Age Discrim. Lawsuits: Like Shooting Fish in a Barrel

The underlying premise of our legal system is that two competent adversaries plead their case before a neutral arbiter.

A recent decision by the Supreme Judicial Court in Massachusetts, the state’s highest appellate court, shows just how unrealistic this premise is today when victims of age discrimination who are poor or middle class cannot afford to hire an attorney. These unrepresented plaintiffs are routinely denied access to justice.

The case involves an age and gender discrimination complaint filed by Carolyn O. Faulk, who was fired by CVS Caremark Corp., and Stanley D. Howard, who contributed to Faulk’s support after her dismissal. He essentially sought reimbursement from Caremark

The trial court denied Ms. Faulk’s request for the appointment of counsel and dismissed Howard’s claim on the grounds that he lacked “standing.” Howard filed an appeal and both Faulk and Howard sought to temporarily halt the proceedings until the appeal was decided. Caremark filed a motion for sanctions against the plaintiffs.

Needless to say, Faulk and Howard lost at every turn. Their complaint was ultimately dismissed. Caremark’s motion for sanctions was allowed to proceed. The state’s high court affirmed the lower court, ruling that the issue of whether Faulk was entitled to court-appointed counsel was “moot” because her case had been dismissed.

In any case, the appeals court said, Faulk failed to meet her “burden to allege and demonstrate the absence of inadequacy of other remedies.” The court said Faulk could have sought interlocutory review of the denial of her motion for the appointment of counsel “pursuant to G.L. c. 231, § 118m first par. … ” Alternatively, the court said, she could have sought review of the denial of her motion in a direct appeal from the judgment of dismissal.

Of course, this presumes that Faulk understood her options without having the benefit of legal counsel to advise her. I daresay that few lay people could define the term “interlocutory appeal” let alone file one. So Faulk’s case, at least arguably, was dismissed because Faulk didn’t have an attorney. And her appeal of the trial court’s motion denying her an attorney was dismissed because …. she didn’t have an attorney.

This case, like millions of other, demonstrates the urgent need for modernization of our nation’s court system to insure there is some semblance of parity between unrepresented individuals and the team of expert counsel employed by major corporations like Caremark. This is no longer a system between two competent adversaries. Today, age discrimination cases are the equivalent of shooting fish in a barrel for corporate defendants, who retain a team of staff attorneys and hire specialized counsel to overwhelm individual plaintiffs without counsel.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I refer to research showing that individuals who file employment discrimination complaints feel the court system is profoundly unfair. It’s hard to argue with this when courts allow the underlying issue – discrimination – to be completely obscured by complicated, obtuse procedural motions. It’s hard to know whether justice was done in Faulk’s case but clearly she was at a major disadvantage because she wasn’t represented by legal counsel who understood the court’s complex procedural rules.

The case is Carolyn O. Faulk and another v. Caremark Corp. and others, October 24, 2014.

Int’l Group Recognizes New Book on Age Discrimination

The International Federation on Ageing (IFA) has recognized my new book, Betrayed: The Legalization of Age Discrimination in the Workplace.

The IFA is a non-governmental, non-profit organization based in Toronto, Canada that works to inform, educate and promote policies and practice that improve the quality of life of older persons around the world.

An article on the IFA notes that Betrayed: The Legalization of Age Discrimination in the Workplace, addresses the “epidemic” of age discrimination in the workforce in the United States, a problem that often catapults older workers into a penurious, unwanted and ill-advised “early retirement.”

The IFA published a Declaration of the Rights and Responsibilities of Older Persons in 1990 detailing the rights of older people to care, dignity, self-fulfillment, participation and independence. This document is the foundation of the UN principles of Older Persons, adopted in December 1991. The IFA has General Consultative Status at the United Nations Economic and Social Council (ECOSOC).

The IFA is part of a wide-ranging network of member organizations around the world which extends to over 70 countries covering every region. Together these organizations represent over 55 million older people.

