It would seem to be patently illegal to accord lesser treatment to discrimination victims on the basis of age as opposed to race, sex, religion, color and national origin.
Yet, this is the law of our land.
The U.S. Supreme Court has consistently ruled that older workers are entitled to less protection from age discrimination than victims of discrimination the basis of race, sex, color, national origin and religion. The U.S. Congress 50 years ago adopted the Age Discrimination in Employment Act, which is far weaker than Title VII of the Civil Rights Act of 1963. The U.S. Office of Personnel Management has operated a discriminatory hiring program for years, depriving older workers of tens of thousands of job.
And now the EEOC, the regulatory agency charged with protecting older workers from age discrimination, has sanctioned second-class treatment of older workers in hiring by the federal government.
It’s hard to square legalized age discrimination with the Equal Protection Clause of the Fourteenth Amendment, which says no state shall deny to any person within its jurisdiction “the equal protection of the laws.” The Equal Protection Clause is extended to the federal government through the Fifth Amendment Due Process Clause. And it’s even harder to square legalized age discrimination with the Universal Declaration of Human Rights, Article 23, which declares: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” The U.S. was a leader in the movement to adopt the Universal Declaration of Human Rights in 1948.
The U.S. Supreme Court bases its unequal treatment of older workers on an absurd falsity.
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”
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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 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.
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.
The callback rate for job applicants begins to fall significantly around the age of 40-45 and is close to zero by the age of 70.
This was the “striking” finding of a recent Swedish study in which more than 6,000 fictitious resumes were sent to 2,000 employers with job vacancies from 2015 – 2016. The study, The Effect of Age and Gender on Labor Demand – Evidence from a Field Experiment, was conducted by the Swedish Institute for Evaluation of Labour Market and Education Policy. The authors are Magnus Carlsson of the Center for Labor Market and Discrimination Studies at Linnaeus University and economist Stefan Eriksson of Uppsala University.
On average, the study found that each year of aging reduces the call back rate of a job applicant between the ages of 35 and 70 by about one half a percentage point.
The authors note that it is unreasonable to conclude that workers in their early 40s lack important occupational skills, have low physical strength or bad health. Therefore, they say, the “main story of age discrimination in the labor market is not about being old, say above age 55, but rather about not being young, say below age 40-45.”
The authors suggest that employers fear workers in their early 40s have started to lose the ability to learn new tasks, flexibility and adaptability, and ambition.
The authors write that the call back rate for women drops at a much steeper rate than that of men after the age of 35.
Th study concludes that age discrimination is a “widespread phenomenon, affecting workers much younger than the age where employers consider them as old (which occurs at age 54 according to our employer survey).
The study encompassed seven occupations that had a job advertisement on the website of the Swedish Public Employment Service. These include administrative assistants, chefs, cleaners, food serving and waitresses, retail sales persons and cashiers, sales representative sand truck drivers.
* The jury was declared deadlocked in Bill Cosby’s trial on 6/17/17. It is time for the court system to seriously examine why our criminal justice system cannot hold a rich and powerful man responsible for sexually assaulting scores of women whom he has drugged into a state of paralyzes. PGB
According to the news report, all eyes were on Bill Cosby’s wife, Camille Cosby, as she entered the courtroom and found her seat while the judge was speaking.
“By allowing Cosby’s wife to enter the courtroom in the middle of proceedings while the judge was speaking, officials extended her an extraordinary and unprecedented courtesy that had not been afforded to others in the crowded courtroom. Members of the audience, including some of Cosby’s other accusers who are not testifying, have not even been allowed to leave the courtroom in the midst of proceedings for bathroom breaks without being blocked from re-entering.”
Meanwhile, Cosby attorney Brian McMonagle branded as a “stone cold” liar Cosby’s accuser, Andrea Constand, a former Temple University women’s basketball staffer who says Cosby drugged and sexually assaulted her in 2004. And he argued the approximately 60 other Cosby accusers were merely seeking to appear on television and the Dr. Phil show, including Victoria Valentino and Linda Kirkpatrick, who sat in the last of eight jammed rows of padded wooden benches.
According to Reuters, “Camille Cosby has been deposed in a civil suit filed by an accuser and had been active behind the scenes in developing strategy in the criminal case, according to sources familiar with defense preparations. But she has made no public appearances related to the criminal proceedings. That is, until Monday.”
Camille Cosby, a “philanthropist” and art collector, is accorded great deference in the court system, though it appears she looked the other way for decades, while her husband allegedly drugged and raped scores of women. Whereas the victims, many of whom told startlingly similar tales of being drugged and assaulted by a wealthy, powerful man, are demeaned as liars and manipulator.
U.S. Sen. Jeff Flake, R-AZ, a proponent of U.S. President Donald Trump, has adopted a “code of conduct” for a planned town meeting tomorrow at the Mesa Convention Center, near Phoenix.
It is likely that some people in Sen.Flake’s district are upset with his support of Trump’s agenda, particularly that part of the agenda which threatens reasonable labor protections, meaningful health care for all, and environmental regulations that may just save the world for one more generation. It’s even possible that things will get uncomfortable for Sen. Flake, a former executive director of the Goldwater Institute.
So. Sen. Flake, who was elected to the Senate in 2013, has published a code of conduct for the meeting that contains the following provisions:
“Attendees with signs, banners or objects that create a disturbance will not be admitted.”
“To ensure a safe, enjoyable, and productive town hall, all attendees must comply with posted and audible instructions and failure to comply will result in immediate removal.”
“Constituents may begin to park or line up on the property one hour before the program begins. Doors will open an hour before the program begins.”
A progressive feminist nitpicker might find fault with Sen. Flake’s code of conduct. For one thing, the code seems designed to limit the speech of Sen. Flake’s critics. It is not likely that he is concerned about signage that applauds his performance in office.
The U.S. Supreme Court repeatedly has ruled that political signs are entitled to free speech protection under the First Amendment to the U.S. Constitution. The government cannot impose “content-based regulations” on political speech. For example, the government cannot decide that signs which approve of the government are admissible but signs that express displeasure about the government are not admissible. The Court also says it is perfectly okay if free speech creates a disturbance.
In addition, would the original framers of the U.S. Constitution deny citizens admission to a town hall meeting because they carried signs that were critical of government?