If what I’m about to share with you is true, this employer needs to whip out its checkbook and settle this EEOC lawsuit right away before things go from bad to worse.
According to the EEOC, the defendant uses in-house “recruiters” to identify qualified candidates for available IT positions within its client companies and place them within client companies.
Nothing wrong with that.
Except, one of its recruiters allegedly emailed approximately 66,000 recipients seeking applicants for a desktop support position for a client that contained a subject line stating, “Desktop Support …..Albany NY (Need Young Folks Only).”
Now ordinarily, age discrimination claims can be difficult to prove — especially in the failure-to-hire context — because the plaintiff must demonstrate that his age was a “but-for” reason why the employer didn’t hire him. But, “Need Young Folks Only” is what we call direct evidence of age discrimination. So, establishing that age motivated the employee would be like hitting a two-foot putt.
But, according to the EEOC’s complaint, a qualified 59-year-old applicant applied for the position. And the recruiter told him that he would refer his application to the client-employer for consideration, and the applicant provided his resume. The resume described his education but did not provide the year he completed his education. A curious exchange followed:
The recruiter inquired, “When have you completed your Associate’s and Bachelor’s degree?”
The applicant responded, “That is an illegal question to ask during the application process, along with requesting my ssn or dob info according to the federal age discrimination act.”
(No, asking someone when they completed their degree is not illegal. However, using that age-related information to decide whether to hire an individual is.)
The EEOC then claims that the recruiter did not reply and stopped communicating with the applicant concerning his application. According to the EEOC, the recruiter did not refer the applicant for the desktop support position because he objected to the recruiter’s age-based question.
So, it’s not just an age discrimination claim now. Tack on a retaliation claim too.
Of course, these are all just EEOC allegations. There are two sides to the story.
In the meantime, the EEOC has some advice for other employers: “For many candidates, especially in the tech industry, staffing agencies are the first point of contact in the hiring process, so compliance with anti-discrimination statutes is imperative. No candidate should be denied a fair chance for a position because of their age or opposition to what they perceive as discrimination.”
And just so we’re clear, it’s not cool for any employer to advertise “Need Young Folks Only” or ask questions during the hiring process that are designed to elicit the applicant’s age.