The Sleeping Bear Awakens: The AARP Questions Legal Inequality of Older Workers

Something has poked the sleeping bear.

An attorney for the AARP was quoted in The New York Times recently as stating that the Age Discrimination in Employment Act of 1967 “may not be up to the task.” This represents a profound shift for the AARP, which has done little in recent years (if anything) to acknowledge the fundamental legal inequality of older workers under the Age Discrimination in Employment Act of 1967. The AARP states on its web site that the ADEA was passed in 1967 with the  “strong backing” of the AARP.

In my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA gives older workers far less protection than Title VII of the Civil Rights Act of 1964 provides to victims of discrimination on the basis of race, sex, religion, color and national origin. For example, the ADEA permits age discrimination if  it is based on a reasonable factor other than age (i.e., cost savings).  Title VII requires employers to show “business necessity” and to demonstrate there were no alternatives with less discriminatory impact.  Victims of age discrimination can recover only monetary damages and if there are none they get nothing.  Title VII plaintiffs are entitled to monetary damages plus  punitive and compensatory damages (i.e. damages for emotional distress).

Because of legal inequality,  millions of older workers have been forced out of the workplace and into an impoverished retirement since the Great Recession.

Mind you, there has never been any intellectual or moral justification for treating age discrimination differently than other types of discrimination – all discrimination is based on fear, false stereotypes, and animus directed toward a specific group. If workers are not capable of doing a job due to age-related decline, they can be dismissed. That’s not discrimination.

What Prompted The Change?

I contacted the AARP earlier this week to applaud the organization for finally acknowledging the ADEA “may not be up to the task” of preventing older workers from  irrational and harmful discrimination.  I then asked the AARP officials whether their position was influenced by my book, which is the first to challenge the fundamental legal inequality of older workers under the ADEA. I observed the AARP had never acknowledged the book – or a follow up companion work, Overcoming Age Discrimination in Employment –  despite my efforts to bring these works to the attention of the AARP and the readers of its publications. I said that capitalizing on my work without giving me credit is disrespectful and intellectually dishonest. The AARP officials insisted they have been working hard (sometimes behind the scenes) all these years to battle age discrimination in employment. They did not confirm or deny that my work had influenced their change of heart about the ADEA but suggested that “this should not be about who gets credit, but rather, about how best to improve the lives of older workers.”

This is about improving the lives of older workers but it is also about credit.

I care about credit for the same reason the AARP cares about its brand as the advocate for the rights of Americans over the age of 50. The AARP’s brand name establishes its credibility and helps the AARP sell Medi-gap health insurance and European vacations.

I suggested it would be appropriate for the AARP  to give credit where credit is due; that the AARP should do what it should have done in 2014 and acknowledge the publication of Betrayed; The Legalization of Age Discrimination in the Workplace  and the important ideas that are contained within the book.  These ideas appear to have been powerful enough to make the AARP question the insufficiency of the ADEA.

The AARP assured me that it has been as active as it can be in fighting age discrimination and wished me good luck in my future endeavors!

Now that the AARP  has acknowledged the ADEA may not be up to the task of protecting older workers, one can only hope the AARP will recognize other areas in which age discrimination has been legalized in the Untied States.  The AARP  was silent when former President Barack Obama in 2010 signed an executive order allowing our nation’s largest employer, the federal government, to blatantly discriminate in hiring on the basis of age and then again in 2015 when Obama’s Labor Secretary Thomas Perez, now chair of the Democratic Party, endorsed a private initiative by Starbucks and other major American corporations to hire only younger workers in clear violation of the ADEA.  I wrote about both of these issues in my employment law blogs, as well as the EEOC’s consistent failure to devote significant resources to prosecute age discrimination.  In the New York Times, it was reported: “Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.” The reporter said the AARP’s list was assembled in July, about six months after I reported the EEOC had only filed two cases with age discrimination claims in 2016.  But who’s counting?

Age Leads in Discrimination Complaints Filed by Federal Employees

ObamaMore  complaints alleging age discrimination were filed by federal employees each year from 2010 to 2014 than complaints alleging  race or disability discrimination.

The Annual Report on the Federal Work Force states that age was a basis for 4,697 complaints filed by federal employees in 2014, compared to 3,838 complaints of race discrimination and 3,817 complaints of  (physical) disability.  Age discrimination was, by far, the leading basis for complaints filed by federal employees each year during the four-year period, with a high of 5,314 age discrimination complaints filed in 2010.

