A federal agency’s bogus battle to keep college grads out of work

One of the most efficient ways for American employers to fill entry-level positions is through college-campus recruiting and similar programs, which bring the employers directly to younger workers.

Such programs are extraordinarily convenient for the students, too, as they allow them to interview with multiple employers in a short time-frame at a location that’s convenient for them. It’s very possible that many readers of this article got their first job through just such a program.

{mosads}But in recent years, federal bureaucrats at the Equal Employment Opportunity Commission (EEOC) have declared that such programs should be reclassified as a presumptively illegal form of age discrimination, even when an employer does not intend to discriminate because of age. According to the EEOC, college recruiting may be age discrimination because most students and recent graduates are under the age of 40, and recruiting them therefore has a “disparate impact” on older workers.  

Fortunately for students and parents who pay tuition bills, the EEOC’s extreme theory has no basis in the law. In a recent case called Villarreal v. R.J. Reynolds Tobacco Company, the full U.S. Court of Appeals for the Eleventh Circuit became the fourth federal appellate court to reject the EEOC’s position. The EEOC’s claim was so flimsy that it did not even garner a majority of Clinton and Obama appointees.

The court explained that the federal law that prohibits age discrimination — the Age Discrimination in Employment Act (ADEA) — prohibits only those hiring practices that intentionally discriminate against older workers. No federal appeals court has ever reached a contrary conclusion.

Why do the legal eagles at the EEOC want to discourage recruiting on college campuses and of recent graduates? The EEOC has not revealed why it is trying to outlaw such well-accepted hiring programs. Even more bizarre, the text of the law itself clearly protects only employees, and, absent intentional discrimination, does not extend to “applicants for employment” who are protected by other civil rights laws.  

The EEOC apparently does not care what the law written by Congress says. Instead, the EEOC claims that a regulation issued by the Obama administration makes these hiring programs “discriminatory.”

Of course, the EEOC does not consider itself bound by the regulations that it seeks to impose on the rest of us, and the federal government routinely expresses a preference in hiring for recent graduates and even sponsors hiring programs that favors them. Is it too much to ask that the government comply with the same standards that it seeks to impose on the rest of us?

It would be disastrous to allow employers to be sued for “unintentional” age discrimination every time they engage in an entry-level hiring practice that tends to bring in younger workers who are finishing or recently completed their education. Because such “disparate impact” discrimination claims are nearly always brought as class-action lawsuits, they can easily be used to force employers to pay extortionate settlements rather than risk ruinous liability.

And what kind of strange message is the government trying to send to students, recent graduates, and their parents? The answer appears to be that Americans and their children should work hard, pay college tuition, and then applaud the federal government for discouraging employers to hire students and recent graduates.  

The Trump administration should revise this disastrous, misguided, and lawless attempt to discourage college-hiring programs. The president has nominated two individuals to head the agency. Once in place, they should reverse course and put a stop to the government’s abusive and wasteful attempt to distort the law of age discrimination beyond all recognition.

Diana Furchtgott-Roth is a senior fellow at the Manhattan Institute and director of the Economics21 program. Furchtgott-Roth served on the transition team for President Donald J. Trump. During 2003–05, she was chief economist of the U.S. Department of Labor. In 2001–02, Furchtgott-Roth was chief of staff of President George W. Bush’s Council of Economic Advisers.

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