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.

Older workers are (and have been for years) significantly underrepresented in the high-tech industry while Silicon Valley employers unabashedly word job advertisements to discourage older applicants. Some, for example, advertise to hire “digital natives” or specify a maximum number of years of experience.

The U.S. government is openly engaged in blatant age discrimination in hiring through the Pathways Recent Graduates program, which since 2012 has barred older workers from applying for almost 100,000 jobs.  When former President  Barack Obama signed an executive order in 2010 establishing the program, he sent a message to private sector employers that age discrimination was reasonable, necessary and would be overlooked. And it was overlooked.

The ADEA’s 50-year-old mandatory retirement provision still exists for a large swath of workers, including public safety workers who are forced to retire with fat pensions and then go on to perform the same work in private industry. Some also might argue that while formal “mandatory retirement” rules are largely gone, older workers are effectively pushed out of the workforce by age discrimination. Older workers disproportionately languish in long-term unemployment and end up in temp, part-time or low wage work. Many are forced to retire as soon as they become eligible for Social Security, which results in lower Social Security benefits for the rest of their lives. Research shows that older women suffer the highest rate of age discrimination in hiring.

Lipnic did not address criticism that the EEOC failed to aggressively enforce the ADEA during and since the Great Recession, has ignored blatant age discrimination in hiring by Silicon Valley and the federal government,  and itself discriminates against older workers in administrative decision-makings and in hiring.

Finally, Lipnic said the basic purpose of the ADEA is that “ability matters, not age.” However, that’s not what President Lyndon B. Johnson said after he signed the ADEA into law. Johnson said:

The ADEA “does require that one simple question be answered fairly:  Who has the best qualifications for the job?”

There’s a big difference between “ability” and “qualifications.”  Society traditionally had judged  ability by qualifications.  However, the EEOC issued at least two decisions this year in which objective qualifications were ignored and hiring decisions were based upon subjective criteria like poise and cultural fit. In one case, the EEOC ruled a middle-aged male hiring officer for the Social Security Administration did not engage in age discrimination when he refused to hire a 60-year-old women who did not fall within his perception of “cultural fit.”  Instead, the hiring officer selected five applicants under the age of 40, including many recent graduates.

In my groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA is far weaker than Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. I note that a broad swatch of discrimination that is illegal under Title VII is perfectly legal under the ADEA. Since its adoption, the ADEA has been eviscerated by the U.S. Supreme Court which, among other things, ruled in 2009 that ADEA plaintiffs must show a much higher standard of causation than Title VII plaintiffs. In addition, the ADEA does a poor job of deterring age discrimination because it sharply limits the amount of damages that an ADEA plaintiff can recover. Unlike Title VII, the ADEA does not permit plaintiffs to seek compensatory damages for emotional distress or punitive damages.

 

Is the EEOC Finally Noticing Age Discrimination?

The U.S. Equal Employment Opportunity Commission  filed its second lawsuit this month alleging age discrimination, indicating a possible uptick in EEOC efforts in this long-neglected area.

The lawsuit touches upon the widespread problem of discriminatory hiring practices in the legal profession, which vies with higher education as the most egregious in terms age discrimination.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the EEOC has essentially ignored a record increase in age discrimination complaints filed with the agency during and since the Great Recession.  For example, the EEOC received more than 21,000 age discrimination complaints in 2013 but filed only seven lawsuits with age discrimination claims that year.  Meanwhile, older workers are mired in the ranks of the chronically unemployed and under-employed until they are forced into a penurious early “retirement.”

The EEOC charges that Strategic Legal Resources, Inc., a  staffing firm that does business as Strategic Legal Solutions, rescinded an offer of hire made to attorney Claudia Zacks after she complied with a company request to provide her date of birth. Zacks was 70 years of age at the time.

