A major problem facing victims of age discrimination today is judicial bias – which is well documented in research but widely ignored and unaddressed.
Judges are not unique in society; age bias is the most tolerated form of social prejudice. However, age bias in the judiciary is particularly damaging to older workers because it is the judiciary’s role to insure equal justice under the law.
Age bias generally is more than twice as prevalent as other types of bias, according to a 2016 survey by a Canadian firm, Revera, Inc., which operates 500 senior care properties. The survey, conducted by the Sheridan Centre for Elder Research in Ontario, involved 2,400 Canadians. Forty-two percent said they tolerate ageism, compared to 20% who said they tolerate racism and 17% who tolerate sexism.
Meanwhile, a 2004 study found evidence that judges are more biased in age cases than race or sex discrimination cases. The study also found that younger judges are the least sympathetic to age discrimination claims.
Judicial age bias yields decisions that would be shocking in race or sex discrimination cases.
The authors of the study, Does Age Matter? Judicial Decision Making in Age Discrimination Cases, are Kenneth L. Manning of the University of Massachusetts–Dartmouth; Bruce A. Carroll of Western Carolina University; and Robert A. Carp of the University of Houston. They analyzed all of the federal age discrimination cases in 42 states that reflected a clear win-loss over a 12 year period, plus more than 1,500 race and sex discrimination cases.
The researchers concluded that federal judges are less likely to support age discrimination victims – and more likely to support defendant/employers – in age discrimination lawsuits than in cases involving race or sex discrimination.
Moreover,the researchers state that younger judges show the highest degree of age bias. “[T]he oldest judges were over twice as likely as their youngest colleagues to render a pro-plaintiff verdict in age discrimination cases, suggesting that age was an influential determinant of decisions in age cases,” the researchers found.
The EEOC Office of Federal Operations (OFO) recently upheld an Administrative Law Judge’s (ALJ) dismissal of a 2011 age discrimination complaint stemming from a failure to hire by an agency of the Social Security Administration.
Among other things, there was clear evidence of collusion to cover-up age discrimination by the hiring officer and his assistant, undisputed proof of interference by SSA attorneys in the investigation of the case in clear violation of EEOC policy, and the novice, untrained hiring officer admitted that he based his selections entirely on subjective criteria and completely ignored the 60-year-old complainant’s superior qualifications. The hiring officer initially selected five attorneys under the age of 40 (some were recent law school graduates) to fill the five vacancies.
The OFO upheld the ALJ’s decision that the SSA that the hiring officer was entitled to hire candidates that he deemed to be a good fit for the SSA’s “culture.” The OFO agreed with the ALJ that reliance on subjective criteria is “appropriate and necessary when the selection, as here, involves the consideration of collegial, professional, teamwork and administrative abilities that do not lend themselves to objective measurement.”
The decision raises a question – if an attorney position does not lend itself to objective measurement, what job does?
The OFO’s ruling is contrary to legal precedent and EEOC rules that instruct employers to hire candidates based upon neutral and objective job-related criteria and to avoid subjective decisions that are influenced by personal stereotypes and hidden bias.
A judge would not make a ruling such as the one above in a race or sex discrimination case because of fear it would provoke public outcry … but age bias apparently is tolerated.
Age bias is no less a problem for older workers than it is for other protected groups. Indeed, when older workers lose their jobs, they tend to be unemployed much longer than other workers. And women suffer the most. A 2008 study by Economist Joanna Lahey found that employers were more than 40 percent more likely to call a female job candidate for an interview if the high school graduation date on the resume signaled the applicant was younger rather than older.
Judicial age bias magnifies the impact of legal inequality faced by older workers.
The Age Discrimination in Employment Act of 1967 is far weaker than Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. And the U.S. Supreme Court accords age its lowest level of review while race and gender receive strict and moderate scrutiny, respectively.