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Justice O’Connor’s statements were outdated and dis-proven in 2000.
When an employer engages in age discrimination, the repercussions are severe for the victims. Most suffer the loss of a job that might have sustained them for years.
By contrast, employers who get caught in the act of engaging in age discrimination often receive a slap on the wrist. That’s what happened last month when the EEOC settled two blatant cases of age discrimination.
Professional Endodonics, PC, of Southfield, Michigan, an oral surgery practice, will pay $47,000 to settle an age discrimination lawsuit brought by the EEOC on behalf of Karen Rueral, who was fired in 2016, four days after her 65th birthday. She had worked for the company for 37 years. Professional Endodonics supposedly had a “policy” requiring employees to retire at age 65.
The EEOC also agreed to a $50,000 settlement with Diverse Lynx, LLC, an IT staffing company that describes itself as being headquartered in Princeton, N.J., with an “off-short delivery center” in New Delhi, India. Hoovers.com estimates Diverse Lynx revenues at $12.64 million a year.
After learning an applicant’s date of birth, Diverse Lynx sent the applicant (who was not identified) an email stating that he would no longer be considered for the position because he was “born in 1945” and “age will matter.” Needless to say, under the Age Discrimination in Employment Act (ADEA), age shouldn’t matter.
The ADEA entitles victims of intentional age discrimination to recover monetary loss, doubled.
The EEOC has refused to answer several Freedom of Information Act requests asking why it is appropriate to base hiring decisions on “cultural fit” in age discrimination cases but not in cases involving discrimination on the basis of race, sex, religion, color or national origin.
Denied a request to provide copies of decisions issued by the EEOC in the past decade involving the use of “cultural fit”in the hiring process;
Denied a request to identify the legal basis for applying a different legal standard with respect to hiring complaints filed under the Age Discrimination in Employment Act compared to complaints filed under Title VII of the Civil Rights Act.
Denied a request to identify whether any outside agency, committee or commission reviews the adherence of the EEOC to legal standards.
The FOIA letter, signed by Kimberly J. Hall, an EEOC government information specialist, failed to cite any basis for the EEOC’s refusal to disclose agency records. She states the EEOC is not required to answer questions.
Last fall, the EEOC upheld two decisions by its appellate arm, the EEOC Office of Federal Operations, dismissing age discrimination cases where federal agencies based hiring decisions upon subjective criteria. The EEOC cited no legal precedent for dismissing the importance of objective qualifications (i.e. education and experience) in the hiring process in age discrimination cases and ignored well-settled legal precedent holding otherwise. Continue reading “EEOC Denies Freedom of Information Act Requests Re. ‘Cultural Fit’ Ruling”
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.
The EEOC has a new feature on its website called Faces of the ADEA that celebrates the stories of a half-dozen victims of age discrimination who were helped by the EEOC.
In reality, the vast majority of age discrimination victims – tens of thousands of older workers – who have sought justice from the EEOC in the past decade found a deaf ear. Meanwhile, age discrimination in employment – particularly in hiring – has been overt, unaddressed and epidemic.
Nothing in the EEOC’s new strategic plan for 2018-2022 specifically indicates the EEOC intends to improve its pathetic response to age discrimination in the years ahead but there is one glimmer of hope.
In its new strategic plan, the EEOC announced it will conduct on-site program evaluations of several federal agencies this year “that have been identified through the integrated data system” (i.e. that generate the most discrimination complaints). The EEOC will “issue compliance plans that recommend changes in their employment practices.” The EEOC will review the agency’s implementation of the compliance plans and if their efforts found wanting take “corrective action” if necessary.
Perhaps the worst age discriminator in the United States – in terms of scope and impact – is the U.S. government, which is also the nation’s largest employer.
The EEOC acknowledges the federal sector is an “integral part” of combating employment discrimination because it has “tremendous influence” over the employment practices of private and public employers in the United States and around the world. The EEOC says the promotion of equal employment opportunity in the federal government can “positively impact all employees and job-seekers.”
This represents a distinct change of attitude for the EEOC, which has ignored age discrimination by the federal government for years.
This blog in 2013 became a lonely voice in opposition of an executive order signed by former Democratic President Barack Obama that effectively amended the Age Discrimination in Employment Act of 1967 (ADEA) to allow federal agencies to discriminate on the basis of age. The EEOC was conspicuously silent when Obama signed the order in 2010 and when it went into effect in 2012. So far, the Office of Program Management’s Pathways “Recent Graduates” Program has barred older workers from applying for more than 100,000 federal jobs. The EEOC also buried its head in the sand when Obama’s Secretary of Labor Tom Perez endorsed a hiring initiative that permitted America’s largest corporations to engage in age discrimination in hiring.
It was revealed last year that the EEOC’s appellate unit, the Office of Federal Operations, dismissed two age discrimination complaints against federal agencies that hired younger workers and bypassed older workers on purely subjective grounds (i.e., poise, “cultural fit” , etc).
The EEOC ‘s failure to aggressively enforce the ADEA has flown under the radar for years. One reason is that the EEOC’s actions are secret unless the EEOC chooses to make them public or the complainant does. Many complainants fear publicity will hinder their chances of finding new employment.
In addition, older Americans lack a strong public voice. The AARP is apparently too busy making billions from licensing agreements that exploit its membership base. And the media has widely ignored the problem while it engaged in wholesale age discrimination itself .
Last year marked the 50th anniversary of the ADEA.
For years, there has been litigation over the fact that the internet is being used to screen out the resumes of older workers and deposit them in a digital trash can.
But suddenly the powers that be are taking notice in the wake of a supposed investigative story on Dec. 20 by ProPublica and The New York Times about Facebook permitting employers to exclude older workers from receiving employment and recruitment ads. That’s a good thing but …
That NYT story was based largely upon a Dec. 20 federal class action lawsuit filed by the Communications Workers of America against major employers that use Facebook to screen out older job applicants. And the CWA lawsuit is the latest of several to challenge the use of internet technology to target young job applicants and screen out older job applicants.
In fact, the U.S. Supreme Court last year refused to hear a case involving a 2010 lawsuit brought by Richard Villarreal against R.J. Reynolds Tobacco Co. that alleged Reynolds hired recruiters to develop an algorithm that was used to screen out older applicants for job vacancies on CareerBuilder (which settled its part of the case out of court). The legal press (including me) wrote extensively about the case. This matters because it shows that the government has been on notice for years that the internet is being used as a tool to effectuate epidemic age discrimination in hiring. Continue reading “For the “New” News Media, There is No Past, Only a Self-Congratulatory Present”
Is it any wonder that older people are almost invisible in society today, except for their reliance upon adult diapers, anti-depressants and “Help! I’ve Fallen and I Can’t Get Up!” buttons?
The Information, a New York-based technology web site and magazine start-up, has rolled out a new subscription plan for people aged 30 and under.
The “Young Professional Plan” offers a discounted rate to the magazine, and a low-cost “all-access plan” and the opportunity to join “a Facebook group only for people 30 and under.”
CEO Jessica E. Lessin, who founded the magazine in 2013, said the plan is “designed to serve people who are early in their careers and haven’t reached their earning potential and are looking for events where they can meet people from outside their own companies.” Lessin is described as a former Wall Street Journal writer “with family money.”
How would Ms. Lessin feel about a networking opportunity for only male professionals?
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.