The Sleeping Bear Awakens: The AARP Questions Legal Inequality of Older Workers

Something has poked the sleeping bear.

An attorney for the AARP was quoted in The New York Times recently as stating that the Age Discrimination in Employment Act of 1967 “may not be up to the task.” This represents a profound shift for the AARP, which has done little in recent years (if anything) to acknowledge the fundamental legal inequality of older workers under the Age Discrimination in Employment Act of 1967. The AARP states on its web site that the ADEA was passed in 1967 with the  “strong backing” of the AARP.

In my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA gives older workers far less protection than Title VII of the Civil Rights Act of 1964 provides to victims of discrimination on the basis of race, sex, religion, color and national origin. For example, the ADEA permits age discrimination if  it is based on a reasonable factor other than age (i.e., cost savings).  Title VII requires employers to show “business necessity” and to demonstrate there were no alternatives with less discriminatory impact.  Victims of age discrimination can recover only monetary damages and if there are none they get nothing.  Title VII plaintiffs are entitled to monetary damages plus  punitive and compensatory damages (i.e. damages for emotional distress).

Because of legal inequality,  millions of older workers have been forced out of the workplace and into an impoverished retirement since the Great Recession.

Mind you, there has never been any intellectual or moral justification for treating age discrimination differently than other types of discrimination – all discrimination is based on fear, false stereotypes, and animus directed toward a specific group. If workers are not capable of doing a job due to age-related decline, they can be dismissed. That’s not discrimination.

What Prompted The Change?

I contacted the AARP earlier this week to applaud the organization for finally acknowledging the ADEA “may not be up to the task” of preventing older workers from  irrational and harmful discrimination.  I then asked the AARP officials whether their position was influenced by my book, which is the first to challenge the fundamental legal inequality of older workers under the ADEA. I observed the AARP had never acknowledged the book – or a follow up companion work, Overcoming Age Discrimination in Employment –  despite my efforts to bring these works to the attention of the AARP and the readers of its publications. I said that capitalizing on my work without giving me credit is disrespectful and intellectually dishonest. The AARP officials insisted they have been working hard (sometimes behind the scenes) all these years to battle age discrimination in employment. They did not confirm or deny that my work had influenced their change of heart about the ADEA but suggested that “this should not be about who gets credit, but rather, about how best to improve the lives of older workers.”

This is about improving the lives of older workers but it is also about credit.

I care about credit for the same reason the AARP cares about its brand as the advocate for the rights of Americans over the age of 50. The AARP’s brand name establishes its credibility and helps the AARP sell Medi-gap health insurance and European vacations.

I suggested it would be appropriate for the AARP  to give credit where credit is due; that the AARP should do what it should have done in 2014 and acknowledge the publication of Betrayed; The Legalization of Age Discrimination in the Workplace  and the important ideas that are contained within the book.  These ideas appear to have been powerful enough to make the AARP question the insufficiency of the ADEA.

The AARP assured me that it has been as active as it can be in fighting age discrimination and wished me good luck in my future endeavors!

Now that the AARP  has acknowledged the ADEA may not be up to the task of protecting older workers, one can only hope the AARP will recognize other areas in which age discrimination has been legalized in the Untied States.  The AARP  was silent when former President Barack Obama in 2010 signed an executive order allowing our nation’s largest employer, the federal government, to blatantly discriminate in hiring on the basis of age and then again in 2015 when Obama’s Labor Secretary Thomas Perez, now chair of the Democratic Party, endorsed a private initiative by Starbucks and other major American corporations to hire only younger workers in clear violation of the ADEA.  I wrote about both of these issues in my employment law blogs, as well as the EEOC’s consistent failure to devote significant resources to prosecute age discrimination.  In the New York Times, it was reported: “Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.” The reporter said the AARP’s list was assembled in July, about six months after I reported the EEOC had only filed two cases with age discrimination claims in 2016.  But who’s counting?

Appeals Court: Employers can Require Workers to ‘Maintain a Positive Work Environment.”

A federal appeals court recently rejected a ruling by the National Labor Relations Board (NLRB) that potentially limited the scope of employer anti-harassment policies.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in Atlanta overruled the NLRB by upholding the following workplace conduct provisions in a T-Mobile employee handbook:

  •  Employees should “maintain a positive work environment”; and
  • It is”unacceptable” for employees to engage “arguing or fighting” with co-workers, “failing to treat others with respect,” and “failing to demonstrate teamwork.”

