Half Century of Inequality: Age Discrimination in Employment Act

Pageflex Persona [document: PRS0000038_00069]2017 marks the 50th anniversary of Public Law 90-202, The Age Discrimination in Employment Act of 1967 (ADEA), enacted on December 15, 1967.

But there is little to celebrate.

For 50 years, America’s older workers have been denied equal protection from unfounded and harmful discrimination in employment.

 Federal law today not only fails to protect older workers but effectively allows employers to drive older workers out of well-paying jobs in their 40s and 50s and then out of the workforce altogether in their 60s. This has led to unemployment, underemployment and poverty in old age for many older Americans, especially for women. 

The ADEA is the frail stepsister of Title VII of the Civil Rights Act, which was passed three years earlier to protect job applicants, employees and union members from discrimination on the basis of race, sex, color, national origin and religion. Age was proposed for inclusion in Title VII but was omitted when Congress decided more study was needed about the nature of the problem. 

As I explain in my book, Betrayed: The Legalization of Age Discrimination in the Workplace, the law finally passed by Congress to address age discrimination in employment was far weaker than Title VII.  The ADEA both prohibits and legalizes age discrimination. 

Congress gave mere lip service to prohibiting age discrimination. The substantive part of the ADEA was patterned after Title VII but the ADEA includes gaping loopholes, such as permitting “reasonable” discrimination against older workers and allowing mandatory retirement of public safety workers, state elected officials and high-placed business executives.

Unlike Title VII, the damages part of Title VII is patterned after the Fair Labor Standards Act of 1938, a federal law that regulates the payment of minimum wages and overtime. As a result, victims of age discrimination in employment are treated as if they were shorted on their paycheck and not as workers who suffered grievous and long-lasting injury. The ADEA does not permit a court to order an employer to pay punitive or compensatory damages to an age discrimination victim. The most a victim can recover is twice the amount of monetary loss suffered (if no monetary loss was suffered, the victim and his/her attorney  get nothing).

If that wasn’t bad enough, the gap between the ADEA and Title VII has grown much wider over the years as a result of misguided decisions by pro-business federal courts.  It is now much more difficult to prevail in an ADEA case than a Title VII case. One appeals court has even ruled that job applicants aged 40 and above are completely without protection from discrimination on the basis of age.

In addition, the Obama administration made the situation much worse when he signed an executive order that permits age discrimination by federal agencies.

A new year marks a new beginning.

One can hope the Trump administration will reverse President Obama’s discriminatory executive order permitting age discrimination by federal agencies.

One can hope the U.S. Congress and the federal courts will – at the very least – take steps to insure that older workers receive the same rights and protections as other discrimination victims. If repeal of the ADEA is not possible this year, Congress should at least pass the Protecting Older Workers Against Discrimination Act, first proposed more than a decade ago. The POWADA would reverse a particularly disastrous decision by the U.S. Supreme Court in 2006.

Hope, of course, is an unreliable vehicle for change. We must demand action. Action is long overdue.

Appeals Court: Systemic Age Discrimination Against Job Applicants is not Illegal

A federal appeals court forecloses any effective way to combat longstanding, epidemic and unaddressed age discrimination in hirng in the United States.

* Note: The U.S. Supreme Court chose not to review the 11th Circuit decision explained below, which holds that protection from systemic bias under the Age Discrimination in Employment Act does not extend to job applicants.  6/26/17.

A federal appeals court has ruled that job applicants cannot sue an employer for adopting policies and practices that result in age discriminating in hiring.

The 11th Circuit Court of Appeals in Atlanta said the Age Discrimination in Employment Act of 1967 (ADEA) protects only employees, not job applicants.

No Justice for Older Applicants

The ruling graphically illustrates the  lack of protection afforded to older workers that is set forth in my book, Betrayed: The Legalization of Age Discrimination in the Workplace.

The 11th Circuit effectively quashed the only effective way to eliminate age discrimination in hiring – the disparate impact lawsuit, which allows a plaintiff to sue an employer for a seemingly neutral policy or practice that has a disproportionately negative impact on older workers (i.e. the use of computer software to screen out applications from older workers). The 11th Circuit covers Florida, Georgia and Alabama.

