EverythingPeople This Week!

Published on Tuesday, March 24, 2020

Be Careful of Entry Level Programs: They Are Ripe for Age Discrimination

Author: Anthony Kaylin

age discriminationPricewaterhouseCoopers (PwC) has agreed to pay $11.625 million to settle a lawsuit claiming the global accounting firm discriminated against older applicants for entry level positions.  In 2019, a class action was filed against the company which accused PwC of systematically discriminating against older applicants for associate, experienced associate, or senior associate positions in the firm’s tax or assurance practices. The proposed settlement includes about 5,000 applicants who weren’t hired by PwC.

This case may conflict with a U.S. 7th Circuit Court of Appeals case of Kleber v. CareFusion Corp. that ruled that the Age Discrimination in Employee Act (ADEA) protections apply only to current employees and not applicants.

“The two decisions look at exactly the same statutory language, exactly the same Supreme Court precedent, and exactly the same legislative history and reach exactly the opposite conclusions,” said David Miller, attorney with Bryant Miller Olive.

In the PwC case, the plaintiffs are two men, ages 53 and 47, whose applications for entry-level associate positions were denied by the firm. They both have years of accounting and bookkeeping experience under their belts, but both failed to make the cut. They alleged that they were turned down because they lacked the youthful profile possessed by so many PwC recruits. To “attract and maintain ‘millennials,’ PwC intentionally screens out individuals ages 40 and older...and denies them employment opportunities.”

In the Kleber case, language that identified the experience level of candidates for a corporate counsel position was used to disqualify an older candidate who had greater experience.  In this case, Dale Kleber was 58 when he applied for a legal position at CareFusion Corp, a unit of medical device maker Becton, Dickinson and Co. The company opted not to even interview him and hired a person with fewer qualifications who happened to be 29.  The ad for the position specifically stated the company was searching for candidates with "3 to 7 years (no more than 7 years) of relevant legal experience."

Until there is another decision that is contrary to the Kleber case, it is unlikely the Supreme Court will take up any appeal of Kleber.  PwC settled so there is still no conflict between jurisdictions.

It should be noted that the EEOC does troll the internet to search career sites specifically looking at new graduate or entry programs.  The EEOC has held that these types of programs may be discriminatory on its face.

According to census statistics, 20% of the current workforce is over the age of 55, and the fastest growing age group is 65 years of age and older. Many experienced workers are finding it difficult, if not impossible, to find job opportunities. “Americans seem to be working many years later in life than before,” said Miller. "It’s in the interest of those 30- and 40-somethings to put in place the supports needed by the Boomers now so they’re available when they get there. It’s coming sooner than they think."

PwC's Chief Purpose & Inclusion Officer, Shannon Schuyler, stated, "PwC is proud to affirm its commitment to identify and hire older workers. The commitments in this settlement will help PwC remain one of the most sought-after employers in the country. Our workforce represents the diversity of perspective, life experiences, and backgrounds, and welcomes talented workers across the age spectrum."

 

Source:  law.com 3/4/20, PR Newswire, 3/4/20Wall Street Journal 4/16/17, Forbes 5/1/19, Chicago Tribune 1/24/19

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