Discrimination Victims Deserve REAL Justice

The EEOC has asked for public input so here goes:

Why is the EEOC operating the equivalent of a “get out of jail free card” for employers that engage in employment discrimination and retaliation?

When the EEOC determines there is reasonable cause for a charge of discrimination, the agency offers the employer (and the victim) the opportunity to participate in its free mediation program, where a neutral mediator assists the parties in reaching an early and confidential  resolution to a charge of discrimination.

In its 2014 performance report, the EEOC contends the mediation program is a “win for both Employees and Employers” but in the final analysis it is a much bigger win for employers.

The EEOC says its mediation program for private sector complainants  achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination.  The effort yielded $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.

A payout of less than $20,000 per mediation is a bona fide windfall for employers, who might otherwise be forced to spend a hundred thousands dollars or more to defend a lawsuit, plus a potentially staggering damages award.

But $20,000 is a pittance at best for many – if not most – victims of employment discrimination – especially those who lost their jobs or who were not hired because of illegal discrimination.

There’s the rub

The EEOC is not supposed to be in the business of protecting discriminatory employers from the reasonable consequences of their harmful actions. Continue reading “Discrimination Victims Deserve REAL Justice”

The Big Short in the Federal Courts

I recently saw an unsettling movie, The Big Short, about the blatant fraud and corruption on Wall Street  that led to the  global economic collapse and the.Great Recession.

Like many film goers, I felt deeply troubled about the Titanic-sized failure of the American government to protect ordinary Americans from predatory behavior and  criminality by Wall Street bankers and brokers.  But later my thoughts turned to another failure that  is currently being ignored by American government and the press, one that I see as an attorney who writes about  the law and workers who are victims of abuse and discrimination in employment.

There has been undisputed and powerful evidence for years that the federal court system, like America’s  financial system, operates to benefit powerful moneyed interests at the expense of ordinary American workers.  A major indicator of this trend is that federal courts routinely dismiss employment discrimination lawsuits at a far higher rate than other types of business lawsuits.

My book, Betrayed: The Legalization of Age Discrimination in the Workplace, painstakingly documents how the U.S. Congress and  Supreme Court have made it inordinately difficult for workers to prevail in an age discrimination lawsuit.  The Age Discrimination in Employment Act of 1967 ia weak and riddled with loopholes compared to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, national origin and color. The U.S. Supreme Court issued a completely unnecessary ruling in 2009 requiring that age discrimination victims  prove a far higher level of causation than is required under Title VII.  A proposed federal law that would fix the Court’s disastrous ruling has languished in a Congressional committee for six years.  Congress and the Court have legalized discrimination in employment based on age that would be illegal if the victim wore a hijab or hailed from Zimbabwe or Yemen.

At one point last spring, I attempted to contact the Judicial Conference of the United States, a 16-member body (with no citizen representative) that ostensibly runs the federal court system. I wanted to point out that discriminating against employment discrimination victims is tantamount to actual discrimination. I found the Conference’s web site but it contained no contact information. A spokesperson for the Administrative Office of the U.S. Courts (AOC)  suggested that I send my correspondence to the federal circuit court in my jurisdiction, which has a seat on the Conference body.  In exasperation, I submitted  an “open letter” to whom it might concern requesting legal reform via a web form on the AOC web site. I have concluded, rightly or wrongly, that the “leadership” of our federal court system is unapproachable.

In the movie, The Big Short, some savvy observers figured out the housing market was about to collapse and they found a way to make money on the collapse.  It seems likely to me that one day the “bubble” surrounding the federal court system will burst.  Just as there was almost universal faith in the housing market, Americans historically  have shown a high degree of trust in the courts.  That trust is eroded every time the court permits  unscrupulous employers to use the legal system to deny workers respect, dignity and fundamental fairness.

Trust is lost when courts permit employers to use the legal system as a weapon against American workers.

Meanwhile,  President Barack Obama  encouraged age discrimination in hiring when he signed an executive order in 2010 that permits federal agencies to bypass older workers and hire “recent” graduates and  U.S. Labor Secretary Thomas Perez earlier this year endorsed a private initiative by America’s largest corporations that openly discriminates against older workers. The federal government is the nation’s largest employer.

All of this  is happening in plain sight but it has gone largely unreported by the tattered shreds of what remains of America’s once vigorous media.  (I may sound a bit cynical on this score because the 18th richest man in the world, Sheldon Adelson,  a casino operator and major Republican donor who owns a free newspaper in Israel, recently secretly purchased  Nevada’s largest newspaper and immediately began testing the limits of journalism ethics.)