Disparate impact lawsuits are permitted under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin.

In the Oct. 5 ruling, the full 11th Circuit said the ADEA “makes it clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no “status as an employee.’” The ruling overturns an earlier 2-1 ruling by a three-judge panel holding that the ADEA permits older job applicants to sue for age discrimination in hiring.

Big Victory for Reynolds Tobacco

The ruling came in the case of Richard M. Villarreal who, beginning at age 49, applied seven times over the Internet for a position as a territory manager at R.J. Reynolds Tobacco Co.   He was never hired and never told why his applications were rejected.

After being contacted by a whistle blower, a  law firm informed Villarreal that Reynolds had contracted with two recruiting firms to develop internet screening tools to target young job applicants for hire and screen out applicant having eight to ten years of experience.  Villarreal filed suit in 2010 against Reynolds and a staffing firm, Pinstripe, Inc., alleging disparate treatment and disparate impact discrimination.

The disparate treatment theory requires the plaintiff to prove the employer engaged in intentional age discrimination whereas the disparate impact theory does not require proof of intent to discriminate. The plaintiff need only show that the employer’s seemingly neutral policy or practice had a disproportionate and adverse impact upon older applicants.

The appeal’s court also affirmed dismissal of Villarreal’s disparate treatment claim because it was filed after the statute of limitations expired. The Court agreed with the lower court that Villarreal had failed to exercise “diligence’ because he did not ask Reynolds why he was not hired in 2007. However, the appeals court remanded the case back to the lower court so Villarreal could pursue a theory that Reynolds was engaged in a  “continuing-violation” which would render his 2007 claim timely.

The appeals court refused to defer to the Equal Employment Opportunity Commission, which took the position that the ADEA does permit disparate impact lawsuits. The Court explained “we do not defer to an agency’s interpretation of a statute when the text is clear.”

The ruling eliminates any means of redress for thousands of older job applicants who applied for positions at Reynolds only to have their applications diverted into a digital trash can sight unseen.

The case is Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602,(11th Cir.).

What About Social Security? Topic Mostly Ignored in Pres. Election

puzzlepieceThere has been surprisingly little discussion about the future of Social Security in the ongoing presidential election campaign, leaving questions about what the candidates will actually do if elected.

Democrat Hillary Clinton’s position seems to depend upon her audience:

  • “I won’t cut Social Security. … I’ll defend it, and I’ll expand it.” www.hillaryclinton.com, February 5, 2016.
  • “In lucrative paid speeches that Hillary Clinton delivered to elite financial firms but refused to disclose to the public, she displayed an easy comfort with titans of business, embraced unfettered international trade and praised a budget-balancing plan that would have required cuts to Social Security, according to documents posted online Friday by WikiLeaks.” The New York TImes, Leaked Speech Excerpts Show a Hillary Clinton at East with Wall Street, Oct. 7, 2016.

Republican Donald Trump’s position is vague. He seems to promise not to cut Social Security for existing recipients but certainly does not commit himself to expansion of the program.

  • “I’m going to save Social Security. You have tremendous waste, fraud and abuse. We have in Social Security thousands of people over 106 years old. You know they don’t exist. There’s tremendous waste, fraud and abuse, and we’re going to get it. But we’re not going to hurt the people who have been paying into Social Security their whole life and then all of a sudden they’re supposed to get less. We’re bringing jobs back.”  Source: 2016 CBS Republican primary debate in South Carolina, Feb 13, 2016

The fate of Social Security is vital to 40 million retired Americans, including 21% of married couples and about 43% of unmarried persons who rely on Social Security for 90% or more of their income.

Of course, what politicians promise during the election season is not always what they deliver. President Barack Obama promised the following and then did the reverse:

  • “Obama will fight job discrimination for aging employees by strengthening the Age Discrimination in Employment Act … .”  Source: Blueprint for Change (2008).

