It’s Time for a New Magna Carta

It’s time for a new Magna Carta.

Eight hundred years ago, an English monarch averted a Civil War by affixing his name to the Magna Carta, a 1215 document that contained concessions to England’s barons after years of arguments over royal power. The Barons were exasperated at the king’s arbitrary rule and high taxes.  The significance of this ancient document is that citizens are entitled to certain basic rights under the law and that no one is above the law. The Magna Carta was a major step toward forming modern democracies and influenced early American colonists and the formation of the U.S. Constitution in 1789.

Now, eight hundred years later, America has strayed from a basic tenet of the Magna Carta – that the government should be accountable to the people.

One reason that America is such an unequal society today is the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission. That 5-4 decision made it unconstitutional to ban free speech through the limitation of independent communications by corporations, associations and unions. This decision legalized super-PACs that secretly accept unlimited sums of money from corporations and spend the money to boost a specific candidate, often through negative television advertisements targeting the candidate’s opponent. The point of these PACS obviously is to influence the outcome of elections and the policies that are enacted by candidates who are elected to serve as politicians and judges.

According to Politico, the conservative billionaire Koch brothers are expected to spend at least $889 million to support GOP candidates in the upcoming presidential race and it is likely that equally obscene sums will be secretly funneled into the election campaign to support Democratic candidates.  The Koch brothers operate multi-national companies involved in transportation fuels (i.e. the oil industry), building and consumer products, electronic connectors, fibers, fertilizers, membrane filtration and pollution control equipment. Does anyone think their motive for spending $889 million is purely altruistic?

A new Magna Carta is needed to clarify that government must be accountable to people and not to artificial legal entities that are structured to advance business interests.

The Magna Charter was signed on June 15, 1215 at Runnymede on the banks of the Thames River in England.  One of most important and lasting provisions of the Magna Carta is a provision prohibiting the government from arresting without cause “free men”  (This did not include women or poor people).

The evidence that politicians today do not represent actual people is not hard to find.  In my book, Betrayed: the Legalization of Age Discrimination in the Workplace, I argue that older workers are subject to epidemic, unaddressed age discrimination that is literally built into our law.  The problem got much worse in 2009 as a result of a U.S. Supreme Court decision, which Congress has never bothered to fix.

Age Takes the Lead as a Negative in Politics

An interesting societal shift seems to have pushed age (70 and above) into the undesirable position of  the most negative characteristic for a political candidate.

A Pew Research Center poll last year found that 55 percent of Americans said it would make no difference to them if the candidate was in his or her 70s. But 66 percent of Americans  said it would make no difference to them if a candidate was gay or lesbian and 71 percent  said it would make no difference if the candidate were female.  Thus, it  makes more difference to the public if candidates are in their 70s than if they are gay or lesbian or female.

At the same time, 36 percent of those polled said it was less likely that they would support a candidate in their 70s, compared to 27 percent who would be less likely to support candidates who are gay or lesbian and nine percent who are less likely to support female candidates.  So more Americans – of all ages – are less willing to vote for politicians in their 70s than they are for gay and lesbian and female candidates.

For generations, gays and lesbians remained closeted out of fear of public backlash and women battled overwhelmingly negative stereotypes in election campaigns. It is certainly a positive that discrimination has lessened for these groups but this appears have had the effect of pushing age to the forefront as a negative characteristic in politics.  Meanwhile, improvements in health have forestalled many of the negative affects of aging, allowing people to live longer and in better health.

The Pew poll did find some good news with respect to age.  Forty-eight percent of those polled  by Pew in 2007 said they would be less likely to vote for a candidate in his or her 70s compared to 36 percent in 2014, which indicates a slight lessening of ageist attitudes.

In recent weeks, the presidential race took an unabashedly ageist turn, with Republican candidate Mark Rubio, 43, attacking Hillary Clinton as a member of a generation from “yesterday.” Clinton would be 69 upon taking office if she is elected.

