Hodgson v. Approved Personnel Service, Inc.

529 F.2d 760, 11 Fair Empl. Prac. Cas. (BNA) 688, 1975 U.S. App. LEXIS 12190, 10 Empl. Prac. Dec. (CCH) 10,472
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 28, 1975
DocketNo. 75-1158
StatusPublished
Cited by13 cases

This text of 529 F.2d 760 (Hodgson v. Approved Personnel Service, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hodgson v. Approved Personnel Service, Inc., 529 F.2d 760, 11 Fair Empl. Prac. Cas. (BNA) 688, 1975 U.S. App. LEXIS 12190, 10 Empl. Prac. Dec. (CCH) 10,472 (4th Cir. 1975).

Opinion

CRAVEN, Circuit Judge:

The Department of Labor sued Approved Personnel Service, Inc., to enjoin alleged violations of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. The complaint alleged that Approved Personnel Service, Inc. (“APS”), a Greensboro, North Carolina, employment agency, “has repeatedly violated, and ... is violating the Act by printing and publishing and causing to be printed and published notices and advertisements relating to classifications and referrals for employment by defendant indicating preferences, limitations, specifications, or discriminations based on age.” The district court found that certain advertisements used by APS had violated the Act, but that others cited by the Department had not. Concluding that the facts of the case made it “an improper one for the issuance of an injunction,” the district court denied relief, and the Department appeals. We reverse and remand with instructions.

I.

In September 1968 a Department compliance officer visited APS to investigate certain company practices involving the wage-hour statutes. A discussion between the compliance officer and the president of APS touched incidentally upon the new Age Discrimination in Employment Act and its applicability to employment agencies. Although APS’s president stated he knew the Act applied [763]*763to his business, from November 1968 until October 1970, APS ran a number of advertisements soliciting job applicants using certain terms and phrases which the Department contends violate the Act. In October 1970 a compliance officer notified APS by telephone that help-wanted advertisements utilizing the term “recent college grad” were prohibited. The point was further impressed upon APS in December 1970 when another compliance officer visited the company’s office and again warned that “recent grads” or similar terms could not be used. APS promised to discontinue the use of such terms.

The promise was not kept.1 On February 8, 1972, the Area Director of the Department’s Wage and Hour Division notified APS by letter that help-wanted advertisements containing such terms as “young,” “boy,” and “recent college graduate” violated the Act. The letter included a copy of the Department’s Interpretative Bulletin No. 860 and requested some assurance from APS that it would comply with the Act. APS’s president responded by letter and advised the Area Director that changes in APS’s advertising would be made.

Whatever changes were made did not satisfy the Department, for in July 1972 APS was again visited by a Department compliance officer. The officer advised APS’s president that because of the company’s repeated violations the Department was forced to turn the matter over for litigation.

At trial, the district judge found that some of the challenged advertisements violated the Act, while others did not.2 He further found that the Department had not “used proper methods of conciliation and persuasion as required by the Act.”3 The district court denied an injunction, even against future use of advertisements clearly in violation of the Act, on two grounds: “first because of the confusion caused by the Secretary himself and, second, because the defendant has ceased using the terms in its advertisements. ”

II.

Congress passed the Age Discrimination Act “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.”4 The Act was given a broad reach, and its ultimate impact upon employment practices in the United States is yet to be ascertained.5 We are here presented with our first opportunity to study and apply the statute.

The present appeal involves alleged violations under Section 4(e) of the Act, 29 U.S.C. § 623(e), dealing with employment agency practices.6 Section 4(e) reads:

(e) It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or [764]*764cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.

Section 4(e) speaks in general terms, with a breadth of purpose and design characteristic of the Act as a whole. To assist employment agencies in their efforts to comply with the Act, the Department of Labor has issued Interpretative Bulletin No. 860, 29 C.F.R. § 860. Section 860.92 of the Interpretative Bulletin provides in part:

(b) When help wanted notice or advertisements contain terms and phrases such as “age 25 to 35,” “young,” “boy,” “girl,” “college student,” “recent college graduate,” or others of a similar nature, such a term or phrase discriminates against the employment of older persons and will be considered in violation of the Act.

The Department has published no additional regulations or guidelines applicable to Section 4(e). As a result, the Department, employment agencies, and the courts have only the language of the Act and the Interpretative Bulletin to assist them in determining whether a help-wanted advertisement is discriminatory.

The relief sought here, an injunction against future violations of Section 4(e), is provided for in Section 7(b) of the Act, 29 U.S.C. § 626(b). In addition, Section 7(b) requires that:

Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

Only after such attempts have failed is the Secretary authorized to bring suit to compel obedience.

The district court felt that the Department had not made meaningful attempts to secure voluntary compliance from APS.7 We disagree. During the four-year period covered by this litigation, the Department contacted APS at least five times. Visits, telephone calls, and correspondence by Department personnel were part of a patient but unsuccessful effort to persuade APS to obey the law.

The earnest pledges given at trial by APS’s management that it would not again violate the Act, if believed, are not dispositive of the Secretary’s entitlement to injunctive relief. The fact is the company did not stop its use of prohibited advertisements until after the Department had filed suit. Understandably, the Secretary has had enough of APS’s promises. If APS really intends to comply with the Act, its future business conduct will in no way be inhibited by an injunction.

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529 F.2d 760, 11 Fair Empl. Prac. Cas. (BNA) 688, 1975 U.S. App. LEXIS 12190, 10 Empl. Prac. Dec. (CCH) 10,472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodgson-v-approved-personnel-service-inc-ca4-1975.