Category Archives: Age Discrimination

Why “OK Boomer” is not OK at Work

Contributed by Rebecca Dobbs Bush, December 5, 2019

man expelled from the group, unable to cross the line that separates them.

By now, you most likely have heard the phrase “OK Boomer.”  What began as a meme, quickly went viral.  Soon enough, Boomer’s themselves have been seen using the phrase in jest.  Elizabeth Warren recently used it as the subject line of an email fundraiser (next to a winking emoji). The phrase was the subject of an entire editorial on the most recent CBS Sunday Morning episode.  For those of you entirely out of the loop on this one: lists “OK Boomer” as a “slang phrase” used “to call out or dismiss out of touch or close-minded opinions associated with the Baby Boomer generation and older people more generally.”

The phrase was apparently developed to capture the idea of Millennials and Generation Z being fed up with getting lectured by an older generation; an older generation whom they perceive to be leaving behind a multitude of unsolvable problems. Some are embracing the idea as proof that the younger generation is poised to get more involved and that change is imminent. But the phrase can be seen as discriminatory and ageist.

Yes, trends are cool. Yes, memes are fun. But, the workplace is NOT the place to roll out new material. Ever. And, do you know what is definitely not fun or cool? Being the subject of a harassment complaint and workplace investigation. Or better yet, being named in an age discrimination lawsuit with your repeated use of the phrase, “OK Boomer” serving as proof that your company harbors discriminatory animus towards its older employees.

As noted on the EEOC’s website, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).” In other words, using the phrase without anything else is not likely going to be deemed to constitute a “hostile work environment.” However, using the phrase casually and carelessly at work can certainly be enough to create the existence of a claim. And while the claim may be defensible by an employer, the term “defensible” often equates to “expensive” in terms of lawyer fees, lost time, decreased productivity, reduced morale, etc. Accordingly, the phrase cannot be viewed as harmless and instead should not be tolerated in the workplace.

The Debate on Age Bias in a Hot Jobs Market

Contributed by Michael Faley, June 19, 2019

book with chapter age discrimination and a gavel.

The New York Times recently published an article discussing trends in the area of unlawful age discrimination occurring at a time when the U.S. has the lowest unemployment rate in half a century. New York Times writer Patricia Cohen details, how despite a scramble to lure applicants to alleviate a massive shortage of workers, many workers over 50, and now even over 40, appear to find that they are considered too old for a new position. The allegations of age discrimination have unleashed a wave of litigation. Notably, in a settlement with various plaintiffs groups, Facebook agreed to remove the ability of advertisers to screen out minority groups, women and older groups from seeing particular job listings. 

However, age discrimination is difficult to prove and litigation costs are high. The United States Court of Appeals for the Seventh Circuit recently ruled in a case titled Kleber v. CareFusion Corp.that some recruiting practices that very likely have the effect of screening out older applicants, such as ads that cap an applicant’s experience (say, for example, “3 to 7 years of experience”), do not violate the law. In legal terms, the Seventh Circuit held that the federal Age Discrimination in Employment Act’s (ADEA) disparate impact protections that typically shield older workers against the unfair effects of otherwise neutral practices do not apply to outside job applicants. The plaintiff in Kleber has requested that the U.S. Supreme Court review the case.       

For employers on the hunt for talent in the current market, it helps to stay focused on the applicant’s talent, skills and relevant job experience. With very limited exception, job postings should be age-neutral and requests for birthdays and graduation/degree years should be eliminated from application forms. Practices and phrases that have come under scrutiny in job postings and recruiting materials include using ad targeting tools to limit the age range of individuals that see the ad, using phrases such as “new graduates” or “recent graduates,” and having materials only showing younger employees. Additionally, all employees involved in the hiring process should be trained on age discrimination laws, and ensure that hiring criteria do not directly or indirectly exclude older workers. Lastly, if in doubt, it is always best to seek advice from legal counsel to help put a good process in place and to provide guidance and representation when problems occur.  

Seventh Circuit’s Rejection of Applicant’s Age Claim Does Not Mean Employers Are Off The Hook

Contributed by Noah A. Frank, February 11, 2019

book with chapter age discrimination and a gavel

On January 23, 2019, an en banc panel of the 7th Circuit Court of Appeals held that the Age Discrimination in Employment Act’s (ADEA) disparate impact protections do not apply to job applicants.    

