The Lack of Equal Justice for All

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There was an article in the New York Times recently about the elusiveness of justice for African-Americans in the criminal justice system.

I think this is a symptom of a wider problem – the lack of equal justice for the poor and the middle class in America.

The leadership of our nation’s civil and criminal justice system, the U.S. Supreme Court, does not serve as a role model for equal justice for all. And the U.S. Congress, which holds the power of the purse-strings over the judicial branch, provides no discernible oversight as to how the court system spends taxpayer money.

An egregious example of the wider problem is  the U.S. Supreme Court‘s refusal to allow its proceedings to be broadcast. This is really an issue about transparency and accountability.  The leadership of the third branch of government in the world’s leading democracy has chosen not to be transparent and or accountable. And if you don’t like it, tough!

The Court’s disdainful attitude toward the American taxpayer was not acceptable after television attained broad popularity fifty years ago and it is completely unacceptable in the Internet age. The Court exists to serve the public, not the Court.  This doesn’t mean the Court is subject to the whims of the majority but that the Court must be guided by founding American principles of equality and justice for all.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I focus on the civil justice system, which  has utterly failed to protect older workers from irrational and harmful age discrimination. This is particularly true for vulnerable older workers (i.e. minorities and women).

The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court, which has made it almost impossible to win a federal age discrimination lawsuit. Age discrimination has become normalized in American society and is trickling down to ever younger workers (i.e., the youth apartheid state of Silicon Valley).  But younger workers have years to rebound, while older workers often are plunged into a penurious old age of deprivation.

I suggest the judiciary create a special federal court to hear appeals in  discrimination cases. This court could be staffed with federal judges who are both educated in and dedicated to the concept of equal justice. This court would not be limited to age discrimination but would decide appeals in all cases alleging discrimination on the basis of race, sex, religion, sexual orientation and disability, etc.

Age discrimination represents a kind of government subsidy for employers, by allowing them to replace more expensive older workers with cheap young labor. Taxpayers  pick up the tab in the form of higher social welfare costs, including health care and Social Security benefits.  I doubt that most taxpayers would want to pay this subsidy if they knew they were paying it.

U.S. Gov: Older Workers Need Not Apply

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Why is the federal government engaging in systemic, blatant age discrimination in hiring?

President Barack H. Obama signed an Executive Order 13562  in 2010 that allows federal agencies to bypass older workers and hire “recent graduates.”  The highly-questionable justification for the “Pathways Program” was that the federal government was at a competitive disadvantage in hiring promising young workers during the worst economic downturn in 100 years. Really?  Moreover, Obama claimed he was acting in the pursuit of a “diverse workforce that includes students and recent graduates, who infuse the workplace with their enthusiasm, talents, and unique perspectives.”  Does that mean older workers  infuse the workplace with lack of enthusiasm, no talent and mediocrity?

The Pathways Program, which went into effect in the summer of 2013, violates the plain language of the U.S. Age Discrimination in Employment Act of 1967 (ADEA). Under the ADEA, it is illegal for an employer – any employer – to use age as a consideration in the hiring process.   The “recent graduates” 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.  The overwhelming majority of “recent graduates” are under the age of 30.

The Pathways Program clearly discriminates against older workers, including workers over the age of 40 who fall under the umbrellas of the ADEA.   The ADEA states:

  • Employers cannot fail or refuse to hire any individual “because of such individual’s age,” and/or
  • Print and publish “any notice or advertisement relating to employment … indicating any preference, limitation, specification, or discrimination, based on age.”

There is no question that unemployment is a serious problem for younger workers but unemployment also is a serious problem for older workers. The latter are disproportionately represented in the ranks of  long-term unemployed and   often are forced into an ill-advised and penurious early retirement because they can’t find decent work due to age discrimination.    Solving the unemployment problem for younger workers on the backs of older workers represents appalling public policy and is a disgraceful throwback to pre-ADEA days when employment ads regularly specified age cut-offs.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I argue that age discrimination has become normalized in society as a result of the failure of the ADEA and is trickling down to workers who were once considered young.  It is entirely foreseeable under the Pathways “recent graduates” program that a 35-or -40 year-old with excellent qualifications could lose a job to a 25-year-old recent college graduate with no qualifications.  Almost fifty years after the passage of the ADEA, America has come full circle.

The Pathways Program is a testament to hypocrisy and breeds disrespect for the law.  If the federal  government won’t follow the ADEA, why should private sector employers?

The late gerontologist Robert N. Butler, the founding director of the National Institute on Aging who coined the term “ageism,”  wrote, “The tragedy of old age is not the fact that each of us must grow old and die but that the process of doing so has been made unnecessarily and at times excruciatingly painful, humiliating, debilitating and isolating through insensitivity, ignorance and poverty.”

WANTED: Advocacy Group to Help Older Workers

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The Time For Action is Long Overdue

What advocacy group exists today to fight age discrimination in the workplace?

My first thought was the AARP, formerly the American Association of Retired Persons, which has an estimated 37 million members. The AARP is said to be one of the most powerful lobbying groups in the United States. But it is in the business of selling health insurance to retired people, not equality in the workplace.

