Bloomberg Articles on Age Discrimination in Employment

I am excited to be quoted in a series of excellent articles addressing the problem of age discrimination in employment published today by Bloomberg’s Daily Labor Report.

The main article, by Patrick Dorrian, J.D., is Talkin’ ‘Bout All Generations: Workplace Age Diversity Lacking. It touches upon themes that I have explored  in my book, Betrayed: The Legalization of Age Discrimination in the Workplace,  and in this blog and my other blog devoted exclusively to age discrimination. These themes include actions by the Obama administration and Secretary of Labor Thomas Perez that have encouraged age discrimination in hiring, both in the federal government (our nations largest employer) and nationwide.

A second article, Many Wrinkles in Age Diversity, addresses how age discrimination uniquely and negatively effects women both when they are in the workplace and later, when they are living in poverty or near poverty on Social Security.

It is encouraging to see a national media outlook address these real problems that have affected millions of older Americans for years – problems that have been unaddressed even by supposed advocates for this population group.

Ultimately, nothing will or can change until Americans become aware of the prevalence and consequences of irrational and harmful age discrimination in employment which, by the way, they subsidize through their tax dollars in higher social welfare costs.

Thumbs up to Bloomberg!

Evidence Lacking for AMA Prescription for ‘Senior’ Doctors

Fifty years ago, the American Medical Association decried mandatory retirement as the “arbitrary segregation of individuals because of arbitrarily determined chronological age.”

Now the AMA is working on a plan that will allow it to force “senior/late career” physicians into retirement. At its annual meeting last month, the AMA unanimously adopted a plan to spearhead an effort to evaluate “senior/late career”  healthcare providers’ on-the-job effectiveness. The plan was proposed by the AMA’s Council on Medical Education.

The action comes on the heels of a dispute at Stanford University, where the Faculty Senate in May demanded repeal of a 2013 requirement that medical faculty aged 75 and older undergo enhanced health screening and peer assessment to retain their jobs.

Like Stanford University, the AMA fails to provide any evidence as to why it is necessary to screen “senior” physicians.

The plan has drawn the ire of a group that represents surgeons, the Association of American Physicians and Surgeons (AAPS). In a press release, Jane M. Orient, M.D.,AAPS  executive director, states, ” Most situations are not instantly life-threatening, and years of experience and good judgment count, not lightning reflexes and physical prowess.” She said older doctors, especially surgeons, scale back their practices as needed. “Do a few doctors, young or old, do procedures they can’t handle?” asks Dr. Orient. “Perhaps. But who is to sit in judgment on when their skills have begun to slip?” Orient infers the AMA is seeking to establish a new income revenue stream involving certifying doctors over the age of 65.

The actual AMA report on this issue is not available to the public. It is listed on the AMA’s web site but  a viewer must log in to actually see the report.

The AMA reportedly plans to”identify organizations that should participate in the development of guidelines and methods of screening and assessment to assure that senior/late career physicians remain able to provide safe and effective care for patients.” These organizations must then  “work together to develop preliminary guidelines for assessment of the senior/late career physician and develop a research agenda that could guide those interested in this field and serve as the basis for guidelines more grounded in research findings.”

In the absence of any evidence that a plan is even necessary, one cannot help but wonder about the extent of the role of ageist stereotypes in the AMA’s decision-making. These stereotypes include unsupported concerns that older workers are less competent, can’t learn new things, are rigid and quarrelsome, and refuse to accept they should step down and make room for younger doctors.

Few would disagree that it would be appropriate to protect the public if a need can be demonstrated.  But no doctor would prescribe a potent drug without evidence of need. Is it asking too much of the AMA (and Stanford University) to provide evidence of need before violating  the Age Discrimination in Employment Act of 1967? What’s the oath that doctors have to take – First, do no harm.

Important Ruling on Motive & Age Discrimination

Here’s a rare  and important victory in a federal age discrimination case involving a Minnesota city’s failure to promote a 51-year-old police lieutenant to the position of chief of police because he was “retirement eligible.”

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Minneapolis rejected the City’s theory that its action were not-discriminatory because its motive was to hire a long-term police chief.  The City relied upon a theory expounded by the U.S. Supreme Court in 1993 that it is not age discrimination if  an employer is motivated by a reason that is related to but “analytically distinct” from age discrimination (i.e. salary or pension status).

“On the facts here,” the appeals court ruled, “retirement eligibility is always correlated with age because it is dependent on the employee reaching 50; it cannot be ‘divorced from age.’”  Moreover, the  panel said that assuming a candidate is “uncommitted to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits.”

