Age Discrimination in Hiring: Breaking Down Barriers and the Age Discrimination in Employment Act 50

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1 John J. Heldrich Center for Workforce Development Rutgers, The State University of New Jersey October 12, 2017 Daniel B. Kohrman Senior Attorney, AARP Foundation Litigation 601 E Street, NW Rm B4-205 DC dkohrman@aarp.org Age Discrimination in Hiring: Breaking Down Barriers and the Age Discrimination in Employment Act 50

2 Demographics: An Aging Workforce % of workforce now 50+: 41.5%(ME) 22.8%(DC) [37.1% NJ] 32 states at 33% or more (2014 Current Population Survey, March Supp., analysis prepared by AARP Research) Recent growth of 50+ workforce: ( 07) ( 16) 27% - 33% (Society for Human Resources Management, The Aging Workforce Research Initiative, July 2016) Projected growth of 55+ workforce: ( 14) ( 24) Overall (age 16+): +0.5% Age 16-24: -1.4%; Age 24-54: +0.4% Age 55+: +1.8% (U.S. Bureau of Labor Statistics, September 2017)

3 HR So Far: Reac8ve, not Proac8ve Few firms prepare for aging workforce: 36% 20%: no changes needed; 19% becoming aware Few firms alter HR practices: recruitment (35%); retention (33%); overall (28%) HR staff perceptions differ from those of workers: Older workers are over 60 for 56% of HR staff Older workers are under 60 for 69% of workers (SHRM, Aging Workforce Initiative, Part 1, Jan. 12, 2015, org/hr-today/trends-and-forecasting/research-and-surveys/ Pages/ shrm-state-of-older-workers-in-u.s.-organizations. aspx)

4 Surprise! More Age Bias Cases EEOC Charges: over 20,000/yr. nationally, since FY08; From FY97-FY07 they never exceeded that figure. (Charges filed with EEOC, FY 1997 Through FY 2016, eeoc.gov/eeoc/ statistics/ enforcement/charges.cfm) (ADEA charges) Up since 2013 in NJ: over 400/yr. (as in 10-12) (EEOC Charge Receipts by State and Basis, 2009 through 2016, www1.eeoc.gov/eeoc/ statistics/enforcement/state_09.cfm) (2009) The EEOC handles few ADEA cases itself: 2 suits filed (FY16) of 114 suits filed nationwide; avg. <10/yr. since FY12. (EEOC Litigation Statistics, FY 1997 through FY 2016, eeoc.gov/eeoc/statistics/enforcement/litigation.cfm)

5 New Forms of Age Bias in Hiring Age Stereotypes (new and ageless): digital immigrants rather than digital natives resistant to change, esp. with respect to technology Presumed to be planning to retire at the normal age 21 st Century Recruitment Techniques: Online applications, requiring DOB, year of BA/BS Social media sites, recruiting non-applicants Algorithms, using big data and reflecting past hiring

6 Hot Legal Issues: Age Bias in Hiring Intentional Smoking Gun Age Bias Explicit Applicant Age Limits: Common in 1967, but now a thing of the past Ageist comments: Rare in hiring cases; often found to be stray remarks Compare Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) (plaintiff told he was so old [he] must have come over on the Mayflower ) and Sterk v. Zimmer, Inc., No. 3:14-CV-1525, 2016 U.S. Dist. LEXIS (N.D. Ind. Apr. 19, 2016) (comments include old bastard, grumpy old bastard, old man ) Isolated comments of non-decision makers are stray remarks that cannot be direct evidence of discrimination or show a decision s biased motivation Improper employer need to consider age in hiring-#1 - older applicants would portray wrong image for front of the house jobs: EEOC v. Texas Roadhouse ($12M settlement) Improper employer need to consider age in hiring-#2 older applicant would not fit in unit with mostly younger employees: Rabin v. PricewaterhouseCoopers (pending in N.D. CA) (50+ plaintiff alleges interviewer asked if he would fit in with younger colleagues)

7 Hot Legal Issues: Age Bias/Hiring-2 Age-Neutral Policies with Age-Disparate Impact Only recognized as viable ADEA claim 30 yrs. after Title VII: in Smith v. City of Jackson, 544 U.S. 228 (2005). See Griggs v. Duke Power Co., 401 U.S. 424 (1971). Employer s burden of proof: to show reliance on reasonable factor other than age Meacham v. KAPL, 554 U.S. 84 (2008) Example #1: a near exclusive program of on-campus recruiting, Rabin v. PricewaterhouseCoopers (above) Example #2: relying on an applicant profile for sales jobs favoring minimal sales experience, Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11 th Cir. 2016), cert. denied, 137 S. Ct (2017) The 11 th Circuit held there is no disparate impact claim for age bias in hiring! The U.S. Supreme Court denied cert. AARP has cases in the 7 th, 9 th & 10 th Circuits!

8 Hot Legal Issues: Age Bias/Hiring-3 A Mix of intentional bias and unlawful biased effects Screening out overqualified applicants with too many years of experience: Kleber v. CareFusion Corp. (pending in 7 th Cir.) (to be argued Oct. 23) (50+ plaintiff sought challenging job limited to applicants with no more than 7 yrs. experience allegedly to avoid applicants unlikely to stay or to obey young supervisors) Mr. Kleber lost his effects claim and dropped his intent claim His disparate impact claim (only) is now before the Court of Appeals Questions?