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.

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.

The EEOC’s New Gameplan

The situation in the United States is bleak, to say the least, for workers who are targets of employment discrimination and harassment.

 Federal courts are blatantly hostile to these types of cases –  dismissing most of them before they ever reach a jury – and our leaders in Washington, D.C., seem to be oblivious.

Part of the problem is that the U.S. Equal Employment Opportunity Commission, the federal agency that is supposed to be combating employment discrimination, is overwhelmed and underfunded.

 The EEOC says there has been  a 38 percent rise in the number of charges filed with the EEOC  against private employers and state and local government employers in the past 20 years.  But  the  EEOC’s staffing levels and funding dropped nearly 30 percent between 2000 and 2008. An infusion of resources in 2009 allowed for some rebuilding of capacity, but that was quickly stalled when funding was reduced and hiring freezes were implemented in FY 2011 and 2012.

The bottom line is that  many observers feel the EEOC has been about  as effective as a gnat battling an elephant in recent years.

 But  it seems that change is afoot. The EEOC is seeking public comment  (see below) on a proposed new strategic plan that it hopes will be more effective than the EEOC’s prior practice of  filing individual lawsuits against select employers. 

In its new plan, the EEOC says it will strategically attack  practices and issues that adversely affect large numbers of employees. The EEOC identifies five national priorities:

1.  Eliminate Systemic Barriers in Recruitment and Hiring. The EEOC will target class-based  hiring discrimination and facially neutral hiring practices that adversely impact particular groups. This includes, for example, steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law.

2. Protect immigrant, migrant and other vulnerable workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

3. Address Emerging Issues. The agency will address emerging issues with respect to:

-The Americans with Disability Act, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;

-Lesbian, gay, bisexual and transgender individuals coverage under Title VII sex discrimination provisions.

-Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

4. Preserve Access to the Legal System. The EEOC will target policies and practices intended to prevent  individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement effort, including retaliatory actions; overly broad waivers; and settlement provisions that prohibit filing charges with EEOC.

5. Combat Harassment. The EEOC will launch a national education and outreach campaign – aimed at both employees and employers – to prevent and appropriately respond to harassment in the workplace.

 Okay, some of this sounds like politically-correct gobbledygook that is incapable of measurement. At the same time, it is encouraging that the EEOC is rethinking its past practices. The  38 percent increase in charges filed with the EEOC  also represents an increase  the suffering of American workers and their families who are subjected to illegal discrimination by employers.  American workers need all the help they can get!

Comments and suggestions must be submitted to the EEOC about the plan by 5 p.m. ET on September 18, 2012 at strategic.plan@eeoc.gov or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. The Commission plans to vote on the draft plan at the end of this fiscal year.

The Best is Yet to Be?

Grow old along with me!
 The best is yet to be,
 The last of life, for which the first was made.
– ROBERT BROWNING

An AARP national survey points to the existence of  a climate of fear among older workers of seemingly  pervasive and unchecked age discrimination in America.

The AARP survey finds that 64 percent of older American voters think workers over the age of 50 face age discrimination in the workplace and 34 percent report that they or someone they know has experienced age discrimination in the workplace.  Meanwhile, older workers face increased pressure to work longer than ever before as a result of dwindling savings and disappearing pensions.

In addition, the AARP reports roughly 8 in 10 older American voters say:

  •  It is important for Congress to take action and restore workplace protections against age discrimination (81%).
  •  Across party and ideological lines, they support the Protecting Older Workers Against Discrimination Act (POWADA) (78%).

Age discrimination has flourished since the U.S. Supreme Court ruled in 2009 that workers who assert they are discriminated against because of their age have a higher burden of proof than workers who  are discriminated because of their race, sex, national origin, religion, etc. (see Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009))

The proposed POWADA would restore the previous legal rules and protections that existed before the 2009 decision.

POWADA was introduced in March by  Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Senator Patrick Leahy (D-VT).  Harkin is Chairman of the Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

The AARP notes the unemployment rate for older workers has soared in recent years, and once out of work, older jobseekers experience far longer spells of unemployment – well over a year, on average – than their younger counterparts.   The AARP says age discrimination is one of the significant reasons why it takes so much longer for older jobseekers to become reemployed.

The Supreme Court decision requires age discrimination victims to show that  “but for” age discrimination they would not have suffered an adverse employment action.  In other words, they must prove that age was the decisive factor in how they were treated.

 Prior to the ruling, age discrimination victims, like other discrimination victims, were required to show only that discrimination was a factor behind how they were treated.  The employer then was required to show that discrimination was not a factor.

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.

Here are some other findings in the AARP survey:

  • Seventy-seven percent of respondents are concerned that their age would be an obstacle  to finding work if they had to find a new job in the current economic climate;  56% say they are “very concerned.”
  • Ninety-one percent agree that older Americans should be protected from age discrimination just as they are protected from other forms of discrimination, including a 73 percent supermajority of respondents who strongly agree.

The AARP (a.k.a. the massive insurance company) describes itself as a nonprofit, nonpartisan organization with a membership that helps people 50+ have independence, choice and control in ways that are beneficial and affordable to themand society as a whole.

