Who Owns the Problem of Age Discrimination?

Part of the problem of age discrimination in the workplace is that nobody seems to claim ownership of it.

Folks who have already retired are very interested in the issue but it doesn’t affect them directly anymore, except to the extent that it contributes to health issues and poverty in retirement.

Younger workers don’t seem to comprehend that they are the ones who are most directly affected by age discrimination in the workplace. Of course, they are scrambling to survive and raise families in this precarious pro-business economy where workers generally have few rights.  In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that the problem of age discrimination is so prevalent in America today that it has become the new normal and is even affecting workers in their 30s. To some extent, lack of awareness is in the nature of youth.  As Aristotle said, “Youth is easily deceived, because it is quick to hope.”

The upcoming White House Conference on Aging has not shown any indication that it will address the epidemic of age discrimination in the workplace, a problem made incrementally worse in 2010 when President Barack Obama signed an executive order allowing federal agencies to discriminate against older workers and hire “recent graduates.”  The Conference issues page  identifies the following themes: healthy aging, long term services and supports, and elder justice (abuse and neglect).  Age discrimination  in employment is no-where mentioned.

My book  documents the inferior treatment accorded under the law to victims of age discrimination in employment. I show that the major federal law that prohibits age discrimination, the Age Discrimination in Employment Act, was weak and riddled with loopholes when it was passed by Congress in 1967 and has been eviscerated by the U.S. Supreme Court.  Today, there are virtually no consequences for employers who engage in blatant age discrimination and many incentives to do so (e.g., cost-savings, youthful image).

Why have older workers have been second class citizens  under the law for fifty years? The AARP, which earned $1.34 billion last year selling insurance and travel products to older Americans, claims to be a champion of the rights of older Americans.  Is the AARP really so powerless that it cannot insure that older workers at least have the same protections and rights as other Americans?

The most recent major assault on the ADEA occurred in 2009 when the U.S. Supreme Court in Gross v. FBL Financial Services established a higher standard of proof in ADEA cases than exists under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion and national origin.  That year, a handful of progressive legislators proposed the Protecting Older Workers Against Discrimination Act, which would legislatively “fix” the Gross decision. The POWADA has never made it out of committee.

Contact the White House Conference on Aging and urge conference director Nora Super to address the problem of age discrimination in the workplace. The conference email address is info@whaging.gov

AARP: What’s Wrong with this Picture?

Well, I finally heard from the AARP.

Readers may recall that I attempted numerous times without success in September 2014  to contact the leadership of the for-profit AARP and its non-profit advocacy arm, the AARP Foundation, about my new book, Betrayed: The Legalization of Age Discrimination in the Workplace.   The book exposes the failure of the Age Discrimination in Employment Act of 1967 to protect older workers during and since the Great Recession and documents the suffering of older workers who are forced by epidemic age discrimination into a penurious early retirement.

I got no response from the AARP.  Meanwhile, I wrote articles for the International Federation on Aging and the American Society on Aging (forthcoming) on the connection between age discrimination and problems in retirement.

I was baffled by the  complete silence from AARP leaders – not even a “thank you but get lost.” Like most Americans, I thought the AARP was the nation’s leading advocacy group for older Americans. I wrote an article for this blog on Oct. 6  about the fund-raising emphasis and inane issues listed on the AARP Foundation’s web site – “AARP Foundation invites NASCAR fans to ‘Ride with Jeff” and  “Couples say relationships benefit from volunteering together.”  A few days later, I wrote another article about how other countries advocate for equal rights for older workers.

On Nov. 4, out of the blue, I received an email from Lisa Ryerson, the head of the AARP Foundation, who invited me to contact her.  In a reply email, I asked if she would agree to set up an appointment to discuss the problem of age discrimination.  She forwarded my request to Stuart Cohen, the head of the AARP Foundation’s legal team, who in turn forwarded my request to two other AARP officials, who were nice enough to talk to me for an hour last month.

In our discussion, I outlined my proposed short-term and long-term strategy for addressing the problem of age discrimination, starting with a focus on the passage of the Protecting Older Workers Against Discrimination Act (POWADA) and listing age discrimination as an issue to be addressed at the upcoming  White House Conference on Aging.

The POWADA, which has languished in Congress for five long years, would reverse at least some of the damage inflicted on older workers by a 2009 U.S. Supreme Court’s decision, Gross v. FBL Financial Services.  That decision raised the level of proof in age discrimination cases far above that for race or sex discrimination cases.  Older workers  today are literally second class citizens in our nation’s court system, which is completely contrary to basic American concepts of fairness and equal justice under the law.

