An employer’s “branding” of their hiring campaign as the “place to work for millennials” resulted in a class action age discrimination lawsuit. Pricewaterhouse Coopers hires thousands of college graduates each year. To do so successfully, it has put programs in place designed to attract the younger workforce.
Two men, one in his late forties and the other in his early fifties applied for the entry level associate position, and Pricewaterhouse Coopers turned them both down. Both men came with sufficient accounting and bookkeeping experience to get these entry level jobs. The two men sued under the federal Age Discrimination in Employment Act (ADEA). Their claim was under the disparate impact theory of discrimination. Disparate impact, unlike its brother- discrimination theory Disparate Treatment, asserts that otherwise neutral employment practices result in discriminatory outcomes. In this case, the youth- focused hiring program illegally screened out older workers contrary to the ADEA.
This area of age discrimination law, whereby older workers may be discriminated against because a hiring company focuses its recruitment program toward a younger segment of workers (interns and college grads), is a unique legal approach that until now, WSJ reports, no federal Appeals Court has considered. Wall Street Journal (4/16/2017)
However, it was only a matter of time. The Great Recession displaced many seasoned workers that have been unable to find new jobs. The Equal Employment Opportunity Commission (EECO) has supported the idea that employers looking for young employees may cause unintended discriminatory hiring.
The federal district court judge that first heard the case referenced that “the history of the ADEA’s enactment reveals that Congress was concerned not just with age discrimination within the workplace, but also with the barriers to older workers finding employment in the first place.”
This is not the only case of its kind currently out there right now. The other case that now sits in front of the US Supreme Court is against RJ Reynolds Tobacco Co. That case involved the alleged failure to hire a 49 year old man for a sales position. The first three judge panel of the 11th Circuit Appeals Court decided the case should be heard. But a review by the full panel of the 11th Circuit (Atlanta) Court of Appeals held otherwise resulting in an appeal to the US Supreme Court. SCOTUS is in the process of determining whether to hear it.
A ruling against such focused or “branded” hiring programs could cause employers to rethink and pull back any on-campus recruitment programs fearing that programs targeting young workers would be per se discriminatory. And here is an even more disconcerting question…if the Supreme Court recognizes this claim, would that put diversity programs up for question on “reverse” discrimination?
As always ASE will keep an eye on developments and report it in EPTW.
Source: Wall Street Journal Older Workers Challenge Firms’ Aggressive Pursuit of the Young. 4/16/2017