By way of background, 58-year-old Dale Kleber applied for CareFusion’s posting seeking an attorney with “3 to 7 years (no more than 7 years) of relevant legal experience.” Kleber had more experience than that, but instead of hiring Kleber, CareFusion hired a 29-year-old within the given experience range. There are a few key takeaways from this decision:

First, an en banc decision means that all of the circuit’s judges that want to participate are able to consider the merits of the case. This is a sort of intermediary stage between the appellate court’s typical review of a case and the Supreme Court, and here it signals that the Seventh Circuit determined that significant legal issues were at stake. It does not, however, mean that the judges all came to the same conclusion.  Here, 12 of 14 judges participated in the en banc panel, and decided the case 8-to-4, reversing the initial 3-judge panel’s decision (that was decided 2-1) and affirming the trial court’s dismissal of the claim. 

Second, the holding is only as to disparate impact (i.e., facially neutral policies or conduct that have a negative consequence) claims for job applicants under the federal ADEA. ADEA’s disparate impact protections remain in place for current employees, and this does not eliminate any cause of action which may exist under state and local age discrimination laws!

Third, the court clearly stated that ADEA protects both applicants and employees from disparate treatment – e.g., intentional conduct based on age where the affected individual is 40-or-over. This means that advertising specifically seeking someone under the age of 40 (unless there is a bona fide occupational qualification (“BFOQ”) – a lesson for another day) will still likely run afoul of the law.

To avoid potentially violating ADEA in the application phase of employment, employers should take a few proactive measures. First, audit job postings and descriptions to ensure they are age-neutral unless an actual BFOQ exists. Second, update application forms to eliminate requests for birthdays and graduation/degree years (which tend to give a strong indication of age). Third, train anyone involved in the interviewing process on unlawful inquiries – not solely limited to age. And of course, seek the advice of legal counsel to avoid responding to charges of discrimination and even “professional plaintiff job applicants” claims.

Supreme Court Rules ADEA Extends to Small Government Employers

Contributed by Carlos Arévalo, November 6, 2018


Black and white gavel

On Tuesday November 6th, slightly over five weeks after hearing oral arguments, the Supreme Court, by an 8-0 vote, ruled that small government units are covered under the Age Discrimination in Employment Act (ADEA) regardless of their size.  In so doing, the Supreme Court resolved a circuit court split between the 9th Circuit and the 6th, 7th, 8th and 10th Circuits, where the latter courts ruled that the ADEA’s requirement of at least 20 employees for coverage of private-sector employers also applied to state and local governments.

In Guido v. Mount Lemmon Fire District, the plaintiffs worked for a small fire protection district in Arizona. When its two oldest employees were laid off to offset fiscal challenges, they sued alleging that their termination violated the ADEA. The District Court dismissed their claim because their employer did not meet the 20 employee threshold. The Ninth Circuit, however, reversed and the case made its way to the Supreme Court.

Writing for the Supreme Court, Justice Ruth Bader Ginsburg examined a series of amendments affecting both Title VII and the ADEA. Specifically, Justice Ginsburg noted that as originally enacted both laws imposed liability only on private sector employers defined to include a person “engaged in industry affecting commerce whose employees met a numerical threshold.”  In 1972, Title VII was amended to expand its coverage by defining “person” to include “governments, governmental agencies [and] political subdivisions” if they had fifteen or more employees.  Then, in 1974, the ADEA was also amended.  However, unlike Title VII’s 1972 amendments, for the ADEA Congress specifically added “a state or political subdivision of a State” to the definition of “employer” without qualifying it with an employee numerical threshold. Justice Ginsburg found that the use of the phrase “also means” as it related to the definition of employer was “additive” rather than “clarifying.” Accordingly, this meant that for the ADEA Congress actually created a separate category of employer.

In the decision, the Court acknowledged that the ADEA was now given a broader reach than Title VII, but that this disparity was a “consequence of the different language Congress chose to employ.”  The Court also dismissed warnings about the impact on small government services noting that for 30 years the EEOC has consistently interpreted the ADEA to cover government employers of any size and that a majority of state statutes prohibit age discrimination by local governments of any size.

