AARP Rewrites Modern History Of Age Discrimination; Emerges Heroic

The AARP has devoted an issue of its monthly publication to age discrimination in which it announces that ageism remains an “accepted bias” and assures readers that it is “fighting” the problem

But the AARP fails to note that the AARP quashed a story that was supposed to run in the issue about the federal government’s Pathway’s Program, which excludes older workers from federal jobs, reportedly because it didn’t want to jeopardize its federal grants or rock the boat.

The AARP also omits the fact that it virtually ignored age discrimination until after the 2014 publication of my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace. which exposes the failure of the Age Discrimination in Employment Act of 1967 (ADEA) to protect older workers during and since the Great Recession. Continue reading “AARP Rewrites Modern History Of Age Discrimination; Emerges Heroic”

A Million Violations of the Age Discrimination in Employment Act?

What happens when an individual or group asserts a human right that interferes with another individual or group’s rights and freedoms?

If the disadvantaged group is older Americans, their rights silently slip away.

Earlier this month, a coalition of 55 top U.S. companies called The 100,000 Opportunities Initiative issued a press release touting a “long-term effort” in the Atlanta area to bring jobs to “youth” aged 16 to 24 who are not in school or unemployed. Coalition members made thousands of on-the-spot job offers at a job fair on May 3. Coalition members have held similar hiring events in Washington, D.C., Chicago, Dallas, Los Angeles, New Orleans, Phoenix and Seattle since the coalition’s formation six years ago.

The coalition now says it “aims to hire at least 1 million youth nationally by 2021.”

The problem is that it is illegal under the Age Discrimination in Employment Act of 1967 (ADEA) to refuse to hire workers aged 40 and above because of their age or, alternatively, because they aren’t between the ages of 16 and 24. It also is illegal for a company to adopt a policy or practice that has a disparate impact upon older workers. Clearly, the rights of older workers to be free from invidious age discrimination in hiring have given way … but to what exactly? Continue reading “A Million Violations of the Age Discrimination in Employment Act?”

Senate Aging Committee Pledges to Fight Age Discrimination in Employment

At a hearing on Wednesday, leaders of the U.S. Senate Special Committee on Aging vowed to “fix” a 2009 U.S. Supreme Court decision that makes it very difficult for older workers to fight age discrimination in federal court.

Committee Chairperson Susan Collins, R-ME, and Ranking Leader Bob Casey, D-PA, also acknowledged the upcoming 50^th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), which was signed by President Lyndon B. Johnson on December 15, 1967.

Collins and Casey addressed the Supreme Court’s catastrophic 2009 decision, in Gross v. FBL Financial Services, which raised the burden of proof in ADEA cases far above that of race or sex discrimination cases under Title VII of the Civil Rights Act of 1964. Since Gross, older workers have been required prove that age discrimination was not just a motivating factor but the decisive factor in an adverse employment action. The Gross decision legalized a broad swath of discrimination that is illegal under Title VII and sent a signal to employers that age discrimination will be tolerated.

“For the life of me,” said Collins, “I don’t understand why there is a higher burden for proving that age discrimination was the reason for the adverse employment action … compared to gender, religion, race.”

The legislators expressed strong support for a bill they are sponsoring, the Protecting Older Workers Against Discrimination Act (POWADA), which would essentially restore the status quo with respect to the plaintiff’s evidentiary burden prior to the Gross decision. The bill has been introduced several times since 2009 but has never made it out of committee to a vote. Sen. Casey, who worked on age discrimination cases as an attorney, said it was always hard for workers to fight back against insidious age discrimination but that it is even harder today “because the Supreme Court weakened the ADEA and we’ve got to fix that.”

A witness at the hearing, Laurie McCann, a senior attorney for the AARP, urged the Committee to hold a series of hearings to learn what changes are needed to update and strengthen the ADEA to adequately protect older workers. “The AARP believes that it is well past time to update and strengthen the ADEA so that it can respond to the challenges facing today’s older workers in today’s workplace,” she said.

