Who is standing up for the rights of American workers?
GOP President Donald Trump and the GOP-led U.S. Congress seem to be determined to eliminate worker rights rather than to expand them. Trump has reversed a bevy of pro-labor measures that former Democratic President Barack Obama enacted on his own without Congressional backing. Meanwhile, workers continue to seethe about mostly Democratic trade policies that sent American jobs to other countries.
Labor unions are barely hanging on, despite the fact that unions pioneered many of the employment benefits that workers take for granted today. In 2016, the union rate for private sector workers was 6.4 percent – down from 20.1 percent in 1983. Organized labor is currently battling a potentially crippling effort by Trump and the GOP to prevent unions from requiring nonmembers to pay representation fees.
It may be an understatement to say that advocacy of worker rights does not appear to be high on the agendas of the Equal Employment Opportunity Commission and US. Department of Labor.
Under the Democratic administration of President Barack Obama, the EEOC shifted its focus away from filing lawsuits and prosecuting employers who engaged in illegal discrimination. Instead, the EEOC is focused on providing free dispute resolution services to these very same employers. Mediation is often a lousy deal for discrimination victims, who walk away with a pittance to compensate for the loss of a decent job, but it’s always a great deal for employers, who avoid potentially catastrophic fees and damages stemming from a lawsuit. Also, mediation is completely secret so other potential litigants are kept in the dark. Meanwhile, the EEOC has for years ignored one of the most pressing civil rights issues of our day – blatant and epidemic age discrimination in hiring that is particularly devastating to older women, who suffer twice the poverty rate of men in their old age. The EEOC received more than 20,000 age discrimination complaints in 2016; it filed only TWO lawsuits with “age discrimination claims.” Continue reading “Support for American Workers is Hard to Find”
Abuser Goes to Work.com has been named one of the top 75 workplace blogs on the Internet by Feedspot based on Google reputation and search ranking, influence and popularity, quality and consistency of posts.
The dysfunction of American government is on parade this Labor Day, as Republican President Donald Trump reverses labor advances instituted by his Democratic predecessor, Barack Obama.
Trump, ostensibly to eliminate job-killing regulations, has overturned a bevy of Obama-era policies that represented a step forward for women and minority workers. Many of these rules were promulgated by Obama in the form of an executive order, which lacks the imprimatur of Congress and the assurance of permanence. Obama said he was forced to act unilaterally because Republicans wouldn’t cooperate with him.
Government by fiat causes cynicism, wastes government resources and leads to the suffering of vulnerable people
The EEOC has articulated an “analytical framework” for proving cases of intentional discrimination (also known as disparate treatment discrimination).
Unfortunately, the framework has a crater-sized hole – the Judge.
In a decision that recently was upheld by the EEOC Office of Federal Operations (OFO), an Administrative Law Judge (ALJ) dismissed a 2011 age discrimination complaint involving a failure to hire by an agency of the Social Security Administration. There was clear evidence of collusion to cover-up of age discrimination by the hiring officer and his assistant, undisputed proof of interference by SSA attorneys in the investigation of the case by the Equal Employment Opportunity Officer in clear violation of EEOC policy, and the novice, untrained hiring officer admitted that he based his selections entirely on subjective criteria and completely ignored the complainant’s superior qualifications. The judges agreed with the SSA that the hiring officer was within his rights to hire candidates that he deemed a good fit for the SSA’s “culture.” Specifically, the OFO upheld the ALJ’s ruling that reliance on subjective criteria is “appropriate and necessary when the selection, as here, involves the consideration of collegial, professional, teamwork and administrative abilities that do not lend themselves to objective measurement.”
An attorney for the AARP was quoted in The New York Times recently as stating that the Age Discrimination in Employment Act of 1967 “may not be up to the task.” This represents a profound shift for the AARP, which has done little in recent years (if anything) to acknowledge the fundamental legal inequality of older workers under the Age Discrimination in Employment Act of 1967. The AARP states on its web site that the ADEA was passed in 1967 with the “strong backing” of the AARP.
