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Justice O’Connor’s statements were outdated and dis-proven in 2000.
and give the EEOC an undeserved forum to spout righteous indignation.
ProPublica and Mother Jones recently resurrected a story about wholesale age discrimination at IBM, presenting it as a new, hard-hitting investigative report.
In fact, the core issues in the “investigation” have been known since at least 2014, when Bloomberg reported that IBM had devised a strategy to skirt federal laws designed to disclose the presence of arbitrary age discrimination in firings and lay-offs.
“A ProPublica investigation found that in making the cuts, IBM has flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination.” – ProPublica
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.
Note:A spokesperson for the EEOC on 2/7/18 announced the EEOC has adopted a procedure to review ethical complaints against the Agency staff. Gary J. Hozempa, a staff attorney in the EEOC Office of Legal Counsel, said he and his team are responsible for “considering ethics issues that arise in the workplace about EEOC employees.” He saId the current head of the Office of Legal Counsel, Carol R. Miaskoff, Associate Legal Counsel, is EEOC’s Designated Agency Ethics Official. PGB
Since EEOC decisions are secret, there is no way of telling how many older workers have had their age discrimination complaints dismissed on spurious and discriminatory grounds.
It came to light last fall that the EEOC upheld two rulings by its appellate division dismissing age discrimination complaints where the federal government ignored objective qualifications and used purely subjective criteria (i.e., cultural fit, poise) to make promotion and hiring decisions. The rulings contradict EEOC stated policy, EEOC rulings in race and sex discrimination cases, and settled federal case law. The rulings go beyond the EEOC’s generally dismissive treatment of age discrimination and reflect actual age bias.
Then it became apparent the EEOC is unaccountable to the public. The EEOC has no appeal process. There is no EEOC ombudsperson to investigate complaints against the agency. Incredibly, the EEOC even lacks a procedure for filing ethical complaints against the EEOC’s so-called “administrative judges.” The EEOC Office of Inspector General takes the position that it is not its job to investigate complaints related to EEOC rulings.
The AARP & EEOC declined to comment on the discriminatory rulings.
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”
The worst thing about the federal government’s policy of institutionalized age discrimination is that it undermines respect in the government’s promise to insure equal justice for all.
The Office of Personnel Management (OPM) in Washington, DC, recently defended the Pathways “Recent Graduates” Program, which allows federal agencies to limit job vacancies to individuals who graduated from high school, technical school and college within the past two years.
Yasmin A. Rosa, who identifies herself as “lead EEO Specialist” for the OPM, states in a recent letter that the Pathways Program “does not discriminate against anyone” because it is legal under an executive order signed in 2010 by former Democratic President Barack H. Obama.
The White House on Wednesday will hold a Summit on Worker Voice that supposedly will provide a historic opportunity to bring together workers, employers and labor leaders “to highlight the relationship between worker voice and a thriving middle class.’
But some voices will be missing. The voices of those who have no work due to systemic, government-approved age discrimination in hiring.
The Obama administration has been deaf to the voices of older workers who are disproportionately mired in long-term unemployment because of the misguided and harmful policies of the Obama’s administration.
In 2010, President Obama signed an executive order establishing the Pathways “Recent Graduates” Program, which allows federal agencies to engage in age discrimination in hiring. That order sends a signal to private sector employers that age discrimination in hiring is justified and will be tolerated.
To make things worse, U.S. Labor Secretary Thomas E. Perez last summer announced his support for a program developed by Starbucks, Microsoft and Walmart, and other leading American corporations, called the “100,000 Opportunities Initiative.” The purpose of the program is to give 100,000 16- to 24-year-olds full and part-time jobs by 2018.
Starbucks couched the initiative as a well-intentioned effort to help young people who face systemic barriers to jobs and educations. Whether or not this is true, it is irrelevant. The Age Discrimination in Employment Act and civil rights laws generally do not allow employers to discriminate because they supposedly have good intentions. Besides, older workers also face systemic barriers to jobs. A recent report by AARP found that half of the people in the U.S. between the ages of 45 to 70 who lost their job during the last five years are still not working.
The Obama administration has effectively abandoned a 50-year-old policy of encouraging employment through discrimination-free efforts, such as through education and training.
Readers who think the government should get out of the business of age discrimination are encouraged to “start the convo” using Twitter and the hashtag #StartTheConvo:.
Private employers are criticized for doing what the federal government does – engaging in blatant age discrimination in hiring.
There is renewed focus upon a discriminatory practice that has been around for many years – job advertisements that use blatant code words to attract younger applicants and deter older applicants.
Fortune Magazine recently noted that employers in the media, advertising and tech industries, have begun advertising for “digital natives,” which is code for workers aged 30 or below.
This may be new to Fortune but I filed a complaint in September 2010 with the EEOC complaining about this very issue. I provided documentation showing that the major internet job search site for attorneys, ALM’s Lawjobs.com, featured literally hundreds of advertisements for attorney jobs containing blatant age limitations. I provided more than a dozen examples of discriminatory ads taken from the site. Some of the ads sought attorneys who graduated during a defined and recent period of time, such as from 2004 to 2007. Other ads sought attorneys with limited experience, such as three-to-five years of experience. Given that the average age of law school graduates is about 25 years of age, I felt these ads violated the Age Discrimination in Employment Act of 1967. Indeed, the ads fundamentally were no different than the notorious “whites only” job ads of the Jim Crow era.
I took the step of filing an EEOC complaint because I felt attorneys should be both knowledgeable about age discrimination and serve as officers of the court who pledge to follow the law. Moreover, judges are plucked from the ranks of attorneys and it’s hard enough to win an age discrimination case. That attorneys and the search firms they hire to place their job advertisements felt no compunction about engaging in blatant age discrimination seemed to me to be indicative of a much wider problem.
Very few female celebrities have publicly raised the issue of age discrimination. Most hide from it as long as possible because they know it may be the death knell of their career. But Madonna has never been like other celebrities.
In the latest issue of Rolling Stone, Madonna, 56, observes that no one would “dare say a degrading remark about being black or dare say a degrading remark on Instagram about someone being gay, but my age – anybody and everybody would say something degrading to me. And I always think to myself, why is that accepted? What’s the difference between that and racism, or any discrimination?”
The difference, Madonna, is that age discrimination has essentially been legalized in the United States. The Age Discrimination in Employment Act (ADEA) was weak to begin with and has been eviscerated by the U.S. Supreme Court. And Congress is completely apathetic about the issue. Continue reading “MADONNA AND AGE DISCRIMINATION”