Guest Blog post on ChangingAging.com

I am pleased to note that my article, Age Discrimination and Elder Poverty, is featured on ChangingAging, a multi-blog network committed to challenging conventional views on aging and using social media to promote the equality, sustainability, health and well being of people of all ages.  The blog was founded by Dr. Bill Thomas, a physician and playwright whom the Wall Street Journal called one of the nation’s “top 12 innovators” in changing the future of retirement in America. Dr. Thomas, who is a founding faculty member of UMBC’s Erickson School of Aging , is embarking on a national speaking tour called Age of Disruption.

High Court OKs Narrow ‘Failure to Conciliate’ Defense

US Supreme Court

In another blow to employment discrimination victims, a unanimous U.S. Supreme Court this week held that courts may conduct a “narrow” review of whether the EEOC met its statutory obligation to permit an employer to achieve voluntary compliance with federal discrimination laws before the EEOC files a lawsuit against the employer.

The Court overturned a ruling by the U.S. Court of Appeals for the 7th Circuit that courts lack  the authority to second-guess the EEOC’s conciliation efforts.  The Chicago-based appeals court called the so-called “failure to conciliate”  defense nothing more than a cynical tactic pursued by employers to waste EEOC resources and delay a finding of  liability for illegal employment discrimination.

The Supreme Court said  courts may engage in a limited review of whether the EEOC’s satisfied its statutory obligation under Title VII of the Civil Rights Act to give an employer notice and an opportunity to achieve voluntary compliance with the law prior to filing a lawsuit against the employer. The Court said the EEOC must “tell the employer about the claim – essentially, what practice has harmed what person or class – and must provide the employer with the opportunity to discuss the matter in an effort to achieve voluntary compliance.”  In most cases, the EEOC can meet its obligation by submitting an affidavit to the court but an employer can dispute the affidavit and request a hearing.

A bright spot in the Court’s ruling is that employers can no longer challenge the substance of EEOC’s settlement tactics, such as the reasonableness of the EEOC’s efforts to settle the case. In the past, employers argued, for example, that the EEOC improperly demanded unreasonable monetary damages. The Supreme Court said that  “Congress left to the EEOC such strategic decisions as whether to make a bare minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield. So too Congress granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief.”

In recent years, employers have tied up discrimination cases – sometimes for years –  with arguments that the EEOC did not try hard enough to settle a case prior to filing a lawsuit.  At least one federal judge issued a single ruling that unilaterally dismissed dozens of substantive claims brought by victims of  horrendous sexual harassment because the judge deemed the EEOC’s conciliation efforts to be inadequate.

The high court’s ruling promises to halt the most egregious abuses of the past but it still allows business interests to tie up the supposedly scarce resources of federal courts with procedural arguments that are irrelevant to the substance of discrimination complaints. This inevitably delays justice for discrimination victims and contributes to the EEOC’s backlog of more than 70,000 cases.  The ruling promises to have the most impact on EEOC “pattern and practice” cases against large employers that create obstacles in identifying discrimination victims and evidence of discriminatory acts.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I call upon the U.S. Congress to revamp the profoundly unfair and inefficient federal system for handling employment discrimination complaints. I also propose that the federal judiciary establish a special federal appellate court to handle appeals in federal employment discrimination cases to insure uniformity and fairness.

The AARP’s Role in White House Conf. on Aging

WHCOA

What is the White House Conference on Aging (WHCOA) … Really.

Is it a serious examination of the problems facing older Americans that occurs once every decade, or is it a public relations opportunity?

At its fourth regional forum on Monday, the WHCOA held a panel discussion on retirement security that featured a panel of  bureaucrats who failed to even mention age discrimination. That’s like talking about California’s drought without mentioning climate change. A spokesperson for the Obama administration promised the President would protect Social Security and said the administration is working to make the process of retirement savings easier and more transparent. No one is asking why so many older Americans  are poor and struggling

Numerous attempts in recent months to contact Nora Super, executive director of the WHCOA, to urge her to address employment discrimination based on age have failed to elicit any response whatsoever. Why does the WHCOA seems to be focusing upon soft issues like “healthy aging.”

On its web site, the AARP says it is “co-sponsoring” and “co-planning” the WHCOA’s regional forums, along with a lobbying group called Leadership Council of Aging (LCAO), which describes itself as a coalition of 72 of the nation’s leading organizations serving older Americans. The contact person for “all questions” regarding the LCAO is Nicholas Barracca at LCAO@aarp.org. I emailed that address on Monday and received an unsigned reply stating that the AARP is the “current chair organization” of the LCAO, which rotates chairs each year among five different organizations. I inquired again about the LCAO’s source of funding and Barracca replied that the LCAO is funded through membership dues.