The Executive Director of the company’s Real Estates Services Division in New York City emailed Zacks in August 2012 and offered her a position to work on a document review project that was to begin the next day in Novi, Michigan. After Zacks accepted, the company asked Zacks to provide additional information, including her date of birth.

The lawsuit alleges that a Recruitment Coordinator for the company called Zacks and insisted that Zacks “could not possibly arrive at the job site in time on the next day.”  Zacks finally expressed concern the company was rescinding its job offer because of her age. The Recruitment Coordinator “responded that not only would Zacks not work on this assignment but she would be placed on the ‘do not use’ list and she need not apply for future job opportunities” with the company.

The EEOC charges that Strategic Legal Solutions also denied Zack future employment. In Spring 2013, Zack answered an anonymous Craigslist posting for individuals interested in working on a document review project. Zacks was hired by a different Strategic Legal Solutions office  to work on a document review project in Novi, Michigan. After three days on the project, she was summarily terminated.

The lawsuit asks the court to order Strategic Legal Solutions to pay Zachs appropriate back wages, liquidated damages and interest.

Under the Age Discrimination in Employment Act of 1967, it is illegal  “for an employment agency to fail or refuse to refer for employment, or other­wise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.”  However, a glance at internet employment sites will show that this provision is widely ignored by employers, employment agencies and even the federal government, all of whom seek applicants who are  “recent” college graduates.

New Book on the Legalization of Age Discrimination

Even Workers Otherwise Considered to be Young are Vulnerable

Why are workers in their 30s, 40s and 50s increasingly experiencing age discrimination?

This one of the issues I explore in my new book: Betrayed: The Legalization of Age Discrimination in the Workplace. The short answer is that age discrimination has become normalized due to a confluence of failures by American institutions that have effectively gutted the Age Discrimination in Employment Act of 1967 (ADEA).

Almost 50 years after the ADEA’s passage, age discrimination remains epidemic in the United States, hidden behind terms such as “long-term unemployment” and “early retirement.” And the problem is trickling down to ever younger workers.

Did you know:

• The new titans of commerce in Silicon Valley openly flaunt the ADEA . Workers in their 30s use Botox and hide their families to avoid the appearance of middle age.

• The U.S. Supreme Court eviscerated the ADEA in 2009 just as the Great Recession fueled unprecedented incentive for employers to rid their payrolls of higher paid older workers. The U.S. Congress easily could have “fixed” the problem by passing the Protecting Older Workers Against Discrimination Act (POWADA) but has not done so.

• The U.S. Equal Employment Opportunity Commission received 21,296 age discrimination complaints in 2013; the agency filed seven lawsuits that year with age discrimination claims.

• Forty percent of workers in households nearing retirement age have no retirement assets whatsoever, whether in an employer-sponsored 401(k) type plan or an IRA. Reasons for this include age discrimination, long-term unemployment, and the decline of traditional pensions.

Of course, age discrimination is problematic for  younger workers but it is a devastating life-altering catastrophe for older workers . They often are plunged into long-term unemployment or forced to take poorly-paid part-time or temp work until they age into early retirement, which will result in significantly lower Social Security benefits for the rest of their lives.

Betrayed: The Legalization of Age Discrimination in the Workplace is now available as an e-book at Amazon.com, http://www.amazon.com/dp/B00MYREMRY. It is also available in paperback at https://www.createspace.com/4960074 and from Ingram Spark.

Please pick up a copy and I would grateful if you would take the time to review it on Amazon!

littlemenforblog

‘Want Ads’ and Age Discrimination

Are you a recent college graduate … Pulte Mortgage (a subsidiary of Pulte Homes) is always looking for energetic and motivated individuals who are ready to take the first step in building a long-term mortgage career! – Simply Hired, 6/26/14.

“We are currently seeking an associate with 2-3 (MAXIMUM) years of Labor and Employment experience.” – Craig’s List,  6/26/14

Anyone who doesn’t think that age discrimination is rampant and unaddressed in American society should take a look at the “want ads.”

