PwC Deal Targets Recruiting That Can Weed Out Older Workers (1)

March 4, 2020, 6:32 PM; Updated: March 4, 2020, 9:19 PM

A proposed settlement between PricewaterhouseCoopers and job applicants over 40 years old reveals the growing tensions between an aging workforce and the recruiting efforts that can leave out these older workers.

Companies have been sued in recent years for practices that can directly or indirectly screen out older job seekers, such as college campus recruiting or imposing experience caps on postings for jobs. But applicants turning to the federal law that protects older workers from discrimination often have faced headwinds in litigation. The uphill battle is evident in cases around the country and has high stakes in a workforce that shows more older employees in the field.

PwC will end a four-year discrimination lawsuit if a federal judge approves a proposed settlement that was announced by attorneys with AARP Foundation and Outten Golden on Wednesday. It could cover as many as 5,000 people. The financial giant joins other companies targeted for similar recruitment practices or for allegedly shedding older workers in favor of younger ones, including Google, Inc., IBM Corp., and HP Inc. Google reached an $11 million settlement last year with older job applicants and agreed to change some of its practices.

As part of the $11.6 million deal, PwC said they are committed to addressing tactics that single out younger workers, including stopping asking job seekers when they graduated from college, which would reveal their age, and to advertise more broadly to older applicants. The lawsuit targeted the company particularly for its practice of college recruiting. The company will enable workers to participate in the campus recruiting events of the colleges they attended, the company said.

PwC’s Chief Purpose & Inclusion Officer, Shannon Schuyler, said in a statement, “PwC is proud to affirm its commitment to identify and hire older workers. The commitments in this settlement will help PwC remain one of the most sought-after employers in the country. Our workforce represents the diversity of perspective, life experiences and backgrounds, and welcomes talented workers across the age spectrum.”

‘Disparate Impact’

This case was among those percolating in the courts that test the rights of job seekers, not just current employees. The AARP has pushed for an interpretation of the Age Discrimination in Employment Act that gives job applicants the power to sue employers over policies that disproportionately weed out older workers. Title VII of the 1964 Civil Rights Act expressly allows applicants, as well as employees, to bring these types of “disparate impact” discrimination claims based on race, sex, national origin, color, and religious bias.

“Age discrimination in hiring is a significant problem today. Congress passed ADEA in 1967 in part to tackle long-term unemployment for older workers getting locked out of the job market,” said Outten Golden’s Jahan Sagafi, who represents the workers. “We bring these cases to take on that challenge. Age discrimination is not only unfair and un-American, but it’s also an irrational market failure—a discriminator is artificially limiting the pool of skilled workers it can benefit from.

“That legal question is really important to older workers,” Sagafi said. He represented the workers with AARP Foundation attorney Dan Kohrman.

The Equal Employment Opportunity Commission held the view that the statute does provide that protection to job applicants, the same as Title VII. The agency advises against asking for graduation dates and targeting job posting only to young workers to avoid discrimination.

The AARP experts also targeted job posts that suggest recent college graduates or digital natives are encouraged to apply, as a prevalent way that companies neglect to include older workers. They say that age-based language could be evidence of discrimination. A search conducted by AARP in October on three major sites for job postings—LinkedIn, Indeed.com, and Monster.com—turned up thousands of want ads that use phrases such as “recent college graduate” or “digital native.”

Older job seekers, who account for more than 20% of the nation’s workforce—up from 13% just 20 years ago, and still rising—are likely to pick up on these signals and decide not to apply, according to the AARP.

Another contested tactic brewing in the courts is the practice of setting a cap on years of experience for applicants. A lawyer who applied for a job with a seven-year experience cap failed to convince the U.S. Court of Appeals for the Seventh Circuit that his bias claim should be covered under the federal law.

The U.S. Supreme Court declined last October to consider that issue.

Dale Kleber was 58 when he applied for a senior counsel position at medical supply subsidiary of Becton Dickinson. He wasn’t granted an interview and someone 30 years his junior was given the position. Other lawsuits have tackled this issue, and the Supreme Court also previously declined to consider a similar challenge from the Eleventh Circuit.

In the case against Google, the company agreed to an average payout of more than $35,000 for 227 older job applicants who joined the age discrimination class action. The settlement also called for the Alphabet Inc. unit to train employees and managers about age bias, to create a committee focused on age diversity in recruiting, and to ensure that complaints are adequately investigated.

The case is Rabin v. PricewaterhouseCoopers, LLP, N.D. Cal., No. 16-cv-02276, settlement proposed 3/3/20.

(Updated with additional reporting throughout and attorney comments in paragraphs seven and eight. )

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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