You might think it would be an embarrassment to our nation’s largest employer – the federal government – that corporate America is defending age discrimination in hiring by pointing out the U.S. government engages in the same behavior.
Most recently, the Equal Employment Advisory Council (EEAC), an association of America’s 250 largest corporations, filed a friend-of-the-court brief in an age discrimination case in which it opposed allowing older job applicants to file disparate impact lawsuits challenging broad-based discriminatory hiring practices. If they are allowed to do so, the EEAC warns, numerous federal programs “most certainly will be impacted… ”
The EEAC goes on to cite various federal training, education and hiring programs that are closed to older workers, including the AmeriCorps National Civilian Community Corps, a residential program open to individuals between the ages of 18 and 24 who perform team-based national and community service, including disaster response and environmental stewardship. Members receive $4,000 for ten months of service, health benefits, $400 a month to pay for childcare and an educational award of $5,730.
Come to think of it, why can’t a 40-year-old join the Corps and dedicate a year of his/her life to community service for the same amount of remuneration?
Last May, the U.S. Chamber of Commerce filed a friend-of-the-court brief in which it defended age discrimination in hiring by noting that even the U.S. Equal Employment Opportunity Commission (EEOC) does it. The Chamber cited the EEOC Attorney Honor Program, which employs in “permanent” positions “third-year law student[s], “full-time graduate law students[s],” and “Judicial Law Clerk[s] whose clerkship must be [their] first significant legal employment following [their] graduation.” The EEOC states on its web site that graduates of the Honor Program go on to serve as trial attorneys or Administrative Judges in the EEOC’s District Offices. The EEOC program appears to have a disparate impact upon older workers because the vast majority of law school students and graduates are under the age of 40.
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.
Mediation is a really good deal for employers but what about workers? Not so much.
In its 2014 performance report, the EEOC states that 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. Mediation is a voluntary process where a neutral mediator assists the employer and employee in reaching an early and confidential resolution of the employment dispute raised in a charge 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.
Here are some of the many ways that employers benefit from the EEOC’s mediation program:
Thanks to the generosity of the American taxpayer, it doesn’t cost employers anything to use this form of alternate dispute resolution. The EEOC doesn’t charge the complainant either but the complainant often has no money because s/he is the victim of illegal discrimination. There’s a difference.
The employer usually has a major advantage because it is represented by an experienced attorney while the complainant often can’t afford to hire an attorney and his or her only knowledge about the legal process is derived from television shows like Law and Order.
A settlement costs the employer practically nothing compared to the cost of responding to an EEOC investigation and then litigating a lawsuit , which would likely exceed $100,000. If the employer loses the case, add on damages and the plaintiff’s attorney fees.
No one has to know! It’s all secret.
What’s the down side of mediation for the employer? There aren’t any. Even if the employer fails to achieve a settlement, the employer gains valuable information about the complainant’s case, including his or her evidence, whether the complainant is or will be represented by counsel, and whether the complainant has been so emotionally damaged by discrimination that s/he would be a poor witness in front of a jury. Continue reading “The Considerable Downside of Mediation for Discrimination Victims”
For an employee advocate, there is something vaguely troubling about the EEOC’s 2015 performance report.
For one thing, the agency touts as an achievement that it provided 3,700 “no-cost” educational training and outreach events to business. But why are taxpayers offering free training to business? Employers have a legal obligation to follow U.S. law. Isn’t this the cost of doing business?
As an attorney, I have to pay each year to take legal education programs so that I can keep abreast of the law and renew my law license. Can’t Walmart and Microsoft afford a few bucks to learn how to conform to the nation’s discrimination laws.
More importantly, the EEOC brags that it secured a record $356.6 million for victims of discrimination in private, state and local government, and federal workplaces through mediation, conciliation and settlements. This compares to $65.3 million recovered through litigation. It’s pretty clear where the EEOC’s focus is these days – conciliation and mediation. (It’s hard to know what the EEOC’s $356.6 million in conciliation and mediation settlements really signifies without knowing how many cases were settled, the details of the complaints and the settlements.)
It’s fair to ask what is the cost of this new focus on settlements?
For an employer, a settlement can be more like a pat on the hand than a visit to the woodshed. The worst case scenario is that employers are permitted to worm their way out of serious discrimination liability through free EEOC-sponsored dispute resolution, by paying modest recompense to their victims and agreeing to follow the law for the life of the settlement agreement. Best of all they can avoid paying court costs and attorney fees associated with litigation. Is this the best way to deter discrimination in employment?
