Discrimination Victims Deserve REAL Justice

February 15, 2016 by 1 Comment

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…]

Filed Under: AGE DISCRIMINATION, CULTURE, EEOC, EMPLOYERS, SEXUAL HARASSMENT, TITLE VII Tagged With:

The Big Short in the Federal Courts

December 28, 2015 by Leave a Comment

I recently saw an unsettling movie, The Big Short, about the blatant fraud and corruption on Wall Street  that led to the  global economic collapse and the.Great Recession.

Like many film goers, I felt deeply troubled about the Titanic-sized failure of the American government to protect ordinary Americans from predatory behavior and  criminality by Wall Street bankers and brokers.  But later my thoughts turned to another failure that  is currently being ignored by American government and the press, one that I see as an attorney who writes about  the law and workers who are victims of abuse and discrimination in employment.

There has been undisputed and powerful evidence for years that the federal court system, like America’s  financial system, operates to benefit powerful moneyed interests at the expense of ordinary American workers.  A major indicator of this trend is that federal courts routinely dismiss employment discrimination lawsuits at a far higher rate than other types of business lawsuits.

My book, Betrayed: The Legalization of Age Discrimination in the Workplace, painstakingly documents how the U.S. Congress and  Supreme Court have made it inordinately difficult for workers to prevail in an age discrimination lawsuit.  The Age Discrimination in Employment Act of 1967 ia weak and riddled with loopholes compared to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, national origin and color. The U.S. Supreme Court issued a completely unnecessary ruling in 2009 requiring that age discrimination victims  prove a far higher level of causation than is required under Title VII.  A proposed federal law that would fix the Court’s disastrous ruling has languished in a Congressional committee for six years.  Congress and the Court have legalized discrimination in employment based on age that would be illegal if the victim wore a hijab or hailed from Zimbabwe or Yemen.

At one point last spring, I attempted to contact the Judicial Conference of the United States, a 16-member body (with no citizen representative) that ostensibly runs the federal court system. I wanted to point out that discriminating against employment discrimination victims is tantamount to actual discrimination. I found the Conference’s web site but it contained no contact information. A spokesperson for the Administrative Office of the U.S. Courts (AOC)  suggested that I send my correspondence to the federal circuit court in my jurisdiction, which has a seat on the Conference body.  In exasperation, I submitted  an “open letter” to whom it might concern requesting legal reform via a web form on the AOC web site. I have concluded, rightly or wrongly, that the “leadership” of our federal court system is unapproachable.

In the movie, The Big Short, some savvy observers figured out the housing market was about to collapse and they found a way to make money on the collapse.  It seems likely to me that one day the “bubble” surrounding the federal court system will burst.  Just as there was almost universal faith in the housing market, Americans historically  have shown a high degree of trust in the courts.  That trust is eroded every time the court permits  unscrupulous employers to use the legal system to deny workers respect, dignity and fundamental fairness.

Trust is lost when courts permit employers to use the legal system as a weapon against American workers.

Meanwhile,  President Barack Obama  encouraged age discrimination in hiring when he signed an executive order in 2010 that permits federal agencies to bypass older workers and hire “recent” graduates and  U.S. Labor Secretary Thomas Perez earlier this year endorsed a private initiative by America’s largest corporations that openly discriminates against older workers. The federal government is the nation’s largest employer.

All of this  is happening in plain sight but it has gone largely unreported by the tattered shreds of what remains of America’s once vigorous media.  (I may sound a bit cynical on this score because the 18th richest man in the world, Sheldon Adelson,  a casino operator and major Republican donor who owns a free newspaper in Israel, recently secretly purchased  Nevada’s largest newspaper and immediately began testing the limits of journalism ethics.)

Like the housing market bubble, the bubble in the federal court system is attributable in large part to inattention, neglect and failure of accountability. [Read more…]

Filed Under: AGE DISCRIMINATION, DISPATCHES, LEGAL, U.S. SUPREME COURT Tagged With: , , , , , , ,

U.S. Chamber’s Abhorrent Justification of Age Discrimination in Hiring

December 22, 2015 by 3 Comments

In the tradition of Scrooge, the patriarchy and the Confederacy of the old South, the U.S. Chamber of Commerce has publicly endorsed age discrimination in hiring as both sound policy and reasonable.

