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.

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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.

Appeals Court Strikes a Blow for Unrepresented Litigants

A federal appeals court recently struck a blow for the unrepresented litigant, who often is  ill-equipped to understand and overcome procedural hurdles that effectively block access  to federal courts.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago,  reinstated a case that was dismissed by a district judge because the handwritten complaint filed by the plaintiff, who was representing himself, contained “little more than conclusory legal jargon.” Moreover, the judge said, the plaintiff checked a “variety of boxes “with “conclusory statements such as that the Defendant failed to reasonably accommodate the plaintiff’s disabilities.”

The plaintiff, John Tate, was a driver trainee in 2014 for SCR Medical Transportation, which provides non-emergency transportation services for disabled persons and veterans.  His complaint states: “The defendant was aware of my disability. During my employment, I was subjected to sexual harassment. I complained to no avail.” Tate  alleges he was fired in retaliation for his complaint. He alleges discrimination on the basis of disability, sexual harassment and retaliation.

The appeals court said Tate filled out a complaint form supplied by the  court that “does not require, or indeed permit, extensive factual detail, for it provides only six lines for listing ‘the facts supporting the plaintiff’s claim of discrimination.'”  Also, the appeals court said, the judge made a “serious mistake”  by dismissing Tate’s lawsuit prior to the expiration of a 21-day period  during which a plaintiff may file an amended complaint without the court’s approval.

The panel’s decision, written by noted jurist Richard Posner,  states that the lower court judge “should have told the plaintiff what is required to allege disability discrimination.”

Rather than dismissing the case, the judge should have helped the pro se complainant correct the procedural defect in the complaint.

The panel said Tate had no obligation to be more specific with respect to his claim of sexual harassment or retaliation.  The panel agreed,  however, that  the Americans with Disabilities Act requires a plaintiff to allege that s/he is disabled within the meaning of the Act. The panel said Tate should have identified a specific disability.

“Had the judge told the plaintiff before dismissing his suit what was missing from the complaint, or had he dismissed just the complaint and not the suit and informed the plaintiff of a plaintiff’s right to rectify the deficiencies of his complaint in an amended complaint, we might have been spared this appeal, and the district judge a remand,” concluded the panel.

Posner, an expert in the area of law and economics, is one of the most cited legal scholar of the 20th century.

The case is TATE , v. SCR MEDICAL TRANSPORTATION, No. 15–1447 (7th Cir. December 28, 2015).

The Big Short in the Federal Courts

I recently saw an unsettling movie, The Big Short, about the blatant fraud and corruption on Wall Street  that led to the  global economic collapse and the.Great Recession.

Like many film goers, I felt deeply troubled about the Titanic-sized failure of the American government to protect ordinary Americans from predatory behavior and  criminality by Wall Street bankers and brokers.  But later my thoughts turned to another failure that  is currently being ignored by American government and the press, one that I see as an attorney who writes about  the law and workers who are victims of abuse and discrimination in employment.

There has been undisputed and powerful evidence for years that the federal court system, like America’s  financial system, operates to benefit powerful moneyed interests at the expense of ordinary American workers.  A major indicator of this trend is that federal courts routinely dismiss employment discrimination lawsuits at a far higher rate than other types of business lawsuits.

My book, Betrayed: The Legalization of Age Discrimination in the Workplace, painstakingly documents how the U.S. Congress and  Supreme Court have made it inordinately difficult for workers to prevail in an age discrimination lawsuit.  The Age Discrimination in Employment Act of 1967 ia weak and riddled with loopholes compared to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, national origin and color. The U.S. Supreme Court issued a completely unnecessary ruling in 2009 requiring that age discrimination victims  prove a far higher level of causation than is required under Title VII.  A proposed federal law that would fix the Court’s disastrous ruling has languished in a Congressional committee for six years.  Congress and the Court have legalized discrimination in employment based on age that would be illegal if the victim wore a hijab or hailed from Zimbabwe or Yemen.

At one point last spring, I attempted to contact the Judicial Conference of the United States, a 16-member body (with no citizen representative) that ostensibly runs the federal court system. I wanted to point out that discriminating against employment discrimination victims is tantamount to actual discrimination. I found the Conference’s web site but it contained no contact information. A spokesperson for the Administrative Office of the U.S. Courts (AOC)  suggested that I send my correspondence to the federal circuit court in my jurisdiction, which has a seat on the Conference body.  In exasperation, I submitted  an “open letter” to whom it might concern requesting legal reform via a web form on the AOC web site. I have concluded, rightly or wrongly, that the “leadership” of our federal court system is unapproachable.

In the movie, The Big Short, some savvy observers figured out the housing market was about to collapse and they found a way to make money on the collapse.  It seems likely to me that one day the “bubble” surrounding the federal court system will burst.  Just as there was almost universal faith in the housing market, Americans historically  have shown a high degree of trust in the courts.  That trust is eroded every time the court permits  unscrupulous employers to use the legal system to deny workers respect, dignity and fundamental fairness.

Trust is lost when courts permit employers to use the legal system as a weapon against American workers.

Meanwhile,  President Barack Obama  encouraged age discrimination in hiring when he signed an executive order in 2010 that permits federal agencies to bypass older workers and hire “recent” graduates and  U.S. Labor Secretary Thomas Perez earlier this year endorsed a private initiative by America’s largest corporations that openly discriminates against older workers. The federal government is the nation’s largest employer.

All of this  is happening in plain sight but it has gone largely unreported by the tattered shreds of what remains of America’s once vigorous media.  (I may sound a bit cynical on this score because the 18th richest man in the world, Sheldon Adelson,  a casino operator and major Republican donor who owns a free newspaper in Israel, recently secretly purchased  Nevada’s largest newspaper and immediately began testing the limits of journalism ethics.)

Like the housing market bubble, the bubble in the federal court system is attributable in large part to inattention, neglect and failure of accountability. [Read more…]

Fed Diversity Measure Omits Older Workers & Disabled

What does diversity mean in the employment context?

A recent report on standards that federally regulated companies can use to evaluate their diversity policies and practices provides that diversity refers only to racial minorities and women. Minorities are defined as “Black Americans, Native Americans, Hispanic Americans, and Asian Americans.”

One might expect the term “diversity”  to at least encompass protected classes under federal discrimination laws. After-all, these groups have been historically deprived of jobs and opportunities  precisely because they are diverse from the mainstream.Yet older workers and the disabled are omitted from the definition of diversity set forth in the Final Interagency Policy Statement Establishing Joint Standards for Assessing the Diversity Policies and Practices of Entities Regulated by the Agencies.

The report was issued by six federal agencies pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The agencies are the Federal Reserve Board, Bureau of Consumer Financial Protection, Federal Deposit Insurance Corporation, National Credit Union Administration, Securities and Exchange Commission and the Office of the Comptroller of the Currency. [Read more…]