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.

 

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 “

The EEOC Veered Sharply Away from Litigation in 2016

In 2016, the EEOC filed 34% fewer lawsuits than it filed in 2015, and there were drastic declines in some areas, notably an 85.7% decline in age discrimination lawsuits.

This is not good news for victims of discrimination in employment. Without the gravity and resources of the EEOC behind them, many individual discrimination victims are puny “Davids” facing international corporate “Goliaths.”

It appears the steep litigation decline – from 174 lawsuits in 2015 to 114 in 2016 –  is the result of the EEOC’s new emphasis on resolving individual complaints through voluntary mediation. However, mediation is a far better deal for employers than workers. For employers, mediation is a form of free dispute resolution that gets the EEOC off their back and eliminates the risk of massive damages and fees in a jury trial. For workers, mediation generally results in a modest financial settlement at best.

Many workers, especially those without counsel, do not fully understand their rights and the employer’s potential liability, or they cannot realistically fight for their rights because they have no money to wage a protracted court battle.

Mediation is a far better deal for discriminatory employers than it is for discrimination victims.

Here are the types and number of lawsuits filed by the EEOC in 2016 compared to 2015 and the percentage increase/decrease.

  • Age Discrimination in Employment Act of 1967; Two lawsuits in 2016, compared to 14 in 2015 (a decrease of 85.7%).
  • Title VII of the Civil Rights Act  of 1964 (race, sex, religion, color and national origin): 46 lawsuits in 2016 compared to 83 in 2015 (a decrease of 44.5%).
  • Americans with Disability Act: 36 lawsuits in 2016 compared to 53 in 2015 (a decrease of 32%).
  • Equal Pay Act: Five lawsuits in 2016 compared to 7 in 2015 (a decrease of 28%).
  • Genetic Information Non-Discrimination  Act  Two lawsuits in 2016 compared to one in 2015 (an increase of 50%).

[Read more…]

Bloomberg Articles on Age Discrimination in Employment

I am excited to be quoted in a series of excellent articles addressing the problem of age discrimination in employment published today by Bloomberg’s Daily Labor Report.

The main article, by Patrick Dorrian, J.D., is Talkin’ ‘Bout All Generations: Workplace Age Diversity Lacking. It touches upon themes that I have explored  in my book, Betrayed: The Legalization of Age Discrimination in the Workplace,  and in this blog and my other blog devoted exclusively to age discrimination. These themes include actions by the Obama administration and Secretary of Labor Thomas Perez that have encouraged age discrimination in hiring, both in the federal government (our nations largest employer) and nationwide.

A second article, Many Wrinkles in Age Diversity, addresses how age discrimination uniquely and negatively effects women both when they are in the workplace and later, when they are living in poverty or near poverty on Social Security.

It is encouraging to see a national media outlook address these real problems that have affected millions of older Americans for years – problems that have been unaddressed even by supposed advocates for this population group.

Ultimately, nothing will or can change until Americans become aware of the prevalence and consequences of irrational and harmful age discrimination in employment which, by the way, they subsidize through their tax dollars in higher social welfare costs.

Thumbs up to Bloomberg!