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Age Discrimination - New Disparate Impact Ruling

Mike Gershman
Ranch Hand

Joined: Mar 13, 2004
Posts: 1272
The US Supreme Court has ruled, 5-3, that the Age Discrimination laws are violated when an employment practice has a disparate impact on people of age 40 and over, unless there is no other way to achieve the same objective.

In my opinion, this would apply to employers who demand 3-5 years of paid Java experience from older programmers but evaluate young graduates on education and ability. This practice is the Catch 22 that keeps US legacy programmers from getting Java jobs, regardless of the quality of their legacy experience, Java coursework, and Java certifications. (Yes, Mark, I know it makes a lot of economic sense. So did racial discrimination.)

It takes a while for state human rights offices to develope enforcement procedures for new laws, but I see some light at the end of the tunnel.
[ March 30, 2005: Message edited by: Mike Gershman ]

Mike Gershman
SCJP 1.4, SCWCD in process
Jeroen Wenting
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Joined: Oct 12, 2000
Posts: 5093
In theory it would apply to that situation it seems. In practice it doesn't because the jobs are (on paper) different.
You demand 5 years experience in Java for a senior job, a completed CS degree for a junior job.
The junior job pays a third of the senior job, older people don't want that big a loss of income so don't apply. They lack the experience for the senior job so you can safely turn them down for not matching the published criteria.
No law broken.

Such has been the situation here for years. It got so bad in the late 1990s that by 2000 there were companies demanding 10 years handson experience with Windows 2000.
By 2003 requirements for Java jobs were listing 15 years of professional experience in J2EE.
When I see such requirements I KNOW the job has been filled internally but company guidelines demand it be posted publicly (especially government departments have such policies but some large companies do as well).


42
Homer Phillips
Ranch Hand

Joined: May 26, 2004
Posts: 311
Taking away the we-didn't-know excuse is a huge victory for mankind.
2005 - 1967 is only 38 years. I wonder what would be an appropiate way to celebrate another victory over ignorance?
Henry Wong
author
Sheriff

Joined: Sep 28, 2004
Posts: 18896
    
  40

I only heard this in-passing, but I think the main jist of this new ruling is that there is no longer a burden of proving intent. In order words, I don't have to prove that they intended to discriminate, only that the actions were discriminating.

Henry


Books: Java Threads, 3rd Edition, Jini in a Nutshell, and Java Gems (contributor)
Mike Gershman
Ranch Hand

Joined: Mar 13, 2004
Posts: 1272
Jeroen said:
The junior job pays a third of the senior job, older people don't want that big a loss of income so don't apply.

It is worse than that in the US. Older workers without paid Java experience or personal connections cannot get an interview for any Java job at any salary.

Many older workers have other income and can accept a lower salary than most beginners. Others expect that their strong legacy programming background and solid preparation in Java will make them amply rewarded stars once they are given a chance to show what they can do.

In her dissenting opinion, Supreme Court Justice O'Connor speculated that many employers are just trying to save on health care and pension costs. But few new employees get defined benefit pensions and the employer cost of defined contribution pensions is age-neutral. Health care expenses are still less than 15% of direct salary payments, so one would expect applicants open to lower starting salaries to have an edge.

For the same reasons, loose enforcement of H1B rules enable age discrimination but do not explain it.

I believe that the real problem is that weak managers consider themselves incapable of evaluating applicants without directly comparable experience and are very uncomfortable managing people much more mature than themselves. Company executives support this policy because they are responding to input from the middle managers they rely on and because older employees have legal protections from arbitrary firing. HR provides plausible excuses for excluding older workers because they are told that their role is to support company policy as it is handed down, with as few fingerprints as possible.

Now that disparate impact is the law of the land, we can use effective enforcement techniques that have been very well established and court-validated by fighters against racial discrimination.

For example, one can submit two resumes on the net, differing only in that one shows twenty years of solid legacy programming experience, while the other only shows the requisite good degree and some Java certifications. Because HR can use the net, the checkable stuff must be real. If the employer only calls the "bright kid" in, they are so busted.

One could compare typical three year Java programmers to legacy programmers who have been hired, usually through personal connnections, or transferred within their company, to see how quickly they are equally productive Java programmers. Such a study could expose the total discounting of legacy programming experience as an age discriminator rather than a legitimate job requirement.
 
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