Age-Bias Suit Against Google Likely to Advance

     SAN JOSE, Calif. (CN) — A federal judge said Thursday she is inclined to conditionally certify a class of people over the age of 40 who say they were denied jobs at Google because of their age.
     “I am not considering the merits today except for at the most fundamental level, but I will reserve that for the summary judgment phase,” U.S. District Court Judge Beth Freeman said at a lively hearing.
     The dispute stems from class action claims made by two Google applicants, Robert Heath and Cheryl Fillikes, who claim the company systematically refuses to hire older people
     If Freeman opts to conditionally certify a class of older job applicants rejected by Google, the company will have to file a motion to decertify the class, which they will almost certainly do in the coming months.
     “The plaintiffs in this instance have what appear to be individual age-discrimination cases,” Google attorney Anthony Cleland said.
     Freeman appeared inclined to agree with Google’s interpretation, but allowed the conditional certification to proceed as many other courts favor the two-step process.
     “Well, sometimes in these cases I know how they are likely to come out, but I have to restrain myself from jumping down the road too much,” Freeman said after Cleland had made his case about the individual nature of the sundry age discrimination claims made by the class.
     The real fireworks came at the beginning of the hearing, when Freeman told plaintiff Heath’s attorney, Dow Patton, that his proposed class is too broad.
     “I was surprised by the remarkable breadth of the class you are seeking to certify,” Freeman said. “It includes all applicants over age 40 for three categories. Now Mr. Health has sufficiently alleged he was qualified to apply, but there is no standard, no floor.”
     Freeman said she may have applied at Google herself despite never taking calculus in high school and would have been denied due to lack of qualifications, not age.
     “There is no indication of qualification at the application stage and that is why you are going to lose today,” Freeman told Patton, who then promptly dropped his argument.
     Freeman received the argument of Patton’s colleague, Daniel Kotchen, more favorably, if only because he included the standard or floor that his colleague left out.
     Representing Fillikes, Kotchen defined the class as people 40 or over who were interviewed in person by Google. Because Google has a four-part application process — a recruiter screen, followed by a telephone screen, an on-site interview and then the hiring reviews — Kotchen argued that anyone who receives an on-site interview has met the company’s qualifications standard.
     Patton then attempted to narrow his class during the hearing. Freeman bristled.
     “I have bent over backwards to give you the opportunity to be heard on the merits and now you are going to come here and tell Google, ‘Wait, that wasn’t what we meant,'” Freeman said. “Google has not had the opportunity to consider the modification so whatever you wrote, that is what you will have to live with.”
     Heath’s attempt to certify an overbroad class means he will likely have to pursue his claims as an individual age discrimination lawsuit.
     Meanwhile, Fillikes will act as a class representative unless Google prevails on its future motion to decertify.
     In the complaint, Fillikes claims Google has engaged in a systematic pattern and practice of discriminating against individuals who are age 40 and older in hiring, compensation, and other employment decisions with the resultant effect that persons age 40 or older are systemically excluded from positions for which they are well-qualified.”
     While the median age of computer programmers is about 42, the median age of a Google employee is 29, Fillikes says.
     Fillikes is a systems engineer with a degree in engineering from Cornell and a doctorate from the University of Chicago in computational physics. She has amassed about 40 years of computer programming experience and was 47 at the time she interviewed with Google.
     She interviewed with Google four times between 2007 and 2014, in some cases after the company reached out to her. However, after clearing the first two hurdles of the company’s hiring process and interviewing at Google’s campus, she was not hired.
     The key to whether the suit will survive as a class action hinges on whether Google engaged in a systematic practice of not hiring people of a certain age, and whether the plaintiffs included in the class were all affected in a similar manner by this policy or practice.
     Google will attempt to prove that the plaintiffs’ claims arise out of circumstances that are unique to each individual and cannot be adjudicated as a class action.
     The Equal Employment Opportunity Commission is actively investigating Google for age discrimination, according to the suit.
     For his part, Heath was 60 when he applied and was ultimately rejected by Google in 2001.
     Heath says his rejection came despite being highly qualified and having experience pertinent to the position for which he was applying.

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