Feds Are Engaged in Age Discrimination in Hiring on Unprecedented Scale

About 93% of applicants hired for 92,193 federal jobs under the U.S. government’s Pathways “Recent Graduates” Program  from May 2012 to July 2017  were under the age of 40.

Only  7.16% of applicants hired under the program were over the age of 40, according to statistics released by the U.S. Office of Personnel Management (OPM) pursuant to a Freedom of Information request.

The data shows the federal government is engaged in a practice of age discrimination in hiring that dwarfs anything in the private sector and is unprecedented since the enactment fifty years ago of the Age Discrimination in Employment Act (ADEA) of 1967.

The OPM released the data on Nov. 28 pursuant to a FOI request filed by a job seeker who was rejected for a federal job because he was not a recent college graduate. Given that publicity about workers who demand their legal rights often makes them a pariah to potential employers, the job seeker’s identity is not disclosed here.

The federal government is engaged in a pattern of age discrimination in hiring that is unprecedented in modern history.

Barack H. Obama, the nation’s first African-American president, created the Pathways “Recent Graduates” Program through an  executive order in 2010. Obama’s executive order operates as an exemption to the ADEA for federal agencies. The OPM issued regulations and the program began operating in May 2012.

The ADEA prohibits the consideration of age in hiring except in limited circumstances such as when it involves a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business or where the differentiation is based on reasonable factors other than age (i.e,  cost). These were not considerations with respect to the Pathways program.

The OPM at the time disingenuously implied the hiring program did not involve age discrimination because anyone of any age can be a recent graduate.  Of course, the vast majority of recent graduates are and always have been under the age of 40.

The Pathways program  is form of age discrimination under the “disparate impact” theory, which is invoked when a seemingly neutral policy results in a disproportionate negative impact on a protected class.

The U.S. Congress passed the ADEA 50 years ago to protect individuals aged 40 and older from irrational and harmful employment discrimination.  In signing the order, then President Lyndon B. Johnson said the ADEA’s purpose was to insure the most qualified applicant got the job.

Obama signed the order in the wake of Wall Street’s collapse and the Great Recession, when older workers were disproportionately mired in long-term unemployment.

A spokesperson for the OPM said in July that the program doesn’t discriminate because it is legal and the program will continue until Obama’s executive order is rescinded by the sitting President.

Unique Perspective of  Young People

Without offering any supporting data, Obama said the order was needed to remove “barriers” in hiring younger workers caused by civil service regulations and “to achieve a workforce that represents all segments of society.” Obama also said he wanted  to “infuse” the federal government with the “enthusiasm, talents and unique perspective” of young people.

In an Oct. 4, 2011 letter to the OPM, Angela Bailey, a spokesperson for the National Treasury Employees Union, said there can be “no doubt” the Pathways program targeted younger applicants ” by design.” Furthermore, she said, the program was “intended to, and will, discriminate against older applicants” in violation of the ADEA and merit selection principles. She denied the government faced barriers to hiring young people and questioned the government’s competency with respect to recruitment. She said the absence of a cap on hiring under the program was the “single most disappointing aspect” of the program.

The OPM’s Merit System and Accountability Office released incomplete age data from Pathways program last summer that only covered hiring between May 2012 through June 2014. The OPM claimed, falsely, that it lacked more recent figures.  The persistent FOIA applicant filed an appeal and requested  the later statistics.

OPM General Counsel Theodore M. Cooperstein writes that his office “determined that OPM does have additional responsive data regarding Pathways Programs appointees” after 2014.

The federal government is the nation’s largest employer.

Under President Obama’s directive, “A Recent Graduate is an individual who obtained a qualifying associates, bachelors, master’s, professional, doctorate, vocational or technical degree or certificate from a qualifying educational institution,within the previous 2 years …”  5 CFR 362.302(a),

The EEOC, Age & the Great Recession

The Great Recession hit older workers like a baseball bat.

Older workers were fired and laid off, dumped nto a sea of long-term unemployment, poorly-paid temp or part-time work and into an ill-advised early retirement. Many have not recovered and never will.