Like the housing market bubble, the bubble in the federal court system is attributable in large part to inattention, neglect and failure of accountability. Continue reading “The Big Short in the Federal Courts”

U.S. Chamber’s Abhorrent Justification of Age Discrimination in Hiring

In the tradition of Scrooge, the patriarchy and the Confederacy of the old South, the U.S. Chamber of Commerce has publicly endorsed age discrimination in hiring as both sound policy and reasonable.

The Chamber asserts its cynical position in an amicus brief filed in the case of  Richard Villarreal, 49, who filed a half-dozen applications to work as a Territory Manager for R.J. Reynolds Tobacco, Co. from 2007 to 2010, when he discovered that Reynolds, working with national staffing agencies, used “resume review guidelines” to weed out the Internet applications of older workers. Reynolds’ guidelines specified that “desired” candidates had “2-3 years out of college” and told recruiters to “stay away from” candidates with eight to 10 years of experience. Villarreal’s resume and the resumes of hundreds of other older job applicants were dumped into a digital trash can.

Fortunately, a three-judge panel of the U.S. Court of Appeal for the 11th Circuit in Atlanta split from several other federal circuits and  rejected the Chamber’s argument.  In a 2-to-1 vote, a panel of three 11th Circuit judges voted that job applicants are permitted under the Age Discrimination in Employment Act of 1967 (ADEA) to file disparate impact lawsuits challenging employer policies and practices that discriminate on the basis of age. (Note: the full appeals court overturned the panel’s decision in October 2017 and ruled that job applicants cannot sue an employer under the Age Discrimination in Employment Act for promulgating policies and practices that discriminate in hiring on the basis of age.)

In its ‘friend of the court’ brief, the Chamber concedes that older workers have far less protection against invidious discrimination under the ADEA than is available to workers on the basis of race, sex, religion, color and national origin under Title VII of the Civil Rights Act of 1964.  The Chamber said the U.S. Congress, in 1967, had “sound policy reasons” to deny older workers equal protection because “[o]lder workers did not face societal headwinds that might lock them into a lifetime of inferior job prospects ….”

Few would argue that slavery was moral or justified because it was legal – This is essentially the Chamber’s argument with respect to age discrimination.

The Chamber’s arguments are terribly flawed. For example, American law permitted the  enslavement of African Americans until the passage of the 13th Amendment to the U.S. Constitution in 1865 and women were denied  the right to vote until 1920.  This in no way justifies slavery or the disenfranchisement of women. Neither does the fact that Congress 50 years ago buckled to business interests and passed an age discrimination law  that was weak and riddled with loopholes.

The Chamber’s reasoning is illogical.  Would the Chamber argue that blind or deaf workers are ineligible for the protection of the Americans with Disabilities Act if they were born with normal sight or hearing but later suffered impairment?  They did not experience a lifetime of inferior job prospects. Nor does Title VII omit immigrants with advanced educations who became subject to discrimination after they arrived in the U.S.    Continue reading “U.S. Chamber’s Abhorrent Justification of Age Discrimination in Hiring”

AARP Official Calls Out EEOC on Age Discrimination

An AARP official has called upon the EEOC to “significantly ramp up” its minimal efforts to combat age discrimination in employment in the United States.

Daniel B. Kohrman, a senior attorney with AARP Foundation Litigation, told a select EEOC panel studying workplace  harassment earlier this month that complaints of age-based workplace harassment grew by about ten percent in the past two years –  from 3,700 in 2012 to 4,157 in 2014 –  which was faster than race and sex-based harassment complaints. However, he said, older workers face unique difficulties in combating harassment and other forms of age discrimination in employment.

Ageism is not treated “as seriously” as other forms of bias, he said.

“First,” he said, “courts, and often our culture, do not treat ageism as seriously as other forms of bias. As a result, age harassment cases often founder because they don’t appear sufficiently severe, even if pervasive, to meet the hostile environment standards.”

Kohrman said some courts demand a level of “animus” to sustain an age-based harassment claim that is not required in the law. He also noted the Age Discrimination in Employment Act does not provide for compensatory (i.e. emotional distress) or punitive damages. An older worker who is not actually fired may not have any legally recognized damages,  he said.

Pot Calling Kettle Black?

This blog has been highly critical of both the AARP and the EEOC for virtually abdicating their responsibility to protect older workers from age discrimination in employment, especially given the epidemic nature of the problem since the Great Recession. In my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show indisputably that older workers literally have been second-class citizens under the law for almost fifty years.

Kohrman indicated that  AARP Foundation Litigation lacks the resources to do more (which is somewhat hard to believe given the fact the Foundation’s parent organization is hauling in billions in profit through sales of Medi-Gap health insurance to seniors).

