Outfoxed: Carlson Settles for $20 Million & Apology

Former Fox News Anchor Gretchen Carlson  has received among the largest payouts in history  – $20 million – to settle a sexual harassment case.

Ironically, the case was settled not by the defendant, former Fox News chairperson Roger Ailes, but by his former employer, 21st Century Fox, the parent company of Fox news.  Ailes, 76, won’t pay a dime. (Not only that,  Ailes received a $40 million payout from Fox when he left his job under pressure in July.)

It is speculated Tuesday that Carlson, a former Miss America,  secretly tape recorded Ailes, whom she alleged refused to renew her contract after she refused to have sexual relations with  him.

The largest sexual harassment award in history is believed to have occurred in 2011 when a federal jury in Tennessee awarded $95 million to Ashley Alford, a young employee who was  sexual  harassed and physically assaulted by a supervisor  at the rent-to-own company, The Aaron’s Inc. The award included $15 million in compensatory damages and $80 million in punitive damages. U.S. District Court Judge J.  Michael Reagan subsequently reduced  the amount the jury awarded Alford on the sexual harassment claim from $4 million to $300,000 pursuant to a federal statutory cap. on damages under Title VII of the Civil Rights Act. Judge Reagan also vacated $50 million of the punitive damages award. That still left Alford with about $41 million.

In addition to the monetary award, 21st Century Fox issued a press release stating:  “We sincerely regret and apologize for the fact that Gretchen was no treated with the respect and dignity that she and all of our colleagues deserve.”

Meanwhile, two other women at Fox reportedly were offered settlements after complaining about sexual harassment.

Carlson’s complaint appears to have prompted the sudden departure of Fox personality Greta Van Susteren from the network on Tuesday. Susteren had publicly defended Ailes and accused Carlson of retaliating against Ailes after  being fired due to poor ratings.

Carlson received little support generally from her former Fox colleagues. In addition to Van Susteren, more than a dozen top personalities at Fox News including Sean Hannity, Neil Cavuto and Kimberly Guilfoyle defended Ailes against claims of sexual misconduct.

EEOC Pitches Lack of Diversity in the Tech Industry as an “Innovation Opportunity”

*NOTE:  The EEOC issued a report at its meeting (discussed below) that completely ignored age discrimination except for a footnote stating that more research on age discrimination is needed. According to the report,  compared to overall private industry, the high tech sector employed a larger share of whites (63.5 percent to 68.5 percent), Asian Americans (5.8 percent to 14 percent) and men (52 percent to 64 percent), and a smaller share of African Americans (14.4 percent to 7.4 percent), Hispanics (13.9 percent to 8 percent), and women (48 percent to 36 percent). Ed.

After more tGoogle_Mountain_View_campus_dinosaur_skeleton_'Stan'han a decade of ignoring rampant and blatant age discrimination in the tech industry (and everywhere else), the issue appears has surfaced on the EEOC’s radar screen. But it is not  seen as an overly-ripe target for enforcement of older workers civil rights. Rather, it is couched as an “innovation opportunity.”

The EEOC has announced it will hold a meeting in Washington, DC, on Wednesday entitled, “Innovation Opportunity: Examining Strategies to Promote Diverse and Inclusive Workplaces in the Tech Industry.”

While it might be hoped the EEOC would actually enforce the Age Discrimination in Employment Act (ADEA), the Agency deserves credit for acknowledging that age is a diversity issue, which is something that Silicon Valley  stubbornly refuses to acknowledge. Also, the EEOC deserves major kudos given that the Obama administration  for the past eight years, has treated older workers  like an obstacle to diversity and not a group that deserves equal rights under the law.

One of the invited panelists for Wednesday’s meeting is an attorney from the AARP Foundation, which is an organization that the EEOC apparently entrusts to be polite about the EEOC’s regulatory lapses during the past decade. The AARP Foundation almost has to be polite because it’s mothership is the the monolithic AARP, which also has done little to advocate for older workers by combating age discrimination. Moreover, the AARP is reaping billions  from the sale of Medigap health insurance after having lobbied to keep Medigap reforms out of Obamacare. The AARP receives  an estimated 4.95 percent of every dollar that seniors spend on its Medigap plans. These fees are reportedly double the income the AARP receives from “membership:” dues.  A study by the Kaiser Family Foundation found that Medigap reforms blocked by the AARP would have saved the average senior as much as $415 in premiums per year.

It is perhaps not surprising that my name does not appear on the EEOC’s guest list.

My groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, criticizes the systemic inequality of older workers in American society, especially in Silicon Valley. I note that the ADEA was weak to begin with and  then was further eviscerated by the U.S. Supreme Court. Meanwhile, Congress has done nothing to insure equal rights for older workers. I also  criticize the EEOC  for failing to combat an massive increase in age discrimination complaints since 1998 and I point out that President Barack Obama signed a devastating executive order in 2010 that actually legalizes age discrimination in federal hiring.

I may be alone in the U.S. in reporting that the EEOC itself stands accused of engaging in systemic age discrimination in hiring

Earlier this year I  reported that the U.S. Chamber of Commerce  filed a friend-of-the-court brief in an age discrimination case in which it defended employers who practice age discrimination in hiring by noting that the EEOC does the very same thing.  The Chamber cited the EEOC Attorney Honor Program, which employs in “permanent” positions “third-year law student[s], “full-time graduate law students[s],” and “Judicial Law Clerk[s] whose clerkship must be [their] first significant legal employment following [their] graduation.”  The EEOC states on its web site that graduates of the Honor Program go on to serve as trial attorneys or Administrative Judges in the EEOC’s District Offices. Since the vast majority of recent law clerks and law and graduate students are under the age of 40, it is not a stretch to conclude that the  EEOC program has a disparate impact upon attorneys who are aged 40 and above.  That’s supposed to be illegal under the ADEA.

