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BRENNAN v. PARAGON EMPL. AGENCY

March 26, 1973

Peter J. Brennan, Secretary of Labor, Plaintiff,
v.
Paragon Employment Agency, Inc. et al., Defendants


Knapp, District Judge.


The opinion of the court was delivered by: KNAPP

KNAPP, District Judge.

This action for injunctive relief was brought by the Secretary of Labor under the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. § 621 et seq. At a pretrial conference held before me on February 20, 1973, I granted permission to defendants' counsel to withdraw and to the individual defendant to proceed pro se. I ruled that defendant's position as expressed at the conference be treated as a motion to dismiss the complaint for failure to state a cause of action. Plaintiff has submitted a memorandum in opposition to that motion.

 The complaint alleges that defendant Evelyn Lane, who is the President of the defendant employment agency, ran advertisements which violated section 623(e) of the Act, that attempts at conciliation have been unsuccessful, and that injunctive relief is therefore appropriate. No particulars as to the nature, time or place of the alleged violations appear in the complaint. However, at the conference and in plaintiff's memorandum in opposition to this motion, it has been brought out that the offending advertisements were printed in the New York Times and sought "college [students]", "girls", "boys" *fn1" and "June graduates" to work for Ms. Lane at her employment agency.

 Section 623(e) provides:

 
"It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause 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."

 This section is enforceable by

 
". . . such legal or equitable relief as may be appropriate to effectuate the purposes of the Act . . ." § 626(b).

 An interpretative bulletin issued by the Labor Department construes section 4(e) as follows:

 
"(a) * * *
 
(b) When help wanted notices 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 . . ." 29 C.F.R. § 860.92

 Section 623(f) of the Act provides:

 
"It shall not be unlawful for an employer, employment agency, or labor organization --
 
(1) to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age;"

 The word "employer" is defined in the Act as "a person engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: . . ." 29 U.S.C.A. § 630(b). In contrast, the definition of any employment agency does not exclude even the smallest business. § 630(c). While the legislative history is silent as to the reasons for the distinction, it may ...


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