The term “holiday” derives from its medieval source of “holy day.” “Holy” itself refers in its origin to “set apart” and “perfect.” These “holidays” are for many neither perfect nor holy. These “happy holidays” for many are days of increased sadness, disappointment, and perhaps serious, life-threatening depression.
It seems there are two intersecting forces that meet during these holidays: the extreme expectations of joy and connection in our family and friendships and the fact that as many as 1 our of 5 of us are unemployed. Some of us have been without gainful, steady employment for one, two, or more years.
I and psychologists have this in common in our practices: we are seeing a significant number of clients who are chronically unemployed. Economic depression and emotional depression are close cousins. We are each seeing persons over 40 in particular who are likely being excluded as re-employment candidates because of age discrimination. [Emotional Impact Link].
There is, in my opinion, a major gap in the enforcement mechanism of the federal and state agencies concerning this problem of age discrimination in a down economy. I read or hear of virtually nothing to indicate the agencies are allocating more of their resources to investigating and enforcing the laws against age discrimination in hiring. Yet, the anecdotal evidence is that older workers are hurting disporportionately in this depressed economy. How many of us know of workers over 40 or 50 who have been unemployed for over 2 years? How many such 20 or 30 somethings do we know in that same situation? News articles confirm the stories of older workers who feel they are being bypassed for younger candidates.
Discrimination generally presents challenges of proof for the employment lawyer, but discrimination in the hiring process is a special challenge. The employer can hide its decision process behind so many subjective factors. The bypassed employee must prove that but for the discrimination, he or she would have been selected from among the numerous candidates that now compete for a single postion. Lawyers depending on contingency fees are understandably hesitant to take on cases of discriminatory non-hiring. It is comparatively easy to make the case for a fired employee who at least was thought competent and experienced enough to be hired in the first place.
The courts have provided an imperfect but sometimes powerful tool to get past this problem of proving the “cause” of the non-hiring to be discrimination. The theory is “disparate impact.” Simply stated, the proof is allowed to go forward based on a statistical showing that older workers, as a group, are less likely to be hired (or more likely to be laid off) than younger workers.
From a trial preparation view, there are two things a plaintiff’s attorney must quickly accomplish: he must obtain the early services of a good statisitician and he must obtain the employer’s EEOC reports and other data concerning applicants considered, compared to applicants hired. The statistics expert hired early in the process is useful and maybe necessary because he or she can guide the attorney in obtaining the necessary employer data. Also, the expert can assess the merits of the case as the data is collected. Finally, the expert will be needed at trial to satisfy the court that the data is accurate, sufficient, and meaningful for an expert opinion.
The “disparate impact” theory of age discrimination is given special force in California because the legislature enacted a statute that specifically affirms that age discrimination may be proven by disparate impact analysis. This same statute states that such evidence is to be viewed in light of a public policy that recognizes the harm done by age discrimination.
I urge my plaintiff’s class action colleagues to consider bringing class actions on behalf of older workers denied employment. Why? Because juries are attuned now to the anecdotal stories of their family members, friends, and business colleagues that this economy is especially hard on older workers seeking re-employment. Class actions, even after adverse U.S. Supreme Court rulings, are far from dead. To the contrary, class actions maintained within the class of “California based workers” are still quite viable.
One problem in certifying the class of “unhired older workers” will be to prove that there is true commonality of facts in the hiring process. Each applicant will present a unique mix of qualifications and experience. Yet, the data can be sorted to produce a fairly well defined class of persons based on the hiring criteria set by the employer: such as education, years of experience, positions held. These criteria can be the basis of class membership showing the member to be “qualified” but not hired. The data could be even more vivid if the class of younger persons on these same objective criteria was shown to be “less qualified.”
A target class action defendant would be a large employer obviously, in order to produce the number of unhired older workers to make the class viable. Also, it would be helpful to select an employer having the stored data needed to support the proof of discrimintory selection. I would also suggest selecting a target defendant that emphasized a “youth culture” that was based on appearance more than actual skills and demonstrated ability. “Image” cannot be the basis to discriminate. Age discrimination is not an acceptable marketing tactic in hiring.
The “holidays” can be times of feeling despair if you have been long term unemployed. You can easily feel “unworthy” or shamed because you are unable to provide income for your family. A class action lawsuit will not address these emotional struggles. In fact, litigation may well make them worse. But if you find that you want to “push back” by taking proactive steps to represent a class of workers in similar circumstances, consider finding a class action employment lawyer to evaluate your potential case.