Senate Aging Committee Pledges to Fight Age Discrimination in Employment

At a hearing on Wednesday, leaders of the U.S. Senate Special Committee on Aging vowed to “fix” a 2009 U.S. Supreme Court decision that makes it very difficult for older workers to fight age discrimination in federal court.

Committee Chairperson Susan Collins, R-ME, and Ranking Leader Bob Casey, D-PA,  also acknowledged the upcoming 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), which was signed by President Lyndon B. Johnson on December 15, 1967.

Collins and Casey addressed the Supreme Court’s catastrophic 2009 decision, in Gross v. FBL Financial Services, which raised the burden of proof in ADEA cases far above that of race or sex discrimination cases under Title VII of the Civil Rights Act of 1964.  Since Gross, older workers have been required prove that age discrimination was not just a motivating factor but the decisive factor in an adverse employment action. The Gross decision legalized a broad swath of  discrimination that is illegal under Title VII and sent a signal to employers that age discrimination will be tolerated.

 “For the life of me,” said Collins, “I don’t understand why there is a higher burden for proving that age discrimination was the reason for the adverse employment action … compared to gender, religion, race.”

The legislators expressed strong support for a bill they are sponsoring, the Protecting Older Workers Against Discrimination Act (POWADA), which would essentially restore the status quo with respect to the plaintiff’s evidentiary burden prior to the Gross decision. The bill  has been introduced several times since 2009 but has never made it out of committee to a vote. Sen. Casey, who worked on age discrimination cases as an attorney, said it was always hard for workers to fight back against insidious age discrimination but that it is even harder today “because the Supreme Court weakened the ADEA and we’ve got to fix that.”

A witness at the hearing, Laurie McCann, a senior attorney for the AARP, urged the Committee to hold a series of hearings to learn what changes are needed to update and strengthen the ADEA to adequately protect older workers. “The AARP believes that it is well past time to update and strengthen the ADEA so that it can respond to the challenges facing today’s older workers in today’s workplace,” she said.

As I demonstrated in my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, the ADEA was far weaker than Title VII when it was adopted 50 years ago and it has since been eviscerated by the U.S. Supreme Court.  In the book, I proposed repealing the ADEA and making age a protected class under Title VII, as was originally proposed when the passage of Title VII was being debated by Congress.

According to McCann, three in ten near-retiree-age (55-64) households have no retirement savings at all and the median retirement savings of all near-retiree households was only $14,500 in 2013. McCann said financial need is by far the most important reason that workers aged 45-74 work. She blamed age discrimination on persistent negative stereotypes and discriminatory employer recruitment practices, including advertising for “digital natives,” specifying a maximum number of years of experience or limiting recruitment to entry-level positions on college campuses.

Financial need is by far the most important reason that workers aged 45-74 work – AARP.

The committee also issued a report on Wednesday examining the nation’s aging workforce, “America’s Aging Workforce: Opportunities and Challenges.”  The report states the number of Americans over age 55 in the labor force is projected to increase from 35.7 million in 2016 to 42.1 million in 2026, and, by 2026, aging workers will make up nearly one quarter of the labor force.  The business case for hiring, retaining, and supporting older workers is strong, according to the report, but challenges exist – including age discrimination, inadequate training opportunities, working while managing health conditions and disabilities, balancing caregiving responsibilities with work, and preparing financially for retirement.

Collins said U.S. employers are going to need older workers in the years ahead and can’t afford to “discard skills and experience that older workers bring to workplace.”

Another witness, Lisa Motta, 54, from Pittsburgh, Pa., testified about re-entering the workforce in her 50s  after having lost her sight. A former teacher, she now works as a recruiting administrator at PNC Bank. “As America’s workforce grows older, more and more workers will face challenges like these and will need additional supports and accommodations,” Motta said. “They will also need laws in place that ensure that when they walk into an interview they do not face any form of discrimination. When we make it easier for these workers to succeed, everyone benefits.”

Prior to Wednesday’s hearing, the Senate aging committee was criticized for failing to act in the face of the epidemic of age discrimination in the workplace that occurred during and since the Great Recession.

Absent from Wednesday’s hearing was a representative from the U.S. Equal Employment Opportunity Commission (EEOC), which has ignored a major spike in age discrimination complaints dsince 2008 and rampant age discrimination in the federal government, and has issued administrative decisions that reflect a higher standard in age discrimination cases than in race or sex discrimination case.

Feds Are Engaged in Age Discrimination in Hiring on Unprecedented Scale

About 93% of applicants hired for 92,193 federal jobs under the U.S. government’s Pathways “Recent Graduates” Program  from May 2012 to July 2017  were under the age of 40.

Only  7.16% of applicants hired under the program were over the age of 40, according to statistics released by the U.S. Office of Personnel Management (OPM) pursuant to a Freedom of Information request.

The data shows the federal government is engaged in a practice of age discrimination in hiring that dwarfs anything in the private sector and is unprecedented since the enactment fifty years ago of the Age Discrimination in Employment Act (ADEA) of 1967.

