New Evidence of Age Bias in Hiring, and a Push to Fight It By Patricia Cohen June 7, 2019 MADISON, Ala. — Across the United States, mammoth corporations and family businesses share a complaint: a shortage of workers. As the unemployment rate has tunneled its way to a half‐ century low, employers insist they must scramble to lure applicants. The shadow of age bias in hiring, though, is long. Tens of thousands of workers say that even with the right qualifications for a job, they are repeatedly turned away because they are over 50, or even 40, and considered too old. The problem is getting more scrutiny after revelations that hundreds of employers shut out middle‐aged and older Americans in their recruiting on Facebook, LinkedIn and other platforms. Those disclosures are supercharging a wave of litigation. But as cases make their way to court, the legal road for proving age discrimination, always difficult, has only roughened. Recent decisions by federal appeals courts in Chicago and Atlanta have limited the reach of anti‐discrimination protections and made it even harder for job applicants to win. It is complicating an already challenging juncture of life. Workers over 50 — about 54 million Americans — are now facing much more precarious financial circumstances, a legacy of the recession. More than half of workers over 50 lose longtime jobs before they are ready to retire, according to a recent analysis by the Urban Institute and ProPublica. Of those, nine out of 10 never recover their previous earning power. Some are able to find only piecemeal or gig work. “If you lose your job at an older age, it’s really hard to get a new one,” said Richard Johnson, an Urban Institute economist who worked on the analysis. ‘The Look in Their Eyes’ Tom Adair dressed in a sharply pressed white shirt and a blue blazer with gold buttons for the weekly meeting for ExperiencePlus, a group for job seekers over 50 held in the small library at St. John the Baptist Church in Madison, Ala., near Huntsville. https://www.nytimes.com/2019/06/07/business/economy/age-discrimination-jobs-hiring.html 1/6 6/10/2019 New Evidence of Age Bias in Hiring, and a Push to Fight It - The New York Times A former quality manager at Toyota and an Air Force consultant, Mr. Adair said he has had temporary consulting assignments over the last decade but has not been able to get a steady full‐ time job since the recession’s nadir in 2009. “I ace the phone interviews,” Mr. Adair said. “They say: ‘Your ré sumé speaks volumes. You could hit the ground running. It looks like you’re the perfect fit.’” “But you come in, and you’re D.O.A.,” said Mr. Adair, who is 71 and has neatly clipped gray hair. “You can see the look in their eyes.” “My wife says: ‘We need to get you a face‐lift. We need to get your hair dyed,’” he said. Older workers are much more likely to wrestle with prolonged joblessness than younger ones, according to the Bureau of Labor Statistics. On average, a 54‐year‐old job hunter will be unemployed for nearly a year. Repeated inquiries can go unanswered, like space probes lost in a distant galaxy. In one of the most comprehensive studies, ré sumé s were sent out on behalf of more than 40,000 fictitious applicants of different ages for thousands of low‐skill jobs like janitors, administrative assistants and retail sales clerks in 12 cities. In general, the older they were, the fewer callbacks they got. Those in their 60s “never do better, and often do worse,” than those a decade or two younger, said David Neumark, an economics professor at the University of California, Irvine, who oversaw the research. It is toughest for women, who suffer more age discrimination than men starting in their 40s, the researchers found. “The evidence of age discrimination against women kind of pops out in every study,” Mr. Neumark said. As for Mr. Adair, he said he had been through the same job‐application routine so many times that it felt like “Groundhog Day.” Over the years, he consulted three lawyers about age discrimination. Each time, they advised that an individual lawsuit would not be worth the legal costs. https://www.nytimes.com/2019/06/07/business/economy/age-discrimination-jobs-hiring.html 2/6 6/10/2019 New Evidence of Age Bias in Hiring, and a Push to Fight It - The New York Times Mr. Adair’s notes from a session for job hunters. “It’s devastating,” Mr. Adair, a former Toyota quality manager, said of his repeated rejections. “You go through the stages just like dying.” Andrea Morales for The New York Times With a small pension and Social Security, he said, he and his wife are “just getting by.” “It’s devastating,” Mr. Adair said. “You go through the stages just like dying. First you can’t believe it. You’re so sure and your wife is so sure, and even the recruiter is. Then you get mad.” By the end, you feel like giving up, he said. Wanted: Greener Employees Hiring complaints and lawsuits are rarely filed because they are difficult to prove and the cost is high, said Robert E. Weisberg, a regional attorney with the federal Equal Employment Opportunity Commission in Florida. To bring a case against Seasons 52, a national restaurant chain, Mr. Weisberg said, the commission looked to establish a pattern of bias over a period of years by combining statistical analyses with testimony from applicants. The agency examined whether the chain could have hired so few applicants 40 or older if there had been no age discrimination, and calculated the odds at less than one in 10,000, according to court documents. The commission also collected affidavits from 139 applicants at 35 restaurants. https://www.nytimes.com/2019/06/07/business/economy/age-discrimination-jobs-hiring.html 3/6 6/10/2019 New Evidence of Age Bias in Hiring, and a Push to Fight It - The New York Times George Simmons was 45 when he applied at a Seasons 52 in Lone Tree, Colo., in 2014. “My interview was going