The EEOC, Age & the Great Recession

The Great Recession hit older workers like a baseball bat.

Older workers were fired and laid off, dumped nto a sea of long-term unemployment, poorly-paid temp or part-time work and into an ill-advised early retirement. Many have not recovered and never will.

In my new book, Betrayed: The Legalization of Age Discrimination, I write that a record number of age discrimination complaints were filed with the U.S. Equal Employment Opportunity Commission (EEOC) during the recession. The agency did little to respond to the precipitous upswing in age discrimination complaints and has continued to  ignore the problem. I note that in 2013 the EEOC received more than 21,000 complaints of age discrimination but filed only seven lawsuits with age discrimination claims. The book was published in late August.

I was pleased to read an announcement by the  EEOC  on Monday that the agency had settled an age discirmination lawsuit that it filed on September 15 against DSW Inc., a national shoe retailer which allegedly unfairly fired older workers from 2008 -2009.  The agency said DSW had agreed to pay $900,000 in monetary relief to seven former managers and about 100 other former employees. If split evenly, that works out to approximately $8,400 per age discrmination victim. The settlement also requries DSW to report any future employee complaints of age discrimination to the EEOC for the next three years and to revise its anti-discrimination policy.

DSW, which is based in Columbus, Ohio,  allegedly used a common tactic to get rid of older workers during periods of economic turmoil. The EEOC alleged that DSW used a “reduction in force”  to fire the older workers, and then retaliated against employees who refused to fire other workers based on their age.

DSW issued a statement in which it denied engaging in age discrimination, insisting it settled the case to avoid the costs of litigation. “Those difficult decisions were driven by economic volatility and were in no way influenced by the age of associates,” the company said.

Charges filed with the EEOC under the Age Discrimination in Employment Act have increased about 36 percent since 1997, from 15,785 to 21,396. The number of complaints reached an all-time high of 24,582 in 2008.

The case, EEOC v. DSW Inc., Civil Action No. 14-cv-07153, was filed in the U.S. District Court for the Northern District of Illinois.

 

Google Omits Age from Diversity Goals

Something is missing from diversity statistics posted online  this week by Google – information about the age of its workforce.

Google posted statistics showing a workforce that is (surprise!) incredibly non-diverse in gender and race.  Google’s workforce is  70 percent male and 30 percent female. And Google’s workforce is 61 percent white  and 30 percent Asian. Only three percent of Google’s workforce are Hispanic, two percent are African-American and four percent are described as “two or more races.”

The numbers apparently were compiled as part of a report that major U.S. employers must file with the Equal Employment Opportunity Commission.  The EEOC report collects information about sex and race.  Companies are not required to make the information public.

Google  chose to publicly divulge  the damning figures about its overwhelmingly white male workforce, but did not reveal the ages of its employees.  Isn’t that a statistic that Google deems important in terms of measuring a diverse workforce?  Just how  many workers at Google are over the age of 40, the age at which workers fall under the protection of the Age Discrimination in Employment Act of 1967.

One can only speculate why Google has ignored age in its discussion of diversity. Possibly the numbers are drastically askew and Google fears an age discrimination lawsuit.  It’s not exactly a secret that  Silicon Valley generally and Google, in particular,  celebrate a youth culture.

A few years ago, Google settled a lawsuit alleging age discrimination by Brian Reid, who was hired by Google in a senior tech role when he was age 54 .  Reid  left after two years when he was re-assigned to head up a new program with no staff that was quickly phased out..  Reid said supervisors and co-workers at Google made  derogatory comments about his age, stating that he was not a “cultural fit” for the company, that he was “an old man,” “slow,” “sluggish,” “lethargic” and “an old fuddy-duddy” who “lacked energy.” Co-workers allegedly joked that Reid’s CD (compact disc) jewel case office placard should be an “LP” (which stands for long-playing record). The lawsuit was reportedly settled after the California Court of Appeals said Reid had presented undisputed evidence supported a prima facie case of age discrimination.

According to a story in  the New Republic, age thirty is over-the-hill in Silicon Valley, where “[t]ech luminaries who otherwise pride themselves on their dedication to meritocracy don’t think twice about deriding the not-actually-old.”

The  diversity statistics provided by Google are even worse than they first appear. Of the 30 percent of Google’s workforce who are female, only about 18 percent work in professional tech jobs.  Only one percent of blacks and two percent of Hispanics who work at Google work in prize tech jobs.

Of the company’s “leadership” team, 79 percent are male and 21 percent are female;  72 percent are white; 23 percent are Asian; two percent are black; 1.5 percent are identified as “two or more races” and one percent are Hispanic.

