40% of Older Workers Will Fall From Middle to Lower Class in Retirement

The persistent myth of the wealthy retiree took a hit recently when the Schwartz Center for Economic Policy Analysis (SCEPA) published a report predicting that 40% of older workers and their spouses  will experience downward mobility in retirement.

SCEPA estimates the average older worker has only $15,000 saved for retirement.

An estimated 2.6 million middle class workers who retire at age 62, which is the most common age for retirement, will actually fall below the poverty level – $11,670 for an individual and $15,730 for a two-person household.

About 5.9 million will teeter into near poverty, which is 200% percent of the federal poverty level. They will have an annual income of $23,340 for singles and $31,260 for couples.

So why don’t these folks just keep working? According to SCEPA, many older workers are unable to delay retirement due to poor health and the inability to withstand the physical demands of work. Others  have difficulty finding jobs with decent pay.  Some workers who must keep working into old age may die before they can retire.

The solution, SCEPA says, is to strengthen Social Security and create Guaranteed Retirement Accounts.

Guarantee Retirement Accounts should include:

  • Mandated employer and employee contributions of 1.5 each.
  • Professionally managed individual accounts in pooled and diversified funds.
  • Tax credit refunds to help low-income earners.
  • Lifetime annuitized payouts.

SCEPA does not go into why a decent retirement is unattainable for so many Americans but others blame the appalling lack of foresight by the U.S. Congress, which has allowed defined benefit pensions to virtually disappear in the private sector (while insuring their own comfortable retirements).

The study was conducted by Teresa Ghilarducci, Bernard L. and Irene Schwartz Professor of Economics at The New School for Social Research and Director of SCEPA’s Retirement Equity Lab (ReLab); Michael Papadopoulos,
ReLab Research Associate; and Anthony Webb, ReLab Research Director.

OPM Dismisses Complaint about OPM’s Discriminatory Hiring Program

The U.S. Office of Personnel Management (OPM) has dismissed a complaint filed by a New York man who was barred from applying for a federal job in 2017 because he had not graduated from college within the past two years.

Kathleen M. MGettigan, then acting director of the OPM,  stated in a 3/7/18 letter to the complainant, Brian Neary, that the OPM lacks jurisdiction “over the legality” of the Pathway’s Recent Graduates Program because it was the result of an executive order by former President Barack H. Obama.

The OPM program is an example of  systemic and institutionalized age discrimination in hiring.

Obama created the Pathways Recent Graduates Program in 2010 to serve as a back-door exemption to  Age Discrimination in Employment Act of 1967 (ADEA), which expressly prohibits the consideration of age as a factor in hiring. The Pathways program is a type of  age discrimination known as  “disparate impact discrimination,” where a seemingly neutral policy has an adverse impact on older workers. The vast majority of recent graduates are under the age of 40.

It is estimated the program, which went into effect in 2012, has barred older workers from applying for 100,000 federal jobs and counting. The U.S. government is America’s largest employer.

Neary, then 49, was prohibited from applying for the position of Financial Institutions Specialist  with the Federal Deposit Insurance Corporation because he obtained a Masters of Business Administration more than two years prior to his application.

An only child, Neary said he was forced to leave his former employer, DLJ/ Credit Suisse, to care for his mother, who is now deceased, after she incurred congestive heart failure and other complications.

Neary said he is going to appeal the OPM’s decision to the EEOC and may file a lawsuit.

Neary sent a letter last week to Jeff T.H. Pon, newly-appointed director of the OPM,  urging him to contact President Donald Trump and encourage him to permanently revoke the Pathways Recent Graduates Program.  Until then, he asked Pon to”[b]e proactive. Unilaterally suspend the OPM Pathways Program pending his revoking President Obama’s ‘legacy’ Executive Order.”

The AARP, which claims to advocate for Americans aged 50+, has failed even to respond to Neary’s request for  assistance.   (The AARP also has completely ignored discriminatory rulings by the U.S. Equal Employment Opportunity Commission in age discrimination cases.)

At this point, one wonders how the AARP –  which collects dues from 38 million older Americans – defines the term”advocacy.”

It is more than a little ironic that the OPM traces its history to the Civil Service Act of 1883 , which was passed to end the corrupt spoils system of partisan hiring in the U.S. government.

EEOC Denies Freedom of Information Act Requests Re. ‘Cultural Fit’ Ruling

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”

Is Placing Age Limits on Gun Sales ‘Age Discrimination’?

No federal law prohibits age discrimination with respect to raising the age for gun sale purchases from 18 to 21.

The federal law that protects Americans from age discrimination is the Age Discrimination in Employment Act of 1967, which applies only to workers who are aged 40 and over.  It does not protect Americans under the age of 40 from age discrimination.

What about lawsuits filed against gun sellers in states like Oregon, where a state law prohibits discrimination against individuals aged 18 and older?

