Who is standing up for the rights of American workers?
GOP President Donald Trump and the GOP-led U.S. Congress seem to be determined to eliminate worker rights rather than to expand them. Trump has reversed a bevy of pro-labor measures that former Democratic President Barack Obama enacted on his own without Congressional backing. Meanwhile, workers continue to seethe about mostly Democratic trade policies that sent American jobs to other countries.
Labor unions are barely hanging on, despite the fact that unions pioneered many of the employment benefits that workers take for granted today. In 2016, the union rate for private sector workers was 6.4 percent – down from 20.1 percent in 1983. Organized labor is currently battling a potentially crippling effort by Trump and the GOP to prevent unions from requiring nonmembers to pay representation fees.
It may be an understatement to say that advocacy of worker rights does not appear to be high on the agendas of the Equal Employment Opportunity Commission and US. Department of Labor.
Under the Democratic administration of President Barack Obama, the EEOC shifted its focus away from filing lawsuits and prosecuting employers who engaged in illegal discrimination. Instead, the EEOC is focused on providing free dispute resolution services to these very same employers. Mediation is often a lousy deal for discrimination victims, who walk away with a pittance to compensate for the loss of a decent job, but it’s always a great deal for employers, who avoid potentially catastrophic fees and damages stemming from a lawsuit. Also, mediation is completely secret so other potential litigants are kept in the dark. Meanwhile, the EEOC has for years ignored one of the most pressing civil rights issues of our day – blatant and epidemic age discrimination in hiring that is particularly devastating to older women, who suffer twice the poverty rate of men in their old age. The EEOC received more than 20,000 age discrimination complaints in 2016; it filed only TWO lawsuits with “age discrimination claims.” Continue reading “Support for American Workers is Hard to Find”
When the Age Discrimination in Employment Act (ADEA) was 20 years old in 1987, the U.S. Senate Special Committee on Aging sharply criticized the U.S. Equal Employment Opportunity Commission for failing to enforce the ADEA.
What would Senators Melcher, Heinz, Chiles, Chafee, et. al, say about the EEOC today?
The 1987 Senate Committee blasted the EEOC in 1987 for, among other things, filing too few lawsuits and hiring too few experienced staff to evaluated cases.
Today, there are fewer full-time staff members working at the EEOC than there were in 1987 during the Republican administration of Ronald Reagan (who was widely perceived to be hostile to civil rights).
And it appears the EEOC filed many more lawsuits in 1987 than it did last year.
Clarence Thomas, now a U.S. Supreme Court Justice, was appointed to the EEOC in 1982 and was serving as its controversial chairperson in 1987. Thomas told the Committee that the EEOC filed 526 actions in federal district courts in 1986. Of these, he said, a record 109 were lawsuits filed under the ADEA. More than 25 percent of all cases filed in 1986 were class actions, said Thomas. And more than 40 percent of the class action lawsuits were age cases.
The EEOC recently reported that in fiscal year 2012 it filed only 122 lawsuits in federal court, including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 “systemic suits.”
Does lack of funding account for the paltry number of lawsuits filed by the EEOC in 2012 compared to 1987? No. The EEOC budget was $165,000 million in 1987 compared to $360,000 million in 2012.
The 1987 commitee generally was not satisfied with the EEOC’s performance. “It’s all well and good to have a strong bill on the record protecting the aged and preventing discrimination based on age in the work force but if the law isn’t enforced, then we haven’t got much,” said committee member John Chafee, then a senator from Rhode Island.
It appears that no one is criticizing the EEOC’s performance today.
Today’s Senate Select Committee on Aging does not mention the problem of age discrimination on its web page. Nor does it mention age discrimination as an issue of concern on its issue page. And it has no schedule listed for hearings in 2013.
The issues of interest to the modern-day U.S. Senate Committee on Aging are elder abuse and fraud, long-term care, Social Security and Medicare, prescription drug costs and retirement security.
The Committee explains the retirement security problems this way: “Saving for retirement has shifted dramatically in recent decades, and seniors now increasingly face retirement with little money saved or little guaranteed income due to the shift away from traditional pension plans toward the 401(k) plan.
Of course, this explanation fails to acknowledge that many people over the age of 40 consider age discrimination to be a problem that has serious implications for retirement security.
In 2012, the EEOC received 22,857 complaints of age discrimination – 23 percent of the 99,412 discrimination complaints it received that year.
According to a report last year in the New York Times, a “startling proportion” of older people report they’ve experienced discrimination – 63 percent – in a study recently published in Research on Aging. Age is the most commonly cited cause, followed by gender, race or ancestry, disabilities or appearance.
Cases Harder to Win
Meanwhile, it is considerably more difficult today for older workers to win an age discrimination lawsuit, no matter how egregious the discrimination, because of a decision by the U.S. Supreme Court, Gross v. FBL Fin. Servs., 557 U.S. 167 (U.S. 2009).
The Supreme Court held in Gross that a plaintiff in an age discrimination case must prove that “but for” age discrimination, he or she would not have suffered the adverse job action (i.e. demotion, dismissal). In most other types of discrimination, the plaintiff must only show the existence of age discrimination — not that it was the cause of the adverse action.
Interestingly, Supreme Court Justice Thomas, the first African-American to head the EEOC and to serve on the U.S. Supreme Court, wrote the Gross opinion.