Evidence Lacking for AMA Prescription for ‘Senior’ Doctors

Fifty years ago, the American Medical Association decried mandatory retirement as the “arbitrary segregation of individuals because of arbitrarily determined chronological age.”

Now the AMA is working on a plan that will allow it to force “senior/late career” physicians into retirement. At its annual meeting last month, the AMA unanimously adopted a plan to spearhead an effort to evaluate “senior/late career”  healthcare providers’ on-the-job effectiveness. The plan was proposed by the AMA’s Council on Medical Education.

The action comes on the heels of a dispute at Stanford University, where the Faculty Senate in May demanded repeal of a 2013 requirement that medical faculty aged 75 and older undergo enhanced health screening and peer assessment to retain their jobs.

Like Stanford University, the AMA fails to provide any evidence as to why it is necessary to screen “senior” physicians.

The plan has drawn the ire of a group that represents surgeons, the Association of American Physicians and Surgeons (AAPS). In a press release, Jane M. Orient, M.D.,AAPS  executive director, states, ” Most situations are not instantly life-threatening, and years of experience and good judgment count, not lightning reflexes and physical prowess.” She said older doctors, especially surgeons, scale back their practices as needed. “Do a few doctors, young or old, do procedures they can’t handle?” asks Dr. Orient. “Perhaps. But who is to sit in judgment on when their skills have begun to slip?” Orient infers the AMA is seeking to establish a new income revenue stream involving certifying doctors over the age of 65.

The actual AMA report on this issue is not available to the public. It is listed on the AMA’s web site but  a viewer must log in to actually see the report.

The AMA reportedly plans to”identify organizations that should participate in the development of guidelines and methods of screening and assessment to assure that senior/late career physicians remain able to provide safe and effective care for patients.” These organizations must then  “work together to develop preliminary guidelines for assessment of the senior/late career physician and develop a research agenda that could guide those interested in this field and serve as the basis for guidelines more grounded in research findings.”

In the absence of any evidence that a plan is even necessary, one cannot help but wonder about the extent of the role of ageist stereotypes in the AMA’s decision-making. These stereotypes include unsupported concerns that older workers are less competent, can’t learn new things, are rigid and quarrelsome, and refuse to accept they should step down and make room for younger doctors.

Few would disagree that it would be appropriate to protect the public if a need can be demonstrated.  But no doctor would prescribe a potent drug without evidence of need. Is it asking too much of the AMA (and Stanford University) to provide evidence of need before violating  the Age Discrimination in Employment Act of 1967? What’s the oath that doctors have to take – First, do no harm.

Important Ruling on Motive & Age Discrimination

Here’s a rare  and important victory in a federal age discrimination case involving a Minnesota city’s failure to promote a 51-year-old police lieutenant to the position of chief of police because he was “retirement eligible.”

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Minneapolis rejected the City’s theory that its action were not-discriminatory because its motive was to hire a long-term police chief.  The City relied upon a theory expounded by the U.S. Supreme Court in 1993 that it is not age discrimination if  an employer is motivated by a reason that is related to but “analytically distinct” from age discrimination (i.e. salary or pension status).

“On the facts here,” the appeals court ruled, “retirement eligibility is always correlated with age because it is dependent on the employee reaching 50; it cannot be ‘divorced from age.’”  Moreover, the  panel said that assuming a candidate is “uncommitted to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits.”

The Court reversed the lower’s court’s dismissal of the case and remanded the case for further proceedings.

Lt. LeRoy Arthur Hilde, 51, a 29-year-veteran of the Eveleth police force, failed to win promotion in 2012 despite the fact he was the department’s only lieutenant and second highest in rank. It was not disputed that he had an excellent reputation on the force and he was recommended for promotion by the outgoing police chief. Hilde alleged the City violated the Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act.

A police committee that was responsible for filling the vacancy had, in the past, promoted only internal candidates. However, this time, the three-member committee sought both internal and outside applicants. It selected  Timothy Howard Koivunen, 43, a police detective from Virginia, Minnesota,

The City did not deny that a factor in the commission’s decision was that Hilde was “retirement eligible.” Koivunen had at least eight more years before he could retire.

 Pretext

The appeals court also rejected the lower court’s finding that Hilde failed to show the city’s reason for failing to hire him was a pretext for age discrimination.  The panel was troubled by markings on the scoring sheets that indicated Hilde’s scores were altered, noting that the commissioners denied or claimed not to remember changing Hilde’s scores.