A half-dozen states, including Oregon, have passed laws raising the age for cigarette purchases from 18 to 21.  Cigarettes kill almost a half million people a year, including more than 41,000 nonsmokers who die from secondhand smoke. The ever litigious tobacco industry has not challenged  Tobacco 21 laws on discrimination grounds.

Like Tobacco 21 laws, state laws placing reasonable age restrictions on gun purchases reflect an important public health interest. So far this year, there have been 18 school shootings, the latest being a mass shooting at a Florida high school that killed 17 people. The U.S. Centers for Disease Control and Prevention estimates that an average of 35,141 Americans are killed by guns each year.

It is extremely unlikely the U.S. Supreme Court would overrule a state law that creates an age-based prohibition on gun sales on equal protection grounds.  The Court accords age its lowest standard of review so a state law that discriminates based on age need only be rational.  It is at least rational to raise the age of gun sales to 21 in an effort to prevent more school shootings.  It is arguably irrational NOT TO do so.

Lawsuits alleging age discrimination  with respect to raising the age for gun sale purchases would seem to have little chance of success and might even be considered frivolous.

The American Lawyer forms a ‘Young Lawyer’ Editorial Board

Gina Passarella Cipriani

It is ironic that the legal profession is one of the worst in terms of adherence to the age discrimination in employment.

There are many lawsuits describing how law firms use creative means to get rid of older workers and law firms in past years have run ads that  blatantly targeted new attorneys for hire, while discouraging older lawyers.

Perhaps it should be no surprise the The American Lawyer, a monthly magazine published by ALM Media in New York City, has “proudly” announced it has formed a “Young Lawyer Editorial Board.” The members “range from just a year or so out of law school to some serving as young partners in their firms.” According to the magazine’s web site: “The goal of this board is to serve as a voice for the next generation of professionals in the legal profession.”

The existence of the young editorial board begs the question -is there an old editorial board that is the voice of the past generation?

Interestingly, the first monthly editorial promulgated by the Young Lawyer editorial board involves sexual harassment in the legal profession. Here’s a suggestion for next month’s editorial: age discrimination in the legal profession.

Of course, all of this could be the dying gasps of a magazine that is in itself old and irrelevant.

About a year ago, ALM laid off more than 15 of its “senior” editors, including the editors in chief of The American Lawyer, Corporate Counsel, Legaltech News, the editorial director of ALM, the Executive Editor of the New York Law Journal, the director of Legal Intelligence, and several longtime copy editors and reporters, etc. The company was reportedly seeking to cut costs.

It’s not clear whether this activity led to any age discrimination lawsuits against ALM … or were they smart enough to buy off the high paid cast-offs?

Gina Passarella  Cipriani took over the reigns at The American Lawyer as its new editor-in-chief.  After obtaining a graduate degree in journalism in 2005, she immediately began working for  ALM’s The Legal Intelligencer in Pennsylvania. Her entire 12-year journalism career has been spent at ALM.

The chief executive officer of ALM Media Properties, LLC, and ALM Media, LLC,  is William M. Carter, 49, a  former senior executive at LexisNexis and Reuters who holds a master of business administration degree.

U.S. Supreme Court Opts to Review Lesser of Two Evils

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.”

Guess which case the Court selected for review.

The Court said this week it will decide an appeal filed by the Mount Lemmon Fire District  of a decision by the U.S. Court of Appeals for the Ninth Circuit holding that the ADEA applies to government agencies with fewer than 20 employees. The  fire district argues the ADEA covers only employers with 20 or more workers and that employed only 13 workers. Four other federal circuits have ruled in accordance with the fire district.

The case involves two firefighters, aged 46 and 54, who were the district’s oldest full-time employees when they were fired in 2009. They allege age discrimination in violation of the ADEA.   The district said they  were fired in a cost-cutting action because they did not participate in volunteer assignments fighting fires in natural wildland areas.

When the ADEA was passed in 1967, it applied only to private sector workers. The U.S. Congress amended the ADEA in 1974 to extend its coverage to states, political subdivisions of states and other state-related entities.  The split between the circuits involves a tortured dispute about the wording of the amendment.

The 9th Circuit ruled the amendment unambiguously states that a political subdivision of a state is a distinct category  that lacks a 20-employee minimum employee requirement. Furthermore, the 9th Circuit contends the fire district and other circuits relied on decades old precedent and used an outmoded method of statutory interpretation that “cannot be reconciled” with the Supreme Court’s  recent  jurisprudence.

An issue of little consequence?

Counsel for the firefighters argued the issue is not significant enough to merit  Supreme Court review because “the ADEA’s numerosity requirement would have no discernible impact on the primary conduct of public employers, and questions regarding its applicability in this context rarely arise.” Also,  they note, state laws typically forbid all political subdivisions—regardless of size—from discriminating against employees on the basis of age.

Reynolds Case

Last summer, the Court refused to hear an appeal of a ruling by the 11th Circuit Court of Appeals in Atlanta in the Reynolds case.

