Can job applicants bring disparate impact claims under the ADEA?

Americans are living and working longer than in previous generations.  Over the last ten years, the over 45-year-old work force has grown dramatically, from 31.7% of the country’s workforce in 1996 to 39% in 2006 and 44.3% last year.  The percentage is expected to grow even larger, as the number of American workers over the age of 65 is projected to rise sharply.

At the same time, a recent study by the Federal Reserve Bank of San Francisco seems to confirm previous studies that show that older workers in general face significant discrimination in hiring, with older female workers facing even more age discrimination than their male counterparts.  Discrimination against older employees may stem from several misinformed worries employers have about hiring older employees, including an assumed lack of flexibility or unwillingness to embrace change, likelihood of leaving employment, and the prospect of longer absences due to sickness.

Older workers may especially face discrimination applying for or working in technology companies.  From 2008 to 2015, employees or applicants at Silicon Valley’s 150 largest tech companies filed 226 complaints of age discrimination, 28% more than racial bias complaints filed against those companies and 9% more than complaints based on gender bias.  While recruiting, tech companies often cloak their prejudice in a desire select employees that can present a youthful, progressive image to customers and investors and often worry that older workers may not be willing to work long hours or stay up-to-date with technical skills.  Whether through deliberate discrimination or facially neutral recruiting tactics (such as hiring only recent graduates), these companies have established a younger workforce than other companies; whereas the median age for an American worker is 42, the median age at companies such as Apple, Google, and Facebook are 31, 30, and 29 respectively.

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Today’s News & Commentary — September 27, 2016

Last night’s presidential debate between Hillary Clinton and Donald J. Trump featured discussions of jobs, labor and other topics related to labor and employment law.  CNN has a general summary, while Lexology published a summary for employers.  The Detroit Free Press reports on how how the United Auto Workers and Ford fact-checked Mr. Trump on jobs-related claims in real time via Twitter.

The U.S. Department of Labor is bringing suit against one major American employer, and conducting a comprehensive investigation into the practices of another.  First, in a move that will affect discussions of diversity in Silicon ValleyThe New York Times reports that the DOL “sued Palantir Technologies, a prominent data analytics start-up, claiming systemic discrimination against Asian job applicants.”  The DOL “claimed that Palantir’s hiring processes for software engineering positions placed Asians at a disadvantage.  Qualified Asian candidates were routinely eliminated during the résumé screening and telephone interview process, the government said.  The company also relied on an employee referral system that favored non-Asian candidates.”  Second, Reuters notes that “Secretary Thomas Perez on Monday pledged to conduct a ‘top-to-bottom’ review of all cases, complaints and other alleged violations that the department has received concerning Wells Fargo in recent years.”  NPR notes that some former Wells Fargo employees have brought a class action lawsuit, alleging they were punished for not breaking the law.  Wells Fargo is facing fallout from the “creation of millions of secret, unauthorized bank accounts.”

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Fuzzy Math: Silicon Valley’s Diversity Statistics

Many articles have been written about a diversity crisis in Silicon Valley, perhaps due to tech firms’ initial resistance to releasing employee demographics.  Enter Tracey Chou, an early Pinterest engineer, who launched a (still running) Google spreadsheet of the number of female hires.  Around the same time, several of the largest tech companies released diversity statistics from their Department of Labor’s EEO-1 reports, with several publications displaying side-by-side comparisons.  But if a picture (or chart) is worth a thousand words, then it’s important to understand what it does and doesn’t say.  In this post, I’ll focus on three ways employers can shift diversity stats from simply being self-congratulatory, to meaningful for potential employees deciding between firms.

The Atlantic points out:

It has become a grand gesture in tech this summer for big companies to release demographic data about their workforces…that formula has now become the de facto way to share (and apologize for) diversity data in Silicon Valley.  It goes something like this:

  1. Write a blog post about the importance of transparency, acknowledging how your company has a long way to go and outlining a few diversity-related initiative
  2. Include a sleek graph showing how few women and minorities you employ
  3. When asked to talk about the issue, decline interview requests and redirect people back to the original blog post

Diversity disclosure can help employees to pick the firm that is best for them, as disclosure is generally important.  But there’s a reason I say can, not will: data without context doesn’t mean very much.  Data’s potential power is in confirming individual “anecdata” as a trend.

