The Equal Employment Opportunity Commission could put an end to college and high school job fairs by expanding age discrimination enforcement to job recruiting, despite its own outreach programs aimed at recent graduates, according to a new report.
The EEOC, which polices discrimination claims in the workforce, claimed in Villarreal v. R.J. Reynolds (2016) businesses that recruit young people for entry-level jobs violate age discrimination laws. The agency argued the court should apply disparate impact claims, which allow plaintiffs to allege discrimination if equal standards for hiring or promotion result in fewer people in protected classes—based on race, sex, or age—being hired or promoted.
"RJR and its recruiting agents relied on the resume guidelines under which RJR hired almost exclusively younger individuals to fill [its] positions," the agency said in a brief filed to the Eleventh Circuit Court of Appeals. "The Commission has long interpreted this language to authorize disparate-impact-based challenges to practices adversely affecting applicants."
The court rejected that argument, saying the Age Discrimination in Employment Act only applied to current, rather than prospective, employees.
"The whole text of the Act makes clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no 'status as an employee,'" the ruling said.
The agency's effort has sparked claims of regulatory overreach from critics.
RTR said in a white paper that the agency's targeting of recruitment misinterprets Congress's intent for such legislation, which was designed to protect seniors already in the work force from being fired and replaced by younger workers, rather than preventing companies from recruiting young people. The white paper criticized the agency for attempting to expand its power without seeking input from employers, legal analysts, or other groups.
"The EEOC has never sought any public comment, engaged in any rulemaking, or promulgated any other public guidance addressing whether the text of [the Act] can be read to include 'applicants for employment,'" the paper says. "Allowing age-based disparate-impact hiring claims would declare open season on many hiring practices that are entirely common and entirely benign, thus imposing far greater costs on employers for the sake of far fewer meritorious claims."
Study author Diana Furchtgott-Roth, a Manhattan Institute senior fellow, adjunct professor at George Washington University, and former chief economist of the U.S. Department of Labor, said the judiciary's rulings against the EEOC's approach to age discrimination laws is not enough to protect young people. As long as the agency claims the power to prosecute companies over their recruitment practices, it will hinder job opportunities for entry-level workers. The prospect of running afoul the EEOC may lead cautious employers to avoid seeking out young people.
"For the EEOC to say recruiters shouldn't come to campuses is just ludicrous," Furchtgott-Roth told the Washington Free Beacon. "We have to hope the EEOC is going to change its tune and give up its misguided effort."
The EEOC did not respond to a request for comment.
The agency itself may be running afoul the age discrimination rules it is attempting to enforce against employers. The EEOC says on its website that "a help-wanted ad that seeks 'females' or 'recent college graduates' may discourage men and people over 40 from applying and may violate the law." That advice did not stop the EEOC from launching the Honor Attorney Program in 2000 specifically to recruit young people. Applicants for the program in 2011 were required to be "a third-year law student" or "a full-time graduate student [whose] graduate study must have immediately followed law school graduation with no significant post-J.D. employment" [emphasis in original], or law clerks whose current title was their "first significant legal employment following [their] graduation."
"The Honor Program is one of the few ways in which the EEOC hires recent graduates," the EEOC site says.
Furchtgott-Roth said that if the agency is allowed to target graduate or undergraduate students, it could also target vocational programs or high schools. Those enforcement actions would harm the most vulnerable workers since young people have the lowest savings, investment portfolios, and home ownership rates of all demographics.
"Young people are having a much tougher time finding a job because of slow growth over the past eight years. They don't have the accumulated assets or pension plans or IRAs or home that older workers have," she said. "We need to be helping young people gets jobs to remedy the discrepancies between young and old."