The OPM released the data on Nov. 28 pursuant to a FOI request filed by a job seeker who was rejected for a federal job because he was not a recent college graduate. Given that publicity about workers who demand their legal rights often makes them a pariah to potential employers, the job seeker’s identity is not disclosed here.

The federal government is engaged in a pattern of age discrimination in hiring that is unprecedented in modern history.

Barack H. Obama, the nation’s first African-American president, created the Pathways “Recent Graduates” Program through an  executive order in 2010. Obama’s executive order operates as an exemption to the ADEA for federal agencies. The OPM issued regulations and the program began operating in May 2012.

The ADEA prohibits the consideration of age in hiring except in limited circumstances such as when it involves a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business or where the differentiation is based on reasonable factors other than age (i.e,  cost). These were not considerations with respect to the Pathways program.

The OPM at the time disingenuously implied the hiring program did not involve age discrimination because anyone of any age can be a recent graduate.  Of course, the vast majority of recent graduates are and always have been under the age of 40.

The Pathways program  is form of age discrimination under the “disparate impact” theory, which is invoked when a seemingly neutral policy results in a disproportionate negative impact on a protected class.

The U.S. Congress passed the ADEA 50 years ago to protect individuals aged 40 and older from irrational and harmful employment discrimination.  In signing the order, then President Lyndon B. Johnson said the ADEA’s purpose was to insure the most qualified applicant got the job.

Obama signed the order in the wake of Wall Street’s collapse and the Great Recession, when older workers were disproportionately mired in long-term unemployment.

A spokesperson for the OPM said in July that the program doesn’t discriminate because it is legal and the program will continue until Obama’s executive order is rescinded by the sitting President.

Unique Perspective of  Young People

Without offering any supporting data, Obama said the order was needed to remove “barriers” in hiring younger workers caused by civil service regulations and “to achieve a workforce that represents all segments of society.” Obama also said he wanted  to “infuse” the federal government with the “enthusiasm, talents and unique perspective” of young people.

In an Oct. 4, 2011 letter to the OPM, Angela Bailey, a spokesperson for the National Treasury Employees Union, said there can be “no doubt” the Pathways program targeted younger applicants ” by design.” Furthermore, she said, the program was “intended to, and will, discriminate against older applicants” in violation of the ADEA and merit selection principles. She denied the government faced barriers to hiring young people and questioned the government’s competency with respect to recruitment. She said the absence of a cap on hiring under the program was the “single most disappointing aspect” of the program.

The OPM’s Merit System and Accountability Office released incomplete age data from Pathways program last summer that only covered hiring between May 2012 through June 2014. The OPM claimed, falsely, that it lacked more recent figures.  The persistent FOIA applicant filed an appeal and requested  the later statistics.

OPM General Counsel Theodore M. Cooperstein writes that his office “determined that OPM does have additional responsive data regarding Pathways Programs appointees” after 2014.

The federal government is the nation’s largest employer.

Under President Obama’s directive, “A Recent Graduate is an individual who obtained a qualifying associates, bachelors, master’s, professional, doctorate, vocational or technical degree or certificate from a qualifying educational institution,within the previous 2 years …”  5 CFR 362.302(a),

The System is Rigged against Sexual Harassment Victims Inside and Outside of Congress

Many folks have expressed outrage that the system set up by the U.S. Congress to handle sexual harassment complains lodged against members of Congress is obviously rigged to protect the harassers.

But Congress’ system, while different, arguably is no worse than the system in place for everyone else. Sexual harassment victims are routinely denied justice by our nation’s court system.

According to a 2017  analysis  by legal research service Lex  Machina, very few employees who file federal job discrimination, harassment, and retaliation claims make it to court. From January 2009 through July 2017, Lex Machina found that of 54,810 cases that were filed in federal courts and closed, employees bringing the suits won just 584 times in trial, or about 1% of the total. Employers won 7,518 cases, about 14%. Another 3,883 cases, or 7%, were settled on procedural grounds, mostly dismissing the employee’s claims. What happened to the rest of the cases? According to Lex Machina, no one knows for sure why 78% of cases (42,742 cases) were dismissed by either the employee or both the employee and employer.

VICTIMS OF DISCRIMINATION WON IN COURT JUST ONE PERCENT OF THE TIME

Let’s compare the process in and out of Congress for handling sexual harassment complaints:

CONGRESS: Victims of sexual harassment by members of Congress have 180 days to bring a claim to the U.S. Congress Office of Compliance, the office responsible for handling workplace complaints.

EVERYONE ELSE:   Sexual harassment is a form of discrimination under  Title VII of the Civil Rights Act of 1964. Victims of sexual harassment cannot file a lawsuit until they go through the  U.S. Equal Employment Opportunity Commission’s complaint process, which can take years. Victims typically must file a complaint with the EEOC  within 180 days of the complained of harassment. Federal employees have a much shorter time limit and must file discrimination charges within 45 days from the date of the alleged violation.