Meanwhile, age discrimination is so pervasive that it is trickling down to workers in their 30s and 40s who are by any other standard young.  Even the federal government has gotten into the act. President Barack Obama in 2010 signed an executive order establishing the Pathways “Recent Graduates” Program  which allows federal agencies to  bypass older workers and hire  young workers.  How can we expect private employers to obey the law when the federal government doesn’t?

In our discussion, I  equated the failure to pass the POWADA to the “Broken Window” theory, which holds that a broken window in a neighborhood is an invitation to thieves because it shows the neighborhood is overlooked and neglected. If older Americans can’t expect equal rights in the courts, how can they expect equal rights elsewhere?

One of the AARP officials sent me an email a few days later thanking me for my interest but stating that the AARP was already doing some of the things on my list. Whatever that means?

The AARP takes credit every year that Congress fails to cut Social Security. The AARP Foundation monitors Congress and the legal team files amicus or friend of the court briefs in U.S. Supreme Court cases and represents a select few individual s in lawsuits involving age discriminaton. But that obviously is not enough.  If it were, the POWADA would be law.

The POWADA hasn’t even made it out of committee for five years.  The failure to pass the POWADA reflects astounding ignorance and inexcusable neglect. No one  has come forward to oppose the POWADA because that would be like opposing equal rights for older Americans. The immediate passage of the POWADA is the absolute minimum that older workers should expect.  Even that will not improve the situation significantly because the ADEA is still hopelessly flawed. Older workers  are denied the same level of protection that is provided under Title VII. I have advocated scrapping the ADEA and making age a protected class under Title VII.

Hoovers estimates the value of the AARP, Inc., which sells medical insurance and travel products to an estimated 37 million members, to be more than $1.34 billion.  Sholdn’t older Americans be getting more bang from their bucks. What’s wrong with this picture?

Alternate Ways to Advocate for Older Workers

For years, older workers in the United States have been subject to epidemic, unaddressed age discrimination.

I recently wrote a book, Betrayed: The Legalization of Age Discrimination in the Workplace, which lays out the problem in graphic and undeniable detail. Older workers have far fewer rights under the Age Discrimination in Employment Act than do protected groups under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion and national origin.  Also, the U.S. Congress and the Equal Employment Opportunity Commission have virtually ignored an unprecedented rise in age discrimination complaints since the onset of the Great Recession.

To my knowledge, Betrayed: The Legalization of Age Discrimination in the Workplace is the first book to seriously examine the systemic nature of age discrimination in the workplace in modern times.  It makes a compelling case for change. Yet, in recent weeks, I have contacted numerous officials at the organization that is widely believed to be the chief advocacy group for older Americans.  Among others, I emailed the president of the AARP, the director of the AARP Foundation, and the head of the AARP Foundation Legal Section. I have received no response.

Given the overwhelming apathy toward age discrimination in the workplace in the United States, how can older workers create the necessary incentives to improve public policy and the law?

Two countries, Australia and Denmark, have taken a far more aggressive approach to age discrimination in employment than the United States.

Australia appointed its first Age Discrimination Commissioner on July 30, 2011 to a five-year term. Commissioner Susan Ryan recently commissioned the first “national prevalence survey” on age discrimination in the workplace. “[T]his new survey will provide the first national picture, reporting the experiences of people who have been discriminated against, and employers large and small … It will provide a strong basis for better policy and for more positive action by employers and government.”  This type of survey is desperately needed in the United States, where age discrimination is hidden by catch-phrases like  “long-term unemployment” and “early retirement.”

Another model worthy of examination exists in Denmark. The DaneAge Association is an independent, non-profit national membership organization founded in 1986 to provide advocacy “through an ongoing dialogue with the government and the public, promoting a society without age barriers and ageism.”  DaneAge has 690,000 members in 217 Local chapters across Denmark, including 15,775 volunteers who engaged in local advocacy. Among other things, the organization, which has approximately 100 staff members,  provides “free-of-charge and impartial legal advice and counsel” by lawyers and other professionals. Denmark is widely regarded as having the highest quality of life  for its citizens in the world.

For years, older workers in America have been dumped into the quicksand of long-term unemployment, relegated to menial and poorly paid work and, finally, forced into a penurious and unwanted early retirement.  This is because the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court.  Congress must  insure  that  older workers  at least have the same level of protection against employment discrimination that is afforded to protected groups under Title VII.  An  discrimination commissioner could champion the rights of older workers. By contrast, the U.S. Equal Employment Opportunity Commission  received more than 21,000 complaints of age discrimination last year and filed only SEVEN lawsuits with age discrimination claims.  And older workers deserve to have an independent, non–profit  advocacy group that will aggressively fight for the rights of older workers in the halls of Congress and across the nation.

WANTED: Advocacy Group to Help Older Workers

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 is the equivalent of 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 eliminate one of many inequities facing older workers compared workers who are protected under 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 lobby 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.