Move Over Dred Scott: NY Appeals Court Upholds Age Discrimination by Feds

Unfortunately, many federal court decisions live in infamy.

Now the U.S. District Court of Appeals for the Second Circuit in New York City has added a new one to the list.

A three-judge panel ruled last week that a discriminatory federal hiring program does not violate the U.S. Constitution’s Equal Protection Clause because it involves age discrimination, rather than race or sex discrimination.

The Equal Protection Clause states the government shall not “deny to any person within its jurisdiction the equal protection of the laws”.

Former President Barack Obama signed an executive order in 2010 creating the U.S. Office of Personnel Management’s Pathways Recent Graduates Hiring Program. The program, which took effect in 2012, created a back-door exception to the Age Discrimination in Hiring Act of 1967, allowing federal agencies to limit hiring to applicants who graduated within the past two years. The Pathways program has had an overwhelmingly disparate impact on older workers, who have been barred from applying for 100,000 jobs and counting. This is clear disparate impact discrimination.

The 2nd Circuit panel states in its decision that the federal government proffered a “rational basis” for allowing age discrimination under the Pathways Program – “to replenish a workforce containing an evergrowing number of Federal employees near[ing] retirement age with students and recent graduates.”  Moreover, the panel said the government’s rationale is connected to a “legitimate” government purpose.

How can it be “rational” and “legitimate” to discriminate based on a trait (age) that is not relevant to a job and over which group members have no control?

The appeals court used a three-level system of analysis devised by the U.S. Supreme Court in the 1940s for discrimination cases. Under the scheme, age discrimination receives the Court’s lowest level of scrutiny – mere “rational basis” review – while discrimination on the basis of race, sex, religion and national origin receive exacting “strict” or “intermediate scrutiny”.  The three-judge panel approvingly cited  U.S. Supreme Court Justice Sandra Day O’Connors reasoning in a 2000 U.S. Supreme Court ruling, Kimel  v. Florida Bd. of Regents. Justice  O’Connor said age discrimination deserves lesser treatment than other types of discrimination because:

  • Older persons have not been subjected to a “history of purposeful unequal treatment” and,
  • “[Old] age also does not define a discrete and insular minority” as the status of old age is one which all persons, regardless or ace or gender, may experience.”

Apparently the panel was not influenced by the fact that O’Connor’s reasoning was speculative, without any support, and just plain wrong.

In fact,  scores of researchers since the 1960s have equated age discrimination with race and sex discrimination. There is no dispute that all discrimination, including age discrimination, is based on irrational negative stereotypes about the oppressed group; dislike and animus; and, fear of people who are different from the dominant group.

In 1969, Dr. Robert N. Butler, a psychiatrist and the first director of the National Institute on Aging, said:

“Ageism can be seen as a systematic stereotyping of and discrimination against people because they are old, just as racism and sexism accomplish this with skin color and gender . . . ageism [is] manifested in a wide range of phenomena, on both individual and institutional levels—stereotypes and myths, outright disdain and dislike, simple subtle avoidance of contact, and discriminatory practices in housing, employment, and services of all kinds.”

Moreover, historians have documented a long history of purposeful unequal treatment of older workers, especially since the Industrial Revolution forced older workers off the farms.

Historian Gregory Wood writes that aging working-class men in the auto and steel industries in the 1920s and 1930s dyed their hair with shoe polish to disguise their ages, because they recognized that growing old was a threat to continued employment.

The reason the U.S. Congress passed the Age Discrimination in Employment Act (ADEA) of 1967 was a study by the U.S. Secretary of Labor that found that applicants over 55 years of age were barred from half of all job openings in the private sector. Workers over 45 were barred from a quarter of these jobs, and workers over 65 were barred from almost all of them. The most immediate impacts of the ADEA was to eliminate the forced retirement of most older workers.

Applicants over 55 years of age were barred from half of all job openings in the private sector. Coincidence?

The Second Circuit’s  decision upholding the Pathways Recent Graduates Program came in a lawsuit filed by a New York man who alleged he was a victim of age discrimination when he applied for a job at the age of 41 with the Federal Deposit Insurance Corp.  The panel held that Brian Neary applied for the position in 2009, before the Pathways Program went into effect, and was himself a recent graduate at the time. (And, of course, victims of age discrimination have no right to truly “equal”protection under the law.)

The case is Brian J. Neary v. Martin J. Gruenberg and FDIC, No. 17-2470-cv (U.S. Court of Appeals for the Second Circuit, April 5, 2018). The federal judges on the panel were Dennis Jacobs, Richard C. Wesley and Richard K. Eaton. (FYI – Federal judges have lifetime tenure and never have to worry about age discrimination. Coincidence?)

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