HR Doesn’t Work for Workplace Abuse Victims

This blog initially began with a rhetorical question – how do perpetrators of domestic violence act when they report for work?

I was reminded of this when I read about the travails of Canadian Broadcasting Corporation radio broadcaster, Jian Ghomeshi, 47, who was fired recently because he allegedly brutally assaulted three much younger women under the auspices of “rough sex.”

The Toronto Star also reported that a CBC staffer who worked on Ghomeshi’s show, Q, complained to the CBC of verbal and sexual harassment by Ghomeshi. According to the Star:

“She never dated Ghomeshi. She alleges he approached her from behind and cupped her rear end in the Q studio, and that he quietly told her at a story meeting that he wanted to “hate f—” her.

The woman said she complained about Ghomeshi’s behaviour to her union representative, who took the complaint to a Q producer. As the woman recalls, the producer asked her “what she could do to make this a less toxic workplace” for herself. No further action was taken by the CBC, and the woman left the broadcaster shortly thereafter.”

What could the CBC have done to make the workplace less toxic? Really? And this is a unionized workplace?

Victims of workplace discrimination, harassment and abuse often find a deaf ear when they complain to the Human Resources Department. It’s obvious that HR exists at management’s pleasure, to protect management, and not to protect victims of workplace abuse. No matter how many anti-harassment policies are place, that is the bottom line. Ghomeshi was a major talent at CBC and his subordinate wasn’t.

The question that began this blog is rhetorical because we all know that when abusers go to work they do not stop being abusers. Abuse is about exerting undue power and control in relationships, whether it be with a partner or a co-worker or subordinate. That’s why workers everywhere need laws to protect them from workplace abuse and they need courts that are willing to enforce those laws when employer’s won’t. Maybe some day?

According to the Star, none of the four women the paper interviewed have ever filed a police complaint against Mr. Ghomeshi, and none of them agreed to go on the record. The women said they are afraid that if they come forward, they will be sued or become victims of vicious online attacks, the paper reported.

The Lack of Equal Justice for All

There was an article in the New York Times recently about the elusiveness of justice for African-Americans in the criminal justice system.

This obviously reflects ingrained racism but it is also a symptom of a wider problem – the lack of equal justice for the poor and the middle class in America.

The leadership of our nation’s civil and criminal justice system, the U.S. Supreme Court, does not serve as a role model for equal justice for all. And the U.S. Congress, which holds the power of the purse-strings over the judicial branch, provides no discernible oversight as to how the court system spends taxpayer money.

An egregious example of the wider problem is the U.S. Supreme Court‘s refusal to allow its proceedings to be broadcast. This is really an issue about transparency and accountability. The leadership of the third branch of government in the world’s leading democracy has chosen not to be transparent and or accountable. And if you don’t like it, tough!

The Court’s disdainful attitude toward the American public was not acceptable after television attained broad popularity fifty years ago and it is completely unacceptable in the Internet age. The Court exists to serve the public, not the Court. This doesn’t mean the Court is subject to the whims of the majority but that the Court must be guided by founding American principles of equality and justice for all.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I focus on the civil justice system, which has utterly failed to protect older workers from irrational and harmful age discrimination. This is particularly true for vulnerable older workers (i.e. minorities and women).

The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court, which has made it almost impossible to win a federal age discrimination lawsuit. Age discrimination has become normalized in American society and is trickling down to ever younger workers (i.e., the youth apartheid state of Silicon Valley). But younger workers have years to rebound, while older workers often are plunged into a penurious old age of deprivation.

I suggest the judiciary create a special federal court to hear appeals in discrimination cases. This court could be staffed with federal judges who are both educated in and dedicated to the concept of equal justice. This court would not be limited to age discrimination but would decide appeals in all cases alleging discrimination on the basis of race, sex, religion, sexual orientation and disability, etc.

