Does Hiring Millennials Give Rise to Age Discrimination Claims? [e192]

May 20, 2015

Nasir and Matt talk about an age discrimination lawsuitfiled by a 64 year old software engineer against Google and whether H&M will be subject to age discrimination claims for targeting millennials asnew hires.

Full Podcast Transcript

NASIR: All right. Welcome to Legally Sound Smart Business. My name’s Nasir Pasha. This is the podcast where we cover business in the news and add our legal twist. I’m also joined with a special co-host for today…

MATT: Special, Matt Staub, I’m here.

NASIR: Matthew Staub, special co-host.

MATT: Lots of energy from you to bring in this Wednesday episode.

NASIR: Yeah. Well, that’s what I do.

MATT: You know who else has a lot of energy? Millennials.

NASIR: That’s right.

MATT: That’s part of the focus for today but we’re also going to talk about the flipside of that which is age discrimination against non-millennials – people that are much older than millennials. The story is a few weeks old and we were kind of waiting for some more developments when we first heard about it and there just hasn’t been anything yet. The 64-year-old engineer who applied for a job at Google and essentially he felt that he was discriminated against based on his age. I think the average age at Google is 29. But there were some certain things that happened in the interview that made him think that he was being discriminated against, et cetera. But the thing that, I mean, this is essentially the plot from that movie that Owen Wilson and Vince Vaughn was in, right? It was two older guys.

NASIR: Oh, yeah, Internship or something, right?

MATT: Basically, just ripped off that movie and now he’s suing for age discrimination.

NASIR: Yeah, exactly. This is just a big copyright infringement actually case.

MATT: But, yeah, I guess there were certain things that went on in the interview. The interviewer used a speakerphone that did not function well.

NASIR: If you actually read what the allegations are, it’s very confusing because they lay out this aspect where there’s some interviewer that has a bad accent and no one understands what’s going on and it just sounds like a bad interview with poor communication, and somehow that’s been translated to age discrimination. It seems like a little bit of a leap to me.

MATT: Yeah.

NASIR: Especially when age discrimination is not an easy thing to prove – at least in more recent years – because it’s a little bit different when it comes to racial discrimination and things like that because, if you have a motivating factor other than age discrimination but then it ends up having age discrimination, it’s not necessarily illegal which is kind of funny to say. Even though age discrimination may be a factor, it still may be okay if motivational factor is a legal reason. It’s a very subtle distinction and I wouldn’t go too far into that if you’re an employer and are making decisions because it’s a little more complicated than that. but the point being is that age discrimination is not a very easy thing to prove, especially in a hiring phase, because even if you’re able to show that most of the work force is below the age of 40, that doesn’t mean that there’s age discrimination. There has to be a little bit more than that.

MATT: Yeah. I mean, especially in a situation where it’s Google and – I assume – they’re looking to hire an engineer position – yeah, software engineering job. You know, it’s very plausible that a 64-year-old person doesn’t have the same sort of background that someone who’s under the average age of 29 might have because they’re fresh out of school where they learn this stuff. I’m not saying that was the case here but it’s definitely, in terms of the hiring phase, it’s definitely a possibility and I’m sure that happens all the time. When this guy was first trying to get software engineering jobs, it was a completely different landscape than it is now. Maybe he’s kept up with it and that’s not the case, but it’s definitely a possibility.

NASIR: Yeah, absolutely. You know, some of the things he may try to look at – to help his case, I should say – is, if he can find things that are in the interview questions or even the advertisements for the jobs themselves. For example, we’re looking at this article, H&M which is apparently a Swedish fashion giant. I don’t know, would you describe them as that? A Swedish fashion giant? I do have to admit, I do know what H&M is because I have some clothes from there that have been purchased on my behalf.

MATT: What’s that even mean?

NASIR: Oh, because, you know, my wife bought me some clothes from H&M.

MATT: You said that in the most convoluted way. You could have just said, “My wife bought me something from there.” “I own clothes that were purchased on my behalf by an undisclosed person.”

NASIR: Ah. But, anyway, H&M is apparently – like many companies nowadays – trying to attract a so-called “new kind” of worker and this article is fascinating from an age discrimination perspective because this isn’t an article from H&M but, somehow, of course, H&M’s PR I’m sure got this article out there I assume and this is how it usually works, especially with Business Insider, they’re usually advertisements that are disguised as articles – at least, in my opinion, that’s what it seems like. But the point being is that the article is about how H&M is targeting millennials and trying to get them as employees. But, if they went out and they said that, “Okay, we’re only hiring employees less than age of 40,” of course, that is illegal. But there are other things in the ads and your job advertisements that can also get you in trouble. Like, if you say, “Oh, I’m looking for recent college graduates,” or things like that. That can actually be used against you in an age discrimination lawsuit.

MATT: Yeah. I mean, in those situations, you can just ask for, well, I guess in that situation, you would want to ask for people with less experience, but it’s kind of backwards of the way you would normally maybe structure something.

NASIR: I think what H&M is doing, I guess they’re having pictures of young people in their marketing material. I went through, I didn’t see anything specific that was red flags. I assumed, okay, I know I’ve said this many times and I’ve been wrong, but I assume this is a big company that they’ve reviewed this aspect of things because age discrimination applies on both a federal and state level. In fact, you have twenty or more employees, then you are under the federal rules. But, in states like California, if you have as little as five employees, then you may not discriminate because of age at that point.

