Read All About It! NPR Discovers Age Discrimination

A recent tweet from NPR’s reporter on aging, Ina Jaffe:

“Age discrimination is real.”

Isn’t it great that NPR has finally discovered that age discrimination is real?

I’m an attorney and former judge who wrote a book about age discrimination in 2014 called, Betrayed: The Legalization of Age Discrimination in the Workplace.  In it, I analyze, in great detail, the failings of the Age Discrimination in Employment Act of 1967. I show indisputably that older workers are second class citizens under federal law and thus vulnerable to age discrimination in employment. I also document the complete failure of all three branches of government to counteract the predictable and overwhelming wave of age discrimination against older workers during and since the Great Recession.

I sent a courtesy copy of the book to NPR, which ignored it (as it has the problem of age discrimination in employment generally).

Hallelujah, after all these years, NPR and Ina Jaffe finally have discovered that age discrimination is real.

The problem with writing about age discrimination is that many media organizations ignore the topic because they don’t think older workers are important or cool.  I’m used to laboring in obscurity but I find it aggravating that a national radio network that claims to be a major news outlet has little interest in or understanding of a problem that condemns millions of older workers – mostly women – to poverty in their old age.

Of course, many media organizations also  grossly discriminate  on the basis of age – with almost complete impunity due to the failings of the ADEA;  Hence Google‘s mea culpa about race and sex discrimination without any recognition of the serious problem of age discrimination at  Google and, generally, Silicon Valley. These media organizations ignore age discrimination in employment because they don’t want outsiders to examine their own practices.

It’s hard to know why NPR has finally turned its attention to aging. Possibly its because of a legal opinion issued by the 11th Circuit Court of Appeals in Atlanta that job applicants have no protection from calculated and systemic age discrimination in hiring.  That decision, which affects Georgia, Florida and Alabama, is so patently outrageous that it has gotten some attention from other media outlets.

Still, there have been many legal decisions in recent years that NPR has ignored which have contributed to the legal inequality of older workers compared to victims of discrimination on the basis of race, sex, religion, national origin and color.

I guess we should just be thankful that NPR has finally noticed that AGE DISCRIMINATION IS REAL.

 

Judge Gorsuch and the ‘Frozen Trucker’ case

I write a lot about very bad court decisions. Here’s one from U.S. Supreme Court nominee Judge Neil Gorsuch that rivals the very worst.

Judge Gorsuch wrote a dissent in Transam Trucking, Inc. v. Administrative Review Board, U.S. Department of Labor in which he said a trucker should be fired because he left a big truck rig with frozen brakes that was stranded by the side of the road late at night in frigid weather, three hours after his employer failed to arrive to fix the truck. The cabin was unheated and the trucker was showing signs of hypothermia. He unhooked the trailer and drove the cab to a gas station where he warmed up, and then he returned. He was fired.

“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that” wrote Gorsuch.”There’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”

Do we really need a law saying you can save your life if its 14 degrees below zero,  your torso is numb and your speech slurred, and your employer has failed to rescue you after several hours time?

Under the questioning of U.S. Sen. Al Franken (D-Minn), the true absurdity and senselessness of Judge Gorsuch’s dissent is on full display. (See below)

Sen. Dick Durbin (D-IL) also noted at today’s confirmation hearings: “According to [the truck driver’s] recollection, it was 14 degrees below. So cold, but not as cold as your dissent, Judge Gorsuch.”

It’s hard to imagine Judge Gorsuch, a Georgetown Prep/Harvard Law School grad, sitting in that freezing, stranded big rig late at night. But  one wonders why he can’t empathize with the poor schmuck who chose to save his life rather than die alone for no good reason just because his employer told him that he couldn’t leave. Gorsuch’s dissent leaves one  wondering if Judge Gorsuch is just another member of the American aristocracy who is ascending to the imperial throne, where he will spend the rest of his life showing a complete lack of empathy and regard for the right of workers to be treated with basic dignity and respect in the workplace.

How Can the U.S. Senate Special Committee on Aging Be So Clueless about Age Discrimination?

Why is it left to the Attorney General of Illinois to address the national problem of blatant and destructive age discrimination in hiring?

Illinois Attorney General Lisa Madigan this week warned six national career and job search companies that some of their search functions could violate state and federal age discrimination laws. The job sites are Chicago-based CareerBuilder, Indeed, Beyond, Ladders, Monster Worldwide and Vault.

Kudos to Ms. Madigan but this issue demands a national response, especially since the U.S. Court of Appeals for the 11th Circuit in Atlanta  ruled that job applicants are not entitled to the protection of the federal Age Discrimination in Employment Act (ADEA).

Yet, for years, the EEOC and members of the U.S. Senate Special Committee on Aging have sat on their hands while older workers have been mired in chronic unemployment due to  blatant age discrimination in hiring.  Why? The picture became clearer recently when Sen. Robert P. Casey, Jr. of Pennsylvania , a ranking member of the Special Committee on Aging, issued a press release on the committee’s web site that was stunningly uninformed about the ADEA.

