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  4. Written Testimony of Laurie A. McCann, AARP Foundation Litigation

Written Testimony of Laurie A. McCann, AARP Foundation Litigation

Meeting of 5-18-16 - Promoting Diverse and Inclusive Workplaces in the Tech Sector

Chair Yang, Commissioners Barker, Feldblum, Lipnic and Burrows, thank you for inviting AARP to discuss the issue of diversity in the technology industry and in particular the problem of age discrimination. On behalf of our more than 37 million members and workers age 40 and older who constitute roughly 55 percent of the labor force, AARP appreciates this chance to share our views at today's Commission meeting. We welcome the opportunity to work further with the Commission as its work proceeds.

Age Discrimination is Pervasive in the Tech Industry

As we approach the 50th anniversary of the enactment of the Age Discrimination in Employment Act (ADEA), ageism, unfortunately, remains pervasive in the American labor force. In a 2013 AARP study, nearly two-thirds of older workers reported witnessing or experiencing age discrimination in the workplace.1 Of those, 92 percent said such discrimination was very or somewhat common.2 It would appear that age discrimination is very prevalent in the technology sector of the economy. According to a recent Fortune magazine article,3 the median age of employees at Twitter is just 28, and at Facebook and Google, the median age is 29. When compared to a median age of 42 for the workforce overall, the message is stark - older workers are persona non grata in technology.

While those statistics are stunning, the most amazing fact is that the industry is so unapologetic about it. Rather than try to hide or explain away the lack of age diversity in the sector, they boast about it. For example, in 2011, Vinod Khosia, co-founder of Sun Microsystems declared, ". . .people under 35 are the people who make change happen; people over the age of 45 basically die in terms of new ideas."4 In his New Republic article about ageism in the tech sector, Scheiber quoted Michael Moritz, a venture capitalist with Sequoia Capital, who unabashedly stated that he was "an incredibly enthusiastic fan of very talented twentysomethings" because they "have great passion" and "don't have distractions like . . . children."5 Scheiber also reported that the website of ServiceNow, a large Santa Clara-based IT services company declared prominently on its website's careers page that "We Want People Who Have Their Best Work Ahead of Them, Not Behind Them." And, perhaps the most cited and the most telling comment came from Facebook founder Mark Zuckerberg in 2007: "Young people are just smarter."6

As Bill Maher recently commented, "Ageism is the last acceptable prejudice in America."7 If these remarks are any indication, nowhere is that more true than in the technology industry.

The rampant age discrimination in the technology sector is perhaps most evident in companies' hiring policies and practices, which are designed to attract and hire younger employees. Job postings declaring a preference for new or recent graduates are common and some companies have actually specified which graduating class they are seeking.8 For example, in 2013, Facebook settled a case with the California Fair Employment and Housing Department concerning a job listing for an attorney position that noted, "Class of 2007 or 2008 preferred."9 More recently, many employers have started to require job candidates to be "digital natives." A digital native is an individual who grew up using technology from an early age whereas a "digital immigrant" refers to someone who adopted technology later in life. This distinction is clearly age-based and can be used to screen out older applicants.10 To date, however, the practice has not been challenged in court.

Many online applications also can screen out older applicants. Some require applicants to include dates of birth or graduation dates in fields that cannot be bypassed. In other words, the applicant cannot submit the application with answering the questions. These practices deter older individuals from applying as many will wonder why they should bother trying when their age will be obvious to the employer. Some companies even go so far as to require potential employees to be affiliated with a college or university in order to submit an application.11 These practices prevent older individuals from applying or at the very least deter them from applying. They also color hiring managers' perceptions of candidates and cause employers to select from an unrepresentative pool of applicants with disproportionately fewer older applicants.

There is no justification for hiring based on age stereotypes. Hiring should be inclusive and should focus on the job skills needed for the specific position. Employers need to focus on skill sets and qualifications, not solely on demographics. While employers should be able to employ candidates that they consider to be a good fit, they must not let industry and personal stereotypes influence their hiring decisions and recruiting strategies. They should not assume older workers won't be able to "fit in" with younger colleagues. They should not presume that older workers learned their skills years ago and have been simply coasting ever since. Older engineers and programmers are often up on the latest technology, and what they don't know they can quickly learn. They should not presume older workers are not creative or innovative; in fact, studies show that workers can be equally or more innovative as they get older.12