As I demonstrated in my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, the ADEA was far weaker than Title VII when it was adopted 50 years ago and it has since been eviscerated by the U.S. Supreme Court. In the book, I proposed repealing the ADEA and making age a protected class under Title VII, as was originally proposed when the passage of Title VII was being debated by Congress.

According to McCann, three in ten near-retiree-age (55-64) households have no retirement savings at all and the median retirement savings of all near-retiree households was only $14,500 in 2013. McCann said financial need is by far the most important reason that workers aged 45-74 work. She blamed age discrimination on persistent negative stereotypes and discriminatory employer recruitment practices, including advertising for “digital natives,” specifying a maximum number of years of experience or limiting recruitment to entry-level positions on college campuses.

Financial need is by far the most important reason that workers aged 45-74 work – AARP.

The committee also issued a report on Wednesday examining the nation’s aging workforce, “America’s Aging Workforce: Opportunities and Challenges.” The report states the number of Americans over age 55 in the labor force is projected to increase from 35.7 million in 2016 to 42.1 million in 2026, and, by 2026, aging workers will make up nearly one quarter of the labor force. The business case for hiring, retaining, and supporting older workers is strong, according to the report, but challenges exist – including age discrimination, inadequate training opportunities, working while managing health conditions and disabilities, balancing caregiving responsibilities with work, and preparing financially for retirement.

Collins said U.S. employers are going to need older workers in the years ahead and can’t afford to “discard skills and experience that older workers bring to workplace.”

Another witness, Lisa Motta, 54, from Pittsburgh, Pa., testified about re-entering the workforce in her 50s after having lost her sight. A former teacher, she now works as a recruiting administrator at PNC Bank. “As America’s workforce grows older, more and more workers will face challenges like these and will need additional supports and accommodations,” Motta said. “They will also need laws in place that ensure that when they walk into an interview they do not face any form of discrimination. When we make it easier for these workers to succeed, everyone benefits.”

Prior to Wednesday’s hearing, the Senate aging committee was criticized for failing to act in the face of the epidemic of age discrimination in the workplace that occurred during and since the Great Recession.

Absent from Wednesday’s hearing was a representative from the U.S. Equal Employment Opportunity Commission (EEOC), which has ignored a major spike in age discrimination complaints dsince 2008 and rampant age discrimination in the federal government, and has issued administrative decisions that reflect a higher standard in age discrimination cases than in race or sex discrimination case.

The Sleeping Bear Awakens: The AARP Questions Legal Inequality of Older Workers

Something has poked the sleeping bear.

An attorney for the AARP was quoted in The New York Times recently as stating that the Age Discrimination in Employment Act of 1967 “may not be up to the task.” This represents a profound shift for the AARP, which has done little in recent years (if anything) to acknowledge the fundamental legal inequality of older workers under the Age Discrimination in Employment Act of 1967. The AARP states on its web site that the ADEA was passed in 1967 with the “strong backing” of the AARP.

In my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA gives older workers far less protection than Title VII of the Civil Rights Act of 1964 provides to victims of discrimination on the basis of race, sex, religion, color and national origin. For example, the ADEA permits age discrimination if it is based on a reasonable factor other than age (i.e., cost savings). Title VII requires employers to show “business necessity” and to demonstrate there were no alternatives with less discriminatory impact. Victims of age discrimination can recover only monetary damages and if there are none they get nothing. Title VII plaintiffs are entitled to monetary damages plus punitive and compensatory damages (i.e. damages for emotional distress).

Because of legal inequality, millions of older workers have been forced out of the workplace and into an impoverished retirement since the Great Recession.

Mind you, there has never been any intellectual or moral justification for treating age discrimination differently than other types of discrimination – all discrimination is based on fear, false stereotypes, and animus directed toward a specific group. If workers are not capable of doing a job due to age-related decline, they can be dismissed. That’s not discrimination.

What Prompted The Change?

