Second Plaintiff in Age Discrimination Case Against Google

There is such a youth image of Silicon Valley nowadays that many people take it for granted that only the young are capable of good programming. Indeed, Facebook CEO Mark Zuckerberg publicly said so, and though Zuck later apologized, the image remains.

It is, of course, just that — an image. Experience does count in software development. I’ve been programming since my freshman year in college, eons ago, and would contend that I’m better than ever; I learn new languages more quickly, anticipate bugs better, have a better understanding of the future extensibility of my code, and so on.

The industry has generally conceded that its programmers tend to be young, but justifies it with the claim that only the young people, being recent graduates, know the latest technologies. I’ve refuted this in my University of Michigan law journal article, but my quick retort is, “Hey, who taught those new grads those new technologies — old guys like me!” So, yes, many older people know the new stuff too. (While I’m on the subject, I should plug my latest book, Parallel Computation for Data Science, chock full of the latest technologies!)

Moreover, the pair of plaintiffs currently suing Google for age discrimination claim to know current technologies, and assert that Google’s own review process found them to be highly-qualified. If so, the firm can hardly counter that the plaintiffs were rejected because these two workers weren’t up-to-date in their skill sets — as opposed to rejecting them due to a dislike of older people.

I’ve found over the years that the age problem, rampant in Silicon Valley, is largely fueled by the easy availability of foreign workers — H-1B, L-1, F-1 (foreign student visa, with Optional Practical Training work rights after graduation) and so on. The vast majority of the foreign workers are young, so the effect is that these programs greatly swell the young engineer population from which the employers can choose.

In addition, there are Vicious Cycle effects. The more young people are hired, the more there is an expectation of hiring young (which saves a lot in wage costs). This goes double for the foreign hires, who typically don’t come from cultures that are sensitive to discrimination issues. Indeed, I often hear immigrants scoff at the U.S. for its sensibilities in this regard. I believe that many immigrant engineers are only vaguely aware that age discrimination is considered unethical and is illegal. I suspect that this played a role in the bad phone interview that Plaintiff Heath says he had at Google.

As some of you know, I was an expert witness in an age case against Google that became quite prominent in the employment law field for certain legal-principles rulings. The case was eventually settled. The plaintiff claimed, and it was not disputed by Google, that he was the subject of overt hostility due to his age. In addition, there was statistical evidence showing disparities in sizes of bonuses, given similar performance ratings.

It’s been my impression that since that time, Google has tried to show a better attitude toward older workers. Of course, the word show may or may not be accompanied by actual improvement. I’ll mention a couple of possibly relevant recent incidents.

About a year ago Google came to my campus, UC Davis, to recruit, giving a formal presentation in a large lecture hall. There were four Googler presenters, including one of my students from a few years ago, who is one of the sharpest I’ve ever taught, thus speaking to Google’s high standards. Among the other three on the panel, two were also recent grads (one of whom I also had taught), and the fourth was older, I’d say early 50s.

The older guy made a point of saying — out of the blue, not in response to a question — that in Google interviews, older applicants are asked exactly the same questions as are the young’ns. But that ignores the likely fact that Google expects a higher bar for the older applicants in their answers to those same questions.

In that light, it’s interesting that a reader who attended the 2014 Grace Hopper conference told me that Alan Eustace, Google’s senior vice president of search, had stated, “It’s very difficult to justify hiring an older applicant.” Upon hearing this, I immediately went to the Hopper web page to view the video (the session was titled the Male Allies Panel), only to find that a message saying that the video had been removed! Deleted from YouTube too. I wrote a couple of e-mail messages to Hopper organizers, including one academic; no one even replied.

But isn’t it proper to ask more of the older applicants? Maybe the answer is Yes in general, but Google is a firm that hires a large number of foreign workers, sponsoring many of them for green cards. And in the latter case, Google is certifying that no interested and qualified Americans could be found to fill the position. So Eustace’s alleged remark would be quite relevant.

Once again, the connection between the age issue and H-1B is one of the two main source of abuse of the program. (The other is use of green cards to render foreign workers as de facto indentured servants.)

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13 thoughts on “Second Plaintiff in Age Discrimination Case Against Google

  1. An older applicant may be held to a higher standard if he/she is asking a higher salary. One might also argue that the employment lifetime for a younger applicant may be longer, giving more time to learn and acquire value, except that nobody really expects workers to stay long-term with employers these days. Generally the jobs are outsourced before that can happen.

    It may also be grossly inappropriate to ask the same question of newbies and veterans. You might ask a newbie simple questions like what is a bubble sort and please code bubble and shell sorts on the white board or right on the system – but this is silly for someone who has already been writing sophisticated code for ten years – or thirty! Yet I can see some defending it, after all, the job is the same job, right?

    Well, no it’s not. Even the same job, at the same salary, may be done very differently by two different people, with different levels of experience. In general I’d expect moderate amounts of experience to help. This would seem to justify a higher salary. Yet, we know that is just not generally available. Probably a HUGE mistake, but that’s the industry practice.

    And so we have a jumble, and a self-fulfilling prophecy. If jobs are structured only for immature code monkeys, then older and highly qualified applicants don’t fit. Even if they would take the money and outperform the newbies ten to one. As is often the case.

