2011 was 27, while the median age of accountants and auditors in the U.S.was 43.2.

Daniel B. Kohrman, an attorney for AARP Foundation Litigation,  argued the ADEA prohibits age discrimination against “any individual” who is aged 40 and above, which could include job applicants.

Ironically, pervasive discrimination against older job applicants was why Congress adopted the ADEA in the first place.

According to Congressional testimony leading up to the passage of the ADEA, job applicants  in 1964 who were over the age of 55  were barred from half of all job openings in the private sector. Workers over 45 were barred from a quarter of these jobs, and workers over 65 were barred from almost all of them.

In addition to the AARP Foundation Litigation, the  case was filed by the New York firm of Outten & Golden,  and the San Francisco firm, The Liu Law Firm.