Almost no one in the media acknowledged or addressed Rubio’s ageist attack. In fact, Fox “pundit” Mark Hannity called Rubio as a dynamic young man and the father of young children, while characterizing Hillary as a “grandma.” According to Hanity: “He’s young, energetic, bubbling with new ideas, an inspirational speaker with an inspirational background … She’s aging, out of ideas, often shrill, apparently according to oral reports angry and clearly not inspiring. Marco’s 43, Hillary’s closer to 70.”

Will voters act on the basis of negative stereotypes about age or will they assess how the candidates stand on the issues?  The Pew report does not provide much reason for optimismdebate with his Democratic opponent, 56-year-old Walter Mondale. Reagan promised he “will not make age an issue of this campaign. I am not going to exploit, for political purposes, my opponent’s youth and inexperience.” Reagan won handily.

Marco Rubio’s Divisive Generational Politics

Senator  Marco Rubio, the 43-year-old Republican from Florida, began his campaign for the American presidency this week with a calculated and divisive generational attack.

He implies that America’s 77 million baby boomers are “yesterday” and states the time has come for a new generation to lead America.

In his campaign launch speech, Rubio stated:

  • “Now, the time has come for our generation to lead the way toward a new American Century … “
  • “This election … is a generational choice about what kind of country we will be ….”:
  • “Just yesterday, a leader from yesterday began a campaign for President by promising to take us back to yesterday. But yesterday is over, and we are never going back.”

Can you imagine Hilary Clinton, 67, or Jeb Bush, 62, starting their  presidential campaigns by alienating younger generations and encouraging Americans to vote for them on the basis of age?  Such is the nature of age discrimination, and Rubio knows it.

Rubio is essentially arguing that this campaign shouldn’t be about qualifications, experience and vision.  He is stoking harmful and false stereotypes related to age, as well as underlying fear and animus toward older Americans. And all the while  he is exploiting  his Cuban immigrant roots and the idea that invidious discrimination doesn’t matter in the United States.

In case you hadn’t noticed,  Marco Rubio is the youngest contender in the field of presidential candidates and he is counting on this to propel him into the vice-presidency.

America’s political system is broken but the reason for this is not the age of the participants but how they voted when they got into office. Government policies favor the rich over the middle class and poor.  The share of total household wealth owned by the top 0.1 percent of Americans  increased to 22 percent in 2012, compared to seven percent in the late 1970s. The top 0.1 percent includes 160,000 families with total net assets of more than $20 million in 2012. Rising inequality is crushing the hopes and dreams of the old and young alike, creating intense competition for crumbs left behind by the Waltons and the Koch brothers.

Standing in front of Miami’s Freedom Tower, Rubio  goes on to note that “for almost all of human history, power and wealth belonged only to a select few. Most people who have ever lived were trapped by the circumstances of their birth, destined to live the life their parents had. But America is different. Here, we are the children and grandchildren of people who refused to accept this.”  The real irony is that Rubio does not acknowledge that Americans increasingly are trapped (or helped) by the circumstances of their birth.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I argue that age discrimination in employment literally is built into America’s law and that older workers are subjected to systematic irrational discrimination that leaves them vulnerable to poverty or near poverty in old age.  What I’d like to know is whether any presidential candidate thinks this is a contravention of basic American ideals and values, and what they will do to change it.

And, by the way, why do Florida’s older voters support a candidate who thinks they are “over.”

Obama’s Policy on Aging – Be Positive!

The White House Conference on Aging (WHCOA) issued its first “policy brief” Friday afternoon, addressing the issue of  “healthy aging.”

Get ready for news of a truly momentous policy announcement –  The Conference is urging a “shift in the way we think and talk about aging. Rather than focusing on the limitations of aging, older adults across the nation want to focus instead on the opportunities of aging.”  Oh, and older adults should get physical activity, good nutrition and good medical care.

No, this is not an April fools joke.  With all of the problems facing older Americans, the Obama administration essentially wants us all to think happy thoughts.

