Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.

Workplace Bullying: America Lags Behind

It is a disgrace that America is one of the only industrialized countries in the world that tolerates workplace bullying.

Please sign a petition asking the Obama administration to formulate a national strategy to halt workplace bullying. The petition, created by a coalition of workplace anti-bully advocates (including this blog), can be found at http://www.thepetitionsite.com/1/protect-us-workers/.

Among other countries, America lags behind the 32 members and participating states of the European Union that voted in 2007 to require all employers to address and prevent workplace bullying.  Sweden acted in 1993!

The World Health Organization calls workplace bullying a major public health problem.  There is overwhelming research showing that targets of workplace bullying may suffer a variety of long-and short-term mental and physical health problems. A high level of stress in the workplace is linked to chronic disease, including cardiovascular disease.

If you happen to be the one-in-four American workers who are afflicted with bullying, you will quickly find that no federal or state law exists to protect you.  Sure, the U.S. Occupational Health and Safety Act of 1970 requires employers to provide all workers with a safe workplace but the OSH Act is not enforced with respect to workplace bulling. Even if you can shoehorn your complaint into an existing law, it will be an expensive, long, uphill battle.  You may also find that the American judiciary is not knowledgeable or sympathetic to the plight of workers.

Surveys show that most targets of bullying are either forced to quit or resign.

In a little more than two weeks, about 7,000 people have signed the petition. Surely this is evidence of the overwhelming nature of this problem, especially in our current dire economy, with an aging workforce that cannot afford to quit or retire. When you sign the petition, an email is dispatched to both the White House and to the Labor Secretary.

Here are some recent comments from the petition:

  •  Workplace bullying has to end! My diabetic dad is too afraid to speak out against his coworker and boss who are creating a severe hostile work environment for fear of losing his job. This epidemic has to stop.
  • Workers who bully are unprofessional and immature and psychologically disturbed, and contribute to health problems in their targets and increased absenteeism and med costs. Remove the bullies, the work environment should be on a professional par with other industrialized countries, and not a playpen or a refuge for sociopaths.
  •  I too was bullied by a supervisor, who was a bully while in school. He would snark at me, make fun of my work if my way of performing the task was different than how he envisioned (my way was more time-efficient even), roll his eyes at my comments, and such. Once when he was asking me for some personal info I finally told him, ‘why would I give a bully additional info to use against me?’ I had lots of hair loss, high blood pressure, unsettling dreams leading to unsettled sleep patterns, and felt tired all the time. I did finally make it to retirement, whew, and it took 6-10 months for my body to realign from all the stress.
  •  I had loved my job and the people I worked for and with; but after seeing my boss bully and harass employees until they quit or are fired; it suddenly became my turn. i could not understand why a guy that i gave everything to 12- 15 hours a day, would harass me and call me names to the point where I would be hospitalized several times for severe anxiety disorder, and have to live with it and medication. all caused by one man that felt that with power and riches he can ruin anyone’s life he chooses.
  •  Bullies aren’t found only in the schools. Some graduate to become workplace bullies. Just because they are chronologically adult doesn’t guarantee they will act responsibly. Please act to protect working Americans.