Criticism of an administration or federal agency often is dismissed as partisan politics.  I do criticize  the Obama administration, the U.S. Supreme Court and Congress for abandoning older workers during the worst recession in 100 years.  Millions of older Americans remain subject to pervasive discriminatory hiring practices and bogus layoffs and restructurings. I do not argue, however, that the Republicans would have done better than the Democrats. I simply don’t think they could have done much worse. That’s why I support Bernie.

Why Things Keep Getting Worse for Workers

Author Thomas Frank in his new book, Listen Liberal: Or, What Ever Happened to the Party of the People, posits that wealth equality worsened during the Obama administration because the so-called party of the working class has been co-opted by a “professional class” of  hyper-educated elite.

He argues –  very convincingly in my opinion – that America is now governed by two political parties, neither of which represents the interests of average workers. This, he says, is why Americans are flocking to outsider Presidential candidates like Donald Trump and Bernie Sanders.

Franks says the Republican Party represents the rich while the Democratic Party represents a  hyper-educated professional elite, many of whom hail from exclusive Ivy League universities.  The class includes a broad swath of professionals, from lawyers and doctors to economists and Internet entrepreneurs.

The Democratic professional class is  liberal on cultural issues, writes Frank, but  NOT when it comes to worker rights.

He cites President Bill Clinton’s strong support for NAFTA, which served the interests of professionals at the expense of  average workers.  He said NAFTA further dis-empowered workers, already reeling from anti-union policies, because it gave companies incentive to pick up stakes and move.

Frank criticizes Obama for bailing out the banks during the Great Recession without prosecuting Wall Street law breakers. He notes the Roosevelt Administration moved frequently to break up big banks and fired Wall Street executives.

Frank also contends that  “Big Medicine” and “Big Learning” are slowly bankrupting America.  With respect to “Big Learning,” he said tuition rates have risen exponentially while more and more PhDs are forced to  work as non-tenured adjunct professors earning about $1,500 per course.

In an excellent interview by Kathy Kiely on Bill Moyers web site, Moyers & Company, Frank calls Bernie Sanders a badly needed voice of discontent in the Democratic party, the only one who is raising issues about monopoly and anti-trust, fair trade, inadequate health care, out-of -control college tuition, etc.

If Sanders is not a candidate in November, Frank said he will vote for Hilary Clinton over Trump, though unenthusiastically.

‘Transgender’ Now Accorded More Protection than ‘Age’

There is a national movement going on right now to boycott states that force transgendered individuals to use the restrooms of their biological sex rather than their chosen identity.

Many companies, including  Target, have denounced  laws that restrict  a transgender individual’s choice of bathroom as sex discrimination.  Some major American corporations  have threatened to withdraw from North Carolina because it has limited the right of transgendered individual to use their bathroom of choice. Moreover, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit recently voted 2-1 to uphold the  U.S. Education Dept.’s position that it constitutes illegal sex discrimination to exclude transgender students from the bathrooms of their chosen gender identities.

According to the most frequently cited estimate, 700,000 people in the United States, or about 0.2 to 0.3 percent of the population, identify as transgender.

Compare this to the millions of older workers who each year are subject to epidemic and overt age discrimination in employment with nary a hint of protest or outrage from anyone, including organizations that purport to advocate for older Americans and civil rights.

 Indeed, at this point, transgender people technically have greater rights under the law than older workers to be free from invidious discrimination.

The U.S. Equal Employment Opportunity Commission contends that trangendered individuals are protected by Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, sex, religion, national origin and color. By contrast, age discrimination falls under the Age Discrimination in Employment Act of 1967, (ADEA), which permits “reasonable” age discrimination by employers.   Title VII also contains penalties that are far more onerous than those of the ADEA.

Why have the rights of millions of older Americans to be free from irrational and harmful employment discrimination been ignored for 50 years?

The rights of transgendered individuals are at issue today because advocates in  the gay and lesbian communities and in the entertainment community have taken a public stand to combat ignorance and prejudice against transgendered individuals. This has essentially forced major corporations to adopt policies prohibiting discrimination against the transgendered so as not to be seen as endorsing transgender discrimination.

Alas, the same is not true for older workers.

No one is demanding that Congress  or the courts accord equal rights to older workers under the law, including the AARP, the EEOC  and the American Civil Liberties Union.  Meanwhile, the same corporations that demand rights for the transgendered are engaging in systemic age discrimination.

The plight of older workers began in 1964  when Congress refused to include age as a protected class in Title VII.  After three years of lobbying by business interests, Congress passed the ADEA, a severely watered down version of Title VII that  has exposed generations of older Americans  to wholesale and perfectly legal age discrimination in employment, especially in hiring.

There also is little public sympathy for older workers.  Stereotypes about older people are profoundly negative  (i.e. rigid, feeble, depressed). Older workers often are seen by younger workers as impediments to job advancement and limited resources. Employers, including the U.S. government, treat older workers like an obstacle to a more diverse workforce. Moreover, researchers say many people subconsciously associate aging with death and disease.  There also is little understanding about the long-term and severe impacts of age discrimination, which condemns millions of women  to decades of poverty in their later years.

Of course, these observations are not meant to begrudge transgender individuals their basic human right to be treated with dignity and respect but simply to point out that older Americans too deserve to be free from invidious and harmful  discrimination.  If every type of irrational and harmful  discrimination is treated with the same degree of condemnation and outrage, there will be far less discrimination against all Americans, including transgendered individuals.