“Before the interviews, Hilde was the most qualified candidate with more than double Koivunen’s score,” the appeals panel noted.

Hilde received the same mediocre score of 69 from each commissioner for his interview, while Koivunen received a uniform score of 100 from each of the commissioners. At the end of the scoring, both candidates were tied.

The panel concluded the evidence showed the committee members wanted to “level” the scores of the two candidates so they would be “similarly qualified”’ and that this called into question “the objectivity of the entire hiring process.”  Moreover, the appeals court states that an employer’s failure to follow its own policies may support an inference of discrimination when the departure affects only the affected candidate.

The appeals court also disagreed with the City’s claim that Koivunen was the ‘obviously superior candidate,” noting “this is refuted by its rankings of Koivunen and Hilde as tied.”

Finally, the appeals court rejected the lower court finding that the difference in age between Hilde and Koivunen – eight years – was not substantial.  The appeals court noted that it had previously ruled that a difference of six years was substantial.

The case is Lt. LeRoy Hilde v. City of Eveleth, No. 14-1016 (Feb. 6, 2015).

Obama Forgot to Fight Age Discrimination

“Obama will fight job discrimination for aging employees by strengthening the Age Discrimination in Employment Act … .”  Source: Blueprint for Change (2008)

I was surprised when I recently read that President Barack Obama pledged in 2008 to strengthen the nation’s primary law prohibiting age discrimination, The Age Discrimination in Employment Act of 1967.

Surprised because the ADEA is much weaker today than it was when Obama was running for President in 2008 . The ADEA was decimated by an adverse U.S. Supreme Court decision in 2009. Congress could have legislatively “fixed” the Court’s ruling but has failed to pass the Protecting Older Workers Against Discrimination Act for five years.  But I was most surprised because Obama himself is responsible for weakening the ADEA.

Obama signed an executive order in 2010 that allows federal agencies to discriminate against older workers by hiring “recent graduates” –  which is in direct contravention to the ADEA.  What message does it send to private employers when the U.S. government deems it appropriate to discriminate on the basis of age? Whether intended or not, Obama’s executive order serves as a green light for employers to engage in harmful, invidious age discrimination.

Meanwhile, Obama’s administration is in the process of planning a White House Conference on Aging this year . Organizers so far have completely ignored the unaddressed epidemic of age discrimination in the workplace that is catapulting older workers into chronic unemployment, low wage jobs and forced early “retirement.”

The Conference recently announced it is partnering with the AARP, the nation’s leading purveyor of supplemental Medicare health insurance, to co-sponsor five regional forums to hear from the public “on issues such as ensuring retirement security, promoting healthy aging, providing long-term services and support, and protecting older Americans from financial exploitation, abuse, and neglect.” Promote healthy aging?  Hmmm … Do you have supplemental Medicare health insurance?

Obama’s unfulfilled campaign promise points to yet another reason that the problem of age discrimination is so prevalent in America today. Older Americans have failed to effectively marshal their resources  to insure that their interests are not forgotten by politicians the day after the election.   In his State of the Union Address last week, President Obama focused on young families and the middle class and failed to even mention issues of particular concern to older Americans,

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I explore the reasons that age discrimination is treated like a lesser offense when compared with discrimination on the basis of race, sex, religion and national origin.  I show that age discrimination is about perception, not reality.  It is about unfounded stereotypes and deep-seated animus. And it has a devastating impact on the health and welfare of older Americans.

 

 

“Substantial” Evidence in Age Discrimination Cases

gavelThose few age discrimination victims who manage to prevail in lawsuits against their employers may find their victory is elusive.

 Such was the case in California recently when a Superior Court judge voided a jury’s decision to award 15 San Francisco firefighters $3.7 million in damages on the grounds of age discrimination in a city promotional exam. In a 9-3 verdict in 2013, the jury found the test was skewed against firefighters who were over the age of 40.

Judge Anne-Christine Massullo effectively snatched victory from the firefighters and gave it to the city.