It’s not hard to understand the EEOC’s focus on settlements, given the hostility of federal courts to discrimination claims (and the EEOC) and the drum beat of criticism by federal legislators who are beholden to big business for campaign contributions. But is it a good thing?
The EEOC is required by law to engage in conciliation or to “permit” employers to voluntarily comply with discrimination laws before the EEOC files a lawsuit. A unanimous U.S. Supreme Court earlier this year held that federal courts may conduct a “narrow” review of whether the EEOC met its statutory obligation with respect to conciliation. The Court in the case of Mach Mining v. EEOC overturned a ruling by the U.S. Court of Appeals for the 7th Circuit that held courts lack the authority to second-guess the EEOC’s conciliation efforts. This ruling may have emboldened employers to demand more acquiesence from the EEOC.
It’s not hard to understand why the victim would buy into a settlement. Poor and middle-class Americans cannot afford legal counsel and federal discrimination law is a hopeless morass as a result of federal court decisions. One retired federal judge says the courts have essentially “gutted” Title VII of the Civil Rights Act. Moreover, federal courts dismiss employment discrimination cases at a far higher rate than other business cases. A discrimination victim cannot be blamed for taking a pittance rather than spending years before hostile federal court judges, at great personal and financial expense, only to end up with the same pittance or nothing.
You might say, “Well at least the victim got something.” But this kind of thinking makes us all complicit in our broken system of workplace justice
The EEOC states that it achieved “record success” in its conciliation of private-sector charges, with 44 percent of conciliations successfully resolved and 64 percent of systemic investigations resulting in voluntary resolutions. The agency states these “achievements” led to a 6 percent increase in charge resolutions by the EEOC.
Approximately 4,000 fewer charges were filed with the EEOC in FY 2015 compared to FY 2013 (93,727 charges) and there were 10,000 fewer charges compared to FY 2011 (99,947 charges). The economy has certainly improved but are workplaces becoming any fairer? Or have Americans lost faith that our system of justice will do anything about unfairness in the workplace?
The EEOC resolved 92,641 charges and received 89,385 charges in fiscal year 2015.
In FY 2015, the agency filed 142 lawsuits, which is a slight increase from the 133 lawsuits filed in FY 2014 and FY 2012 (122 merits lawsuits) but a sharp decline compared to the number of suits filed in past years (250 or more).
Mediation involves a disinterested third-party who guides the parties to a voluntary resolution.
Note: A major research study was released Monday finding “robust evidence of age discrimination in hirng against older women.” – Is It Harder for Older Workers to Find Jobs? New and Improved Evidence from a Field Experiment by David Neumark, Ian Burn, and Patrick Button
Age discrimination in hiring is epidemic in the United States and much of the reason for this is directly attributed to our own federal government.
It’s almost impossible for individuals to fight age discrimination in hiring because they lack access to critical information, such as the identity of the other candidates and why the successful candidates were chosen. A highly qualified older job applicant may suspect age discrimination but can’t prove it. The evidence is in the hands of the employer, who has no obligation to release it unless it is demanded pursuant to court-ordered discovery in a lawsuit. A lawsuit alleging age discrimination in hiring is almost certain to be dismissed prior to discovery if it is based solely upon speculation. It’s a vicious circle –> no information, no basis for a lawsuit -> no lawsuit, no ability to obtain information.
This is why it is incumbent upon the Equal Employment Opportunity Commission and the U.S. Department of Labor to protect workers from arbitrary discrimination in hiring. But the EEOC and DOL have virtually ignored the problem since it became an epidemic during the Great Recession of 2008.
The EEOC filed 12 lawsuits with age discrimination claims in 2014, compared to 76 lawsuits with Title VII claims (primarily race and sex discrimination) and 49 lawsuits with disability claims. The EEOC filed only 7 lawsuits with age claims in 2013.
Here are somes things that our government can do now to deter age discrimination in hiring:
The EEOC could require employers to provide age-related data, along with data on the race and gender of their employees, in their mandatory EEO-1 Reports, which are due at the end of this month. The EEOC could use this information to identify and prosecute corporate “bad actors” who refuse to hire older workers (i.e. Silicon Valley tech companies). If the EEOC does not accept that it has the regulatory authority to require employerss to provide age data, it could ask Congress for the authority.
