Appeals Court: Systemic Age Discrimination Against Job Applicants is not Illegal

A federal appeals court forecloses any effective way to combat longstanding, epidemic and unaddressed age discrimination in hirng in the United States.

A federal appeals court has ruled that job applicants cannot sue an employer for adopting policies and practices that result in age discriminating in hiring.

The 11th Circuit Court of Appeals in Atlanta said the Age Discrimination in Employment Act of 1967 (ADEA) protects only employees, not job applicants.

No Justice for Older Applicants

The ruling graphically illustrates the  lack of protection afforded to older workers that is set forth in my book, Betrayed: The Legalization of Age Discrimination in the Workplace.

The 11th Circuit effectively quashed the only effective way to eliminate age discrimination in hiring – the disparate impact lawsuit, which allows a plaintiff to sue an employer for a seemingly neutral policy or practice that has a disproportionately negative impact on older workers (i.e. the use of computer software to screen out applications from older workers). The 11th Circuit covers Florida, Georgia and Alabama.

Disparate impact lawsuits are permitted under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin.

In the Oct. 5 ruling, the full 11th Circuit said the ADEA “makes it clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no “status as an employee.’” The ruling overturns an earlier 2-1 ruling by a three-judge panel holding that the ADEA permits older job applicants to sue for age discrimination in hiring.

Big Victory for Reynolds Tobacco

The ruling came in the case of Richard M. Villarreal who, beginning at age 49, applied seven times over the Internet for a position as a territory manager at R.J. Reynolds Tobacco Co.   He was never hired and never told why his applications were rejected.

After being contacted by a whistle blower, a  law firm informed Villarreal that Reynolds had contracted with two recruiting firms to develop internet screening tools to target young job applicants for hire and screen out applicant having eight to ten years of experience.  Villarreal filed suit in 2010 against Reynolds and a staffing firm, Pinstripe, Inc., alleging disparate treatment and disparate impact discrimination.

The disparate treatment theory requires the plaintiff to prove the employer engaged in intentional age discrimination whereas the disparate impact theory does not require proof of intent to discriminate. The plaintiff need only show that the employer’s seemingly neutral policy or practice had a disproportionate and adverse impact upon older applicants.

The appeal’s court also affirmed dismissal of Villarreal’s disparate treatment claim because it was filed after the statute of limitations expired. The Court agreed with the lower court that Villarreal had failed to exercise “diligence’ because he did not ask Reynolds why he was not hired in 2007. However, the appeals court remanded the case back to the lower court so Villarreal could pursue a theory that Reynolds was engaged in a  “continuing-violation” which would render his 2007 claim timely.

The appeals court refused to defer to the Equal Employment Opportunity Commission, which took the position that the ADEA does permit disparate impact lawsuits. The Court explained “we do not defer to an agency’s interpretation of a statute when the text is clear.”

The ruling eliminates any means of redress for thousands of older job applicants who applied for positions at Reynolds only to have their applications diverted into a digital trash can sight unseen.

The case is Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602,(11th Cir.).

What About Social Security? Who knows.

puzzlepieceThere has been surprisingly little discussion about the future of Social Security in the ongoing presidential election campaign, leaving questions about what the candidates will actually do if elected.

Democrat Hillary Clinton’s position seems to depend upon her audience:

  • “I won’t cut Social Security. … I’ll defend it, and I’ll expand it.”, February 5, 2016.
  • “In lucrative paid speeches that Hillary Clinton delivered to elite financial firms but refused to disclose to the public, she displayed an easy comfort with titans of business, embraced unfettered international trade and praised a budget-balancing plan that would have required cuts to Social Security, according to documents posted online Friday by WikiLeaks.” The New York TImes, Leaked Speech Excerpts Show a Hillary Clinton at East with Wall Street, Oct. 7, 2016.

Republican Donald Trump’s position is vague. He seems to promise not to cut Social Security for existing recipients but certainly does not commit himself to expansion of the program.

  • “I’m going to save Social Security. You have tremendous waste, fraud and abuse. We have in Social Security thousands of people over 106 years old. You know they don’t exist. There’s tremendous waste, fraud and abuse, and we’re going to get it. But we’re not going to hurt the people who have been paying into Social Security their whole life and then all of a sudden they’re supposed to get less. We’re bringing jobs back.”  Source: 2016 CBS Republican primary debate in South Carolina, Feb 13, 2016

The fate of Social Security is vital to 40 million retired Americans, including 21% of married couples and about 43% of unmarried persons who rely on Social Security for 90% or more of their income.