An easy and obvious way that employers  discriminate against older applicants is to require job applicants  to be recent college graduates or to have a maximum amount of experience.  These types of advertisements are seen on most if not all  Internet hiring sites.

One reason  the U.S. Congress passed the Age Discrimination in Employment Act (ADEA) in 1967 was to prohibit  job advertisements  that barred applicants over a certain age from applying. At that time, one-half of all private-sector job openings explicitly barred applicants over the age of 55 and one-quarter barred workers over the age of 45.  More than 60 percent of low-skilled industrial jobs had age cut-offs between 35 and 49 years of age, and 13 percent of sales jobs were limited to workers under the age of 35.

Imagine being 35 years old and barred from applying for a sales job!  Wait a minute.  You don’t have to. You can be barred from applying  for a sales job today at the age of 35 if you have more than two or three years of experience.

Continue reading “‘Want Ads’ and Age Discrimination”

Google Omits Age from Diversity Goals

Something is missing from diversity statistics posted online  this week by Google – information about the age of its workforce.

Google posted statistics showing a workforce that is (surprise!) incredibly non-diverse in gender and race.  Google’s workforce is  70 percent male and 30 percent female. And Google’s workforce is 61 percent white  and 30 percent Asian. Only three percent of Google’s workforce are Hispanic, two percent are African-American and four percent are described as “two or more races.”

The numbers apparently were compiled as part of a report that major U.S. employers must file with the Equal Employment Opportunity Commission.  The EEOC report collects information about sex and race.  Companies are not required to make the information public.

Google  chose to publicly divulge  the damning figures about its overwhelmingly white male workforce, but did not reveal the ages of its employees.  Isn’t that a statistic that Google deems important in terms of measuring a diverse workforce?  Just how  many workers at Google are over the age of 40, the age at which workers fall under the protection of the Age Discrimination in Employment Act of 1967.

One can only speculate why Google has ignored age in its discussion of diversity. Possibly the numbers are drastically askew and Google fears an age discrimination lawsuit.  It’s not exactly a secret that  Silicon Valley generally and Google, in particular,  celebrate a youth culture.

A few years ago, Google settled a lawsuit alleging age discrimination by Brian Reid, who was hired by Google in a senior tech role when he was age 54 .  Reid  left after two years when he was re-assigned to head up a new program with no staff that was quickly phased out..  Reid said supervisors and co-workers at Google made  derogatory comments about his age, stating that he was not a “cultural fit” for the company, that he was “an old man,” “slow,” “sluggish,” “lethargic” and “an old fuddy-duddy” who “lacked energy.” Co-workers allegedly joked that Reid’s CD (compact disc) jewel case office placard should be an “LP” (which stands for long-playing record). The lawsuit was reportedly settled after the California Court of Appeals said Reid had presented undisputed evidence supported a prima facie case of age discrimination.

According to a story in  the New Republic, age thirty is over-the-hill in Silicon Valley, where “[t]ech luminaries who otherwise pride themselves on their dedication to meritocracy don’t think twice about deriding the not-actually-old.”

The  diversity statistics provided by Google are even worse than they first appear. Of the 30 percent of Google’s workforce who are female, only about 18 percent work in professional tech jobs.  Only one percent of blacks and two percent of Hispanics who work at Google work in prize tech jobs.

Of the company’s “leadership” team, 79 percent are male and 21 percent are female;  72 percent are white; 23 percent are Asian; two percent are black; 1.5 percent are identified as “two or more races” and one percent are Hispanic.

 

 

Staples Must Pay $26 million for Age Discrimination

A Los Angeles Superior Court jury  hit the “Easy” button and ordered Staples, Inc., the office supply chain, to pay  $26 million in damages in an age discrimination case.

Bobby Nickel., 66, was hired in 2002 to work as a facilities manager for Corporate Express. He had positive employment evaluations until 2008, when the company was purchased by Staples Inc.  Nickel said Corporate Express’ pay scale was higher than the pay scale for employees hired by Staples.