Meanwhile, the WHCOA  has completely ignored calls to address the problem of age discrimination in employment, which, among other things, condemns older workers to a retirement of poverty or near poverty.

According to a 2013 study by Economic Policy Institute,  nearly half (48.0 percent) of the elderly population is “economically vulnerable,” defined as having an income that is less than two times the supplemental poverty threshold. This equates to roughly 19.9 million economically vulnerable seniors. Women and minorities have far higher rates of economic vulnerability.

As I note in my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, older workers literally are second class citizens under the law. The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court. Age discrimination is not treated with the seriousness of discrimination on the basis of race, sex, religion and national origin. In fact,  President Obama signed an executive order  in 2010 that allows the federal government to discriminate on the basis age in hiring. Obama’s reprehensible Pathways “Recent Graduates” Program legitimizes age discrimination and sends a message to employers that its okay.

Rather than tackle substantive issues,  the WHCOA appears to be intent upon focusing on soft issues that will not require engagement with Congress.  Who disagrees with the premise that society must shift the way it thinks and talks about aging?  Alternatively, who thinks we should continue to harbor outdated and false stereotypes about older people?  This is not the stuff of a real, concrete policy initiative.  This is the stuff of motivational calendars.

Just last week, the AARP, which is partnering with the WHCOA, reported that half of older workers who experienced unemployment in the last five years are not working: 38% reported they were unemployed and 12% had dropped out of the labor force. Forty-one percent of older workers who experienced long-term unemployment are working in part-time jobs.  Employers today drive older workers out of good jobs  through bogus restructurings and layoffs.  Once unemployed, older workers become mired in chronic unemployment and are forced to take part-time jobs and spend down their savings until they age into a financially ill-advised early retirement.

I  signed up for automatic email notifications from the WHCOA  and received notice of this  first WCOA  “policy brief” in an email on Friday afternoon. I checked Google news to see if anyone had written a news article about it but found nothing. Of course, if you really want press coverage, you don’t issue a press release on Friday afternoon. And if you want change you don’t ignore the elephant in the room.

The AARP: Surveys but no Solutions

The AARP has been conducting surveys for years showing the existence of epidemic age discrimination in the American workplace and it released yet another one on Monday.

But the AARP seems unwilling to take a position on why the problem of unemployment and under-employment exists for older workers and what to do about it. Although the AARP markets itself as the nation’s leading advocate for Americans age 50 and older, it’s advocacy on this issue has been virtually non-existent. One can’t help but wonder if the AARP’s reticence reflects greater concern for its $3 billion a year profit-making enterprise selling health and travel insurance to retirees than the plight of older workers.

In my recent book, Betrayed: The Legalization of Age Discrimination in the Workplace, I indisputably show that older workers have virtually no protection against age discrimination in the workplace. This is a problem that has been getting worse for fifty years. The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court.  I propose repealing the ADEA and making age a protected class under Title VII of the Civil Rights Act of 1964 to insure that older workers receive the same level of protection as workers who are subject to illegal discrimination on the basis of race, sex, national origin and religion. All employment discrimination is based on irrational animus and unfounded stereotypes. There is absolutely no justification for treating older workers differently and, in fact, it is completely contrary to the bedrock principle of U.S. Constitutional that insures all Americans receive equal justice under the law.

Why isn’t the AARP lobbying Congress to provide equal justice for older workers? The AARP surveys generate a lot of wonderful free publicity for the AARP, which makes it appear that the AARP is actually doing something. But the reality is that no one is doing anything about the problem of age discrimination in the workplace, which reached crisis proportions during the Great Recession and is still wreaking havoc on older workers lives. Even the White House Conference on Aging refuses to acknowledge the issue, preferring instead to partner with t he AARP to address “healthy aging.”

For the record, the AARP’s latest survey released Monday shows that half of older workers who experienced unemployment in the last five years are not working: 38% reported they were unemployed and 12% had dropped out of the labor force.

