When we hear about age discrimination employment lawsuits, they are typically centered on older workers being let go when a company reorganizes so that less expensive (e.g., younger) employees are retained. Of course more subtle examples of ageism are present in workplaces and we need to be as aware of them as we are of bias against women, the LGBTQ+ community, and racial minorities.
Recently, the US District Court in California allowed an age discrimination case to proceed as a class action. As summarized here, the plaintiffs claim that the company used only college recruiting to bring on entry level hires, hence discriminating against potential hires who were not in college (re: people of 40). As evidence, they present that web postings of the positions only appeared through college recruiting sites and not on their regular career site and that resumes from older workers were regularly rejected. They also argue that the company has a general culture which values younger workers over older ones. The company counters these arguments by saying their process is merit-based and that given the number of candidates who apply, using the current process makes business sense.
There are several aspects of this case which are interesting and instructive:
1) There is nothing inherently wrong with college recruiting, especially for entry level jobs. However, if this is the ONLY way a person can get into the pipeline, by definition you are primarily looking at candidates in their 20s.
2) It shows a presumption that older workers will not take entry level positions. That may be true in some situations, but it is really up to the job candidate to make that determination. If an entry level job pays well relative to the experience necessary, why wouldn’t an older worker take it?
3) Like many class action suits, the statistical data will be a key point in determining if there was adverse impact against those age 40 and older. If, as the company claims, only 3% of college candidates get hired (I can see a huge legal argument about who was an applicant and how many there were), the plaintiffs will have to show that fewer than 2.4% of older candidates (again, a fight over who were actually applicants) were hired for the positions. That seems like a pretty low bar to get over.
4) The company’s second argument that college recruiting is efficient, therefore is OK even if it does discriminate (which they argue it does not), will be a tough one to make. Civil rights laws allow neutral selection techniques to have adverse impact if they are job related, but make no exclusions based on expense. I honestly do not see how this is relevant to the complaint.
This case will take years to wind its way through the courts. However, it does provide a timely reminder to review recruiting processes and valid selection tools for adverse impact based on age and not only race and gender. College recruiting is not in and of itself ageist, but you will want to be sure that it is not the only point of entry into your company.