Of course, what politicians promise during the election season is not always what they deliver. President Barack Obama promised the following and then did the reverse:

  • “Obama will fight job discrimination for aging employees by strengthening the Age Discrimination in Employment Act … .”  Source: Blueprint for Change (2008).

Two years later, President Obama signed an executive order that carves out an exception to the ADEA that permits the nation’s largest employer, the federal government, to discriminate on the basis of age in hiring for federal jobs. This was done in plain sight but there was no protest – nor indeed any comment – from the AARP, which is busy mining its treasure trove of older members through the sales of Medigap health insurance and licensing agreements. And Obama’s administration has ignored the epidemic of age discrimination in hiring that has forced millions of older workers out of the workplace and into an uncertain and ill-advised retirement.

U.S. Ignores World Health Org. Call to Combat Ageism

worldhealthorgYou may not have heard about this but the World Health Organization has called for a global campaign to combat ageism.

An editorial in the October issue of the Bulletin of the World Health Organization states that ageism has resulted in “marked health inequities” among older people.  In fact, the WHO  states, “There is little evidence to suggest that people today are experiencing older age in better health than previous generations.”

The WHO argues that changing public discourse around ageing, which largely depicts older people as burdens on public spending and economic growth, can help to capitalize on the great human capacity that older people represent.

The WHO conducted  a “world values survey” of 83,034 adults from 57 countries in which 60 percent of participants reported that older adults are not well-respected. The survey found “ubiquitous” attitudes that older people are frail, out of touch, burdensome and dependent.

“Unlike other forms of discrimination, including sexism and racism, ageism is socially acceptable, strongly institutionalised, largely undetected and unchallenged,” says the WHO.

The absence of reporting about the WHO’s call to arms in the U.S. is yet another indicator of pervasive ageism here, where age discrimination is embedded into U.S. law and was adopted as an official policy of the  Democratic administration of President Barack Obama

(FYI – The big story on the AARP’s web page today is “Movies for Grownups: ‘Deepwater Horizon’ Explodes with Action.” What are the chances that the AARP is getting a cut of this action?  Isn’t it past the time for a membership revolt?)

Continue reading “U.S. Ignores World Health Org. Call to Combat Ageism”

Hollywood’s Band-Aid for Age Discrimination in Hiring

hollywoodThere’s more than a hint of unreality about a California law intended to deter age discrimination in the film industry.

A bill recently signed into law  by California Governor Jerry Brown  allows actors to demand that their ages be removed from leading casting web sites, such as Internet Movie Database (IMDb).

As if the information isn’t easily discoverable in other ways and venues.

The sad reality is that reading a posting of the age of an actor on IMDb is one of many ways that potential employers can ascertain an individual’s age. And removing age from IMDb’s database will be an inconvenience, at best, to a casting agent who is seeking an actor’s age.

What about the date of a writer’s first screenplay credit or an actor’s first role in a television show or movie? Should this information also be deleted from the Internet? What about Wikipedia, which includes the ages of actors?  It is easy to estimate the age of most actors just by looking at their face.

Where does it stop?

Banning the publication of an actor’s age is not an efficient or effective way of deterring age discrimination in hiring.  That’s because the problem isn’t a number on a web site but implicit bias and prejudice. That’s what needs to be addressed.

Things will change when audiences complain or boycott a production in which a young women plays the romantic lead for a male who is 20 or 30 years older.  Things will change when age discrimination is recognized and condemned.

Another problem that is somewhat unique to Hollywood is that federal courts have overwhelmingly refused to interfere with “casting” decisions, even in so far as  “casting” weather personalities on local television shows. No judge wants make a producer hire Betty White to play the part of Annie.

#OscarsSoYoung: Where’s the Transparency?

cbisaacsCheryl Boone Isaacs, president of the Academy of Motion Picture Arts and Sciences, claims the move to strip away the voting rights of the oldest members of the Academy is not discriminatory.

Boone Isaacs told The Hollywood Reporter:

“I just don’t understand it. That’s been a frustrating thing for me, this concept of, ‘We’re moving people out in order to move people in.’  That’s just not true … Our oldest new member is 90 or 91, so it’s not about age at all.”

In the civil rights context, Boone Isaacs comment is laughable. Inviting one individual who is 90 or 91 to join the Academy signifies nothing. And it is unlikely that Boone Isaacs would accept this lame explanation from another group that was charged with unfairly targeting women or minorities.

In any case, if what Boone Isaacs is saying is true, the Academy can easily resolve this matter. The Academy can disclose the number of members who are being stripped of their voting rights, along with their ages.  This request is not unreasonable. It is a matter of simple transparency. And I can assure her that this information will be disclosed if the Academy is actually sued for age discrimination.

