Why do the entities that are paid to advocate for older Americans – the EEOC and the AARP – do so little about problem of age discrimination in employment.
The AARP and the EEOC were AWOL when the U.S. Court of Appeals for the Second Circuit in New York City a ruled that the overtly discriminatory Pathways Recent Graduates Program does not “offend” the Equal Justice Clause of the U.S . Constitution because it is rational and it serves a “legitimate” purpose.
Neither the EEOC nor the AARP expressed any concern when the Pathway’s Recent Graduates Program was created in 2010 through an executive order signed by President Barack Obama. His order created a back door exception to the Age Discrimination in Employment Act of 1967, which prohibits using age as a factor in hiring .
Just in case there is any doubt, a federal appeals court in New York City ruled last week that age discrimination is entitled to far less protection under the U.S. Constitution than other types of discrimination.
A three-judge panel on the U.S. District Court of Appeals for the 2nd Circuit in New York City ruled that age discrimination “does not offend” the Equal Protection Clause of the U.S. Constitution if it is “rationally related to a legitimate [government] interest. ” They said a law that discriminates on the basis of age must literally be irrational to be unconstitutional. By contrast, federal courts accord race and sex discrimination much more exacting strict and intermediate scrutiny, respectively.
The panel cites Kimel v. Florida Bd. of Regents, an 18-year-old decision by now retired U.S. Supreme Justice Sandra Day O’Connor, who speculated that age discrimination differs from other types of discrimination because:
Older persons have not been subjected to a “history of purposeful unequal treatment” and,
“[Old] age also does not define a discrete and insular minority” as the status of old age is one which all persons, regardless or ace or gender, may experience.”
Justice O’Connor’s statements were outdated and dis-proven in 2000.
The U.S. Supreme Court had a choice of reviewing two cases involving age discrimination.
One involves an obscure issue. A small government agency near Tucson, AZ, is arguing it does not have to follow the Age Discrimination in Employment Act (ADEA) because it has fewer than 20 employees.
The other involves the major issue of our day – systemic age discrimination in hiring. R.J. Reynolds Tobacco Co. used internet technology from 2007 to 2010 to weed out 20,000 applications submitted by older workers for the position of sales manager and targeted workers who were “2-3 years out of college” who “easily adjusts to change.”
As an American, it is frustrating to read about the steps that Great Britain is taking to attack age discrimination in employment.
The British government is actively working to address the problem because it considers age discrimination a threat to future economic growth. The UK estimates that if everyone in the UK worked just one year longer, the country’s gross domestic product would increase by one percent.
A federal court judge has dismissed as unconstitutional a 2016 law that prevented the Internet Movie Database (IMDb.com) from posting the ages of actors upon request.
The law was a desperate measure to combat overwhelming age discrimination in hiring in Hollywood, where young women are routinely cast in roles opposite much older men.
U.S. District Judge Vince Chhabria in San Francisco said the law violates the First Amendment rights of IMDb.com by preventing it from publishing factual information. Judge Chhabria also said the law was “underinclusive” because it bans only one kind of speaker from disseminating age-related information.
Interestingly, Judge Chhabria, who was appointed to the bench in 2014 by former President Barack Obama, opined that the problem in the entertainment industry is not age discrimination but rather sex discrimination. He said the problem was”objectifying women” and “overvaluing their looks while devaluing everything else.”
Aren’t women being treated less favorably because of their age? That’s age discrimination.
It’s hard not to be cynical when the EEOC leadership trumpets its commitment to the ideals of Martin Luther King but ignores the reality of age discrimination in employment and, worse, engages in it.
EEOC Acting Chair Victoria Lipnic tweeted on MLK Day yesterday:
“Every day at the EEOC, we are reminded of Dr. King’s work, his vision, his prophecy. Our work is a deep part of his legacy. His call to service is what each member of the EEOC brings to our work every day.”
That’s a worthy sentiment but the EEOC has yet to walk the talk when it comes to age inequality.
Not only has the EEOC virtually ignored the problem for years but it sanctions age discrimination in hiring by the federal government and actually engages in the practice itself, thereby undermining enforcement of the Age Discrimination in Employment Act of 1967 in the private sector.
