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EEOC Acting Chair says it’s time for “thorough Review” of Age Discrimination in Employment Act

EEOC Acting Chair Victoria Lipnic said Thursday the Age Discrimination in Employment Act of 1967 – which turns 50 Friday – “deserves a thorough review to insure it is meeting the needs of today’s workforce.”

In addition, she said, “We need a cultural awakening. Instead of  negative expectations, how about recognizing the positives? Age diverse teams and cross-generational mentoring produce real benefits for both workers and employers.”

“Utilizing the talent of everyone, regardless of age, is good business. This is talent that our economy cannot afford to waste. . .” – Lipnic

Lipnic was not specific about why she believes the ADEA deserves a thorough review; how the ADEA may be failing to meet the needs of today’s workforce; and whether the ADEA will indeed get the thorough review that it deserves.

Lipnic focused on what she characterized as the ADEA’s success. She noted the ADEA was adopted in 1967 when “age discrimination was blatant. Workers over age 45 were barred from many jobs based solely on their age and mandatory retirement was commonplace for those in their 60s. Since then the ADEA has largely stopped openly discriminatory practices. But age discrimination is still too common and often accepted.” She said older workers continue to confront negative stereotypes and that age discrimination deprives them of their dignity and financial security.

But is the ADEA a success?

Others would point to evidence that age discrimination remains blatant, epidemic and unaddressed 50 years after the ADEA’s adoption.

Older workers are (and have been for years) significantly underrepresented in the high-tech industry while Silicon Valley employers unabashedly word job advertisements to discourage older applicants. Some, for example, advertise to hire “digital natives” or specify a maximum number of years of experience.

The U.S. government is openly engaged in blatant age discrimination in hiring through the Pathways Recent Graduates program, which since 2012 has barred older workers from applying for almost 100,000 jobs.  When former President  Barack Obama signed an executive order in 2010 establishing the program, he sent a message to private sector employers that age discrimination was reasonable, necessary and would be overlooked. And it was overlooked.

The ADEA’s 50-year-old mandatory retirement provision still exists for a large swath of workers, including public safety workers who are forced to retire with fat pensions and then go on to perform the same work in private industry. Some also might argue that while formal “mandatory retirement” rules are largely gone, older workers are effectively pushed out of the workforce by age discrimination. Older workers disproportionately languish in long-term unemployment and end up in temp, part-time or low wage work. Many are forced to retire as soon as they become eligible for Social Security, which results in lower Social Security benefits for the rest of their lives. Research shows that older women suffer the highest rate of age discrimination in hiring.

Lipnic did not address criticism that the EEOC failed to aggressively enforce the ADEA during and since the Great Recession, has ignored blatant age discrimination in hiring by Silicon Valley and the federal government,  and itself discriminates against older workers in administrative decision-makings and in hiring.

Finally, Lipnic said the basic purpose of the ADEA is that “ability matters, not age.” However, that’s not what President Lyndon B. Johnson said after he signed the ADEA into law. Johnson said:

The ADEA “does require that one simple question be answered fairly:  Who has the best qualifications for the job?”

There’s a big difference between “ability” and “qualifications.”  Society traditionally had judged  ability by qualifications.  However, the EEOC issued at least two decisions this year in which objective qualifications were ignored and hiring decisions were based upon subjective criteria like poise and cultural fit. In one case, the EEOC ruled a middle-aged male hiring officer for the Social Security Administration did not engage in age discrimination when he refused to hire a 60-year-old women who did not fall within his perception of “cultural fit.”  Instead, the hiring officer selected five applicants under the age of 40, including many recent graduates.

In my groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA is far weaker than Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. I note that a broad swatch of discrimination that is illegal under Title VII is perfectly legal under the ADEA. Since its adoption, the ADEA has been eviscerated by the U.S. Supreme Court which, among other things, ruled in 2009 that ADEA plaintiffs must show a much higher standard of causation than Title VII plaintiffs. In addition, the ADEA does a poor job of deterring age discrimination because it sharply limits the amount of damages that an ADEA plaintiff can recover. Unlike Title VII, the ADEA does not permit plaintiffs to seek compensatory damages for emotional distress or punitive damages.

 

Is the EEOC Finally Noticing Age Discrimination?

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.

New Book on the Legalization of Age Discrimination

Even Workers Otherwise Considered to be Young are Vulnerable

Why are workers in their 30s, 40s and 50s increasingly experiencing age discrimination?

This one of the issues I explore in my new book: Betrayed: The Legalization of Age Discrimination in the Workplace. The short answer is that age discrimination has become normalized due to a confluence of failures by American institutions that have effectively gutted the Age Discrimination in Employment Act of 1967 (ADEA).

Almost 50 years after the ADEA’s passage, age discrimination remains epidemic in the United States, hidden behind terms such as “long-term unemployment” and “early retirement.” And the problem is trickling down to ever younger workers.

Did you know:

• The new titans of commerce in Silicon Valley openly flaunt the ADEA . Workers in their 30s use Botox and hide their families to avoid the appearance of middle age.

• The U.S. Supreme Court eviscerated the ADEA in 2009 just as the Great Recession fueled unprecedented incentive for employers to rid their payrolls of higher paid older workers. The U.S. Congress easily could have “fixed” the problem by passing the Protecting Older Workers Against Discrimination Act (POWADA) but has not done so.

• The U.S. Equal Employment Opportunity Commission received 21,296 age discrimination complaints in 2013; the agency filed seven lawsuits that year with age discrimination claims.

• Forty percent of workers in households nearing retirement age have no retirement assets whatsoever, whether in an employer-sponsored 401(k) type plan or an IRA. Reasons for this include age discrimination, long-term unemployment, and the decline of traditional pensions.

Of course, age discrimination is problematic for  younger workers but it is a devastating life-altering catastrophe for older workers . They often are plunged into long-term unemployment or forced to take poorly-paid part-time or temp work until they age into early retirement, which will result in significantly lower Social Security benefits for the rest of their lives.

Betrayed: The Legalization of Age Discrimination in the Workplace is now available as an e-book at Amazon.com, http://www.amazon.com/dp/B00MYREMRY. It is also available in paperback at https://www.createspace.com/4960074 and from Ingram Spark.

Please pick up a copy and I would grateful if you would take the time to review it on Amazon!

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‘Want Ads’ and Age Discrimination

Are you a recent college graduate … Pulte Mortgage (a subsidiary of Pulte Homes) is always looking for energetic and motivated individuals who are ready to take the first step in building a long-term mortgage career! – Simply Hired, 6/26/14.

“We are currently seeking an associate with 2-3 (MAXIMUM) years of Labor and Employment experience.” – Craig’s List,  6/26/14

Anyone who doesn’t think that age discrimination is rampant and unaddressed in American society should take a look at the “want ads.”

An easy and obvious way that employers  discriminate against older applicants is to require job applicants  to be recent college graduates or to have a maximum amount of experience.  These types of advertisements are seen on most if not all  Internet hiring sites.

One reason  the U.S. Congress passed the Age Discrimination in Employment Act (ADEA) in 1967 was to prohibit  job advertisements  that barred applicants over a certain age from applying. At that time, one-half of all private-sector job openings explicitly barred applicants over the age of 55 and one-quarter barred workers over the age of 45.  More than 60 percent of low-skilled industrial jobs had age cut-offs between 35 and 49 years of age, and 13 percent of sales jobs were limited to workers under the age of 35.

Imagine being 35 years old and barred from applying for a sales job!  Wait a minute.  You don’t have to. You can be barred from applying  for a sales job today at the age of 35 if you have more than two or three years of experience.

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