EEOC Snubs Age Discrimination – Again

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Yet again, the EEOC in 2014 devoted a disproportionately small percentage of its resources toward litigating age discrimination complaints.

The EEOC filed 133 merits lawsuits during FY 2014, compared to 131 in 2013 and 378 a decade ago. Merits lawsuits include direct suits and interventions by the EEOC alleging violations of the substantive provisions of federal discrimination laws as well as suits to enforce administrative settlements.  Of the merits lawsuits filed by the EEOC in 2014:

  • 76 contained Title VII claims
  • 49 contained Americans with Disabilities Act (ADA) claims;
  • 12 contained Age Discrimination in Employment Act (ADEA) claims;
  • two contained Equal Pay Act (EPA) claims;
  • two contained Genetic Information Non-Discrimination Act (GINA) claims.

* Note – some suits have multiple claims.

So about eight percent of  the claims in merit lawsuits filed by the  EEOC in 2014 involved age discrimination. Typically, age discrimination complaints represent at least 20 percent of all EEOC complaints. If this holds true in 2014 – the EEOC has not released these statistics yet – the EEOC will have  devoted a disproportionately small share of its resources to litigating age discrimination claims. The EEOC filed seven merits lawsuits with age discrimination claims in 2013.

In my new book Betrayed: The Legalization of Age Discrimination in the Workplace, I show that the odds are heavily stacked against employment discrimination victims in federal courts, and particularly age discrimination victims, who start out with a higher burden of proof. The vast majority of age discrimination claims are summarily dismissed by judges. I also argue that age discrimination is epidemic in American society because Age Discrimination in Employment Act of 1967 fails to protect older workers and the EEOC has virtually ignored the problem.

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Senator Wants to Turn Back Clock at EEOC

Alexander

Not only has Congress failed to  help victims of age discrimination for more than a  decade, now the ranking member of the Senate Committee on Health, Education, Labor and Pensions  wants to stop the EEOC from helping.

U.S. Sen. Lamar Alexander (R-Tenn)  called upon the EEOC  at a hearing last week to change its strategy of litigating big, high profile lawsuits and, urged it instead to resolve its backlog of almost 71,000 discrimination charges. The EEOC adopted a new strategic plan last year that, among other things, year calls for making better use of the EEOC’s limited resources by focusing upon large-scale and systemic discriminatory practices.

Ironically, Alexander, 74, focuses criticism upon EEOC efforts to insure that major law and accounting firms abide by a provision of the Age Discrimination in Employment Act of 1967 (ADEA) that prohibits mandatory retirement. Alexander complains that the EEOC has pursued cases without complaints in which “partners” voluntarily adopted a mandatory retirement age. Two law firms — Sidley Austin LLP and Kelley Drye & Warren LLP — faced EEOC claims over mandatory retirement in recent years.  Sidley settled in 2007 and Kelley Drye settled in 2012.

Alexander ignores the fact that the title of “partner” is conferred by some employers for the specific purpose of avoiding compliance with the ADEA, and that the supposed “partner” has none of the duties or responsibilities of an actual partner.  He also fails to acknowledge that “voluntary” agreements can be coercive,  one-sided and illegal.

Alexander effectively regurgitates the mantra of the U.S. Chamber of Commerce that the EEOC needs to be reigned in. He notes that “[n]umerous federal courts have criticized EEOC’s litigation practices, failure to attempt to resolve cases and avoid court, misuse of authority and reliance on faculty expert analysis, among other complaints.” He said the EEOC’s lawsuits have been so unfounded or mismanaged that it has been required to pay attorney’s fees in ten different cases since 2011. However, Alexander fails to consider whether this criticism is merited or even valid.

A federal judge in Iowa in 2013, for example, assessed millions in attorney fees against the EEOC for bringing a sex discrimination class action lawsuit against the national trucking company,  CRST Van Expedited, Inc. The judge dismissed dozens of class members who had suffered egregious sexual harassment – arguably even sexual assault – on the grounds that the EEOC had not tried hard enough to reach a settlement with the company. The so-called “failure to conciliate” defense at issue in the trucking case was flatly rejected  in another case by the 7th Circuit Court of Appeals in Chicago, which called it a legal tactic used by employers to tie up the EEOC in useless litigation to avoid the consequences of discrimination. The  Chicago court found the defense has no basis in law and, in fact, contradicts a provision of Title VII.

Alexander made his comments at a hearing last week on the nominations of P. David Lopez and Charlotte Burrows to serve as general counsel and member of the EEOC.

It is not likely that Alexander is seriously interested in reducing the backlog at the EEOC. However, if he is, Congress might consider providing additional resources to the EEOC to address the legacy of the past while moving forward with efforts to combat discrimination  today.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I criticize the U.S. Congress for ignoring the plight of older workers. I argue that the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court, leaving older workers with little or no real protection against age discrimination.  I note that Congress has failed for more than five years to pass the Protecting Older Workers Against Discrimination Act, which would reverse a 2009 Court decision that raised the level of proof in age discrimination cases far beyond that of race or sex discrimination cases.

 

Louisiana Judge Latest Casualty of ADEA Loophole

Marulo

A major loophole in the Age Discrimination in Employment Act of 1967 (ADEA) is highlighted in the case of a Louisiana judge who last week beat two opponents in a fierce election campaign but now is technically too old to serve his term of office.

The ADEA contains an exemption for state court judges, among others, and many states have passed laws that require state judges to retire at the age of 70. Orleans Parish Criminal Court Judge Frank Marullo, 74, the longest-serving judge in Louisiana, is the latest victim of a mandatory retirement law for state judges.  By contrast, federal judges  have lifetime appointments during good behavior.

The voters elected Marullo to his fourth term of office. There is no evidence that Marullo is incompetent to serve on the bench or has committed wrong-doing that would bar him from serving. There is no evidence that any worker suddenly loses capacity at age 70 or 75, let alone Marullo, who appears healthy and vigorous and says he feels fine. Yet, Louisiana’s 1974 constitution requires state judges to retire by age 70 and voters last week rejected an amendment that would have overturned that mandatory retirement provision.

Marullo has  argued the constitutional requirement doesn’t apply to him because he was first elected to the bench in 1974, when a prior constitutional amendment set a mandatory retirement age for judges of  75. However, Marullo will turn 75 on Dec. 31, the day before his new term of office begins. So this argument doesn’t seem to help him either.

It is now up to the Louisiana Supreme Court to determine whether Marullo will be forced to retire.

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Prescription for an Impoverished Retirement

Prescription

Check out my guest blog post on the web site of the International Federation on Ageing (IFA)  entitled, “Prescription for an Impoverished Retirement.”    The prescription isn’t for something any doctor would recommend. It is rampant, unaddressed age discrimination in employment that makes it impossible for older workers in America to adequately prepare for a financially sound retirement. The IFA, based in Toronto, Canada, works to improve the lives of older people around the work through collaboration between government organizations, academia, policy makers and the private sector.

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