However, the 5th Circuit let stand the NLRB’s ruling that a provision in the employee handbook prohibiting all photography and audio or video recording in the workplace violated the National Labor Relations Act. The panel said  a reasonable employee “would interpret it to discourage protected activity, such as even an off-duty employee photographing a wage schedule posted on a corporate bulletin board.”

T-Mobile had argued the recording ban was intended to prevent harassment and maintain individual privacy.

The 5th Circuit decision, written by Judge E. Grady Jolly, held that a reasonable employee would not construe the requirement to maintain a positive work environment as a restriction on their right to unionize or engage in collective activity to improve their working conditions. [Read more…]

What Age Discrimination Looks Like for Women

Akbar Al Baker, the CEO of Qatar Airlines, has apologized for calling U.S. flight attendants “grandmothers” during a recent speech at a private event in Ireland. He said the average age of Qatar Airways’ cabin crew is just 26, whereas passengers on U.S airlines are “always being served by grandmothers.”

Baker later wrote a pro forma letter of apology  to the Association of Flight Attendants (AFA).  “For the cabin crew serving aboard all air carriers, professionalism, skill and dedication are the qualities that matter. I was wrong to imply that other factors, like age, are relevant,” he said.

Sara Nelson, president of the AFA, accepted Baker’s  apology, noting that his comments “were heard loud and clear by airline workers around the world.” She complained that Qatar Airlines receives massive subsidies in violation of international rules on competition.  “I hope your apology marks the beginning of a reevaluation by you and your airline to adhere to the same rules that the rest of the aviation industry has been following for years,” she said.

Older Workers Barred from Applying for Tens of Thousands of Federal Jobs

Tens of thousands of U.S. jobs have been reserved for  younger workers since 2012 under the U.S. Office of Personnel Management’s on-going Pathways Program, which permits federal agencies to limit hiring to recent college graduates.

In response to a Freedom of Information request, the OPM disclosed on June 13 that a total of 29,595 candidates were selected for employment under the Pathways Program from May 2012  to  Fiscal Year 2014.   Of the total, 27,423 were under the age of 40 and 2,172 were over the age of 40. The OPM claims its data only covers that period but clearly the loss of opportunity to work for the federal government continues for older workers.  It is fair to assume that older workers have been barred from applying for at least 60,000 federal jobs.

Of the total, 92.7 % of the Pathways Program hires were UNDER the age of 40; only 7.3 % were OVER the age of 40.

The Pathways Program permits federal agencies to limit hiring to applicants who apply within two years of earning a post-high school or college degree. Specifically, the program is “open to applicants who have completed a qualifying post-high school educational program (e.g., technical or vocational school; two-or-four year college or university; graduate or professional school) within the preceding two years.”  Veterans have six years to apply.

The OPM disingenuously took the position that any individual who meets the qualification can apply regardless of age. However, as the OPM’s letter shows, the vast majority of recent college graduates are under the age of 40. The program represents a form of age discrimination in violation of the  Age Discrimination in Employment Act of 1967 called disparate impact discrimination. The hiring policy is a seemingly neutral policy that has a egregious disproportionate and adverse affect on older workers.

Former President Barack H. Obama  sought to create an exception to the ADEA when he created the Pathways Program by signing Executive Order 13562 into law on December 27, 2010. Without citing any research or other supporting documentation, Obama claimed the federal government was at a disadvantage in hiring young people due to the competitive hiring process. The Pathways Program took effect on January 6, 2012, sixty days after the OPM issued regulations to implement the program.

Unfortunately, neither the EEOC nor the AARP, which claims to represent older Americans, acknowledged the  discriminatory impact of the Executive Order  at the time or took any subsequent steps to oppose it. This blog raised the issue of age discrimination in the Pathways Program several years ago but business continues as usual.

As a result of the Pathways Program, older workers, still suffering from the ravages of the Great Recession, were barred from participating in the recovery.  The federal government is the nation’s largest employer.

Three years ago,  when I first wrote about the Pathways Program, I observed with some incredulity that my blog might be the only source in the nation that has acknowledge the devastating impact of the Pathways Program on older workers.  I noted the Pathways Program not only discriminates against older workers but it sends a message to the private sector that age discrimination in hiring is acceptable and it likely discouraged enforcement of the ADEA by the EEOC.

The FOI request was filed by a job seeker who has filed an age discrimination complaint with the EEOC alleging age discrimination in hiring by the federal government.