Greetings. This week we are concluding our coverage of ways in which employers inadvertently expose themselves to the risk of age discrimination claims. We are back with Brilliant Business, Tricia the Trainer, and you, Brilliant’s new Regional Sales Manager. Having already learned that interview questions, job advertisements and pre-employment tests are some key age discrimination hot spots, can there really be anything else? You have been so helpful the last two weeks (readers who missed those posts can find them here and here) by sharing what you learned in the training you recently attended, you didn’t want any of our readers to miss out. Thankfully you are ready to share two more key areas that employers should know about — after the jump of course!
Okay, since you don’t want to keep anyone in suspense any longer, here are the last two key areas:
4. Discriminating through a third-party recruiter:
Vicky told you to call Rhonda for help in your search for 5 new salespeople. You called Rhonda, and she asked if Brilliant still prefers salespeople 35 and under. You were surprised, but Vicky confirmed this preference, even though Brilliant had just recently defended at least one age discrimination suit. Why would Vicky continue to insist on such a requirement? Vicky told you that the rejected candidate that sued them was a “direct apply”, who was not screened by Rhonda’s agency. Vicky clearly knows that if Brilliant were directly advertising the sales positions and screening the candidates, that this requirement would be illegal. But, Vicky points out, Brilliant wouldn’t be doing it, Rhonda would be — and Rhonda is not an employer—so that’s OK. You are not so sure. Tricia confirms your worst fears. Age discrimination via a “head hunter” is still age discrimination and it absolutely does violate the ADEA (and probably any state counterparts as well). Tricia made it clear that the EEOC takes the firm position that both the head hunter and the client company are potentially liable in this type of scenario. In other words, discrimination by proxy is still discrimination—and illegal. If Brilliant retains Rhonda, then Rhonda is Brilliant’s agent. So in effect, Rhonda is an employer, rendering her practices and decisions in this regard attributable to Brilliant as well. Rhonda’s company may also meet the legal definition of an employment agency, which would also be subject to the ADEA.
Frankly, this point about discrimination by proxy would apply to any type of discrimination, but it bears mentioning that many employers are more likely to use third-party recruiters to discriminate based on age than on other categories. Why? That might be the perfect transition to the next – and last–key mistake we are covering in this segment. Read on.
5. Not Taking the ADEA Seriously:
You have heard previously that age discrimination can be hard to prove, and so, in the past, like many other managers and employers you haven’t worried as much about the ADEA as, say, race, sex or disability discrimination. Age discrimination just hasn’t seemed like much of a threat in comparison. Well, boy did you get a wake-up call from Tricia! Here’s some of what Tricia shared with you:
In 2001 the Seventh Circuit Court of Appeals upheld a $50,000 compensatory damages award to an over 50-year old African-American man with over 24 years of experience that did not even receive an interview. The case, was Mathis v Phillips Chevrolet. Yes, the case involved racial discrimination, but a) the manager noted applicants’ ages on applications; b) the manager stated a preference for “young, bright workers”; c) all of the new hires were younger and less experienced; d) the jury dismissed the racial discrimination claim and, found the ADEA violation to be willful — which means the court must award liquidated damages in the same amount as the compensatory damages. Ultimately he dealership paid $100,000 for its failure to interview and hire candidates based on their age.
In 2013, Ruby Tuesday paid $575,000 to settle an ADEA claim alleging that it failed to hire applicants over 40 at six of its restaurants in Western Pennsylvania and Ohio. Unfortunately, it appears that Ruby Tuesday did not learn from that experience. In April, the EEOC sued Ruby Tuesday again in Florida, alleging that it refused to hire applicants over 40 for both “front of the house” (server and host) and “back of the house” positions (chef, kitchen manager). The EEOC has also sued Seasons 52, another restaurant chain alleging a pattern and practice of refusing to hire workers over 40.
Hi-Line Electronics in 2014 paid $210,000 to settle a lawsuit brought by the EEOC when an internal recruiter came forward and disclosed that she was given a form to use when interviewing candidates, and that one of the items on the check list was an age-based criterion, resulting in candidates over 50 being rejected.
Google is currently involved in a lawsuit brought by a 64-year old tech worker, who claims Google refused to interview him because of his age. The lawsuit cites a survey by Payscale.com, which shows the median age of Google employees to be 29 as of 2013.
Finally, a 64-year old department manager at Lowe’s received a heads-up from a friend while he was on medical leave recovering from an injury that he was going to be terminated. He returned to work on September 15, 2014 and was -surprise– terminated on September 26, 2014 for allegedly being rude to one of the workers he supervised. The lawsuit, Lustgarten v Lowes Home Centers LLC case number 2:15-cv-00289 filed in the U.S. District Court in Portland Maine, alleges that Lowe’s has a history of terminating older workers with medical issues.
In discussing these and other ADEA lawsuits, Tricia made another point that caused you to sit up and take notice: The figures above only take into account money damages awarded by juries or settlement amounts. These companies also have to pay legal fees, which themselves can cost the employers tens or hundreds of thousands – or even millions of dollars.
This last point (about taking the ADEA seriously) can also easily apply to all types of unlawful discrimination claims. Again though, many employers appear to be more likely to take those types of discrimination claims seriously.
Well, that should conclude this segment. Next week The EmpLAWyerologist will shine a light on some issues employers often face with restrictive covenants (non-competes). Click here, here and here if you’d like a review of the “basics” before we get into some of the nitty-gritty. Bye for now!
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