Two years later, President Obama signed an executive order that carves out an exception to the ADEA that permits the nation’s largest employer, the federal government, to discriminate on the basis of age in hiring for federal jobs. This was done in plain sight but there was no protest – nor indeed any comment – from the AARP, which is busy mining its treasure trove of older members through the sales of Medigap health insurance and licensing agreements. And Obama’s administration has ignored the epidemic of age discrimination in hiring that has forced millions of older workers out of the workplace and into an uncertain and ill-advised retirement.

#OscarsSoYoung: Where’s the Transparency?

cbisaacsCheryl Boone Isaacs, president of the Academy of Motion Picture Arts and Sciences, claims the move to strip away the voting rights of the oldest members of the Academy is not discriminatory.

Boone Isaacs told The Hollywood Reporter:

“I just don’t understand it. That’s been a frustrating thing for me, this concept of, ‘We’re moving people out in order to move people in.’  That’s just not true … Our oldest new member is 90 or 91, so it’s not about age at all.”

In the civil rights context, Boone Isaacs comment is laughable. Inviting one individual who is 90 or 91 to join the Academy signifies nothing. And it is unlikely that Boone Isaacs would accept this lame explanation from another group that was charged with unfairly targeting women or minorities.

In any case, if what Boone Isaacs is saying is true, the Academy can easily resolve this matter. The Academy can disclose the number of members who are being stripped of their voting rights, along with their ages.  This request is not unreasonable. It is a matter of simple transparency. And I can assure her that this information will be disclosed if the Academy is actually sued for age discrimination.

Although Boone Isaacs professes confusion, age discrimination is not really hard to understand. It occurs when an institution adopts a policy or rule that disproportionately and adversely affects individuals who are over the age of 40.

The Academy earlier announced that 683 new members were invited into the Academy this year, of whom 46% are female and 41% are people of color. The Academy might actually have gotten kudos for this if it had stopped there. There is an obvious need for greater diversity in the Academy. A 2014 survey by the Los Angeles Times of the 6,028 Academy Award voters found that the population is 76 percent men with an average age of 63.  But, stupidly, the Academy did not stop there.

Age discrimination is not the solution to lack of racial or gender diversity. lt pits groups that  historically have suffered from irrational bias against each other. It is contrary to America’s founding principle of equal justice for all. It damages people, fostering deep resentment and anger, just like race and sex discrimination.

According to Boone Isaacs, it is the Academy’s goal to “increase our inclusion by 50 percent” by 2020. “Gender and race. It’s a big goal — that is for sure. But if you don’t set a big goal, what is the point?” she said.

The point, Ms. Boone Isaacs, is not achieving diversity by any means but achieving diversity in a positive manner without damaging the lives of loyal members, some near the end of their lives, and fracturing the organization itself.

Appeals Court Says Discriminatory Comments Irrelevant to Firing of Wal-Mart Associate

Exclamation PointIt’s rare today to have “direct evidence” of age discrimination – or evidence that on its face raises a legal inference of guilt. Most supervisors and managers have learned to refrain from making discriminatory comments in public.

So when direct evidence of discrimination does exist, you’d think the court would take it seriously. Don’t count on it.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit in Ohio recently dismissed the case of Reva Richardson, a 50-year-old sales associate at a Wal-Mart store in Lansing, Michigan, who was fired after a supervisor allegedly told her son, who also worked at the store, “[We] need to get rid of Reva. She’s too old to work here anymore.”

The  12-year veteran Wal-Mart employee was fired after she fell and broke her wrist while stacking merchandise at the store. The reason given for Richardson’s termination was “demonstrated unsafe work practices which resulted in an accident.”

The appeals court earlier this month upheld the dismissal of Richardson’s case without a trial, essentially finding that no reasonable person could conclude that Richardson was a victim of age discrimination.

The court observed that the supervisor who made the inflammatory remarks, Adam Eschtruth, was transferred to another Wal-Mart store four months before Richardson’s dismissal and Riichardson failed to produce evidence that Eschtruth had any input in the decision to terminate her employment. The Court found that Eschtruth “was not involved in the firing decision” and “his statements do not qualify as direct evidence of age discrimination.”

