EEOC Sues Eli Lilly for Age Discrimination Based on Millennial Hiring Goal

Last week (September 26, 2022) EEOC filed a lawsuit in federal district court in Indiana on behalf of a class of applicants who were allegedly denied employment in pharmaceutical sales representative positions based on their age.

According to the allegations of the suit, Stephen F. Fry, the SVP of Human Resources and Diversity announced a goal at Leadership Town Hall in 2017 that Eli Lilly’s workforce was primarily older workers and had less millennials than the U.S. workforce generally. He allegedly set a goal of hiring 40% “early career” applicants to “make sure that we have a workforce that is distributed . . . by generation.”

EEOC alleges that, after these pronouncements, the company modified its hiring practices to favor younger workers and, as a result, hired fewer older applicants. The suit claims that hiring managers were required to obtain higher levels of review to approve offers to older candidates for certain positions. These hiring practices continued until 2021, according to the suit.

The allegations in EEOC’s suit echoes allegations in a proposed class action lawsuit filed against the company in federal court in Indiana one year ago. In that suit, the plaintiffs alleged that, after CEO David Ricks was hired in 2017, he stated publicly that he wanted to increase the number of millennials in the company’s sales force to 40%. Last week, a docket entry noted that the parties had reached a settlement in the case.

These suits are not the first to allege company-wide efforts to reduce the number of older workers. Earlier this year, former employees filed a suit against IBM alleging that it launched plans to shrink its older workforce and prioritize younger workers. The suit alleged, among other things, that a senior executive of the company referred to older workers as “dinobabies.”

The core lesson of these suits is that discrimination against older workers should remain a key feature of employers’ EEO policies and training. Between the “me too” and BLM movements, many employers have shifted their focus, reducing the “air time” dedicated to other protected classes. Particularly during this period of restructurings and reductions in force because of economic and market conditions, it is critical that employers (and their executives) continue to focus on protections for older workers and other protected classes.

With respect to age discrimination, company policies and training need to focus on how hiring and retention initiatives, reductions in force and restructurings resulting in terminations, are implemented and communicated to employees. There are oft litigated phrases that trigger the ire of enforcement agencies and plaintiffs’ lawyers, including statements about “eliminating deadwood,” “getting new blood,” and eliminating “high-income” workers, and comments that suggest that older workers are less efficient or adept at using or learning technology.

Employers should all strive to maintain a workforce that represents the gender, age or color of the qualified workforce. But, placing impediments to the hiring, advancement or terminating of protected workers is not the answer. Instead, employers and their executives should focus on inclusive and strategic sourcing and recruiting that is designed to attract more qualified candidates from underrepresented groups, but then – critically – treat all candidates equally and hire the most qualified candidates, regardless of their age, gender, affiliation or race.