Casey announced that he and several other committee members recently “introduced” the Protecting Older Workers against Discrimination Act (POWADA), which would remove  the higher burden workers alleging age discrimination currently face in the court system relative to workers alleging discrimination based on race, sex, national origin, or religion. In actuality, the POWADA  is a proposed law that literally has been languishing in various Congressional committees since  2009, which was  the year that the U.S. Supreme Court issued a ruling establishing the higher burden for age discrimination plaintiffs.

Worse, Sen. Casey says the POWADA would “level the playing field” for older workers. This statement is so profoundly wrong that one must wonder whether the special committee employs any professional staff who know anything at all about the federal law governing age discrimination.

Contrary to what Sen. Casey states, the POWADA would not “level the playing field for older workers.” Not by a long shot.

The POWADA would merely restore the status quo that existed before the 2009 Supreme Court ruling, which raised the burden of proof in age discrimination cases far above that of Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, gender, color and national origin. But even with that long overdue fix, older workers will remain second class citizens under federal law.

For example, the ADEA – unlike Title VII – does not permit victims of age discrimination to collect compensatory or punitive damages.  The damages portion of the ADEA is patterned after the federal Fair Labor Standards Act, which governs minimum wages and overtime. Age discrimination  literally is treated like a violation of federal overtime or minimum wage rules. Victims of age discrimination are entitled only to recover monetary damages (perhaps doubled if they can show willful discrimination). They (and their attorneys) get nothing at all if there are no monetary damages.

Systemic discrimination is treated far more leniently under the ADEA than it is under Title VII. An employer can engage in “reasonable” discrimination under the ADEA, whereas Title VII in race and sex discrimination cases requires an employer to show “business necessity” and employers must use the least discriminatory alternative. The U.S. Supreme Court has ruled that employers who engage in “reasonable” age discrimination do not have to use the alternative that is least harmful to older workers.

Several times in recent years, I have offered to brief the special committee about the inherent problems with the ADEA. I never received a response. I  also sent the committee  a free copy of my book, Betrayed: The Legalization of Age Discrimination in the Workplace. Again, no response. It’s all there. It’s indisputable. But Sen. Casey, I can’t read it for you.

Here’s the bottom line – Passing the POWADA is long overdue. But this does not alleviate the responsibility of the U.S. Senate Special Committee on Aging to take  immediately steps to insure that older workers are accorded equal rights under the law. I have proposed repealing the ADEA and adding age as a protected class under Title VII of the Civil Rights Act.

Economists Say Age Discrimination in Hiring Forces Cuts in Social Security

The Federal Reserve Bank of San Francisco issued an “Economic Letter” this week noting that “current policies” in place to combat age discrimination in hiring may not work, which is increasing the burden on U.S. Social Security and forcing policy-makers to find ways to limit benefits.

The authors, economists David Neumark and Ian Burn, from the University of California and Patrick Button of Tulane University, also say  research shows that age discrimination most adversely affects women who “end up quite poor” at the end of their lives.

According to the authors,  older workers are being encouraged to work longer but can’t find jobs due to age discrimination in hiring.

“Population aging and the consequent increased financial burden on the U.S. Social Security system is driving new proposals for program reform. One major reform goal is to create stronger incentives for older individuals to stay in the workforce longer.  However, hiring discrimination against older workers creates demand-side barriers that limit the effectiveness of these supply side reforms,”  state the authors.

The authors say age discrimination in hiring is creating pressure on policy makers to reduce the age for Social Security benefits and to cut benefits.

The paper touches upon an issue that I raised in my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace.   I note that older workers have suffered from legal inequality for 50 years. The Age Discrimination in Employment Act of 1967, unlike Title VII of the Civil Rights Act of 1964, does not allow victims of age discrimination to collect punitive or compensatory damages. This limits potential damages and makes it  hard to find an attorney. The authors note that current enforcement of our nation’s discrimination laws lies in large part upon private litigation, which “may be ineffective at reducing or eliminating age discrimination in hiring. In particular, the potential rewards to plaintiffs’ attorneys may be too low to encourage sufficient enforcement, because it is difficult to file a class action lawsuit, and economic damages from discrimination in hiring may be small.” they write.

However, the authors do not address other aspects of the ADEA that contribute to legal inequality for older workers and another major driver of age discrimination today – the  EEOC’s virtual  lack of enforcement of the ADEA.

Continued refusal by business to hire older workers “could lead to even harsher policy reforms for seniors… “

The authors write that they do not know exactly why women are most adversely affected by age discrimination ” but it could be because applicant appearance matters in our sample of low-skilled jobs, and the effects of aging on physical appearance are evaluated more harshly for women than for men “