At some point, it is fair to ask whether there is a conflict of interest with respect to the AARP’s dominating role in the WHOA forums.  The AARP is one of the largest private health insurers in America, earning nearly twice the amount from the sale of so-called “Medigap” plans than it receives in membership dues. There are five taxable, for-profit companies linked to the AARP brand:  AARP Insurance, AARP Services, Inc., AARP Global Network LLC, AARP Properties LLC, and AARP Financial, Inc.  It’s not illegal for the AARP to use its reputation as a neutral advocate for older Americans to sell its products to older Americans but surely the AARP should not be “co-planning” the White House’s once-every-decade examination of the plight of older Americans. That’s just common sense.

Kathleen Falk, the regional director of the U.S. Department of Health and Human Services, began the Cleveland forum by calling the AARP and the LCAO  “two extraordinary organizations that helped make this event possible … Thank you both for your contributions and commitments to this forum and to older Americans.”

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that older workers are more vulnerable to discrimination that other protected groups because the Age Discrimination in Employment Act was weak to begin with and has been eviscerated by the U.S. Supreme Court.  Even President Obama has contributed to the plight of older workers, by enacting an executive order in 2010 that allows federal agencies to bypass older workers and hire “recent college graduates.”

Since the Great Recession, employers have shed older workers through bogus restructuring and downsizings motivated by age discrimination. Older workers are thrown into the quicksand of chronic unemployment due to epidemic age discrimination in hiring. When unemployment benefits expire, many spend down their savings and take low paid part-time or temp jobs until they can age into an early retirement at age 62, suffering at least a 25 percent cut in Social Security benefits for the rest of their lives.

The AARP’s own statistics show that half of older workers who became unemployed five years ago didn’t find another job. In this recent survey, 38% reported they were unemployed and 12% said they had dropped out of the labor force. Of the remainder, 41% were working part-time.

The Cleveland conference began with a short video appearance by First Lady Michelle Obama, who plugged the fifth anniversary of her physical activity initiative,“Let’s Move.”  She challenged participants to share their “best dance moves” with their families.

I challenge the WHCOA  and the AARP to address the epidemic of age discrimination that is condemning millions of older Americans to a retirement of poverty and near poverty.  This is an important issue that has been ignored for years. It can and should be addressed NOW!

Google Hit With Class Action Age Discrimination Lawsuit

Google

Silicon Valley has been an unapologetic apartheid state for young workers for years but this could be about to change.

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 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 and the California Fair Employment and Housing Act.

According to the lawsuit, Google’s workforce is “grossly disproportionate” with respect to age. The lawsuit asserts the median age of the 28,000 employees who worked for Google in 2013 was 29.  Meanwhile, the U.S. Department of Labor reports the median age for computer programmers in the United States is 42.8 and the median age for software developers is 40.6. According to the lawsuit, Google had 53,000 employees in 2014 and revenues of approximately $66 billion.

Google’s position with respect to age discrimination is completely inexplicable. The company last year made a public commitment to increase race and gender diversity in its workforce, and released workforce statistics relating to those characteristics. But Google was completely silent with respect to  age and did not release age-related statistics. It was as if Google’s position was that age is not a factor in workforce diversity.

Its not like Google can claim ignorance of age discrimination laws.  The California Supreme Court in 2010 reinstated an age discrimination lawsuit filed by former Google executive Brian Reid  finding that Reid had presented sufficient evidence of age discrimination in his firing by Google in 2002.  Among other things, Reid said Google colleagues referred to him as an “old man,” and “old guy,” and “old fuddy-duddy” and joked that his CD jewel case office placard should be an “LP” or long-playing record. Google subsequently settled the case out of court.

Heath, of Boynton Beach, FL, states that he was contacted and encouraged to apply to Google by a company recruiter who said Google was embarking on its largest recruiting/hiring campaign in its history. The recruiter said Google was looking for engineers with coding experience in the C++ and Java computer languages.  Heath holds a master certification in Java, scoring higher than 96 percent of all previous test takers for that certification, and a master certification in C ++, scoring higher than 89 percent of all previous test takers for that certification. He has more than 30 years of experience working with C++ and Java.

Heath said his initial interview was a telephone interview with an engineer who called ten minutes late and was barely fluent in English. Moreover, the engineer insisted on using used a speaker phone that did not function well.  Heath was asked to write a short program in code.  The engineer insisted that Heath read the program aloud. Even though the engineer “seemed not to understand” what Heath was reading, he refused to allow Heath to email the program to him or use Google Docs.

“[B]y conducting the interview as described above, Google intentionally did not allow Mr. Heath to communicate or demonstrate his full technical abilities, and did not have a sincere interest in hiring Mr. Heath,” the lawsuit alleges.

The lawsuit seeks an injunction ordering Google to adopt a valid, non-discriminatory method for hiring employees, to post notices concerning its duty to refrain from age discrimination, and to pay Heath and members of the class damages.

The case is Robert Heath v. Google Inc., 5:15-ev-01824 (4/22/2015).  It was filed in U.S. District Court of Northern California in San Jose, California.