The firefighters had accused the city of arbitrarily altering dozens of scores on the 2008 test and shredding documents before the firefighters had a chance to file a legal challenge. Judge Massullo questioned the city’s decision to destroy the documents but said this was minor error and that the test was “overwhelmingly successful” in measuring the firefighters’ job-related skills in a “fair and objective” way.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I point to research showing  that employment discrimination cases are disproportionately dismissed on pre-trial or post-trial motions. A 2006 study found that federal judges grant employer motions to dismiss in employment discrimination cases 73 percent of the time, compared to a dismissal rate of about 53 percent in antitrust, patent and trademark cases. Employers also are disproportionately successful in reversing employee’s victories on appeal.

 Judicial override  of a jury verdict should be an absolute last resort because it is inherently a vote of “no confidence” in America’s civil justice system. Moreover, it is an appalling waste of resources when taxpayer money is spent empanelling juries and holding expensive trials only to have a judge say that he/she knows better.

Judge Massullo decided that no “substantial” evidence existed to support the jury’s verdict but what does this really mean? The U.S. Supreme Court has said that juries are uniquely qualified to decide cases that rest on determinations about conflicting evidence and the credibility of witnesses. It should be presumed that juries are more qualified than judges to decide the quantum of  “substantial”  evidence necessary to warrant a finding of age discrimination.

EEOC Snubs Age Discrimination – Again

Yet again, the EEOC in 2014 devoted a disproportionately small percentage of its resources toward litigating age discrimination complaints.

The EEOC filed 133 merits lawsuits during FY 2014, compared to 131 in 2013 and 378 a decade ago. Merits lawsuits include direct suits and interventions by the EEOC alleging violations of the substantive provisions of federal discrimination laws as well as suits to enforce administrative settlements.  Of the merits lawsuits filed by the EEOC in 2014:

  • 76 contained Title VII claims
  • 49 contained Americans with Disabilities Act (ADA) claims;
  • 12 contained Age Discrimination in Employment Act (ADEA) claims;
  • two contained Equal Pay Act (EPA) claims;
  • two contained Genetic Information Non-Discrimination Act (GINA) claims.

* Note – some suits have multiple claims.

So about eight percent of  the claims in merit lawsuits filed by the  EEOC in 2014 involved age discrimination. Typically, age discrimination complaints represent at least 20 percent of all EEOC complaints. If this holds true in 2014 – the EEOC has not released these statistics yet – the EEOC will have  devoted a disproportionately small share of its resources to litigating age discrimination claims. The EEOC filed seven merits lawsuits with age discrimination claims in 2013.

In my new book Betrayed: The Legalization of Age Discrimination in the Workplace, I show that the odds are heavily stacked against employment discrimination victims in federal courts, and particularly age discrimination victims, who start out with a higher burden of proof. The vast majority of age discrimination claims are summarily dismissed by judges. I also argue that age discrimination is epidemic in American society because Age Discrimination in Employment Act of 1967 fails to protect older workers and the EEOC has virtually ignored the problem.

Continue reading “EEOC Snubs Age Discrimination – Again”

The Lack of Equal Justice for All

There was an article in the New York Times recently about the elusiveness of justice for African-Americans in the criminal justice system.

This obviously reflects ingrained racism but it is also a symptom of a wider problem – the lack of equal justice for the poor and the middle class in America.

The leadership of our nation’s civil and criminal justice system, the U.S. Supreme Court, does not serve as a role model for equal justice for all. And the U.S. Congress, which holds the power of the purse-strings over the judicial branch, provides no discernible oversight as to how the court system spends taxpayer money.

An egregious example of the wider problem is  the U.S. Supreme Court‘s refusal to allow its proceedings to be broadcast. This is really an issue about transparency and accountability.  The leadership of the third branch of government in the world’s leading democracy has chosen not to be transparent and or accountable. And if you don’t like it, tough!

The Court’s disdainful attitude toward the American public was not acceptable after television attained broad popularity fifty years ago and it is completely unacceptable in the Internet age. The Court exists to serve the public, not the Court.  This doesn’t mean the Court is subject to the whims of the majority but that the Court must be guided by founding American principles of equality and justice for all.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I focus on the civil justice system, which  has utterly failed to protect older workers from irrational and harmful age discrimination. This is particularly true for vulnerable older workers (i.e. minorities and women).

The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court, which has made it almost impossible to win a federal age discrimination lawsuit. Age discrimination has become normalized in American society and is trickling down to ever younger workers (i.e., the youth apartheid state of Silicon Valley).  But younger workers have years to rebound, while older workers often are plunged into a penurious old age of deprivation.

