Maria DeSimone was 40 when she applied for a server job at a Texas Roadhouse in Palm Bay, Fla., in 2009. Her family needed more income, so the wife and mother of two, who had two years of restaurant experience, decided to return to work. A manager said he’d get back to her.
He never did, and when she called to follow up on her application, DeSimone was told the restaurant wasn’t hiring. She later learned that the 19-year-old daughter of a friend, who’d never worked in a restaurant, got the job.
DeSimone is among 55 women and men named as claimants in a lawsuit against the Texas Roadhouse restaurant chain by the U.S. Equal Employment Opportunity Commission. Brought four years ago in federal court in Boston, the suit says Texas Roadhouse discriminated against workers 40 and older by refusing to employ enough of them in front-of-house jobs as hosts, bartenders, and servers. “We’re thinking not just about the case at hand but also about influencing behavior more broadly,” says Ray Peeler, a senior EEOC attorney-adviser. Employers, he says, can’t assume older applicants don’t have “the energy or excitement or whatever trait they’re trying to capture.” Texas Roadhouse denies the EEOC’s allegations.
Age discrimination cases are often about the dismissal of older employees. As more middle-aged and senior men and women seek jobs, according to U.S. Census Bureau data, not getting in the door is a growing problem. “It’s harder to prove age bias on the hiring end,” says Laurie McCann, a senior attorney at the AARP Foundation in Washington. “When you’re applying for a job, you’re on the outside and usually don’t know who was hired instead of you.”
Louisville-based Texas Roadhouse, with more than 450 locations in the U.S. and about 43,000 employees, is fighting the suit, pointing out that servers must line dance during shifts, wear jeans, and work evenings and weekends. In legal filings, the company said even if its policies have “a statistically adverse impact” on older workers, they “are lawful because they are job-related and consistent with business necessity.” Still, Carl Van Horn, a public policy professor at Rutgers University, says, “There are certainly older workers who can wear jeans and dance, so it’s not a rational defense” to not hire them.
A trial date has been scheduled for January 2017. The suit will test the defense used by many companies that they need younger employees to reflect their brand and attract customers. An EEOC victory would signal that “the prohibition on age discrimination applies to employers across the economy,” even those with youthful brands, says Samuel Bagenstos, a professor at the University of Michigan Law School.
The federal Age Discrimination in Employment Act of 1967 outlaws discrimination based on age for those 40 and older, including in hiring, promotions, and layoffs. Age-related discrimination accounts for almost a quarter of the complaints the EEOC receives annually. In fiscal 2014 it logged more than 20,500 such charges, up more than 15 percent from a decade earlier. Grievances peaked at 24,582 in fiscal 2008. In 2009 the Supreme Court made it harder for plaintiffs to pursue age discrimination claims by saying they had to prove that age was the overriding cause of getting dismissed, demoted, or rejected.
Major television networks and Hollywood studios settled more than a dozen suits and paid $70 million in 2010 to older writers who claimed they were unfairly denied work on shows geared to younger audiences. In the mid-1960s, stewardesses employed by U.S. airlines filed sex discrimination charges with the EEOC, targeting bans on getting married and age ceilings. A series of lawsuits prompted airlines to change their hiring practices in the 1970s.
The EEOC alleges that only 1.9 percent of Texas Roadhouse’s hosts, bartenders, and servers were 40 or older, compared with 21 percent of employees in similar jobs nationally. It also claims that Texas Roadhouse’s job applications show employees in their teens or 20s and that the company talks up its “young, fun, cute, and bubbly people” in training meetings. The lawsuit says some older applicants were told they “wouldn’t fit in” or might not be able to keep up, and that the restaurant was looking for someone “young and perky.”
At first the EEOC didn’t name any older applicants who had been passed over. In July 2012 the federal judge overseeing the case said the agency didn’t have enough facts to claim systemic age discrimination. Within about a month, the EEOC amended its suit, naming dozens of claimants, including DeSimone.
Texas Roadhouse says it’s hired thousands of older employees for front-of-house jobs. Applicants aren’t asked their age, says company spokesman Travis Doster. The EEOC “wants quotas, and we think the most qualified people should get the job,” he says.
After applicant DeSimone’s rejection, she found a job in a school kitchen. She’s been to the restaurant at least once and saw no one her age serving customers. “You’re only going to see young people working there,” she says.
The bottom line: If the EEOC wins its case against Texas Roadhouse, more employers could be pressured to change hiring practices.