Articles

Combating Age Discrimination and Bias for Employees and Job Applicants

What is Age Discrimination?

Age discrimination claims are available to those who are at least 40 years old. Employees aged 40 and above cannot be fired, forced to retire, or excluded from certain promotions, wage raises, work events or activities based on their age.  Additionally, employers cannot deny employment to a job applicant (otherwise known as a “failure-to-hire”) based on their age.  The failure-to-hire can be subtle and hard to prove, but nevertheless prevalent and readily apparent in some work environments.  If you ever have walked into a restaurant or work in a technology-related job and noticed a disproportionate amount of younger workers, that employer may be engaging in unlawful practices.  In fact, some notable failure-to-hire class action cases have been filed against tech giants, like Google, T-Mobile, and Amazon, as well as some national restaurant chains including Texas Roadhouse and Lazy Dog.

 

What are the laws against age discrimination?

Under federal law, the Age Discrimination and Employment Act of 1967[1] (“ADEA”) protects employees from age discrimination by declaring that employees must be hired and employed based on their abilities, not based on their age.[2]  Employers with at least 20 employees (including full and part time employees) who work at least 20 weeks per year must comply with the ADEA. [3]

In California, the Fair Employment and Housing Act (The “FEHA”) provides laws against age discrimination.  While California has its own laws and investigation agency, the California courts still largely follow the federal courts’ lead in age discrimination cases.[4], [5]

 

How do I make a claim for age discrimination?

When an employee thinks s/he has been discriminated against at work because of their age, s/he should file administrative claims with either the Equal Opportunity Employment Commission (“the EEOC”), or the  California Department of Fair Employment and Housing (“the DFEH”).[6]  Both agencies are responsible to investigate claims of age discrimination.

The timing for filing either a claim with the EEOC and/or DFEH are drastically different.  Aggrieved employees must file their claim with the EEOC within 300 days of the last discriminatory act, as opposed to within three years with the DFEH.

Once the employee has their Right-to-Sue, a lawyer can help them prepare a disparate impact lawsuit against their employer.[7]  When an employer does not discuss age or mention age in written company policies, but those company policies nonetheless favor employees younger than 40, the employer may be engaging in secretive age discrimination.  When this happens, an employee may sue under a disparate impact theory.

At the first stage of a lawsuit (i.e. filing the complaint), a court requires the factual story describing the age discrimination.  Probably the most important factual allegation when bringing a claim for disparate impact under FEHA, are that a policy or practice of the employer disproportionately affects and harms persons 40 years old and above.[8]

For a disparate impact claim made under the ADEA, it is still the employee’s job to identify which specific employment practices caused the observed disparate impact.[9]  It will be the employer’s job, however, to defend the employment practice as based on a reasonable factor other than age.[10]

At first, the court will assume that everything the employee says is true in order to decide if the case will continue.  Ultimately, an employee must present evidence of age discrimination strong enough to persuade the court that age played a big role in causing the discrimination, even if a work policy regarding age was never spoken or written down anywhere.[11]  Because finding this evidence can be hard, many legitimate cases never make it to court at all.

 

Evidence that May Help.

The use of supporting statistics is vital to a successful claim of age discrimination.  In fact, if statistics actually disprove an employee’s position a disproportionate amount of workers aged at least 40 were not hired, or treated differently during employment, the case will be adjudicated in the employer’s favor.[12]

In cases where an employer failed to hire someone–who was qualified for the job–because of their age, however, the job applicant might find evidence on the Bureau of Labor Statistics website to help with their case.  For example, the website offers charts and articles regarding categories of the labor force, including sex, race, and age.  One article showed that in February 2010, the average number of weeks a person was unemployed significantly rose with that person’s age.[13]  Employees can also look for evidence such as the population and ages of those who applied for jobs with an employer and then compare them to the population and ages of the employer’s actual employees.  For example: assume an employer interviews 100 qualified job applicants for 50 open computer programmer positions.  Let’s further assume 30 of those qualified job applicants are at least 40 years old.  But, the employer only hires 2 of those 30 employees.  While 30% of the qualified applicants were at least 40, only 2% of them were hired.  This would strongly indicate secretive age discrimination.  In technological industries, age discrimination is common despite older workers’ qualifications such as advanced computer science degrees and IT experience.

