Victoria A. Lipnic, the acting chairperson of the EEOC, earlier this month called for a “thorough review” of the Age Discrimination in Employment Act of 1967 (ADEA).
The chairperson of the U.S. Senate Special Committee on Aging, Sen. Susan Collins, questioned why age discrimination is treated differently under the law than discrimination on the basis of race, sex, religion, color and national origin.
The above statements represent a sea change in thinking about age discrimination in employment, which has long been epidemic, unaddressed and invisible in American society.
It is also significant that an attorney for the AARP suggested in 2017 – for the first time – that the ADEA is not up to the task of addressing age discrimination. The AARP claims to advocate for Americans over the age of 50 but has had little impact on age discrimination in employment in the past 50 years, while reaping billions from licensing deals with medical, internet and travel providers that exploit its supposed 38 million membership base Over the years, the AARP issued press releases (a.k.a.marketing materials) about surveys and studies and a tiny AARP legal advocacy team filed occasional lawsuits or “friend of the court” briefs in age discrimination cases. But the AARP never put its money where its mouth is, which raises questions about whether the AARP’s advocacy mission is overwhelmed by a conflict of interest with AARP’s mammoth profit-making enterprise.
When I began writing about age discrimination in 2011, there was virtually no understanding that the ADEA actually legalizes a broad swatch of age discrimination that is illegal under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. In my groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in Employment, I painstakingly documented how that older workers are second class citizens under U.S. law, deprived of their right to equal protection under the U.S. Constitution. Not only is the ADEA far weaker than Title VII but the U.S. Supreme Court accords laws that discriminate on the basis of age its lowest level of review – mere rationality – far lower than laws that discriminate due to race or sex. As a result of legal inequality, older workers (primarily women) are driven from the workforce, disproportionately dumped into long-term unemployment, forced to spend down their savings and to take low-paid temp and part-time work. Many have no choice but to retire as soon as they can collect Social Security benefits, triggering a significant reduction in their benefits for the rest of their lives.
While age discrimination in employment remains epidemic and unaddressed, the statements of Lipnic, Collins and the AARP indicate it might be slightly more visible.
If Lipnic and Sen. Collins follow through, 2018 may finally see some progress in addressing the epidemic of age discrimination in hiring.
Certainly, the past year, which marked the 50th anniversary of the ADEA, was nothing to celebrate for older workers.
- On December 15, 2017, the ADEA turned 50. This landmark anniversary went virtually unmarked and unheralded.
- In what should be a national scandal, the EEOC upheld administrative rulings in two age discrimination complaints by its appeals division, the Office of Federal Operations, that are grossly unfair and even discriminatory. The business community – which the EEOC is supposed to be regulating – was shown to be more progressive with respect to age discrimination than the EEOC. Also, after filing only TWO lawsuits with age discrimination claims in 2016, the EEOC, filed a paltry 12 lawsuits with age discrimination claims in 2017. The EEOC has received more than 20,000 age discrimination complaints a year since the recession. Moreover, actual age discrimination by the EEOC and other federal agencies appears to be undermining efforts in the private sector to address the problem of age discrimination in hiring.
- The White House under President Barack Obama made things much, much worse for older workers. Obama signed an executive order in 2010 that created an exception to the ADEA for federal agencies that effectively bars older workers from applying for federal jobs. It was learned in 2017 that older workers lost almost 100,000 jobs to “recent graduates” from 2012 to July 2017. Obama also sent a clear signal to the private sector that age discrimination is justified and will be tolerated. Obama’s Labor Secretary Thomas Perez, now the Democratic National Committee Chairperson, actually endorsed a private initiative in 2015 by America’s major corporations that blatantly violate the ADEA. Also in 2015, the White House held a Conference on Aging that ignored repeated pleas to address the devastating impact of the Great Recession and age discrimination on older workers, choosing instead to focus on “safe” issues like healthy aging.
- Research in recent years shows that older women are the primary victims of age discrimination in hiring, the major problem facing older workers today. And women suffer age discrimination about a decade earlier than men do. The National Institute on Retirement Security states that women are 80 percent more likely than men to be impoverished at age 65 and older. Yet, civil rights and women’s groups continued in 2017 to ignore the issue of age discrimination in employment.
Last year was one out of a long line of horrendous years for older workers in the federal court system, which has eviscerated the already weak ADEA.
The U.S. Supreme Court in 2017 declined to review an age discrimination ruling by a federal appeals court based in Atlanta in 2017 that highlights the inadequacy of the ADEA. The Eleventh Circuit Court of Appeals ruled in Villarreal v. R.J. Reynolds Tobacco Co. that systemic age discrimination in the recruitment of workers is not illegal under the ADEA because the ADEA protects only current employees. The ruling remains in effect for residents of Alabama, Georgia and Florida and is now being cited as a precedent to follow in other jurisdictions. The 11th Circuit also held that unsuccessful job applicants must diligently pursue why they weren’t offered the job, even if they apply for hundreds of positions on-line and never receive any response. Reynolds told recruiting firms to “stay away from” applicants who had eight to ten years of sales experience and to target recent graduates. Of the 1,024 sales manager hired by Reynolds between 2007 and 2010, only 19 were over the age of 40.
Suffice to say, there’s lots of work to do.
The U.S. Senate Special Committee on Aging must hold hearings in 2018 to address the inability of the ADEA to protect older workers and the EEOC’s failure to effectively enforce or even adhere to the ADEA.
In my book, I proposed repealing the ADEA and adding age as a protected class to Title VII, which was originally proposed when Congress was debating adoption of Title VII in 1964. Age was omitted because it was felt more study was needed on the problem.