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Senate Aging Committee Pledges to Fight Age Discrimination in Employment

At a hearing on Wednesday, leaders of the U.S. Senate Special Committee on Aging vowed to “fix” a 2009 U.S. Supreme Court decision that makes it very difficult for older workers to fight age discrimination in federal court.

Committee Chairperson Susan Collins, R-ME, and Ranking Leader Bob Casey, D-PA,  also acknowledged the upcoming 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), which was signed by President Lyndon B. Johnson on December 15, 1967.

Collins and Casey addressed the Supreme Court’s catastrophic 2009 decision, in Gross v. FBL Financial Services, which raised the burden of proof in ADEA cases far above that of race or sex discrimination cases under Title VII of the Civil Rights Act of 1964.  Since Gross, older workers have been required prove that age discrimination was not just a motivating factor but the decisive factor in an adverse employment action. The Gross decision legalized a broad swath of  discrimination that is illegal under Title VII and sent a signal to employers that age discrimination will be tolerated.

 “For the life of me,” said Collins, “I don’t understand why there is a higher burden for proving that age discrimination was the reason for the adverse employment action … compared to gender, religion, race.”

The legislators expressed strong support for a bill they are sponsoring, the Protecting Older Workers Against Discrimination Act (POWADA), which would essentially restore the status quo with respect to the plaintiff’s evidentiary burden prior to the Gross decision. The bill  has been introduced several times since 2009 but has never made it out of committee to a vote. Sen. Casey, who worked on age discrimination cases as an attorney, said it was always hard for workers to fight back against insidious age discrimination but that it is even harder today “because the Supreme Court weakened the ADEA and we’ve got to fix that.”

A witness at the hearing, Laurie McCann, a senior attorney for the AARP, urged the Committee to hold a series of hearings to learn what changes are needed to update and strengthen the ADEA to adequately protect older workers. “The AARP believes that it is well past time to update and strengthen the ADEA so that it can respond to the challenges facing today’s older workers in today’s workplace,” she said.

As I demonstrated in my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, the ADEA was far weaker than Title VII when it was adopted 50 years ago and it has since been eviscerated by the U.S. Supreme Court.  In the book, I proposed repealing the ADEA and making age a protected class under Title VII, as was originally proposed when the passage of Title VII was being debated by Congress.

According to McCann, three in ten near-retiree-age (55-64) households have no retirement savings at all and the median retirement savings of all near-retiree households was only $14,500 in 2013. McCann said financial need is by far the most important reason that workers aged 45-74 work. She blamed age discrimination on persistent negative stereotypes and discriminatory employer recruitment practices, including advertising for “digital natives,” specifying a maximum number of years of experience or limiting recruitment to entry-level positions on college campuses.

Financial need is by far the most important reason that workers aged 45-74 work – AARP.

The committee also issued a report on Wednesday examining the nation’s aging workforce, “America’s Aging Workforce: Opportunities and Challenges.”  The report states the number of Americans over age 55 in the labor force is projected to increase from 35.7 million in 2016 to 42.1 million in 2026, and, by 2026, aging workers will make up nearly one quarter of the labor force.  The business case for hiring, retaining, and supporting older workers is strong, according to the report, but challenges exist – including age discrimination, inadequate training opportunities, working while managing health conditions and disabilities, balancing caregiving responsibilities with work, and preparing financially for retirement.

Collins said U.S. employers are going to need older workers in the years ahead and can’t afford to “discard skills and experience that older workers bring to workplace.”

Another witness, Lisa Motta, 54, from Pittsburgh, Pa., testified about re-entering the workforce in her 50s  after having lost her sight. A former teacher, she now works as a recruiting administrator at PNC Bank. “As America’s workforce grows older, more and more workers will face challenges like these and will need additional supports and accommodations,” Motta said. “They will also need laws in place that ensure that when they walk into an interview they do not face any form of discrimination. When we make it easier for these workers to succeed, everyone benefits.”

Prior to Wednesday’s hearing, the Senate aging committee was criticized for failing to act in the face of the epidemic of age discrimination in the workplace that occurred during and since the Great Recession.

Absent from Wednesday’s hearing was a representative from the U.S. Equal Employment Opportunity Commission (EEOC), which has ignored a major spike in age discrimination complaints dsince 2008 and rampant age discrimination in the federal government, and has issued administrative decisions that reflect a higher standard in age discrimination cases than in race or sex discrimination case.

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?