The AARP has a non-profit foundation that exists to advocate for older Americans. It says it helps “struggling seniors by being a force for change on the most serious issues they face today.” The web site of the AARP Foundation has lots of opportunities to “donate today” and “ways to give.” It claims to be “a voice and an advocate.” Here are the articles under “AARP Foundation in the News”  on Oct. 6, 2014:

  • How to manage your money better after 50.
  • The people of Haiti thank AARP members.
  • AARP Foundation invites NASCAR fans to ‘Ride with Jeff.”
  • Couples say relationships benefit from volunteering together..

Considering the serious issues facing older workers today, this like marshmallow fluff on burnt toast.  Efforts to reach Foundation President Lisa Marsh Ryerson and other Foundation officials through their web site were unsuccessful.

Who Cares?

Who advocates for older workers who are unemployed, floundering in long-term unemployment, and working in poorly-paid part-time jobs with no benefits? Research shows that millions of older workers have been forced into a penurious early retirement since the Great Recession because they can’t get jobs.  This hasn’t stopped Congress from debating cuts to Social Security. The U.S. Equal Employment Opportunity Commission has virtually ignored a record increase in age discrimination complaints. Despite receiving more than 20,000 complaints in 2013, the EEOC filed only a handful of lawsuits with age discrimination claims.

The thesis of my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, is that the major U.S. law prohibiting age discrimination was weak to begin with and has been eviscerated by the U.S. Supreme Court. There is no question that older workers are literally treated like second class citizens in our nation’s court system. Who cares?

The AARP Foundation has a legal arm that files friend of the court briefs and purportedly represents plaintiffs in age discrimination lawsuits.  However, the problems facing older workers will not be resolved in the federal courts, which are demonstrably hostile to all employment discrimination lawsuits.

Older Americans must demand their representatives in the U.S. Congress address the epidemic of age discrimination.  For five years, Congress has failed even to pass the Protection Older Workers Against Discrimination Act, which would merely restore parity between the ADEA and Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, national origin and religion. The U.S. Supreme Court in 2009 issued a mean-spirited and unnecessary decision requiring  older workers to meet a much higher level of proof in age discrimination cases than exists for discrimination victims who file claims under Title VII.  No one has put forth any credible justification for treating age discrimination victims worse than other discrimination victims. The failure of Congress to address this harmful injustice also reflects the lack of an effective advocacy groups for older workers.

One would have hoped that our nation’s first African-American president, Barack H. Obama, would show some sensitivity to the problem of age discrimination. He made the problem incrementally worse when he signed an executive order in 2010 that permits government agencies to bypass older workers in favor of hiring younger workers. The justification for this program is that the government was incapable of competing with the private sector for younger workers during the worst recession in 100 years.  Really?

What American workers need  now is an advocacy group that will pound the pavement in the U.S. Congress to restore their rights.  We need an organization that has a strategy and a plan to create positive change.  If the AARP Foundation wants to continue to collect money to advocate for the rights of older workers, individuals and grant organizations should demand  action on Capital Hill.  If this is too uncomfortable for the offspring of a behemoth medical sales organization, then we need a new organization that is willing to do the job.

Is the EEOC Finally Noticing Age Discrimination?

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The U.S. Equal Employment Opportunity Commission  filed its second lawsuit this month alleging age discrimination, indicating a possible uptick in EEOC efforts in this long-neglected area.

The lawsuit touches upon the widespread problem of discriminatory hiring practices in the legal profession, which vies with higher education as the most egregious in terms age discrimination.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the EEOC has essentially ignored a record increase in age discrimination complaints filed with the agency during and since the Great Recession.  For example, the EEOC received more than 21,000 age discrimination complaints in 2013 but filed only seven lawsuits with age discrimination claims that year.  Meanwhile, older workers are mired in the ranks of the chronically unemployed and under-employed until they are forced into a penurious early “retirement.”

The EEOC charges that Strategic Legal Resources, Inc., a  staffing firm that does business as Strategic Legal Solutions, rescinded an offer of hire made to attorney Claudia Zacks after she complied with a company request to provide her date of birth. Zacks was 70 years of age at the time.

The Executive Director of the company’s Real Estates Services Division in New York City emailed Zacks in August 2012 and offered her a position to work on a document review project that was to begin the next day in Novi, Michigan. After Zacks accepted, the company asked Zacks to provide additional information, including her date of birth.

The lawsuit alleges that a Recruitment Coordinator for the company called Zacks and insisted that Zacks “could not possibly arrive at the job site in time on the next day.”  Zacks finally expressed concern the company was rescinding its job offer because of her age. The Recruitment Coordinator “responded that not only would Zacks not work on this assignment but she would be placed on the ‘do not use’ list and she need not apply for future job opportunities” with the company.

The EEOC charges that Strategic Legal Solutions also denied Zack future employment. In Spring 2013, Zack answered an anonymous Craigslist posting for individuals interested in working on a document review project. Zacks was hired by a different Strategic Legal Solutions office  to work on a document review project in Novi, Michigan. After three days on the project, she was summarily terminated.

The lawsuit asks the court to order Strategic Legal Solutions to pay Zachs appropriate back wages, liquidated damages and interest.

Under the Age Discrimination in Employment Act of 1967, it is illegal  “for an employment agency to fail or refuse to refer for employment, or other­wise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.”  However, a glance at internet employment sites will show that this provision is widely ignored by employers, employment agencies and even the federal government, all of whom seek applicants who are  “recent” college graduates.