Google Job Seekers Can’t Sue for Alleged Unintentional Age Bias

A group of workers age 40 and over who claim Google didn’t hire them because of their age will have to prove the alleged bias was intentional.

That’s because the federal judge in California handling the class action case ruled Jan. 12 that the workers can’t add a disparate impact—or unintentional bias—claim to their lawsuit against the internet giant. Under job discrimination law’s disparate impact theory, workers may sue for the unintended discriminatory consequences of an employer’s seemingly neutral hiring practices. Such claims differ from disparate treatment, or intentional bias, claims and are established mostly through statistical evidence relating to the employer’s entire workforce or some significant portion of it.

But the workers suing Google waived their right to assert a disparate impact claim by previously voluntarily dropping such a claim from their initial complaint in the case and then not again pleading unintentional bias when they later amended their complaint, the U.S. District Court for the Northern District of California said. Federal trial courts in the U.S. court system’s Ninth Circuit follow the rule that any claims made in a lawsuit that are voluntarily dismissed are forfeited if they’re repled by the party, Judge Beth Labson Freeman said.

The court didn’t address Google’s additional argument that the federal Age Discrimination in Employment Act only allows existing employees—but not job applicants—to sue for disparate impact discrimination. That issue, which calls into question the legality of employer recruitment efforts targeting students and recent graduates, has led some federal courts to draw different conclusions regarding the ADEA’s protections for older job seekers.

Supreme Court Passed on Question

A federal judge in San Francisco in February said PricewaterhouseCoopers LLP must face a disparate impact claim by a proposed class of 40-and-over job applicants it allegedly didn’t hire based on their age. That older job seekers are protected against both intentional and unintentional age bias is clear from the ADEA’s language and consistent with the view of federal enforcement authorities, whose position is entitled to deference, the judge in that case said.

But a sharply divided federal appeals court in Atlanta in October 2016 reached the opposite conclusion in a lawsuit against R.J. Reynolds Tobacco Co. The job applicants in that case sought review of the issue by the U.S. Supreme Court, but the justices in June declined to hear their appeal.

A federal district court in Illinois has similarly held that the ADEA’s disparate impact provision doesn’t cover job applicants. That ruling has been appealed to a federal appeals court in Chicago.

In the lawsuit against Google, Kotchen & Low LLP, Law Office of George Duesdieker, DVG Kaw Partner LLC, and Smith Patten represented the older workers. Ogletree, Deakins, Nash, Smoak & Stewart P.C. represented Google.

The case is Heath v. Google LLC , 2018 BL 12115, N.D. Cal., No. 15-cv-01824, disparate impact claim dismissed 1/12/18 .

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com