Solutions Exist to End Workplace Bullying; What is Lacking is the Will to Act

What to do about workplace bullying?

The Boston Globe published an article on the problem of workplace bullying recently that focused on a proposed state-by-state solution that has been touted since 2001 by Gary Namie of the Workplace Bullying Institute and Suffolk University Professor David R. Yamada, author of the proposed  Healthy Workplace Bill (HWB).  Originally introduced in California in 2002, the HWB  has been considered in some form by more than two dozen states. If Massachusetts eventually passes the HWP, that only leaves workers in 49 states,  five territories and the District of Columbia without protection from workplace bullying.

Is this really where all the din and struggle of the past decade has gotten us? The United States is falling even farther behind other western democracies, some of which acted decades ago to protect workers from bullying.

The Globe article also perpetuates the common misconception that all workplace bullies are sadistic bosses and mean-spirited co-workers. In fact, much of the problem can be attributed to unscrupulous employers that use bullying tactics strategically to expel older workers and workers who  demand  better working conditions or a legal right (i.e., overtime pay). The absence of anti-bullying laws and regulations in the United States leave these bottom-of-the-barrel employers free to cut corners and evade their legal responsibilities. Taxpayers are left to pick up the tab in the form of higher social welfare costs.

The Globe article, like so many others, fails to note that there are many possible approaches to the problem of workplace bullying in addition to the HWB. Continue reading “Solutions Exist to End Workplace Bullying; What is Lacking is the Will to Act”

Age Discrimination in Employment Became More Visible in 2017

Victoria A. Lipnic, the acting chairperson of the EEOC, earlier this month called for a “thorough review” of the Age Discrimination in Employment Act of 1967 (ADEA).

The chairperson of the U.S. Senate Special Committee on Aging, Sen. Susan Collins, questioned why age discrimination is treated differently under the law than discrimination on the basis of race, sex, religion, color and national origin.

The above statements represent a sea change in thinking about age discrimination in employment, which has long been epidemic, unaddressed and invisible in American society.

It is also significant that an attorney for the AARP suggested in 2017 – for the first time – that the ADEA is not up to the task of addressing age discrimination. The AARP claims to advocate for Americans over the age of 50 but has had little impact on age discrimination in employment in the past 50 years, while reaping billions from licensing deals with medical, internet and travel providers that exploit its supposed 38 million membership base  Over the years, the AARP issued press releases (a.k.a.marketing materials) about surveys and studies and a tiny AARP legal advocacy team filed occasional lawsuits or “friend of the court” briefs in age discrimination cases.  But the AARP never put its money where its mouth is, which raises questions about whether the AARP’s advocacy mission is overwhelmed by a conflict of interest with AARP’s mammoth profit-making enterprise. Continue reading “Age Discrimination in Employment Became More Visible in 2017”

EEOC Acting Chair says it’s time for “thorough Review” of Age Discrimination in Employment Act

EEOC Acting Chair Victoria Lipnic said Thursday the Age Discrimination in Employment Act of 1967 – which turns 50 Friday – “deserves a thorough review to insure it is meeting the needs of today’s workforce.”

In addition, she said, “We need a cultural awakening. Instead of  negative expectations, how about recognizing the positives? Age diverse teams and cross-generational mentoring produce real benefits for both workers and employers.”

“Utilizing the talent of everyone, regardless of age, is good business. This is talent that our economy cannot afford to waste. . .” – Lipnic

Lipnic was not specific about why she believes the ADEA deserves a thorough review; how the ADEA may be failing to meet the needs of today’s workforce; and whether the ADEA will indeed get the thorough review that it deserves.

Lipnic focused on what she characterized as the ADEA’s success. She noted the ADEA was adopted in 1967 when “age discrimination was blatant. Workers over age 45 were barred from many jobs based solely on their age and mandatory retirement was commonplace for those in their 60s. Since then the ADEA has largely stopped openly discriminatory practices. But age discrimination is still too common and often accepted.” She said older workers continue to confront negative stereotypes and that age discrimination deprives them of their dignity and financial security.

But is the ADEA a success?

Others would point to evidence that age discrimination remains blatant, epidemic and unaddressed 50 years after the ADEA’s adoption.

