Feds Bear Responsibility for Age Discrimination in Hiring

Note:  A major research study was released Monday finding “robust evidence of age discrimination in hirng against older women.” – Is It Harder for Older Workers to Find Jobs? New and Improved Evidence from a Field Experiment by David Neumark, Ian Burn, and Patrick Button

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Age discrimination in hiring is epidemic in the United States and much of the reason for this is directly attributed to our own federal government.

It’s almost impossible for individuals to fight age discrimination in hiring because they lack access to critical information, such as the identity of the other candidates and why the successful candidates were chosen.  A highly qualified older job applicant  may suspect age discrimination but can’t prove it. The evidence is in the hands of the employer, who has no obligation to release it unless it is demanded pursuant to court-ordered discovery in a lawsuit.  A lawsuit alleging age discrimination in hiring is almost certain to be dismissed prior to discovery if it is based solely upon speculation. It’s a vicious circle –> no information, no basis for a lawsuit -> no lawsuit, no ability to obtain information.

This is why it is incumbent upon the Equal Employment Opportunity Commission  and the U.S. Department of Labor to protect workers from arbitrary discrimination in hiring. But the EEOC and DOL have virtually ignored the problem since it became an epidemic during the Great Recession of 2008.

The EEOC filed 12 lawsuits with age discrimination claims in 2014, compared to 76 lawsuits with Title VII claims  (primarily race and sex discrimination)  and 49 lawsuits with disability claims. The EEOC filed only 7 lawsuits with age claims in 2013.

Here are somes things that our government can do now to deter age discrimination in hiring:

  1. The EEOC could require employers to provide age-related data, along with data on the race and gender of their employees,  in their mandatory EEO-1 Reports, which are due at the end of this month. The EEOC could use this information to identify and prosecute corporate “bad actors” who refuse to hire older workers (i.e. Silicon Valley tech companies). If the EEOC does not accept that it has the regulatory authority to require employerss to provide age  data, it could ask Congress for the authority.
  2. The federal government could stop engaging in age discrimination in hiring. Not only does this hurt older workers but it sends a terrible message to private sector employers that age discrimination in hiring is warranted, reasonable, okay and will be tolerated.
    1. U.S. Department of Labor Secretary Thomas E. Perez could withdraw his support for the “100,000 Opportunities Initiative”  by America’s top corporations to hire workers between the ages of 16 and 24. This initiative blatantly violates the terms of the ADEA, which prohibits any consideration of age in hiring (except for a few categories of workers to which this does not apply).
    2. President Barack Obama could rescind his 2010 executive order that permits federal agencies to discriminate against job applicants on the basis of age. After all, if the feds can do it, why can’t Silicon Valley?
    3. The EEOC could acknowledge that complaints about age discrimination comprise almost a quarter of all of the complaints the EEOC receives annually but only a tiny fraction of the agency’s investigatory and prosecutorial resources are devoted to the problem. Age discrimination is no less harmful than other illegal and arbitrary discrimination so why does it get such short shrift from the EEOC?

On Monday, there were  1000+ jobs on Monster.com posted by employers and employment agencies seeking to hire  “recent graduates” and 1000+ jobs  advertising for a “digital native.”  Technically, it is unlawful under the ADEA to print or publish a “notice or advertisement” indicating preferences or limitations relating to age. The overwhelming majority of recent graduates and digital natives are under the age of 40.  But no one has been held to account in recent years for this widespread practice.

A law that is not enforced is an illusion.

Who Owns the Problem of Age Discrimination?

Part of the problem of age discrimination in the workplace is that nobody seems to claim ownership of it.

Folks who have already retired are very interested in the issue but it doesn’t affect them directly anymore, except to the extent that it contributes to health issues and poverty in retirement.

Younger workers don’t seem to comprehend that they are the ones who are most directly affected by age discrimination in the workplace. Of course, they are scrambling to survive and raise families in this precarious pro-business economy where workers generally have few rights.  In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that the problem of age discrimination is so prevalent in America today that it has become the new normal and is even affecting workers in their 30s. To some extent, lack of awareness is in the nature of youth.  As Aristotle said, “Youth is easily deceived, because it is quick to hope.”

The upcoming White House Conference on Aging has not shown any indication that it will address the epidemic of age discrimination in the workplace, a problem made incrementally worse in 2010 when President Barack Obama signed an executive order allowing federal agencies to discriminate against older workers and hire “recent graduates.”  The Conference issues page  identifies the following themes: healthy aging, long term services and supports, and elder justice (abuse and neglect).  Age discrimination  in employment is no-where mentioned.

My book  documents the inferior treatment accorded under the law to victims of age discrimination in employment. I show that the major federal law that prohibits age discrimination, the Age Discrimination in Employment Act, was weak and riddled with loopholes when it was passed by Congress in 1967 and has been eviscerated by the U.S. Supreme Court.  Today, there are virtually no consequences for employers who engage in blatant age discrimination and many incentives to do so (e.g., cost-savings, youthful image).

Why have older workers have been second class citizens  under the law for fifty years? The AARP, which earned $1.34 billion last year selling insurance and travel products to older Americans, claims to be a champion of the rights of older Americans.  Is the AARP really so powerless that it cannot insure that older workers at least have the same protections and rights as other Americans?

The most recent major assault on the ADEA occurred in 2009 when the U.S. Supreme Court in Gross v. FBL Financial Services established a higher standard of proof in ADEA cases than exists under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion and national origin.  That year, a handful of progressive legislators proposed the Protecting Older Workers Against Discrimination Act, which would legislatively “fix” the Gross decision. The POWADA has never made it out of committee.

Contact the White House Conference on Aging and urge conference director Nora Super to address the problem of age discrimination in the workplace. The conference email address is info@whaging.gov

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.