EEOC Tackles Ageism in Academia

NOTE: Marymount Manhattan College subsequently entered a consent decree with the EEOC settling the law suit discussed below. Marymount agreed to pay $125,000 to Patricia Catterson and  to comply with the requirements of the Age Discrimination in Employment Act.  The decree also requires monitoring and training on anti-discrimination law. The decree will last for four years.  

It appears that the U.S. Equal Employment Opportunity Commission (EEOC) finally may be cracking down on what some say is blatant, rampant and unchecked age discrimination in academia.

The EEOC has filed an age discrimination lawsuit against an elite private liberal arts college, Marymount Manhattan College of New York City, because it allegedly refused to hire a choreography instructor for a tenure track assistant professorship because of her age.

Marymount initially selected a 64-year-old choreography instructor and two other applicants as finalists for an assistant professorship in dance composition.  After determining that the 64-year-old was the leading candidate, the EEOC said, Marymount’s search committee expanded its search to include a less qualified, 37-year-old 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.”  Marymount hired the 37-year-old applicant.

Last year, Nicholas Spaeth, 62, the former state attorney general for North Dakota, filed several groundbreaking lawsuits against law schools, including the Michigan State University College of Law in East Lansing, Michigan, for  allegedly violating the Age Discrimination in Employment Act.

Spaeth, a magna cum laude graduate of Stanford Law School, says he couldn’t even get an interview for several advertised teaching position at the law school.

Spaeth has served as general counsel at three publicly held companies with billions in assets, argued a groundbreaking tax case before the U.S. Supreme Court, and was a partner at three law firms. He also taught for four years at the University of Missouri School of Law, three years as an adjunct and one year as a visiting professor.

He applied to Michigan law school, which ended up hiring three attorneys for the 2011-2012 school year who graduated in 2006, 2005 and 2001, respectively. One of the new hires had no experience as a legal practitioner. The applicant who was hired by Michigan to teach in Spaeth’s area of specialty, corporate taxation, had three years of practical experience as an associate in a law firm.  Spaeth, who served two four-year terms as North Dakota’s Attorney General, is a former general counsel of H & R Block.

Spaeth earlier filed complaints with the EEOC against more than 100 law schools that also did not offer him an interview.  The EEOC dismissed most, if not all, if Spaeth’s complaints.

One of Spaeth’s age discrimination lawsuits in March passed a critical stage in the legal process. A federal judge denied a motion by Georgetown University’s law school to dismiss Spaeth’s claims that the law school violated federal and District of Columbia laws when it failed to offer tenure-track teaching job. “It… remains plausible that Georgetown could be liable for age discrimination,”   wrote U.S. District Judge Ellen Segal Huvelle in her opinion in Spaeth v. Georgetown University, United States District Court, District of Columbia, No. 11-1376..

The EEOC’s Marymount suit was filed in U.S. District Court for the Southern District of New York (Civil Action No. 12-cv-2388 (JPO) after the EEOC unsuccessfully sought to settle the matter.

“Our suit charges that age was the deciding factor in this case,” said EEOC trial attorney Justin Mulaire.  “Under the law, age has no place in hiring decisions — and tenure-track positions in academia are no exception.”

The Age discrimination against employees and job applicants who are age 40 or older is a violation of the Age Discrimination in Employment Act (ADEA).

Elizabeth Grossman, the regional attorney of the EEOC’s New York District Office, said, “Older workers have the right to be evaluated based on their abilities and not based on their age.  The EEOC is committed to combating bias against older workers in all phases of employment and in all types of employment settings.”

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.

Is Google Really America’s Best Employer?

Note: Google has settled the case out of court; Brian Reid’s lawyer declines to say for how much America’s “best employer” was forced to shell out to settle the age discrimination case.  PGB

Google was ranked number one this week in Fortune Magazine’s “100 Best Companies to Work for,”  and it does seem to be a great place to work  — unless you remember a time when the only “search engine” was the card catalog at your local library.

Google is battling an age discrimination lawsuit brought by a former executive, Brian Reid, who was hired by Google in 2002 as director of operations and engineering.  After two years, Reid, then 54, was fired  by Google.

Reid has a Ph.D. in computer science and is a former associate professor of electrical engineering at Stanford University. He managed a team that built one of the first Internet search engines at AltaVista.

In the lawsuit, Reid said supervisors and co-workers at Google made numerous 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” instead of a “CD.”

Reid also offered statistical evidence of age discrimination at Google, evidence Google demoted him to a nonviable position before terminating him, and that Google advanced changing rationales for his termination.

The trial court initially dismissed Reid’s lawsuit, after Google filed a motion for summary judgment.  But Reid appealed and the lawsuit was reinstated by the California Court of Appeals, which said undisputed evidence supported a prima facie case of age discrimination. Google appealed that decision to the California Supreme Court, which also ruled in Reid’s favor.

Google argued that the derogatory comments made by staffers about Reid should be rejected under the judicial “stray remarks doctrine,” and that slurs like “fuddy-duddy” are insufficient to show that Google’s asserted reason for firing Reid was a pretext for age discrimination.