Groups like AARP Foundation Litigation “may engage in some cases as warranted … [but] capacity for such action generally is limited,” he said. 

Kohrman urged the EEOC to prioritize age discrimination cases, because older workers are essentially  prevented from exercising their rights under employment discrimination statutes.  He cited  three age discrimination lawsuits brought by the EEOC since 2009, adding, “That said, we could only find a few more age-based harassment cases discussed in news releases going back to 2009.”

Kohrman said  research shows that 64 percent of older workers (ages 45-74) say they have seen or experienced age discrimination in the workplace.

Appeals Court Tackles Systemic Age Discrimination in Hiring

For years, it has been widely suspected that older applicants are being screened out of competition for jobs by employers using discriminatory computer software  programs.

This is why a landmark ruling this week  by a three-judge panel of the  U.S. Court of Appeals for the Eleventh Circuit in Atlanta is an important step in the battle against epidemic and systemic age discrimination in hiring.

In a 2-to-1 decision, the panel ruled:

  • The Age Discrimination in Employment Act does not bar job applicants from filing a disparate impact claim, a type of charge that challenges a facially neutral policy that has a disproportionate impact on older workers. This paves the way for older job applicants to file collective actions alleging age discrimination in hiring, a form of class action lawsuits permissible under the ADEA.
  • A job applicant should not be barred from filing an age discrimination lawsuit by the ADEA’s 180-day statute of limitations if the  applicant had no way of knowing that s/he was the victim of age discrimination.  The appeals court said the “clock” starts ticking when the plaintiff has enough information to support a cause of action.

The case was filed by job applicant Richard Villarreal, who submitted multiple online applications to work as a sales manager for RJ Reynolds Tobacco starting in 2007 when Villarreal was 49 years of age. Villarreal did not learn until 2010 that Reynolds had adopted “resume review guidelines” that weeded out older applicants. At that point, he filed a discrimination lawsuit alleging both disparate treatment (intentional discrimination) and disparate impact discrimination. Obstacles embedded in theADEA led to the dismissal of Villarreal’s lawsuit by the lower court.

Specifically, the guidelines tell hiring managers to target candidates who are “2–3 years out of college” but to “stay away from” candidates with “8–10 years” of prior sales experience. 

The appeals court reversed the  lower court’s findings that the ADEA does not permit disparate impact claims and that Villarreal’s lawsuit was not timely under the ADEA’s  180-day statute of llmitations.

With respect to disparate impact claims, the appeals court  deferred to the U.S. Equal Employment Opportunity Commission’s interpretation of the ADEA, which is that job applicants can file disparate impact lawsuits. The appeals court panel writes, “We must defer to the EEOC’s] reading rather than venture our own guess about what the statute means.” The dispute over whether the ADEA authorizes disparate impact lawsuits by job applicants stems from the fact that  Congress amended Title VII of the Civil Rights Act in 1972 to protect “applicants for employment” but never similarly amended the ADEA.

The panel stated that Villarreal simply had too few facts to support an age discrimination claim until 2010 when a statistical analysis showed that  Reynolds had hired  1,024 people as Territory Managers from September 2007 to July 2010 but only 19 were over the age of 40.  The panel applied an equity or fairness-based principle to toll the statute of limitations until Villarreal had sufficient information to support a cause of action.The panel notes that neither the job application nor any other information available to Villarreal “described Rj Reynolds hiring process, the resume review guidelines, or the statistical disparities in the ages of successful applicants.”

Other defendants in the case are Careerbuilder.com, the internet search giant, and Pinstripe, Inc., a technology consulting firm based in Charlotte, NC.

The case is Villarreal v. R.J. Reynolds Tobacco Company, Pinstripe, Inc.  Careerbuilder, LLC.  The ruling technically is only applicable to the 11th Circuit, which  has jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia. According to the dissent, three other federal circuits have held that job applicants cannot file a disparate impact claim. A conflict between the circuits can only be resolved by the U.S. Supreme Court.

Epidemic of Deaths of Middle-Aged Whites Linked to Economic Insecurity

A new study showing a stunning rise in middle-aged white mortality is a terrible indictment of national economic policies that have ignored long-term unemployment of older workers, the loss of traditional pensions, and rampant age discrimination in employment.

