Corporations Point to Age Discrim. in Hiring by Feds

You might think it would be an embarrassment to our nation’s largest employer – the federal government – that corporate America is defending age discrimination in hiring by pointing out the U.S. government engages in the same behavior.

Most recently, the Equal Employment Advisory Council (EEAC), an association of America’s 250 largest corporations, filed a friend-of-the-court brief in an age discrimination case in which it opposed allowing older job applicants to file disparate impact lawsuits challenging broad-based discriminatory hiring practices.  If they are allowed to do so, the EEAC warns, numerous federal programs “most certainly will be impacted… ”

The EEAC goes on to cite various federal training, education and hiring programs that are closed to older workers, including the AmeriCorps National Civilian Community Corps, a residential program open to individuals between the ages of 18 and 24 who perform team-based national and community service, including disaster response and environmental stewardship. Members receive $4,000 for ten months of service, health benefits, $400 a month to pay for childcare and an educational award of $5,730.

Come to think of it, why can’t a 40-year-old join the Corps and dedicate a year of his/her life to community service for the same amount of remuneration?

Last May, the U.S. Chamber of Commerce filed a friend-of-the-court brief in which it defended age discrimination in hiring by noting that even the U.S. Equal Employment Opportunity Commission (EEOC) does it. The Chamber cited the EEOC Attorney Honor Program, which employs in “permanent” positions “third-year law student[s], “full-time graduate law students[s],” and “Judicial Law Clerk[s] whose clerkship must be [their] first significant legal employment following [their] graduation.”  The EEOC states on its web site that graduates of the Honor Program go on to serve as trial attorneys or Administrative Judges in the EEOC’s District Offices. The  EEOC program appears to have a disparate impact upon older workers because the vast majority of  law school students and graduates are under the age of 40.

The  EEOC is the federal agency that enforces the Age Discrimination in Employment Act of 1967 (ADEA). [Read more…]

Worker Entitled to a Fair Investigation (in the UK)

justice-scale-761665_1In the United States, so-called workplace investigations can be little more than pre-trial preparation for employers intent upon building a record to justify dismissing a troublesome worker.

It is refreshing to note a recent  decision by the London-based Employment Appeal Tribunal (EAT)  finding  a breach of an implied term of trust and confidence where an agency’s Human Resources Dept. interfered in the outcome of an investigation of employee misconduct.

In Ramphal v. Department for Transport,  a manager  was investigating alleged misconduct by an aviation compliance inspector, who allegedly filed a false expense report.  The manager’s initial report concluded that any abuse was not deliberate. After the manager sought advice from HR, he switched his recommendation that the employee receive a written warning for misconduct to a recommendation that the employee  be summarily dismissed for gross misconduct.

The EAT said the lower court erred when it failed to determine whether HR had exerted “improper influence” over the manager’s decision to dismiss the worker

The EAT said a worker facing disciplinary charges and a dismissal procedure “is entitled to expect that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability.”

According to the  EAT:

“… an investigating officer is entitled to call for advice from human resources; but human resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction….. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct”.

In the United States, most workers who do  not belong to unions or receive the protection of an employment contract can be fired for almost any reason – without any cause –  as long as the reason doesn’t break an actual law (i.e. discrimination)  or a narrowly defined public policy (i.e. protection for whistleblowers).  There is no legal requirement that employers treat workers with respect, dignity and fundamental fairness.  Of course, employers who are not fair  risk significant liability if the worker later files a lawsuit alleging a violation of the law, such as a race or sex discrimination lawsuit.

The Employment Appeal Tribunal is a superior court of record in the United Kingdom that hears  appeals from Employment Tribunals in England, Scotland and Wales.

New Book on Age Discrimination in Employment

I am pleased to announce the publication of my new book, Overcoming Age Discrimination in Employment: An Essential Guide for Workers, Advocates & Employers, a timely and much needed resource to understand the major law governing age discrimination law in the United States.

old paper or parchment

This book provides an easy-to-understand overview of the Age Discrimination in Employment Act of 1967 (ADEA), using real cases from the federal courts and the U.S. Equal Employment Opportunity Commission to demonstrate how common age-related issues in the workplace are analyzed and decided under the law.

