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Jet Propulsion Laboratory in California Charged for Age Discrimination

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For years, employees in technology-related industries have told stories about older workers facing age discrimination at work. Now NASA’s Jet Propulsion Laboratory is set to pay $10 million in fines and damages, and make changes in the way hiring and promotions are handled in an effort to combat ageism in technology.

Ageism in the Tech Industry

It’s no secret that the tech industry has a problem with ageism. Facebook CEO Mark Zuckerberg once famously told a room full of Stanford graduates:

“I want to stress the importance of being young and technical. Young people are just smarter.”

Tech industry workers report experiencing the effects of ageism as early as 29, compared to 41 in non-technology related fields. In 2020, a survey by Visier of 330,000 employees from 43 US enterprise-level companies showed that, despite older employees rating among the industry’s top performers, systemic ageism was a problem among technology and development companies. The survey showed that the average tech worker is 5 years younger than the average non-tech worker (38 as compared to 43). Technology industry managers are an average of 42 years old, compared to 47 year old non-tech managers.

The difference is in the hiring. Visier found that tech companies hire a higher proportion of younger workers and a smaller proportion of older workers, compared to non-tech. However, when employers consider an employee or applicant’s age in deciding whether to hire or promote them, they may be committing illegal age discrimination.

Age Discrimination in the Workplace: What’s Protected

Older workers are protected under federal law. The Age Discrimination in Employment Act (ADEA) says that employers may not discriminate against people age 40 or older for being “too old” for a job. Unlike other federal anti-discrimination laws, this protection only goes one way. It is not illegal under federal law to discriminate against workers under age 40, or to discriminate against a person because they aren’t “old enough”.

The ADEA makes it illegal for an employer to consider a person’s old age for any aspect of employment, including hiring, promotions, job assignments, or pay. It also prevents workplace harassment based on age. While the occasional “Okay, Boomer” won’t necessarily result in a successful age discrimination complaint, harassment is illegal if it becomes so frequent or severe that it creates a hostile or offensive work environment. Firing or demoting a worker because of their age is also illegal.

JPL to Pay $10 Million in EEOC Age Discrimination Settlement

That’s what the U.S. Equal Employment Opportunity Commission (EEOC) says happened at NASA’s Jet Propulsion Laboratory (JPL) in Pasadena, California. JPL is a federally funded research and development laboratory and NASA field center, managed by the California Institute of Technology. After receiving more than a dozen complaints from older employees from the research and development company, the EEOC filed a complaint in the U.S. District Court for the Central District of California (EEOC v Jet Propulsion Laboratory, 2:20-cv-03131-CBM-JC). The complaint said that JPL systemically laid off employees over the age of 40 in favor of retaining younger workers, and passed over older employees to rehire less qualified, younger employees in their place.

Then, on June 11, 2020, the EEOC and JPL announced they had come to a settlement in the case. JPL agreed to pay $10 million in fines and monetary relief to the older employees.  It also agreed to a consent decree including three years of EEO supervision, and a variety of proactive efforts to prevent further age discrmination in the labs, including:

  • Hiring an EEO monitor, a diversity director, and a layoff coordinator to monitor compliance with the ADEA
  • Reviewing and revising anti-age-discrimination policies and procedures
  • Training all employees on age discrmination
  • Reporting recruitment, hiring, layoffs, terminations, and age discrimination complaints to the EEOC

Anna Park, regional attorney for the EEOC’s Los Angeles District said in a statement:

“We commend JPL for its willingness to commit to compliance with the ADEA, for already making proactive efforts to implement much of the injunctive relief, and for taking measures that will have a positive impact on older employees,” said  “We encourage other employers to follow JPL’s lead and review their hiring and recruitment policies and practices to make sure they are in compliance with federal law.”

Getting the kind of systemic changes that JPL has promised to make isn’t always easy. Older employees facing age discrimination often must make their case using statistics, hiring trends, and other abstract forms of proof. If you have been laid off, passed over, or not hired because of your age, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will meet with you to review your company’s policy and your options, so you can be compensated for the loss of your career. Contact Eisenberg & Baum, LLP, today for a free consultation.

“Sex-Plus” Discrimination During COVID-19 Layoffs

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The government response to the novel Coronavirus COVID-19 shut down businesses across the country. While most states are now reopening, many employees are finding that the COVID-19 layoffs weren’t as temporary as they thought. Older women in particular are finding that the overlap between continued restrictions on women-led industries and fears around Coronavirus vulnerabilities are creating fertile ground for “sex-plus” discrimination, leaving them without work even as the country reopens for business.