Of course there was other evidence, including the questionable reason cited for Richardson’s dismissal.

Store manager Mark Darby fired Richardson after he and two other store managers reviewed a surveillance video of Richardson’s fall. They concluded that Richardson created a safety hazard due to improper placement of equipment. Furthermore, they faulted her for failing to look behind when she walked backward and tripped on a piece of equipment.

Richardson argued that Wal-Mart management began mistreating her in 2012 because of her age. Among other things, she said Darby “humiliated” and “taunted and shamed her” by screaming at her in front of a vendor. Moreover, she said Darby and Eschtruth treated two younger associates more favorably than her.

She also said Eschtruth asked her several times during her evaluation  when she was going to “quit” or “leave”  Wal-Mart, to which Richardson responded, “When I can no longer walk.”

According to the appeals court, Richardson’s evaluations were generally positive. However, she received three “written coachings” over a period of 12 years. These involved an alleged attempt to influence the exchange of her daughter’s computer, failure to properly package a hazardous-material item and four unscheduled absences (due to illness) within six months.

The case is Richardson v. Walmart Stores, Inc.,  6th Cir., No. 15-1142,  (Sept. 9, 2016).

Justice Delayed is Justice Denied in Baltimore

prison guardHow can an employer engage in blatant age discrimination for years and completely escape the consequences of its action?

A federal judge last month agreed that Baltimore County illegally discriminated against correctional officers on the basis of age but refused to order monetary damages, which were estimated at more than $19 million.

Judge Richard D. Bennett cited the  “extreme” “troubling” and “unreasonable” delay in pursing the case by the plaintiffs’ attorney, the  U.S. Equal Employment Opportunity Commission.

The EEOC in 1999 and 2000 issued notices of charges of discrimination to the county on behalf of two Baltimore correctional officers who alleged the County’s pension plan discriminated against them based on their ages. The County denied the charges. The EEOC apparently put the matter on a back burner for five and a half years.

Finally, in March 2006 the EEOC issued a notice to Baltimore County that it’s pension plan violated the Age Discrimination in Employment Act of 1967. After failing to reach a settlement, the EEOC filed the equivalent of a class action lawsuit against the County in September 2007.

Of course, the case took many  wrong turns and dead ends in the federal court system that Judge Bennett failed to note. One might conclude these delays also were troubling and extreme.

In 2009, the case  was dismissed altogether when U.S. District Judge Benson E. Legg ruled the higher rates charged to older workers were “motivated not by age, but by the pension status – i.e. the number of years until retirement eligibility – of older new hires.”  The U.S. Court of Appeals for the Fourth Circuit rejected Legg’s  tortured reasoning in 2010 and reinstated the case. Continue reading “Justice Delayed is Justice Denied in Baltimore”

Making Excuses for Age Discrimination

OregonianI recently read an article by the Oregonian that was noteworthy because of the number of excuses it put forth to justify age discrimination in employment.

Approximately 2,300 workers were laid off by Intel in Seattle last Spring. According to an article by Mike Rogoway on the web site of The Oregonian newspaper, the average age of an Intel worker is 43 whereas the average age of the laid off workers was 48.  He reported that Intel was nearly 8 times more likely to lay off workers over 60 as it was to lay off those under 30.

Interestingly, the Oregonian does not accuse Intel of age discrimination. Instead, the article states the layoffs were “skewed severely older. That’s not a coincidence.”   The Oregonian  goes on to offer various excuses for age discrimination in employment.

  • The article states that federal law does not protect older workers against losing jobs if their skills grow outdated…

Where’s the evidence that the skills of the older workers who were laid off were outdated? That’s a damaging stereotype.

  • The Oregonian quotes University of California Berkeley economist Clair Brown as stating that Intel is facing a painful transition from the fading PC market to mobile gadgets and other emerging technologies. She said it makes sense that Intel would want to develop a new generation of employee and reduce its “legacy” costs.