The Supreme Court’s first decision of this term impacts small government employers like Mount Lemmon Fire District in that they will no longer be able to escape liability under the ADEA based on the numerical threshold. Newly minted Justice Brett Kavanaugh did not take part in the decision because arguments took place shortly before his confirmation.


Revival of Age Discrimination Lawsuit a Warning to Employers

Contributed by Jonathon Hoag, May 8, 2018

At age 58, Dale Kleber was an out of work experienced attorney searching for full-time employment. He applied for a position as a “Senior Counsel, Procedural Solutions” that required the ability to assume complex business projects. The position description also stated that applicants must have at least 3 years but no more than 7 years of relevant legal experience. Kleber had more than 7 years of experience and he was not selected for the position. The employer filled the position with a 29-year-old applicant.

68565758 - book with chapter age discrimination and a gavel.

Book chapter opened to age discrimination and a gavel

Kleber sued under the Age Discrimination in Employment Act (ADEA) alleging the 7-year experience cap had a disparate impact on qualified applicants over the age of 40. The district court dismissed the claim finding that the ADEA’s disparate impact provision does not cover job applicants, relying on the Seventh Circuit’s holding in E.E.O.C. v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994). However, a divided three-judge panel of the Seventh Circuit reversed the dismissal finding that its decision in Francis Parker School had been abrogated by the Supreme Court in Smith v. City of Jackson, 544 U.S. 228 (2005). Circuit Judge William J. Bauer dissented finding the plain language of the ADEA made it clear the disparate impact provision did not apply to outside job applicants.

The Seventh Circuit recognized its holding could be seen as creating a circuit split, but a majority of the judges in active service declined to rehear the case en banc.  For now, the case has been directed back to the district court for Kleber to pursue the merits of his case.

Employers frequently use hiring programs that cater to “recent graduates” to fill entry level positions.  These programs have been addressed by the courts as generally permissible under the ADEA provided there is no implication that persons older than the normal “recent graduate” are disfavored. In other words, “recent graduate” programs are not, alone, evidence of discriminatory treatment based on age.  However, under a disparate impact theory, “recent graduate” hiring programs are risky, as there is likely a disparate impact on older applicants.  Moreover, some states frown upon such job ads and make it discriminatory under state comparable ADEA laws (e.g., New York Human Rights Law).

Employers should use caution with hiring programs that might disparately favor younger applicants – at least until the Supreme Court or Congress determines job applicants are not protected by the disparate impact provision of the ADEA.


Spoliation and the Dangers of Failing to Preserve Evidence

Contributed by Carlos Arévalo, September 12, 2017

In a case pending in the U.S. District Court for the Southern District of Florida, Equal Employment Opportunity Commission v. GMRI Inc., the EEOC recently argued that a restaurant chain acted in bad faith, and should be sanctioned for “spoliation” of evidence because, the EEOC claimed, it intentionally destroyed hiring data. It argued the destruction of evidence “prejudice[d] EEOC by opening the door for GMRI to attack EEOC’s statistical and anecdotal evidence, and to rely upon otherwise impermissible [defendant] favorable proxy data.”

investigate documents

Investigate and analyze magnifying glass and stack of documents

Among the allegedly destroyed evidence are emails the EEOC claimed would have established the fact that the managers for the defendant were instructed to hire “young.” In addition, the defendants are said to have intentionally shredded paper applications and interview booklets used for new restaurant openings that would have supported the EEOC’s allegations that the company had a pattern or practice of failing to hire applications over the age of 40. In response, GMRI argued that the EEOC is looking at sanctions because it has failed to find any evidence of age discrimination.

In a different case that has been pending in Colorado since 2010, the EEOC secured sanctions against an employer for its failure to produce records it claimed had been destroyed. In Equal Employment Opportunity Commission v. JBS USA LLC, the EEOC claimed that a meat-processing company failed to reasonably accommodate Muslim workers’ requests for prayer breaks. JBS asserted an undue burden affirmative defense throughout the case, arguing production line slowdowns and downtime would have been caused by allowing prayer breaks to Muslim employees. The EEOC sought discovery from JBS about its undue burden affirmative defense, specifically, all reports or data showing all dates and times the fabrication lines on any and all shifts were stopped, as well as the speed of the lines.

