New Evidence of Age Bias in Hiring, and a Push to Fight It

New York Times - Patricia Cohen

Across the United States, mammoth corporations and family businesses share a complaint: a shortage of workers. As the unemployment rate has tunneled its way to a half-century low, employers insist they must scramble to lure applicants.

The shadow of age bias in hiring, though, is long. Tens of thousands of workers say that even with the right qualifications for a job, they are repeatedly turned away because they are over 50, or even 40, and considered too old.

The problem is getting more scrutiny after revelations that hundreds of employers shut out middle-aged and older Americans in their recruiting on Facebook, LinkedIn and other platforms. Those disclosures are supercharging a wave of litigation.

But as cases make their way to court, the legal road for proving age discrimination, always difficult, has only roughened. Recent decisions by federal appeals courts in Chicago and Atlanta have limited the reach of anti-discrimination protections and made it even harder for job applicants to win.

It is complicating an already challenging juncture of life. Workers over 50 — about 54 million Americans — are now facing much more precarious financial circumstances, a legacy of the recession.

More than half of workers over 50 lose longtime jobs before they are ready to retire, according to a recent analysis by the Urban Institute and ProPublica. Of those, nine out of 10 never recover their previous earning power. Some are able to find only piecemeal or gig work.

       *           *            *

Repeated inquiries can go unanswered, like space probes lost in a distant galaxy. In one of the most comprehensive studies, résumés were sent out on behalf of more than 40,000 fictitious applicants of different ages for thousands of low-skill jobs like janitors, administrative assistants and retail sales clerks in 12 cities. In general, the older they were, the fewer callbacks they got.

Those in their 60s “never do better, and often do worse,” than those a decade or two younger, said David Neumark, an economics professor at the University of California, Irvine, who oversaw the research.

It is toughest for women, who suffer more age discrimination than men starting in their 40s, the researchers found. “The evidence of age discrimination against women kind of pops out in every study,” Mr. Neumark said.

       *           *            *

The Communications Workers of America has filed a lawsuit on behalf of millions of older Americans against Amazon, T-Mobile and Cox Communications, accusing them and hundreds of other major employers of systematic age discrimination in hiring based on targeted online advertising.

The union and several workers have also filed complaints with the Equal Employment Opportunity Commission against more than 70 employers and employment agencies related to age discrimination in recruiting. It expects that some of those will turn into class-action lawsuits.

By exposing so much of the help-wanted process on the internet, “the transformation to digital recruiting has shined a spotlight on how discrimination happens, and it’s made it much easier to do so,” said Peter Romer-Friedman, a lawyer at Outten & Golden working with the union. “We’re going to start going after these companies, one by one.”

And in a broad settlement with civil rights groups and the union, Facebook agreed to eliminate the ability of advertisers to screen out minority groups, women or older job seekers from seeing particular help-wanted listings.

Facebook itself can control which ads users see by delivering them based on age, gender and ZIP code.

“We want the E.E.O.C. to declare that this type of exclusionary advertising is unlawful” on any online platform, Mr. Romer-Friedman said.

Joe Osborne, a Facebook spokesman, said the company had taken steps to combat hiring discrimination and was exploring what more to do.

       *           *            *

The United States Court of Appeals for the Seventh Circuit did not agree. In a ruling this year supporting CareFusion, it stated that recruiting practices that have the effect of screening out older applicants — what is known in legal terms as having a “disparate impact” — did not violate the law.

The decision mirrored one involving R. J. Reynolds Tobacco made earlier by the Court of Appeals for 11th Circuit in Atlanta, which the Supreme Court declined to review. It ruled that unlike employees already on the payroll who can show that a policy has a negative impact on a group regardless of the motivation, applicants would have to prove intentional discrimination.

       *           *            *