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The EEOC’s Surprising New Fan – The U.S. Chamber of Commerce

After years of criticism, the U.S. Chamber of Commerce  is now applauding the EEOC for focusing on “compliance assistance” rather than enforcement and litigation.

Randel K. Johnson, a senior vice president of the Chamber, “commends” the EEOC for “identifying efforts to focus resources on compliance assistance” in a letter submitted to the EEOC in connection with a draft of the EEOC’s proposed new strategic plan for 2018-2022. The Chamber is a conservative, profit-making group that lobbies the legislature and federal courts on behalf of business interests. It consistently opposes pro-labor measures.

The EEOC  is seeking comment on a draft of its proposed strategic plan until 5 p.m .ET on January 8, 2018.  To weigh in, go here or to https://www.regulations.gov/document?D=EEOC-2017-0005-0001.

In the letter, Johnson refers to the Chamber’s 2014 report to Congress in which the Chamber criticized the EEOC for  “enforcement and litigation abuses.” The Chamber’s report came at a time when the EEOC was litigating the fewest number of cases in modern history and had completely ignored a major increase in age discrimination cases during and since the Great Recession.  In 2013, the EEOC had  filed 147 lawsuits, compared to 416 in 2005.  But the Chamber’s report was an effective public relations ploy and seems to have had a big impact on the EEOC, which reduced its litigation efforts even further.  The EEOC filed only 114 lawsuits in 2016 (of which only TWO contained age discrimination claims). [Read more…]

Age Discrimination in Employment Became More Visible in 2017

Victoria A. Lipnic, the acting chairperson of the EEOC, earlier this month called for a “thorough review” of the Age Discrimination in Employment Act of 1967 (ADEA).

The chairperson of the U.S. Senate Special Committee on Aging, Sen. Susan Collins, questioned why age discrimination is treated differently under the law than discrimination on the basis of race, sex, religion, color and national origin.

The above statements represent a sea change in thinking about age discrimination in employment, which has long been epidemic, unaddressed and invisible in American society.

It is also significant that an attorney for the AARP suggested in 2017 – for the first time – that the ADEA is not up to the task of addressing age discrimination. The AARP claims to advocate for Americans over the age of 50 but has had little impact on age discrimination in employment in the past 50 years, while reaping billions from licensing deals with medical, internet and travel providers that exploit its supposed 38 million membership base  Over the years, the AARP issued press releases (a.k.a.marketing materials) about surveys and studies and a tiny AARP legal advocacy team filed occasional lawsuits or “friend of the court” briefs in age discrimination cases.  But the AARP never put its money where its mouth is, which raises questions about whether the AARP’s advocacy mission is overwhelmed by a conflict of interest with AARP’s mammoth profit-making enterprise.

When I began writing about age discrimination in 2011, there was virtually no understanding that the ADEA actually legalizes a broad swatch of age discrimination that is illegal under Title VII of the Civil Rights Act o 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin.    In my groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in Employment, I painstakingly documented how that older workers are second class citizens under U.S. law, deprived of their right to equal protection under the U.S. Constitution. Not only is the ADEA far weaker than Title VII but the U.S. Supreme Court accords laws that discriminate on the basis of age its lowest level of review – mere rationality –  far lower than laws that discriminate due to race or sex.  As a result of legal inequality, older workers (primarily women)  are driven from the workforce,  disproportionately dumped into long-term unemployment, forced to spend down their savings and to take low-paid temp and part-time work. Many have no choice but to retire as soon as they can collect Social Security benefits, triggering a significant reduction in their benefits for the rest of their lives.

While age discrimination in employment remains epidemic and unaddressed, the statements of Lipnic, Collins and the AARP indicate it might be slightly more visible.

If Lipnic and Sen. Collins follow through, 2018 may finally see some progress in addressing the epidemic of age discrimination in hiring.

Certainly, the past year, which marked the 50th anniversary of the ADEA, was nothing to celebrate for older workers. [Read more…]

EEOC Acting Chair says it’s time for “thorough Review” of Age Discrimination in Employment Act

EEOC Acting Chair Victoria Lipnic said Thursday the Age Discrimination in Employment Act of 1967 – which turns 50 Friday – “deserves a thorough review to insure it is meeting the needs of today’s workforce.”