Sexual Orientation Discrimination in the Workplace

  • Note: The 11th U.S. Circuit Court of Appeals, in a 2-1 ruling in March 2017 declined to expand workplace protections to gays and lesbians under Title VII of the Civil Rights Act of 1964, which already prohibits discrimination on the basis of race, sex, religion and national origin. That ruling in Evans v. Georgia Regional Hospital, is applicable to Georgia, Florida and Alabama.

Harassment on the basis of sexual orientation has been largely ignored in the workplace but this is changing.

Gays, lesbians and transgender workers are not mentioned as a “protected class” under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin. And no federal anti-bullying or anti-harassment laws or regulations protect workers who are not members of a protected class. So workers who were targeted for harassment because they were perceived to be gay, lesbian or transgender historically had little recourse against cruel and harmful harassment.

But the  U.S. Equal Employment Opportunity Commission (EEOC) last year held that Title VII’s “broad prohibition of discrimination” on the basis of sex “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances.”

The EEOC ruling was made in a case filed by Leon Brooker, a  clerk at a U.S. Postal Service distribution service in Atlanta, GA, who has been forced to wage a lonely but important legal battle to be free from sexual orientation harassment. [Read more…]

Donald Sterling, Racism & Federal Courts

The life-time suspension from the National Basketball League of  Los Angeles Clippers owner Donald Sterling for making racist comments to his girlfriend raises questions about how such conduct is treated in the workplace.

Although Sterling received the equivalent of a death sentence from the NBA, it is  unlikely that a federal court would consider Sterling’s conduct to be severe enough to violate the nation’s leading civil rights law, Title VII of the Civil Rights Act of 1994.

It what may be a sad commentary about the federal courts, racist, ageist and sexist comments often are relegated to the category of ordinary workplace incivility.

The  U.S. Supreme Court has cautioned federal judges against changing  Title VII into a “civility code” for the American workplace. See Oncale v. Sundowner Offshore Services, 523 U.S. Reports 75 (1998). As a result, most federal judges require numerous instances of egregious racist or sexist conduct before they hold employers accountable.

Sterling told his girlfriend, in a telephone conversation, that he was bothered that she associated with blacks.

Racist & Sexist Comments

A federal appeals court upheld the dismissal of a Title VII lawsuit brought by  an African-American clerk for CSX Transportation Company, Inc.  who was allegedly subjected to a racially and sexually hostile work environment.  The  court ruled that “occasional offensive utterances” do not rise to the level required to create a hostile work environment.

When Stephanie Williams declined to watch the Republican National Convention on a television at the plant in 2004, she said a male supervisor  told her that  she was a Democrat “only because she was a black woman; that unmarried women cannot ‘have the love of God in their heart[s]’; and this country should “get rid of Jesse Jackson and Al Sharpton because without those two ‘monkeys’ the country would be a whole lot better.”  The following day, the supervisor allegedly told Williams that “if she returned to school, she would not have to pay for her education because she was a single black mother. He also allegedly said all blacks should go back to where they came from.

A federal judge granted a pre-trial motion to dismiss Williams’ claim that she was a victim of a sexually hostile environment on the grounds that  her supervisor’s conduct was “neither severe nor pervasive enough to constitute a sexually hostile environment.”  He rejected on technical grounds evidence that pornography was left on tables at the plant for all to see.

The judge permitted Williams to proceed to a trial on the claim that she was subjected  to a racially hostile environment but dismissed the case before it reached the jury after finding that Williams’ evidence of a racially hostile work environment was not sufficiently “severe or pervasive” as a matter of law.

Mere Offensive Utterance

In two different opinions, the  U.S. Court of Appeals for the Sixth Circuit, which covers Tennessee, Ohio, Michigan and Kentucky,  upheld the lower court’s dismissal of Williams’ claims.  See Williams v. CSX Transp. Co. Inc., 643 F.3d 502 (6th Cir. 2011) and Williams V. CSX Transp. Co., No. 12-6197 (6thCir. Sep. 19, 2013).

The appeals court agreed the supervisor’s conduct was “despicable” but said the incident was not sufficiently ‘severe’ or ‘pervasive’ standing alone. “The statements were isolated, not pervasive; all but two occurred over a two-day period,” held the court.

The court said the reference to Jackson and Sharpton and the statement that black people should go back where they came from  “are certainly insensitive, ignorant, and bigoted. But they more closely resemble a ‘mere offensive utterance’ than conduct that is ‘physically threatening or humiliating.”

NBA commissioner Adam Silver said he will try to force Sterling to sell his franchise. Sterling also was fined $2.5 million, the maximum amount allowed under the NBA constitution.  Silver has called upon the NBA’s Board of Governors to force Sterling to sell the Clippers.

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