 

 

Staples Must Pay $26 million for Age Discrimination

A Los Angeles Superior Court jury  hit the “Easy” button and ordered Staples, Inc., the office supply chain, to pay  $26 million in damages in an age discrimination case.

Bobby Nickel., 66, was hired in 2002 to work as a facilities manager for Corporate Express. He had positive employment evaluations until 2008, when the company was purchased by Staples Inc.  Nickel said Corporate Express’ pay scale was higher than the pay scale for employees hired by Staples.

Nickel said he was a  victim of age discrimination and wrongful termination by Staples managers who were intent upon pushing out older workers who earned higher salaries.

The jury deliberated for two days before awarding Nickel $22.8 million in punitive damage and $3.2 million in compensatory damages on February 27.

Nickel alleged that Staple’s used the following  tactics to run him out of his job as a facilities manager:

  • A supervisor prompted  Nickel  to resign.
  •  Nickel said he was disciplined for a series of minor infractions.
  • He suffered increasing levels of harassment from co-workers and a manager;  was the regular butt of jokes at staff meetings;  and was referred to as “old coot” and “old goat.”
  • A receptionist  told Nickel that she was ordered by management to provide a false statement about Nickel’s conduct but that she refused to do so.

Nickel was suspended and  fired in 2011 when he was 64 years of age for allegedly stealing a 68-cent bell pepper from the Staples cafeteria.  Nickel said he intended to pay for the bell pepper through an honor system set up by the cafeteria vendor. However,  Staples said the  taking of the bell pepper violated the company’s zero-tolerance policy when it came to “dishonesty of any kind, including theft or misappropriation of company property.”

A Staples spokesman said the company disagrees with the verdict and plans to appeal.

1 in 5 Older Workers Report Age Discrimination

Problem Worse for Minorities

Twenty percent of workers aged 50 or older say they have personally experienced age discrimination in the workplace since turning age 50.

This is a finding from a national survey of 1,024 adults aged 50 and over by the Associated Press NORC Center for Public Affairs.

The problem is more acute for non-whites. Twenty-eight percent of non-whites who are aged 50 or older say they have personally experienced prejudice or discrimination in the job market due to their age compared to 17 percent of whites.

Types of discrimination suffered by workers include being passed over for a raise, promotion or chance to get ahead, receiving unwanted assignments or being denied access to training or the opportunity to acquire new skills because of their age.  Thirteen percent of those surveyed said they heard unwelcome comments about their age in the workplace.

And that’s older Americans who are working!

Unemployed

Other research shows that older Americans who lose their jobs descend into a black pit of unemployment that many cannot escape.  The share of workers who’ve been unemployed for more than six months was 37.9 percent in August 2013. But for those 55 and older, nearly one in two (47 percent) were out of work for  six months or more.

Hundreds of thousands of older Americans have been forced to retire as soon as they can claim Social Security retirement benefits  – when they reach the age of 62 –to survive economically. Those who retire at age 62 receive a 25% cut in benefits for the rest of their lives.

The AP survey found that more than a third (33%) of Americans who are retired said they did not feel they had a choice except to retire.  Fifty-four percent of retirees under age 65 felt they had no choice but to retire compared with 23 percent of retirees 65 or over.

It is unclear why so many older Americans are suffering from what appears to be unprecedented rates of discrimination and joblessness. One reason could be that employers know that they likely will not be held accountable for age discrimination.

The U.S. Supreme Court issued a devastating decision,  Gross v. FBL Financial Services, in 2009 that eviscerated the Age Discrimination in Employment Act of 1964 by establishing a much higher standard of proof for victims of age discrimination than exists for victims of race of sex discrimination.  The U.S. Congress could have “fixed” the damage but has not acted.  In addition, the U.S. Equal Employment Opportunity Commission has filed only a fraction of lawsuits in recent years against employers compared to the past.

Other findings

Other findings from the AP survey indicate that former notions of “retirement” as an end to one’ s work life are dead or dying:

  • Before the Great Recession, the retirement average age was 57, while the average for those who retired afterwards is 62.
  • Among those who are working and not yet retired, 47 percent say it is very likely that they will do some work for pay during their retirement and another 35 percent say it is somewhat likely.
  • Twenty-two percent of adults age 50 years and older have searched for a job in the last five years. Of these, 55 percent found the job search to be moderately or very difficult.
  • About a quarter (24%)  of Americans aged 50 and older report having less than $10,000 in retirement savings and  investments. Thirty-nine percent of all people ages 50 and older report having less than $100,000 tucked away for retirement, not including pensions or the value of primary residences.