Lindsay Dennis Swiger is a Partner in Holland & Knight's Jacksonville office
Seasons 52, a national restaurant chain and part of the Darden family of restaurants, agreed to pay $2.85 million to settle a nationwide age discrimination class action lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The consent decree also requires significant changes to Seasons 52's recruitment and hiring practices, including a decree compliance monitor who is charged with ensuring that Seasons 52 complies with the decree's terms. The plaintiffs will be invited to reapply for employment. Moreover, in connection with the settlement, the EEOC signaled that the agency will continue to be active in pursuing failure-to-hire age discrimination claims, especially on a class-wide basis because it thinks individuals are less likely to bring these cases.
In the lawsuit, the EEOC alleged that applicants ages 40 and older had been denied both "front-of-the-house" and "back-of-the-house" positions at 35 Seasons 52 restaurants around the country in violation of the Age Discrimination in Employment Act. During the course of the litigation, more than 135 applicants provided sworn testimony that Seasons 52 hiring managers asked them their age or made age-related comments during their interviews. Comments allegedly made included: "Seasons 52 girls are younger and fresh"; "We are not looking for old, white guys"; "Most of the workers are younger"; "Seasons 52 hires young people"; and "We are looking for someone with less experience." In addition, records indicated that Seasons 52 hired applicants who are 40 years of age and older at a significantly lower rate than applicants under age 40.
A key lesson of the lawsuit is that employers should avoid comments or phrases that could be construed as a euphemism for age, such as "fresh," "recent college graduate" and "energetic," or "old school," "set in his ways," and "out of touch with what's new and hip." The EEOC — and savvy plaintiffs' attorneys — will use these types of phrases as evidence that the employer's legitimate reason for not selecting an applicant is actually a pretext for unlawful age discrimination.
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