I suggest the judiciary create a special federal court to hear appeals in  discrimination cases. This court could be staffed with federal judges who are both educated in and dedicated to the concept of equal justice. This court would not be limited to age discrimination but would decide appeals in all cases alleging discrimination on the basis of race, sex, religion, sexual orientation and disability, etc.

Age discrimination represents a kind of government subsidy for employers, by allowing them to replace more expensive older workers with cheap young labor. Taxpayers  pick up the tab in the form of higher social welfare costs, including health care and Social Security benefits.  I doubt that most taxpayers would want to pay this subsidy if they knew they were paying it.

WANTED: Advocacy Group to Help Older Workers

The Time For Action is Long Overdue

What advocacy group exists today to fight age discrimination in the workplace?

My first thought was the AARP, formerly the American Association of Retired Persons, which has an estimated 37 million members. The AARP is said to be one of the most powerful lobbying groups in the United States. But it is in the business of selling health insurance to retired people, not equality in the workplace.

The AARP has a non-profit foundation that exists to advocate for older Americans. It says it helps “struggling seniors by being a force for change on the most serious issues they face today.” The web site of the AARP Foundation has lots of opportunities to “donate today” and “ways to give.” It claims to be “a voice and an advocate.” Here are the articles under “AARP Foundation in the News”  on Oct. 6, 2014:

  • How to manage your money better after 50.
  • The people of Haiti thank AARP members.
  • AARP Foundation invites NASCAR fans to ‘Ride with Jeff.”
  • Couples say relationships benefit from volunteering together..

Considering the serious issues facing older workers today, this is the equivalent of marshmallow fluff on burnt toast.  Efforts to reach Foundation President Lisa Marsh Ryerson and other Foundation officials through their web site were unsuccessful.

Who Cares?

Who advocates for older workers who are unemployed, floundering in long-term unemployment, and working in poorly-paid part-time jobs with no benefits? Research shows that millions of older workers have been forced into a penurious early retirement since the Great Recession because they can’t get jobs.  This hasn’t stopped Congress from debating cuts to Social Security. The U.S. Equal Employment Opportunity Commission has virtually ignored a record increase in age discrimination complaints. Despite receiving more than 20,000 complaints in 2013, the EEOC filed only a handful of lawsuits with age discrimination claims.

The thesis of my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, is that the major U.S. law prohibiting age discrimination was weak to begin with and has been eviscerated by the U.S. Supreme Court. There is no question that older workers are literally treated like second class citizens in our nation’s court system. Who cares?

The AARP Foundation has a legal arm that files friend of the court briefs and purportedly represents plaintiffs in age discrimination lawsuits.  However, the problems facing older workers will not be resolved in the federal courts, which are demonstrably hostile to all employment discrimination lawsuits.

Older Americans must demand their representatives in the U.S. Congress address the epidemic of age discrimination.  For five years, Congress has failed even to pass the Protection Older Workers Against Discrimination Act, which would merely eliminate one of many inequities facing older workers compared workers who are protected under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, national origin and religion. The U.S. Supreme Court in 2009 issued a mean-spirited and unnecessary decision requiring  older workers to meet a much higher level of proof in age discrimination cases than exists for discrimination victims who file claims under Title VII.  No one has put forth any credible justification for treating age discrimination victims worse than other discrimination victims. The failure of Congress to address this harmful injustice also reflects the lack of an effective advocacy groups for older workers.

One would have hoped that our nation’s first African-American president, Barack H. Obama, would show some sensitivity to the problem of age discrimination. He made the problem incrementally worse when he signed an executive order in 2010 that permits government agencies to bypass older workers in favor of hiring younger workers. The justification for this program is that the government was incapable of competing with the private sector for younger workers during the worst recession in 100 years.  Really?

What American workers need  now is an advocacy group that will lobby the U.S. Congress to restore their rights.  We need an organization that has a strategy and a plan to create positive change.  If the AARP Foundation wants to continue to collect money to advocate for the rights of older workers, individuals and grant organizations, it should demand  action on Capital Hill.  If this is too uncomfortable for the offspring of a behemoth medical sales organization, then we need a new organization that is willing to do the job.

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.

 

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.