The federal government could stop engaging in age discrimination in hiring. Not only does this hurt older workers but it sends a terrible message to private sector employers that age discrimination in hiring is warranted, reasonable, okay and will be tolerated.
U.S. Department of Labor Secretary Thomas E. Perez could withdraw his support for the “100,000 Opportunities Initiative” by America’s top corporations to hire workers between the ages of 16 and 24. This initiative blatantly violates the terms of the ADEA, which prohibits any consideration of age in hiring (except for a few categories of workers to which this does not apply).
President Barack Obama could rescind his 2010 executive order that permits federal agencies to discriminate against job applicants on the basis of age. After all, if the feds can do it, why can’t Silicon Valley?
The EEOC could acknowledge that complaints about age discrimination comprise almost a quarter of all of the complaints the EEOC receives annually but only a tiny fraction of the agency’s investigatory and prosecutorial resources are devoted to the problem. Age discrimination is no less harmful than other illegal and arbitrary discrimination so why does it get such short shrift from the EEOC?
On Monday, there were 1000+ jobs on Monster.com posted by employers and employment agencies seeking to hire “recent graduates” and 1000+ jobs advertising for a “digital native.” Technically, it is unlawful under the ADEA to print or publish a “notice or advertisement” indicating preferences or limitations relating to age. The overwhelming majority of recent graduates and digital natives are under the age of 40. But no one has been held to account in recent years for this widespread practice.
A simple but innovative strategy has had a dramatic impact on the problem of sexual harassment and violence in the tomato growing industry.
Judge Laura Safer Espinoza, Director of the Fair Food Standards Council, told an EEOC task force this week that council participants, including McDonalds and Walmart, pledge to only buy tomatoes from growers who implement a human rights-based code of conduct that is monitored and enforced by the Council.
“This market-driven model has – in four short years of implementation – brought an end to impunity for sexual harassment and sexual violence,” said Safer Espinoza.
Employers should empower bystanders to be part of the solution;
Provide multiple access points for reporting harassment;
Ensure prompt investigations of harassment complaints; and
Take swift disciplinary action when warranted.
Melissa Emmal, Deputy Director of Abused Women’s Aid in Crisis in Anchorage, Alaska, described the success her program has hade in reducing power-based personal violence with a program of bystander training called Green-Dot., ect. “By approaching business owners as allies and offering them simple and effective strategies to make their employees and customers safer, we have greatly deepened the bench of community members actively engaged in violence prevention,” she said.
Heidi-Jane Olguin, CEO of Progressive Management Resources, underscored factors that make training productive. She stressed the need to train all employees, not just managers, every 12-18 months; utilizing live trainers; tailoring the training to the workplace; training in multiple languages when necessary; and training employees, managers, and HR professionals separately.
Other panelists stressed the importance of leadership from the top. Patti Perez, a shareholder at the law firm Ogletree Deakins and president of Puente Consulting, said companies that are truly committed to addressing these issues implement programs, not just policies.
Sophia Cheng, an organizer at Restaurant Opportunities Center of Los Angeles, said that in restaurants, “Even when managers don’t directly harass employees, it’s a management responsibility to foster a safe work environment, including clear anti-harassment policies. Management sets the tone.”
The public is invited to send suggestions on promising practices to prevent workplace harassment to the task force via the EEOC website.
The panel is co-chaired by EEOC Commissioners Chai R. Feldblum and Victoria A. Lipnic.
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.
Age 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.”
Note: The 11th U.S. Circuit Court of Appeals, in a 2-1 ruling in March 2017 declined to expand workplace protections to gays and lesbians under Title VII of the Civil Rights Act of 1964, which already prohibits discrimination on the basis of race, sex, religion and national origin. That ruling in Evans v. Georgia Regional Hospital, is applicable to Georgia, Florida and Alabama.
Harassment on the basis of sexual orientation has been largely ignored in the workplace but this is changing.
Gays, lesbians and transgender workers are not mentioned as a “protected class” under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin. And no federal anti-bullying or anti-harassment laws or regulations protect workers who are not members of a protected class. So workers who were targeted for harassment because they were perceived to be gay, lesbian or transgender historically had little recourse against cruel and harmful harassment.
