Is Recruiting Students and Younger Workers Really Age Bias?

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By Patrick Dorrian

Oct. 7 — The age-old practice of recruiting new employees on college campuses is still legal in Alabama, Georgia and Florida, but the issue of whether such practices are biased against older applicants appears unsettled elsewhere.

A recent ruling by the U.S. Court of Appeals for the Eleventh Circuit, which encompasses the three states, involved the arcane legal issue of whether federal age bias law permits a job applicant to sue for the unintended discriminatory consequences of an employer’s seemingly neutral hiring practices. Such “disparate impact” claims can’t be brought by older applicants, who can only sue for intentional bias, the appeals court said Oct. 5.

“A contrary ruling would equate many common recruitment practices to prima facie age discrimination,” management attorney Donald R. Livingston told Bloomberg BNA, referring to the initial showing workers must make to build a successful age bias claim. Livingston is with Akin Gump Strauss Hauer & Feld in Washington.

Hiring programs “that target recruitment on recent college or professional school graduates,” although age-neutral on their face, potentially could have supported findings of age bias if the Eleventh Circuit had ruled differently in Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602, 2016 BL 332711 (11th Cir. Oct. 5, 2016), Livingston said in an Oct. 6 e-mail. He cited as examples the Department of Justice’s Attorney Honor Program and court clerkships.

Meanwhile, AARP, a Washington-based advocacy group for older people, sees the ruling as a dangerous restriction on the job rights of workers age 40 and over—the class of people protected by the federal Age Discrimination in Employment Act.

“As a remedial statute, the ADEA is supposed to be broadly construed in favor of those it was intended to protect,” Laurie McCann, a senior attorney with AARP’s litigation arm, told Bloomberg BNA.

She added that older job seekers already are “overrepresented amongst the long term unemployed.” The Eleventh Circuit’s decision in Villarreal, which replaced an earlier, contrary ruling in the case by the appeals court, “only exacerbates that situation,” McCann said in an Oct. 5 e-mail.

Older Workers Struggling to Find Jobs

Statistics and anecdotal evidence of bias against older job seekers, especially in Silicon Valley’s technology industry, may support McCann’s concern.

Just last month, a federal judge in California granted conditional approval of a class of workers 40 and over who unsuccessfully sought engineering positions with tech giant Google Inc. The workers claim Google has maintained “a systematic pattern and practice of discriminating” against older people.

Similar cases also are pending in California federal court against Hewlett Packard and PriceWaterhouseCoopers LLP. While the lawsuit against HP claims the company got rid of older employees in an effort to transform itself into a “younger” operation, the case against PwC accuses the accounting firm of using a campus recruiting tool that is only accessible to applicants with a current college affiliation. That’s similar to the claim in Villarreal that “resume review guidelines” were used to screen out older workers.

But perhaps the clearest sign of the struggle older applicants face trying to get jobs in California’s tech industry is the spike in age discrimination claims filed with state enforcement authorities. Statistics show that 226 age discrimination complaints were filed with the California Department of Fair Employment and Housing against Silicon Valley’s 150 biggest tech companies between 2008 and 2015. That’s 28 percent more than the number of DFEH complaints filed against those companies during the same period claiming race discrimination, and 9 percent more than those alleging sex bias.

And alleged efforts to unlawfully screen out older applicants from the recruitment and hiring processes isn’t confined to California. Claims that employers have targeted younger workers through job postings seeking only “digital natives” or workers with limited experience have sprung up elsewhere. For example, a case in federal court in Illinois alleges a Becton Dickinson subsidiary refused to interview a 59-year-old lawyer for a senior counsel position because he had more than the three to seven years’ experience called for in the company’s job description.

Rejection of EEOC’s Position

In finding that the plain language of the ADEA doesn’t protect older job applicants from unintentional bias, the Eleventh Circuit declined to embrace the Equal Employment Opportunity Commission’s view that the statute does provide such protection. The EEOC is tasked with enforcing federal job discrimination laws, and courts sometimes turn to the agency’s regulations and guidance statements for help in interpreting ambiguous laws.

Employers aren’t required to and rarely collect information regarding a job applicant’s age or date of birth, Rae Vann of Washington-based management law firm NT Lakis LLP told Bloomberg BNA Oct. 5. EEOC regulations, in fact, caution companies against asking job seekers to provide their age or date-of-birth, because doing so, according to the agency, could create a legal inference of intentional age bias.

As a result, “there’s no way for employers to analyze” the ages of job seekers who apply to them, and thus no way for companies to “proactively” guard against possible unintentional age bias, Vann said. “It’s also unclear” how, in the absence of such data, rejected job applicants would be able to determine if they have a viable disparate impact claim, she added.

Looking Forward

McCann told Bloomberg BNA the Eleventh Circuit removed an essential tool for older job seekers to protect themselves against “maximum years of experience limits” and similarly biased recruitment and hiring requirements, “which now will go unchallenged without evidence that they are intentionally being used to screen out older workers.”

“AARP believes that this decision is yet another unfortunate example of federal courts tying one hand behind the back of age bias victims trying to enforce their rights to be free from discrimination in the workplace,” she said. But the Eleventh Circuit ruling applies to employers in just one part of the country, and AARP expressed hope that courts elsewhere will not follow the Eleventh Circuit’s lead if they’re asked to addressed the issue.

Vann told Bloomberg BNA that such rulings may be coming, and that review by the U.S. Supreme Court still is possible in Villarreal. She said it’s hard to predict whether the EEOC would take the lead in any new litigation, or whether such cases would be driven by private plaintiffs. An EEOC spokesperson told Bloomberg BNA in an Oct. 5 e-mail only that the agency was “disappointed in the result” reached by the Eleventh Circuit.

AARP cited the way the judges split over the issue as reason to believe further court review is coming. The organization said the 11 judges who decided the case “wrote three different (and long) opinions explaining what” the ADEA’s disparate impact clause means, which belies the majority’s conclusion that the language unambiguously excludes job applicants from its protections.

Vann agreed that the sharp divide among the judges may mean more litigation on the issue elsewhere. “And if a private plaintiff or the EEOC can get another federal appeals court to buy into the views expressed by the dissent in Villarreal, then we have a circuit split,” making ultimate review by the Supreme Court more likely, she said.

AARP filed an amicus brief in the Villarreal case supporting the plaintiff, as did the EEOC. Livingston, a former EEOC general counsel, represented the U.S. Chamber of Commerce and Vann represented the Equal Employment Advisory Council as amici supporting R.J. Reynolds and co-defendant Pinstripe Inc.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com

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