This is like saying it makes sense to condone irrational and harmful age discrimination in employment. Someone else might say it makes sense to keep your most experienced and successful workers in a time of crisis.

If cost was a factor to justify disproportionately laying off older workers, what other factors were considered? What about the cost of recruiting, hiring and training new employees? Did Intel reduce the inflated salaries of its top executives?  Was any consideration given to lowering salaries of the older workers instead of getting rid of them?

Brown also credits Intel with “treating departing employees relatively well” – which may come as a surprise to  older workers who have been dumped into a chronic morass of unemployment and under-employment due to pervasive and unaddressed age discrimination in hiring.

  • Courtney Angeli, of the law firm Altschul & Sullivan, is quoted as stating: “It would be rare … for a mass layoff like Intel’s to be motivated by bias against older workers – after all, she noted, it is aging executives who are typically calling the shots.”

In reality, it is not at all rare for employers to target older workers in mass layoffs. In fact, this is a common ploy  that is made possible  because older workers receive far less protection from invidious discrimination under federal law than victims of discrimination on the basis or race, sex, national origin, color or religion. (If you doubt this, read my book, Betrayed: The Legalization of Age Discrimination in the Workplace)

Earlier this month, four former employees of Hewlett Packard (HP) filed a class action lawsuit in California  accusing the company of discriminating against older workers in layoffs of employees in 2012. The former workers, who were in their 50s and 60s when they were laid off, said that while HP was laying off thousands of its employees ostensibly to cut costs beginning , it was hiring thousands of younger employees to replace them.

And why is it significant that “aging executives” are calling the shots?   Age bias is not limited to young people. It’s a prejudice that is caused by fear of death, false and negative stereotypes, and animus toward a discrete group of people who share the same trait (age).  It is fundamentally no different than race or sex discrimination. For example, it is commonly asserted that African-Americans are biased against blacks who have darker skin tones.

The Oregonian article points to a problem in the media and in American society, where age discrimination often is minimized, trivialized and tolerated.

Intel claims the layoffs were based on a review of workers performance in the company’s annual review process and not based on age, gender or other factors.

Setback for Plaintiffs in Google Age Discrimination Case

GoogleIn October, the lawsuit was certified as a collective action, which is a type of class action under the Age Discrimination in Employment Act. It means other applicants can opt into the case if they “interviewed in person with Google for a software engineer, site reliability engineer, or systems engineer position when they were 40 years old or older, and received notice on or after August 28, 2014, that they were refused employment, [to] have an opportunity to join in the collective action against Google.”  Once formed, Google is expected to challenge the class. Ed.

A major age discrimination lawsuit against search engine giant, Google, suffered a setback recently when a federal judge refused to allow the plaintiffs to amend their complaint.

Such an action is ordinarily permitted. In fact, a federal court rule provides that a “court should freely give leave [to amend] when justice so requires.” However, U.S. District Judge Beth Labson Freeman rejected the request on the grounds the plaintiffs failed to show “diligence” in filing the motion to amend.

The case was filed in April 2015 by Robert Heath, a software engineer who was interviewed but not hired by Google in 2011. Heath alleges Google failed to hire him after an in-person interview because he was 60 years of age at the time. According to the lawsuit, the median age of Google’s 28,000 employees in 2013 was 29 while the median age for computer programmers in the United States was 42.8 and the median age for software developers is 40.6.

A second plaintiff subsequently joined the case, Cheryl Fillekes, a  40+ programmer who was invited for in-person interviews by Google in 2007, 2010, 2011 and 2013 but was never hired. She earned a P.hD. geophysics from the University of Chicago.

In March, the plaintiffs sought to amend the original complaint to permit  a class action claim under California’s Fair Employment and Housing Act (FEHA). The FEHA would have been another arrow in the plaintiffs’ quiver.  Not only did Judge Freeman reject the request, she wrote the plaintiffs’ created “havoc” by failing to file a timely motion for conditional certification under the federal Age Discrimination in Employment Act (ADEA).