CONGRESS: Victims of sexual harassment by a member of Congress are subject to up to 30 days of mandatory counseling, where they are informed of  their rights. They then have 15 days to decide whether to submit their claim to mediation. If they reject mediation or no settlement is reached, there is a 30-day cooling off period before they can file a lawsuit or request an administrative hearing. Victims of sexual harassment by members of Congress could potentially file a lawsuit in a couple of months.

EVERYONE ELSE;  Within 10 days of  the filing of a complaint of sexual harassment, the EEOC sends a notice of the charge to the employer. In some cases, the EEOC asks both the complainant and the employer to take part in mediation.  If one party refuses or mediation fails, the EEOC asks the employer to provide a written answer to the sexual harassment charge. The victim then has 20 days to respond to the answer.

The EEOC orders an investigation, which the EEOC says takes an average average of ten months to complete. At the conclusion of the investigation, the EEOC determines whether there is reasonable cause to believe that sexual harassment occurred.

Typically, the EEOC finds no reasonable cause and the complainant is sent a Notice of Right to Sue the harasser.

In the rare circumstance the EEOC finds there is reasonable cause to believe that sexual harassment occurred, the EEOC tries to reach a voluntary settlement with the employer.  If a settlement cannot be reached, the case is referred to EEOC legal staff, who decide whether the EEOC should file a lawsuit. The EEOC rarely files a lawsuit unless there is evidence of systemic sexual harassment involving multiple victims.

If the EEOC decides not to file a lawsuit, the EEOC sends the complainant a Notice of Right to Sue.

The vast majority of sexual harassment victims either can’t afford to file a federal lawsuit or their case is dismissed pre-trial after the employer files a motion for summary judgment.

Some fortunate complainants have the resources to pay a private attorney a retainer of many thousands of dollars and proceed to federal court.  But most of their cases are quickly dismissed.

A 2006 study by the Federal Judicial Center found that federal judges granted requests by the employer for dismissal of civil rights cases on a motion for summary judgment 73 percent of the time. Moreover, the win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

If a case survives an employer’s motion for summary judgment, it will likely languish in the court system for years.

The truth of the matter is there is no justice for the vast majority of victims of sexual harassment because the system is rigged to protect employers and not workers. That’s true both inside and outside of Congress. And federal judges from privileged backgrounds and posh colleges  have mostly worked for corporations. They can’t empathize with workers and feel these cases are trivial disputes that waste of their precious time.

I recommended in my book, Betrayed: The Legalization of Age Discrimination in the Workplace, that Congress establish a special court to consider employment discrimination complaints, staffed with specialized judges who really care about and understand the issues.

Sexual Harassment: Federal Courts are a Big Part of the Problem

A big part of the problem re. epidemic sexual harassment in the workplace involves the dismissive treatment that federal judges (of both sexes) have historically accorded to victims of sexual harassment.  Here’s a story I wrote a while back that may curl the hair on the back of your neck.  The story involves incompetence by a federal agency and a blood curdling lack of empathy by a female federal judge to women who were subjected to extreme sexual harassment and even assault when they attempted to improve their lot in life by becoming truck drivers. PGB

 

JUDGE WHACKS EEOC WITH $4.7 IN FEES AS SEXUAL HARASSMENT CASE OF FEMALE TRUCK DRIVERS CRASHES AND BURNS

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed  by her two “Lead Trainers.”

Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies,  $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision  is brutally unsympathetic to the EEOC and the  255 female trainees and drivers who alleged sex discrimination and harassment against CRST.  She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST.

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.

Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often”  and “You got big tits for your size, etc. . . “  She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain.   “[I] was told that I could not get off the truck until the next day.”  she said.

The other “Lead Trainer”  allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005  “in order to get a passing grade.”

Starke is described as a German who struggles with English. She and her  husband subsequently hired a lawyer and filed for bankruptcy.  They failed  to mention  the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel –  a doctrine that is meant to protect the integrity of the court.  Judge Reade granted the motion.

In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST.

In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

In other cases, Judge Reade said CRST did not have legal (as opposed to real)  notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of  supervisor in that they could not fire the trainees.

Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases –  which appears to be a brand  new requirement that could severely limit the  EEOC in the future. Judge Reade conceded that dismissal was a  “severe” sanction for these complainants.

The EEOC appealed Judge Reade’s dismissal of the case  to the U.S. Court of Appeals for the 8th Circuit.

Appeals Court

In its decision, the  Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.

 The  appellate court generally agreed female complainants claims that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim.  (It was unclear exactly how many times  a worker must be propositioned for sex by a superior to qualify as being harassed.)

However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell,  who spent  seven days on the road with a male co-driver who asked her on three to five occasions to drive naked;  refused her request to stop at a truck stop so she could go to the bathroom,  ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as  “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.”  Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving  his urine receptacles about the truck’s cab for her to clean up.

The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court.  That brought Ms. Starke case back into the litigation.

After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke.

The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.

Which left Ms. Jones as the sole surviving plaintiff.

Even though  the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

The final award to CRST is actually larger than the earlier award because Judge Reade included fees and costs expended by CRST related to the appeal.

Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.