The California Supreme Court agreed with the appeals court’s determination that the categorical exclusion of evidence by the application of the “stray remarks doctrine” was unnecessary and might lead to unfair results in Reid’s case.  The Court said the so-called “stray remarks” should be evaluated in combination with all of the evidence.  [See Reid v. Google, Inc., 50 Cal.4th 512 (2010)]

The only written performance review of Reid by Google was positive. His supervisor, Wayne Rosing,  described Reid as having “an extraordinarily broad range of knowledge concerning Operations, Engineering in general and an aptitude and orientation towards operational and IT issues.”  Reid was praised for “project[ed] confidence when dealing with fast changing situations,” and being “very intelligent,” “creative,” “a terrific problem solver.”

But Reid’s supervisor wrote that “[a]dapting to Google culture is the primary task for the first year here . . .. Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment.” (Emphasis added.)

The review concluded that Reid “consistently [met] expectations.”

In October 2003, Reid was removed from his position as the director of operations position, and relieved of his responsibilities as director of engineering. He was replaced by two employees, who were 15 and 20 years younger, respectively.  Google asked Reid to develop  an in-house graduate degree program and an undergraduate college recruitment program.

Reid maintains that Google’s then-CEO Eric Schmidt assured him the graduate program was important and would last at least five years. But Reid was given no budget or staff to support it.

Google says it fired Reid on February 13, 2004 because it was eliminating graduate degree program and Reid’s job, and because of poor performance. Reid says he was given no reason for his termination other than lack of “cultural fit.” He said he was told the graduate program would continue and his termination was not performance based.

According to CNN,  Google was picked as best employer because: “Employees rave about their mission, the culture, and the famous perks of the Plex: bocce courts, a bowling alley, eyebrow shaping (for a fee) in the New York office. Then there’s the food: some 25 cafés companywide, all gratis. Wrote one Googler: “Employees are never more than 150 feet away from a well-stocked pantry.”

Among other things, Reid’s complaint includes claims for age discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), wrongful termination in violation of public policy; failure to prevent discrimination; and both negligent and intentional infliction of emotional distress.

*  Editorial note: Before I confer the honor of America’s best employer on Google, I’d like to see how Reid’s lawsuit turns out. We may never see that, of course, because given the direction the litigation has taken, Google may be SERIOUSLY considering an out of court settlement (if it hasn’t already). In any case, I am not inclined to think that any employer who engages in pervasive age discrimination (or any other kind of illegal discrimination) is exemplary or worthy of honor. And I predict that the young people who are so thrilled with bocce ball and free coffee today will have a sad awakening in the not too distant future. They may start hearing “stray remarks” just around the time their children start thinking about college, when a paycheck would really come in handy.

US Leader in Social Injustice

A new international report serves as an indictment of policies that make the United States a leader in social injustice, including alarming poverty and inequality in the workplace.

The U.S. ranks 27th in terms of social justice among the 35 member nations of the Organisation for Economic Co-operation and Development, (OECD), which  promotes policies that will improve the economic and social well-being of people around the world.

The OECD report, entitled Social Justice in the OECD – How Do the Member States Compare? Sustainable Governance Indicators 2011, says that America, with its alarming poverty levels, lands near the bottom of the weighted social justice index, ranking only slightly better than its neighbor Mexico (30) and new OECD member Chile (29).

The OECD’s analysis places much of the blame for the U.S.’ dismal social justice ranking on inequality in the workplace – the US ranks16th in labor market inclusion (see list below) among the OECD’s 35 member countries, behind Canada (8) and Mexico (10).

The OECD says exclusion from the labor market substantially limits individual opportunities for self-realization, contributes to an increase in the risk of poverty, and can even lead to serious health stresses: “So long as gainful employment remains the primary means by which not only income, but also status, self-respect and social inclusion are distributed in developed societies, inclusion in the labor market must be a high priority for a just society” (Merkel/Giebler 2009: 198).

To calculate labor inclusiveness, the OECD analyzed employment and unemployment rates for 55- to 65-year-old workers, foreign-born workers, women as compared to men, and the long-term unemployment rate and the degree of labor market exclusion experienced both by young and by low-skilled workers.

According to the OECD,  a sustainable social market economy able to combine market efficiency with social justice requires the state to take on more than a minimalist “night watch man” role. Rather, it requires a strong state led by actors that understand the need for social equity as a means of ensuring participation opportunities.

Generally, the U.S. ranks 22nd for unemployment and long-term unemployment.

Here’s the OECD’s labor inclusiveness ranking:

1. Iceland

2. Norway

3. Switzerland

4. South Korea

5. Australia

6. New Zealand

7. Netherlands

8. Canada

9. Denmark

10. Mexico

11. Japan

12. Finland

13. Austria

14. Sweden

15. United Kingdom

16. United States

17. Chile

18. Germany

19. Luxembourg

20. Portugal

21. France

22. Czech Republic

23. Ireland

24. Belgium

25. Italy

26. Greece

27. Poland

28. Turkey

29. Hungary

30. Spain

31. Slovakia.