Currently, the ability for companies to filter resumes through subcontractors like CareerBuilder, Key Services Inc. and Pinstripe Inc. have made it harder for age discrimination through the process of hiring and to be detected. R.J. Reynolds Tobacco Co., one of the largest tobacco companies in the US, has recently been sued for age discrimination regarding its favoritism in hiring travelling sales associates within an age group of 35-years-old or younger.
Details of the Case
The plaintiff in this case, Richard Villarreal, applied to be a sales manager in 2007 at the age of 49. Unknown to Villarreal at the time, the online application site had guidelines to “Stay Away From” candidates “35 years and over” and applicants who were “in sales for 8-10 years.” While on the other hand, the subcontractor also had guidelines to look for “recent college grad” applicants who were “35 and under.” These guidelines are what led the subcontractor to discard nearly 20,000 other resumes in 2007, and of the 1,000 sales managers who were hired between 2007 and 2010, only a handful were over the age of 40.Villarreal was not aware that this practice was in place until a whistleblower exposed the practice in 2010, when Villarreal sued.
Normally, persons who are denied employment based on their race, gender, religion or other form of discrimination are able to sue under the Civil Rights Act of 1964. Age discrimination while in the workplace, on the other hand, is usually litigated under the Age Discrimination in Employment Act (ADEA) of 1967.
However, the defense argued that Villarreal wasn’t covered by the ADEA because the language in the Act does not directly include job applicants as a protected party. Additionally, the defense contested that since Villarreal did not “diligently” inquire as to why his application was denied, and thus failed the requirement of diligent pursuit of legal action in the case. Though, the act of Villarreal inquiring why he was rejected employment seems benign, and it was only after the whistleblower exposed the ADEA violations that Villarreal became aware that he was discriminated against.
The District Court presiding over the case in Atlanta accepted the defense’s arguments and dismissed the case, as did the 11th Circuit Court of Appeals last fall. It is now under consideration by the US Supreme Court.
Possible Implications if the Case Stands
The ADEA has been experiencing challenges for the past 25 years. Senator Robert Casey Jr. of Pennsylvania, and board member Senate Special Committee on Aging, claims “the courts have chipped away at the nation’s age-discrimination laws.”
The ADEA, which closely resembles the Civil Rights Act in its language, has a limited scope in its range of protections as the document also recognizes that age can be taken into consideration when others factors such as race and gender shouldn’t. Though, the challenges to the doctrine directly undermine the language used. For example, the clause being ruled against in this case specifically states that it is unlawful to “fail or refuse to hire or to discharge any individual… because of such individual’s age.”
Teresa Ghilarducci, director of the Retirement Equity Lab at The New School for Social Research, claims, “Discrimination has ripple effects and can become self-reinforcing. People who think they’re going to be rejected from a job often beat the discriminator to the punch by not applying or leaving the labor force altogether.” Ghilarducci conducted research regarding age discrimination at The New School, and found that 10 percent of the 27 million Americans aged 55 through 64 are unemployed, partially employed or are between retirement and continuing work.
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