Tag: POWADA

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 50th 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.

How Can the U.S. Senate Special Committee on Aging Be So Clueless about Age Discrimination?

Why is it left to the Attorney General of Illinois to address the national problem of blatant and destructive age discrimination in hiring?

Illinois Attorney General Lisa Madigan this week warned six national career and job search companies that some of their search functions could violate state and federal age discrimination laws. The job sites are Chicago-based CareerBuilder, Indeed, Beyond, Ladders, Monster Worldwide and Vault.

Kudos to Ms. Madigan but this issue demands a national response, especially since the U.S. Court of Appeals for the 11th Circuit in Atlanta  ruled that job applicants are not entitled to the protection of the federal Age Discrimination in Employment Act (ADEA).

Yet, for years, the EEOC and members of the U.S. Senate Special Committee on Aging have sat on their hands while older workers have been mired in chronic unemployment due to  blatant age discrimination in hiring.  Why? The picture became clearer recently when Sen. Robert P. Casey, Jr. of Pennsylvania , a ranking member of the Special Committee on Aging, issued a press release on the committee’s web site that was stunningly uninformed about the ADEA.

Casey announced that he and several other committee members recently “introduced” the Protecting Older Workers against Discrimination Act (POWADA), which would remove  the higher burden workers alleging age discrimination currently face in the court system relative to workers alleging discrimination based on race, sex, national origin, or religion. In actuality, the POWADA  is a proposed law that literally has been languishing in various Congressional committees since  2009, which was  the year that the U.S. Supreme Court issued a ruling establishing the higher burden for age discrimination plaintiffs.

Worse, Sen. Casey says the POWADA would “level the playing field” for older workers. This statement is so profoundly wrong that one must wonder whether the special committee employs any professional staff who know anything at all about the federal law governing age discrimination.

Contrary to what Sen. Casey states, the POWADA would not “level the playing field for older workers.” Not by a long shot.

Continue reading “How Can the U.S. Senate Special Committee on Aging Be So Clueless about Age Discrimination?”

AARP: What’s Wrong with this Picture?

Well, I finally heard from the AARP.

Readers may recall that I attempted numerous times without success in September 2014  to contact the leadership of the for-profit AARP and its non-profit advocacy arm, the AARP Foundation, about my new book, Betrayed: The Legalization of Age Discrimination in the Workplace.   The book exposes the failure of the Age Discrimination in Employment Act of 1967 to protect older workers during and since the Great Recession and documents the suffering of older workers who are forced by epidemic age discrimination into a penurious early retirement.

I got no response from the AARP.  Meanwhile, I wrote articles for the International Federation on Aging and the American Society on Aging (forthcoming) on the connection between age discrimination and problems in retirement.

I was baffled by the  complete silence from AARP leaders – not even a “thank you but get lost.” Like most Americans, I thought the AARP was the nation’s leading advocacy group for older Americans. I wrote an article for this blog on Oct. 6  about the fund-raising emphasis and inane issues listed on the AARP Foundation’s web site – “AARP Foundation invites NASCAR fans to ‘Ride with Jeff” and  “Couples say relationships benefit from volunteering together.”  A few days later, I wrote another article about how other countries advocate for equal rights for older workers.

On Nov. 4, out of the blue, I received an email from Lisa Ryerson, the head of the AARP Foundation, who invited me to contact her.  In a reply email, I asked if she would agree to set up an appointment to discuss the problem of age discrimination.  She forwarded my request to Stuart Cohen, the head of the AARP Foundation’s legal team, who in turn forwarded my request to two other AARP officials, who were nice enough to talk to me for an hour last month.

In our discussion, I outlined my proposed short-term and long-term strategy for addressing the problem of age discrimination, starting with a focus on the passage of the Protecting Older Workers Against Discrimination Act (POWADA) and listing age discrimination as an issue to be addressed at the upcoming  White House Conference on Aging.

The POWADA, which has languished in Congress for five long years, would reverse at least some of the damage inflicted on older workers by a 2009 U.S. Supreme Court’s decision, Gross v. FBL Financial Services.  That decision raised the level of proof in age discrimination cases far above that for race or sex discrimination cases.  Older workers  today are literally second class citizens in our nation’s court system, which is completely contrary to basic American concepts of fairness and equal justice under the law.

