AARP headquarters in Washington, D.C.
AARP headquarters in Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

Management tactics that weed out older workers have pushed federal regulators and anti-discrimination groups to train an eye on hiring rather than firing when it comes to protecting against age bias, an effort advocates acknowledge is a steeper hill with increasingly narrowed protections for aging workers.

This shift in focus on barriers to hiring for older workers—an issue exacerbated by the aging baby boomer population and the financial crisis—is apparent in recent court battles and was sparked by employer practices that include favoring young workers in online applications and excluding workers with too many years experience.

“Hiring discrimination has always been a problem,” said Laurie McCann, senior attorney at the AARP Foundation Litigation. “We can see a problem and then attack it, but most people don’t know why they weren’t hired. You don’t have that comparison. Lately, we’ve been coming across these blatant policies and practices where it’s obvious that older workers are screened out of an employer’s hiring.”

This effort was dealt a blow this week when the U.S. Supreme Court declined to take up a case, Villarreal v. R.J. Reynolds Tobacco, from the U.S. Court of Appeals for the Eleventh Circuit. The appeals court said the Age Discrimination in Employment Act applies to people who already have jobs, not those seeking them. The ruling could narrow the reach of the 50-year-old federal age discrimination law and made it tougher for workers to prove that they were victims of bias in the hiring process.

The U.S. Equal Employment Opportunity Commission has said age discrimination applies to both employees and applicants.

One of the EEOC’s strategic priorities is hiring-discrimination in the age context, said Cathy Ventrell-Monsees, senior adviser to the chair of the commission. She said online applications, recruiting tools targeting only recent college graduate and maximum years of experience have led to many problematic business practices.

She said the Supreme Court will likely wait for more of the cases to play out before taking up the dispute. Employers cannot put up “arbitrary barriers” to job applicants, she said.

“It’s a straightforward legal issue and the courts are split on it,” she said. “It’s inevitable the Supreme Court will eventually take it.”

Lawsuits mount against hiring practices

In in the recent case, Richard Villarreal, then 49 years old, applied for a job at R.J. Reynolds, which his attorneys claimed used a hiring practice—in reviewing applications—that tossed out 20,000 older applicants.

Villarreal sued in 2012 in the U.S. District Court for the Northern District of Georgia after a whistleblower came forward about the company’s hiring guidelines and handed the documents over to the employee-side firm Altshuler Berzon in San Francisco. The Atlanta firm Rogers & Hardin was among the firms on the complaint with Altshuler Berzon.

The tobacco company, represented by a team from Jones Day, did not address the discrimination claims, but instead the right of the applicant to sue. Jones Day partner Eric Dreiband, who’s being considered to run the U.S. Department of Justice’s Civil Rights Division, argued in the Eleventh Circuit for R.J. Reynolds. The en banc court in October turned down Villarreal’s argument that job applicants—not just employees—can sue an employer for disparate impact based on age.

McCann said she was disappointed the Supreme Court decided not to take the case but said the Eleventh Circuit ruling is not binding in other circuits. The AARP, she said, will continue to fight what she described as “intractable hiring discrimination that contributes to older workers’ historical and persistent overrepresentation among the long-term unemployed.”

The AARP is working on similar cases that raise age-based hiring claims. The case Rabin v. PriceWaterhouseCoopers in the U.S. District Court for the Northern District of California challenges the accounting company’s practice of recruiting college students online using a tool that can only be accessed by applicants with a college affiliation.

The group also is representing a worker in Kleber v. CareFusion Corporation before the U.S. Court of Appeals for the Seventh Circuit. In that case, 59-year-old Dale Kleber applied for a in-house counsel job that specified no more than seven years of experience at the Fortune 500 company.

CareFusion’s lawyers said the post was an “entry-level position that would have less complex job duties” and be under the supervision of a higher-level attorney. “Although Kleber had more than 25 years of legal experience at the time, he chose to apply for the position,” Tobias Schlueter of Ogletree, Deakins, Nash, Smoak & Stewart wrote in CareFusion’s brief on June 21.

McCann said the AARP would like to see the EEOC step into more cases. Last year, 20,800 age-discrimination complaints were filed with the agency.

The EEOC recently held the first in a series of meetings directly targeting questions about age discrimination in the workplace, training a new focus on the issue. Experts testified about how the workforce is growing and how practices have been in place, exacerbated by online applications, that hurt older workers.

Observers say the number of discrimination claims is expected to rise, with 10,000 baby boomers turning 65 every day, according to a 2010 Pew Research Center report. As of 2015, about 33 million Americans over age 55 were in the workforce, and that demographic is expected to make up a quarter of the entire U.S. labor force by 2019.

A 2009 Supreme Court case Gross v. FBL Financial Services said plaintiffs must demonstrate that a person’s age is the motivating factor in being fired or demoted under the federal age discrimination law, a steeper standard than other discrimination cases.

Since the 2008 financial crisis, there has been an uptick in age-discrimination claims, said David Yeremian, a Los Angeles employment lawyer at Yeremian Law. He said the economic downturn hit just as a large generation was close to the end of their traditional careers.

“When we are talking nationally, or under federal law, generally, you can say age discrimination cases are a little tougher than non-ADEA discrimination cases,” said Yeremian. “It’s just more difficult to win an age discrimination case. That definitely sets it apart.”