EEOC Official Blasts Age Discrim. in High Tech Industry

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 Cathy Ventrell-Monsees, senior counsel for the Equal Employment Opportunity Commission (EEOC),  singled out the problem of virulent age discrimination in the high tech industry during a talk Tuesday before the National Press Foundation.

“Some of our offices have made it a priority in  looking at age discrimination in the tech industry,” she told journalists during a question and answer period.

Age discrimination in Silicon Valley has been  open and flagrant for years, and has been the subject of  numerous articles in both this blog and national publications.  A class action age discrimination lawsuit was filed against Google, Inc. on April 22 by software engineer Robert Heath who was interviewed but not hired for a position there in 2011 when he was 60-years-of-age. The lawsuit alleges Google has demonstrated a pattern and practice of violating the Age Discrimination in Employment and the California Fair Employment and Housing Act.EEOC.TechsYoungWorkforce

Vontrell-Monsees  observed that 70% of IT staff surveyed by Information Week said they’ve witnesses or experienced age discrimination. In addition, she said, 42% of age 50+ workers in the high tech industry consider age to be a liability in their career – more than double the rate of other industries.  She also pointed to job advertisements in the tech industry for “digital natives,” “recent” or “new” graduates or “Class of 2007 or 2008 preferred”. She said that “there’s no question age discrimination is a challenge for older workers.”

Vontrell-Monsees’ address is significant because the EEOC has ignored an unprecedented increase in age discrimination claims that began with the Great Recession. In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that the number of age discrimination claims jumped from 19,103 in 2007 to an all-time high of 24,582 in 2008. Meanwhile, the number of lawsuits filed by the EEOC with age discrimination claims declined from a modern-day high of 50 in 2006 to a low of seven lawsuits in 2013. This despite the fact that age discrimination catapults older workers into long-term unemployment, forced retirement, and poverty or near poverty in their old age. Having acknowledged the problem, one can only hope the EEOC will now do something about it.

Here are some of other points made by Ventrell-Monsees in her address:

  • Unemployment for people aged 50 and older more than doubled to 7.6%from 2007 to 2011.
  • Older workers remain unemployed for the longest periods – 36 weeks in 2011 compared to 26 weeks for younger job seekers.
  • More than one-third of all unemployed older workers in 2011 had been unemployed for more than a year.
  • The percentage of age discrimination cases filed by women jumped from 32 percent in 2007 to 45 percent in 2013. She added that proving age discrimination in court is difficult.

AARP Profits While Older Workers Struggle

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If only business was as good to America’s struggling older workers as it is for the AARP.

In 2010, the AARP had assets totaled $2,546,636,000. According to its 2013 Financial Report, the AARP’s assets had grown to $3,026,971,000 in 2012 and $3,393,94,000 in 2013.  By 2014,  the AARP’s  assets totaled $3,585,853,000.

That’s an 40.8 percent rise since 2010.

Meanwhile, a recent AARP survey showed that half of the people ages 45 to 70 who experienced unemployment during the past five years are not currently working. Fifty percent of survey respondents reported they were either unemployed or had dropped out of the labor force. Among those who had become reemployed, nearly half said they were earning less than in their previous jobs.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show indisputably that older workers are suffering from unaddressed and epidemic age discrimination. The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court. Older workers have far less protection than their counterparts under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin.  My attempts to interest the AARP in working to ensure that older workers obtain equal justice under the law have met a solid wall of disinterest. This, despite the fact that age discrimination in the workplace denies millions of older Americans the right to work and dooms them to poverty or near poverty in their old age.

The AARP calls itself the leading advocate for Americans aged 50 and older. But the AARP also sells the most popular “Medigap” plans in the United States, AARP Medicare Supplement Health Insurance Plans, as well as a huge array of travel services, high tech products and … you name it.

 The AARP’s for-profit enterprise, AARP Services, Inc., is  essentially marketing access generated by its non-profit entity, the AARP Foundation, to 37 million of America’s oldest consumers.

Is it really too much to ask the AARP to use some of its riches to do more than just take surveys  – to act to insure that older workers are treated equally under the law, and not subjected to bogus restructurings and downsizings, chronic unemployment and poverty in old age?  Fifty years of inequality is enough.

High Court Backs Religion

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The U.S. Supreme Court ruled Monday that an employer may be engaging in illegal discrimination when it implements a neutral policy that fails to accommodate a job applicant’s religious practices, whether or not the applicant has requested a religious accommodation.

The ruling expands protection for religious minorities in the workplace.