Age discrimination represents a kind of government subsidy for employers, by allowing them to replace more expensive older workers with cheap young labor. Taxpayers pick up the tab in the form of higher social welfare costs, including health care and Social Security benefits. I doubt that most taxpayers would want to pay this subsidy if they knew they were paying it.

Alternate Ways to Advocate for Older Workers

For years, older workers in the United States have been subject to epidemic, unaddressed age discrimination.

I recently wrote a book, Betrayed: The Legalization of Age Discrimination in the Workplace, which lays out the problem in graphic and undeniable detail. Older workers have far fewer rights under the Age Discrimination in Employment Act than do protected groups under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion and national origin. Also, the U.S. Congress and the Equal Employment Opportunity Commission have virtually ignored an unprecedented rise in age discrimination complaints since the onset of the Great Recession.

To my knowledge, Betrayed: The Legalization of Age Discrimination in the Workplace is the first book to seriously examine the systemic nature of age discrimination in the workplace in modern times. It makes a compelling case for change. Yet, in recent weeks, I have contacted numerous officials at the organization that is widely believed to be the chief advocacy group for older Americans. Among others, I emailed the president of the AARP, the director of the AARP Foundation, and the head of the AARP Foundation Legal Section. I have received no response.

Given the overwhelming apathy toward age discrimination in the workplace in the United States, how can older workers create the necessary incentives to improve public policy and the law?

Two countries, Australia and Denmark, have taken a far more aggressive approach to age discrimination in employment than the United States.

Australia appointed its first Age Discrimination Commissioner on July 30, 2011 to a five-year term. Commissioner Susan Ryan recently commissioned the first “national prevalence survey” on age discrimination in the workplace. “[T]his new survey will provide the first national picture, reporting the experiences of people who have been discriminated against, and employers large and small … It will provide a strong basis for better policy and for more positive action by employers and government.” This type of survey is desperately needed in the United States, where age discrimination is hidden by catch-phrases like “long-term unemployment” and “early retirement.”

Another model worthy of examination exists in Denmark. The DaneAge Association is an independent, non-profit national membership organization founded in 1986 to provide advocacy “through an ongoing dialogue with the government and the public, promoting a society without age barriers and ageism.” DaneAge has 690,000 members in 217 Local chapters across Denmark, including 15,775 volunteers who engaged in local advocacy. Among other things, the organization, which has approximately 100 staff members, provides “free-of-charge and impartial legal advice and counsel” by lawyers and other professionals. Denmark is widely regarded as having the highest quality of life for its citizens in the world.

For years, older workers in America have been dumped into the quicksand of long-term unemployment, relegated to menial and poorly paid work and, finally, forced into a penurious and unwanted early retirement. This is because the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court. Congress must insure that older workers at least have the same level of protection against employment discrimination that is afforded to protected groups under Title VII. An discrimination commissioner could champion the rights of older workers. By contrast, the U.S. Equal Employment Opportunity Commission received more than 21,000 complaints of age discrimination last year and filed only SEVEN lawsuits with age discrimination claims. And older workers deserve to have an independent, non–profit advocacy group that will aggressively fight for the rights of older workers in the halls of Congress and across the nation.

U.S. Gov: Older Workers Need Not Apply

Why is the federal government engaging in systemic, blatant age discrimination in hiring?

President Barack H. Obama signed an Executive Order 13562 in 2010 that allows federal agencies to bypass older workers and hire “recent graduates.” The highly-questionable justification for the “Pathways Program” was that the federal government was at a competitive disadvantage in hiring promising young workers during the worst economic downturn in 100 years. Really? Moreover, Obama claimed he was acting in the pursuit of a “diverse workforce that includes students and recent graduates, who infuse the workplace with their enthusiasm, talents, and unique perspectives.” Does that mean older workers infuse the workplace with lack of enthusiasm, no talent and mediocrity?