In my new book, Betrayed: The Legalization of Age Discrimination, I write that a record number of age discrimination complaints were filed with the U.S. Equal Employment Opportunity Commission (EEOC) during the recession. The agency did little to respond to the precipitous upswing in age discrimination complaints and has continued to  ignore the problem. I note that in 2013 the EEOC received more than 21,000 complaints of age discrimination but filed only seven lawsuits with age discrimination claims. The book was published in late August.

I was pleased to read an announcement by the  EEOC  on Monday that the agency had settled an age discirmination lawsuit that it filed on September 15 against DSW Inc., a national shoe retailer which allegedly unfairly fired older workers from 2008 -2009.  The agency said DSW had agreed to pay $900,000 in monetary relief to seven former managers and about 100 other former employees. If split evenly, that works out to approximately $8,400 per age discrmination victim. The settlement also requries DSW to report any future employee complaints of age discrimination to the EEOC for the next three years and to revise its anti-discrimination policy.

DSW, which is based in Columbus, Ohio,  allegedly used a common tactic to get rid of older workers during periods of economic turmoil. The EEOC alleged that DSW used a “reduction in force”  to fire the older workers, and then retaliated against employees who refused to fire other workers based on their age.

DSW issued a statement in which it denied engaging in age discrimination, insisting it settled the case to avoid the costs of litigation. “Those difficult decisions were driven by economic volatility and were in no way influenced by the age of associates,” the company said.

Charges filed with the EEOC under the Age Discrimination in Employment Act have increased about 36 percent since 1997, from 15,785 to 21,396. The number of complaints reached an all-time high of 24,582 in 2008.

The case, EEOC v. DSW Inc., Civil Action No. 14-cv-07153, was filed in the U.S. District Court for the Northern District of Illinois.

 

Older Workers: Ruby Tuesday is Hiring!

Yesterday don’t matter when it’s gone?

It does to the U.S. Equal Opportunity Commission (EEOC).

The restaurant chain, Ruby Tuesday, Inc., named after the classic Rolling Stone song, has agreed to pay $575,000 to settle a  class age discrimination lawsuit filed in federal court in Pennsylvania by the EEOC in 2009 against six of the chain’s restaurants. (EEOC v. Ruby Tuesday, Inc., Civil Action No. 09-1330).

Perhaps more significantly,  the consent decree signed by Ruby Tuesday contains an unusually detailed and comprehensive multi-year plan that requires Ruby Tuesday to recruit and hire older workers.

The EEOC lawsuit charged that Ruby Tuesday violated the Age Discrimination in Employment Act of 1967 (ADEA) by discriminating against job applicants who were 40 years of age or older at six of the chain’s restaurants located in West Mifflin, Greensburg, Altoona, Du Bois, and Indiana, Pa., and in Beachwood, Ohio.

Ruby Tuesday also allegedly failed to preserve employment records, including employment applications, as required by the ADEA and EEOC regulations.

The equitable relief outlined in the three-and-one-half year consent decree requires Ruby Tuesday to:

  • Implement numerical goals for hiring and recruitment of job applicants age 40 and older at the affected locations;
  • Review its job advertisements to make certain they do not violate the ADEA;
  • Conduct audits, including random reviews of hiring decisions, to ensure non-discrimination and compliance with the  consent decree;
  • Evaluate the job performance of people with hiring authority for the six stores named in the consent decree and set their compensation (including bonuses), in part, based on their degree of success in helping Ruby Tuesday ensure that its recruitment and hiring practices provide equal employment opportunities for people who are 40 or older;
  • Designate a decree compliance monitor for oversight of compliance with the requirements of the ADEA and the terms of the consent decree;
  • Provide extensive training on the requirements of the ADEA and the consent decree to the decree compliance monitor, human resources personnel and hiring authorities of the six stores named in the consent decree; and
  • Report to the EEOC and keep records about its hiring practices and compliance with the consent decree.

Philadelphia Regional Attorney Debra M. Lawrence said “the extensive training and equitable measures are designed to improve recruitment and hiring of older workers and protect all applicants from age discrimination.”

According to its website, www.rubytuesday.com, Ruby Tuesday, Inc. has nearly 800 company-owned and franchised restaurants and more than 40,000 corporate and franchise team members.