Continue reading “EEOC Acting Chair says it’s time for “thorough Review” of Age Discrimination in Employment Act”

Senate Aging Committee Pledges to Fight Age Discrimination in Employment

At a hearing on Wednesday, leaders of the U.S. Senate Special Committee on Aging vowed to “fix” a 2009 U.S. Supreme Court decision that makes it very difficult for older workers to fight age discrimination in federal court.

Committee Chairperson Susan Collins, R-ME, and Ranking Leader Bob Casey, D-PA,  also acknowledged the upcoming 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), which was signed by President Lyndon B. Johnson on December 15, 1967.

Collins and Casey addressed the Supreme Court’s catastrophic 2009 decision, in Gross v. FBL Financial Services, which raised the burden of proof in ADEA cases far above that of race or sex discrimination cases under Title VII of the Civil Rights Act of 1964.  Since Gross, older workers have been required prove that age discrimination was not just a motivating factor but the decisive factor in an adverse employment action. The Gross decision legalized a broad swath of  discrimination that is illegal under Title VII and sent a signal to employers that age discrimination will be tolerated.

 “For the life of me,” said Collins, “I don’t understand why there is a higher burden for proving that age discrimination was the reason for the adverse employment action … compared to gender, religion, race.”

The legislators expressed strong support for a bill they are sponsoring, the Protecting Older Workers Against Discrimination Act (POWADA), which would essentially restore the status quo with respect to the plaintiff’s evidentiary burden prior to the Gross decision. The bill  has been introduced several times since 2009 but has never made it out of committee to a vote. Sen. Casey, who worked on age discrimination cases as an attorney, said it was always hard for workers to fight back against insidious age discrimination but that it is even harder today “because the Supreme Court weakened the ADEA and we’ve got to fix that.”

A witness at the hearing, Laurie McCann, a senior attorney for the AARP, urged the Committee to hold a series of hearings to learn what changes are needed to update and strengthen the ADEA to adequately protect older workers. “The AARP believes that it is well past time to update and strengthen the ADEA so that it can respond to the challenges facing today’s older workers in today’s workplace,” she said.

As I demonstrated in my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, the ADEA was far weaker than Title VII when it was adopted 50 years ago and it has since been eviscerated by the U.S. Supreme Court.  In the book, I proposed repealing the ADEA and making age a protected class under Title VII, as was originally proposed when the passage of Title VII was being debated by Congress.

According to McCann, three in ten near-retiree-age (55-64) households have no retirement savings at all and the median retirement savings of all near-retiree households was only $14,500 in 2013. McCann said financial need is by far the most important reason that workers aged 45-74 work. She blamed age discrimination on persistent negative stereotypes and discriminatory employer recruitment practices, including advertising for “digital natives,” specifying a maximum number of years of experience or limiting recruitment to entry-level positions on college campuses.

Financial need is by far the most important reason that workers aged 45-74 work – AARP.

The committee also issued a report on Wednesday examining the nation’s aging workforce, “America’s Aging Workforce: Opportunities and Challenges.”  The report states the number of Americans over age 55 in the labor force is projected to increase from 35.7 million in 2016 to 42.1 million in 2026, and, by 2026, aging workers will make up nearly one quarter of the labor force.  The business case for hiring, retaining, and supporting older workers is strong, according to the report, but challenges exist – including age discrimination, inadequate training opportunities, working while managing health conditions and disabilities, balancing caregiving responsibilities with work, and preparing financially for retirement.

Collins said U.S. employers are going to need older workers in the years ahead and can’t afford to “discard skills and experience that older workers bring to workplace.”

Another witness, Lisa Motta, 54, from Pittsburgh, Pa., testified about re-entering the workforce in her 50s  after having lost her sight. A former teacher, she now works as a recruiting administrator at PNC Bank. “As America’s workforce grows older, more and more workers will face challenges like these and will need additional supports and accommodations,” Motta said. “They will also need laws in place that ensure that when they walk into an interview they do not face any form of discrimination. When we make it easier for these workers to succeed, everyone benefits.”

Prior to Wednesday’s hearing, the Senate aging committee was criticized for failing to act in the face of the epidemic of age discrimination in the workplace that occurred during and since the Great Recession.

Absent from Wednesday’s hearing was a representative from the U.S. Equal Employment Opportunity Commission (EEOC), which has ignored a major spike in age discrimination complaints dsince 2008 and rampant age discrimination in the federal government, and has issued administrative decisions that reflect a higher standard in age discrimination cases than in race or sex discrimination case.