Specifically, employees would benefit if employers provided baseline numbers, standardized and disaggregated their data.

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Today’s News & Commentary — November 2, 2015

Local Labor for Bernie.  Presidential Candidate Bernie Sanders, who has represented Vermont in Congress for over two decades, is enjoying home-turf advantage as he campaigns in New Hampshire.  Recently, he has won the endorsement of three New Hampshire labor unions: the American Postal Workers Union (APWU) chapter, International Brotherhood of Electrical Workers (IBEW) Local 490, and Hanover’s Service Employees International Union (SEIU) Local 560, reports Seven Days, a Vermont newspaper.  Janice Kelble, speaking on behalf of the APWU, called the decision a “no brainer,” and an IBEW member, Richard Maynard, remarked “I don’t see how any union in the state of New Hampshire would not want him.” Sanders, however, has not fared as well with national labor organizations.  Despite his consistent pro-labor stance throughout his tenure in office, the only nationwide labor group to buy into his camp is the National Nurses United.

Talk of the desirability of importing foreign professionals through the H-1B visa program has lit up conservative media outlets after CNN’s coverage of the third Republican debate last Wednesday.  So what are H-1B visas?  They are the principle immigration vehicle for the admission of temporary professional workers with highly-specialized skills.  Currently the H-1B is capped at 65,000 per year, and much of the current debate is what to do with that ceiling.

At the debate, Republican presidential candidate Donald Trump indicated that he is in favor of retaining foreign talent in the U.S. so long as it enters legally, “We have a country of laws . . . It’s fine if they come in, but they have to come in legally,” reports Business Today.  Marco Rubio, another presidential hopeful, also defended the program on air.  He argued that until America can “modernize higher education,” it is critical that we keep the program to fill labor shortages at technology companies and other job-creating enterprises.  Yet favorable opinion of the H-1B program is far from unanimous among the conservative wing.  Ian Tuttle, writing for the National Review, called out the program as a subterfuge for Silicon Valley companies looking to keep costs down, “There is ample evidence that Silicon Valley is using the H-1B program simply to cut labor costs.” Continue reading

Today’s News & Commentary – November 24

Over the weekend, President Obama defended the legal reasoning behind his immigration executive action, arguing that he has been “very restrained” in his use of executive authority.  President Obama’s interview aired Sunday on the ABC News program “This Week,” where he said that both Democratic and Republican presidents had previously taken similar executive actions.  “The fact is that we exercise prosecutorial discretion all the time,” he said, adding that Republicans remained free to pass an immigration law that would overturn his actions.  In response, Senator Ted Cruz (R-TX) called President Obama’s actions a “stunning and sad display by the president” on Fox News Sunday.

The New York Times reported on the reactions of Silicon Valley technology workers to President Obama’s executive order on immigration.  “The technology industry has been pushing for changes to the nation’s immigration policy for more than a decade to allow more skilled workers into the country,” and though the President’s recent executive action may “fall short,” some immigrants working in technology were “heartened by the president’s actions.”  Responses in teh article ranged from supporting of a streamlined visa process to very skeptical.  “He talked eloquently and in depth about low-wage workers, and I appreciate that,” said Carl Guardino, chief executive of the Silicon Valley Leadership Group, referring to the president’s speech on Thursday. “But from an innovation economy perspective? I wasn’t expecting a lot, and it lived up to my expectations.”

Reuters reports that Israel’s Finance Minister will start negotiations with the country’s main labor union Histadrut in a bid to avert a national strike over demands to sharply raise the minimum wage.  Finance Minister Yair Lapid invited the Histadrut Chairman and the head of Israel’s Manufacturers’ Association for talks on Monday aimed at preventing a strike that would likely shut down Israel’s airport, trains, seaports, and government services.  According to the Organization for Economic Co-Operation and Development (OECD), Israel’s real minimum wage was in the middle of the pack – 12th out of 25 countries in 2013. In dollar terms, it was $14,291 a year in 2013, just behind the United States’ $15,080. Continue reading