Other findings in the AARP survey are:

  •  Half of Those Who Found Jobs Earn Less: 48% of the reemployed said that they were earning less on their current job than the job they had before they most recently become unemployed. Among the reemployed, half were earning less because they were being paid less, 10% were working fewer hours, and 39% gave both as reasons.
  • Many Settle for Part-Time Work: 41% of those who experienced long-term unemployment are working in part-time jobs.
  • Half Work in a New Occupation: 53% had an occupation different from the one they had prior to becoming unemployed. By way of comparison 63% of the long-term unemployed had a job in a different occupation, while 46% of the short-term unemployed were in a different occupation.
  • Training May Help: 25% of the respondents who landed jobs and participated in training or education programs in the previous five years said it helped a great deal in finding a job.

What else is new?

The survey consisted of polling 2,492 individuals between the ages of 45 to 50 between July and October of 2014.  All of the participants had been unemployed at some time during the past five years  The respondents were part of a randomly selected online panel

Texas Roadhouse Goes to Congress

It all comes back to Hooters.

In the 1990s, the U.S. Equal Employment Opportunity Commission declared that Hooters’ policy of not hiring males to be servers constituted sex discrimination. Hooters launched a “public awareness campaign” asking customers to complain to the U.S. Congress. The EEOC backed down, citing budgetary limitations.  In other words, Hooters’ thwarted the EEOC’s efforts to battle irrational and illegal discrimination in the workplace without even having to go to court.

Now the Kentucky-based restaurant chain Texas Roadhouse is following Hooters’ example. It is facing a 2011 lawsuit filed by the EEOC that alleges the company does not hire workers over the age of 40 for “front of the house” positions. Texas Roadhouse apparently is concerned that it might actually lose in court (though, God knows why) so it has taken its battle to the U.S. Congress, where it has succeeded in marshaling the support of prominent Republicans.

According to EEOC documents, Texas Roadhouse managers were not subtle when they turned away older applicants. They made comments like:

  •  “We think you are a little too old to work here … We like younger people.”
  • “We’re hiring for greeters, but we need the young, hot ones who are chipper and stuff.”
  • “You seem older to be applying for this job.”

And the EEOC is not exactly aggressive when it comes to age discrimination. It received 20,588 complaints of age discrimination in 2014, which was about 23 percent of all claims it received.  It filed 12 lawsuits in 2014 with age discrimination claims, which was about 7 percent of all of the lawsuits it filed.  Of course, in most cases, age discrimination was just one of several claims.

Still, outraged Republicans on the House Education and Workforce Committee say they are looking into why the EEOC investigates companies in the absence of a specific complaint – companies like Texas Road House!

U.S. Sen. Lamar Alexander, R-TN, a member of The U.S. Senate Committee on Health, Education, Labor and Pensions, last year issued a “Minority Staff Report” claiming the EEOC had supposedly refused to provide Texas Roadhouse with “the basis for its investigation” into the restaurant chain.

And, of course, behind the scenes is the ever-present U.S. Chamber of Commerce, which issued a report last year blasting the EEOC for its supposed over-zealousness and “questionable enforcement tactics and legal theories.”

Meanwhile, Texas Roadhouse CEO and founder W. Kent Taylor has the gall to criticize the EEOC for targeting his restaurant chain when it has 70,000 cases of “racial and other complaints of discrimination that are back-logged on and not acted on.”   As if Taylor gives a hoot about workplace discrimination!

Isn’t it enough to turn your stomach?

Was Age Bias Behind Trader Joe’s “Reorganization”?

A class-action lawsuit alleges that Trader Joe’s implemented a company-wide “reorganization” plan last year to drive out older workers.

According to the complaint,  a company-wide reorganization by Trader Joe’s, the grocery store chain for affluent yuppies, resulted in the systematic demotion of employees over the age of 45 in violation of the U.S. Age Discrimination in Employment Act.

The suit was brought by Keith Garlough, 49, an eight-year veteran employee of a California Trade Joe’s store, who was demoted from the position of “merchant,” which is one rung below assistant store manager,  to an entry-level crew position.  He states he suffered an $8.50 per hour loss in pay, a reduction in hours and was no longer eligible for bonuses and overtime pay. He also incurred greater health insurance costs and received fewer health benefits, less vacation and leave pay, and diminished retirement contributions.