Two Princeton economists, Angus Deaton, who recently won the Nobel Memorial Prize in Economics,and Anne Case, have published a study  in which they document a “remarkable”  increase in mortality for whites aged 45 to 54  after a long period of decline. By contrast, the authors write, the mortality rate has continued to decline for middle-aged whites in other rich countries and also for blacks and Hispanics in the United States.*

The authors estimate that a half a million deaths of middle-aged whites would have been avoided from 1999‒2013 if the mortality rate had continued to decline at its previous (1979‒1998) rate of about two percent per year. They compare this loss  to the number of lives lost in the U.S. AIDS epidemic.

Middle-aged whites are dying in a misery-fueled “epidemic of suicides and afflictions stemming from substance abuse, alcoholic liver disease and overdoses of heroin and prescription opioids.”

The authors say the reasons for the epidemic are only “partly understood” but they point to several possible factors, including  “economic insecurity” and “widening wealth inequality.”  They specifically note the U.S. has moved primarily to defined-contribution pensions, which are subject to stock market risk, while, traditional defined benefit pensions are still the norm in Europe.  A traditional pension, along with lifetime savings and Social Security, once were the cornerstone of retirement in the United States.

In my book, Betrayed: The legalization of Age Discrimination in the Workplace,” I discuss the devastating impact of the Great Recession and chronic unemployment due to age discrimination on the health and welfare of older workers.  While ignoring these problems, I note, Congress enacted policies that encouraged the adoptionof risky defined contribution pensions – also known as 401K plans – and did nothing to stop the decline of the traditional defined benefit pensions. Studies show that  half of older Americas today are economically vulnerable due to a loss of savings in the recession, their  inability to find work as a result of age discrimination, and the lack of an employer-sponsored pension.

The authors predict more problems ahead if U.S. workers “perceive stock market risk harder to manage than earnings risk, or if they have contributed inadequately to defined-contribution plans.” Continue reading “Epidemic of Deaths of Middle-Aged Whites Linked to Economic Insecurity”

Age-Insight into Employment Discrimination

The real insight offered byAge-Insight, the Internet tool that guesses the age of Linkedin members,  is the way it has exposed the palpable fear of age discrimination in employment.

After the product was featured on a popular technology web site, Product Hunt,  Linkedin sent a cease and desist notice order to the developer, Juan Ramirez.

Ramirez this week removed the browser add-on from The Chrome Store and posted a notice on his website  saying he would no longer distribute or support the program. Ramirez said he shares the concern that the program “could be easily abused and used by unscrupulous people to discriminate against others.”

Of course, it’s still out there. And  other programs do pretty much the same thing.   For example, Microsoft has an  online tool called How-Old.net that guesses the gender and age of a person based upon an uploaded photo.

The truth is you don’t need a program to guess an individual’s age, race, national origin, and, in some cases, religion based upon their Internet presence.

A fairly accurate estimation is possible simply by looking at the  individual’s photograph, work experience, and the number of jobs they have had.  Even a name can shed light on a person’s ethnic or religious identity and age.  Call me Ishmael?

The answer is not to get rid of Age-Insight and How-Old.net.  The answer is to get serious about penalizing employers who engage in age discrimination.

My book, Betrayed: The Legalization of Age Discrimination in the Workplace, shows indisputably that age discrimination is so pervasive that it is invisible in the United States.  One reason is that the Age Discrimination in Employment Act of 1967 offers far less protection to older workers than Title VII of the Civil Rights Act provides to workers who are subject to discrimination on the basis of race, sex, religion and national origin. I suggest scrapping the ADEA and making age a protected class under Titile VII, so at least older workers receive the same level of protection as other discrimination victims.

EEOC Makes its Presence Known in Silicon Valley

The EEOC this week filed a lawsuit alleging age discrimination in hiring against a Silicon Valley, CA, employer.

No, the EEOC didn’t sue Google or Microsoft. The EEOC sued  the city of Milpitas for violating the Age Discrimination in Employment Act by choosing a younger candidate over older applicants with greater qualifications for the position of executive secretary to the city manager. The city allegedly failed to hire four qualified applicants who scored higher than the person selected in a three-person panel review of the candidates.  The individuals who were not selected were 55, 42, 56 and 58 years old. Instead, EEOC alleges the city hired a younger applicant (age 39) who was less qualified than these people, without a valid justification for disregarding the panel rankings.

EEOCAge discrimination in hiring is particularly blatant in Silicon Valley, where the high-tech industry is notorious for hiring only young workers.  Some Silicon Valley employers unabashedly advertise for job applicants who are “digital natives” and “recent graduates.”

A  60-year-old software engineer who was not hired by Google in 2011 filed a class action age discrimination lawsuit against Google earlier this year. The lawsuit  alleges the company’s workforce is “grossly disproportionate” with respect to age. The lawsuit asserts the median age of the 28,000 employees who worked for Google in 2013 was 29.  The U.S. Department of Labor reports the median age for computer programmers in the United States is 42.8 and the median age for software developers is 40.6.