The Chamber asserts its cynical position in an amicus brief filed in the case of  Richard Villarreal, 49, who filed a half-dozen applications to work as a Territory Manager for R.J. Reynolds Tobacco, Co. from 2007 to 2010, when he discovered that Reynolds, working with national staffing agencies, used “resume review guidelines” to weed out the Internet applications of older workers. Reynolds’ guidelines specified that “desired” candidates had “2-3 years out of college” and told recruiters to “stay away from” candidates with eight to 10 years of experience. Villarreal’s resume and the resumes of hundreds of other older job applicants were dumped into a digital trash can.

Fortunately, a three-judge panel of the U.S. Court of Appeal for the 11th Circuit in Atlanta split from several other federal circuits and  rejected the Chamber’s argument.  In a 2-to-1 vote, a panel of three 11th Circuit judges voted that job applicants are permitted under the Age Discrimination in Employment Act of 1967 (ADEA) to file disparate impact lawsuits challenging employer policies and practices that discriminate on the basis of age.

In its ‘friend of the court’ brief, the Chamber concedes that older workers have far less protection against invidious discrimination under the ADEA than is available to workers on the basis of race, sex, religion, color and national origin under Title VII of the Civil Rights Act of 1964.  The Chamber said the U.S. Congress, in 1967, had “sound policy reasons” to deny older workers equal protection because “[o]lder workers did not face societal headwinds that might lock them into a lifetime of inferior job prospects ….”

Few would argue that slavery was moral or justified because it was legal – This is essentially the Chamber’s argument with respect to age discrimination.

The Chamber’s arguments are terribly flawed. For example, American law permitted the  enslavement of African Americans until the passage of the 13th Amendment to the U.S. Constitution in 1865 and women were denied  the right to vote until 1920.  This in no way justifies slavery or the disenfranchisement of women. Neither does the fact that Congress 50 years ago buckled to business interests and passed an age discrimination law  that was weak and riddled with loopholes.

The Chamber’s reasoning is illogical.  Would the Chamber argue that blind or deaf workers are ineligible for the protection of the Americans with Disabilities Act if they were born with normal sight or hearing but later suffered impairment?  They did not experience a lifetime of inferior job prospects. Nor does Title VII omit immigrants with advanced educations who became subject to discrimination after they arrived in the U.S.    [Read more…]

Filed Under: AGE DISCRIMINATION Tagged With: , , ,

AARP Official Calls Out EEOC on Age Discrimination

December 15, 2015 by 1 Comment

An AARP official has called upon the EEOC to “significantly ramp up” its minimal efforts to combat age discrimination in employment in the United States.

Daniel B. Kohrman, a senior attorney with AARP Foundation Litigation, told a select EEOC panel studying workplace  harassment earlier this month that complaints of age-based workplace harassment grew by about ten percent in the past two years –  from 3,700 in 2012 to 4,157 in 2014 –  which was faster than race and sex-based harassment complaints. However, he said, older workers face unique difficulties in combating harassment and other forms of age discrimination in employment.

Ageism is not treated “as seriously” as other forms of bias, he said.

“First,” he said, “courts, and often our culture, do not treat ageism as seriously as other forms of bias. As a result, age harassment cases often founder because they don’t appear sufficiently severe, even if pervasive, to meet the hostile environment standards.”

Kohrman said some courts demand a level of “animus” to sustain an age-based harassment claim that is not required in the law. He also noted the Age Discrimination in Employment Act does not provide for compensatory (i.e. emotional distress) or punitive damages. An older worker who is not actually fired may not have any legally recognized damages,  he said.

Pot Calling Kettle Black?

This blog has been highly critical of both the AARP and the EEOC for virtually abdicating their responsibility to protect older workers from age discrimination in employment, especially given the epidemic nature of the problem since the Great Recession. In my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show indisputably that older workers literally have been second-class citizens under the law for almost fifty years.

Kohrman indicated that  AARP Foundation Litigation lacks the resources to do more (which is somewhat hard to believe given the fact the Foundation’s parent organization is hauling in billions in profit through sales of Medi-Gap health insurance to seniors).

Groups like AARP Foundation Litigation “may engage in some cases as warranted … [but] capacity for such action generally is limited,” he said. 

Kohrman urged the EEOC to prioritize age discrimination cases, because older workers are essentially  prevented from exercising their rights under employment discrimination statutes.  He cited  three age discrimination lawsuits brought by the EEOC since 2009, adding, “That said, we could only find a few more age-based harassment cases discussed in news releases going back to 2009.”

Kohrman said  research shows that 64 percent of older workers (ages 45-74) say they have seen or experienced age discrimination in the workplace.

Filed Under: AGE DISCRIMINATION, CULTURE, EEOC Tagged With: , ,