Where is America’s Age Discrimination Commissioner?

Australia, a world leader in combating workplace bullying, recently announced the appointment of Australia’s first Age Discrimination Commissioner.

Despite the fact that age discrimination is epidemic in the United States, it appears the problem is being  ignored by the federal government and non-profit advocacy agencies like the American Association for Retired Persons (one of the country’s leading medical insurers).

Australia announced tn July 2011 the appointment of an Age Discrimination Commissioner  to combat age discrimination in Australian workplaces and the wider community.

Where is America’s age discrimination commissioner?

The current economic climate in the United States is like a “perfect storm” for older workers. There is record unemployment for workers aged 55 and above and there is record age discrimination.

The impact of unemployment on older workers is dire as they face potentially decades of retirement, and health issues, without the ability to prepare financially.  Older workers do not have the time and may never recover from the adverse impact of age discrimination.

Age discrimination complaints to the U.S. Equal Opportunity Commission  are at an all-time high.  In five years, the number of age discrimination complaints has increased FORTY PERCENT.  There were 23,264 age discrimination complaints filed with the EEOC in 2010.

Meanwhile, the  Bureau of Justice Statistics(BJS) reports that unemployment for persons aged 55 and above has increased sharply since the beginning of the recession in December 2007. The jobless rate among older workers was 7.1 percent (seasonally adjusted) in February 2010, just shy of the record-high level of 7.2 percent in December 2009.

In addition, the BJS says that older workers remain unemployed longer than younger workers. The BJS states that nearly half (49.1 percent) of older jobseekers had been unemployed for 27 weeks or longer in February 2010, compared with 28.5 percent of workers aged 16 to 24 years and 41.3 percent of workers aged 25 to 54 years.

(According to a 2011  CareerBuilder survey on workplace bullying,  women aged 55 and above are more likely than any other demographic group to  report feeling bullied in the workplace, another problem America ignores.)

Australia’s new age commissioner, the Hon. Susan Ryan, will operate under he auspices of the Australia Age Discrimination Act, and will tackle issues such as discrimination in getting job or applying for a promotion, enrolling at a university, applying to rent a house, or using services such as at a bank. The government provided $4 million in funding over four years to the Australian Human Rights Commission to support the new position.

Australia was one of the first countries to recognize the problem of workplace bullying, which causes potentially severe  injury to a target’s mental and physical health, destroys families and costs the United States billions each year in needless turnover, lost work, higher health costs, absenteeism, etc.  In fact, in Victoria, Australia, workplace bullying is considered a criminal offense under some circumstances.

At this point, it may go without saying that America has yet to offer workers any protection against workplace bullying.

Then the “Law is a Ass”

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot.” –  Charles Dickens, Oliver Twist.

A federal judge in New York earlier this week threw out a pregnancy discrimination case against Bloomberg, L.P.,  holding that it is not the court’s job to “tell businesses what attributes they must value in their employees as they make pay and promotion decisions.”

Chief U.S. District Judge Loretta A. Preska, of the U.S. District Court for the Southern District of New York, essentially says pregnant women who take maternity leave are making a choice which may leave them in a  disadvantageous position at the workplace. She says it’s not against the law  because … hey, it was their choice wasn’t it?

The EEOC alleged that 49 of the 78 claimants in the lawsuit were demoted once they announced their pregnancy and/or returned from maternity leave in terms of a diminished title and the number of employees directly reporting to them. Not only were their responsibilities diminished but their responsibilities were handed off to junior male employees.  Also, the EEOC alleged, 77 of 78 of the claimants had their total compensation decreased after becoming pregnant or returning from maternity leave.

Bloomberg is an international financial services and media company based in New York City that provides news, information, and analysis. New York City Mayor Michael Bloomberg owns the majority of the company, which he founded in 1981

Judge Preska writes:

“ … women who take maternity leave, work fewer hours, and demand more scheduling flexibility likely are at a disadvantage in a demanding culture like Bloomberg’s … The law does not require companies to ignore or stop valuing ultimate dedication, however unhealthy that may be for family life.”

She goes on to write:

“The law does not mandate “work-life balance.” It does not require companies to ignore employees’ work-family tradeoffs — and they are tradeoffs — when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be “forward thinking.” But they are not required by law.”

Judge Preska granted Bloomberg’s request for a summary judgment to dismiss the EEOC’s complaint, finding that a  reasonable jury could not conclude that Bloomberg engaged in a pattern and practice of discrimination against pregnant women who took maternity leave. Judge Preska said the “anecdotal” evidence provided by the EEOC was insufficient in light of  evidence produced by Bloomberg.  Judge Preska’s decision means the case cannot proceed to a jury.

Judge Preska acknowledged that compensation “growth” for workers who took maternity leave was less than for those who took no leave but she said it is legal to discriminate “between those employees who take off long periods of time in order to raise children and those who either do not have children or are able to raise them without an appreciable career interruption.”