In addition, she said, “We need a cultural awakening. Instead of  negative expectations, how about recognizing the positives? Age diverse teams and cross-generational mentoring produce real benefits for both workers and employers.”

“Utilizing the talent of everyone, regardless of age, is good business. This is talent that our economy cannot afford to waste. . .” – Lipnic

Lipnic was not specific about why she believes the ADEA deserves a thorough review; how the ADEA may be failing to meet the needs of today’s workforce; and whether the ADEA will indeed get the thorough review that it deserves.

Lipnic focused on what she characterized as the ADEA’s success. She noted the ADEA was adopted in 1967 when “age discrimination was blatant. Workers over age 45 were barred from many jobs based solely on their age and mandatory retirement was commonplace for those in their 60s. Since then the ADEA has largely stopped openly discriminatory practices. But age discrimination is still too common and often accepted.” She said older workers continue to confront negative stereotypes and that age discrimination deprives them of their dignity and financial security.

But is the ADEA a success?

Others would point to evidence that age discrimination remains blatant, epidemic and unaddressed 50 years after the ADEA’s adoption.

Older workers are (and have been for years) significantly underrepresented in the high-tech industry while Silicon Valley employers unabashedly word job advertisements to discourage older applicants. Some, for example, advertise to hire “digital natives” or specify a maximum number of years of experience.

The U.S. government is openly engaged in blatant age discrimination in hiring through the Pathways Recent Graduates program, which since 2012 has barred older workers from applying for almost 100,000 jobs.  When former President  Barack Obama signed an executive order in 2010 establishing the program, he sent a message to private sector employers that age discrimination was reasonable, necessary and would be overlooked. And it was overlooked.

The ADEA’s 50-year-old mandatory retirement provision still exists for a large swath of workers, including public safety workers who are forced to retire with fat pensions and then go on to perform the same work in private industry. Some also might argue that while formal “mandatory retirement” rules are largely gone, older workers are effectively pushed out of the workforce by age discrimination. Older workers disproportionately languish in long-term unemployment and end up in temp, part-time or low wage work. Many are forced to retire as soon as they become eligible for Social Security, which results in lower Social Security benefits for the rest of their lives. Research shows that older women suffer the highest rate of age discrimination in hiring.

Lipnic did not address criticism that the EEOC failed to aggressively enforce the ADEA during and since the Great Recession, has ignored blatant age discrimination in hiring by Silicon Valley and the federal government,  and itself discriminates against older workers in administrative decision-makings and in hiring.

Finally, Lipnic said the basic purpose of the ADEA is that “ability matters, not age.” However, that’s not what President Lyndon B. Johnson said after he signed the ADEA into law. Johnson said:

The ADEA “does require that one simple question be answered fairly:  Who has the best qualifications for the job?”

There’s a big difference between “ability” and “qualifications.”  Society traditionally had judged  ability by qualifications.  However, the EEOC issued at least two decisions this year in which objective qualifications were ignored and hiring decisions were based upon subjective criteria like poise and cultural fit. In one case, the EEOC ruled a middle-aged male hiring officer for the Social Security Administration did not engage in age discrimination when he refused to hire a 60-year-old women who did not fall within his perception of “cultural fit.”  Instead, the hiring officer selected five applicants under the age of 40, including many recent graduates.

In my groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA is far weaker than Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. I note that a broad swatch of discrimination that is illegal under Title VII is perfectly legal under the ADEA. Since its adoption, the ADEA has been eviscerated by the U.S. Supreme Court which, among other things, ruled in 2009 that ADEA plaintiffs must show a much higher standard of causation than Title VII plaintiffs. In addition, the ADEA does a poor job of deterring age discrimination because it sharply limits the amount of damages that an ADEA plaintiff can recover. Unlike Title VII, the ADEA does not permit plaintiffs to seek compensatory damages for emotional distress or punitive damages.

 

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.

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