In my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA gives older workers far less protection than Title VII of the Civil Rights Act of 1964 provides to victims of discrimination on the basis of race, sex, religion, color and national origin. For example, the ADEA permits age discrimination if it is based on a reasonable factor other than age (i.e., cost savings). Title VII requires employers to show “business necessity” and to demonstrate there were no alternatives with less discriminatory impact. Victims of age discrimination can recover only monetary damages and if there are none they get nothing. Title VII plaintiffs are entitled to monetary damages plus punitive and compensatory damages (i.e. damages for emotional distress).
Because of legal inequality, millions of older workers have been forced out of the workplace and into an impoverished retirement since the Great Recession.
Mind you, there has never been any intellectual or moral justification for treating age discrimination differently than other types of discrimination – all discrimination is based on fear, false stereotypes, and animus directed toward a specific group. If workers are not capable of doing a job due to age-related decline, they can be dismissed. That’s not discrimination.
What Prompted The Change?
I contacted the AARP earlier this week to applaud the organization for finally acknowledging the ADEA “may not be up to the task” of preventing older workers from irrational and harmful discrimination. I then asked the AARP officials whether their position was influenced by my book, which is the first to challenge the fundamental legal inequality of older workers under the ADEA. I observed the AARP had never acknowledged the book – or a follow up companion work, Overcoming Age Discrimination in Employment – despite my efforts to bring these works to the attention of the AARP and the readers of its publications. I said that capitalizing on my work without giving me credit is disrespectful and intellectually dishonest. The AARP officials insisted they have been working hard (sometimes behind the scenes) all these years to battle age discrimination in employment. They did not confirm or deny that my work had influenced their change of heart about the ADEA but suggested that “this should not be about who gets credit, but rather, about how best to improve the lives of older workers.”
This is about improving the lives of older workers but it is also about credit.
I care about credit for the same reason the AARP cares about its brand as the advocate for the rights of Americans over the age of 50. The AARP’s brand name establishes its credibility and helps the AARP sell Medi-gap health insurance and European vacations.
I suggested it would be appropriate for the AARP to give credit where credit is due; that the AARP should do what it should have done in 2014 and acknowledge the publication of Betrayed; The Legalization of Age Discrimination in the Workplace and the important ideas that are contained within the book. These ideas appear to have been powerful enough to make the AARP question the insufficiency of the ADEA.
The AARP assured me that it has been as active as it can be in fighting age discrimination and wished me good luck in my future endeavors!
Now that the AARP has acknowledged the ADEA may not be up to the task of protecting older workers, one can only hope the AARP will recognize other areas in which age discrimination has been legalized in the Untied States. The AARP was silent when former President Barack Obama in 2010 signed an executive order allowing our nation’s largest employer, the federal government, to blatantly discriminate in hiring on the basis of age and then again in 2015 when Obama’s Labor Secretary Thomas Perez, now chair of the Democratic Party, endorsed a private initiative by Starbucks and other major American corporations to hire only younger workers in clear violation of the ADEA. I wrote about both of these issues in my employment law blogs, as well as the EEOC’s consistent failure to devote significant resources to prosecute age discrimination. In the New York Times, it was reported: “Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.” The reporter said the AARP’s list was assembled in July, about six months after I reported the EEOC had only filed two cases with age discrimination claims in 2016. But who’s counting?
A sad series of tweets and counter-tweets this week have led to cries of bullying in our nation’s capitol.
U.S. Sen. Richard Blumenthal, D-CT, was quoted on television as calling for a law to prevent President Donald Trump from firing Special Counsel Robert Mueller, who has impaneled a grand jury and may be expanding his initial investigation into Russian interference in the election. This prompted Trump to accuse Blumenthal of being “a phony Vietnam con artist.”
