‘Transgender’ Now Accorded More Protection than ‘Age’

There is a national movement going on right now to boycott states that force transgendered individuals to use the restrooms of their biological sex rather than their chosen identity.

Many companies, including  Target, have denounced  laws that restrict  a transgender individual’s choice of bathroom as sex discrimination.  Some major American corporations  have threatened to withdraw from North Carolina because it has limited the right of transgendered individual to use their bathroom of choice. Moreover, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit recently voted 2-1 to uphold the  U.S. Education Dept.’s position that it constitutes illegal sex discrimination to exclude transgender students from the bathrooms of their chosen gender identities.

According to the most frequently cited estimate, 700,000 people in the United States, or about 0.2 to 0.3 percent of the population, identify as transgender.

Compare this to the millions of older workers who each year are subject to epidemic and overt age discrimination in employment with nary a hint of protest or outrage from anyone, including organizations that purport to advocate for older Americans and civil rights.

 Indeed, at this point, transgender people technically have greater rights under the law than older workers to be free from invidious discrimination.

The U.S. Equal Employment Opportunity Commission contends that trangendered individuals are protected by Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, sex, religion, national origin and color. By contrast, age discrimination falls under the Age Discrimination in Employment Act of 1967, (ADEA), which permits “reasonable” age discrimination by employers.   Title VII also contains penalties that are far more onerous than those of the ADEA.

Why have the rights of millions of older Americans to be free from irrational and harmful employment discrimination been ignored for 50 years?

The rights of transgendered individuals are at issue today because advocates in  the gay and lesbian communities and in the entertainment community have taken a public stand to combat ignorance and prejudice against transgendered individuals. This has essentially forced major corporations to adopt policies prohibiting discrimination against the transgendered so as not to be seen as endorsing transgender discrimination.

Alas, the same is not true for older workers.

No one is demanding that Congress  or the courts accord equal rights to older workers under the law, including the AARP, the EEOC  and the American Civil Liberties Union.  Meanwhile, the same corporations that demand rights for the transgendered are engaging in systemic age discrimination.

The plight of older workers began in 1964  when Congress refused to include age as a protected class in Title VII.  After three years of lobbying by business interests, Congress passed the ADEA, a severely watered down version of Title VII that  has exposed generations of older Americans  to wholesale and perfectly legal age discrimination in employment, especially in hiring.

There also is little public sympathy for older workers.  Stereotypes about older people are profoundly negative  (i.e. rigid, feeble, depressed). Older workers often are seen by younger workers as impediments to job advancement and limited resources. Employers, including the U.S. government, treat older workers like an obstacle to a more diverse workforce. Moreover, researchers say many people subconsciously associate aging with death and disease.  There also is little understanding about the long-term and severe impacts of age discrimination, which condemns millions of women  to decades of poverty in their later years.

Of course, these observations are not meant to begrudge transgender individuals their basic human right to be treated with dignity and respect but simply to point out that older Americans too deserve to be free from invidious and harmful  discrimination.  If every type of irrational and harmful  discrimination is treated with the same degree of condemnation and outrage, there will be far less discrimination against all Americans, including transgendered individuals.

OK for Feds to Discriminate on Basis of Age

Unemployed older workers today are facing an unprecedented crisis. They are out of work at least twice as long as other workers. Many never find jobs and are forced to spend down their savings until they can retire, whereupon they receive reduced Social Security benefits for the rest of their lives.

So why would the United States  government blatantly discriminate against older workers in federal hiring?

A reader recently forwarded to  my attention a job recruitment  notice from the U.S. Citizenship and Immigration Services’ Department of Homeland Security (DHS).  The job advertisement seeks “recent graduates” to fill  numerous “asylum officer” positions in Houston, TX, that pay from $53,496 to $84,139 per year.  Applicants must have earned a degree –  ranging from a vocational/technical degree to a professional or doctorate degree –   within the previous two years.

My first thought was is this even legal?  “Recent graduate” is a not very subtle code word for “younger worker.”  The vast majority of recent graduates are under the age of 40.

The Age Discrimination in Employment Act (ADEA) supposedly protects workers aged 40 and over from age discrimination. It is almost inconceivable that there is a bona fide occupational qualification under the ADEA that would justify limiting asylum officer jobs to young people.  The job involves reviewing asylum applications at a desk in an office building.

