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Texas Roadhouse Age Bias Trial Shows Relevance Of ADEA

Law360—Paul W. Mollica and Jahan C. Sagafi

(This article originally appeared on Law360: https://www.law360.com/classaction/articles/887362/texas-roadhouse-age-bias-trial-shows-relevance-of-adea )

This year we celebrate the half-century mark of the Age Discrimination in Employment Act of 1967. The ADEA is alive and well — an energetic 50-year-old — providing the basis for class allegations in such disparate cases as the U.S. Equal Employment Opportunity Commission’s ongoing class action trial against Texas Roadhouse in Boston, a class action against PricewaterhouseCoopers in San Francisco and a case against R.J. Reynolds in Georgia.

Many of the Americans suffering from economic dislocation and looking to break into new job opportunities are over 40 years old, making the ADEA relevant to many job seekers. Importantly, Congress enacted the ADEA as a tool to combat poverty, specifically targeting the “grave” problem of “long-term unemployment with resultant deterioration of skill [and] morale.”

Safeguarding the right to search for work, regardless of age, is thus a critical mission of the EEOC, plaintiffs’ lawyers and nonprofit advocates. Today, older workers remain unemployed longer periods than younger ones (according to U.S. Department of Labor data). Older workers meet a wall of resistance at the application desk. Employers have proven slow to hire applicants who might come with higher health care costs, the perceived need for retraining, supposedly declining skills, a possibly shorter future with the company or (especially in retail) an aging appearance.

In light of this difficulty, the ADEA has significant value in contesting discrimination in hiring.

In the EEOC’s current jury trial in Boston, EEOC v. Texas Roadhouse Inc., No. 1:11-cv-11732 (D. Mass.), the commission charges that the national casual-dining establishment discriminated nationally in hiring older applicants for front-of-house jobs, such as server, host, busser and bartender.

For many middle-aged and older Americans, an entry-level job at a chain restaurant can be a step up from their current circumstances — too often including long-term unemployment. Perhaps because this is not well known, Texas Roadhouse suggested in its opening argument that few older, experienced servers would want to work for a chain restaurant where the average bill was just $16 per person.
Nonetheless, many thousands of workers age 40 and over have applied at Texas Roadhouse locations. According to the EEOC’s expert analysis of hiring data, those applicants were rejected at a jaw-dropping rate. The parties agree that, during 2007 to 2014, fewer than 3,000 of the company’s 181,583 hires nationwide (less than 2 percent) were over 40. The likelihood of an age-neutral hiring policy yielding that result, according to the EEOC’s expert, is about one in 781 billion.

Because discrimination class actions seldom go to trial — let alone pattern-or-practice hiring cases like this one — the testimony gives us a rare, close-up look at the possible areas of disconnect between formal corporate equal employment opportunity policies and the actual, on-the-ground realities.

The company, for instance, banned questions about applicants’ ages. Yet files at different locations were festooned with sticky notes like “older, doesn’t fit the Texas Roadhouse culture,” “older,” “old chick,” “middle-age, doesn’t really fit our image,” “older guy, seems nice,” “a little old, but says she can hang,” “super old, nice guy,” “mature,” and “OLD.” Older applicants were reportedly often told that the chain catered to a young clientele, and that they simply didn’t fit in.

Such cases highlight the vulnerability of any hiring policy with a top-down model — molded to the corporate structure, underscored by its training programs — in an environment that conspicuously caters to youth. Managers know how to pick up corporate signals, when their hiring decisions can mean life or death to their profitability and advancement.

One piece of evidence in the Texas Roadhouse case is corporate training photos of “legendary” employees that emphasized young-looking women. One executive reportedly admitted that "[a]ll you have to do is walk in the front door of our restaurants and see what people look like" and that Texas Roadhouse liked to hire pretty, young women because that was its look.

Similarly, the plaintiffs in the pending Rabin v. PricewaterhouseCoopers LLP, No. 16-cv-02276-JST (N.D. Cal.) proposed collective and class action asserting ADEA hiring claims, citing, in part, PwC’s alleged preference for hiring millennials for entry-level accounting positions. In these class action challenges, much of the battle focuses on whether there is a discriminatory practice notwithstanding a nondiscriminatory policy, just like in individual litigation.

The interest in ADEA filings is likely only to grow with the aging work population. The EEOC adopted a strategic enforcement plan that gives top priority to class-based recruitment and hiring practices that discriminate against older workers, among others.  Under the leadership of former General Counsel David Lopez (now a partner at Outten & Golden LLP), the agency prosecuted several of these cases nationwide, including the case against Texas Roadhouse.

And the Third Circuit just last month confirmed that ADEA plaintiffs define the age subgroup on behalf of whom they bring class claims. Karlo v. Pittsburgh Glass Works LLC, No. 15-3435, 2017 (3d Cir. Jan. 10, 2017). So, instead of having to challenge adverse actions solely against those 40 and over, plaintiffs may elect to limit their claims to a subgroup of workers or applicants (e.g., age 50 or 55 and over). Statistically, the impact of discrimination on these relatively older subgroups is often more glaring.

The hiring of workers 40, 50, 60 and over is more than an act of good corporate citizenship or even maximizing competitiveness and productivity. It’s a legal imperative, one that requires corporate commitment from the top down. Fifty years on, the ADEA remains a critical tool in ensuring that the United States remains a land of opportunity and fairness for all who seek an opportunity to contribute in the workforce.

Attorneys from Outten & Golden LLP represent the plaintiffs in Rabin v. PricewaterhouseCoopers LLP.