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Google age bias suit settlement could prompt additional litigation

Posted On: Jul. 30, 2019 7:00 AM CST


A class action lawsuit that Google has settled for $11 million could encourage more litigation, particularly against other high-tech companies, which are viewed as favoring younger workers, say experts.

Some experts believe that these age discrimination lawsuits will eventually rise to the level of the pervasive #MeToo litigation, although others say this is unlikely.

Google may have settled the failure- to-hire litigation, which is often more difficult to prove than lawsuits filed by current employees, because of the evidence in this particular case, experts say. But other observers say $11 million is not a major expense for a company the size of Google, whose parent company, Mountain View, California-based Alphabet Inc., had almost $137 billion in 2018 revenue, and settling it was less of a hassle than continuing to defend it.

The litigation in Robert Heath and Cheryl Fillekes v. Google LLC, which was filed in April 2015, alleged that Google engaged in a “systematic pattern or practice of discrimination against applicants 40 and older.”

Mr. Heath was 60 when he applied for a job with Google in 2011. Ms. Fillekes was 47 when she joined the litigation in June 2015.

Mr. Heath subsequently reached his own settlement with the company. The litigation was certified as a class action in October 2016. Besides Ms. Fillekes, there are 226 other “opt-ins” into the settlement agreement.

In addition to paying the $11 million, Google agreed to train employees and management on age-based bias.

“Google has denied and continues to deny that it intentionally discriminated” against any applicant, according to the joint motion for a settlement, which was filed in U.S. District Court in San Jose, California, on July 19. A company spokesman and the plaintiff attorney in the case could not be reached for comment.

The settlement suggests “they recognize they may have an issue with what may be implicit bias in the people who are doing the hiring,” said Shannon D. Farmer, a partner with Ballard Spahr LLP in Philadelphia.

Richard D. Tuschman, of Richard D. Tuschman PA in Plantation, Florida, said, “It looks like Google has been an outlier in that their workforce seems to be significantly younger than even other tech companies.”

Google “grew rapidly in the years at issue, and it’s possible they didn’t have the controls on hiring that many other companies have. That said, the idea of using cultural fits as criterion for hiring,” which was charged in the lawsuit, “is dangerous for any employer and that could lead to claims of not only age discrimination but other forms of discrimination,” Mr. Tuschman said.

The settlement “may open some floodgates” of litigation, said Daniel V. Kinsella, a shareholder with Schuyler, Roche & Crisham P.C. in Chicago.

“The technology industry is going to continue getting hit with these class actions because of the statistics” as to who is hired, “and those demographics are not going to change any time soon,” said Christopher Lilly, an attorney with TroyGould P.C. in Los Angeles.

The settlement “could certainly inspire other lawsuits like that,” said Adam H. Sencenbaugh, a partner with Haynes and Boone LLP in Austin, Texas. “It’s no secret” that technology firms generally have younger workers, he said.

“That fact alone could inspire more scrutiny of their hiring practices and inspire more claims,” Mr. Sencenbaugh said.

Silicon Valley firms have a reputation of favoring younger workers, experts say.

“The key part of this is Silicon Valley is rife with age discrimination,” said Richard B. Cohen, a partner with FisherBroyles LLP in New York.

Some observers believe age discrimination will be the next #MeToo movement in terms of litigation filed.

“This is the next #MeToo movement because of the aging population and the baby boomers aging out with insufficient retirement funds,” said Mr. Cohen.

Juries also tend to be biased in favor of plaintiffs in age discrimination cases, observers say.

Others, however, doubt the issue will rise to the level of #MeToo. “You’re not going to see the kind of salacious evil motivations that you saw in the #MeToo movement” where “‘you had real predators,” said Mr. Lilly.

People have been predicting a #MeToo-type age discrimination movement for 10 years, said Ms. Farmer. “We haven’t really seen that,” she said.

The #MeToo movement has not just been about claims but also about a cultural conversation involving high-profile people. Most upper-echelon corporate executives, by contrast, are not under 40, she said.

In addition, there would not be the same kinds of emotions involved, with women expressing their sexual harassment experiences, she said.

But while it will not get as much attention as the #MeToo movement, age discrimination is an open secret and “I don’t think this is going to go unchallenged,” said Jonathan A. Segal, a principal with Duane Morris LLP in Philadelphia.

As a defense attorney, he said he is hearing more questions about age discrimination, training and challenges to layoffs.

Google may have settled because it was the easier path, say observers. Once the litigation was certified as a class action, “from that point forward, it was really only matter of time before the matter was settled,” Mr. Lilly said.

Ms. Farmer said she suspects it was settled in part as a business decision. “The amount of time and resources it takes up quickly becomes very expensive and disruptive, particularly when plaintiffs are trying to prove a company culture,” said Ms. Farmer.

Experts point out that the $11 million is not significant for a firm of Google’s size.

The $11 million is small amount to pay to avoid bad press, said Mr. Lilly. For Google, “this is a rounding error.”