‘Transgender’ Now Accorded More Protection than ‘Age’

There is a national movement going on right now to boycott states that force transgendered individuals to use the restrooms of their biological sex rather than their chosen identity.

Many companies, including  Target, have denounced  laws that restrict  a transgender individual’s choice of bathroom as sex discrimination.  Some major American corporations  have threatened to withdraw from North Carolina because it has limited the right of transgendered individual to use their bathroom of choice. Moreover, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit recently voted 2-1 to uphold the  U.S. Education Dept.’s position that it constitutes illegal sex discrimination to exclude transgender students from the bathrooms of their chosen gender identities.

According to the most frequently cited estimate, 700,000 people in the United States, or about 0.2 to 0.3 percent of the population, identify as transgender.

Compare this to the millions of older workers who each year are subject to epidemic and overt age discrimination in employment with nary a hint of protest or outrage from anyone, including organizations that purport to advocate for older Americans and civil rights.

 Indeed, at this point, transgender people technically have greater rights under the law than older workers to be free from invidious discrimination.

The U.S. Equal Employment Opportunity Commission contends that trangendered individuals are protected by Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, sex, religion, national origin and color. By contrast, age discrimination falls under the Age Discrimination in Employment Act of 1967, (ADEA), which permits “reasonable” age discrimination by employers.   Title VII also contains penalties that are far more onerous than those of the ADEA.

Why have the rights of millions of older Americans to be free from irrational and harmful employment discrimination been ignored for 50 years?

The rights of transgendered individuals are at issue today because advocates in  the gay and lesbian communities and in the entertainment community have taken a public stand to combat ignorance and prejudice against transgendered individuals. This has essentially forced major corporations to adopt policies prohibiting discrimination against the transgendered so as not to be seen as endorsing transgender discrimination.

Alas, the same is not true for older workers.

No one is demanding that Congress  or the courts accord equal rights to older workers under the law, including the AARP, the EEOC  and the American Civil Liberties Union.  Meanwhile, the same corporations that demand rights for the transgendered are engaging in systemic age discrimination.

The plight of older workers began in 1964  when Congress refused to include age as a protected class in Title VII.  After three years of lobbying by business interests, Congress passed the ADEA, a severely watered down version of Title VII that  has exposed generations of older Americans  to wholesale and perfectly legal age discrimination in employment, especially in hiring.

There also is little public sympathy for older workers.  Stereotypes about older people are profoundly negative  (i.e. rigid, feeble, depressed). Older workers often are seen by younger workers as impediments to job advancement and limited resources. Employers, including the U.S. government, treat older workers like an obstacle to a more diverse workforce. Moreover, researchers say many people subconsciously associate aging with death and disease.  There also is little understanding about the long-term and severe impacts of age discrimination, which condemns millions of women  to decades of poverty in their later years.

Of course, these observations are not meant to begrudge transgender individuals their basic human right to be treated with dignity and respect but simply to point out that older Americans too deserve to be free from invidious and harmful  discrimination.  If every type of irrational and harmful  discrimination is treated with the same degree of condemnation and outrage, there will be far less discrimination against all Americans, including transgendered individuals.

Sexual Harassment Victims Forgotten in U.S. Supreme Court Appeal

CRSTOne of the most outrageous court rulings in modern history may be the dismissal of a sex discrimination lawsuit filed by hundreds of female truck driver trainees against CRST Van Expedited Inc., which was then awarded  $4.7 million in attorneys’ fees.

On appeal, the U.S. Court of Appeals for the Eighth Circuit in Missouri upheld the lower court’s dismissal of all but two of the plaintiffs but vacated the attorneys’ fee award. One  of the surviving plaintiffs dropped out of the litigation and the other secured an out of court settlement of $50,000.

This week, CRST asked the U.S. Supreme Court to reinstate the attorneys’ fee award.

The case was a complete train wreck for the EEOC, which initially represented a class of 270 women. Some of the plaintiffs were subject to shocking and violent incidents of  sexual harassment during training runs with CRST male drivers. When they called CRST to complain about the harassment, they were told they had to remain on the truck overnight with the harasser.

After almost six years of litigation, Iowa Chief Judge Linda R. Reade abruptly dismissed the case in its entirety and awarded $4.7 million in attorney fees to CRST.

