EEOC focusing on tough-to-prove age bias against older job seekers
Recent high-profile cases alleging bias against older job applicants were based on campus recruiting programs and online recruitment campaigns, new territory for litigation.
But the settlement this month between the U.S. Equal Employment Opportunity Commission (EEOC) and the Seasons 52 restaurant chain indicates that the more familiar pattern or practice of age discrimination is still a problem.
The Orlando-based chain, part of the Darden family of restaurants, will pay $2.85 million to settle a nationwide class-action age discrimination lawsuit. The EEOC charged that applicants over 40 years old had been denied jobs at 35 Seasons 52 restaurants around the country, in violation of the Age Discrimination in Employment Act (ADEA).
The case was based on more than 135 applicants’ sworn testimony that hiring managers asked them their age or made age-related comments during their interviews.
Statements allegedly made included “Seasons 52 girls are younger and fresh,” “We are not looking for old, white guys” and “We are looking for people with less experience.”
This case is an indication of how far we still need to go when it comes to age discrimination 50 years after the enactment of the ADEA, We are pleased that the EEOC is pursuing these hiring cases. The agency is in a much better position than individuals to go after hiring discrimination.
That’s because the EEOC can bring on an economist to pore over years’ worth of job applications and analyze whether an employer has a pattern of discriminating against older applicants. The agency went through tens of thousands of job applications submitted to the restaurant chain and concluded that the odds of Seasons 52 ending up with its young workforce using age-neutral methods was a long shot.
Seasons 52 denied wrongdoing but agreed to settle the lawsuit and make “significant changes” to its recruitment and hiring practices, including having those practices overseen by an independent monitor for three years. The plaintiffs will be invited to reapply for employment.
A Darden spokesman Hunter Robinson said the company was pleased to resolve the matter and put it behind them.
Spotlight on the ADEA
Nearly two-thirds of workers ages 55 to 64 report their age as a barrier to getting a job, according to the results of a 2017 AARP survey.
The law is meant to protect people 40 and older from discrimination in hiring, promotion and retention at organizations with 20 or more employees. Unfortunately, age discrimination claims can be difficult to prove.
To establish age discrimination under the ADEA, a plaintiff must show each of the following:
Age bias against older job applicants is especially hard to prove. If you are an older, unemployed worker and experience age-related bias in a job interview, are you going to devote your resources to bringing a claim, or keep plunging ahead and try to find a job? Most people just ignore it.
But it’s more likely that the applicant will never even know they were discriminated against.
Although ageism is among the most common forms of employment discrimination, applicants who are turned down rarely know the reason why.
The blatant age-related comments allegedly made in the Seasons 52 case are the exception, Most age bias in hiring goes unchallenged because applicants never find out who was hired and how that person’s age and qualifications compare with their own.
Online applications have made it harder for individuals and have increased the ability of nefarious employers inclined to discriminate to do so. This can be done by setting up parameters in an applicant tracking system or by simply asking for dates of birth or graduation dates on the application itself. The job seeker can’t leave the field blank because you often can’t advance the page without something being entered.
Employers are not prohibited from asking for dates of birth or school graduations, but the EEOC says those types of inquiries will be closely scrutinized.
We believe that employers should expect more action from the EEOC in this area. When an employer has a trend of rejecting older applicants, the EEOC will respond aggressively to combat age stereotypes.
It’s simple to be compliant. Ignore age. That’s the command of the ADEA. Age cannot be a factor in your hiring decision. Instead of considering age, focus on the skills and knowledge required for the position.
We advise hiring managers to try to be aware of some of the age-related stereotypes and not assume that just because an applicant is older that he or she will be retiring soon or can’t learn whatever is needed to do the job. Research shows that many people plan on working well past retirement age, either because they want to or because they have to.
Having a hiring panel with people of different ages conducting interviews and making selection decisions might be a good idea.