Corporations Point to Age Discrim. in Hiring by Feds

You might think it would be an embarrassment to our nation’s largest employer – the federal government – that corporate America is defending age discrimination in hiring by pointing out the U.S. government engages in the same behavior.

Most recently, the Equal Employment Advisory Council (EEAC), an association of America’s 250 largest corporations, filed a friend-of-the-court brief in an age discrimination case in which it opposed allowing older job applicants to file disparate impact lawsuits challenging broad-based discriminatory hiring practices.  If they are allowed to do so, the EEAC warns, numerous federal programs “most certainly will be impacted… ”

The EEAC goes on to cite various federal training, education and hiring programs that are closed to older workers, including the AmeriCorps National Civilian Community Corps, a residential program open to individuals between the ages of 18 and 24 who perform team-based national and community service, including disaster response and environmental stewardship. Members receive $4,000 for ten months of service, health benefits, $400 a month to pay for childcare and an educational award of $5,730.

Come to think of it, why can’t a 40-year-old join the Corps and dedicate a year of his/her life to community service for the same amount of remuneration?

Last May, the U.S. Chamber of Commerce filed a friend-of-the-court brief in which it defended age discrimination in hiring by noting that even the U.S. Equal Employment Opportunity Commission (EEOC) does it. The Chamber cited the EEOC Attorney Honor Program, which employs in “permanent” positions “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.”  The EEOC states on its web site that graduates of the Honor Program go on to serve as trial attorneys or Administrative Judges in the EEOC’s District Offices. The  EEOC program appears to have a disparate impact upon older workers because the vast majority of  law school students and graduates are under the age of 40.

The  EEOC is the federal agency that enforces the Age Discrimination in Employment Act of 1967 (ADEA).

Meanwhile, some of America’s largest corporations last summer invoked President Barack Obama’s 2010 executive order establishing the Pathways “Recent Graduates” Program, which permits federal agencies to engage in age discrimination in hiring.  These corporations, including Microsoft and Starbucks, announced a plan to hire 100,000 workers between the age of 16-to-24 by 2018. The press release for the “100,000 Opportunities Initiative” begins this way:  “Top U.S. – Based Companies Create Pathways to Economic Opportunity for Young Americans.” [Emphasis supplied]   Obama’s executive order arguably operates as a legal exemption to the ADEA for federal agencies but it certainly does not permit private sector corporations to blatantly violate the ADEA.  Nevertheless, the 100,000 Initiative was endorsed by U.S. Labor Secretary Thomas E. Perez.

For the record, the  federal government, as well as most private sector employers with more than 20 employees, is prohibited under the ADEA from using age as a factor in hiring,  recruitment and  training  programs. The EEOC takes the position that age discrimination also is prohibited in apprenticeship programs except under limited circumstances.

The EEAC and Chamber’s friend-of-the-court briefs were filed in the case of Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc. and CareerBuilder, LLC.  A three-judge panel of the U.S. Court of Appeals for the 11th Circuit recently ruled 2-1 that Richard Villarreal, an older job applicant, could use the disparate impact theory of discrimination to challenge  “resume review guidelines” adopted by Reynolds allegedly to weed out applications submitted by older workers. The EEAC and the Chamber argue the ADEA permits only current employees – not job applicants – to use the disparate impact theory to challenge broad employment policies that adversely affect older workers more than younger workers.