Nickel said he was a  victim of age discrimination and wrongful termination by Staples managers who were intent upon pushing out older workers who earned higher salaries.

The jury deliberated for two days before awarding Nickel $22.8 million in punitive damage and $3.2 million in compensatory damages on February 27.

Nickel alleged that Staple’s used the following  tactics to run him out of his job as a facilities manager:

  • A supervisor prompted  Nickel  to resign.
  •  Nickel said he was disciplined for a series of minor infractions.
  • He suffered increasing levels of harassment from co-workers and a manager;  was the regular butt of jokes at staff meetings;  and was referred to as “old coot” and “old goat.”
  • A receptionist  told Nickel that she was ordered by management to provide a false statement about Nickel’s conduct but that she refused to do so.

Nickel was suspended and  fired in 2011 when he was 64 years of age for allegedly stealing a 68-cent bell pepper from the Staples cafeteria.  Nickel said he intended to pay for the bell pepper through an honor system set up by the cafeteria vendor. However,  Staples said the  taking of the bell pepper violated the company’s zero-tolerance policy when it came to “dishonesty of any kind, including theft or misappropriation of company property.”

A Staples spokesman said the company disagrees with the verdict and plans to appeal.

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”

1 in 5 Older Workers Report Age Discrimination

Problem Worse for Minorities

Twenty percent of workers aged 50 or older say they have personally experienced age discrimination in the workplace since turning age 50.

This is a finding from a national survey of 1,024 adults aged 50 and over by the Associated Press NORC Center for Public Affairs.

The problem is more acute for non-whites. Twenty-eight percent of non-whites who are aged 50 or older say they have personally experienced prejudice or discrimination in the job market due to their age compared to 17 percent of whites.

Types of discrimination suffered by workers include being passed over for a raise, promotion or chance to get ahead, receiving unwanted assignments or being denied access to training or the opportunity to acquire new skills because of their age.  Thirteen percent of those surveyed said they heard unwelcome comments about their age in the workplace.

And that’s older Americans who are working!

Unemployed

Other research shows that older Americans who lose their jobs descend into a black pit of unemployment that many cannot escape.  The share of workers who’ve been unemployed for more than six months was 37.9 percent in August 2013. But for those 55 and older, nearly one in two (47 percent) were out of work for  six months or more.

Hundreds of thousands of older Americans have been forced to retire as soon as they can claim Social Security retirement benefits  – when they reach the age of 62 –to survive economically. Those who retire at age 62 receive a 25% cut in benefits for the rest of their lives.

The AP survey found that more than a third (33%) of Americans who are retired said they did not feel they had a choice except to retire.  Fifty-four percent of retirees under age 65 felt they had no choice but to retire compared with 23 percent of retirees 65 or over.

It is unclear why so many older Americans are suffering from what appears to be unprecedented rates of discrimination and joblessness. One reason could be that employers know that they likely will not be held accountable for age discrimination.

The U.S. Supreme Court issued a devastating decision,  Gross v. FBL Financial Services, in 2009 that eviscerated the Age Discrimination in Employment Act of 1964 by establishing a much higher standard of proof for victims of age discrimination than exists for victims of race of sex discrimination.  The U.S. Congress could have “fixed” the damage but has not acted.  In addition, the U.S. Equal Employment Opportunity Commission has filed only a fraction of lawsuits in recent years against employers compared to the past.

Other findings

Other findings from the AP survey indicate that former notions of “retirement” as an end to one’ s work life are dead or dying:

  • Before the Great Recession, the retirement average age was 57, while the average for those who retired afterwards is 62.
  • Among those who are working and not yet retired, 47 percent say it is very likely that they will do some work for pay during their retirement and another 35 percent say it is somewhat likely.
  • Twenty-two percent of adults age 50 years and older have searched for a job in the last five years. Of these, 55 percent found the job search to be moderately or very difficult.
  • About a quarter (24%)  of Americans aged 50 and older report having less than $10,000 in retirement savings and  investments. Thirty-nine percent of all people ages 50 and older report having less than $100,000 tucked away for retirement, not including pensions or the value of primary residences.