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  2. The advantage to both the employer and employee of the OPT program can easily be rectified by requiring the payment of employer FICA taxes on the salary of the Fica-exempt international student on OPT.

    I have found another interesting effect of OPT since individuals do not need to be paid during the first 12 months of the program. We have a state funding program for corporations and universities intended in part for workforce development. It has a matching funds requirement that may incorporate in kind services; faculty members in their own companies have indicated the use of their former students as “employees” of their companies. Interestingly, these same former students after the conclusion of the state contract end up with post docs in the faculty member’s lab. The program also allows the money given to the university to be subcontracted to the PI faculty member’s company as a “personal services” contract for the PI’s consulting services through his company, done in his university lab, on the project that he is already being paid for. I.E. money that should be used for salaries for the employees on OPT is going to the faculty member instead.

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    • OPT does confer additional advantages to the employer. But even without those advantages, the OPT workers would still be young, which is the largest advantage in terms of wages. So, no, I don’t agree that those changes would “rectify” things, though I agree they should be instituted. I do agree that there are games with research labs going on, including involving Americans.

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      • The payment of the employer FICA taxes would at least make the lower cost of an OPT/CPT student less of an incentive to discriminate against recent graduates who do not receive the same advantage (i.e. US citizens or permanent workers). It also helps – albeit in a minor way – the shortfall in the SS system when there are known to be over 100,000 workers (I am not sure anyone knows the number not now required to pay FICA taxes on US earnings or the amount lost) in visa categories for which no FICA taxes are now collected.

        Another group in this category seems to be L-1 workers receiving home country pay and US per diems. The use of per diems by H-1B workers to avoid taxes from both the employer and employee are regularly discussed.

        The research lab and faculty company collaborations make it very easy to take advantage of desperate foreign and domestic students both before and after graduation. Imagine how far a student would get refusing to “intern” without payment for their dissertation adviser’s company.

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          • OPT extension may get dwarfed when compared to the recent rule change on provisional waivers that DHS has put out in federal registers. it blows of lids at several points..

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          • Between OPT, H-1B and H-4 and H-1B extensions on the basis of being in the GC pipeline should put that people in the “unemployable older worker” category. They get their GCs and can join the unemployment line with the rest of the “senior citizen” techies.

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        • Although H-1s and L-1s are paid very low wages, they can never get the SS tax component since the very nature of those categories is ‘temporary’, whatever small change goes into SS never goes back to them so to speak. They are out of the country after 6 years (or whatever max. time period that they can be here). The minimum time period that one can claim his/her SS tax is to pay SS tax for a minimum of 10 years before it can be taken out I guess.

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  3. ..The other is use of green cards to render foreign workers as de facto indentured servants…

    you hit the nail on the head (and perhaps you are the *only* one that I know of that knows/talks about the second part of dual intent visas ..I scour the internet usually on the abuse/deficiencies of the greencard process and nobody talks about it. Okay, Paul Donnelly someone who touches about this subject, but his theory is far too liberal, i suppose — doling out greencards and not have any employer control..

    Anyway, the indentured-ness happens at a very “white collar” level that it goes totally unnoticed. Get someone from backlogged country and ‘set them’ at a certain position and lock them forever.No promiotions, no lateral movements. And also a friendly ‘you know, we are restricted by law’ comment. too, a kind-of-genuine ‘we want to help out but to restart the greencard process would mean that the PERM/140 certification is not guaranteed by law).. at the same time, give the best ratings ever (to retain the employee and continue the indentured-ness)..

    in this case, there is no job replacement/unavailability as you point out, and no one really complains about it since it’s not affecting anyone’s job ‘directly’.

    speaking of age, while all the cases that are brought to limelight seem to be genuine and true cases of discrimination, i have also seen cases where and elderly employee clearly sharing with co-employees that he could ‘retire’ but the employer-based healthplan is very good and will wait for few more years to retire..too, have seen an elderly employee or two walk out daily in the afternoons and take long naps in the car in the employers parking lot.. (maybe that individual is utilizing the flexi work policy).. agreed these may be exceptions to the rule, just thought would throw it out there… (the one taking nap was fired eventually and the one wanting to retire did it gracefully)

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    • The indentured servitude issue does get mentioned by others, but only occasionally, as you mention. It really doesn’t get noticed.

      I should point out that on the age issue, my standard statement is that the problems begin at age 35 — not 55. I’m generally not talking about people who are close to retirement, though of course things like you describe do happen sometimes.

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    • I can totally understand remaining employed for the health insurance.

      In the not too distant past, the only way to obtain health insurance for an individual and his dependents – especially if they has a pre-existing conditions – was to remain employed. In my state, getting into the high risk health insurance pool required that you could not obtain insurance and had to be uninsured for a period of at least 6 months. When you have a disabled dependent like we do who has a medical condition that if it goes critical has a life expectancy of less than 6 months if not treated aggressively yet is not considered an emergency qualifying for ER department Medicaid. Keeping him alone covered by health insurance via COBRA and now a private plan takes 12% -15% of our disposable retirement income.

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