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.

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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.