U.S. Chamber of Commerce No “Friend of the Court”

Nice to see someone calling out the U.S. Chamber of Commerce, which frequently inserts itself into national litigation as a “friend of the court.”

In reality, the Chamber is almost always an advocate for a dues paying corporate member and espouses a position that is anti-employee and anti-consumer. In 2014, I argued the Chamber was a federal court lobbyist.

According to Reuters, the firm of Lieff Cabraser Heimann & Bernstein has opposed  the Chamber’s request to file an amicus or “friend of the court” brief in a case involving a challenge by Direct TV to the certification of a class action by the 11th Circuit Court of Appeals in Atlanta.  Lieff’s brief argues the Chamber, the Chamber’s lawyers, DirectTV and Direct TV’s lawyers are bound so closely together that even under a liberal reading of the definition of an amicus curiae, the Chamber cannot legitimately be regarded as a friend of the court.

“The Chamber is not merely a friend of the party, but essentially the party itself.” – Lieff Cabraser Heimann & Bernstein

The Chamber has lobbied for years behind the scenes to limit workers’ rights.

The Chamber played a role in a decision earlier this year by the 11th Circuit to limit the scope of the Age Discrimination in Employment Act of 1967.  The 11th Circuit ruled the ADEA does not prevent employers from adopting policies that discriminate against older workers in hiring. The Chamber argued that systemic age discrimination in hiring represents sound policy and is reasonable.

The Chamber taunted the EEOC, noting that the EEOC operates a hiring program that discriminates on the basis of age.

In February,another law firm attempted to block a Chamber amicus brief backing Johnson & Johnson in a 5th Circuit appeal of a hip implant jury verdict. The 5th Circuit allowed the brief to be filed.

Support for American Workers is Hard to Find

Who will stand up for the rights of American workers?

GOP President Donald Trump and the GOP-led U.S. Congress seem to be determined to eliminate worker rights rather than to expand them. Trump has reversed a bevy of pro-labor measures that former Democratic President Barack Obama enacted on his own without Congressional backing. Meanwhile, workers continue to seethe about mostly Democratic trade policies that sent American jobs to other countries.

Labor unions are barely hanging on, despite the fact that unions pioneered many of the employment benefits that workers take for granted today. In 2016, the union rate for private sector workers was 6.4 percent – down from 20.1 percent in 1983.  Organized labor is currently battling a potentially crippling effort by Trump and the GOP to prevent unions from requiring nonmembers to pay representation fees.

It may be an understatement to say that advocacy of worker rights  does not appear to be high on the agendas of the Equal Employment Opportunity Commission and US. Department of Labor.

Under the Democratic administration of President Barack Obama,  the EEOC shifted its focus away from filing lawsuits and prosecuting employers who engaged in illegal discrimination. Instead, the EEOC is focused on providing free dispute resolution services to these very same employers. Mediation is often a lousy deal for discrimination victims, who walk away with a pittance to compensate for the loss of a decent job, but it’s always a great deal for employers, who avoid potentially catastrophic fees and damages stemming from a lawsuit.  Also, mediation is completely secret so other potential litigants are kept in the dark.  Meanwhile, the EEOC has for years ignored one of the most pressing civil rights issues of our day – blatant and epidemic age discrimination in hiring that is particularly devastating to older women, who suffer twice the poverty rate of men in their old age.  The EEOC received more than 20,000 age discrimination complaints in 2016; it  filed only TWO lawsuits with “age discrimination claims.”

The EEOC last month upheld an administrative ruling permitting a hiring officer to completely disregard objective qualifications and make hiring decisions based solely upon his subjective perception of  “cultural fit.”

[Read more…]

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.