By Peter Gosselin, Next Avenue Contributor
Age discrimination prosecutions often come with a string of insults trailing behind them. The most recent instance involves a Darden Restaurants (parent of Olive Garden) business unit which agreed May 3 to settle a federal lawsuit accusing the grill-and-wine bar chain of labeling male job applicants over 40 such things as “old white guys” and rejecting female ones as insufficiently “younger and fresh.”
In a court-approved settlement with the U.S. Equal Employment Opportunity Commission (EEOC), the company's unit, Seasons 52, denied wrongdoing but agreed to pay $2.8 million to older applicants rejected for jobs at 35 of its restaurants and have its hiring practices overseen by an independent monitor for three years.
'Old 'N Chubby' and 'Little Old Lady'
Similarly, a case last year against the Texas Roadhouse steakhouse chain ended with a $12 million settlement after the EEOC accused company managers of, among other things, posting yellow stickers on applications of those over 40 with comments such as “Old ‘N Chubby,” “little old lady” and “middle age…Doesn’t really fit out image.”
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“Image” turns out to have been a big issue in the latest case as well, according to Daniel Seltzer, a lawyer with the EEOC’s Miami office, which pursued the suit. “A desire to appeal to younger customers bled into (the company concluding) ‘Well, we’ll appeal to younger customers by having younger workers,’” he told an EEOC press call about the settlement.
Evidence in Seasons 52 Age Discrimination Case
Among the evidence the agency offered: sworn testimony from over 100 older applicants who said they were quizzed by managers about dates of birth, graduation dates and their ability to keep up with fast-paced work and young coworkers.
“An interviewer told me that Seasons 52 was looking for ‘young,’ ‘fresh,’ ‘vibrant’ and ‘healthy’ employees,” said applicant Cheryl Machado of Sacramento, Calif. “I was also shown a picture of young people in uniform and asked if I would be comfortable wearing a form‐fitting, tight uniform.”
In addition, the EEOC hired an economist, who reviewed tens of thousand of job applications submitted to the chain and concluded that the odds of Seasons 52 ending up with the young workforce it has using age-neutral methods ranged between one in 10,000 and more than one in a million.
Company Denies Age Discrimination
Darden executives deny the company engaged in age discrimination and admit no liability in the settlement. “We are pleased to resolve this EEOC matter,” Darden spokesman Hunter Robinson said in a statement. “Putting this behind us is good for Seasons 52, good for our team members and good for our shareholders.”
The fight over the case — which EEOC has been investigating since 2011 and filed in federal district court in Miami in 2015 — has been bitter. The company battled the EEOC’s information requests as overbroad and, according to the agency, destroyed documents and emails crucial to the probe. The EEOC contacted thousands of people over 40 who applied for jobs at Seasons 52 and found 254 who claimed they were treated in a biased matter.
As part of the settlement, the alleged victims will be invited to reapply for employment.
The settlements with Seasons 52 and Texas Roadhouse suggest a new aggressiveness on the part of the commission, which until recently devoted few resources to age cases and shied away from battles that appeared to pit the interests of older workers against those of younger ones.
The settlements could help open the door to older workers who seek minimal-training, part-time positions at restaurants in order to supplement their income after leaving, or being forced from, full-time work.
Age Discrimination Against Applicants: Hard to Prove
Age discrimination is harder to prove than race, gender or other types of bias because the 1967 Age Discrimination in Employment Act includes several exceptions, such as when quick reflexes and great stamina are needed for a job. Increasingly conservative federal appeals courts and the U.S. Supreme Court have widened the exceptions and raised the bar for what must be proved, making it easier for employers to avoid the law’s core requirement: that workers be judged on basis of ability, not age.
Age bias against older job applicants is especially hard to prove. That’s because job hunters increasingly apply online, where they have little, if any, contact with potential employers and almost no ability to find out what happened to their applications. In such circumstances, the EEOC may be the only option for aggrieved, rejected job hunters.
“Because the EEOC can obtain the application data during our investigations,” said Kristen Foslid, a Miami-based trial attorney for the EEOC, “we have the ability to uncover trends in hiring which might suggest discrimination, unlike a private plaintiff. The agency is really uniquely situated to take on hiring discrimination,” she said.