The EEOC also presented examples of alleged bias. One class member, for example, “reported to the CEO in 2003 that the head of the News division made some negative comments about women taking paid maternity leave but then not returning to the company, the CEO said, “Well, is every fucking woman in the company having a baby or going to have a baby?”

According to Judge Preska: “Isolated remarks by a handful of executives — or one specific executive, the head of News, which EEOC focuses on heavily here — do not show that Bloomberg’s standard operating procedure was to discriminate against pregnant women and mothers.”

Finally, here’s what Judge Preska has to say about the fact that only women bear children:

“To be sure, women need to take leave to bear a child. And, perhaps unfortunately, women tend to choose to attend to family obligations over work obligations thereafter more often than men in our society. Work-related consequences follow. Likewise, men tend to choose work obligations over family obligations, and family consequences follow. Whether one thinks those consequences are intrinsically fair, whether one agrees with the roles traditionally assumed by the different genders in raising children in the United States, or whether one agrees with the monetary value society places on working versus childrearing is not at issue here. Neither is whether Bloomberg is the most “family-friendly” company. The fact remains that the law requires only equal treatment in the workplace. Employment consequences for making choices that elevate non-work activities (for whatever reason) over work activities are not illegal.”

Judge Preska was nominated by President George H. W. Bush on March 31, 1992.

It is not clear whether or not Judge Preska has any children.

Employment Discrimination: What’s with Indiana?

 

The number of  employment discrimination complaints to the Equal Employment Opportunities Commission  is at an all time high, and its expected to rise.

But there are indications that discrimination is more prevalent in certain states, which apparently have laws and a regulatory schemes that favor business. For example, Texas is an employment-at-will state, which means that employees can be terminated for any reason as long as it doesn’t violate the law (i.e. discrimination) or an important public policy.

Conversely, some high population states appear to have a lower incidence of employment discrimination, possibly indicating a more favorable climate for employer-employee relations.

Businessweek recently did an analysis based on the number of EEOC “merit resolutions” in 2010. These are cases resolved without litigation by the EEOC with private employers and state and local government employers (not federal government). The EEOC filed 250 lawsuits in 2010, resolved 285 lawsuits, and resolved 104,999 private sector charges.  Note: The EEOC “prosecutes” only a fraction of the complaints that are filed with the EEOC.

Businessweek’s analysis shows that Texas was the state with the highest number of merit resolutions in 2010. However, this is not particularly surprising given that Texas has the second highest population of any state, after California, which ranked 2nd.

But what’s with Indiana? It’s the 15th largest state but ranks 5th state in terms of EEOC merit resolutions. Indiana touts itself as America’s heartland, a family friendly place.  Apparently it is even friendlier to business.  If you’re looking for a job, you might want to take this into account. And if you have a job in states like Indiana, Alabama or Mississippi, well … good luck!

On the other hand, New York is the 3rd largest state but ranks 15th in merit resolutions. Go New York!

The U.S. Equal Employment Opportunity Commission (EEOC) says private sector workplace discrimination charge filings with the federal agency nationwide hit an unprecedented level of 99,922 during the fiscal year ending on Sept. 30, 2010. All major categories of charge filings in the private sector (which include charges filed against state and local governments) increased. These include charges alleging discrimination under Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and the Genetic Information Nondiscrimination Act (GINA).

For the first time ever, retaliation under all statutes (36,258) surpassed race (35,890) as the most frequently filed charge, while allegations based on religion (3,790), disability (25,165) and age (23,264) increased.

Here’s the Businessweek ranking of states with EEOC merit resolutions:

1. Texas, 2nd largest state, population 25,145,561; merit resolutions,  1,780.

2. California, largest state, pop. 37,253,956; merit resolutions, 1,600.

3. Florida, 4th largest state,pop.  18,801,310; merit resolutions, 1,409.

4. Georgia, 9th largest state, pop. 9,687,653; merit resolutions, 1,288.

5. Indiana, 15th largest state, pop. 6,483,802; merit resolutions, 1,063.

6. Illinois, 5th largest state,pop.  12,830,632; merit resolutions, 1,001.

7. Pennsylvania, 6th largest state, pop. 12,702,379; merit resolutions, 860,

8. North Carolina, 10th largest state, pop. 9,535,483; merit resolutions, 823.

9. Tennessee, 17th largest state, pop.  6,346,105; merit resolutions, 800.

10. Ohio, 7th largest state, pop. 11,536,504; merit resolutions, 680.

11. Alabama, 23rd largest state, pop.4,779,736; merit resolutions, 650.

12. New York, 3rd largest state, pop. 19,378,102′ merit resolutions, 609.

13. Michigan, 8th largest state,  pop. 9,883,640; merit resolutions, 559.

14. Colorado, 22nd largest state, pop. 5,029,196; merit resolutions, 509.

15. Virginia, 12th largest state, pop. 8,001,024; merit resolutions, 499.

16. Arizona, 16th largest state, pop.,  6,392,017; merit resolutions, 496.

17. Missouri, 18th largest state, pop., 5,988,927; merit resolutions, 463.

18. Mississippi, 31st largest state, pop., 2,967,297; merit resolutions, 392.

19.  Arkansas, 32nd largest state, pop. 2,915,918; merit resolutions, 376.

20. Washington, 13th largest state, pop. 6,724,540;  merit resolutions, 353.

Federal Discrimination Laws

Most workplace bullying falls outside the parameters of federal discrimination laws. However, workplace abuse may be the result of illegal discrimination and, if so, you may be able to file a lawsuit seeking damages from your employer. Federal laws prohibit discrimination on the basis of age, disability, national origin, genetic information, pregnancy, race/color, religion and sex. These laws generally cover employees, applicants for employment, former employees and applicants to, and participants in, training and apprenticeship programs. An employer may include private sector and state and government entities, depending on the law. These laws also make it illegal to retaliate against a person who has complained about an equal employment opportunity violation, or participated in filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute. The U.S. Equal Employment Opportunity Commission (EEOC) enforces most of these laws (Go to: www.eeoc.gov). Here is a list of major federal laws relating to employment discrimination: RACE AND COLOR, RELIGION, NATIONAL ORIGIN, OR SEX

  • Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate on the basis of race, color, religion, national origin, or sex. It is also illegal to harass a person because of that person’s race, color, national origin or sex. Harassment goes beyond simple teasing or an offhand comment; it generally must be severe and frequent, creating an hostile or offensive work environment or resulting in an adverse employment decision (such as being fired or demoted). The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

PREGNANCY

  • Title VII was amended by The Pregnancy Discrimination Act of 1978 (PDA), which makes it illegal to discrimination against a woman because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.

EQUAL PAY

  • The Equal Pay Act of 1963 (EPA) makes it illegal to pay different wages to men and women if they perform the same work in the same workplace. The jobs must be substantially equal and all forms of compensation are covered, including salary, overtime pay, bonuses, stock options, etc. The EPA protects both men and women.
  • Title VII, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA) also prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age or disability. Unlike the EPA, there is no requirement that the jobs be substantially equal.  The Lilly Ledbetter Fair Pay Act of 2009 establishes that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began.

AGE DISCRIMINATION An egregious double standard exists for older workers in federal discrimination law. The Age Discrimination in Employment Act,  29 U.S.C. §§ 621 et seq., makes it “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).” With any other type of discrimination lawsuit, it is enough to show that you were the victim of illegal discrimination.  But not so with age discrimination claims. To prevail on an ADEA claim, the U.S. Supreme Court saysyou must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).  In a Title VII discrimination lawsuit – when the grounds are discrimination on the basis of  sex, race, color, national origin or religion – it is enough to show the discrimination was a motivating factor for the adverse job action (i.e. demotion or dismissal). So … In an ADEA claim, if your employer can point to any other reason for termination– and who hasn’t been late or disagreed with their boss – your lawsuit may be thrown out of court by a judge before it even gets to a jury.  This, despite he fact that you can show that you were the victim of blatant and reprehensible age discrimination. Why are older Americans treated like second class citizens?   I suggest you ask your Congressional representative and U.S. Senator.  Personally, I can’t think of one good reason except, perhaps, that big business has better lobbyists. DISABILITY

  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA),  prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. A disability is a physical or mental impairment that substantially limits one or more major life activities. Employers are required to reasonably accommodate the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or an employee, unless doing so would impose an undue hardship on the operation of the employer’s business.
  • Sections 501 and 505 of the Rehabilitation Act of 1973 make it illegal to discriminate against a qualified person with a disability in the federal government.

GENETIC INFORMATION

  • The Genetic Information Nondiscrimination Act of 2008 (GINA), which took force on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members.

SEXUAL HARASSMENT

  • The Equal Employment Opportunity Commission promulgated guidelines (Sec. 1604.11) pursuant to the adoption of Title VII of the Civil Rights Act of 1964 that make sexual harassment illegal. This includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:  made either explicitly or implicitly a term or condition of an individual’s employment; submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or; such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. With respect to fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) know or should have known of the conduct, unless it can show that it took immediate appropriate corrective action.

CITIZENSHIP STATUS AND NATIONAL ORIGIN

  • Claims of discrimination based on citizenship status and national origin are covered both by Title VII of the Civil Rights Act of 1964 and by the Immigration Reform and Control Act of 1986 (IRCA).
  • The IRCA states that employers cannot discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. Also, employers cannot discriminate on the basis of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylumees. For example, citizenship verification must be obtained from all employees, not just “ethnic” looking employees.The IRCA is implemented by the U.S. Department of Justice, Civil Rights Division, Office of the Special Counsel for Immigration Related Unfair Employment Practices.
  • Title VII prohibits discrimination on the basis of national origin. It bars discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. This law is administered by the EEOC.