“Lose your dreams
And you will lose your mind.
Ain’t life unkind?
Goodbye, Ruby Tuesday”

Dance Over: College Must Pay

The dance is over for Marymount Manhattan College.

 The EEOC has announced that  Marymount, a private liberal arts college in New York City,  has settled a lawsuit filed by EEOC alleging that it refused to hire a choreography instructor for a tenure-track assistant professorship because of her age.

dancer The EEOC prosecution  appeared to be the first salvo by the EEOC in the war against rampant age discrimination in higher education.

 According to the EEOC’s suit, Marymount passed over a 64-year-old applicant for an assistant professorship in dance composition who had been working at Marymount, and instead hired a 38-year-old applicant. The suit charged that this violated the Age Discrimination in Employment Act (ADEA), which prohibits age discrimination against employees and job applicants who are age 40 or older.

 By the terms of the consent decree settling the suit, Marymount agreed to pay $125,000 to Patricia Catterson. Further, it agrees to comply with the requirements of the ADEA. The decree also requires monitoring and training on anti-discrimination law. The decree will last for four years.

Marymount initially selected Ms. Catterson and two other applicants as finalists for an assistant professorship in dance composition.  After determining that the  Ms. Catterson was the leading candidate,  Marymount’s search committee expanded its search to include the less qualified younger applicant as a fourth finalist because it considered her to be “at the right moment of her life for commitment to a full-time position.”

 New York District Director EEOC Kevin Berry said, “Under the law, age has no place in making hiring decisions – and tenure-track positions in academia are no exception.

Ms. Catterson had been teaching as an adjunct professor in MMC’s Dance Department for 10 years. She had also been on the faculty of The Juilliard School, Princeton University, and Manhattanville College.

Older Workers Vulnerable to Age Discrimination

daggerThe U.S. Supreme Court stuck a dagger in the heart of the Age Discrimination in Employment Act a few years ago in its decision, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

Prior to Gross, the same standard of proof applied equally to all workers who faced illegal discrimination on the job. The Court in Gross established a far higher standard of proof for plaintiffs in age discrimination cases than exists for plaintiffs in cases alleging discrimination based on race, sex, national origin and religion.  This has left older workers more vulnerable to age discrimination.

A bi-partisan bill was introduced in the U.S. Senate in March to rectify this wrong. Under the Protecting Older Workers Against Discrimination Act , if a victim can show that age discrimination was a “motivating factor” behind a decision, the burden shifts to the employer to show it complied with the law. The bill is co-sponsored by Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Vermont Senator Patrick Leahy (D-VT).

After Gross, older workers who filed age discrimination cases were required to prove that age discrimination was the “but for” cause of their termination (i.e., “but for” age discrimination, they would not have been demoted or fired.)

Alternatively, employers could point to any other “legitimate non-discriminatory” reason for firing the Plaintiff to avoid liability.  (“Sure we thought the old fogey was an over-paid dinosaur but he failed to follow company procedure when he called in sick one day so he’s gotta go!”)

Under the proposed bill, it wouldn’t matter if the employer had more than one motivating factor – if one of those motivating factors was age discrimination, the employer could be held liable.

The  Court reasoned backwards in Gross.  The Court said that Congress amended Title VII of the Civil Rights Act of 1964 to permit mixed-motive claims in discrimination claims involving race, color, religion, sex and national origin. So the fact that Congress failed to amend the ADEA to permit mixed-motive claims meant that Congress intended to disallow mixed -motive claims.  The Court threw out decades of precedent that treated age discrimination like every other invidious form of discrimination and left countless older workers without real protection against age discrimination.

The Gross decision has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

Harkin is Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.