The 11th court said Richard Villarreal, who applied numerous times for a sales manager position, could not sue Reynolds for using internet software to systematically screen out the resumes of older job applicants. The appeals court reasoned that job applicants can’t sue for systemic discrimination because they have “no status” as employees. As a result, job applicants in Alabama, Georgia and Florida currently have no protection from systemic age discrimination.

The US is Inexplicably Backwards about Age Discrimination in Employment

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.

By contrast, every branch of the US government has made the problem of age discrimination in employment much worse in recent years.

The executive branch since 2012 has actively engaged in age discrimination and the EEOC, which supposedly enforces the Age Discrimination in Employment Act, either  ignored the problem or treats it dismissively.  Meanwhile, the Social Security Administration penalizes workers between age 62 and normal retirement age who collect benefits and continue to earn significant employment income.

The federal judiciary over the years eviscerated the already weak ADEA, making it much more difficult to win an age discrimination lawsuit, and the legislative branch, the U.S. Congress, has done nothing to fix the damage.

While America was backpedaling,  Britain in 2015 created a special team led by a government official who is  called the  Business Champion for Older Workers. The team works to help  employers to retain, retrain and recruit older workers.

The current Business Champion for Older Workers is Andy Briggs,  the chief executive officer of Aviva UK Life, a  multinational insurance company headquartered in London that has about 33 million customers in 16 countries.

Briggs challenged UK companies a year ago to increase the number of employees aged 50 to 69 on their payrolls from nine million to more than 10 million by 2022. That’s a 12 percent increase.  To encourage transparency and progress, Briggs asked every UK employer to publish the number and percentage of older workers in their workforce. Several major UK corporations heeded Brigg’s call, including his own Aviva and Barclays Bank. About 19 percent of Aviva’s 16,000 UK employees and 16 percent of Barclay’s workers are over the age of 50.

The United States has done little to acknowledge demographic shifts that will affect American productivity in the years ahead.

Why is the US so backward about age discrimination? It’s hard to pin down the impact of age discrimination in the US because very little research has been done on the topic. But we do know that age bias drives older workers out of the workforce and age discrimination in hiring relegates older workers to low-paid part-time and temp jobs.  This makes little sense when  society needs the  “wisdom capital” (i.e. experience and knowledge) of older workers.

By the year 2050, the U.S. population aged 65 and over is projected to be 83.7 million Americans, which is nearly double the estimate of 43.1 million in 2012.

EEOC Appears to be Alone in Sanctioning Hiring for ‘Cultural Fit’

Note to EEOC:  Hiring for “cultural fit” is also frowned on by the Society for Human Resource Management (SHRM), the world’s largest HR professional society, representing 285,000 members in more than 165 countries.

In  Hiring in the Age of Ageism , the SHRM advises employers to “work to structure interviews around skill sets, rather than softer ‘fit’ factors that can be a cover for discrimination. ”

The  EEOC upheld two rulings in age discrimination cases last fall  by its appellate division, the EEOC Office of Federal Operations (OFO), that endorsed hiring based on purely subjective factors like poise and cultural fit.

The complaints allege that two federal sector agencies violated the Age Discrimination in Employment Act of 1967 when they ignored the superior qualifications of the older applicants and  hired far less qualified applicants under the age of 40 based upon subjective factors.

In one case,  the Social Security Administration admitted that its hiring officer selected five applicants under the age of 40 –  and rejected two highly qualified candidates age 47 and 60 – based upon how he thought they would fit within the “culture” of an SSA office that had not yet even opened. The hiring officer, a middle aged male, said he completely ignored objective qualifications, finding them to be “irrelevant.”

In the other case, a superbly qualified white male candidate, 48, was rejected in favor of a  minimally qualified African American female candidate in her 20s because she “may have” had more poise, compassion, leadership and the ability to deal with stress.

The EEOC is extremely skeptical and carefully parses the use of subjective criteria in the hiring process when it involves race, sex, religion, national origin and color. The EEOC issued a policy guidance stating that hiring for cultural fit was discriminatory in a case involving national origin.

The EEOC has declined to comment upon why hiring for cultural fit is legal in age discrimination cases. The EEOC appears to have adopted a double standard that is completely unsupported by the ADEA and federal case law and which appears in itself be considered discriminatory.

Federal judge says Hollywood’s problem is sex (not age) discrimination

Judge Vince Chhabria, 48.

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.

Duncan Crabtree-Ireland, general counsel of  the Screen Actors Guild told The Sacramento Bee that Judge Chhlabria “fails to understand or recognize the massive impact gender and age discrimination has on all working performers.” He said the union plans to appeal.

California Gov. Jerry Brown signed AB 1687 into law in 2016. The bill required that “commercial online entertainment service providers” such as IMDbPro remove users’ age upon request.

Will the EEOC Start Holding Feds Accountable for Systemic 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.