Taxpayers Subsidize Age Discrimination by Feds

It is ironic that our nation’s largest employer, the U.S. government, is one of the worst offenders with respect to age discrimination in hiring.

President Barack Obama in 2010 unilaterally signed an executive order that allows federal agencies to by-pass older workers, ignore merit and qualifications, and to hire “recent graduates” and “entry-level jobseekers” for permanent federal jobs. Since the vast majority of recent graduates and entry-lvel job seekers are under the age of 40, Obama’s order has an obvious discriminatory impact on older workers. Yet, there was no public outcry when Obama signed this order – not from the AARP or the American Civil Liberties Union.

Obama couched his action in terms of increasing diversity in federal hiring but he offered no evidence that it was necessary to resort to age discrimination, which is illegal under the Age Discrimination in Employment Act of 1967. Obama’s order operates as an exemption to the ADEA. Furthermore, Obama’s order discriminates against older African Americans and Hispanics, as well as older whites.

Not surprisingly, older applicants face a mountain of discrimination when applying for lucrative federal positions.

James W. Moeller, then 57, filed a federal age discrimination lawsuit last year after he applied for several positions an attorney at the Federal Energy Regulatory Commission (FEC) in Washington, DC. He was never  granted an interview despite the fact that he is a Harvard Law School graduate with 30 years of federal energy regulatory experience.  Moeller has represented clients before the FEC, the U.S. Nuclear Regulatory Commission and the Maryland Public Service Commission. He is a leading scholar on federal energy regulatory law, having published numerous scholarly articles on the topic.

Meanwhile, the FEC granted interviews to younger, less qualified applicants, who were subsequently hired.

How come a guy like Moeller who objectively has superb qualifications could not even get an interview with the FEC? Could it be … uh … age discrimination?

Moeller’s  lawsuit states the FEC “claims that it cannot discriminate on the basis of age because it has no knowledge of the ages of its job applicants. This claim is based on the fact that job applicants generally do not include their dates of birth on their resumes.”  Moeller argues – and basic common sense dictates – that employers can infer the age of a job applicant based upon the applicant’s job history.

It is arguably a much greater failing for the federal government to discriminate against older workers because  we are shareholders in the enterprise through our tax dollars. In addition, discrimination by the federal government sends a signal to the private sector that age discrimination is acceptable and will be tolerated.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I explore other ways in which all three branches of the federal government have overlooked, abetted and trivialized age discrimination in employment. I also show how the ADEA provides far less protection for older workers than is provided by Title VII of the Civil Rights Act to workers on the basis of race, sex, national origin, color and religion.

*See Moeller v. Bay, Case No, 1:15-cv-00724 (2015) U.S. District Court for the District of Columbia.

Rough Justice? Case Filed a Day Late

What a difference a day makes.

The U.S. Court of Appeals for the Sixth Circuit in Ohio recently upheld the dismissal of a lawsuit filed by an IRS criminal investigator in 2012 who charged he was denied several promotions because he is a white male. The grounds for dismissal were that Frank Rembisz filed his civil rights lawsuit one day after the expiration of a 90-day statute of limitations.

Here’s what happened.

Rembisz filed a discrimination complaint with the U.S. Treasury Department that he was denied several promotions because he is a white male. The Treasury Department mailed him and his attorney a “final notice” that his complaint was denied on March 15, 2013. Rembisz had 90-days after receipt of the final notice of dismissal to file a civil lawsuit in federal court.

Rembisz filed his lawsuit on June 21, 2013 and the Treasury Department filed a motion to dismiss the case on the grounds that it was filed after the expiration of the 90-day statute of limitations.

Rembisz argued that the case was timely filed because the clock did not start ticking until his attorney received the final notice on March 25, 2013.

A three-judge panel on the appeals court disagreed  and affirmed the lower court’s decision to dismiss Rembisz’ case.

The appeals court wrote that its “presume(s)” the 90-day limitations term began running on the fifth day following the mailing of the right to sue notice. Moreover, the appeals court said the statute of limitations is triggered when the complainant – not his or her attorney – receives the final notice.