California’s FEHA permits a plaintiff to file a traditional class action lawsuit, which is not permitted under the Age Discrimination in Employment Act of 1967. The ADEA has a unique class certification feature.

Under the ADEA, the court can order an employer to divulge the names and contact information of other potential class members, who then are permitted to “opt in” to the plaintiffs’ lawsuit.

Heath and Fillekes have asked the Court to order Google to divulge the names and contact information of engineering applicants who applied for a job since 2010, received an in person interview, and were refused employment.

Google claims it cannot identify potential plaintiffs because it received “over one million” applications for engineering positions since 2010. According to Google, “there is no systemic or reliable way of identifying applicants who were 40 or more years of age when they submitted applications or interviewed in-person since Google does not collect information about an applicant’s age.

Moreover, Google argues the plaintiffs are not entitled to class certification under the ADEA because “Because plaintiffs have no evidence whatsoever of a unifying scheme” and the plaintiffs’ allegations are “so idiosyncratic and distinct.”

Google asked the court to protect Google from “a frivolous expedition conducted at its own expense, and to avoid stirring up litigation through unwarranted notice … ”

Google claims that it “rigorously forbids discrimination of any kind,” including age discrimination.

Would Trump Halt Age Discrimination by Feds?

TrumpIn his address to the Detroit Economic Club on Monday, GOP Presidential hopeful Donald Trump said something that could have tremendous impact on the problem of age discrimination in employment.

He promised to immediately cancel all of President Barack Obama’s “illegal and overreaching executive orders.”

Older workers have been subject to blatant age discrimination in hiring by our nation’s largest employer, the U.S. government, since President Barack Obama signed an executive order in 2010 that essentially created an exemption to the Age Discrimination in Employment Act of 1967 (ADEA) for federal agencies.

President Obama’s order allows federal agencies to bypass older workers and hire “recent graduates.” The ADEA unambiguously states that it is unlawful for any employer “to fail or refuse to hire” any individual “because of such individual’s age.” Obama’s order has a disparate impact upon older workers because the vast majority of recent graduates are under age 30.

Paradoxically, President Obama claimed that merit-based civil service rules put the federal government at a “competitive disadvantage compared to private-sector employers when it comes to hiring qualified applicants for entry-level positions.” The point of civil service regulations is, of course, to hire the best qualified applicant. Obama’s order enables federal agencies to hire young applicants with fewer qualifications than older applicants. Continue reading “Would Trump Halt Age Discrimination by Feds?”

Term Limits for the Supreme Court

supremesImmediately upon losing the Democratic nomination for the presidency, Vermont Senator Bernie Sanders called on  progressives to unite behind Hillary Clinton in November to preserve the Supreme Court’s majority in favor of “a woman’s right to choose” and LGBT causes.

Meanwhile, GOP Presidential Candidate Donald Trump has expressed confidence that Supreme Court fears will keep Republicans loyal in the ballot box. Trump has vowed to nominate conservative candidates to the Court.

The fact that U.S. Supreme Court justices enjoy the perk of lifetime tenure is driving the American election to a sobering extent this year, pointing to the need to implement term limits for U.S. Supreme Court Justices.

The majority of the nine-member Court is eligible for Social Security: Ruth Bader Ginsburg is 83, Anthony M. Kennedy, 80  Stephen G. Breyer, 77,  Clarence Thomas, 68, Samuel A. Alito Jr., 66, and Sonya Sotomayor, 62.  The youngest Justice is Elena Kagan, 56.

It is likely that several Justices will be forced to step down by ill health or even death in the foreseeable future. The next President will nominate candidates to fill the vacancies.

It cannot be healthy for the election of a new U.S. President to be  so profoundly influenced by fear surrounding the potential makeup of the U.S. Supreme Court.

The candidates for the Presidency are stoking fear that the Court will divide along political lines and impose a distinct and unwanted ideology on the American public. But that ploy works precisely because the Court has voted along ideological lines for years. Continue reading “Term Limits for the Supreme Court”