Older Women Face the Highest Numbers of COVID-19 Layoffs

April 2020 was undisputedly the worst month in recorded history for U.S. employment. In response to the COVID-19 pandemic, entire states shut down and approximately 20 million people lost their jobs. The unemployment rate in the United States skyrocketed from 4.4% to 14.7%, the highest level since the Great Depression. While those numbers have recovered slightly as the country reopened, nationwide unemployment was still at 11.1% in June 2020.

The force of the Coronavirus shutdown wasn’t felt with equal weight by everyone, though. According to an AARP Employment Data Digest, older women (over age 55) were hit the hardest, with an unemployment rate of 15.5% in April 2020. There were a variety of factors that converged to make older women most vulnerable to COVID-19 layoffs.

COVID-19 Shutdowns Hit Women-Led Industries Hardest

First, unlike in earlier recessions, this year’s shutdowns hit the service industry first. High-contact workplaces like retail stores, beauty salons, and restaurants — where women make up the majority of employees — were shut down first and have the strictest regulations when reopening. While factories hurried to retrofit and reopen and offices pushed staff into remote work, these industries simply closed. That left women more likely to face temporary layoffs, and made it more likely that those terminations would become permanent as small service industry businesses made difficult decisions about when and whether they would reopen.

Older Adults Face Layoffs Because of COVID-19 Vulnerabilities and Assumptions

Second, early studies revealed that older adults were at higher risk of complications if infected with COVID-19. This combined with existing assumptions that older workers cost more in health benefits and would be less able to adapt to the technology needed to work remotely than their younger counterparts. When companies sought to trim their workforce and stay open, older workers were more likely to be the ones laid off.

When these two factors overlapped, older women found themselves in the crosshairs. It is just one example of what happens when intersectional discrimination weighs most heavily on workers who fall into more than one minority category.

“Sex-Plus” Discrimination and Intersectionality in the Workplace

There are a variety of state and federal laws that protect against discriminatory employment practices. The most famous of these is Title VII of the 1964 Civil Rights Act. This federal law prohibits discrimination based on an employee’s inherent traits:

  • Race or color
  • Sex or gender (including pregnancy, gender identity, and sexual orientation)
  • National origin
  • Religion

Any time an employee is targeted because of one or more of those traits, she or he can file a complaint with the Equal Employment Opportunity Commission (EEOC). Intersectional employment actions give an employee a “sex-plus” discrimination claim based on the overlap of discriminatory conduct. For example, someone fired because she was a black woman would have an EEOC claim even if she wouldn’t have faced the same discrimination as either a white woman or a black man. Intersectional discrimination has been protected since at 1980, at least when both traits fall under Title VII’s umbrella of protection.

But Title VII doesn’t shield against age discrimination. At the federal level, ageism is the target of a separate law, the Age Discrimination in Employment Act (ADEA). Even though this law has been in effect nearly as long as Title VII, it has different rules about when and how older workers can bring claims against their employers. In some parts of the country, those differences can create problems for older employees claiming sex-plus discrimination based on a combination of sex and age.

New York Human Rights Act Brings Intersectional Discrimination Claims Under One Umbrella

There is good news for those older women facing COVID-19 layoffs closer to home. The New York State Human Rights Law doesn’t draw the same distinctions between inherent traits as the federal law. At the state level age, sex, race, and many other traits are all protected under the same statute, with the same procedures. This makes it easier to pursue sex-plus discrimination claims and raise issues of intersectionality under the state law.

The law also protects against a wider variety of ageism. While the ADEA only applies to employees over age 40, and then only for discrimination based on assumptions that they are “too old” to do the job, the New York law protects against anyone age 18 or older from any employment decision made because of the individual’s age. That means that New York employees facing sex-plus discrimination in the wake of the Coronavirus have access to broader protections than their counterparts in other parts of the country.

At Eisenberg & Baum, LLP, our gender discrimination attorneys look beyond sexism to consider a wide variety of intersectional discrimination. We want to help our clients be compensated for the harm they suffered from sex-plus discrimination and layoffs based on false assumptions about their vulnerability to COVID-19, gender roles, or technical abilities related to age. From our office in the heart of New York City, we will review all aspects of your employment history to identify discrimination, and help you consider all your options under state and federal law. Contact us today to schedule a consultation with one of our attorneys.

Is a Mandatory Retirement Policy Illegal Age Discrimination?

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If you have a milestone birthday approaching, you might be getting anxious about losing your job. Some companies use a mandatory retirement policy to try to limit the age of their work force. But that could be illegal age discrimination, depending on your job.

