Continuing Tragedy of Unemployed Older Workers

Continuing Tragedy of Unemployed Older Workers

No End in Sight?

More than half of older Americans who are unemployed are in the ranks of  the long-term unemployed.

The  Government Accountability Office reports that 55 percent of unemployed older workers have been unemployed for longer than six months, compared to a rate of about 35 percent for younger workers. Over one quarter of unemployed older workers have been out of work for a year or more.

According to the New York Times, older workers saw the largest proportionate increase in unemployment in the economic downturn of any age group. The number of unemployed people between ages 50 and 65 more than doubled.  And older workers are unemployed much longer than other age groups. A study last year by the Pew Charitable Trusts found that 44 percent of workers unemployed at least a year were 55 or older.

In fact, the chance of a long-term unemployed worker finding a new job in this jobless recovery are poor to nonexistent. Many will be forced to exhaust their life savings  to survive. Many will be forced to  claim Social Security as soon as they turn age 62, suffering a 25 percent cut in benefits for the rest of their lives.

One reason that older Americans are stuck in the dead end of long-term unemployment is that they are more vulnerable to discrimination than  other Americans.  This is a problem because many older Americans are laid off or fired because they earn higher salaries,  are more costly to medically insure or they simply don’t fit within a youth culture that is deemed more desirable.

Why are older Americans more  vulnerable to discrimination?

In  2009, the U.S. Supreme Court issued a ruling that gutted the Age Discrimination in Employment Act. That  ruling  could be – but has not been – fixed by the  U.S. Congress.

In Gross v. FBL Financial Services, the Supreme Court upended the longstanding and established burdens of proof in employment discrimination cases.  The Court held that plaintiffs alleging age discrimination must prove that age was the “but for” or deciding factor in an employment decision.  In contrast, plaintiffs alleging discrimination based on race, sex, national origin, and religion need only prove that discrimination was a “motivating factor.”  The ruling places age discrimination plaintiffs in the impossible position of having to disprove any other factor the employer claims it relied upon.

The new “but for” standard is so high that  many employment lawyers today won’t take age discrimination cases.

The rationale for this ruling was that  Congress did not amend the ADEA when it amended Title VII of the Civil Rights Act in 1991 to allow plaintiffs to prevail if they could show that discrimination was a “motivating factor” for the adverse employment action.

In 2012, Senators Tom Harkin, D-Iowa, and Chuck Grassley,  R-Iowa, and Patrick Leahy, D-Vermont, proposed the Protecting Older Workers Against Discrimination Act (POWADA), a bill that is aimed at restoring  rights stripped from older workers by the Gross decision. The bill went nowhere.

POWADA was reintroduced in July but is presently given very slim chance of passage. (Readers are urged to contact their legislators!)

Human Toll

Research shows that older Americans were three times more likely to become unemployed because they lose their jobs, while younger workers were three times as likely to be unemployed because they are looking for a first job or reentering the workforce, perhaps after finishing college.

Job loss has a devastating affect on the retirement security of  older workers. They cannot contribute to 401k plans or are forced to draw down their accounts. They have less time to recoup their losses to prepare for retirement than younger workers.

An October 2011 survey by the American Association of Retired Persons of workers age 50 and over found that nearly a quarter said that they had used all of their savings during the past  three years.

The human toll of long term unemployment is devastating. Job loss is associated with illness and a higher rate of suicide, especially for unemployed older male workers who were previously steadily employed.

In 1967,, the U.S. Congress passed the ADEA because of widespread and overt discrimination against older Americans. When President Lyndon Johnson signed the ADEA into law he said it would help insure  that the most qualified applicant got the job.  Would President Johnson even recognize the ADEA today as it is being interpreted by federal judges in courthouses across the country?   Probably not.  The complex burden-shifting that resulted from Gross leads away from substantive issues like “qualifications” and results in the dismissal of most of age discrimination cases on pre-trial motions.

One wonders how much longer older Americans will  suffer before the U.S. Congress acts enacts POWADA and the  Obama administration adopts policies addressing the plight of older Americans who are disproportionately represented among the long term unemployment.


Chart from Government Accountability Office Report

The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The statute not only applies to hiring, discharge, and promotion, but also prohibits discrimination in employee benefit plans such as health coverage and pensions. In addition to employers, the ADEA also applies to labor organizations and employment agencies.


Paycheck Fairness Advances in New Jersey

Paycheck Fairness Advances in New Jersey

What is the most dangerous question in your workplace?

In the private sector, the most dangerous question often is: “How much are you being paid?”

