AARP Official Calls Out EEOC on Age Discrimination

December 15, 2015 by 1 Comment

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.

Filed Under: AGE DISCRIMINATION, CULTURE, EEOC Tagged With: , ,

The Considerable Downside of Mediation for Discrimination Victims

November 29, 2015 by 1 Comment

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.

UPHere 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. [Read more…]

Filed Under: DISPATCHES, EEOC, EMPLOYERS Tagged With:

Thoughts About the EEOC’s New Direction

November 24, 2015 by Leave a Comment

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  partnershipworm 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.

Filed Under: EEOC, TITLE VII, U.S. SUPREME COURT

Feds Bear Responsibility for Age Discrimination in Hiring

October 26, 2015 by 1 Comment

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:

  1. 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.
  2. 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.
    1. 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).
    2. 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?
    3. 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 law that is not enforced is an illusion.

Filed Under: DOL, EEOC Tagged With: , , , Thmas E. Perez