Samantha Elauf, a Muslim woman, was denied a sales associate position at an Abercrombie store in Tulsa, Okla., in 2008 because she wore a black scarf or hijab during her interview. A hiring official rated Elauf as qualified but asked Abercrombie’s district manager if Elauf’s hijab violated Abercrombie’s “Look Policy,” which prohibited employees from wearing “caps.” She had not discussed the hijab with Elauf but told the manager that she thought it was being worn for religious reasons. Elauf was not hired after the manager said the policy prohibits all headwear, religious or otherwise.

The EEOC sued Abercrombie on Elauf’s behalf, arguing the store violated Title VII of the Civil Rights Act of 1964. Title VII requires employers to make exceptions to certain policies, such as dress code, where religion is concerned, provided the accommodation doesn’t incur an “undue hardship on the conduct of the employer’s business.”

The Supreme Court ruled 8 to 1 in Equal Employment Opportunity v. Abercrombie & Fitch Stores that Title VII “requires otherwise-neutral policies to give way to the need for accommodation.”

The Court said job applicants do not have to specifically ask for a religious accommodation or prove that an employer had actual knowledge of the applicant’s need for a religious accommodation. 

The Court said plaintiffs need only show that their need for an accommodation was a “motivating factor in the employer’s decision” not to hire them.

The decision represents a defeat for the U.S. Chamber of Commerce, which supported Abercrombie in the litigation, but it is not believed to be much of a departure for the Court, which has made religious freedom a priority. The Court last year ruled 5-4 that the government could not require the owners of private companies like Hobby Lobby to provide female workers with contraceptive coverage under the Affordable Care Act when it violated their religious beliefs.

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Still Far From a National Workplace Bullying Solution

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It is an interesting phenomenon that workplace bullying advocates seem to have a hard time working together.

In fact, they don’t, which is one reason why after so many years there is no national solution on the horizon to the problem of workplace bullying.

The Workplace Bullying Institute, chaired by Gary Namie, has been touting a law written by Suffolk University Professor David Yamada since 2002. The so-called Healthy Workplace Bill  (HWB) has been considered by more than 20 states but it has only been passed, in small part, by Tennessee. Unfortunately, Tennessee’s version of the HWB was so unfortunate  that it was promptly disowned by Namie.

Even if the HWB was passed by some states in an unaltered form, it is almost inconceivable that it would be adopted by competitive, pro-business states where workers are the most vulnerable to abuse. And some say it is fortunate that the HWB has fared so poorly, because it offers scant real protection to targets of workplace bullying, especially when compared to anti-workplace bullying laws and legislation passed in other countries.

Nevertheless, the Workplace Bullying Institute has succeeded in bringing attention to the problem of workplace bullying through its state-by-state campaign.

I was part of the formation of the National Workplace Bullying Coalition (NWBC) a couple of years ago.  Some of the group’s members had been put off by Namie, a seemingly gruff and territorial man who has been called a bully himself by a competitor.  Despite this, the NWBC reached out to Namie and Yamada with no success.

From my perspective, it is unfortunate that the NWBC finally settled on a vague mission statement to “work with legislatures at the local, state and federal levels to refine the definition of workplace bullying and implement laws to protect workers’ rights to dignity at work.”  That’s a type of frustrating all things to all people approach that reminds me of the “I’d like to buy the world a coke” commercial for world peace.

Yet, the NWBC has made progress by encouraging the EEOC to study the issue of general workplace harassment. One of the NWBC board members, Professor Jerry Carbo, is a member of an EEOC Select Task Force recently formed by EEOC Commissioner Jenny Yang. The group is expected to issue a report that sheds insight into and offers suggestions to address workplace bullying.  This is an important step.

My area of focus is and always was to achieve a national solution to the problem of workplace bullying.  I believe the answer lies in a combination of health and safety regulations enforced by the Occupational Health and Safety Administration and in a federal law that protects all workers from a hostile workplace environment. I advocated a national solution when I wrote my book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace and I still believe it is the only realistic way to protect American workers.

For years, I have received emails every week from good, hard-working Americans who are being viciously bullied on the job and who are suffering severe mental and physical distress. Workplace bullying is a widely acknowledged form of workplace violence. Other industrialized countries took steps years ago – in some cases decades –  to address the problem of workplace bullying. And yet workers in the United States, who have lost so much in recent years, still have virtually no protection, especially if they are poor or middle class.

Maybe it is naive to think we could be more effective if we worked together to demand a national solution? But workers need a real solution and they need it today, not in the distant future.