Keep in mind that the statistics may not be so convincing, may be not publicly available and harder to locate, and may even require discovery.  When this is the case, an expert witness can help with the lawsuit by explaining what they find to the court.  For example, in a case our firm brought against Lazy Dog Restaurants, LLC, an Econometric expert was able to provide credible testimony that there was an inverse relationship between hiring and age, meaning that the older the applicants were, the less they were selected for the position.

In the alternative, when statistics are not strong enough by themselves to draw a connection between age and termination or failure-to-hire—and they do not disprove the existence of disproportionate age discrimination, remarks by the employer become very important to the success of a case.  Helpful remarks need to be fairly obvious, such as one employer’s statement that the employee was “too damn old to do [his] job.”[14] But, the Ninth Circuit has held that statements such as wanting to get rid of all the “old timers” [15] and “we don’t necessarily like grey hair” were merely ambivalent and not directly related to the termination of employees who were also underperforming and, standing alone, will not prove age discrimination.[16]

In addition to remarks, observations of the employer’s age discrimination are also very helpful.[17]  For example, in our Lazy Dog case, the federal court accepted anecdotal evidence, meaning evidence of personal observations and experiences, not evidence discovered through research: It was observed (1) no employees 40 years or older were seen serving in the restaurant; (2) when the applicants were called in for interviews, the interviewers seemed visibly annoyed by the applicants’ ages and did ask about their serving experience; and (3) younger employees with less experience were hired instead.  Further, when one applicant asked if there was a policy against hiring older employees, an employee remained silent.

 

Overcoming An Employer’s Possible Defenses.

The Supreme Court of the United States decided that after an employee shows evidence of a specific discriminatory policy, it will be the employer’s responsibility to persuade a jury that a reasonable factor other than age caused the discriminatory outcome in federal discrimination cases.[18]

In California cases under the FEHA, the defense to age discrimination is similar: the employer must show that their work or hiring policy was a business necessity.[19]  For instance, a job requirement requiring the ability to run 10 miles in under an hour may very well result in hiring only employees younger than 40, in professions such as firefighters, police officers, and U.S. Marines.

If the employer can show that the discrimination resulted from a business necessity, then the employee needs to identify a reasonable, alternative employment practice that would have been less discriminatory toward those at least 40 years old.

For example, in one case, a female employee in a class action suit successfully rebutted her employer’s argument that a requirement that applicants personally find their first carpentry job to qualify for admission to an apprenticeship program was a “business necessity” by explaining that (1) the apprenticeship program already employed an alternative option to qualify for admission by being referred to a contractor by a union; and (2) the applicants could be referred to contractors on a simple first-come-first-serve basis.[20]  The court agreed that one’s ability to find an entry-level job bore no relationship to an applicant’s ability to succeed in an apprenticeship program.

Overcoming an employer’s business necessity argument requires paying attention to any alterative options the employer may already offer, as well as brainstorming and researching with expert witnesses.  If the employee can suggest a reasonable, alternative business practice, the employee may still win their case.

 

Federal Case Study of the ADEA.

In Meacham v. Knolls Atomic Power Laboratory, 31 employees were laid off when a Power Lab needed to reduce its force for budget purposes.  In deciding who would be laid off, the employer, Power Lab, developed a point-system for ranking employees based on their length of service, work performance, flexibility of talents, and criticality to Power Lab’s operations.[21]  The categories of “criticality”—meaning the necessity of filling that role within the company—and “flexibility” were scored by the employee’s direct managers.  Only twenty percent (20.0%) of the company’s employees who were at least 40 years old were initially considered for the layoffs.  Yet, of the 31 employees laid off, 30 of them—97%—were at least 40 years old.

When situations like this occur and after the employee files their civil complaint, the case enters what is known as the “discovery” phase, where an employee and their attorney are entitled to request certain business records from their employer, including hiring records, procedure manuals, and other employee records.  These records will likely equip a plaintiff with stronger evidence of a specific work policy that actually caused the age discrimination.  In Mecham, after conducting discovery, the employee’s expert witness was able to testify at trial that the chance of 97% of the laid off workers being at least 40 years old was only 1 out of 348,000.  With the help of this testimony, the plaintiffs (employees) won the disparate impact part of the lawsuit.[22]

The jury distributed various amounts of money to each laid-off employee based on their personal harm and length of employment at the Power Lab.  As shown above, strong statistical evidence is sufficient for a case to continue.   