I contacted the AARP earlier this week to applaud the organization for finally acknowledging the ADEA “may not be up to the task” of preventing older workers from irrational and harmful discrimination. I then asked the AARP officials whether their position was influenced by my book, which is the first to challenge the fundamental legal inequality of older workers under the ADEA. I observed the AARP had never acknowledged the book – or a follow up companion work, Overcoming Age Discrimination in Employment – despite my efforts to bring these works to the attention of the AARP and the readers of its publications. I said that capitalizing on my work without giving me credit is disrespectful and intellectually dishonest. The AARP officials insisted they have been working hard (sometimes behind the scenes) all these years to battle age discrimination in employment. They did not confirm or deny that my work had influenced their change of heart about the ADEA but suggested that “this should not be about who gets credit, but rather, about how best to improve the lives of older workers.”

This is about improving the lives of older workers but it is also about credit.

I care about credit for the same reason the AARP cares about its brand as the advocate for the rights of Americans over the age of 50. The AARP’s brand name establishes its credibility and helps the AARP sell Medi-gap health insurance and European vacations.

I suggested it would be appropriate for the AARP to give credit where credit is due; that the AARP should do what it should have done in 2014 and acknowledge the publication of Betrayed; The Legalization of Age Discrimination in the Workplace and the important ideas that are contained within the book. These ideas appear to have been powerful enough to make the AARP question the insufficiency of the ADEA.

The AARP assured me that it has been as active as it can be in fighting age discrimination and wished me good luck in my future endeavors!

Now that the AARP has acknowledged the ADEA may not be up to the task of protecting older workers, one can only hope the AARP will recognize other areas in which age discrimination has been legalized in the Untied States. The AARP was silent when former President Barack Obama in 2010 signed an executive order allowing our nation’s largest employer, the federal government, to blatantly discriminate in hiring on the basis of age and then again in 2015 when Obama’s Labor Secretary Thomas Perez, now chair of the Democratic Party, endorsed a private initiative by Starbucks and other major American corporations to hire only younger workers in clear violation of the ADEA. I wrote about both of these issues in my employment law blogs, as well as the EEOC’s consistent failure to devote significant resources to prosecute age discrimination. In the New York Times, it was reported: “Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.” The reporter said the AARP’s list was assembled in July, about six months after I reported the EEOC had only filed two cases with age discrimination claims in 2016. But who’s counting?

EEOC & AARP: The Willfully Blind leading the Willfully Blind?

You can’t make this stuff up.

The EEOC has announced that age discrimination will be a “special focus” of its major annual “training event” for employers later this month to mark the 50th anniversary of enactment of the Age Discrimination in Employment Act (ADEA).

The invited guest speaker is Jo Ann Jenkins, the CEO of the AARP, an organization that has done virtually nothing in 50 years to address the fundamental legal inequality of older workers in the United States and for years has accorded mere lip service to the epidemic of age discrimination in employment that began during the Great Recession.

Of course, the EEOC under Democratic President Barack Obama’s administration also did virtually nothing about the problem of age discrimination in employment. The EEOC last year filed exactly two lawsuits with age discrimination claims, despite receiving more than 20,000 complaints of age discrimination. The EEOC today arguably does more to protect employers from the consequences of illegal age discrimination than it does to protect older workers from illegal age discrimination. It remains to be seen whether GOP President Donald Trump and EEOC Acting Chair Victoria A. Lipnic will choose do any better.

The EEOC press release states the CEO of the AARP and the EEOC Acting Chair will engage in a “candid conversation about age discrimination.” Maybe they could start by explaining why both organizations have completely ignored the problem for decades.

I respectfully suggest Jenkins and Lipnic obtain a copy of my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace, which candidly describes the epic failure of the federal government protect older workers from irrational and devastating age discrimination in employment. Up to now, both the EEOC and the AARP have completely ignored the book, which received an excellent review from The ABA Commission on Law and Aging. Continue reading “EEOC & AARP: The Willfully Blind leading the Willfully Blind?”