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.

The authors say older workers are being encouraged to work longer but can’t find jobs due to age discrimination.

“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. [Read more…]

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!

Appeals Court Rules Job Applicants Can’t Sue for Systemic Age Discrimination

A federal appeals court has ruled that job applicants cannot sue an employer under the Age Discrimination in Employment Act for promulgating policies and practices that discriminate in hiring on the basis of age.

The ruling is a major setback for victims of age discrimination in hiring, which for years has been widespread, overt and unaddressed.

The full 11th Circuit of Appeals in Atlanta, in a ruling dated Oct. 5, ruled the Age Discrimination in Employment Act of 1967 “makes it clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no “status as an employee.’” The ruling overturns an earlier 2-1 ruling by a three-judge panel holding that the ADEA permits older job applicants to sue for age discrimination in hiring. The 11th circuit has jurisdiction over cases in Alabama, Florida and Georgia.

The ruling graphically illustrates the lack of protection afforded to older workers compared to victims of other types of employment discrimination. Job applicants are permitted to file so-called disparate impact lawsuits under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin.

The ruling came in the case of Richard M. Villarreal who, beginning at age 49, applied seven times over the Internet for a position as a territory manager at R.J. Reynolds Tobacco Co.   He was never hired and he was never told why his applications were rejected.

The 11th Circuit’s ruling deprives older job applicants of a way to counter modern-day age discrimination in hiring, including the use of covert Internet screening tools.

After being contacted by a whistle blower, a  law firm told Villarreal that Reynolds had contracted with two recruiting firms to develop internet screening tools to target young job applicants for hire and screen out applicant having eight to ten years of experience.

Villarreal filed suit in 2010 against Reynolds and a staffing firm, Pinstripe, Inc., alleging disparate treatment and disparate impact discrimination.

The disparate treatment theory requires the plaintiff to prove the employer engaged in intentional age discrimination whereas the disparate impact theory argues the employer adopted a seemingly neutral policy or practice that had a disproportionate and adverse impact upon older job applicants. The plaintiff is not required to show intentional discrimination under the disparate impact theory.

Villarreal’s case now hangs by a thin thread.

The appeal’s court affirmed the lower court’s dismissal of Villarreal’s disparate treatment claim because it was filed after the statute of limitations expired. The Court agreed that Villarreal failed to exercise “diligence’ because he did not ask Reynolds why he was not hired in 2007. The appeals court remanded the case back to the lower court so Villarreal could pursue a  “continuing-violation” theory that would render his 2007 claim timely.

The appeals court said the ADEA does not permit job applicants to use the so-called disparate impact theory, which challenges company-wide employment policies and practices that adversely affect older job applicants. The court refused to defer to the Equal Employment Opportunity Commission’s argument that the ADEA does permit disparate impact lawsuits “because we do not defer to an agency’s interpretation of a statute when the text is clear.”

The ruling eliminates any means of redress for thousands of older job applicants who applied for positions at Reynolds only to have their applications diverted into a digital trash can sight unseen.

The case is Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602,(11th Cir.).