While the U.S. Congress fiddles, New Jersey Gov. Chris Christie recently signed into law a  bill making it illegal for New Jersey employers to retaliate if a worker discloses job pay information when the disclosure is made for the purpose of investigating whether someone is being paid unfairly. Job pay information includes workers’  job titles, occupational categories, pay and benefits, and status as members of protected categories.

Nearly half of all workers nationally are either contractually forbidden or strongly discouraged from discussing their pay with their colleagues, according to a 2011 report by the Institute for Women’s Policy Research Institute (IWPR).

Even when women have the same title as men, they tend to earn less and the disparity widens if women are Latino or African American.

Senate Majority Leader Loretta Weinberg, D-Teaneck, is quoted as stating: “If we are serious about pay equity, we have to allow workers to freely discuss their job conditions … By allowing employees to ask their coworkers about their salaries, benefits or working conditions, we open a door for those who believe they are being treated unfairly to learn the truth and get their fair share.”

Paycheck Fairness

The NJ law mirrors the proposed Paycheck Fairness Act,  legislation that was passed by the U.S. House of Representatives in 2009 but was blocked by Republicans in the U.S. Senate. The act, which was reintroduced this year, would close loopholes in the federal Equal Pay Act of 1963 and provide additional incentives for employers not to discriminate in pay.

A 2010 report from the US Census Bureau reported that for every dollar a man earned, a woman only earned 77 cents–for equal work production. As women get older, this wage gap widens. The National Women’s Law Center reports that when women start working–between ages 15 and 24–the wage gap is relatively small. Yet by the time they start to reach the critical years leading to retirement, ages 45 to 64, women are earning only 71% of what men do.

Discrimination (rather than differences in occupations, industry, experience or education) is believed to be responsible for about 40 percent of the wage gap.  According to the IWPR, in the federal government, where pay rates are transparent and publicly available, the gender wage gap is only 11 percent.

At the current rate, it is projected that the wage gap will not disappear for 45 years.

Sen. Warren Speaks to Labor

Sen. Warren Speaks to Labor

They Got Rich; We Paid for the Roads

Labor Day 2013 could be a depressing given the sad state of labor in the United States.

So here are some inspiring  quotes from U.S. Sen. Elizabeth Warren (D-Mass), mostly courtesy of the AFL-CIO, which has invited Warren to be a keynote speaker at its national convention in Los Angeles next month. Warren has proven to be a clear voice for lower and middle class workers since her election to the U.S. Senate.

  •  “There is nobody in this country who got rich on their own. Nobody. You built a factory out there—good for you. But  … You moved your goods to market on roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory….You built a factory and it turned into something terrific or a great idea—God bless! Keep a hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.”—September 2011. 

“People feel like the system is rigged against them, and here is the painful part, they’re right. The system is rigged.”—September 2012.

  • “Hardworking men and women who are busting their tails in full-time jobs shouldn’t be left in poverty.”—August 2013..
  • “Look around. Oil companies guzzle down the billions in profits. Billionaires pay a lower tax rate than their secretaries, and Wall Street CEOs, the same ones that direct our economy and destroyed millions of jobs still strut around Congress, no shame, demanding favors, and acting like we should thank them. Does anyone here have a problem with that?”—September, 2012.
  •  “It is critical that the American people, and not just their financial institutions, be represented at the negotiating table.”—Summer 2009.
  •  “Americans are fighters. We’re tough, resourceful and creative, and if we have the chance to fight on a level playing field, where everyone pays a fair share and everyone has a real shot, then no one—no one can stop us.”—September 2012.
  • “Washington is wired to work well for those on Wall Street who can hire lobbyists and lawyers and it doesn’t work very well for the rest of us.”—October 2011.
  •  “If you’re caught with an ounce of cocaine, the chances are good you’re going to jail….Evidently, if you launder nearly a billion dollars for drug cartels and violate our international sanctions, your company pays a fine and you go home and sleep in your own bed at night.”—March 2013. 
  • “Corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die. And that matters. That matters because we don’t run this country for corporations, we run it for people.”—September 2012.
  •  “Nobody’s safe. Health insurance? That didn’t protect 1 million Americans who were financially ruined by illness or medical bills last year.”—February 2005.

In addition to Warren,  the AFL-CIO convention has invited as a guest speaker the recently appointed Secretary of Labor Thomas Perez.