The Pathways Program, which went into effect in the summer of 2013, violates the plain language of the U.S. Age Discrimination in Employment Act of 1967 (ADEA). Under the ADEA, it is illegal for an employer – any employer – to use age as a consideration in the hiring process. The “recent graduates” program is open to applicants who have completed a qualifying post-high school educational program (e.g., technical or vocational school; two-or-four year college or university; graduate or professional school) within the preceding two years. The overwhelming majority of “recent graduates” are under the age of 30.

The Pathways Program clearly discriminates against older workers, including workers over the age of 40 who fall under the umbrellas of the ADEA. The ADEA states:

Employers cannot fail or refuse to hire any individual “because of such individual’s age,” and/or
Print and publish “any notice or advertisement relating to employment … indicating any preference, limitation, specification, or discrimination, based on age.”

There is no question that unemployment is a serious problem for younger workers but unemployment also is a serious problem for older workers. The latter are disproportionately represented in the ranks of long-term unemployed and often are forced into an ill-advised and penurious early retirement because they can’t find decent work due to age discrimination. Solving the unemployment problem for younger workers on the backs of older workers represents appalling public policy and is a disgraceful throwback to pre-ADEA days when employment ads regularly specified age cut-offs.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I argue that age discrimination has become normalized in society as a result of the failure of the ADEA and is trickling down to workers who were once considered young. It is entirely foreseeable under the Pathways “recent graduates” program that a 35-or -40 year-old with excellent qualifications could lose a job to a 25-year-old recent college graduate with no qualifications. Almost fifty years after the passage of the ADEA, America has come full circle.

The Pathways Program is a testament to hypocrisy and breeds disrespect for the law. If the federal government won’t follow the ADEA, why should private sector employers?

The late gerontologist Robert N. Butler, the founding director of the National Institute on Aging who coined the term “ageism,” wrote, “The tragedy of old age is not the fact that each of us must grow old and die but that the process of doing so has been made unnecessarily and at times excruciatingly painful, humiliating, debilitating and isolating through insensitivity, ignorance and poverty.”

WANTED: Advocacy Group to Help Older Workers

The Time For Action is Long Overdue

What advocacy group exists today to fight age discrimination in the workplace?

My first thought was the AARP, formerly the American Association of Retired Persons, which has an estimated 37 million members. The AARP is said to be one of the most powerful lobbying groups in the United States. But it is in the business of selling health insurance to retired people, not equality in the workplace.

The AARP has a non-profit foundation that exists to advocate for older Americans. It says it helps “struggling seniors by being a force for change on the most serious issues they face today.” The web site of the AARP Foundation has lots of opportunities to “donate today” and “ways to give.” It claims to be “a voice and an advocate.” Here are the articles under “AARP Foundation in the News” on Oct. 6, 2014:

How to manage your money better after 50.
The people of Haiti thank AARP members.
AARP Foundation invites NASCAR fans to ‘Ride with Jeff.”
Couples say relationships benefit from volunteering together..

Considering the serious issues facing older workers today, this is the equivalent of marshmallow fluff on burnt toast. Efforts to reach Foundation President Lisa Marsh Ryerson and other Foundation officials through their web site were unsuccessful.

Who Cares?

Who advocates for older workers who are unemployed, floundering in long-term unemployment, and working in poorly-paid part-time jobs with no benefits? Research shows that millions of older workers have been forced into a penurious early retirement since the Great Recession because they can’t get jobs. This hasn’t stopped Congress from debating cuts to Social Security. The U.S. Equal Employment Opportunity Commission has virtually ignored a record increase in age discrimination complaints. Despite receiving more than 20,000 complaints in 2013, the EEOC filed only a handful of lawsuits with age discrimination claims.

The thesis of my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, is that the major U.S. law prohibiting age discrimination was weak to begin with and has been eviscerated by the U.S. Supreme Court. There is no question that older workers are literally treated like second class citizens in our nation’s court system. Who cares?

The AARP Foundation has a legal arm that files friend of the court briefs and purportedly represents plaintiffs in age discrimination lawsuits. However, the problems facing older workers will not be resolved in the federal courts, which are demonstrably hostile to all employment discrimination lawsuits.