Federal Discrimination Laws

Most workplace bullying falls outside the parameters of federal discrimination laws. However, workplace abuse may be the result of illegal discrimination and, if so, you may be able to file a lawsuit seeking damages from your employer. Federal laws prohibit discrimination on the basis of age, disability, national origin, genetic information, pregnancy, race/color, religion and sex. These laws generally cover employees, applicants for employment, former employees and applicants to, and participants in, training and apprenticeship programs. An employer may include private sector and state and government entities, depending on the law. These laws also make it illegal to retaliate against a person who has complained about an equal employment opportunity violation, or participated in filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute. The U.S. Equal Employment Opportunity Commission (EEOC) enforces most of these laws (Go to: www.eeoc.gov). Here is a list of major federal laws relating to employment discrimination: RACE AND COLOR, RELIGION, NATIONAL ORIGIN, OR SEX

  • Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate on the basis of race, color, religion, national origin, or sex. It is also illegal to harass a person because of that person’s race, color, national origin or sex. Harassment goes beyond simple teasing or an offhand comment; it generally must be severe and frequent, creating an hostile or offensive work environment or resulting in an adverse employment decision (such as being fired or demoted). The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

PREGNANCY

  • Title VII was amended by The Pregnancy Discrimination Act of 1978 (PDA), which makes it illegal to discrimination against a woman because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.

EQUAL PAY

  • The Equal Pay Act of 1963 (EPA) makes it illegal to pay different wages to men and women if they perform the same work in the same workplace. The jobs must be substantially equal and all forms of compensation are covered, including salary, overtime pay, bonuses, stock options, etc. The EPA protects both men and women.
  • Title VII, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA) also prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age or disability. Unlike the EPA, there is no requirement that the jobs be substantially equal.  The Lilly Ledbetter Fair Pay Act of 2009 establishes that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began.

AGE DISCRIMINATION An egregious double standard exists for older workers in federal discrimination law. The Age Discrimination in Employment Act,  29 U.S.C. §§ 621 et seq., makes it “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).” With any other type of discrimination lawsuit, it is enough to show that you were the victim of illegal discrimination.  But not so with age discrimination claims. To prevail on an ADEA claim, the U.S. Supreme Court saysyou must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).  In a Title VII discrimination lawsuit – when the grounds are discrimination on the basis of  sex, race, color, national origin or religion – it is enough to show the discrimination was a motivating factor for the adverse job action (i.e. demotion or dismissal). So … In an ADEA claim, if your employer can point to any other reason for termination– and who hasn’t been late or disagreed with their boss – your lawsuit may be thrown out of court by a judge before it even gets to a jury.  This, despite he fact that you can show that you were the victim of blatant and reprehensible age discrimination. Why are older Americans treated like second class citizens?   I suggest you ask your Congressional representative and U.S. Senator.  Personally, I can’t think of one good reason except, perhaps, that big business has better lobbyists. DISABILITY

  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA),  prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. A disability is a physical or mental impairment that substantially limits one or more major life activities. Employers are required to reasonably accommodate the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or an employee, unless doing so would impose an undue hardship on the operation of the employer’s business.
  • Sections 501 and 505 of the Rehabilitation Act of 1973 make it illegal to discriminate against a qualified person with a disability in the federal government.

GENETIC INFORMATION

  • The Genetic Information Nondiscrimination Act of 2008 (GINA), which took force on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members.

SEXUAL HARASSMENT

  • The Equal Employment Opportunity Commission promulgated guidelines (Sec. 1604.11) pursuant to the adoption of Title VII of the Civil Rights Act of 1964 that make sexual harassment illegal. This includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:  made either explicitly or implicitly a term or condition of an individual’s employment; submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or; such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. With respect to fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) know or should have known of the conduct, unless it can show that it took immediate appropriate corrective action.

CITIZENSHIP STATUS AND NATIONAL ORIGIN

  • Claims of discrimination based on citizenship status and national origin are covered both by Title VII of the Civil Rights Act of 1964 and by the Immigration Reform and Control Act of 1986 (IRCA).
  • The IRCA states that employers cannot discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. Also, employers cannot discriminate on the basis of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylumees. For example, citizenship verification must be obtained from all employees, not just “ethnic” looking employees.The IRCA is implemented by the U.S. Department of Justice, Civil Rights Division, Office of the Special Counsel for Immigration Related Unfair Employment Practices.
  • Title VII prohibits discrimination on the basis of national origin. It bars discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. This law is administered by the EEOC.