Overall, bringing a claim for age discrimination requires time and patience for various investigations.  At Hogue & Belong, we have skilled and experienced attorneys who have had success in litigating disparate impact class action cases.  If you think you’ve been the victim of an employer’s discriminatory policy that has affected a larger group of a protected group of employees, you should contact an attorney.  You can call (619) 238-4720 for a free consultation.

 

Authors:

Jeffrey L. Hogue – Mr. Hogue is a partner of the Hogue & Belong who routinely handles complex class actions, such as failure-to-hire cases.

 

Rachel J. Story – Ms. Story is a law clerk at Hogue & Belong who helped research and write this article.

[1] 29 U.S.C § 621 et seq.

[2] 29 U.S.C. § 621(b)

[3] 29 U.S.C. § 630

[4] Mahler v. Judicial Council of California (2021) 67 Cal.App.5th 82, 112.

[5] Note one aspect where California law diverges from the ADEA is the number of employees required to be subject to the FEHA age discrimination laws. (See, e.g. Cal. Gov. Code § 12926(d) (defining employer as any person employing five or more persons.)

[6] When a company has a national presence, it is usually advisable to request your right to sue for both the DFEH and the EEOC, otherwise a litigant will lose his or her right to bring either a California or national claim.

[7]              A disparate impact case is different than a disparate treatment case.  In short, a disparate treatment case is where the discriminatory action is intentional and obviously based on age. (See, Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)

[8]              For the full jury instructions for age discrimination under a disparate impact claim can be found in CACI 2502­­.

 

[9]              Meacham v. Knolls Atomic Power Lab. (2008) 554 U.S. 84, 98.

[10]             Meacham v. Knolls Atomic Power Lab. (2008) 554 U.S. 84, 87.

[11]             Watson v. Ft. Worth Bank & Trust (1988) 487 U.S. 977, 994-995.

[12]             Pottenger v. Potlatch Corp. (9th Cir. 2003) 329 F.3d 740, 749 (“Summary judgment is appropriate when statistics do not support a disparate impact analysis.”)

 

 

[13]             https://www.bls.gov/opub/btn/archive/record-unemployment-among-older-workers-does-not-keep-them-out-of-the-job-market.pdf.

[14]             Reeves v. Sanderson Plumbing Prods. (2000) 530 U.S. 133, 151.

[15]             Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918-919.

[16]             Nesbit v. Pepsico, Inc. (9th Cir. 1993) 994 F.2d 703, 705.

[17]             Garcia v. Rush-Presbyterian-St. Luke’s Med. Ctr. (7th Cir. 1981) 660 F.2d 1217, 1225 (“When the statistical evidence does not adequately account for the diverse and specialized qualifications necessary for (the positions in question), strong evidence of individual instances of discrimination becomes vital to the plaintiff’s case”.)

[18]             Meacham v. Knolls Atomic Power Lab. (2008) 554 U.S. 84, 87 (“The question is whether an employer facing a disparate-impact claim and planning to defend on the basis of [reasonable factor other than age] must not only produce evidence raising the defense, but also persuade the factfinder of its merit. We hold that the employer must do both”).

[19]             City v. Fair Employment & Hous. Com (1987) 191 Cal.App.3d 976, 989-990.

[20] Eldredge v. Carpenters 46 N. Cal. Counties Joint Apprenticeship & Training Comm. (9th Cir. 1987) 833 F.2d 1334, 1341.

[21]             Meacham v. Knolls Atomic Power Lab. (N.D.N.Y. 2002) 185 F.Supp.2d 193, 202.

[22]             Evidence of a near-impossible statistic like this can persuade a court that age was the true, hidden factor behind an employer’s hiring or firing policy. (See Hazelwood School Dist. v. United States (1977) 433 U.S. 299, 307-308 (“Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination”).)

 

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