Oct. 6, 2011 -- Texas Roadhouse restaurants reportedly rejected applicants for jobs as waiters and bartenders by telling them things like, "We think you are a little too old to work here." It needed greeters, it said, but only "young, hot ones who are 'chipper'." Comments like these, documented in a U.S. Equal Employment Opportunity Commission complaint, have prompted a lawsuit charging age discrimination.
"It's a nationwide pattern of age discrimination," EEOC senior trial attorney Markus Penzel tells ABC News. The commission's suit, he says, rests on "anecdotal evidence—people who said and heard things," on the company's own documents, including in-house training videos, and on statistical analysis.
According to the EEOC, only 1.9 percent of so-called 'front of the house' employees (greeters, waiters, bartenders, etc.) at Texas Roadhouse are aged 40 or older. By federal law, persons in that age group constitute are a class protected from age discrimination. The percentage, says the EEOC, is "well below" the percentage in the general population at the restaurants' locations and well below the percentage in the pool of applicants seeking jobs from Texas Roadhouse.
Roadhouse spokesman Travis Doster, responding to the lawsuit, told ABC News: "Texas Roadhouse is an equal opportunity employer. We deny the allegations and will defend against these claims in court."
Penzel says his agency has witnessed an increase in age discrimination complaints during the current economic downturn. In November, EEOC hearings on the impact of the economy on older workers found that workers 55-and-up spend far more time searching for work than do younger workers and are jobless far longer. Older workers have suffered "the longest spell of high unemployment" seen in the past 60 years.
Says EEOC general counsel P. David Lopez, "It's important in this difficult economic climate that we redouble our nation's commitment to the principle of nondiscrimination in the workplace, to ensure that hiring decisions are based on abilities, not age."
New Jersey attorney Glenn Savits, of Green, Savits & Lorenzo in Morristown, specializes in age discrimination suits. He views the Roadhouse case as "disturbing," especially at a time when finding jobs is getting tougher and tougher. "It's pure age discrimination," he says.
Youth is not a bona fide requirement for waiting tables or greeting, Savits says. He rejects the notion that older workers are more costly--that being more experienced, they must always command higher wages, and thus be less attractive to employers: "There's no reason a company can't offer an older person the same money" as somebody right out of college. "So, that's no excuse."
The Roadhouse case hardly stands alone. Other recent, high-profile cases alleging age discrimination include a class action suit brought against Quest Diagnostics by Savits, and a suit against Google brought on behalf of a fired 54-year old computer executive by California attorney Barry Bunshoft of Duane Morris LLP in San Francisco.
Google hired computer exec Brian Reid in 2002 when he was 52. This put Reid, by virtue of his age, at odds with most of Google's workforce, which tends toward people directly out of college. Google fired Reid when he was 54.
The age discrimination case on his behalf brought by Bunshoft rests in part on "stray remarks" allegedly made by Reid's younger co-workers and superiors, who called him, according to the complaint, "an old fuddy-duddy," "and old man," "slow," and "sluggish." His ideas were dismissed for being "too old to matter." Google says age had nothing to do with Reid's dismissal. The case is now wending its way through a trial court in San Jose.
Bunshoft, referring to the Texas Roadhouse suit, says, "If your policy is to hire only people under 40 for the front of the house, that's against the law. Period. If you're qualified to do the work, you should have a serious shot at it, regardless of age."
He says some jobs, obviously, are age-related. "You can't get hired as a right tackle for the Jets and be 55. You can't be a child actor at 73. But there's nothing age-related about being a receptionist or a maitre d' in a restaurant."
Though federal law sets 40 as the age below which a person cannot sue age discrimination, Savits says some states, including New Jersey, have age discrimination laws not pegged to a specific age: In one famous Jersey case, a plaintiff charged that his employer had fired him for being too young (25).
Not 40 or 25 or any age should be the limit, says Savits. "The number should not be relevant. The law doesn't say you cannot be discriminated against if you you're old. It says you can't be discriminated against on the basis of age."