MATT: Yeah. Where do you feel like we hear about this the most? I guess when someone’s terminated they’re saying it’s age discrimination?

NASIR: Yeah, usually. It’s tougher to prove that, right?

MATT: Yeah.

NASIR: Again, unless your marketing materials or your interview questions, like, for example, you can even ask someone’s birth date to determine their age, and that question alone, I wouldn’t recommend it unless there’s a real purpose for it. But my point is that, unless there’s some other factors that shows that you’re discriminated against, that alone is not enough. And so, I think it’s easier to prove if you have a manager and this is stuff I can easily see happening at Google. If you have a manager that is under the age of 40 and they are managing employees that are over the age of 40, I can easily see little comments here and there and jokes being made that may lead someone to believe that they’re being treated differently or negatively because of their age – if something happens, if they’re terminated, or if they’re not promoted or if they’re not getting raise and things like that. Also, the reverse is true. Sometimes, your more experienced personnel are going to be older, of course, but then they’re also going to be higher paid because they’re more experienced and, if a company wants to save some money, sometimes they get rid of the highest paid workers because that’s where it makes the biggest impact. In the past, that used to be a huge problem. But, nowadays, if you can show, again, it has to do with that motivational factor standard. Again, there are some subtleties to this so, again, if you’re trying to make this decision, seek legal advice because it can get a little complicated. But, in general, if you can show that you’re making this decision that is not based upon a motivational factor of age but it’s a secondary factor, then you may be able to get away with that of reducing your work force from the top level.

MATT: Yeah. You know, age discrimination, one of the few employment law related areas that we didn’t see too often on The Office, unfortunately.

NASIR: No, there was. There was an episode where – I’m trying to remember it – it was when Ryan became CEO – or not CEO, whatever, became head of the company.

MATT: Vice President? Yeah.

NASIR: Vice President, right? And he was implementing all these changes and then Creed went up to Michael saying, “Hey, you know what’s going on, right? They’re trying to push the old geezers out.”

MATT: Oh, yeah.

NASIR: And then, Michael came later in a meeting like, you know, “This is age discrimination,” and so forth, and the guy from HR, Toby, agreed with him.

MATT: Yeah, because he dyed his hair jet black and then he was drinking Red Bull and said some comment. I think he was skateboarding maybe even. I can’t remember. Yeah, okay.

NASIR: That’s right.

MATT: The only thing I could remember was there was one time when just like a random comment, Creed said something and Dwight said, “Thanks, old man!” just because it was a really funny scene, that’s the only reason I remember that. But, yeah, I did forget about the part when Ryan introduced all that new technology.

NASIR: That’s funny.

MATT: So, this H&M thing, it says it’s going to be targeting millennials. Are there any actual ads that we found?

NASIR: Yeah, I was trying to find it and that’s the thing. Even comments like that saying, “We’re trying to attract a younger work force,” that can get a little dicey because, keep it in mind, you can discriminate against the young. You can say, “I only want to hire people 40 and older.” There’s no statutory protections for the young – for 39 and younger, right? But you can’t say, for example, “I’m going to only hire people that are 50 and older,” because then you’re discriminating against people that are 40 to 50. It kind of works kind of awkwardly that way. By saying that I’m going for a younger work force, I wouldn’t recommend that. Frankly, stores like H&M, who else would work there?

MATT: That was my first thought. I mean, the store’s probably already full of millennials.

NASIR: Yeah. I mean, do you even need to say that you’re targeting them? That’s who is going to you. You know, back in I guess 1986, the age protection used to be at age 70.

MATT: Yeah, we’ve bumped down the age a lot and two people are living longer. It’s like 40 is the new 30.

NASIR: What I meant to say is the upper age limit was 70 so it’s from 40 to 70 in 1986.

MATT: Ah, okay, gotcha.

NASIR: I think in 1986 was when it was removed. Now, as we know, everyone above the year 40 all the way to whatever the limit is of when a life ends.

MATT: When the laws change, I just completely forget everything that happened with the previous law. I’ve wiped it out of my mind completely.

NASIR: So, that’s our age discrimination. If you think about it, I don’t think we’ve actually covered that as much as we’ve covered pretty much every topic in our podcast in the last hundred-some episode, 190 episodes. We haven’t covered age discrimination.

MATT: Yeah, and we might have mentioned it here or there. I don’t know. It’s one of the areas where there’s not that much in the news about it I feel like.

NASIR: And it’s not going to happen that often. It requires the employee to either sue their current or former employer. Sometimes, that’s difficult in itself and then you have a proof requirement. In fact, the only reason we hear about sexual discrimination or – I should say – gender discrimination or things like that is because it only happens in outrageous moments and then you end up hearing about it because someone makes some comment here or there or whatever. But age discrimination, because you’re able to… and the same with race, right? But with age discrimination, because they can be a secondary factor that could cover the real reason of the termination or the adverse termination, then it’s much harder for the employee to prove – makes it more difficult and not as common.

MATT: Yeah, they had some examples of inappropriate comments to call old people or older people “gramps” and other things.

NASIR: Gramps.

MATT: “Old man.”

NASIR: Old man, that’s actually… what about “old woman”?

MATT: Probably, double whammy.

NASIR: Double whammy.

MATT: You rarely hear someone call a woman old.

NASIR: That’s true.

MATT: It’s not proper.

NASIR: Very good. Okay. I think that’s it. Thanks for joining us everyone.

MATT: Keep it sound and keep it smart!

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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