Dr. King understandably focused on the crisis of racial inequality in the United States but his appeal was based on the underlying concept of equal justice for all. One can only wonder whether Dr. King, who was assassinated at age 39, would have recognized that age discrimination is a major hindrance to older minority group workers if he had lived. Continue reading “MLK, the EEOC & Age Discrimination”
A New Jersey appeals court has dismissed an age discrimination lawsuit filed by a woman who was fired from her job at Mountain Creek Resort in Vernon, NJ a few hours after she “raised her voice” at her boss upon learning she had to work on Christmas Eve.
A two-judge panel of the Appellate Division of the Superior Court of New Jersey recently refused to reinstate a lawsuit filed by Karen Murphy, who was fired at the age of 58 after working in the accounts payable department at the resort for 16 years. The lawsuit was originally dismissed on a pre-trial motion for summary judgment filed by the resort.
Appellate Division Judges Harry Carroll and Hany Mawla concluded that Murphy offered “no evidence” that her termination was motivated by age discrimination.
Murphy was fired on Dec. 11, 2012 a few hours after she “raised her voice” at her supervisor, Lindsey Spasova, upon learning that she would have to work on Christmas Eve. Murphy also asserted that younger workers in her department formed “cliques” and that she was excluded from their groups. Continue reading “Another Way to Get Rid of an Older Worker”
Why are so many perpetrators of sexual harassment old men in $500 suits?
Michigan Democratic Rep. John Conyers, Jr., is 88. Television personalities Charlies Rose and Bill O’Reilly are aged 75 and 68, respectively. Michigan Democratic Senator Al Franken, is 66. Former Alabama Supreme Court Chief Justice and would-be Republican Senator Roy Moore is 70. Hollywood movie producer Harvey Weinstein is 65. Etc.
It is not coincidental that so many harassers are older. After-all, it usually takes many years to become rich and powerful. However, the age of harassers is incidental. It’s the $500 suit (a metaphor for money and power) that really matters.
Sexual harassment is an abuse of power. Hence, few CEOs file sexual harassment complaints.
Many of the politicians and personalities who were unmasked as harassers in recent months are deeply entrenched in positions of power. They use that power in two ways – to abuse people with less power and to protect themselves from any consequences arising from their bad behavior. They know the system works to protect them, and not the targets of their abuse.
The “system” protects those in power – not their victims.
It is not surprising that attorneys from the Center for the Study of Law and Religion at Emory University perceive the federal courts’ bias in employment discrimination cases as being “particularly oppressive on followers of minority religious traditions.”
Attorneys associated with the Center recently filed an amicus brief questioning the high rate of dismissal for employment discrimination cases in federal court. They point to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.
There’s no question that all employment discrimination cases are subject to shockingly high rates of pre-trial dismissal. But, in reality, the most oppressed victims of employment discrimination in federal court are older workers. Consider:
The Age Discrimination in Employment Act of 1967 (ADEA) is much weaker than Title VII of the Civil Rights Act of 1962, which prohibits discrimination on the basis of religion.
Rulings by the U.S. Supreme Court have eviscerated the already weak, Plaintiffs must show that age discrimination was the “but for” or primary reason for an adverse employment action. Title VII requires plaintiffs to show only that discrimination was a factor in an adverse employment decision.
Unlike Title VII plaintiffs, the potential for damages in an age discrimination case is far more limited. ADEA plaintiffs cannot get compensatory damages for emotional distress or punitive damages.
Let’s be honest. Age discrimination cases rarely even get to a federal court. 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 recently upheld an administrative decision in an age discrimination case that permits employers to ignore objective qualifications and hire workers based on “cultural fit.” The EEOC rejects “cultural fit” in Title VII cases. The concept is so blatantly discriminatory that it has been widely rejected by business. In addition to all of that, the EEOC operates a hiring program that has a disparate impact on older workers – which means it’s discriminatory.
Age discrimination cases rarely even make it to court because the EEOC has abdicated its responsibility to enforce the ADEA.