Older, But Not Wiser

In some quarters, anything that emits the unpleasant odor of discrimination is immediately given an -ism name and small bands of activists will launch war parties to shame anyone besmirching their victims. Outside of a small group of suspect classifications, generally considered immutable characteristics which had traditionally, but should never, play a role in discrimination have been identified and prohibits by law.

Title VII of the Civil Rights Act of 1964, for example, prohibits discrimination based on “race, color, religion, sex and national origin.” This was “sex” in the old sence, as opposed to gender or sexual orientation, although many will argue vehemently that those things are subsumed in the three letters. Left out of the law was discrimination based on age.

At the time, the problem was that older workers were more expensive than younger ones, so businesses would jettison the most expensive at their prime earning years to save a buck. Certain assumptions of the day were built in, such as people keeping a job, remaining with an employer, for most of their career.

No one gave much thought to a 50-year-old starting a job search, except as a result of discriminatory discharge. Old people didn’t need to seek jobs. Young people sought jobs. Old people had them and held onto them until they got the gold watch. So the Age Discrimination in Employment Act of 1967 was enacted,

The Congress hereby finds and declares that-

(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

Congress, so it said, sought to not only protect older employees from being discharged due to age, but from regaining employment as well, although the inclusion of the word “affluence” is irksome. This reflects a bit of the antagonism between younger and older workers, as “affluence” has eluded many younger workers and they aren’t feeling too kindly toward the older ones who enjoyed a more affluent time in the workforce.

The Seventh Circuit, however, didn’t share Congress’ concerns about an old lawyer.

In March 2014, Kleber, an attorney, applied for a senior in-house position in CareFusion’s law department. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.” Kleber was 58 at the time he applied and had more than seven years of pertinent experience. CareFusion passed over Kleber and instead hired a 29-year-old applicant who met but did not exceed the prescribed experience requirement.

Is there some magic about seven years of experience, such that a line in the sand was drawn beyond which no applicant could tread? Section 4 of the ADEA has been held to break down into disparate treatment under subsection (a)(1) and disparate impact under subsection (a)(2).

It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age;

While the first subsection expressly prohibits refusal to hire based on age, the job requirement wasn’t “no one over 30 years,” but no one with more than seven years experience. Much as this seems an obvious proxy for age, and it’s hard to imagine a typical lawyer at 58 having less than seven years experience, it could happen. It could also be a fairly obvious way to circumvent age discrimination. The court didn’t care.

Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2) shows that the language in the former plainly covering applicants is conspicuously absent from the latter. Section 4(a)(2) says nothing about an employer’s decision “to fail or refuse to hire … any individual” and instead speaks only in terms of an employer’s actions that “adversely affect his status as an employee.” We cannot conclude this difference means nothing: “when ‘Congress includes particular language in one section of a statute but omits it in another’—let alone in the very next provision—the Court presumes that Congress intended a difference in meaning.”

They’ve got a point, as subsection 2 says nothing about hiring. Congress could have included the same words, but didn’t. Deliberate? Lousy drafting? Maybe a kid lawyer wrote it? So what if Congress expressed its “meaning” in the preface to the law. It left the words out here and isn’t the really enough?

Kleber urges a different conclusion in no small part on the basis of the Supreme Court’s 1971 decision in Griggs v. Duke Power Co., 401 U.S. 424, where the Court interpreted § 703(a)(2) of Title VII and held that disparate impact was a viable theory of liability. Indeed, Kleber goes so far as to say Griggs—a case where the Court considered language in Title VII that at the time paralleled the language we consider here—controls and mandates a decision in his favor.

The Griggs, a racial discrimination in employment under Title VII decision, gave rise to the disparate impact approach to proof of discrimination. Rarely does anyone scream out, “we ain’t hiring no black dudes,” so the alternative was to prove that a seemingly neutral rule that had a disparate impact on black dudes was sufficient to show discrimination. It was rebuttable, and included exception for bona fide occupational qualifications, but it provided a means of proving discrimination when facial proof of animus wasn’t available.

But the Seventh Circuit wasn’t biting on that either.

A commonsense observation is warranted at the outset. If Kleber is right that Griggs, a Title VII case, compels the conclusion that § 4(a)(2) of the ADEA authorizes outside job applicants to bring a disparate impact claim, we find it very difficult to explain why it took the Supreme Court 34 years to resolve whether anyone—employee or applicant—could sue on a disparate impact theory under the ADEA, as it did in Smith v. City of Jackson, 544 U.S. 228 (2005). There was no need for the Court to decide Smith if (all or part of) the answer came in Griggs.

As is so often the case whenever common sense is used as a rationale, its surface appeal fades upon the most modest scrutiny. Until the Supremes hold Griggs disparate impact applies to ADEA, it’s just a great, logical, completely rational argument. Why did it take so long? Why were hundreds of thousands of defendants sentenced under Mistretta until Booker came along, fifteen years later? That’s SCOTUS for you.

One would, naturally, expect this denial of relief to have brought howls of outrage, or protest, across social media because discrimination is literally horrifying. But the only sound heard was crickets. Much as discrimination based on ginger-hair would offend the unduly passionate, it appears that age discrimination not only fails to strike a nerve, but the kids kind of enjoy the Schadenfreude of it all, because old folks don’t smell of Axe body wash. Even the old folks who wiped their baby tushies, fed them strained carrots and paid for their orthodontics. Old folks had their day, so screw ’em.

Older, But Not Wiser curated from Simple Justice