But the U.S. Equal Employment Opportunity Commission (EEOC) last year held that Title VII’s “broad prohibition of discrimination” on the basis of sex “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances.”
Apparently there was no time in the jam-packed schedule to address the financial havoc wrought upon older Americans by the worst recession in 100 years or the epidemic of age discrimination in hiring that relegates older workers to chronic unemployment, low-paid work, and a financially improvident “early retirement.” The conference will focus on care-giving, “planning for financial security at every age,” nutrition, “the power of inter-generational connections and healthy aging,” universal design, and technology and the future of aging.
Can it be the youthful organizers of the WHCOA are unaware that the Great Recession cost millions of Americans who are now approaching or entering their retirement years their jobs, homes and investments?
A recent AARP survey found that half of older workers who experienced unemployment in the last five years are still not working: 38 percent reported they were unemployed and 12 percent had dropped out of the labor force. To make matters worse, private sector employers in the past two decades eliminated traditional defined benefit pensions. Recent generations financed their retirement with a combination of savings, a traditional defined benefit pension, and Social Security. Two legs of that stool are gone for millions of American workers and Social Security is under attack from the right.
The Economic Security Institute reported in 2013 that nearly half (48 percent) of America’s 41 million seniors are “economically vulnerable,” including 63.3 percent of blacks and 70.1 percent of Hispanics. To be economically vulnerable is to have an income that is less than two times the supplemental poverty threshold (a poverty line more comprehensive than the traditional federal poverty line).
Incredibly, the WHCOA issued briefs on “retirement security” and “elder justice” that do not even mention the recession and age discrimination in employment.
The dismissive treatment of age discrimination in employment by the WHCOA is emblematic of the second-class treatment of older Americans generally by the Obama administration and the U.S. Congress. The WHCOA held in prior years was funded by the Congress under the Older Americans Act Amendments of 1992. According to the WHCOA, Congress did not reauthorize the Older Americans Act nor provide funding for this year’s conference but the U.S. Department of Health and Human Services decided to go ahead with the conference anyway. Continue reading “White House Conf. has no time for ravages of recession, discrimination”
Cathy Ventrell-Monsees, senior counsel for the Equal Employment Opportunity Commission (EEOC), singled out the problem of virulent age discrimination in the high tech industry during a talk Tuesday before the National Press Foundation.
“Some of our offices have made it a priority in looking at age discrimination in the tech industry,” she told journalists during a question and answer period.
Age discrimination in Silicon Valley has been open and flagrant for years, and has been the subject of numerous articles in both this blog and national publications. A class action age discrimination lawsuit was filed against Google, Inc. on April 22 by software engineer Robert Heath who was interviewed but not hired for a position there in 2011 when he was 60-years-of-age. The lawsuit alleges Google has demonstrated a pattern and practice of violating the Age Discrimination in Employment and the California Fair Employment and Housing Act.
Vontrell-Monsees observed that 70% of IT staff surveyed by Information Week said they’ve witnesses or experienced age discrimination. In addition, she said, 42% of age 50+ workers in the high tech industry consider age to be a liability in their career – more than double the rate of other industries. She also pointed to job advertisements in the tech industry for “digital natives,” “recent” or “new” graduates or “Class of 2007 or 2008 preferred”. She said that “there’s no question age discrimination is a challenge for older workers.”
Vontrell-Monsees’ address is significant because the EEOC has ignored an unprecedented increase in age discrimination claims that began with the Great Recession. In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that the number of age discrimination claims jumped from 19,103 in 2007 to an all-time high of 24,582 in 2008. Meanwhile, the number of lawsuits filed by the EEOC with age discrimination claims declined from a modern-day high of 50 in 2006 to a low of seven lawsuits in 2013. This despite the fact that age discrimination catapults older workers into long-term unemployment, forced retirement, and poverty or near poverty in their old age. Having acknowledged the problem, one can only hope the EEOC will now do something about it.
Here are some of other points made by Ventrell-Monsees in her address:
Unemployment for people aged 50 and older more than doubled to 7.6%from 2007 to 2011.
Older workers remain unemployed for the longest periods – 36 weeks in 2011 compared to 26 weeks for younger job seekers.
More than one-third of all unemployed older workers in 2011 had been unemployed for more than a year.
The percentage of age discrimination cases filed by women jumped from 32 percent in 2007 to 45 percent in 2013. She added that proving age discrimination in court is difficult.