EEOC Senior Counsel Cathy Ventrell-Monsees, in a speech last summer, singled out open and flagrant age discrimination in the high-tech industry, adding, “Some of our officers have made it a priority in looking at age discrimination in the tech industry.”

 Silicon Valley has been a virtual apartheid ‘state’ for younger workers for years.

The EEOC lawsuit was filed in U.S. District Court, Northern District of California (EEOC v. City of Milpitas, Case No. 5:15-cv-04444) after attempts failed to reach a pre-litigation settlement through its conciliation process.  EEOC’s suit seeks, among other things, monetary damages for the four applicants and injunctive relief intended to prevent a recurrence of age discrimination in City of Milpitas government.

“Older workers continue to face discrimination based on age due to negative stereotypes and inaccurate assumptions about their abilities,” said EEOC San Francisco Acting Regional Attorney Jonathan Peck.  “It is important for employers to ensure that such stereotyping does not impact a person’s ability to be employed.  Employment decisions must be based on merit, not age.”

EEOC San Francisco District Director William R. Tamayo added, “Age discrimination remains a problem, making up 23 percent of all EEOC charges filed in the United States last year.  It is important that employers not ignore the value that older workers can bring to their workforce.”

Censorship by the Library of Congress

*** It’s 2017. Almost two years have gone by since this post was published. The LOC again is celebrating itself for “protecting 160 million plus items” – except for books that are not published by an increasingly small number of corporate book publishers. In other words, the LOC is a backward bureaucracy that ignores important self published books. Americans deserve better!

“I cannot live without books.”

This famous statement by Thomas Jefferson was the theme of a recent National Book Festival held by the Library of Congress (LOC) in Washington, DC.

But the dirty secret is that the LOC can live without certain books – books that are not published by a small number of national and international publishers (i.e. corporations) that apparently have the LOC’s stamp of approval.  In other words, the LOC can live without self-published books.

I know this because the LOC has refused to catalog my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, to make it available to policy-makers who are working on issues involving age discrimination. When I asked why earlier this year, I received the following email on May 18, 2015 from Kurt Carroll, Chief, Law Collection Services:

“The format, level of depth, and policy focus did not meet our criteria for addition to our research collection.  I consider this decision closed and do not wish to discuss further.”

Technically, censorship is the practice of officially examining books, movies, etc., and suppressing unacceptable parts.  In this case, it is not clear whether the LOC bothered to look at my book.   On its face, Carroll’s email is absurd.

Lacks depth? My book delves into law and case law and  is  heavily footnoted. Only a moron would say that it lacks a policy focus. The book is about the lack of equal justice afforded under current American law to older workers who are victims of age discrimination when compared to workers who are victims of discrimination on the basis of race, sex, religion and national origin. It is also about the devastating impact of the Great Recession on older workers due to epidemic and unaddressed aged discrimination. Continue reading “Censorship by the Library of Congress”

White House Summit For ‘New Generation’ of Workers

U.S. Labor Secretary Thomas E. Perez announced this week that the White House will hold a “Summit on Worker Voice” on October 7 to “energize a new generation of Americans to come together and recognize the potential power of their voice at work.”

That’s great but … what about the “older generation” of  American workers?

The Obama administration is currently engaging in the most outrageous assault on the Age Discrimination in Employment Act of 1967 since  2009. That’s the year that the U.S. Supreme Court issued its decision in Gross v. FBL Financial Services that made it far more difficult to win a lawsuit alleging age discrimination than discrimination on the basis of race, sex, religion, national origin and color.

Obama signed an executive order  in 2010 that permits federal agencies to discriminate against older workers.

More recently, Perez endorsed  the 100,000 Opportunities Initiative,  in which America’s leading corporations (Walmart, Starbucks, Microsoft, etc.) have announced plans to discriminate against older workers and hire ” youth”  aged 16 – 24 for tens of thousands of part-time and full-time jobs.  Neither Perez nor Starbucks, the main organizer of the initiative, have explained what legal justification exists for violating the plain the plain language of the Age Discrimination in Employment Act of 1967.  Good intentions cannot justify violating federal discrimination laws.

Reach for American Dream

Perez applauds early labor advocates  for the eight-hour work day and the weekend, noting these benefits were not inevitable but were “demanded by the working people of this nation … who wanted their chance to reach for the American dream.”

How can Perez and Obama justify making it more difficult for older workers to ‘reach for the American dream’?

Continue reading “White House Summit For ‘New Generation’ of Workers”