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.

Spaeth v. Age Discrimination in American Law Schools

Update,  on Mar 17, 2014, Nicholas Spaeth was found dead in his apartment in North Dakota, in what authorities have treated as a suicide.

Update, May 2013: Nicholas Spaeth’s complaint against Georgetown University was dismissed before it could ever reach a jury in May 2013.  U.S. District Court Judge  Ellen Segal Huvelle ruled the use of words such as “young” or “pick of the litter” in discussing law professor applicants was not evidence of discrimination against older applicants in Georgetown University Law Center’s hiring process. (editors note: Really???) Spaeth produced an internal university memorandum discussing the need to hire “promising young scholars” and praising the “young cohorts” at peer institutions as an example of bias against older candidates. 

Update, February 2011:  A federal judge ruled in February 2011 that a law school professor suing six law schools for employment discrimination based on age must sue each of the schools separately and in their home districts.  Nicholas Spaeth sued Michigan State University College of Law, the University of Missouri School of law, Hastings College of the Law, University of Iowa College of Law, the University of Maryland, Baltimore and Georgetown University, claiming that the schools passed him up for a tenured teaching position, opting for younger candidates instead. U.S. District Judge Ellen Huvelle denied the schools’ motion to dismiss the claims, but agreed that each school had to be sued separately and within their home district. Below is the story I wrote about Spaeth’s first lawsuit against Michigan.

A former attorney general for the state of North Dakota is challenging blatant age discrimination in hiring in American law schools.

A complaint filed by Nicholas Spaeth, 60, in U.S. District Court describes a scenario that is so egregious that, if true, one can only hope the perpetrators find themselves on the job market soon (very soon) facing employers just like themselves. Click here to read the complaint.

The defendant is the Michigan State University College of Law, East Lansing, Michigan, though it appears that many others will join Michigan in the defendant’s box.

Spaeth, a magna cum laude graduate of Stanford Law School, says he couldn’t even get an interview for several advertised teaching position at the law school. He has served as general counsel at three publicly held companies with billions in assets, argued a groundbreaking tax case before the U.S. Supreme Court, and was a partner at three law firms. He also taught for four years at the University of Missouri School of Law, three years as an adjunct and one year as a visiting professor.

Let’s just say the guy has stellar qualifications.

The complaint states the law school ended up hiring three attorneys for the 2011-2012 school year who graduated in 2006, 2005 and 2001, respectively. All three allegedly had far less experience both qualitatively and quantitatively than Spaeth. In fact, the complaint states that one of the new hires had no experience as a legal practitioner.

The applicant who was hired by Michigan to teach in Spaeth’s area of speciality, corporate taxation, had three years of practical experience as an associate in a law firm.  Spaeth, who served two four-year terms as North Dakota’s Attorney General,  is a former general counsel of H & R Block.

Going through an experience like the one described by Spaeth would make any job applicant feel like he was whacked upside the head with a two-by-four plank.

And it is always worse when a law school  discriminates because a law school educates students who will one day be the attorneys and judges who are enforcing our nation’s anti-discrimination laws. Don’t these guys teach employment law?  One shouldn’t jump to conclusions though.  We’ve only heard Spaeth’s side of the story. It will be interesting to see Michigan’s answer to Spaeth’s complaint.  (Right now, I suspect they’re sweating!)

[According to Wikipedia, Spaeth does not go with the flow. He  is the only statewide, elected official in North Dakota’s history not to be endorsed by the National Rifle Association.  He is a life-long advocate of gun control.]

The dean of Michigan State University College of Law is Joan W. Horwath, who is described as an expert on gender and the death penalty and a leader in legal education through work with the Association of American Law Schools, the American Bar Association, and the Society of American Law Teachers.  She is quoted by the Blog of the Legal Times as stating the school has not yet received notice of Spaeth’s complaint.  She added: “When or if one comes our way it will be a false accusation because we do not and have not discriminated on the basis of age.”  (FYI – I am old enough to remember a time when women could not attend many prestigious universities and law schools in this country because they were women. That was just 30 years ago. People like Joan have reaped the benefits of a struggle undertaken by generations of victims of sex discrimination. As an expert in gender, one would certainly hope that Joan would insure that her own law school didn’t engage in discriminatory practices.)

Attorneys Lynne Bernabei and Alan Kabat of Washington’s Bernabei & Wachtel represent Spaeth, who previously filed complaints with the U.S. Equal Employment Opportunity Commission against more than 100 law schools that also did not offer him an interview at the Association of American Law Schools’  Faculty Recruitment Conference.