Blumenthal is a man of integrity with a record of distinguished public service… but he isn’t perfect. Some years ago, in the heat of politics, Blumenthal exaggerated his military experience. Blumenthal let voters in Connecticut believe that he had served in Vietnam. He was forced to call a press conference in 2010 and admit that while he served as a member of the Marines Corps Reserves from 1970-1976 he had never served overseas. Blumenthal was emotional at the press conference and reportedly cried.
Trump, who got five draft deferments and never served in the military, has astutely observed that the Vietnam War flap is an acute embarrassment to Blumenthal. So Trump brings it up every time Blumenthal has the temerity to criticize Trump’s administration. On Monday, he tweeted: “I think Senator Blumenthal should take a nice long vacation in Vietnam, where he lied about his service, so he can at least say he was there.”
A few months ago, Blumenthal objected to Trump’s dismissal of FBI Director James Comey and Trump tweeted that Blumenthal had “cried like a baby and begged for forgiveness” at the 2010 press conference. The reference to “baby” appeared to be an attempt to demean Blumenthal’s manhood. In a gross overstatement, Trump also accused “‘Richie” of devising “one of the greatest military frauds in U.S. history.”
Blumenthal has vowed that Trump’s bullying won’t intimidate him ( though one worries it may deter some of Blumenthal’s less courageous and equally imperfect colleagues). And if anyone can stand up to Trump’s tweets, Blumenthal is up for the task. “It’s not about me… Our national security and rule of law is at risk. And that’s where our focus should be. It is not about me,” he told The Hill.
Is Trump bullying Blumenthal? Not in the traditional sense of the word. Bullying is associated with a power differential. A bully has more power than his or her victim and uses that power to repeatedly harm the victim. Blumenthal is not a 99-pound weakling. Blumenthal is a powerful Democrat whose intent is clear – he knows the Special Prosecutor could severely damage Trump’s presidency. And Trump poses no threat to Blumenthal, who was elected to a second term in the Senate by Connecticut voters last year with the largest vote margin in the history of statewide elections in the state. Continue reading “Sen. Blumenthal v. Pres. Trump: Is Trump a Bully?”
A federal appeals court recently rejected a ruling by the National Labor Relations Board (NLRB) that potentially limited the scope of employer anti-harassment policies.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in Atlanta overruled the NLRB by upholding the following workplace conduct provisions in a T-Mobile employee handbook:
Employees should “maintain a positive work environment”; and
It is”unacceptable” for employees to engage “arguing or fighting” with co-workers, “failing to treat others with respect,” and “failing to demonstrate teamwork.”
However, the 5th Circuit let stand the NLRB’s ruling that a provision in the employee handbook prohibiting all photography and audio or video recording in the workplace violated the National Labor Relations Act. The panel said a reasonable employee “would interpret it to discourage protected activity, such as even an off-duty employee photographing a wage schedule posted on a corporate bulletin board.”
T-Mobile had argued the recording ban was intended to prevent harassment and maintain individual privacy.
So Gary Namie, a co-founder of the Workplace Bullying Institute, has announced the WBI will offer a three-day “Workplace Bullying University” in October that will cost upwards of $2,000 to attend.
The faculty are Namie, who calls himself “North America’s foremost authority on workplace bullying,” and Ruth Namie, his wife, a clinical psychologist and former workplace bullying target who says she is “the definitive expert on the devastating effects of bullying on targeted workers.”
Meanwhile, the WBI web site advertises sundry programs for employers, personal “low cost” consultations for targets of bullying, books, DVDs, etc. Alas, the Institute has announced it is no longer giving free advice to telephone callers.
The Bellingham, Wash.-based WBI is a veritable hive of capitalism. all revolving around workplace bullying, a serious problem affecting one in every three or four workers in the United States that has eluded a solution for decades.
Could one impediment to progress be the WBI?