well until the interviewer asked me my age,” he stated. After he answered, he said, he was shown the door. “I asked what was the problem,” he said, “and the interviewer responded that the restaurant was looking for younger people.” Heidi Barsaloux was 44 when she applied for a bartender position at a Seasons 52 in Schaumburg, Ill., in 2010. “An interviewer told me that they were not looking for people with that much experience and wanted people who were more green,” she said. A third applicant was told, “We are not looking for old white guys.” Ultimately, the chain, part of Darden Restaurants, agreed last year to pay $2.85 million and hire a monitor to prevent discrimination against applicants over 40. As part of the settlement, the chain denied any wrongdoing. There have been other legal offensives. The Communications Workers of America has filed a lawsuit on behalf of millions of older Americans against Amazon, T‐Mobile and Cox Communications, accusing them and hundreds of other major employers of systematic age discrimination in hiring based on targeted online advertising. The union and several workers have also filed complaints with the Equal Employment Opportunity Commission against more than 70 employers and employment agencies related to age discrimination in recruiting. It expects that some of those will turn into class‐action lawsuits. By exposing so much of the help‐wanted process on the internet, “the transformation to digital recruiting has shined a spotlight on how discrimination happens, and it’s made it much easier to do so,” said Peter Romer‐Friedman, a lawyer at Outten & Golden working with the union. “We’re going to start going after these companies, one by one.” And in a broad settlement with civil rights groups and the union, Facebook agreed to eliminate the ability of advertisers to screen out minority groups, women or older job seekers from seeing particular help‐wanted listings. https://www.nytimes.com/2019/06/07/business/economy/age-discrimination-jobs-hiring.html 4/6 6/10/2019 New Evidence of Age Bias in Hiring, and a Push to Fight It - The New York Times Facebook has agreed not to let advertisers screen out minority groups, women or older job seekers from seeing particular job listings. In one example of the practice, users who clicked on “Why am I seeing this ad?” were told it was aimed at men 18 to 50 who live in or were recently near Fort Worth. Facebook itself can control which ads users see by delivering them based on age, gender and ZIP code. “We want the E.E.O.C. to declare that this type of exclusionary advertising is unlawful” on any online platform, Mr. Romer‐Friedman said. Joe Osborne, a Facebook spokesman, said the company had taken steps to combat hiring discrimination and was exploring what more to do. A Cap on Experience Dale E. Kleber had been out of work for three years when he saw a posting in 2014 for a legal position at CareFusion, a medical technology company. At 58, with three of his four children living at home, in a suburb of Chicago, he was feeling the financial strain of prolonged unemployment. So even though the ad specified that applicants should have no more than seven years of experience, Mr. Kleber applied. CareFusion ended up hiring a 29‐year‐old. Mr. Kleber, a veteran lawyer and former general counsel of a national dairy and food company, sued, arguing that a limit on experience effectively ruled out older applicants. “Litigation is a terrible way to settle disputes,” said Mr. Kleber, who during his career had defended companies against complaints filed with the E.E.O.C. “It’s a very uncertain process, it is fraught with risk, and sometimes it comes out wrong.” Putting a cap on experience, though, “just seemed so egregious,” he said. https://www.nytimes.com/2019/06/07/business/economy/age-discrimination-jobs-hiring.html 5/6 6/10/2019 New Evidence of Age Bias in Hiring, and a Push to Fight It - The New York Times The United States Court of Appeals for the Seventh Circuit did not agree. In a ruling this year supporting CareFusion, it stated that recruiting practices that have the effect of screening out older applicants — what is known in legal terms as having a “disparate impact” — did not violate the law. The decision mirrored one involving R. J. Reynolds Tobacco made earlier by the Court of Appeals for 11th Circuit in Atlanta, which the Supreme Court declined to review. It ruled that unlike employees already on the payroll who can show that a policy has a negative impact on a group regardless of the motivation, applicants would have to prove intentional discrimination. Troy Kirkpatrick, a spokesman for Becton Dickinson and Company, which owns CareFusion, said, “We are deeply committed to providing equal employment opportunities and a workplace free from discrimination, and as such we are pleased with the decision from the Seventh Circuit Court of Appeals.” In April, Mr. Kleber and the AARP Foundation asked the United States Supreme Court to review the case. “It defies common sense,” Mr. Kleber said, to think Congress “intended to offer greater legal protections to people who have jobs than people looking for jobs” when it passed the Age Discrimination in Employment Act in 1967. Other older workers and advocates elsewhere are making the same argument, pushing for a broader interpretation of the law. In a federal court in California, a class‐action lawsuit against the global accounting firm PwC that claims “substantial evidence of age disparities in hiring” was certified in April. The company noted on its career website and in reports that the average age of its 220,000‐member work force was 27, and that 80 percent of the staff members were millennials (born after 1981). PwC responded that the company’s “hiring practices are merit‐based and have nothing to do with age.” It added, “The plaintiffs’ accusations are false, and we will prove that in court.”