The 67 alleged sexual harassment victims were denied justice because the EEOC or the U.S. District Court of Iowa (or both) screwed up. Will taxpayers now be forced to pay CRST’s legal bills?

Continue reading “Sexual Harassment Victims Forgotten in U.S. Supreme Court Appeal”

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”

NPR’s Diversity Problem: Why So Few Women Sources?

The high-tech industry in Silicon Valley isn’t the only American industry with serious diversity problems.

National Public Radio this week reported that male sources outnumber female sources on the network’s two largest weekday newsmagazines by two-to-one.  Sources include on-air personalities and  subject matter experts, Only about 30 percent of all  sources on Morning Edition and All Things Considered were female in the fiscal year ending Sept. 30, 2015. There has been no improvement for the past three years.

Women, who comprise 50.45 percent of the U.S. population, are under-represented along all racial classes.

NPRDiversity

Here are the percentage  of male/female sources broken down by race:

  • Asian : Males, 76%; Females 24%.
  • Whites: Males, 70%; Females 30%.
  • Latino: Males, 71%; Females 29%.
  • Blacks: Males 62%; Females 39%.

Women and Latinos are severely under-represented as NPR sources.

The percentage of NPR sources who are Latino remained flat at six percent for each of the three years. The U.S. Census Bureau reports that Latinos make up 17.4 percent of the U.S. population.

Here is the breakdown of sources by race from the NPR report:

  • There was a decline in the overall percentage of white sources, from 80 percent in 2013 to 73 percent in 2015.   Whites make up 77.4 percent of the U.S. population in 2014.
  • African-American voices rose from 5 percent in 2013 to 11 percent in 2015. African-Americans comprise 13.2 percent of the U.S. population.
  • The share of Asian sources rose to eight percent in 2015, compared to five percent in 2013.  Asians comprise 5.4 percent of the U.S. population.

Asians as a group are actually over-represented but Asian women lag the farthest behind in any racial group.

Of course, the U.S. population is not the same as NPR’s listener-ship. NPR listeners are 85 percent white, eight percent Latino and seven percent black.

Keith Woods, NPR’s vice president for diversity in news and operations, is quoted as stating he is “generally pleased with the direction that this is going,” noting the increases in the share of black on-air sources, as well as the percentage of “subject matter experts” who are people of color. He said he had “hoped for better news on our coverage of women, on our inclusion of women.”

Note: Two protected classes were not surveyed by NPR, age and disability.

Thoughts About the EEOC’s New Direction

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.

AARP Profits While Older Workers Struggle

If only business was as good to America’s struggling older workers as it is for the AARP.

In 2010, the AARP had assets totaled $2,546,636,000. According to its 2013 Financial Report, the AARP’s assets had grown to $3,026,971,000 in 2012 and $3,393,94,000 in 2013.  By 2014,  the AARP’s  assets totaled $3,585,853,000.

That’s an 40.8 percent rise since 2010.

Meanwhile, a recent AARP survey showed that half of the people ages 45 to 70 who experienced unemployment during the past five years are not currently working. Fifty percent of survey respondents reported they were either unemployed or had dropped out of the labor force. Among those who had become reemployed, nearly half said they were earning less than in their previous jobs.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show indisputably that older workers are suffering from unaddressed and epidemic age discrimination. The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court. Older workers have far less protection than their counterparts under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin.  My attempts to interest the AARP in working to ensure that older workers obtain equal justice under the law have met a solid wall of disinterest. This, despite the fact that age discrimination in the workplace denies millions of older Americans the right to work and dooms them to poverty or near poverty in their old age.

The AARP calls itself the leading advocate for Americans aged 50 and older. But the AARP also sells the most popular “Medigap” plans in the United States, AARP Medicare Supplement Health Insurance Plans, as well as a huge array of travel services, high tech products and … you name it.

 The AARP’s for-profit enterprise, AARP Services, Inc., is  essentially marketing access generated by its non-profit entity, the AARP Foundation, to 37 million of America’s oldest consumers.

Is it really too much to ask the AARP to use some of its riches to do more than just take surveys  – to act to insure that older workers are treated equally under the law, and not subjected to bogus restructurings and downsizings, chronic unemployment and poverty in old age?  Fifty years of inequality is enough.