Jim Crow and Age Discrimination

Jim Crow Laws

 “All that is necessary for the triumph of evil is that good men do nothing”.  Edmund Burke.

This quote was sent to me by a reader and encapsulates the real problem with the epidemic of age discrimination in America today.  Our elected representatives and federal judges, who ultimately are responsible for ensuring equal justice for all Americans, choose to look the other way when employers engage in age discrimination.  The result is that a class of Americans is subjected to arbitrary and systemic discrimination in the workplace that robs them of, among other things, their ability to earn a living and retire with dignity.

This is reminiscent of the era of Jim Crow but it involves age, not race. Jim Crow laws were state and local laws enacted after the Civil War that had the effect of mandating racial segregation in all public facilities in the South.  In my new book, Betrayed: The Legalization of Age Discrimination in the Workforce, I show that older workers are literally second-class citizens under the law.

The major law protecting older workers, The Age Discrimination in Employment Act of 1967, was weak to begin with and has been eviscerated by the U.S. Supreme Court.  As a result, older workers are subjected to wholesale and targeted terminations, long-term unemployment due to epidemic and overt age discrimination in hiring and, finally, they are forced into low-wage or temp work until they can age into an early retirement that will reduce their Social Security benefit by at least 25%  for the rest of their lives.

Age discrimination has nothing to do with ability or merit. It’s about perception. It’s attributable to ignorance and prejudice – both conscious and unconscious – perpetuated by false and harmful stereotypes, fear of aging, and animus between that generations which is fueled by America’s staggering wealth inequality.   And, of course, it exists because of  the failure of  the supposedly good people to act.

I have no intention of diminishing the horror that is evident in the history of race discrimination in America.  Age discrimination is  different. Older people aren’t lynched. They’re put in drawers and forgotten. And age discrimination in the workplace is just the beginning. The problem also is evident in for-profit nursing homes, where old people are labelled, sedated, and neglected until they fade away. By the way, there is a strong correlation between poverty in old age and race.

Burke (1729-1797) was an Irish statesman; author, orator, political theorist, and philosopher. He isn’t the only one to observe that evil thrives when good people do nothing. More recently, Martin Luther King said: “The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.”

Important Ruling on Motive & Age Discrimination

chief of police

Here’s a rare  and important victory in a federal age discrimination case involving a Minnesota city’s failure to promote a 51-year-old police lieutenant to the position of chief of police because he was “retirement eligible.”

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Minneapolis rejected the City’s theory that its action were not-discriminatory because its motive was to hire a long-term police chief.  The City relied upon a theory expounded by the U.S. Supreme Court in 1993 that it is not age discrimination if  an employer is motivated by a reason that is related to but “analytically distinct” from age discrimination (i.e. salary or pension status).

“On the facts here,” the appeals court ruled, “retirement eligibility is always correlated with age because it is dependent on the employee reaching 50; it cannot be ‘divorced from age.’”  Moreover, the  panel said that assuming a candidate is “uncommitted to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits.”

The Court reversed the lower’s court’s dismissal of the case and remanded the case for further proceedings.

Lt. LeRoy Arthur Hilde, 51, a 29-year-veteran of the Eveleth police force, failed to win promotion in 2012 despite the fact he was the department’s only lieutenant and second highest in rank. It was not disputed that he had an excellent reputation on the force and he was recommended for promotion by the outgoing police chief. Hilde alleged the City violated the Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act.

A police committee that was responsible for filling the vacancy had, in the past, promoted only internal candidates. However, this time, the three-member committee sought both internal and outside applicants. It selected  Timothy Howard Koivunen, 43, a police detective from Virginia, Minnesota,

The City did not deny that a factor in the commission’s decision was that Hilde was “retirement eligible.” Koivunen had at least eight more years before he could retire.

 Pretext

The appeals court also rejected the lower court’s finding that Hilde failed to show the city’s reason for failing to hire him was a pretext for age discrimination.  The panel was troubled by markings on the scoring sheets that indicated Hilde’s scores were altered, noting that the commissioners denied or claimed not to remember changing Hilde’s scores.