The Changing Language of Age Discrimination …

Note: The Superman’s cape ruling referenced below was subsequently reversed when Securitas appealed to the full appeals court, which issued a 9-3 ruling that the Johnson could not sue Securitas because “the separate aspects of the record Johnson focuses on …do not raise genuine questions of material fact regarding whether Securitas’s asserted reasons for terminating him were pretext or whether age was the “but-for” reason for his termination.” The full court said Securitas put forth a legitimate non-discriminatory reason for terminating Johnson. The company claimed Johnson had left his shift an hour early without permission (Johnson denied this) and delayed reporting a collision with another vehicle.. Moreover, the full court said the supervisor who made the ageist comments about Johnson was only one of three who fired Johnson. The full court refused to “speculate” that the supervisor persuaded the other two supervisors to fire Johnson because of his age.

More Subtle: Just as Harmful

Few managers today are so ignorant as to call an older worker  a “geezer,”  “old fart,” “biddy,” “codger,” “graybeard,” or “old goat.”

The modern discriminator is much more likely to use code terms that are based on ageist stereotypes to describe older workers, like “old fashioned,” “rigid,” “old school,” and” “resistant to change.”

Courts are beginning to recognize the evolution of the language of age discrimination, though, ironically, many courts continue to use arguably ageist terminology in their own judgments and written opinions.

Superman’s Cape

The U.S. Court of Appeals in the Eighth Circuit in a 2-1 opinion recently ruled that security officer, Carlyn Johnson, 76, could  sue Securitas Security Services, USA, Inc. for age discrimination.  Johnson  had been fired after becoming involved in a car accident while on-duty and allegedly leaving his post early.

Among other things Johnson’s supervisor nicknamed him “Superman” and repeatedly told him it was time for him to “hang up his cape.”  The supervisor also told him he was “too old to be working” and compared him to the supervisor’s 86-year-old father who was no longer working.

These comments were the only evidence produced by Johnson of age animus, which is a necessary to prove discrimination under the  Age Discrimination in Employment Act (ADEA).

A  lower court judge dismissed Johnson’s complaint after finding that the supervisor’s comments were “age neutral” stray remarks that did not prove that age discrimination was a factor in Johnson’s dismissal.

The appeals court disagreed. “Viewing the facts in a light most favorable to Johnson, a reasonable jury could find Securitas was motivated to terminate Johnson based on age animus,” the appellate court ruled.

Elderly?

The fact that judges are only beginning to recognize ageist language is sadly evident in their own judgments and opinions which, ironically, contain ageist language.

Helene Love, L.LM, the author of a law review article entitled  Ageism, Language and the Law, says the term “elderly” is used routinely by judges despite the fact that it is widely considered to be an ageist term.  She said social science research shows  the term “elderly” is associated with negative attributes like vulnerability, sadness and loneliness and frailty.  Using the term “elderly” perpetuates common negative stereotypes about older adults, writes Love.

Love cites research showing that older adults do not choose to self-identify with the word “elderly” because it implies frailty, disability or senility.   Love states that under the entry “elderly” in the Thesaurus of Aging Terminology, readers are advised to use the expression older adults.

Love defined ageist terms as “words that are derogatory or demeaning because they depict older adults as possessing largely undesirable traits and characteristics.”

Love’s  article appears in 31 Windsor Review Legal & Social Issues 141 (2011), a publication of the law school of the University of Windsor, Ontario, Canada.

*** Note: I’m writing a book on age discrimination and I would like to hear the stories of readers who have experienced this problem. Please email me at barnespatg (at) gmail.com.

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.