In this blog post, I will address a recent settlement by the U.S. Equal Employment Opportunity Commission and Professional Endontics, P.C., surrounding the company’s mandatory retirement policy. I will review the federal Age Discrimination in Employment Act (ADEA) and consider whether a mandatory retirement policy is a form of illegal age discrimination.

Older Workers Are Protected Against Age Discrimination

The Age Discrimination in Employment Act (ADEA) protects workers over 40 years old from age discrimination at work. It protects older workers and potential employees from adverse employment decisions based on their age. This can include:

  • Non-Hiring
  • Passing over for a promotion
  • Assigning to “light” duty or less desirable tasks or shifts
  • Firing

The ADEA is one of the many federal civil rights laws enforced by the Equal Employment Opportunity Commission (EEOC). Workers who think they have been the target of age discrimination can file a complaint, with the help of an employment discrimination attorney or on their own. The EEOC will investigate the claim and help facilitate a solution. When that fails, either the EEOC or your private attorney can file suit in federal court.

Is a Mandatory Retirement Policy Illegal Age Discrimination?

Being fired because you are “too old to do your job” may be an obvious form of age discrimination, but can a company impose a mandatory retirement policy that applies uniformly to all employees? That was the issue in EEOC v. Professional Endodontics, P.C., Case No. 4:17-cv-13466. In that lawsuit, the EEOC represented Karen Reurat, an employee of an oral surgery facility in a suburb of Detroit, Michigan. Reurat had worked for Professional Endodontics, P.C., for 37 years, until she was fired just days after her 65th birthday in January 2016. The company had a mandatory retirement policy which required all employees to retire when they hit that milestone birthday.

The EEOC said the policy violated the ADEA by illegally discriminating against employees based on their age. By firing employees explicitly because they had reached age 65, the EEOC said the medical company had committed illegal age discrimination. The EEOC had tried to use its informal conciliation process to resolve the complaint, but eventually had to file suit in the U.S. District Court for the Eastern District of Michigan. Once the litigation got started, the parties agreed to settle for $47,000, together with new anti-discrimination policies and training about the ADEA.

Exceptions When Mandatory Retirement Policies May Be Allowed

Mandatory retirement policies are generally illegal under the ADEA, but there are exceptions:

  • The job includes a Bona Fide Occupational Qualification (BFOQ)
  • Some state judges and elected officials
  • High policy-making positions

Bona Fide Occupational Qualifications are necessary duties of the job that cannot be performed by people above a certain age (usually for safety or efficiency reasons). Common examples are child-acting rolls or safety concerns connected with old-age drivers in public transportation. It is hard for employers to prove BFOQs are truly necessary. They usually turn out to be illegal shortcuts too broad to properly address the true underlying safety concern (such as maintaining a valid driver license).

The exception for high policy-making positions only applies to managers with the authority to hire or fire other employees and supervise at least two subordinates. Individuals in these positions must spend at least 80% of their working time on management and supervision duties (60% in retail or service industries). These top-level employees play a significant role in developing and implementing corporate policy, so they are less likely to create a mandatory retirement policy that works against them without a good reason.

Some states have passed laws legally limiting the age of their elected or appointed officials. Many, including Michigan, where the this settlement was entered, require their judges to retire at age 70, or prohibit judges from seeking reelection after their 70th birthday. In 1991, in Gregory v Ashcroft, 501 U.S. 452 (1991), the U.S. Supreme Court said that mandatory retirement laws, particularly a provision of the Missouri Constitution, were not illegal age discrimination under the ADEA. The Court said that the state’s appointed judges were not “employees” under the ADEA. Instead, they were more like high policy-making executives. The court said that there was a “rational basis” for states to distinguish between judges and other state officials when it came to age restrictions.

Most private employees and government workers are protected against age discrimination in the form of mandatory retirement policies. If your milestone birthday has you worrying about your employment, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will meet with you to review your company’s policy and your options, so you can continue working and retire on your own terms. Contact Eisenberg & Baum, LLP, today for a free consultation.

Do College Job Fairs Promote Age Discrimination?

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Every year, colleges and universities across the country are gear up to connect graduating seniors with employers looking for entry-level employees. But what about those workers who didn’t follow a traditional path to employment? Do college job fairs promote age discrimination?

In this blog post I will explain how the Age Discrimination in Employment Act (ADEA) and the protections available to older workers. I will review Villarreal v R.J. Reynolds, 839 F.3d 958 (2016), and a potential employee’s options and obligations in pursuing an age discrimination claim. I will also discuss how college job fairs and social media ads targeting college grads are being called out as promoting age discrimination.