Here are a couple of other Warren quotes worth remembering:

  • “Instead of helping our students, the government is making a profit on student loans. That is wrong. It is morally wrong. That is obscene.”
  • “I introduced the Bank on Students Loan Fairness Act to give students the same low-interest rates that the big banks get. If those 0.75% rate is good enough for the big banks, it’s good enough for our kids who are trying to get an education. And as long as the government continues to make hundreds of billions in profits off our students, I’ll keep fighting.”


Walmart Dodges Bullet on Sex Discrimination

Scale of JusticeWal-Mart may have dodged the bullet for alleged systemic sex discrimination dating back at least a decade.

Last week a federal judge in San Francisco denied class certification in a statewide class action lawsuit filed by five female Wal-Mart employees in California on behalf of 150,000 past and present female workers in that state who  allegedly were denied equal treatment in pay and promotions.

This is the second defeat for plaintiffs seeking to file class action lawsuits against Wal-Mart on a state or regional basis. Wal-Mart won dismissal of a lawsuit in October that sought to represent female Wal-Mart workers in Texas.

 The U.S. Supreme Court last year rejected a 12-year-old class action lawsuit filed by six female employees of Wal-Mart on behalf of  1.6 million past and present female workers around the country. 

What’s left for the plaintiffs?

Class action lawsuits often are the only realistic way of addressing systematic discrimination by corporations because of  the high cost of litigation, the defendant’s “deep pockets,”  and the relatively paltry amount of damages typically available in individual cases.


Senior U.S. District Judge Charles R. Breyer ruled the California lawsuit failed to meet the  U.S. Supreme Court’s criteria for a collective legal action, including evidence of a company policy or decisions by higher-ups that affect all workers in the class. He the statistics “still do not reflect significant proof of a general policy of discrimination.”

Judge Breyer concluded the following evidence from the plaintiff’s is “underwhelming”:

  • About three-quarters of the stores paid women, on average, the same hourly rates as men. (Note: of course, this means that a quarter of Wal-Mart stores pay women, on average, a lower hourly rate than men. PGB)
  • Eighty-six female Wal-Mart employees in California described personal experiences of discrimination  – that represents only one woman for every 1,745 members of the proposed statewide class. (It’s unclear what number would be sufficient  for class action status- PGB)
  • The plaintiff’s produced evidence that Wal-Mart’s then-chief executive, Thomas Coughlin, in a 2004 meeting attended by district managers who approve pay and promotional decisions, said the key to success in choosing leaders was “a single focus to get the job done,” and that “men are better at focus.”
  • The plaintiffs said they had evidence of disparities throughout California and biased statements by top managers.

The U.S. Supreme Court ruled unanimously in June 2011 that the original lawsuit against Wal-Mart in 2001 failed to show any company-wide policy or attitude of discrimination  and said there were too many women in too many jobs at Wal-Mart to wrap into one lawsuit. The high court overturned lower court decisions that allowed nationwide class-action status.

Judge Breyer said the California lawsuit “is essentially a scaled-down version of the (nationwide) case with new labels on old arguments.” He said the plaintiffs challenged “the discretionary decisions of hundreds of decision-makers,” which, according to the U.S. Supreme Court, cannot be the basis of a class-action suit.  

Breyer said the remarks attributed to former Wal-Mart CEO Coughlin may have come from an outside consultant and were made after the period covered by the lawsuit.

Breyer, 72, was appointed to the federal bench in 1997 by then-President Bill Clinton.  His brother is U.S. Supreme Court  Justice Stephen Breyer.

Dodged a Bullet?

At one point, Wal-Mart, the nation’s leading retailer, was concerned about potentially serious liability for alleged sex discrimination.

In  2010, the New York Times published an article on a 1995 memorandum issued by Wal-Mart’s then counsel, Akin Gump Strauss Hauer & Feld,  that reported widespread gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores.

The NYT reported the memo said that “women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women..”

By one measure, the memo states “. . . men were five and a half times as likely as women to be promoted into salaried, management positions.” Furthermore, in 1993, men employed by Wal-Mart as department managers were paid an hourly rate 5.8 percent higher than women in those positions. 

The Memo estimated that Wal-Mart’s potential legal exposure in a class-action sex discrimination suit was $185 million to $740 million for 1993 alone.

The  overall disparities in job assignments, the memo states, were “statistically significant and sufficient to warrant a finding of discrimination unless the company can demonstrate at trial that the statistical disparities are caused by legitimate, nondiscriminatory factors.”

At this point it appears that Wal-Mart has dodged that bullet.

Wal-Mart was “pleased” by California Judge Breyer’s ruling and said it has a had a  “strong policy” against discrimination in place for many years.