Rembisz  also submitted an affidavit from his attorney’s secretary stating that she received the Treasury Department’s notice that Rembisz complaint had been denied on March 22, 2013.

But the appeals court said “that still makes his complaint late by one day.”

The case is Rembisz v. Lew, No. 15-2279 (6th Cir. 2016).

Roadmap to Stop Harassment in the Workplace

In the wake of the controversy surrounding Fox CEO Roger Ailes, it is worth reviewing how to handle the problem of  harassment in the workplace.

Ailes, 76,was recently forced out of his position at the television network that he helped found because of complaints of sexual harassment that allegedly dated back for decades.

The EEOC created a select task force in January 2015 to study the general problem of workplace harassment, including sexual harassment. The task force, which included experts from around the country, issued a report last month recommending that employers actively promote an organizational culture of respect and civility.

The task force recommended:

  •  Employers should have a comprehensive anti-harassment policy that prohibits harassment based on any protected characteristic, and which includes social media considerations.
  • The anti-harassment policy should include details about how to complain of  and how to report harassment, must be communicated frequently to employees, in a variety of forms and methods.
  • Employers should provide reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
  • Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
  • Employers should periodically “test” their reporting system to determine how well the system is working.
  • Employers should devote enough resources to insure that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.

Specific details about the report are available on the EEOC web site.

Almost a third of the 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment, including charges of unlawful harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion. And that is the tip of the iceberg. The EEOC reports that three out of four individuals who experienced harassment did not talk to a supervisor, manager, or union representative about the harassing conduct because they feared disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.

Penalty for Sexual Harassment Rarely Fits The ‘Crime’

Note: News outlets reported July 21, 2016 that Ailes will receive a $40 million buyout from Fox and a new job as an “advisor” to the network.

What should the penalty be for a manager who allegedly abused his power for decades by sexually harassing female subordinates?

Disgrace? Dismissal? Banishment?

Well, that does not appear to be what is happening in the case of Roger Ailes, the chief executive officer of Fox News who allegedly sexually harassed female subordinates since the 1960s.

According to the Drudge Report, 21st Century Fox, the corporate parent of Fox News, is negotiating an exit package with Ailes that includes a $40 million buyout. Other outlets report Fox wants to keep Ailes on the payroll as a consultant. In other words, the consequences of Ailes’ allegedly abusive behavior may consist of a fat check and a change of job title.

One reason that sexual harassment remains epidemic in the American workplace is the lack of any serious consequences for the abuser.  Victims of sexual harassment lose their dignity, sense of trust and  peace of mind. Many lose their jobs and financial security. In the rare instance that a sexual harasser is held to account, the consequences range from a pat on the hand to a quiet suggestion that it is time to move on.

Women in the workplace are well aware they lack any real protection from sexual harassment and this knowledge understandably deters them from reporting the problem.

Ailes woes began a few weeks ago when Gretchen Carlson, a former news anchor, filed a lawsuit claiming that Ailes fired her because she refused to have a sexual relationship with him. Ailes, 76, vigorously denied the accusation. Some observers (including former co-workers) dismissed Carlson’s complaint as a parting shot by an aging beauty queen whose afternoon TV show suffered from poor ratings.  (Fox is presently trying to move Carlson’s lawsuit out of federal court and the public eye into a closed-door arbitration proceedings.)

The problem for Ailes arose because other women began complaining about his allegedly abusive behavior.  Carlson’s attorney, Nancy Erika Smith, said that at least a dozen women contacted her firm after Carlson’s lawsuit was filed complaining of similar harassment by Ailes. The final blow appears to be a story by New York Magazine stating that Fox News star Megyn Kelly told a law firm hired to investigate Carlson’s complaint that Ailes had sexually harassed her a decade ago.

Fox had no choice but to do something.  When an employer receives a complaint that a manager is sexually harassing a subordinate, the employer is on notice and must act to prevent future harm (including retaliation) or it will risk serious damages.  However, the law does not require the employer to actually penalize the harasser.  So Fox’s game plan appears to be this – remove Ailes from his supervisory position, while keeping him happy and on the job.