Rough Justice? Case Filed a Day Late

What a difference a day makes.

The U.S. Court of Appeals for the Sixth Circuit in Ohio recently upheld the dismissal of a lawsuit filed by an IRS criminal investigator in 2012 who charged he was denied several promotions because he is a white male. The grounds for dismissal were that Frank Rembisz filed his civil rights lawsuit one day after the expiration of a 90-day statute of limitations.

Here’s what happened.

Rembisz filed a discrimination complaint with the U.S. Treasury Department that he was denied several promotions because he is a white male. The Treasury Department mailed him and his attorney a “final notice” that his complaint was denied on March 15, 2013. Rembisz had 90-days after receipt of the final notice of dismissal to file a civil lawsuit in federal court.

Rembisz filed his lawsuit on June 21, 2013 and the Treasury Department filed a motion to dismiss the case on the grounds that it was filed after the expiration of the 90-day statute of limitations.

Rembisz argued that the case was timely filed because the clock did not start ticking until his attorney received the final notice on March 25, 2013.

A three-judge panel on the appeals court disagreed  and affirmed the lower court’s decision to dismiss Rembisz’ case.

The appeals court wrote that its “presume(s)” the 90-day limitations term began running on the fifth day following the mailing of the right to sue notice. Moreover, the appeals court said the statute of limitations is triggered when the complainant – not his or her attorney – receives the final notice.

Rembisz  also submitted an affidavit from his attorney’s secretary stating that she received the Treasury Department’s notice that Rembisz complaint had been denied on March 22, 2013.

But the appeals court said “that still makes his complaint late by one day.”

The case is Rembisz v. Lew, No. 15-2279 (6th Cir. 2016).

Tipping Point for Age Discrimination in Hiring?

There suddenly are several class action lawsuits pending in federal court that could potentially bring an end to decades of epidemic and unaddressed age discrimination in hiring in the United States.

We may be at a key tipping point.

These cases include:

  • In June 2012,  Richard M. Villarreal filed a federal age discrimination lawsuit in federal court in Gainesville, GA, against R.J. Reynolds Tobacco Co., after learning that Reynolds, working with national staffing agencies, used “resume review guidelines” to weed out the applications of older workers. Villarreal was 49 when he filed the first of a half-dozen applications to work as a territory manager for Reynolds from 2007 to 2010.

The resume review guidelines specified that “desired” candidates had “2-3 years out of college” and told recruiters to “stay away from” candidates with eight to 10 years of experience. Villarreal’s resume and the resumes of hundreds of other older job applicants were dumped into a digital trash can without consideration.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta last year split from other federal circuits and ruled  that job applicants can file lawsuits under the Age Discrimination in Employment Act (ADEA) challenging employer policies and practices that discriminate against older job applicants. These are called disparate impact lawsuits. Reynolds appealed that 2-1 decision to the full court, which in February vacated the panel’s decision  and agreed to rehear the case “en banc” (with the full court sitting in judgment). Oral arguments are scheduled for June 21.  The case was originally fled by attorney John J. Almond of Rogers & Hardin, Atlanta.

  • In April 2015, software engineer Robert Heath filed an age discrimination lawsuit  against Google, Inc. in San Jose. Heath was interviewed but not hired for a position at Google 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 Act )ADEA) and California’s Fair Employment and Housing Act (FEHA).

According to the lawsuit, the median age of Google’s 28,000 employees in 2013 was 29 while the median age  for computer programmers in the United States is 42.8 and the median age for software developers is 40.6. The parties are wrangling about whether the case will proceed as a class action under FEHA. The  case was originally filed by attorney Daniel L. Low of  Kotchen & Low, Washington, DC.

  • In April 2016, certified public accountant, Steve Rabin, 53,  filed an age discrimination complaint in federal court in San Francisco against Price Waterhouse Coopers (PwC), a global accounting and auditing firm with gross revenues exceeding $35 billion. Rabin was rejected in 2013 for a position at PwC , which allegedly relies almost exclusively upon campus recruiting to fill entry-level positions and does not post vacancies on its public web site. The only way to apply is through PwC’s “Campus track recruitment tool, which requires a college affiliation.”  PwC  also maintains a mandatory early retirement policy that requires partners to retire by age 60 which allegedly discourages the hiring of  experienced older applicants.

The average age of PwC’s workforce in 2011 was 27, while the median age of accountants and auditors in the United States was 43.2 years old. The lawsuit alleges that PwC’s policies have a disparate impact on older applicants, which means . The lawsuit does not involve PwC’s hiring of executives.  This case was filed by attorneys from the New York firm of Outten & Golden, the AARP Foundation Litigation, and the San Francisco firm, The Liu Law Firm, P.C.

The EEOC also has filed a couple of individual cases in recent months involving age discrimination in hiring.

In my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that older workers for years have been disproportionately represented in the ranks of the long-term unemployed. Meanwhile, employers and employment agencies post job advertisements that obviously intend to exclude older workers, using code terms like “seeking digital natives” or “only recent graduates.” Until now, the obvious and rampant nature of age discrimination, especially in hiring, has gone virtually unchallenged.

The New Overtime Rule

The U.S. Department of Labor issued a final rule today changing the white collar overtime provisions of the Fair Labor Standards Act.  The final rule, which goes into effect on December 16, will:

  • Raise the  salary threshold indicating eligibility from $455/week to $913 ($47,476 per year), ensuring protections to 4.2 million workers; and,
  • The salary threshold will be automatically updated every three years, based on wage growth over time, increasing predictability.

This is a big achievement for the U.S. Department of Labor, which has had a decidedly mixed record under the Obama administration, and will benefit millions of low-paid workers – many of whom are women.

For now, white collar workers who earn more than $47,476 per year can still be subjected to merciless exploitation by their  corporate overlords.

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‘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.

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 U.S. Equal Employment Opportunity Commission 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.