Age Leads in Discrimination Complaints Filed by Federal Employees

ObamaMore  complaints alleging age discrimination were filed by federal employees each year from 2010 to 2014 than complaints alleging  race or disability discrimination.

The Annual Report on the Federal Work Force states that age was a basis for 4,697 complaints filed by federal employees in 2014, compared to 3,838 complaints of race discrimination and 3,817 complaints of  (physical) disability.  Age discrimination was, by far, the leading basis for complaints filed by federal employees each year during the four-year period, with a high of 5,314 age discrimination complaints filed in 2010.

Yet, the federal government, which is the nation’s largest employer,  has done virtually nothing – if anything  – to address the problem of age discrimination in federal employment. In fact,  President Barack Obama made the problem considerably worse in 2010 when he signed an executive order  to permit federal agencies to discriminate in hiring on the basis of age in hiring.  The order exempts the federal government from the Age Discrimination in Employment Act of 1967 (ADEA), which expressly prohibits using age as a consideration in hiring.

President Obama couched his order permitting age discrimination in federal hiring as a diversity measure.

The president argued in his executive order that the federal government is at a disadvantage in hiring students and recent graduates because of civil service regulations (that were passed in 1871 to prevent cronyism and to  ensure fairness in hiring). He added that  “students and recent graduates … infuse the workplace with their enthusiasm, talents, and unique perspectives.”  (Does this mean that older workers don’t?)

Underlying President Obama’s executive order is the assumption that America must choose between the worthy goal of nurturing young workers and the ideal of equal opportunity for all.  But is this choice really necessary? The United States has the world’s largest national economy, with a gross domestic product estimated to be $17.914 trillion in 2015. The pie is big enough to make sound policy decisions that boost employment for younger workers without consigning older workers to irrational discrimination, chronic unemployment and poverty. [Read more…]

Hulk Hogan v. Two Alleged Age Discrimination Victims

A review of the New York Times today provides a stark demonstration of the arbitrary way that society assesses damage to individuals.

There is a front page story about a Florida jury verdict ordering to pay wrestler Hulk Hogan $115 million in damages for publishing a grainy security video depicting Hogan having sex with a friend’s partner. Of that amount, $55 million was for economic harm and $50 million was for emotional distress. (Hogan subsequently was awarded an additional $25 million in punitive damages.)

Another story, featured in the business section, chronicles the demoralizing travails of Julianne Taaffe, 60, and Kathryn Moon, 65, who taught English as a second language (ESL) at Ohio State University for decades until they were forced to retire as a result of an alleged campaign of illegal age discrimination and harassment.

The maximum damage award permitted under the Age Discrimination in Employment Act (ADEA)  is a total of two-times the amount of monetary damage suffered by the plaintiffs.  The ADEA does not permit plaintiffs to recover damages for emotional distress or punitive damages,  though these damages are permitted under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. So if Taaffe and Moon’s case ever gets to a jury  the most they could recover is whatever salary and benefits they lost, possibly doubled.

And while the evidence against OSU is what some would call overwhelming, it is far from certain that Taaffe and Moon’s lawsuit ever will reach a jury.  Taaffe and Moon were forced to sue five Ohio State University (OSU) officials individually rather than the university because the U.S. Supreme Court in 2000 ruled that  the concept of  sovereign immunity prevents an award of monetary damages in federal lawsuits against state agencies (including universities).   OSU has filed a motion to dismiss the lawsuit on the grounds that the ADEA does not permit plaintiffs to sue individual government employees.

Taaffe and Moon claim in the lawsuit that OSU systematically drove out older teachers in the university’s English as a Second Language Program. [Read more…]

Impossible Hurdles for Age Discrimination Plaintiffs

One wonders how the plaintiffs might have persuaded  the federal appeals court panel that they were the victims of age discrimination absent a futuristic device that reads an  employer’s mind.

A three-judge panel of the U.S. District Court of Appeals for the Third Circuit in Philadelphia recently granted a pre-trial motion to dismiss an age discrimination lawsuit because the plaintiffs failed to prove the employer’s stated reason for firing them was a pretext or a  lie.

Assistant District Attorneys Edward Gallen, 65, and Robert Miller, 57, were fired shortly after the 2011 election of District Attorney Tom Hogan in Chester County, Pennsylvania.   Hogan requested the termination papers prior to taking office. He fired the men for “poor performance.” He then made public statements that he planned to reorganize the office and establish a “modern” prosecutor’s office.

The appeals court panel ruled that “no reasonable factfinder should infer an intent to discriminate in hiring based on age from Hogan’s platitude about modernizing the District Attorney’s Office.”

Moreover, Hogan fired a total of four assistant district attorneys in their 50s and 60s, including Gallen and Miller, and then hired five younger attorneys in ages ranging from 27 to 42.  The appeals court panel agreed that “on the surface” this looked bad but said it fell short of what was needed to show age discrimination.  The court said the plaintiffs failed to show that Hogan had refused to hire more experienced attorneys who were older.

The third circuit panel said the plaintiffs were required to “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either disbelieve the employer’s articulated legitimate reasons … or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s actions.”

The ruling raises a question about whether it is even possible for an age discrimination plaintiff to withstand a motion for summary judgment in the third circuit without direct evidence, such as a memo from a supervisor stating that employee is being fired because s/he is too old.

Is it realistic today to expect savvy employers to commit their illegal intentions to paper?

Technically, it’s not supposed to be a high bar for plaintiffs to withstand a motion for summary judgment, which is a pretrial motion filed by the employer to dismiss the case prior to trial  because “there is no genuine dispute as to any material fact.”  Under federal rules, judges are required to give the plaintiffs (not the employer) every benefit of the doubt. Traditionally, it has been thought that questions of intent and decisions about a witness’ credibility are best left to juries, not to  federal judges who have lifetime tenure and don’t have to worry about a new guy taking office and firing them because they’re too old.

The decision was issued by Judge Thomas Ambro,  Chief Judge Thomas  A. McKee and  Senior Circuit Judge Anthony Joseph Scirica.  It seems worth noting that Scirica is 76 and voluntarily accepted semi-retired status in 2010, at which time he began collecting a fat government pension plus his earnings as a part-time federal judge.

The third district covers Delaware, New Jersey and the Eastern, Middle and Western districts of Pennsylvania.

Discrimination Victims Deserve REAL Justice

The EEOC has asked for public input so here goes:

Why is the EEOC operating the equivalent of a “get out of jail free card” for employers that engage in employment discrimination and retaliation?

When the EEOC determines there is reasonable cause for a charge of discrimination, the agency offers the employer (and the victim) the opportunity to participate in its free mediation program, where a neutral mediator assists the parties in reaching an early and confidential  resolution to a charge of discrimination.

In its 2014 performance report, the EEOC contends the mediation program is a “win for both Employees and Employers” but in the final analysis it is a much bigger win for employers.

The EEOC says its mediation program for private sector complainants  achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination.  The effort yielded $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.

A payout of less than $20,000 per mediation is a bona fide windfall for employers, who might otherwise be forced to spend a hundred thousands dollars or more to defend a lawsuit, plus a potentially staggering damages award.

But $20,000 is a pittance at best for many – if not most – victims of employment discrimination – especially those who lost their jobs or who were not hired because of illegal discrimination.

There’s the rub

The EEOC is not supposed to be in the business of protecting discriminatory employers from the reasonable consequences of their harmful actions. [Read more…]