I can now report that the  governments discriminatory hiring policy is perfectly legal under Executive Order 13562 , which was signed by President Barack Obama on December 27, 2010.  This order directed the Office of Personnel Management (OPM) to implement the “Pathways – Recent Graduates” program  throughout the federal government. The order is based on the premise that the federal government is at a  “competitive disadvantage compared to other sectors in recruiting and hiring students and recent graduates.”

There’s no competitive disadvantage in hiring older workers – neither the federal government nor the private sector wants  to hire them.

Nearly 2 million people ages 55 and older are looking for a job these days, twice as many as before the Great Recession.

The Bureau of Labor Statistics says it takes the average older worker 55 weeks to find a job, compared with 35 weeks for those ages 25 to 34.  However, many older workers disappear from statistical tables altogether because they exhaust all unemployment benefits. 

More than a third (33 percent) of Americans who are retired said they did not feel they had a choice except to retire, according to a 2013 survey by the Associated Press NORC Center for Public Affairs. Of these, 54 percent of retirees under age 65 felt they had no choice but to retire.  Forced early retirement means the older worker will receive significantly  lower monthly Social Security benefits for the rest of his or her life..

Four in 10 job seekers ages 50 and older say they need the money, according to the Associated Press-NORC survey.

The federal government has done virtually nothing to help older workers escape from their unemployment abyss. So it may be understandable if older workers resent federal job postings for vacancies that exclude  them from applying for decent paying jobs on the basis of age. On Sunday, there were about 120 Pathway recent graduate advertisements on USAJobs, which is the federal government’s recruiting site.  Many of those advertisements involved numerous job vacancies and all of them pay respectable salaries.

* NOTE: I’m writing a book about age discrimination and I would like to hear your story if you’ve experience the problem.  Please email me at barnespatg (at) gmail.com.

U.S. Supreme Court Decidedly Pro-Business

justice-scale-761665_1This blog has questioned whether employees who file discrimination lawsuits get a fair shake from federal judges who have lifetime tenure barring bad behavior.

Now there is a comprehensive study that shows the U.S. Supreme Court is the most pro-business court since World War II.

An article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Supreme Court Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946. 

And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

In the eight years of Chief Justice Robert’s tenure, workers have lost ground while corporations have gained ground. Some of the pro-business decisions include:

  • In Genesis HealthCare Corp. v. Symczyk, the Court in a 5-4 vote in April 2013 dismissed a proposed class action case filed by a nurse who alleged her employer docked employees for meal breaks even when they worked through the shift  in violation of the Fair Labor Standards Act.  The Court ruled the nurse’s lawsuit was moot because the company offered her a settlement – even though she rejected the settlement – and therefore could not be the basis for a class  action lawsuit..
  • In Wal-Mart v. Dukes, the Court in  2011 by a vote of 5-4, refused to certify a class action of 1.6 million female employees who alleged discrimination  in pay and promotion policies and practices in Wal-Mart stores. The Court said the plaintiffs did not have enough in common to be a class.
  • In Knox v. Service Employees International Union, Local 1000,  the Court in 2011 effectively curtailed a union’s ability to raise money for political purposes. The Court in a 7-2 vote overturned a longstanding rule that  that  non-union members covered by union contracts be given the chance to “opt out” of the assessment of special union fees for political expenses. The Court said the First Amendment requires that non-members should be sent a notice giving them the chance to “opt in” to the special assessment.
  • In  Gross vs. FBL Financial Service, Inc.,  a 5-4 decision issued in 2009, the Court made it much more difficult for plaintiffs to win age discriminations lawsuits by requiring workers to show that age discrimination was the “but for” cause of the adverse employment action (i.e. termination) they suffered. In other discrimination cases, the discriminatory motive need only be one factor in the adverse employment decision.

The study in Minnesota Law Review looked at cases with a business on one but not both sides. The adversary might be an employee, job applicant, shareholder, union, environmental group or government agency. A vote for the business was counted as a pro-business vote.

The study concluded, “the Roberts court is indeed highly pro-business — the conservatives extremely so and the liberals only moderately liberal.”

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium on April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts. These cases are dismissed at a  significantly higher rate than non-employment cases before they ever to get a jury.