Meanwhile, age discrimination is so pervasive that it is trickling down to workers in their 30s and 40s who are by any other standard young.  Even the federal government has gotten into the act. President Barack Obama in 2010 signed an executive order establishing the Pathways “Recent Graduates” Program  which allows federal agencies to  bypass older workers and hire  young workers.  How can we expect private employers to obey the law when the federal government doesn’t?

In our discussion, I  equated the failure to pass the POWADA to the “Broken Window” theory, which holds that a broken window in a neighborhood is an invitation to thieves because it shows the neighborhood is overlooked and neglected. If older Americans can’t expect equal rights in the courts, how can they expect equal rights elsewhere?

One of the AARP officials sent me an email a few days later thanking me for my interest but stating that the AARP was already doing some of the things on my list. Whatever that means?

The AARP takes credit every year that Congress fails to cut Social Security. The AARP Foundation monitors Congress and the legal team files amicus or friend of the court briefs in U.S. Supreme Court cases and represents a select few individual s in lawsuits involving age discriminaton. But that obviously is not enough.  If it were, the POWADA would be law.

The POWADA hasn’t even made it out of committee for five years.  The failure to pass the POWADA reflects astounding ignorance and inexcusable neglect. No one  has come forward to oppose the POWADA because that would be like opposing equal rights for older Americans. The immediate passage of the POWADA is the absolute minimum that older workers should expect.  Even that will not improve the situation significantly because the ADEA is still hopelessly flawed. Older workers  are denied the same level of protection that is provided under Title VII. I have advocated scrapping the ADEA and making age a protected class under Title VII.

Hoovers estimates the value of the AARP, Inc., which sells medical insurance and travel products to an estimated 37 million members, to be more than $1.34 billion.  Shouldn’t older Americans be getting more bang from their bucks. What’s wrong with this picture?

The Best is Yet to Be?

Grow old along with me!
 The best is yet to be,
 The last of life, for which the first was made.
– ROBERT BROWNING

An AARP national survey points to the existence of  a climate of fear among older workers of seemingly  pervasive and unchecked age discrimination in America.

The AARP survey finds that 64 percent of older American voters think workers over the age of 50 face age discrimination in the workplace and 34 percent report that they or someone they know has experienced age discrimination in the workplace.  Meanwhile, older workers face increased pressure to work longer than ever before as a result of dwindling savings and disappearing pensions.

In addition, the AARP reports roughly 8 in 10 older American voters say:

  •  It is important for Congress to take action and restore workplace protections against age discrimination (81%).
  •  Across party and ideological lines, they support the Protecting Older Workers Against Discrimination Act (POWADA) (78%).

Age discrimination has flourished since the U.S. Supreme Court ruled in 2009 that workers who assert they are discriminated against because of their age have a higher burden of proof than workers who  are discriminated because of their race, sex, national origin, religion, etc. (see Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009))

The proposed POWADA would restore the previous legal rules and protections that existed before the 2009 decision.

POWADA was introduced in March by  Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Senator Patrick Leahy (D-VT).  Harkin is Chairman of the Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

The AARP notes the unemployment rate for older workers has soared in recent years, and once out of work, older jobseekers experience far longer spells of unemployment – well over a year, on average – than their younger counterparts.   The AARP says age discrimination is one of the significant reasons why it takes so much longer for older jobseekers to become reemployed.

The Supreme Court decision requires age discrimination victims to show that  “but for” age discrimination they would not have suffered an adverse employment action.  In other words, they must prove that age was the decisive factor in how they were treated.

 Prior to the ruling, age discrimination victims, like other discrimination victims, were required to show only that discrimination was a factor behind how they were treated.  The employer then was required to show that discrimination was not a factor.

The number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

Here are some other findings in the AARP survey:

  • Seventy-seven percent of respondents are concerned that their age would be an obstacle  to finding work if they had to find a new job in the current economic climate;  56% say they are “very concerned.”
  • Ninety-one percent agree that older Americans should be protected from age discrimination just as they are protected from other forms of discrimination, including a 73 percent supermajority of respondents who strongly agree.

The AARP (a.k.a. the massive insurance company) describes itself as a nonprofit, nonpartisan organization with a membership that helps people 50+ have independence, choice and control in ways that are beneficial and affordable to themand society as a whole.