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.)