U.S. Chamber’s Abhorrent Justification of Age Discrimination in Hiring

In the tradition of Scrooge, the patriarchy and the Confederacy of the old South, the U.S. Chamber of Commerce has publicly endorsed age discrimination in hiring as both sound policy and reasonable.

The Chamber asserts its cynical position in an amicus brief filed in the case of  Richard Villarreal, 49, who filed a half-dozen applications to work as a Territory Manager for R.J. Reynolds Tobacco, Co. from 2007 to 2010, when he discovered that Reynolds, working with national staffing agencies, used “resume review guidelines” to weed out the Internet applications of older workers. Reynolds’ guidelines specified that “desired” candidates had “2-3 years out of college” and told recruiters to “stay away from” candidates with eight to 10 years of experience. Villarreal’s resume and the resumes of hundreds of other older job applicants were dumped into a digital trash can.

Fortunately, a three-judge panel of the U.S. Court of Appeal for the 11th Circuit in Atlanta split from several other federal circuits and  rejected the Chamber’s argument.  In a 2-to-1 vote, a panel of three 11th Circuit judges voted that job applicants are permitted under the Age Discrimination in Employment Act of 1967 (ADEA) to file disparate impact lawsuits challenging employer policies and practices that discriminate on the basis of age. (Note: the full appeals court overturned the panel’s decision in October 2017 and ruled that job applicants cannot sue an employer under the Age Discrimination in Employment Act for promulgating policies and practices that discriminate in hiring on the basis of age.)

In its ‘friend of the court’ brief, the Chamber concedes that older workers have far less protection against invidious discrimination under the ADEA than is available to workers on the basis of race, sex, religion, color and national origin under Title VII of the Civil Rights Act of 1964.  The Chamber said the U.S. Congress, in 1967, had “sound policy reasons” to deny older workers equal protection because “[o]lder workers did not face societal headwinds that might lock them into a lifetime of inferior job prospects ….”

Few would argue that slavery was moral or justified because it was legal – This is essentially the Chamber’s argument with respect to age discrimination.

The Chamber’s arguments are terribly flawed. For example, American law permitted the  enslavement of African Americans until the passage of the 13th Amendment to the U.S. Constitution in 1865 and women were denied  the right to vote until 1920.  This in no way justifies slavery or the disenfranchisement of women. Neither does the fact that Congress 50 years ago buckled to business interests and passed an age discrimination law  that was weak and riddled with loopholes.

The Chamber’s reasoning is illogical.  Would the Chamber argue that blind or deaf workers are ineligible for the protection of the Americans with Disabilities Act if they were born with normal sight or hearing but later suffered impairment?  They did not experience a lifetime of inferior job prospects. Nor does Title VII omit immigrants with advanced educations who became subject to discrimination after they arrived in the U.S.   

The Chamber also argues that age discrimination in hiring has “enormous benefits” for  employers because it represents a “key means for employers to access the cutting-edge advances from colleges and universities, and they permit companies to create robust programs for developing homegrown leaders.”   (I feel like I’ve heard it all before – see earlier discussion of slavery and oppression of women.) The Chamber notes that even the U.S. Equal Employment Opportunity Commission (EE)C) operates a discriminatory hiring program, the EEOC Attorney Honor Program, which restricts eligibility to  “third-year law student[s], “full-time graduate law students[s],” and “Judicial Law Clerk[s] whose clerkship must be [their] first significant legal employment following [their] graduation.”

In fact, the purpose of all discrimination laws is to protect workers who are members of certain discrete groups that are subject to irrational discrimination on the basis of fear, animus and false stereotypes. As the Villarreal case so clearly demonstrates, older workers are subject to epidemic age discrimination in hiring, which damages not only them but society as a whole.  A major reason the ADEA was passed in the first place is that age discrimination reduces the nation’s productivity and costs taxpayers billions in health and social welfare costs.

It is true that Congress in 1964 rejected a proposed amendment to include age as a protected class under Title VII.  Congress ostensibly felt more study was needed about age discrimination. After three years of intense lobbying by business interests, Congress passed the ADEA, which was weak and riddled with loopholes.  This is not a reflection of the lack of entitlement of older workers’  to equal justice but of the prejudices of the time and the influence of money on Congress.

The U.S. Constitution guarantees all Americans the right to equal justice under the law; that older workers have been denied this right for 50 years is a national disgrace.

The U.S. Chamber’s Litigation Center filed the amicus brief last May in the case of  Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc. and CareerBuilder, LLC.  Representing the Chamber were attorneys Kate Comerford Todd and Warren Postman, as well as  Donald R. Livingston,  Hyland Hunt and  Z.W. Julius Chen of the Washington, DC , law firm, Akin, Gump, Strauss, Hauer & Feld. (I’m sure your parents are very proud!)