Age Discrimination in Employment Act Protects Older Workers

The federal Age Discrimination in Employment Act (ADEA) is designed to prevent discrimination against older workers. It prohibits employers from:

  1. Failing to hire or firing someone, or discriminating against him or her in terms of employment because of age
  2. Segregating or classifying an employee in a way that adversely affects his or her status as an employee because of age

Unlike other forms of workplace discrimination, the ADEA doesn’t automatically apply to all workers. To have a claim of age discrimination, an employee or potential worker must be at least 40 years old. It other words, it is not illegal to discriminate against a worker because he or she is too young, only too old.

An Aging Workforce Raises Hiring Discrimination Issues

The average worker is getting older. More people age 65 and over are staying on the job — 18.8% in 2016compared to 12.8% in 2000. For those older adults without stable employment, that can often create fear of age discrimination. The EEOC found that in 2016, 65% of older workers believed their age was an obstacle to new employment. The agency received 20,857 claims of age discrimination that year, and that number is likely to increase as the average age of workers continues to rise.

College Job Fairs and Targeted Social Media Ads Raise Age Discrimination Concerns

The Equal Employment Opportunity Commission and other civil rights advocates have begun questioning whether the many common employer practices cross the line into age discrimination. Recruitment efforts like college job fairs and targeted social media campaigns restrict access to job postings and raise questions of access and discriminatory employment practices.

Companies coordinate with universities to hold meet and greets and conduct interviews that only their students can attend. Facebook allows employers to pay for “sponsored posts” that target particular demographics, limiting people who will see the post to, for example ages 18-24. But is that illegal age discrimination? The colleges and Facebook of course say it isn’t. After all, there is nothing prohibiting older adults from attending college. Just because a sponsored post or Facebook ad is targeted doesn’t mean it can’t be shared with older workers. But is that enough to defeat an age discrimination claim?

Villarreal v R.J. Reynolds and the Disparate Impact theory of Age Discrimination

There are two ways for potential plaintiffs to claim age discrimination happened:

  1. Disparate treatment says the plaintiff him or herself was treated differently because of his or her age
  2. Disparate impact says that an employer’s conduct indirectly affected an employee’s status.

Claims against college job fairs and social media campaigns generally fall in the second category because they are based on a theory that the older person lacked access to the same jobs. But in Villarreal v R.J. Reynolds, the Eleventh Circuit Court of Appeals said that only current and former employees could use a disparate impact theory of age discrimination.

Richard Villarreal applied to work as a territory manager at R.J. Reynolds, through its placement contractor. He was 49 at the time. The placement description targeted a candidate “2-3 years out of college” who “adjusts easily to changes”. The contractor was warned to “stay away from” applicants with 8-10 years in sales. Villarreal said that these criteria caused him to miss out on the job opportunity, and the 5 other times he applied to the company. His attorneys argued that the placement description had a disparate impact on older workers who didn’t have access to the jobs.

The distinction between who can claim disparate treatment and disparate impact came from the statute itself. In another section, the ADEA applies to conduct that would affect a person’s “status as an employee or as an applicant for employment”. But when it comes to disparate impact, the law only applies to conduct “adversely affect[ing] his status as an employee.” According to the Court of Appeals, a potential hire doesn’t have a status as an employee, so Mr. Villareal could not sue under a disparate impact theory.

The U.S. Supreme Court denied a request to review the decision. That means that potential workers claiming that recruitment efforts are illegal age discrimination will have to demonstrate disparate treatment, not just a disparate impact. For college job fairs, that will require a showing that an older potential worker was turned away or refused consideration, rather than simply showing a statistical probability that the tool recruits younger workers. The question of age-restricted social media posts could be stronger, but whether future plaintiffs will be able to demonstrate disparate treatment by social media companies or recruiters remains to be seen.

At Eisenberg & Baum, LLP, our employment discrimination attorneys we understand the realities of age discrimination facing older workers. When more senior job-seekers are passed over from jobs, we can help them investigate the circumstances, protect their interests, and file complaints with the EEOC or in federal court. Contact Eisenberg & Baum, LLP, today for a free consultation.

When is Age Discrimination Against the Law?

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Age discrimination at work can be hard to detect and even harder to prove. Many applicants never even know that they were illegally passed over because they were too old. What should you be watching for? How will you know whether what happened to you is illegal? When is age discrimination against the law?