“Before the interviews, Hilde was the most qualified candidate with more than double Koivunen’s score,” the appeals panel noted.

Hilde received the same mediocre score of 69 from each commissioner for his interview, while Koivunen received a uniform score of 100 from each of the commissioners. At the end of the scoring, both candidates were tied.

The panel concluded the evidence showed the committee members wanted to “level” the scores of the two candidates so they would be “similarly qualified”’ and that this called into question “the objectivity of the entire hiring process.”  Moreover, the appeals court states that an employer’s failure to follow its own policies may support an inference of discrimination when the departure affects only the affected candidate.

The appeals court also disagreed with the City’s claim that Koivunen was the ‘obviously superior candidate,” noting “this is refuted by its rankings of Koivunen and Hilde as tied.”

Finally, the appeals court rejected the lower court finding that the difference in age between Hilde and Koivunen – eight years – was not substantial.  The appeals court noted that it had previously ruled that a difference of six years was substantial.

The case is Lt. LeRoy Hilde v. City of Eveleth, No. 14-1016 (Feb. 6, 2015).

Ageism, Mitt Romney and National Public Radio

bob dylan

Age discrimination normally is the one type of discrimination that is so prevalent that it  goes unnoticed.

But I couldn’t help but notice it this week.

First, Republican Mitt Romney, 67, claimed that he decided not to stage a third run for the presidency because it is time to pass the reigns to a “new generation:”  Romney, of course, didn’t mention that his backers have fled because he proved on two occasions that he is hopelessly out of touch with the American public and surprisingly inept at being a politician.  Romney’s ageist stab at Democratic presidential hopeful Hillary Clinton, 67, and Republican Jeb Bush, 61, shows he is just as clueless about aging as he is about the lives of ordinary Americans.

This morning, I was taken aback by a segment on the National Public Radio program, “Wait, Wait … Don’t Tell Me!”   A panel spent several minutes joking about Bob Dylan’s appearance on the cover of “AARP The Magazine.” Host Peter Sagel, 50, compared Dylan, who is 73, to a “strange withered troll.” He goes on to say, “If you’ve seen the cover, I know you’re thinking, ‘Aww, that’s too bad’ … but no, Bob Dylan is still alive …  He’s updating his songs, like, Lay Lady Lay, lay across my adjustable hospital bed … His real name is Bob Zimmerman. He’s an old Jewish man now.”

Is it completely humorless to note that Sagel’s jokes are really about age?  His comments perpetuate mean-spirited, dehumanizing and false stereotypes about aging.  It is almost as if Sagel feels that Dylan has  forfeited his brilliance and talent and suffered the final humiliation by becoming an “old Jewish man.”   This type of humor is on the same spectrum as tasteless jokes about blondes and minorities, which presumably would not be allowed on NPR.

The mission of NPR is to “to create a more informed public — one challenged and invigorated by a deeper understanding and appreciation of events, ideas and cultures.”  NPR is informing the public but what it is telling the public is that ageism is acceptable, entertaining and doesn’t hurt older people.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I argue that older workers are subject to epidemic discrimination because of deep-seated animus against aging and false stereotypes about older Americans.  I cite a 2002 study of 68,144 participants of diverse ages that found that age bias “remains in our experience … among the largest negative implicit attitudes we have observed … consistently larger than the anti-black attitude among white Americans.”

Age Discrim. Article Featured in Aging Today

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I am pleased that the American Society on Aging has chosen to feature my article, An Epidemic of Discrimination, about the silent epidemic of age discrimination in the workplace, on its web site and in the January/February issue of its magazine, Aging Today. Founded in 1954, the mission of the ASA is to enhance the knowledge and skills of those who work to improve the quality of life for older adults and their families.  The association, based in San Francisco, includes a diverse array of professionals, educators, administrators, policy makers, business people, researchers and students.  I argue in the article that rampant, unaddressed age discrimination against workers in their 40s and 50s – particularly during the Great Recession – has eroded their financial security during their retirement years.  This is one of the themes I explore in my new book, Betrayed: The Legalization of Age Discrimination in the Workplace.