EEOC Official Blasts Age Discrim. in High Tech Industry

 Cathy Ventrell-Monsees, senior counsel for the Equal Employment Opportunity Commission (EEOC),  singled out the problem of virulent age discrimination in the high tech industry during a talk Tuesday before the National Press Foundation.

“Some of our offices have made it a priority in  looking at age discrimination in the tech industry,” she told journalists during a question and answer period.

Age discrimination in Silicon Valley has been  open and flagrant for years, and has been the subject of  numerous articles in both this blog and national publications.  A class action age discrimination lawsuit was filed against Google, Inc. on April 22 by software engineer Robert Heath who was interviewed but not hired for a position there in 2011 when he was 60-years-of-age. The lawsuit alleges Google has demonstrated a pattern and practice of violating the Age Discrimination in Employment and the California Fair Employment and Housing Act.EEOC.TechsYoungWorkforce

Vontrell-Monsees  observed that 70% of IT staff surveyed by Information Week said they’ve witnesses or experienced age discrimination. In addition, she said, 42% of age 50+ workers in the high tech industry consider age to be a liability in their career – more than double the rate of other industries.  She also pointed to job advertisements in the tech industry for “digital natives,” “recent” or “new” graduates or “Class of 2007 or 2008 preferred”. She said that “there’s no question age discrimination is a challenge for older workers.”

Vontrell-Monsees’ address is significant because the EEOC has ignored an unprecedented increase in age discrimination claims that began with the Great Recession. In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that the number of age discrimination claims jumped from 19,103 in 2007 to an all-time high of 24,582 in 2008. Meanwhile, the number of lawsuits filed by the EEOC with age discrimination claims declined from a modern-day high of 50 in 2006 to a low of seven lawsuits in 2013. This despite the fact that age discrimination catapults older workers into long-term unemployment, forced retirement, and poverty or near poverty in their old age. Having acknowledged the problem, one can only hope the EEOC will now do something about it.

Here are some of other points made by Ventrell-Monsees in her address:

  • Unemployment for people aged 50 and older more than doubled to 7.6%from 2007 to 2011.
  • Older workers remain unemployed for the longest periods – 36 weeks in 2011 compared to 26 weeks for younger job seekers.
  • More than one-third of all unemployed older workers in 2011 had been unemployed for more than a year.
  • The percentage of age discrimination cases filed by women jumped from 32 percent in 2007 to 45 percent in 2013. She added that proving age discrimination in court is difficult.

Age Issue Overlooked in U.S. Supreme Court Debate

The U.S. Supreme Court on January 13 will hear arguments in an important case in which industry groups are seeking to force the U.S. Equal Employment Opportunity Commission (EEOC) to engage in time-consuming and fruitless  “conciliation” efforts with recalcitrant employers prior to filing a lawsuit against the employer.

One federal appeals court has characterized the so-called “failure to conciliate” defense  – which permits employers to argue that the EEOC didn’t try hard enough to settle a case before filing a lawsuit – a cynical tactic that employers pursue to waste EEOC resources and delay a finding of  liability for employment discrimination.

Interminable delays arguably have the most severe impact  in age discrimination cases because older workers have less time remaining in the workplace (and elsewhere) to achieve justice under the law. I wrote an article this week about two plaintiffs in an age discrimination case who actually died while their cases languished in a Kansas federal court for almost a decade.  Yet, the issue of the devastating impact of delay in age discrimination cases has not been raised in the Mach Mining case.

The U.S. Congress requires the EEOC to conduct conciliation proceedings as a precondition to suing an employer for employment discrimination. In some cases, federal judges have issued one ruling that unilaterally dismisses dozens of substantive claims brought by victims of  egregious discrimination because they deemed the EEOC’s conciliation efforts to be inadequate.

In early 2008, the EEOC received a complaint from a woman  alleging that Mach Mining had denied her employment as a coal miner because of her sex. The EEOC chose to prosecute the case, thereby depriving the woman of the right to file a federal lawsuit on her own behalf. The EEOC presented Mach Mining with a verbal conciliation demand in an effort to resolve the dispute, which Mach Mining rejected. The EEOC then filed a class action lawsuit alleging that Mach Mining  had never hired a woman for a mining position and did not even have a women‘s changing room.  For more details about the issue and the case, see Mach Mining v. EEOC.

For six years, Mach Mining has successfully shifted the focus of the case from its alleged systemic hiring discrimination against women to whether the EEOC engaged in sufficient conciliation efforts prior to filing suit. And that’s the problem with the “failure to conciliate” defense.  At best, it delays justice while the parties squabble over what should be a simple procedural matter.  Did the EEOC make an offer of conciliation?  Did the employer accept or reject the offer?

The U.S. Supreme Court is currently the focus of furious lobbying efforts led by the U.S. Chamber of Commerce to obtain the Court’s stamp of approval for judicial oversight over the EEOC’s conciliation efforts.  In addition to the Chamber, an amicus brief was filed by the Society for Human Resource Management, the world’s largest human resources membership organization, and  the so-called Equal Employment Advisory Council, a nationwide association of employers that includes over 250 major U.S. corporations; the American Insurance Association; and, the Retail Litigation Center, Inc.