The Court reversed the lower’s court’s dismissal of the case and remanded the case for further proceedings.

Lt. LeRoy Arthur Hilde, 51, a 29-year-veteran of the Eveleth police force, failed to win promotion in 2012 despite the fact he was the department’s only lieutenant and second highest in rank. It was not disputed that he had an excellent reputation on the force and he was recommended for promotion by the outgoing police chief. Hilde alleged the City violated the Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act.

A police committee that was responsible for filling the vacancy had, in the past, promoted only internal candidates. However, this time, the three-member committee sought both internal and outside applicants. It selected  Timothy Howard Koivunen, 43, a police detective from Virginia, Minnesota,

The City did not deny that a factor in the commission’s decision was that Hilde was “retirement eligible.” Koivunen had at least eight more years before he could retire.

 Pretext

The appeals court also rejected the lower court’s finding that Hilde failed to show the city’s reason for failing to hire him was a pretext for age discrimination.  The panel was troubled by markings on the scoring sheets that indicated Hilde’s scores were altered, noting that the commissioners denied or claimed not to remember changing Hilde’s scores.

“Before the interviews, Hilde was the most qualified candidate with more than double Koivunen’s score,” the appeals panel noted.

Hilde received the same mediocre score of 69 from each commissioner for his interview, while Koivunen received a uniform score of 100 from each of the commissioners. At the end of the scoring, both candidates were tied.

The panel concluded the evidence showed the committee members wanted to “level” the scores of the two candidates so they would be “similarly qualified”’ and that this called into question “the objectivity of the entire hiring process.”  Moreover, the appeals court states that an employer’s failure to follow its own policies may support an inference of discrimination when the departure affects only the affected candidate.

The appeals court also disagreed with the City’s claim that Koivunen was the ‘obviously superior candidate,” noting “this is refuted by its rankings of Koivunen and Hilde as tied.”

Finally, the appeals court rejected the lower court finding that the difference in age between Hilde and Koivunen – eight years – was not substantial.  The appeals court noted that it had previously ruled that a difference of six years was substantial.

The case is Lt. LeRoy Hilde v. City of Eveleth, No. 14-1016 (Feb. 6, 2015).

Obama Forgot to Fight Age Discrimination

“Obama will fight job discrimination for aging employees by strengthening the Age Discrimination in Employment Act … .”  Source: Blueprint for Change (2008)

I was surprised when I recently read that President Barack Obama pledged in 2008 to strengthen the nation’s primary law prohibiting age discrimination, The Age Discrimination in Employment Act of 1967.

Surprised because the ADEA is much weaker today than it was when Obama was running for President in 2008 . The ADEA was decimated by an adverse U.S. Supreme Court decision in 2009. Congress could have legislatively “fixed” the Court’s ruling but has failed to pass the Protecting Older Workers Against Discrimination Act for five years.  But I was most surprised because Obama himself is responsible for weakening the ADEA.

Obama signed an executive order in 2010 that allows federal agencies to discriminate against older workers by hiring “recent graduates” –  which is in direct contravention to the ADEA.  What message does it send to private employers when the U.S. government deems it appropriate to discriminate on the basis of age? Whether intended or not, Obama’s executive order serves as a green light for employers to engage in harmful, invidious age discrimination.

Meanwhile, Obama’s administration is in the process of planning a White House Conference on Aging this year . Organizers so far have completely ignored the unaddressed epidemic of age discrimination in the workplace that is catapulting older workers into chronic unemployment, low wage jobs and forced early “retirement.”

The Conference recently announced it is partnering with the AARP, the nation’s leading purveyor of supplemental Medicare health insurance, to co-sponsor five regional forums to hear from the public “on issues such as ensuring retirement security, promoting healthy aging, providing long-term services and support, and protecting older Americans from financial exploitation, abuse, and neglect.” Promote healthy aging?  Hmmm … Do you have supplemental Medicare health insurance?

Obama’s unfulfilled campaign promise points to yet another reason that the problem of age discrimination is so prevalent in America today. Older Americans have failed to effectively marshal their resources  to insure that their interests are not forgotten by politicians the day after the election.   In his State of the Union Address last week, President Obama focused on young families and the middle class and failed to even mention issues of particular concern to older Americans,

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I explore the reasons that age discrimination is treated like a lesser offense when compared with discrimination on the basis of race, sex, religion and national origin.  I show that age discrimination is about perception, not reality.  It is about unfounded stereotypes and deep-seated animus. And it has a devastating impact on the health and welfare of older Americans.