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.

Study Finds Job Call-Back Rates Begin Steep Decline in 40’s

The callback rate for job applicants begins to fall significantly around the age of 40-45 and is close to zero by the age of 70.

This was the “striking” finding of a recent Swedish study in which more than 6,000 fictitious resumes  were sent to 2,000 employers with job vacancies from 2015 – 2016. The study, The Effect of Age and Gender on Labor Demand – Evidence from a Field Experiment,  was conducted by  the Swedish Institute for Evaluation of Labour Market and Education Policy. The authors are Magnus Carlsson of the Center for Labor Market and Discrimination Studies at Linnaeus University and  economist Stefan Eriksson of Uppsala University.

On average, the study found that each  year of aging reduces the call back rate of a job applicant between the ages of 35 and 70 by about one half a percentage point.

The authors note that it is unreasonable to conclude that workers in their early 40s lack important occupational skills, have low physical strength or bad health. Therefore, they say, the “main story of age discrimination in the labor market is not about being old, say above age 55, but rather about not being young, say below age 40-45.”

The authors suggest that employers fear workers in their early 40s have started to lose the ability to learn new tasks, flexibility and adaptability, and ambition.

The authors write that the call back rate for women drops at a much steeper rate than that of  men after the age of 35.

Th study concludes that age discrimination is a “widespread phenomenon, affecting workers much younger than the age where employers consider them as old (which occurs at age 54 according to our employer survey).

The study encompassed seven occupations that had a job advertisement on the website of the Swedish Public Employment Service. These include administrative assistants, chefs, cleaners, food serving and waitresses, retail sales persons and cashiers, sales representative sand truck drivers.