Since 2001, the WBI has championed a plodding state-by-state solution to the problem of workplace bullying, rather than a targeted national approach. The WBI recently claimed that Rhode Island will be the 30th state to consider the WBI’s seriously flawed proposed anti-bullying legislation, The Healthy Workplace Bill. If by some miracle, a state does finally pass the WBI’s proposed bill, it is anyone’s guess how long it will take for the second state to do so. It is almost inconceivable that so-called business friendly states ever will adopt such a bill. Continue reading “Workplace bullying is a hot commodity but still no solution”
Akbar Al Baker, the CEO of Qatar Airlines, has apologized for calling U.S. flight attendants “grandmothers” during a recent speech at a private event in Ireland. He said the average age of Qatar Airways’ cabin crew is just 26, whereas passengers on U.S airlines are “always being served by grandmothers.”
Baker later wrote a pro forma letter of apology to the Association of Flight Attendants (AFA). “For the cabin crew serving aboard all air carriers, professionalism, skill and dedication are the qualities that matter. I was wrong to imply that other factors, like age, are relevant,” he said.
Sara Nelson, president of the AFA, accepted Baker’s apology, noting that his comments “were heard loud and clear by airline workers around the world.” She complained that Qatar Airlines receives massive subsidies in violation of international rules on competition. “I hope your apology marks the beginning of a reevaluation by you and your airline to adhere to the same rules that the rest of the aviation industry has been following for years,” she said.
Tens of thousands of U.S. jobs have been reserved for younger workers since 2012 under the U.S. Office of Personnel Management’s on-going Pathways Program, which permits federal agencies to limit hiring to recent college graduates.
In response to a Freedom of Information request, the OPM disclosed on June 13 that a total of 29,595 candidates were selected for employment under the Pathways Program from May 2012 to Fiscal Year 2014. Of the total, 27,423 were under the age of 40 and 2,172 were over the age of 40. The OPM claims its data only covers that period but clearly the loss of opportunity to work for the federal government continues for older workers. It is fair to assume that older workers have been barred from applying for at least 60,000 federal jobs.
Of the total, 92.7 % of the Pathways Program hires were UNDER the age of 40; only 7.3 % were OVER the age of 40.
The Pathways Program permits federal agencies to limit hiring to applicants who apply within two years of earning a post-high school or college degree. Specifically, the program is “open to applicants who have completed a qualifying post-high school educational program (e.g., technical or vocational school; two-or-four year college or university; graduate or professional school) within the preceding two years.” Veterans have six years to apply.
The OPM disingenuously took the position that any individual who meets the qualification can apply regardless of age. However, as the OPM’s letter shows, the vast majority of recent college graduates are under the age of 40. The program represents a form of age discrimination in violation of the Age Discrimination in Employment Act of 1967 called disparate impact discrimination. The hiring policy is a seemingly neutral policy that has a egregious disproportionate and adverse affect on older workers.
Former President Barack H. Obama sought to create an exception to the ADEA when he created the Pathways Program by signing Executive Order 13562 into law on December 27, 2010. Without citing any research or other supporting documentation, Obama claimed the federal government was at a disadvantage in hiring young people due to the competitive hiring process. The Pathways Program took effect on January 6, 2012, sixty days after the OPM issued regulations to implement the program.
Unfortunately, neither the EEOC nor the AARP, which claims to represent older Americans, acknowledged the discriminatory impact of the Executive Order at the time or took any subsequent steps to oppose it. This blog raised the issue of age discrimination in the Pathways Program several years ago but business continues as usual.
As a result of the Pathways Program, older workers, still suffering from the ravages of the Great Recession, were barred from participating in the recovery. The federal government is the nation’s largest employer.
Three years ago, when I first wrote about the Pathways Program, I observed with some incredulity that my blog might be the only source in the nation that has acknowledge the devastating impact of the Pathways Program on older workers. I noted the Pathways Program not only discriminates against older workers but it sends a message to the private sector that age discrimination in hiring is acceptable and it likely discouraged enforcement of the ADEA by the EEOC.
The FOI request was filed by a job seeker who has filed an age discrimination complaint with the EEOC alleging age discrimination in hiring by the federal government.