I note in my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, that it is a common practice  for employers to use the device of a “restructuring” or “business reorganization” to eliminate or demote older workers. There hasn’t been much litigation over the practice because age discrimination is treated like a second-class offense in U.S. federal courts.  If these cases aren’t immediately dismissed, federal judges permit employers to avoid accountability by dragging out these cases for years. In one major case at least two older workers died  while their age discrimination case was permitted to languish for ten years until it was dismissed!

In addition to the ADEA, the complaint alleges Trader Joe’s  company-wide policy violated the California Fair Employment and Housing Act and California’s competition law.

The case is Garlough v. Trader Jos’s Co., # 3:15-cv-01278 and was filed in U.S. District Court for the Northern District of California.

Trader Joe’s has more than 200 stores in Arizona, California, Connecticut, Delaware, Illinois, Indiana, Maryland, Massachusetts, Michigan, Missouri, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Virginia and Washington.

What is a Reasonable Management Action?

It can be a tough call in a workplace bullying case to ascertain whether an employer’s disciplinary action was reasonable or a pretext for bullying.

The United States is literally in the dark ages with respect to workplace bullying but not so Australia, which  a year ago authorized a national workplace relations tribunal to decide workplace bullying complaints pursuant to a  2009 law.

The mission of  Australia’s Fair Work Commission (FWC)  is: “Helping Australians create fair and productive workplaces.

The FWC recently ruled upon an employer’s objection that it lacked jurisdiction to hear a worker’s bullying complaint because the complaint was based on a reasonable management disciplinary action. The FWC disagreed, finding that the employer’s disciplinary action was not reasonable and the commission could hear the case.

The dispute arose when a Human Resources Officer of a radiology firm sent a letter  marked “Disciplinary Process” to a worker threatening possible dismissal for issues involving efficiency, following directions, attitude and rudeness.

The FWC found that  two elements are necessary to constitute a reasonable management action:

  1. There must be some line of “cause and effect between conduct, behavior or performance of an employee,” and
  2. The relevant management action must be a “reasonable and proportionate response to the attributes of the employee to which it is directed.”

The FWC said it would have been reasonable for the radiology firm to place the worker on a routine performance management plan. The company’s threat to terminate the worker was deemed excessive and unwarranted, especially because the worker had responded positively to the issues raised about his performance. One commissioner said differences of opinion regarding the appropriateness of a certain work practice “did not reasonably warrant ‘disciplinary action’ as opposed to discussion about appropriate procedures with the employees involved.”

The U.S. government has ignored the problem of workplace bullying  which is said to affect one in every three or four workers. Indeed, the vast majority of workers here can be fired for any reason, whether it is fair or not,  as long as it does not violate an actual law (i.e. race or sex discrimination laws).

Australia passed a Fair Work Act in 2009 that provides recourse for  all workers there when:

  •  another individual or group of individuals “repeatedly behaves unreasonably towards the worker”; and
  • “that behaviour creates a risk to health and safety.”

The law exempts reasonable management actions  that are carried out in a reasonable manner.

The above case is James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2015] FWC 1131.

Report: Most Women’s Careers Die at 45

While the U.S. continues to ignore the on-going epidemic of age discrimination here, a new report in the United Kingdom posits that ageism and sexism combine to effectively end women’s careers at the age of 45.

Men continue to progress until around age 55, when they are written off by employers  as being “past it.”

These are some of the results of a major report by economist Ros Altmann, who was appointed last year by the United Kingdom’s Department for Work and Pensions Minister to serve as the U.K.’s  Business Champion for Older Workers.

