How Can the U.S. Senate Special Committee on Aging Be So Clueless about Age Discrimination?

Why is it left to the Attorney General of Illinois to address the national problem of blatant and destructive age discrimination in hiring?

Illinois Attorney General Lisa Madigan this week warned six national career and job search companies that some of their search functions could violate state and federal age discrimination laws. The job sites are Chicago-based CareerBuilder, Indeed, Beyond, Ladders, Monster Worldwide and Vault.

Kudos to Ms. Madigan but this issue demands a national response, especially since the U.S. Court of Appeals for the 11th Circuit in Atlanta  ruled that job applicants are not entitled to the protection of the federal Age Discrimination in Employment Act (ADEA).

Yet, for years, the EEOC and members of the U.S. Senate Special Committee on Aging have sat on their hands while older workers have been mired in chronic unemployment due to  blatant age discrimination in hiring.  Why? The picture became clearer recently when Sen. Robert P. Casey, Jr. of Pennsylvania , a ranking member of the Special Committee on Aging, issued a press release on the committee’s web site that was stunningly uninformed about the ADEA.

Casey announced that he and several other committee members recently “introduced” the Protecting Older Workers against Discrimination Act (POWADA), which would remove  the higher burden workers alleging age discrimination currently face in the court system relative to workers alleging discrimination based on race, sex, national origin, or religion. In actuality, the POWADA  is a proposed law that literally has been languishing in various Congressional committees since  2009, which was  the year that the U.S. Supreme Court issued a ruling establishing the higher burden for age discrimination plaintiffs.

Worse, Sen. Casey says the POWADA would “level the playing field” for older workers. This statement is so profoundly wrong that one must wonder whether the special committee employs any professional staff who know anything at all about the federal law governing age discrimination.

Contrary to what Sen. Casey states, the POWADA would not “level the playing field for older workers.” Not by a long shot.

The POWADA would merely restore the status quo that existed before the 2009 Supreme Court ruling, which raised the burden of proof in age discrimination cases far above that of Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, gender, color and national origin. But even with that long overdue fix, older workers will remain second class citizens under federal law.

For example, the ADEA – unlike Title VII – does not permit victims of age discrimination to collect compensatory or punitive damages.  The damages portion of the ADEA is patterned after the federal Fair Labor Standards Act, which governs minimum wages and overtime. Age discrimination  literally is treated like a violation of federal overtime or minimum wage rules. Victims of age discrimination are entitled only to recover monetary damages (perhaps doubled if they can show willful discrimination). They (and their attorneys) get nothing at all if there are no monetary damages.

Systemic discrimination is treated far more leniently under the ADEA than it is under Title VII. An employer can engage in “reasonable” discrimination under the ADEA, whereas Title VII in race and sex discrimination cases requires an employer to show “business necessity” and employers must use the least discriminatory alternative. The U.S. Supreme Court has ruled that employers who engage in “reasonable” age discrimination do not have to use the alternative that is least harmful to older workers.

Several times in recent years, I have offered to brief the special committee about the inherent problems with the ADEA. I never received a response. I  also sent the committee  a free copy of my book, Betrayed: The Legalization of Age Discrimination in the Workplace. Again, no response. It’s all there. It’s indisputable. But Sen. Casey, I can’t read it for you.

Here’s the bottom line – Passing the POWADA is long overdue. But this does not alleviate the responsibility of the U.S. Senate Special Committee on Aging to take  immediately steps to insure that older workers are accorded equal rights under the law. I have proposed repealing the ADEA and adding age as a protected class under Title VII of the Civil Rights Act.