After years of maintaining these records were destroyed, JBS produced a number of reports it found in a warehouse; however, more records presumably stored in boxes at the warehouse could not be located. The Court sanctioned JBS for the loss or destruction of documents directly relevant to JBS’s allegations of undue hardship. The critical problem for JBS, as the Court noted, was the fact that JBS management knew “within a year” after downtime records were created that they were relevant to the EEOC investigation, yet still failed to set them aside for use in the litigation.

What is the lesson to be learned? 

EEOC v. GMRI Inc., teaches that the EEOC may claim spoliation and pursue sanctions against a defendant, even (or perhaps particularly) where the evidence does not readily support the EEOC’s allegations of discrimination. EEOC v. JBS USA, LLC provides an important lesson for businesses regarding the preservation of documents in ongoing litigation. As noted above, the critical problem for JBS was that JBS management knew downtime records were relevant yet still failed to preserve them.

Both cases illustrate the importance of immediately implementing Litigation Holds. Employers must, as a matter of course, establish appropriate procedures and work with staff, IT professionals, and legal counsel to ensure all relevant evidence is preserved.  Failure to preserve evidence may deprive defendant of an otherwise viable defense.

U.S. District Court for the Eastern District of California Holds that Job Applicants May Bring Disparate Impact Claims under ADEA

Contributed by Allison Sues, February 23, 2017

On February 17, 2017, the United States District Court for the Eastern District of California held that job applicants could proceed with their disparate impact claim brought under the Age Discrimination in Employment Act (ADEA).

68565758 - book with chapter age discrimination and a gavel.In Rabin v. Pricewaterhouse Coopers LLP, plaintiffs filed a putative class action alleging that the global accounting and auditing firm used hiring practices and policies for entry-level positions that gave preference to younger applicants and resulted in the disproportionate employment of younger employees. The complaint alleged that these hiring practices include recruiting through universities and maintaining a mandatory retirement policy that requires partners of the firm to retire by age 60. The complaint also alleged that the firm’s hiring practices focused on attracting younger workers. The complaint provided examples such as the firm’s employment opportunity promotion materials, which featured only pictures of younger employees, stated that the majority of their workforce is made up of millennials, and described perks geared towards younger employees, such as student loan repayment assistance. The complaint alleges that the result of these hiring practices and policies is a disproportionately young workforce, with the average age of firm employees being 27 years old.

While it is established law that the ADEA allows employees to bring both disparate treatment and disparate impact claims, the firm argued in its motion for judgment on the pleadings that the ADEA does not allow job applicants – as opposed to employees – to bring such claims.  In its motion, the firm relied on the Eleventh Circuit’s 2016 decision in Villareal v. R.J. Reynolds Tabacco Co., which analyzed the language of section 4(a)(2) of the ADEA in determining that the statute does not authorize disparate impact claims by non-employees.

The Eastern District of California in Rabin declined to follow this eleventh circuit precedent and instead held that job applicants may bring disparate impact claims under the ADEA. In a thorough opinion, the court reasoned that the ADEA’s statutory language and legislative history, as well as the Supreme Court precedent, supported the holding that job applicants may bring disparate impact claims. The court also deferred to the Equal Employment Opportunity Commission (EEOC)’s current age discrimination regulation, which states that “[a]ny employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a reasonable factor other than age.”  29 C.F.R. § 1625.7(c) (emphasis added).

Employers should be careful that their hiring practices and policies do not tend to favor younger workers. The following is a non-exhaustive list of practices that should be re-evaluated to ensure that job postings and hiring practices do not run afoul of the ADEA:

  • Using such phrases as “Recent Graduates Wanted” or “Looking for High School Graduates” in job postings
  • Advertising a youthful workforce in recruiting materials
  • Exclusively recruiting through university programs
  • Making any reference to “millennials” in any recruiting or job posting documents
  • Promoting employee perks geared only to attract younger employees, such as student loan repayment assistance or daycare options for young children