Altmann told the British Daily Mail and Independent newspapers that senior human resource professionals report that women’s career progression in most companies stops around the age of 45.  She said that nearly half the growth in female employment since the recession has been in low-paid, part-time work, mainly  clerical, caring and cleaning work.  Here are some other findings:

  • Older workers with young bosses tend to face the worst age discrimination.
  • Employers wrongly assume that older workers are less familiar with computer technology and are unable to learn.
  • Women face an extra layer of discrimination because employers want young, female staff who “look a certain way.”

Altmann recommends the government threaten  job recruitment firms with penalties unless they do more to prevent age discrimination. She said all job advertisements should clearly state the application is open to everyone regardless of age. She also recommends a national “confidence” campaign for discouraged older workers and proposed that companies offer “mature” apprentice programs.

The U.S. Slumbers on … 

The U.K. initiative stands in sharp contrast to the complete lack of action in the United States to combat blatant and epidemic age discrimination in the workplace.

Indeed, President Barack Obama made things incrementally worse  when he signed an executive order in 2010 establishing the Pathways “Recent Graduates” program that allows the federal government to discriminate in hiring against older workers. Why should private sector employers comply with the Age Discrimination in Employment Act if the federal government won’t?  And the Obama administration is currently sponsoring a White House Conference on Aging, which has totally ignored pleas to address the problem of age discrimination.

Meanwhile, many job applicants must fill out on-line applications which require disclosure of age-related information that allows companies to screen out older workers.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show there is far less protection from age discrimination than other types of illegal discrimination in the United States because the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court.

Altmann  notes that by 2022, there will be 700,000 fewer people aged 16 to 49 in the UK  but 3.7 million more people aged between 50 and the state pension age. “If the over-50s continue to leave the workforce in line with previous patterns, we would suffer serious labour and skills shortages which could not be filled by immigration alone,” she said.

Madonna and Age Discrimination

Very few female celebrities have publicly raised the issue of age discrimination.  Most hide from it as long as possible because they know it may be the death knell of their career. But Madonna has never been like other celebrities.

In the latest issue of Rolling Stone, Madonna, 56, observes that no one would “dare say a degrading remark about being black or dare say a degrading remark on Instagram about someone being gay, but my age – anybody and everybody would say something degrading to me. And I always think to myself, why is that accepted? What’s the difference between that and racism, or any discrimination?”

The difference, Madonna, is that age discrimination has essentially been legalized in the United States.  The Age Discrimination in Employment Act (ADEA) was weak to begin with and has been eviscerated by the U.S. Supreme Court. And Congress is completely apathetic about the issue.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I discuss the growing legal chasm between age discrimination and race or sex discrimination.

It’s hard to imagine that President Barack Obama, our first African-American president, would approve an executive order allowing federal agencies to  bypass black and Hispanic applicants, in favor of white applicants.

Yet, President Obama in 2010 signed an executive order establishing the Pathways Recent Graduates Program, allowing federal agencies to discriminate against older workers in favor of  hiring “recent graduates.”  This is completely contrary to the letter and spirit of the ADEA and sends a clear signal to the private sector that age discrimination is not like other kinds of discrimination.  (It is, by the way.)

In addition, the U.S.  Supreme Court for decades has accorded age discrimination  its very lowest standard of review, far lower than race or sex discrimination.  It’s almost impossible to overturn a law that discriminates on the basis of age.

Federal judges almost always dismiss age discrimination cases before they ever reach a jury.

Madonna has lived a  charmed life  because she is essentially an entrepreneur and has managed through sheer force of will to avoid age discrimination until now. She’s gorgeous and incredibly talented.  But many women in the workplace begin to experience age discrimination and bullying in their 40s.

Madonna also notes in the Rolling Stone article that age “is the one area where you can totally discriminate against somebody and talk shit. Because of their age. Only females, though. Not males. So in that respect we still live in a very sexist society.”

She contends that “women, generally, when they reach a certain age, have accepted that they’re not allowed to behave a certain way. But I don’t follow the rules. I never did, and I’m not going to start.”

I’m thrilled that Madonna is not planning to follow the “rules” and blithely accept second-class treatment because of her age. We need to change the rules for all  older workers.