‘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.

Hulk Hogan v. Two Alleged Age Discrimination Victims

A review of the New York Times today provides a stark demonstration of the arbitrary way that society assesses damage to individuals.

There is a front page story about a Florida jury verdict ordering Gawker.com to pay wrestler Hulk Hogan $115 million in damages for publishing a grainy security video depicting Hogan having sex with a friend’s partner. Of that amount, $55 million was for economic harm and $50 million was for emotional distress. (Hogan subsequently was awarded an additional $25 million in punitive damages.)

Another story, featured in the business section, chronicles the demoralizing travails of Julianne Taaffe, 60, and Kathryn Moon, 65, who taught English as a second language (ESL) at Ohio State University for decades until they were forced to retire as a result of an alleged campaign of illegal age discrimination and harassment.

The maximum damage award permitted under the Age Discrimination in Employment Act (ADEA)  is a total of two-times the amount of monetary damage suffered by the plaintiffs.  The ADEA does not permit plaintiffs to recover damages for emotional distress or punitive damages,  though these damages are permitted under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. So if Taaffe and Moon’s case ever gets to a jury  the most they could recover is whatever salary and benefits they lost, possibly doubled.

And while the evidence against OSU is what some would call overwhelming, it is far from certain that Taaffe and Moon’s lawsuit ever will reach a jury.  Taaffe and Moon were forced to sue five Ohio State University (OSU) officials individually rather than the university because the U.S. Supreme Court in 2000 ruled that  the concept of  sovereign immunity prevents an award of monetary damages in federal lawsuits against state agencies (including universities).   OSU has filed a motion to dismiss the lawsuit on the grounds that the ADEA does not permit plaintiffs to sue individual government employees.

Taaffe and Moon claim in the lawsuit that OSU systematically drove out older teachers in the university’s English as a Second Language Program. [Read more…]

Why do journalists have more ethics than U.S. Supreme Court Justices?

When I beganUS Supreme Court my career as a newspaper  reporter in Connecticut, I was occasionally offered a junket or an opportunity to get something of value without earning it or paying for it.

Reputable news reporters  (as opposed to lifestyle and travel  reporters) didn’t accept junkets. To do so was widely considered to be unethical because it affected one’s objectivity or the appearance of one’s objectivity. We knew that a reader would not trust a reporter who, for example, accepted a free trip to the Bahamas from the mayor of the city that s/he was covering.

This is one reason that I find it so galling that members of the highest court in our land, the U.S. Supreme Court, have no compunction about accepting junkets. They do it all the time.

Justice Antonin Scalia died suddenly last month at  a Texas hunting lodge, where he was staying for free as a guest of a Texas businessman.

According to USA Today,  the nine justices took more than 1,000 reported trips paid for by outside sources from 2004 to 2014.  Scalia was  the most traveled, with more than 23 trips on average a year, followed by Justice Stephen Breyer, with 17. Chief Justice John Roberts took the least, fewer than five per year.  Scalia and Justice Clarence Thomas spoke at separate Federalist Society events in the Palm Springs area sponsored by Charles Koch,  who has poured millions into conservative causes. Scalia  attended events sponsored by the conservative Federalist Society more than 20 times over about a decade in resort towns that include Park City, Utah, and Napa, Calif. Breyer traveled to London, Luxembourg and Sun Valley in 2014 with groups picking up the tab. Whether or not this is an actual ethics violation, it doesn’t look good.  It undermines trust in the judiciary.

If poorly paid newspaper reporters  pass up freebies for the sake of professionalism, why don’t  highly paid U.S. Supreme Court justices? Even if it’s not required, why don’t they?  Perhaps it’s because federal judges, including U.S. Supreme Court Justices, have lifetime tenure. Maybe it really  doesn’t matter to them whether or not people think they are objective. They can’t be fired.  Which is a very good reason for term limits for federal judges.

New Book on Age Discrimination in Employment

I am pleased to announce the publication of my new book, Overcoming Age Discrimination in Employment: An Essential Guide for Workers, Advocates & Employers, a timely and much needed resource to understand the major law governing age discrimination law in the United States.

old paper or parchment

This book provides an easy-to-understand overview of the Age Discrimination in Employment Act of 1967 (ADEA), using real cases from the federal courts and the U.S. Equal Employment Opportunity Commission to demonstrate how common age-related issues in the workplace are analyzed and decided under the law.

Overcoming Age Discrimination in Employment helps employers avoid costly age discrimination lawsuits, damage to reputation and unnecessary turnover at a time of increasing competition for skilled workers. It helps workers understand, confront and overcome age discrimination in employment, which can lead to job loss, a depleted savings account, forced early retirement, and years of impoverishment.

A number of factors make older workers more vulnerable to age discrimination in employment today than in the past.

A major reason why older workers face epidemic age discrimination today is that the ADEA offers far less protection to older workers than Title VII of the Civil Rights Act of 1964 provides to victims of employment discrimination on the basis of race, sex, religion, color and national origin. Meanwhile, the difficult economy since the Great Recession has given employers unprecedented incentive to replace experienced higher-paid older workers with cheap young labor. The problem of age discrimination has not only been ignored by the Obama administration but has been made considerably worse.

The book answers such questions as:

  • When do ageist remarks rise to the level of illegal harassment?
  • What common and often successful ploys do employers use to hide age discrimination?
  • What is “reasonable” age discrimination?
  • Why are employers invariably the big winners in the EEOC’s mediation and conciliation programs?
  • What factors influence whether the EEOC will dismiss an age discrimination charge outright without even an investigation?
  • When does an employment relationship exist?
  • Can an age discrimination victim win an ADEA lawsuit and yet not qualify for any monetary damages? (Hint – Alas, yes)

Overcoming Age Discrimination in Employment should be on the bookshelf of every worker, employment law attorney, and Human Relations officer. The book is available as an e-book and in paperback format on Amazon.com.