If an older employee is able to find employment in the industry, they are still not home free. Instead, discrimination can take other forms including layoffs, and fewer opportunities for advancement and professional development, which then increases older workers' vulnerability to layoffs. In 2004, Brian Reid, then 52-years-old, alleged that he lost his job at Google because of his age. He was called a poor cultural fit, an "old guy" and a "fuddy duddy with ideas too old to matter." The case was ultimately resolved out of court after the California Supreme Court refused to consider these comments "stray remarks" and instead held that the comments, if actually made, were evidence of discrimination. AARP filed an amicus curiae brief in this case. Google was sued again recently for age discrimination in the U.S. District Court for the Northern District of Illinois.13 Apparently, there is still a problem. One tech industry survivor, Dan Lyons, has recently recounted his experiences as an older employee working for the software company, HubSpot. 14 Lyons was 52-years-old and the average HubSpot employee was 26. But, the most telling fact was that this age imbalance was intentional. In an interview with the New York Times, HubSpot's CEO and co-founder, Brian Halligan announced that he was "trying to build a culture [at HubSpot] specifically to attract and retain Gen Y'ers," because, "in the tech world, gray hair and experience are really overrated."15

Barriers to Redress Age Discrimination in Hiring

Given the ADEA's clear directive that it is unlawful to fail to hire an individual because of their age, why is age discrimination in hiring so prevalent? There are many obstacles to challenging hiring discrimination, and applicants, especially those among the long-term unemployed, are more focused on their primary concern - finding employment.

Hiring discrimination is notoriously difficult to challenge because it is difficult to detect. Jobseekers lack sufficient information about a company's hiring processes and the relative qualifications of their competition to confidently suspect a potential claim. They may have a "gut feeling" or "hunch" that their age is preventing them from finding employment but that is not enough to establish discrimination, and filing a complaint takes time and energy away from the primary task at hand: finding a job.

Even easily detected forms of bias, such as that found in job postings that specify age-related requirements, often deter older job-seekers from applying, but go unchallenged. Only a miniscule number of charges - only 15416 of 20,14417 age discrimination charges in fiscal year 2015 - alleged unlawful advertising. Current regulations governing employment advertisements and pre-employment inquiries18 are weak, and so do little to deter improper employer behavior and protect the rights of older workers.

Another barrier to addressing hiring discrimination is that although the disparate impact theory is often the best - if not the only - means of challenging such discrimination, employers are mounting an offensive to convince the courts that job applicants may not bring disparate impact claims under section 4(a)(2), 29 U.S.C. 623 (a)(2) of the ADEA. There are already two decisions supporting this position - Kleber v. CareFusion, Corp., 2015 U.S. Dist. LEXIS 157645 (Nov. 23, 2015, N.D. Ill) and Villarreal v. R.J. Reynolds, 2013 U.S. Dist. LEXIS 30018 (Mar. 6, 2013, N.D. Ga) - although the Villarreal case is under en banc review in the U.S. Court of Appeals for the Eleventh Circuit. Both AARP and the EEOC have supported the Villarreal plaintiffs with amicus briefs. Clarity that applicants may bring disparate impact claims under section 4(a)(2) will be crucial in combatting some of the most pernicious hiring practices such as maximum hiring ages and exclusively on campus recruiting.

Companies - even Tech Companies - Benefit from Age Diversity and Having an Intergenerational Workforce

Technology firms that ignore the talents of older workers are doing themselves a disservice. Age is positively correlated with engagement -- the 50+ segment is the most engaged across all generations19 -- and engagement is positively correlated with higher productivity and higher revenues.20 And contrary to common perceptions, 50+ talent does not cost significantly more than younger workers. Changes in wage structures and benefits offerings have significantly diminished differences in compensation costs for older and younger workers. Marginally higher costs to recruit and retain older workers are offset by lower and more predictable turnover, as well as added knowledge and experience.21

Unfortunately, however, few companies include an age component in their diversity programs and all too often, perversely, companies justify their age-discriminatory practices on the need to bring more diverse candidates from other protected groups. Moreover, employers are not required by federal law to include age in diversity reports. This makes it difficult for them to self-examine their policies and practices for discrimination based on age and makes it difficult for victims to establish age discrimination as well. The high-tech industry would benefit from taking steps to examine its performance on achieving an intergenerational workforce, and to take steps to correct any shortcomings uncovered, such as by incorporating age diversity into its diversity practices.

