The New Yorker Wimps Out on Age Discrimination

An article on ageism in the November 20 issue of The New Yorker is oddly detached and completely misses the point.

For one thing, The New Yorker fails in the article, Why Ageism Never Gets Old,  to comprehend perhaps the major reason that age discrimination does not get old.  Age discrimination has its roots in the human psyche but is systematically carried out by individuals, public agencies and private sector employers who have little reason to fear legal consequences.

Age discrimination is rooted in the human psyche but is systematically carried out by employers with little reason to fear legal consequences.

The clueless nature of The New Yorker article is evident at the start. Fact checkers apparently did not recognize that the name of the federal law prohibiting age discrimination is not “Federal Discrimination in Employment Act” but the Age Discrimination in Employment Act  of 1967 (ADEA).  (By the way, the ADEA celebrates its 50th anniversary this year.)

Here are some things that The New Yorker should know for the next article:

  • The federal government, the nation’s largest employer, routinely engages in age discrimination in hiring. Former President Barack H. Obama signed an executive order in 2010 that permits federal agencies to discriminate against older applicants and hire “recent graduates”.  This has resulted in the loss of tens of thousands of jobs for older workers and sent a message to private sector employers that age discrimination in hiring is legitimate. The U.S. Office of Program Management defends the obviously discriminatory program as legal.
  • The  U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for implementing the ADEA,  has for years ignored a major spike in age discrimination claims that began in the Great Recession. For example, the EEOC received more than 20,000 complaints of age discrimination in 2016 but filed only   two lawsuits with age discrimination claims that year. The EEOC has done virtually nothing for years in response to widely-publicized articles on age discrimination in the tech industry. The EEOC itself discriminates on the basis of age in its rulings on administrative complaints.
  • Age was originally proposed for inclusion in Title VII of the Civil Rights Act of 1964 but was omitted because Congress decided more research was needed about the problem. The ADEA, passed three years later, provides far less protection against  discrimination than Title VII. In other words, the ADEA legalizes a broad swatch of discrimination that would be illegal under Title VII. Much of the reasoning for this difference is based on outdated stereotypes and outright ignorance.
  • Age discrimination receives the lowest standard of review by the U.S. Supreme Court –  far lower than race or sex discrimination.  A law that discriminates on the basis of age is upheld by the Court if it is merely rational – or not irrational.  Moreover, the Court has issued several rulings that make it far more difficult to prevail in a case alleging age discrimination than for a case alleging race or sex discrimination.
  • The U.S. Congress has ignored the problem of age discrimination for years, failing year after year to adopt a simple “fix” for a 2009 U.S. Supreme Court ruling that eliminated so-called “mixed motive” age discrimination cases.  Age discrimination victims must show that age discrimination was the “but for” or determinative reason for an adverse employment action. The Senate Special Committee on Aging has ignored a plea by this blog to address the EEOC’s discriminatory treatment of age discrimination victims.
  • Older Americans have no real advocacy group. The AARP today is primarily a for-profit corporation that makes billions in licensing fees by exploiting the AARP’s 30-plus million membership base. (Most older Americans don’t know this because there is no media reporting on the issue.) AARP Foundation Litigation, a small spin-off of the AAARP’s non-profit foundation, mostly writes amicus or friend of the court briefs on major cases brought by attorneys in the private sector – it has had little overall impact on the fundamental legal inequality of older workers for the past 50 years (and only recently seems to have noticed that fundamental legal inequality of older workers).
  • Age discrimination is just as or more harmful than other types of discrimination. Millions of older Americans are cast out of the workplace  into long-term unemployment. Many are forced to take part-time and temp jobs. Many are forced into an early retirement, which results in reduced Social Security benefits for the rest of their lives. Considerable research shows that age discrimination is related to  ill health and poverty in old age.
  • Research shows that older women are the major victims of age discrimination in hiring, which contributes to the fact that women  experience twice the rate of poverty as men in their old age.

Ironically, in another article in the same issue of The New Yorker, called The Autumn of the Patriarchy, David Remnick, 59, the editor of The New Yorker, expresses contempt for perpetrators of sexual harassment, including President Donald Trump. That’s great as far as it goes but …  Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act. Again, Congress and federal courts have made sexual harassment extremely difficult to prove, which encourages employers to tolerate the problem and secretly pay off victims to go away. .

Let’s hope The New Yorker – or some enterprising media outlet – steps up in the near future to address a major reason that ageism never gets old – the role of our laws and courts in the problem.

The legal system is critical to the enforcement of civil rights in America.  The legal system is very complex and difficult to understand.  In truth, most attorneys have only a vague idea about how the legal system operates when they graduate from law school. But The New Yorker is staffed by smart people who should at least be able to ask the right questions.

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