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.

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.

[Read more…]

EEOC & Age Discrimination: Then and Now

Chart going downWhen the Age Discrimination in Employment Act (ADEA) was 20 years old in 1987, the U.S. Senate Special Committee on Aging sharply criticized the U.S. Equal Employment Opportunity Commission for failing to enforce the ADEA.

What would  Senators Melcher, Heinz, Chiles, Chafee, et. al, say about the EEOC today?

The 1987 Senate  Committee blasted the EEOC in 1987 for, among other things, filing too few lawsuits and  hiring too few experienced staff to evaluated cases.

Today, there are fewer full-time staff members working at the EEOC than there were in 1987 during the Republican administration of Ronald Reagan (who was widely perceived to be hostile to civil rights).

There were 2,941 full-time employees working at the EEOC in 1987, compared to 2,505 in 2011.

And it appears the EEOC filed many more lawsuits in 1987 than it did last year.

Clarence Thomas, now a U.S.  Supreme Court Justice, was appointed to the EEOC in 1982 and was serving as its controversial chairperson in 1987.  Thomas  told the  Committee that the EEOC filed  526 actions in federal district courts in 1986. Of these, he said, a record 109 were lawsuits filed under the ADEA.  More than 25 percent of all cases filed in 1986 were class actions, said Thomas.  And  more than 40 percent of the class action lawsuits were age cases.

The EEOC recently reported that in fiscal year 2012 it filed only 122 lawsuits in federal court,  including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 “systemic suits.”

Does lack of funding account for the paltry  number of lawsuits filed by the EEOC in 2012 compared to 1987?  No. The EEOC budget was $165,000 million in 1987 compared to $360,000 million in 2012.

The 1987 commitee generally was not satisfied with the EEOC’s performance. “It’s all well and good to have a strong bill on the record protecting the aged and preventing discrimination based on age in the work force but if the law isn’t enforced, then we haven’t got much,” said committee member John Chafee, then a senator from Rhode Island.

It appears that no one is criticizing the EEOC’s performance today.

Successor Committee

Interestingly, there is still a U.S. Senate Special  Committee on Aging in existance – though it  appears to lack the diligence of the 1987 committee.

Today’s Senate Select Committee on Aging does not mention the problem of age discrimination on its web page. Nor does it mention age discrimination as an issue of concern on its issue page. And it has no schedule listed for hearings in 2013.

The  issues of interest to the modern-day U.S. Senate Committee on Aging are elder abuse and fraud, long-term care, Social Security and Medicare, prescription drug costs and retirement security.

The Committee explains the retirement security problems this way: “Saving for retirement has shifted dramatically in recent decades, and seniors now increasingly face retirement with little money saved or little guaranteed income due to the shift away from traditional pension plans toward the 401(k) plan.

Of course, this explanation fails to acknowledge that many people over the age of 40 consider age discrimination to be a problem that has serious implications for retirement security.

In 2012, the EEOC received 22,857 complaints of age discrimination – 23 percent of  the 99,412 discrimination complaints it received that year.

According to a  report last year in  the New York Times, a “startling proportion” of older people report they’ve experienced discrimination –  63 percent –  in a study recently published in Research on Aging.  Age is the most commonly cited cause, followed by gender, race or ancestry, disabilities or appearance.

 Cases Harder to Win

Meanwhile, it is considerably more difficult today for older workers to win an age discrimination lawsuit, no matter how egregious the discrimination, because of a  decision by the U.S. Supreme Court,  Gross v. FBL Fin. Servs., 557 U.S. 167 (U.S. 2009).

The Supreme Court held in Gross that a plaintiff in an age discrimination case must prove that  “but for” age discrimination, he or she would not have suffered the adverse job action (i.e. demotion, dismissal).   In most other types of discrimination, the plaintiff must only show the existence of age discrimination — not that it was the cause of the adverse action.

Interestingly, Supreme Court Justice Thomas, the first African-American to head the EEOC and to serve on the U.S. Supreme Court,  wrote the Gross  opinion.