Conclusion

A few years ago, when the EEOC District Offices in California were developing their Complement Plans to the national strategic enforcement plan, AARP's California state office submitted comments urging particular attention to hiring issues, including age-related job postings and application procedures, and urged the Commission to pay particular attention to problem industries such as Silicon Valley.22 AARP is pleased that the EEOC is including age diversity in its examination of inclusiveness in the high tech industry, and stands ready to be of assistance in addressing this serious and pernicious problem. Thank you again for the opportunity to participate in today's discussion.

Footnotes

1 AARP, Staying Ahead of the Curve 2013: The AARP Work and Career Study, Older Workers in an Uneasy Job Market 28 (January, 2014), available at http://www.aarp.org/content/dam/aarp/research/surveys_statistics/general/2014/Staying-Ahead-of-the-Curve-2013-The-Work-and-Career-Study-AARP-res-gen.pdf

2 Id., at 30.

3 Verne Kopytoff, "Tech Industry Job Ads: Older Workers Need Not Apply," Fortune (June 19, 2014), available at http://fortune.com/2014/06/19/tech-job-ads-discrimination/ [hereinafter Tech Industry Job Ads].

4 Vivek Wadha, "The Case for Old Entrepreneurs," Washington Post (Dec. 2, 2011), available at https://www.washingtonpost.com/national/on-innovations/the-case-for-old-entrepreneurs/2011/12/02/gIQAulJ3KO_story.html.

5 Noam Scheiber, "The Brutal Ageism of Tech," New Republic, (March 23, 2014), available at https://newrepublic.com/article/117088/silicons-valleys-brutal-ageism.

6 Andrew S. Ross, "In Silicon Valley, Age Can Be a Curse," SFGate (Aug. 20, 2013), available at www.sfgate.com/business/bottomline/article/In-Silicon-Valley-age-can-be-a-curse-4742365.php.

7 Josh Feldman, "Maher Rants against Youth Culture, Ageism: 'Last Acceptable Prejudice'" (Nov. 7, 2104), available at http://www.mediaite.com/tv/maher-ageism-is-the-last-acceptable-prejudice-in-america/.

8 Tech Industry Job Ads, supra n. 3.

9 Id.

10 Vivian Giang, "This Is the Latest Way Employers Mask Age Bias, Lawyers Say," Fortune (May 4, 2015), available at http://fortune.com/2015/05/04/digital-native-employers-bias/.

11 See e.g., Complaint in Rabin v. PricewaterhouseCoopers LLP, 3:16-cv-02276-JST (filed Apr. 27, 2016, N.D. Calif.).

12 Stefan Theil, "Innovation Grows among Older Workers," Newsweek (Aug. 20, 2010), available at http://www.newsweek.com/innovation-grows-among-older-workers-71363.

13 The complaint in Heath v. Google, Inc., 5:15-cv-01824-HRL (filed Apr. 22, 2015, N.D. Calif.), alleges that the company violates the ADEA and the California Fair Employment and Housing Act (FEHA) through its hiring and employment practices.

14 Dan Lyons, "When It Comes to Age Bias, Tech Companies Don't Even Bother to Lie," LinkedIn.com (Apr. 5, 2016), available at https://www.linkedin.com/pulse/when-comes-age-bias-tech-companies-dont-even-bother-lie-dan-lyons.

15 Adam Bryant, "Brian Halligan, Chief of HubSpot, on the Value of Naps," New York Times (Dec. 5, 2013), available at http://www.nytimes.com/2013/12/06/business/brian-halligan-chief-of-hubspot-on-the-value-of-naps.html?_r=0.

16 EEOC, Charge Statistics, Statutes by Issue: FY 2010 - FY 2015, available at https://www.eeoc.gov/eeoc/statistics/enforcement/statutes_by_issue.cfm.

17 EEOC, Charge Statistics: FY 1997 Through FY 2015, available at https://www.eeoc.gov//eeoc/statistics/enforcement/charges.cfm.

18 29 C.F.R. §§ 1625.4 and 1625.5.

19 AARP, A Business Case for Workers Age 50+: A Look at the Value of Experience 2 (2015), available at http://www.aarp.org/content/dam/aarp/research/surveys_statistics/general/2015/A-Business-Case-Report-for-Workers%20Age%2050Plus-res-gen.pdf.

20 Id., at 18-19.

21 Id., at 46.

22 Letter from Katie Hirning, [then] State Director, AARP California, to EEOC Los Angeles and San Francisco District Offices, re: U.S. Equal Employment Opportunity Commission (EEOC) Local Complement Plans to National Strategic Enforcement Plan (Feb. 27, 2013) (on file with AARP).