In this blog post, I will review the Age Discrimination Enforcement Act (ADEA) and explain what is and isn’t illegal age discrimination. I will also summarize past cases by the Equal Employment Opportunity Commission (EEOC) on behalf of older employees, including a recent settlement with the restaurant chain Texas Roadhouse.

ADEA Provides 50 Years of Protection Against Age Discrimination

The Age Discrimination Enforcement Act was passed in 1967 to protect older Americans from losing access to jobs simply because of their age. It applies to both employees and job applicants, and protects them against any unfavorable employment decisions based on age including:

  • Hiring
  • Firing or lay-off
  • Promotion
  • Pay, bonuses, compensation, or benefits
  • Job assignments and training

It also protects against retaliation for anyone who assists in an ADEA investigation, proceeding, or litigation, including witnesses.

However, unlike other types of workplace discrimination, which apply to any action taken based on a protected trait, the ADEA applies to one specific group: workers and applicants age 40 or older. In addition, it is only designed to protect against discrimination based on old age. If a policy favors older employees it will be upheld even if 40-year-olds are treated less favorably than their older coworkers.

In 1990, the Older Workers Benefit Protection Act added additional protections to keep employers from canceling older workers’ benefits simply because of cost. In certain limited situations, an employer may be able to reduce benefits based on a worker’s age, but doing so must not drop the cost below what is being paid for younger employees’ benefits.

Examples of Age Discrimination at Work

Every case of age discrimination is different. Some are based on employers’ explicit statements or questions. Others must be inferred based on hiring trends. How closely the discrimination must be tied to the employment decision also depends on the type of employer. Private employers with 20 employees or more are prohibited from making employment decisions “because of” age, but federal employers’ decisions must be “made free from any discrimination based on age” even if there are other factors involved. Here are some examples of successful age discrimination claims and lawsuits through the EEOC:

  • Denying a pay raise after a successful performance review. Enriqueta T. v Dep’t of the Army, EEOC Appeal No. 0120143049 (Sept. 2, 2016)
  • Passing over a 12 year veteran of the position for promotion to program director, in favor of a younger person. Donna W. v Dep’t of Transp., EEOC Appeal No. 0720160002 (Aug. 17, 2016), request for reconsideration denied EEOC Request No. 0520160522 (Dec. 13, 2016).
  • Asking about how many years an applicant had before mandatory retirement. Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016).
  • Giving an older employee involuntary reassignment to a less desirable position. Kristy D. v Dep’t of the Interior, EEOC Appeal No. 0720160003 (Aug. 10, 2016).
  • Passing over a high-scoring applicant for a trainee program in favor of selectees without comparable experience. Cletus W. v Dep’t of the Treasury, EEOC Appeal No. 0720160008 (Aug. 3, 2016).
  • Harassing an employee because of his age by referring to him as “the old guy” and asking if he could make his way to a meeting or remember things. Bryan T. v Dep’t of Homeland Sec., EEOC Appeal No. 0120122110 (March 18, 2016).
  • Passing over a qualified candidate whose résumé showed he was above age 40 and highly qualified. Alton F. v Dept. of Def., EEOC Appeal No. 0120140428 (April 3, 2014).

Age Discrimination Hits Texas Roadhouse

Earlier in 2017, the Equal Employment Opportunity Commission (EEOC) announced a settlement with the Kentucky-based restaurant chain Texas Roadhouse. The company agreed to pay $12 million to a class of applicants who claimed they had been denied front-of-the-house positions (including servers, hosts, assistants, and bartenders) because of their age. In addition, Texas Roadhouse must establish anti-discrimination policies for hiring and recruiting, bring on a diversity director, and submit to monitoring of its hiring records. In its official press release, EEOC New York District Director Jeffrey Burnstein said:

Identifying and resolving age discrimination in employment is critical for older Americans. The ability to find a new job should not be impeded because an employer considers someone the wrong age.

EEOC trial attorney Mark Penzel added:

Applicants rarely know that they have been denied a job because of their age. When the Commission uncovers such evidence, it will act aggressively and doggedly to remedy the violation.

When age discrimination claims arise, they require skilled employment discrimination attorneys to gather the documentation to prove the case. Because many of these cases involve something not happening (i.e. a person not getting the desired job, or being passed over for promotion), it takes an aggressive approach to make the case that the omission was the result of age discrimination and not some other, legal factor.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know what it takes to win an age discrimination case. We can help you understand your rights to get and keep the work you want, and what your remedies might be if you have faced employment discrimination based on your age. Contact Eisenberg & Baum, LLP, today for a free consultation.