Written Testimony of Mary Anne Sedey Partner Sedey Harper P.C.

Meeting of November 17, 2010 - Impact Of Economy On Older Workers

As a private practitioner who has worked in tandem and sometimes in partnership with the Commission for more than 35 years enforcing the federal anti-discrimination statutes, I appreciate the opportunity to testify today regarding the hiring discrimination faced by older workers and the difficulties in litigating in this important area on their behalf. It is not my role here to discuss hiring trends or specific cases. Rather I will talk anecdotally about the experiences my older clients describe to me in connection with their search for employment and discuss the problems faced by older applicants in litigating these claims.

My firm represents many older employees terminated from long-term jobs in their fifties and sixties. At our direction, these discharged employees conduct broad, carefully documented searches for employment, in part to demonstrate their efforts to mitigate damages but primarily because they are anxious to find new employment. In the last few years, it has been my experience and that of other plaintiff's employment lawyers across the country that clients terminated in their fifties and sixties simply cannot find work. Even those with excellent credentials and impressive work histories cannot find work.

Anecdotal Reports of Hiring Discrimination

Let me tell you some of their stories. Mike, a 63 year old client with thirty years of sales experience, applies for a sales job in his industry. He submits a resume which is ambiguous about his years of employment, completes a pre-interview screening instrument on-line, is called by the company's HR representative who tells him he is exactly what they are looking for and scheduled for an interview. He arrives early for his 3:00 pm interview and is asked to wait in the lobby. The interviewer comes out, introduces herself, takes a good look at him and says she will be with him in a few minutes. At 3:50, her assistant tells him that the interviewer is "running behind" and will not have time to interview him that day. When he graciously suggests that they reschedule for another time, she says they will call him. The following week he receives a letter thanking him for "the interview" and advising that another applicant with better credentials has been selected for the position.

Kathy, a 55 year old attorney who has worked in-house as well as at a top St. Louis law firm, is told following her lay-off, that she is "too senior" and has been "too highly compensated" for the positions for which she applies. She is told by the firms to whom she is applying that their openings are for more junior lawyers in her area of specialization at an earlier stage of their careers. When she tells the firms in question that she would be well-satisfied to be compensated at the salary offered and is simply interested in continuing to work in her area of expertise, they tell her the jobs in question are "not suitable" for her.

Stan, a 59 year old union carpenter, is laid off from a position after more than thirty years with his company. He is unable to find any work in his trade. Believing like many other older workers, that even if he can't get full-time permanent work, he should be able to get "at least a part-time job at Home Depot," he actually applies for minimum wage work, part-time or full-time, at not only Home Depot but every hardware and home improvement store in his area. He doesn't even get an interview.

Each of these individuals is healthy, productive and anxious to be employed for many years into the future. Each has been unemployed for well over a year now. Each has applied for more than one hundred jobs. None of them has been interviewed for a single position.

Older Workers Rarely File Hiring Claims

Applicants rarely litigate these claims or even file charges of age discrimination with the Commission. Of the ninety-nine federal appellate ADEA decisions reported on Westlaw between February 1, 2009 and February 1, 2010, only six alleged age discrimination in hiring. Four of those six were brought by pro se plaintiffs, who rarely succeed in any type of employment litigation.⁽¹⁾ The fact that there is so little litigation in this area does not mean there is no problem in the hiring area. There are good reasons why so few lawsuits are filed by the victims of age-based hiring discrimination:

• Applicants for employment, unlike employees, simply don't have enough information to know what has happened with the jobs they applied for. They rarely know who they competed against for the job, they don't know the qualifications of those who are hired, they can only guess that age is a factor in their non-selection. Most never learn why they were not hired or even why they were not interviewed.
• Most people are reluctant to charge an employer with illegal conduct based simply on a feeling that they didn't get even an interview because of age. They just don't feel right filing a charge with so little information.
• Most lawyers who practice in this area cannot afford to bring hiring cases. Particularly with high unemployment and substantial competition for open jobs, "private attorneys general" cannot invest their resources in these cases. There will be multiple applicants; statistical evidence will be difficult to use because of disparity in resumes and experience among the applicant pool; employers will often be able to offer subjective evidence of the superior suitability of the individual hired.

Hiring Discrimination is an Issue Particularly Well Suited for Commission-Initiated Investigation and Litigation

Because of the difficulties experienced by applicants and private employment lawyers in bringing age-based hiring discrimination claims, the Commission should exercise its independent authority under 29 CFR §§ 1626.4, 1626.13 (1990), to investigate age discrimination in hiring. ⁽²⁾ It is clear from statistical trends that older employees face serious barriers to employment due to hiring discrimination, but that neither they nor the private employment discrimination bar can do much about the issue. Only the Commission has the resources and the broad powers to investigate the problem that will be necessary to bring litigation, particularly impact type litigation.

It may also be that the problem is not limited to employers and may extend to employment agencies that cooperate in screening based on discriminatory hiring preferences of major employers.⁽³⁾ Again only the Commission has the resources and investigatory powers to determine the extent to which this is a problem.

I appreciate the opportunity to discuss this important problem with you today.

Footnotes

1. Statistics on appellate cases provided by Cathy Ventrell-Monsees and L. Steven Platt who review all published age discrimination cases in connection with their treatise, Age Discrimination Litigation (James Publishing 2010).

2. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) (the EEOC's role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violation of the ADEA " from any source," and it has independent authority to investigate age discrimination)

3. Attorneys at AARP, for instance, indicate that they have concerns about the extent to which employment agencies are participating in systematic age-based hiring discrimination.