Older Americans must demand their representatives in the U.S. Congress address the epidemic of age discrimination. For five years, Congress has failed even to pass the Protection Older Workers Against Discrimination Act, which would merely eliminate one of many inequities facing older workers compared workers who are protected under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, national origin and religion. The U.S. Supreme Court in 2009 issued a mean-spirited and unnecessary decision requiring older workers to meet a much higher level of proof in age discrimination cases than exists for discrimination victims who file claims under Title VII. No one has put forth any credible justification for treating age discrimination victims worse than other discrimination victims. The failure of Congress to address this harmful injustice also reflects the lack of an effective advocacy groups for older workers.

One would have hoped that our nation’s first African-American president, Barack H. Obama, would show some sensitivity to the problem of age discrimination. He made the problem incrementally worse when he signed an executive order in 2010 that permits government agencies to bypass older workers in favor of hiring younger workers. The justification for this program is that the government was incapable of competing with the private sector for younger workers during the worst recession in 100 years. Really?

What American workers need now is an advocacy group that will lobby the U.S. Congress to restore their rights. We need an organization that has a strategy and a plan to create positive change. If the AARP Foundation wants to continue to collect money to advocate for the rights of older workers, individuals and grant organizations, it should demand action on Capital Hill. If this is too uncomfortable for the offspring of a behemoth medical sales organization, then we need a new organization that is willing to do the job.

Is the EEOC Finally Noticing Age Discrimination?

The U.S. Equal Employment Opportunity Commission filed its second lawsuit this month alleging age discrimination, indicating a possible uptick in EEOC efforts in this long-neglected area.

The lawsuit touches upon the widespread problem of discriminatory hiring practices in the legal profession, which vies with higher education as the most egregious in terms age discrimination.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the EEOC has essentially ignored a record increase in age discrimination complaints filed with the agency during and since the Great Recession. For example, the EEOC received more than 21,000 age discrimination complaints in 2013 but filed only seven lawsuits with age discrimination claims that year. Meanwhile, older workers are mired in the ranks of the chronically unemployed and under-employed until they are forced into a penurious early “retirement.”

The EEOC charges that Strategic Legal Resources, Inc., a staffing firm that does business as Strategic Legal Solutions, rescinded an offer of hire made to attorney Claudia Zacks after she complied with a company request to provide her date of birth. Zacks was 70 years of age at the time.

The Executive Director of the company’s Real Estates Services Division in New York City emailed Zacks in August 2012 and offered her a position to work on a document review project that was to begin the next day in Novi, Michigan. After Zacks accepted, the company asked Zacks to provide additional information, including her date of birth.

The lawsuit alleges that a Recruitment Coordinator for the company called Zacks and insisted that Zacks “could not possibly arrive at the job site in time on the next day.” Zacks finally expressed concern the company was rescinding its job offer because of her age. The Recruitment Coordinator “responded that not only would Zacks not work on this assignment but she would be placed on the ‘do not use’ list and she need not apply for future job opportunities” with the company.

The EEOC charges that Strategic Legal Solutions also denied Zack future employment. In Spring 2013, Zack answered an anonymous Craigslist posting for individuals interested in working on a document review project. Zacks was hired by a different Strategic Legal Solutions office to work on a document review project in Novi, Michigan. After three days on the project, she was summarily terminated.

The lawsuit asks the court to order Strategic Legal Solutions to pay Zachs appropriate back wages, liquidated damages and interest.

Under the Age Discrimination in Employment Act of 1967, it is illegal “for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.” However, a glance at internet employment sites will show that this provision is widely ignored by employers, employment agencies and even the federal government, all of whom seek applicants who are “recent” college graduates.

The EEOC, Age & the Great Recession

The Great Recession hit older workers like a baseball bat.

Older workers were fired and laid off, dumped nto a sea of long-term unemployment, poorly-paid temp or part-time work and into an ill-advised early retirement. Many have not recovered and never will.

