Get access to the exclusive HR Resources you need to succeed in 2018!
SHRM board member David Windley discusses how unconscious bias can derail workplace diversity efforts.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
A federal court ruled Nov. 9, 2015, that the Equal Employment Opportunity Commission (EEOC) is authorized to bring pattern-or-practice discrimination claims under the Age Discrimination in Employment Act (ADEA).
The U.S. District Court for the Southern District of Florida, in
EEOC v. Darden Restaurants Inc., denied Darden’s motion to dismiss an EEOC lawsuit against the restaurant group for discriminating against workers ages 40 and older in hiring for their Seasons 52 chain. The defendants argued that the statute does not reference pattern-or-practice claims and, further, that a 2009 Supreme Court case ruled against bringing these claims under the ADEA.
The EEOC alleged that Darden has maintained a standard operating procedure of denying employment to applicants in the protected age group through their centralized hiring process. The agency claimed that hiring officials told unsuccessful applicants in the protected age group that “you are too experienced”; “we are looking for people with less experience”; “we are not looking for old white guys”; “we are looking for ‘fresh’ employees”; and that Seasons 52 wanted a “youthful” image.
The EEOC further alleged that a sampling of hiring data across Seasons 52 locations nationwide shows that the hiring of applicants in the protected age group is significantly below what would be expected based on applications submitted and local census data.
In addition to a pattern-or-practice class claim, the EEOC asserted intentional discrimination claims on behalf of two men who were both turned down for employment by the Seasons 52 restaurant in Coral Gables, Fla. When one 49-year-old man went to the restaurant to inquire about his application, he claimed that he was asked how old he was. He was then told there was no need for him to check back and was not hired.
“We deny the allegations,” said Darden spokesman Rich Jeffers. “We are proud of our commitment to diversity, and the EEOC’s claims are inconsistent with our business philosophy and the manner in which we operate. We will defend this claim vigorously.”
Darden has more than 40 locations of Seasons 52 in 18 states, according to its website.
Pattern-or-Practice Claims Authorized Under the ADEA
Darden argued that the statutory language in the ADEA does not authorize the EEOC to bring pattern-or-practice claims, unlike Title VII of the 1964 Civil Rights Act, which does reference pattern-or-practice actions by the government. The restaurant chain did acknowledge, however, that case law has developed permitting pattern-or-practice claims under the ADEA but asked the court to abandon that precedent and strictly read the statute so as not to permit these claims.
In order to establish age discrimination under the ADEA, the plaintiff must show that: (1) he was between the ages of 40 and 70; (2) he was subject to adverse employment action; (3) a younger person filled the position; and (4) he was qualified to do the job.
Plaintiffs may establish prima facie cases of age discrimination by presenting direct evidence of discriminatory intent or by demonstrating a statistical pattern of discrimination.
“When you’re defending individual age discrimination claims, the prima facie case [standard] is pretty easy to meet,” said Terri Patak, an employment and labor law attorney with Dickie, McCamey & Chilcote, based in Pittsburgh. “Once employees meet that burden, the employer needs to show that they had a legitimate business reason for making the adverse decision. Once that happens, then the burden shifts back to the employee to show that there was some pretext in the employer’s adverse action.”
In pattern-or-practice claims, the plaintiff must show, by a preponderance of the evidence, that the discrimination was the company’s standard procedure rather than an unusual practice. The plaintiff may show the pattern-or-practice by way of statistical data, however, the “usefulness [of the data] depends on all of the surrounding facts and circumstances,” the court said.
The primary difference in defending a pattern-or-practice claim is the presumption that attaches once the plaintiffs meet their initial burden, Patak said. “Once the employees meet the initial burden, then a rebuttable presumption exits, that each plaintiff was discriminated against because of his or her age. Employers then have to show by clear and convincing evidence that each decision was not made in furtherance of a discriminatory policy or practice. It’s much more difficult for an employer to defend these claims for obvious reasons,” she said.
Pattern-or-practice age claims may be harder to defend for another reason. “Unlike race, which is always irrelevant, age is not,” said Jonathan Segal, a partner at Duane Morris, based in Philadelphia, and also the managing principal of the
Duane Morris Institute, which provides training for human resource professionals.
“Retirement is a reality that employers need to consider in their planning,” he said. But legitimate business discussions in terms of succession planning may be characterized as evidence of age bias and questions about retirement plans may be used later as evidence of age animus if adverse action is taken against certain employees, Segal explained.
Darden also argued that the Supreme Court ruling in
Gross v. FBL Financial Services Inc. overruled prior precedent permitting pattern-or-practice claims under the ADEA. In
Gross, the Supreme Court held that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action” and that “the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when plaintiff has produced some evidence that age was one motivating factor in that decision.”
The Supreme Court’s holding was premised on the fact that Title VII was amended to expressly adopt a “motivating factor” standard for discrimination rather than a but-for inquiry, whereas the ADEA was not amended in the same fashion, the district court said.
The district court disagreed with the defendant’s presumption, concluding that “absent a Supreme Court holding that expressly disagrees with the jurisprudence … that have permitted pattern-or-practice claims in ADEA cases, this court is bound by the controlling authority and persuaded by others permitting such actions. Accordingly, the court concludes that the EEOC is authorized to bring a pattern-or-practice claim against defendants under the ADEA.”
Darden case is very important, Segal explained, because a record 1 in 5 workers are now age 55 or older. “Even if the manager does not say ‘you are too experienced’ or something like that, some employers do not consider for jobs those who are considered overqualified. That practice may be seen as having the purpose of excluding older workers, or at least having an adverse impact on older workers,” he said.
Segal noted that conducting individualized assessments of applications, instead of relying on across-the-board hiring policies, is necessary to minimize the legal risk of pattern-or-practice age claims—and to minimize the business risk of excluding talent.
Roy Maurer is an online editor/manager for SHRM.Follow him
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
HR Education in a City Near You
SHRM’s HR Vendor Directory contains over 3,200 companies