The 6 most interesting age discrimination cases from the US in 2018 — age discrimination
The hiring rate for those aged over 40 was significantly lower for those aged under 40. An economist hired by the EEOC concluded that there was a less than 1 in 10,000 chance of the company having the age demographic that they did.
The EEOC’s office in Miami pursued the suit. Daniel Seltzer, the lawyer responsible for the claim, said, “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.
After finally settling the class action, Seasons 52 will pay $2.85 million.
The EEOC’s statement on the settlement is available here.
Comment on objective justification in the UK
The extent to which market forces can justify age discrimination is not an area which has been well tested in the UK.
Seasons 52 would be a case of direct discrimination – “we reject people because they are old”. In the UK, age discrimination is the only strand of discrimination for which objective justification is possible. The Supreme Court in Seldon held that justification of direct age discrimination requires an aim that has a “public interest nature”. The purely selfish interests of the employer are not enough.
Therefore, were it heard in the UK, Seasons 52 would surely fail. They rejected older people because they wanted the “look” of their staff to appeal to their target market. There was no wider social policy objective behind their hiring policy.
(Perhaps if the facts a little different and Seasons 52’s policy only applied in restaurants located in areas with high youth unemployment, the position might be different…?)
5. Allan Candelore v Tinder
In this case, a man complained that it was unfair for Tinder Plus to charge $19.99 a month to people over 30 and only $9.99 or $14.99 for those aged 30 or under.
The claim failed at trial initially, as the judge held that the age-based pricing did not constitute discrimination because it was based on market testing showing that younger users are more budget-constrained.
But a three-judge appeals panel in Los Angeles revived the class-action case, concluding that the pricing model “employs an arbitrary, class-based generalization about older users’ incomes as a basis for charging them more than younger users.” The case was appealed again.
In this latest hearing, a panel of seven judges in the California Supreme Court denied Tinder permission to have another chance to argue their case. The Court decided to let stand the earlier ruling that the age-based discount for its premium service violated the California civil rights.
The judgment is available here.
6. IMDB v XAVIER BECERRA and the SCREEN ACTORS GUILD AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS
In this case, a California law which required services like IMDB to withhold the ages of the actors featured on the site was challenged by the Screen Actors Guild American Federation of Television and Radio Artists (SAG-AFTRA). The law was intended to prevent age discrimination in the acting world as those casting would be unable to find the true age of those auditioning
IMDB challenged the law as unconstitutional. A temporary injunction against the state of California was awarded by the courts, forbidding the law from being enforced until while the courts determined its constitutionality.
At the final hearing, the state of California conceded that the law did impact upon free speech.
The court did not agree with SAG-AFTRA’s argument that publication of facts about the ages of people in the entertainment industry can be banned because these facts “facilitate” age discrimination. The court commented that this was an argument that, if successful, would enable states to forbid publication of virtually any fact.
The court said that California has a compelling interest of combatting age discrimination in the entertainment industry when it passed the law, but said “Regulation of speech must be a last resort”.
The court made an further interesting further observation in relation to the purpose of the law.
“The legislative materials repeatedly cite an article discussing “[t]he commonplace practice of casting a much younger female against a much older male” and lamenting the significant underrepresentation of women in leading roles and in directors’ chairs. The defendants describe this as a problem of “age discrimination.” While that may be accurate on some level, at root it is far more a problem of sex discrimination. Movie producers don’t typically refuse to cast an actor as a leading man because he’s too old for the leading woman; it is the prospective leading woman who can’t get the part unless she’s much younger than the leading man. TV networks don’t typically jettison male news anchors because they are perceived as too old; it is the female anchors whose success is often dependent on their youth. This is not so much because the entertainment industry has a problem with older people per se. Rather, it’s a manifestation of the industry’s insistence on objectifying women, overvaluing their looks while devaluing everything else.”
The judgment is available here.
EDIT: In November 2018, IMDB submitted papers to the 9th Circuit Court of Appeals to appeal the decision.