Older Tech Workers Deal with Age Discrimination

California’s Silicon Valley, generally considered the world capital of technological innovation, is emerging from the recession quite well, with new companies and IPO’s all over the news. For many older high-tech workers, though, the recovery is leaving them behind. The New York Times recently profiled a group of engineers and other experienced high-tech workers who are out of work and finding that their age (most of them are over 40) has become a liability in their job search.

The hiring messages by major players in Silicon Valley can be troubling. According to the Times article:

Lori Goler, the head of human resources and recruiting efforts at Facebook, said her company was looking for the “college student who built a company on the side, or an iPhone app over the weekend.” The company also hires more-experienced workers, if “they are results-focused and can deliver again.”

To some older workers, this is a thinly-veiled message that older workers need not apply.

Several years ago, a former Google manager sued the company for age discrimination. Google fired Brian Reid in 2004, when he was 52 years old. During his employment, Google’s Vice President of Engineering Operations allegedly stated that Mr. Reid’s opinions were “obsolete” and “too old to matter.” Other coworkers also allegedly called Mr. Reid an “old man,” “old guy,” and an “old fuddy-duddy.”

During the litigation, Google filed a motion for summary judgment, the purpose of which is to deprive a jury of the opportunity to hear the case. As part of this motion, Google argued that the age-related comments are irrelevant and can not be relied upon by Mr. Reid to prove that he was terminated because of his age. In doing so, Google advanced what is known as the stray remarks doctrine. The case, and this issue in particular, made its way to the Supreme Court of California.

The court sided with Mr. Reid and rejected Google’s request to apply the stray remarks doctrine. To be clear, this simply gave Mr. Reid the opportunity to present his case and the age-related comments to which he was allegedly subjected to a jury. Relying on decisions from across the country, the Supreme Court of California detailed no less than five reasons to reject the stray remarks doctrine, including the following: (1) applying the doctrine would usurp the jury’s essential role in weighing the evidence; (2) excluding such remarks would run afoul of the rule that all evidence should be considered at summary judgment; and (3) merely acknowledging such remarks does not cast aside the “commonsense proposition” that a slur, in and of itself, does not prove actionable discrimination.

The federal Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against workers who are at least 40 years old. Beyond hiring practices, the ADEA also protects older workers who are disproportionately affected by a facially neutral employment practice relied upon to determine, for instance, which workers to lay off in a reduction-in-force. In Smith v. City of Jackson, the United States Supreme Court affirmed that the ADEA recognizes a disparate impact theory. Where disparate impact is shown, the employer may escape liability if it demonstrates that its action was based on a “reasonable factor other than age.” The Equal Employment Opportunity Commission recently issued new regulations clarifying the employer’s burden, an overview of which can be found here.

The Boston age discrimination attorneys at The Law Office of Alan H. Crede, P.C. specialize in employment law and exclusively represent employees. If you are a victim of age discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Age Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Age Discrimination Presents a Problem for Older Job Seekers, Boston Employment Lawyer Blog (December 26, 2011)

Age Discrimination Criticism Arises as EEOC Works to Revise Standards for Employers, Boston Employment Lawyer Blog (November 30, 2011)

Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain, Boston Employment Lawyer Blog (October 22, 2011)

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