On the other side, an amicus brief supporting he EEOC’s position was filed by the states of Arizona, Hawaii, Illinois and Washington; the  “women’s rights organizations” Equal Rights Advocates of San Francisco and Legal Momentum of New York; and the Impact Fund, a nonprofit foundation based in Berkeley California that focuses on public impact litigation involving civil rights, environmental justice and poverty law. Signing on to the Impact Fund’s amicus brief were the AARP,  the National Employment Lawyers Association; Asian Americans Advancing Justice – Asian Law Caucus;  Disability Rights California;  and, Public Counsel.

The brief filed by the Impact Fund was general in nature and did not address how the so-called “failure to conciliate” defense affects specific groups like older workers.  Ideally, the AARP, which touts itself as the nation’s premiere advocacy group for Americans over the age of 50, would have followed the example of the women’s groups by filing an independent amicus brief addressing the particularly severe impact of  needless delay in age discrimination cases.

In my recent book, Betrayed: The Legalization of Age Discrimination in the Workplace, I argue that age discrimination  in employment is epidemic in the United States because the Age Discrimination in Employment Act  of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court.   Older workers literally are treated like second class citizens under the laws of the United States.  Meanwhile, the EEOC has virtually ignored a record increase in age discrimination complaints brought during and since the Great Recession.

Is the EEOC Finally Noticing Age Discrimination?

The U.S. Equal Employment Opportunity Commission  filed its second lawsuit this month alleging age discrimination, indicating a possible uptick in EEOC efforts in this long-neglected area.

The lawsuit touches upon the widespread problem of discriminatory hiring practices in the legal profession, which vies with higher education as the most egregious in terms age discrimination.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the EEOC has essentially ignored a record increase in age discrimination complaints filed with the agency during and since the Great Recession.  For example, the EEOC received more than 21,000 age discrimination complaints in 2013 but filed only seven lawsuits with age discrimination claims that year.  Meanwhile, older workers are mired in the ranks of the chronically unemployed and under-employed until they are forced into a penurious early “retirement.”

The EEOC charges that Strategic Legal Resources, Inc., a  staffing firm that does business as Strategic Legal Solutions, rescinded an offer of hire made to attorney Claudia Zacks after she complied with a company request to provide her date of birth. Zacks was 70 years of age at the time.

The Executive Director of the company’s Real Estates Services Division in New York City emailed Zacks in August 2012 and offered her a position to work on a document review project that was to begin the next day in Novi, Michigan. After Zacks accepted, the company asked Zacks to provide additional information, including her date of birth.

The lawsuit alleges that a Recruitment Coordinator for the company called Zacks and insisted that Zacks “could not possibly arrive at the job site in time on the next day.”  Zacks finally expressed concern the company was rescinding its job offer because of her age. The Recruitment Coordinator “responded that not only would Zacks not work on this assignment but she would be placed on the ‘do not use’ list and she need not apply for future job opportunities” with the company.

The EEOC charges that Strategic Legal Solutions also denied Zack future employment. In Spring 2013, Zack answered an anonymous Craigslist posting for individuals interested in working on a document review project. Zacks was hired by a different Strategic Legal Solutions office  to work on a document review project in Novi, Michigan. After three days on the project, she was summarily terminated.

The lawsuit asks the court to order Strategic Legal Solutions to pay Zachs appropriate back wages, liquidated damages and interest.

Under the Age Discrimination in Employment Act of 1967, it is illegal  “for an employment agency to fail or refuse to refer for employment, or other­wise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.”  However, a glance at internet employment sites will show that this provision is widely ignored by employers, employment agencies and even the federal government, all of whom seek applicants who are  “recent” college graduates.

Settlement is Mother’s Day Gift to Working Mothers

On the heels of Mother’s Day,  a Texas woman has won an important victory for all nursing mothers in the workplace.

Donnicia Vetters  accepted an out of court settlement of $15,000  on the eve of a trial in her lawsuit alleging pregnancy discrimination by her former employer, Houston Funding II, LLC, a Houston, TX,  debt collection agency.  After giving birth in 2012, Vetters inquired whether  she would be able to pump breast milk when she returned to her job.  Her boss allegedly responded by telling her that her position had been “filled.”

If that wasn’t outrageous enough,  U.S.  District Judge Lynn N. Hughes of Houston summarily  dismissed Vetters’ lawsuit against Houston Funding on the grounds that “lactation is not pregnancy, childbirth, or a related medical condition.” He said that “firing someone because of lactation or breast-pumping is not sex discrimination.” Judge Hughes, who is male, suggested that “pregnancy-related conditions” end on the day that a mother gives birth.

Fortunately, Judge Hughes’ opinion was unanimously reversed by the U.S. Court of Appeals for the Fifth Circuit, which held that firing a woman because she is expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  Congress passed the Pregnancy Discrimination Act to protect working women against discrimination on the basis of pregnancy, childbirth or a related medical condition.

Ms. Vetters was represented in the case by the U.S. Equal Employment Opportunity Commission.

In  EEOC v. Houston Funding II, LLC, the Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, the court said, firing a woman because she is expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits.

Instead of showing some decency, acknowledging fault and apologizing to Ms. Vetters, an attorney for Houston Funding was quoted as blaming the EEOC for forcing it to pay up.

The monetary settlement won’t put Ms. Vetters’ baby through college, and won’t compensate for the loss of a job in a difficult economy, but it is a great victory for all working mothers to know that they can’t be fired simply because they choose to nurture their infants with breast milk.