Overcoming Age Discrimination in Employment helps employers avoid costly age discrimination lawsuits, damage to reputation and unnecessary turnover at a time of increasing competition for skilled workers. It helps workers understand, confront and overcome age discrimination in employment, which can lead to job loss, a depleted savings account, forced early retirement, and years of impoverishment.

A number of factors make older workers more vulnerable to age discrimination in employment today than in the past.

A major reason why older workers face epidemic age discrimination today is that the ADEA offers far less protection to older workers than Title VII of the Civil Rights Act of 1964 provides to victims of employment discrimination on the basis of race, sex, religion, color and national origin. Meanwhile, the difficult economy since the Great Recession has given employers unprecedented incentive to replace experienced higher-paid older workers with cheap young labor. The problem of age discrimination has not only been ignored by the Obama administration but has been made considerably worse.

The book answers such questions as:

  • When do ageist remarks rise to the level of illegal harassment?
  • What common and often successful ploys do employers use to hide age discrimination?
  • What is “reasonable” age discrimination?
  • Why are employers invariably the big winners in the EEOC’s mediation and conciliation programs?
  • What factors influence whether the EEOC will dismiss an age discrimination charge outright without even an investigation?
  • When does an employment relationship exist?
  • Can an age discrimination victim win an ADEA lawsuit and yet not qualify for any monetary damages? (Hint – Alas, yes)

Overcoming Age Discrimination in Employment should be on the bookshelf of every worker, employment law attorney, and Human Relations officer. The book is available as an e-book and in paperback format on Amazon.com.

Progress? Obama Acknowledges the “Elderly”

ObamaOnce again, President Barack H. Obama, in his 2016 State of the Union address, describes an America that is populated by “hard-working families,” immigrants and select  minorities.

But at least this year older Americans were not entirely invisible. He made two fleeting references to older Americans, which is two more than he made in his 2015 address.

Pres. Obama, 54, said Social Security and Medicare are “more important than ever. We shouldn’t weaken them. We should strengthen them.” (Unfortunately, he didn’t say what, if anything, he would do to accomplish this goals.)

And Pres. Obama applauded the “elderly” woman who waits in line to cast a vote as long as she has to.

FYI, Pres. Obama – the term ‘elderly’  is  frowned upon today as a descriptor for older Americans because it evokes images of frailty, sickness and decline. The term reflects underlying attitudes about aging that are stereotypical and negative. “Elderly” certainly doesn’t describe the millions of older Americans (like you!) who are vital, energetic and very much engaged in life. The International Longevity Center advises journalists to use the term “older adult”  to describe Americans over the age of 50. Good advice.

Obama completely ignored older Americans last year, which was not entirely surprising given that he has ignored older Americans for the past seven  years.

The Obama administration has not represented a period of enlightenment regarding older Americans.  Obama is the first American president, at least in modern times, to actually endorse age discrimination in hiring.  Obama promised in 2009 to work to strengthen the Age Discrimination in Employment Act of 1964. Not only didn’t he do that but he signed an executive order in 2010 that permits federal agencies to bypass older workers and hire recent graduates.  Moreover, Labor Secretary Thomas E. Perez supported a private initiative last year by America’s largest corporations to provide jobs to 100,000 inner city “youth” aged 16 to 24, despite the fact that using age as a factor in hiring violates the plain language of the ADEA.  Until Obama was elected,  federal policy supported  job training programs and internships to bolster employment for youth and minorities.

It was Obama’s last State of the Union address. He can take credit for many accomplishments in office but he didn’t do a dang thing for older Americans, many of whom lost jobs, investments and homes in the 2008 recession and have struggled for years with chronic unemployment due to epidemic age discrimination in hiring. The Economic Policy Institute reported in 2013 that about half of Americans aged 65 and older are either in poverty or at risk of poverty.The highest rates of poverty among older Americans are suffered by women  and minorities.