Google Employee Tagged as “Too Old” May Yet Have the Last Word

San Jose, CACheryl Fillekes’s age discrimination lawsuit against Google alleges violations of the federal Age Discrimination in Employment Act (ADEA) and corresponding provisions of California labor law, the Fair Housing and Employment Discrimination Act (FEHA). Having cleared the hurdle of class action certification, it now appears poised to settle.

Age discrimination in employment lawsuits rarely get this far, so this is good news for older employees. Despite solid resumes, many senior workers suddenly find themselves nearly unemployable for vague and undefinable reasons like “lack of cultural fit” or “fuzziness.”

The biggest poke in the eye for many who have been laid off is the subsequent offer to come back and do the same job – but as an independent contractor -- for a fraction of the money and no benefits. It’s legally suspect, but it happens. Long-career workers in a panic about retirement often take it, too shell-shocked to complain.

Ageism is Subtle and Prevalent

“Age discrimination is an open secret like sexual harassment was until recently,” said Victoria Lipnic, the acting chair of the Equal Employment Opportunity Commission (EEOC). “Everybody knows it’s happening.”

Cheryl Fillekes, an engineer with highly relevant qualifications and experience, was interviewed for a position at Google four times between 2007 and 2014, beginning when she was 47. She was never offered a job. She claims that Google’s hiring process resulted in a “practice and pattern” of discrimination against older applicants by emphasizing topics in line with current college engineering curriculum and placing an emphasis on “Googleyness” and cultural fit, thereby reinforcing its youthful demographic. The median age of Google employees at the time was 29. Does “Googleyness” mean being 29?

Robert Heath, who ultimately joined the Fillekes lawsuit, was 60 when he applied, unsuccessfully, for an IT job at Google. He had more than 30 years of relevant experience. His alleges that his telephone interview was cursory, conducted by an interviewer who was not fluent in English and who refused to review his answer to an employment-related test. It also ended prematurely. All of this led Heath to conclude that he had never been under serious consideration but had perhaps unwittingly been a test case for “inclusion” – a poster man for “fairness.”

Google is not alone. A recent lawsuit filed in the Southern District of New York alleges that IBM violated ADEA, FEHA and the relevant North Carolina statute by laying off older workers disproportionately to younger workers and by not hiring them for open positions. Between 2012 and 2017, IBM laid off at least 20,000 employees over the age of forty, according to the Complaint. Further, internal company documents referred to workers in the “Baby Boomer” generation as “gray hairs” and “old heads,” and stated that “successor generations . . . are generally much more innovative and receptive to technology than baby boomers.”

Another recent lawsuit against PricewaterhouseCoopers claims that PWC’s hiring strategies, while not specifically age-based, are likely to disproportionately prevent older candidates from being hired because of a focus on college campus recruiting. The plaintiffs were denied class action certification because the proposed class included applicants who were not qualified for the jobs they applied for and individuals who had not actually applied for jobs.

The seminal case appears to be Reid v. Google. Brian Reid, then in his early 50s had to endure persistent, nasty, age-related comments. He was allegedly told that “his opinions were obsolete.” He was “too old to matter,” “slow,” “sluggish,” and that he did not display a “sense of urgency.” Co-workers referred to him as “old man” or “old fuddy-duddy” and told him that his knowledge was “ancient.” He had an advanced degree, decades of relevant experience and a history of advancement within the company.

The company contended that the abusive remarks did not constitute a company policy of age discrimination. California’s Supreme Court disagreed, ruling in his favor and noting that “stray remarks” may be considered evidence of age discrimination.

Hey, Are You Available for Some Extra Work?

That’s the way the feeler comes in. Most displaced older workers caught in this vise are happy to have work. No complaining, -- it’s not about retirement, anymore. That goal is gone. It’s about keeping the house or sending a kid to college.

But the legal picture is about worker misclassification. Employees have lots of legal rights. Independent contractors do not. Misclassification is a predictable employer dodge -- it makes your work more profitable for your employer because it is less profitable for you. By accepting the contract work, you will probably not lose any rights you had as an employee, but you may not have any going forward. You should consult a lawyer.

Why have these Lawsuits been so Hard to Win?

The historical rule is that employees may be fired (or hired) for “good reason, bad reason or no reason at all.” Blue shirt on Wednesday – out you go!

This is very hard on employees, and statutory law in the U.S. and the various states has consequently carved out specific and expanding exceptions. These are mostly based on identity factors like race, gender and age. The question here is about what constitutes age discrimination. Courts vary, but they remain very deferential to employer decisions.

Without resolving this question, four things are clear:

• Compared to the race and gender issues, the age question is late to develop. It’s also not unrelated to the other issues;
• Mobilization of affected individuals will clarify the issues;
• It’s important to achieve class certification, so the choice of a class must be done carefully; and
• Stray comments and nasty coffee room sniping are relevant.

Cheryl Fillekes’s age discrimination lawsuit against Google is not over. She could win or she could lose. Nonetheless, she has done a great service for workers inside and outside the tech industry by finally speaking out loud about the nasty secret that has been hiding in plain view for years.