In my new book, Betrayed: The Legalization of Age Discrimination, I write that a record number of age discrimination complaints were filed with the U.S. Equal Employment Opportunity Commission (EEOC) during the recession. The agency did little to respond to the precipitous upswing in age discrimination complaints and has continued to ignore the problem. I note that in 2013 the EEOC received more than 21,000 complaints of age discrimination but filed only seven lawsuits with age discrimination claims. The book was published in late August.

I was pleased to read an announcement by the EEOC on Monday that the agency had settled an age discirmination lawsuit that it filed on September 15 against DSW Inc., a national shoe retailer which allegedly unfairly fired older workers from 2008 -2009. The agency said DSW had agreed to pay $900,000 in monetary relief to seven former managers and about 100 other former employees. If split evenly, that works out to approximately $8,400 per age discrmination victim. The settlement also requries DSW to report any future employee complaints of age discrimination to the EEOC for the next three years and to revise its anti-discrimination policy.

DSW, which is based in Columbus, Ohio, allegedly used a common tactic to get rid of older workers during periods of economic turmoil. The EEOC alleged that DSW used a “reduction in force” to fire the older workers, and then retaliated against employees who refused to fire other workers based on their age.

DSW issued a statement in which it denied engaging in age discrimination, insisting it settled the case to avoid the costs of litigation. “Those difficult decisions were driven by economic volatility and were in no way influenced by the age of associates,” the company said.

Charges filed with the EEOC under the Age Discrimination in Employment Act have increased about 36 percent since 1997, from 15,785 to 21,396. The number of complaints reached an all-time high of 24,582 in 2008.

The case, EEOC v. DSW Inc., Civil Action No. 14-cv-07153, was filed in the U.S. District Court for the Northern District of Illinois.

New Book on the Legalization of Age Discrimination

Even Workers Otherwise Considered to be Young are Vulnerable

Why are workers in their 30s, 40s and 50s increasingly experiencing age discrimination?

This one of the issues I explore in my new book: Betrayed: The Legalization of Age Discrimination in the Workplace. The short answer is that age discrimination has become normalized due to a confluence of failures by American institutions that have effectively gutted the Age Discrimination in Employment Act of 1967 (ADEA).

Almost 50 years after the ADEA’s passage, age discrimination remains epidemic in the United States, hidden behind terms such as “long-term unemployment” and “early retirement.” And the problem is trickling down to ever younger workers.

Did you know:

• The new titans of commerce in Silicon Valley openly flaunt the ADEA . Workers in their 30s use Botox and hide their families to avoid the appearance of middle age.

• The U.S. Supreme Court eviscerated the ADEA in 2009 just as the Great Recession fueled unprecedented incentive for employers to rid their payrolls of higher paid older workers. The U.S. Congress easily could have “fixed” the problem by passing the Protecting Older Workers Against Discrimination Act (POWADA) but has not done so.

• The U.S. Equal Employment Opportunity Commission received 21,296 age discrimination complaints in 2013; the agency filed seven lawsuits that year with age discrimination claims.

• Forty percent of workers in households nearing retirement age have no retirement assets whatsoever, whether in an employer-sponsored 401(k) type plan or an IRA. Reasons for this include age discrimination, long-term unemployment, and the decline of traditional pensions.

Of course, age discrimination is problematic for younger workers but it is a devastating life-altering catastrophe for older workers . They often are plunged into long-term unemployment or forced to take poorly-paid part-time or temp work until they age into early retirement, which will result in significantly lower Social Security benefits for the rest of their lives.

Betrayed: The Legalization of Age Discrimination in the Workplace is now available as an e-book at Amazon.com, http://www.amazon.com/dp/B00MYREMRY. It is also available in paperback at https://www.createspace.com/4960074 and from Ingram Spark.

Please pick up a copy and I would grateful if you would take the time to review it on Amazon!

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The Time For Action is Long Overdue

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Even Workers Otherwise Considered to be Young are Vulnerable

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