Yet, the federal government, which is the nation’s largest employer,  has done virtually nothing – if anything  – to address the problem of age discrimination in federal employment. In fact,  President Barack Obama made the problem considerably worse in 2010 when he signed an executive order  to permit federal agencies to discriminate in hiring on the basis of age in hiring.  The order exempts the federal government from the Age Discrimination in Employment Act of 1967 (ADEA), which expressly prohibits using age as a consideration in hiring.

President Obama couched his order permitting age discrimination in federal hiring as a diversity measure.

The president argued in his executive order that the federal government is at a disadvantage in hiring students and recent graduates because of civil service regulations (that were passed in 1871 to prevent cronyism and to  ensure fairness in hiring). He added that  “students and recent graduates … infuse the workplace with their enthusiasm, talents, and unique perspectives.”  (Does this mean that older workers don’t?)

Underlying President Obama’s executive order is the assumption that America must choose between the worthy goal of nurturing young workers and the ideal of equal opportunity for all.  But is this choice really necessary? The United States has the world’s largest national economy, with a gross domestic product estimated to be $17.914 trillion in 2015. The pie is big enough to make sound policy decisions that boost employment for younger workers without consigning older workers to irrational discrimination, chronic unemployment and poverty. [Read more…]

Corporations Point to Age Discrim. in Hiring by Feds

You might think it would be an embarrassment to our nation’s largest employer – the federal government – that corporate America is defending age discrimination in hiring by pointing out the U.S. government engages in the same behavior.

Most recently, the Equal Employment Advisory Council (EEAC), an association of America’s 250 largest corporations, filed a friend-of-the-court brief in an age discrimination case in which it opposed allowing older job applicants to file disparate impact lawsuits challenging broad-based discriminatory hiring practices.  If they are allowed to do so, the EEAC warns, numerous federal programs “most certainly will be impacted… ”

The EEAC goes on to cite various federal training, education and hiring programs that are closed to older workers, including the AmeriCorps National Civilian Community Corps, a residential program open to individuals between the ages of 18 and 24 who perform team-based national and community service, including disaster response and environmental stewardship. Members receive $4,000 for ten months of service, health benefits, $400 a month to pay for childcare and an educational award of $5,730.

Come to think of it, why can’t a 40-year-old join the Corps and dedicate a year of his/her life to community service for the same amount of remuneration?

Last May, the U.S. Chamber of Commerce filed a friend-of-the-court brief in which it defended age discrimination in hiring by noting that even the U.S. Equal Employment Opportunity Commission (EEOC) does it. The Chamber cited the EEOC Attorney Honor Program, which employs in “permanent” positions “third-year law student[s], “full-time graduate law students[s],” and “Judicial Law Clerk[s] whose clerkship must be [their] first significant legal employment following [their] graduation.”  The EEOC states on its web site that graduates of the Honor Program go on to serve as trial attorneys or Administrative Judges in the EEOC’s District Offices. The  EEOC program appears to have a disparate impact upon older workers because the vast majority of  law school students and graduates are under the age of 40.

The  EEOC is the federal agency that enforces the Age Discrimination in Employment Act of 1967 (ADEA). [Read more…]

White House Summit For ‘New Generation’ of Workers

U.S. Labor Secretary Thomas E. Perez announced this week that the White House will hold a “Summit on Worker Voice” on October 7 to “energize a new generation of Americans to come together and recognize the potential power of their voice at work.”

That’s great but … what about the “older generation” of  American workers?

The Obama administration is currently engaging in the most outrageous assault on the Age Discrimination in Employment Act of 1967 since  2009. That’s the year that the U.S. Supreme Court issued its decision in Gross v. FBL Financial Services that made it far more difficult to win a lawsuit alleging age discrimination than discrimination on the basis of race, sex, religion, national origin and color.

Obama signed an executive order  in 2010 that permits federal agencies to discriminate against older workers.

More recently, Perez endorsed  the 100,000 Opportunities Initiative,  in which America’s leading corporations (Walmart, Starbucks, Microsoft, etc.) have announced plans to discriminate against older workers and hire ” youth”  aged 16 – 24 for tens of thousands of part-time and full-time jobs.  Neither Perez nor Starbucks, the main organizer of the initiative, have explained what legal justification exists for violating the plain the plain language of the Age Discrimination in Employment Act of 1967.  Good intentions cannot justify violating federal discrimination laws.

Reach for American Dream

Perez applauds early labor advocates  for the eight-hour work day and the weekend, noting these benefits were not inevitable but were “demanded by the working people of this nation … who wanted their chance to reach for the American dream.”

How can Perez and Obama justify making it more difficult for older workers to ‘reach for the American dream’?

[Read more…]