Although Boone Isaacs professes confusion, age discrimination is not really hard to understand. It occurs when an institution adopts a policy or rule that disproportionately and adversely affects individuals who are over the age of 40.

The Academy earlier announced that 683 new members were invited into the Academy this year, of whom 46% are female and 41% are people of color. The Academy might actually have gotten kudos for this if it had stopped there. There is an obvious need for greater diversity in the Academy. A 2014 survey by the Los Angeles Times of the 6,028 Academy Award voters found that the population is 76 percent men with an average age of 63.  But, stupidly, the Academy did not stop there.

Age discrimination is not the solution to lack of racial or gender diversity. lt pits groups that  historically have suffered from irrational bias against each other. It is contrary to America’s founding principle of equal justice for all. It damages people, fostering deep resentment and anger, just like race and sex discrimination.

According to Boone Isaacs, it is the Academy’s goal to “increase our inclusion by 50 percent” by 2020. “Gender and race. It’s a big goal — that is for sure. But if you don’t set a big goal, what is the point?” she said.

The point, Ms. Boone Isaacs, is not achieving diversity by any means but achieving diversity in a positive manner without damaging the lives of loyal members, some near the end of their lives, and fracturing the organization itself.

#OscarSoYoung and the Willie Lomans of Today

deathofasalesmanThere are a couple of scenes from the great American play by Arthur Miller, Death of A Salesman, that have resonance today as the Academy of Motion Picture Arts and Sciences strips older  members of their voting rights to increase “diversity.”

Linda, the wife of Willie Loman, the aging salesman, discusses the plight of her husband, who has begged the son of his old boss to let him continue working in New York for a reduced salary:

“I don’t say he’s a great man. Willy Loman never made a lot of money. His name was never in the paper. He’s not the finest character that ever lived. But he’s a human being, and a terrible thing is happening to him. So attention must be paid. He’s not to be allowed to fall into his grave like an old dog. Attention, attention must be finally paid to such a person.”

Another scene is when Willie remembers the death of the 84-year-old salesman who inspired him to become a salesman in the first place and how times have changed:

“Do you know? When he died, and by the way he died the death of a salesman, in his green velvet slippers in the smoker of the New York, New Haven and Hartford, going into Boston, when he died, hundreds of salesman and buyers were at his funeral. Things were sad on a lotta trains for months after that. See in those days there was personality in it, Howard. There was respect, and comradeship, and gratitude in it. Today, it’s all cut and dried and there’s no chance for bringing friendship to bear or personality. You see what I mean? They don’t know me anymore!”

The tragedy that Willie Loman represents is being played out today as the Academy revokes the voting rights of “inactive” members, mostly older white males, to achieve the goal of greater “diversity.”

A few months ago, Robert Bassing, a 91-year-old white male who has been a voting Academy member for five decades, received a letter from the Academy telling him that he may qualify for “emeritus status.” This means he will lose voting privileges. Once a working screenwriter for television and movies, Bassing’s last screenplay was in 1977.

Bassing called the Academy’s thinly disguised effort to oust older members like him cruel and threatened to sue for age discrimination. He told a television reporter: “Don’t throw the members under the bus, or put the old people out to pasture … The whole thing offends me.”

Everyone, regardless of race or gender, should be offended by the Academy’s completely unnecessary assault on the respect and dignity of its oldest members who built the Academy into the international powerhouse that exists today. Age discrimination is no more acceptable than race or sex discrimination and has the same devastating impact on its victims.

Diversity can be achieved without age discrimination, which is an easy and cheap refuge for lazy and unimaginative managers.

Appeals Court Says Discriminatory Comments Irrelevant to Firing of Wal-Mart Associate

Exclamation PointIt’s rare today to have “direct evidence” of age discrimination – or evidence that on its face raises a legal inference of guilt. Most supervisors and managers have learned to refrain from making discriminatory comments in public.

So when direct evidence of discrimination does exist, you’d think the court would take it seriously. Don’t count on it.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit in Ohio recently dismissed the case of Reva Richardson, a 50-year-old sales associate at a Wal-Mart store in Lansing, Michigan, who was fired after a supervisor allegedly told her son, who also worked at the store, “[We] need to get rid of Reva. She’s too old to work here anymore.”

The  12-year veteran Wal-Mart employee was fired after she fell and broke her wrist while stacking merchandise at the store. The reason given for Richardson’s termination was “demonstrated unsafe work practices which resulted in an accident.”

The appeals court earlier this month upheld the dismissal of Richardson’s case without a trial, essentially finding that no reasonable person could conclude that Richardson was a victim of age discrimination.

The court observed that the supervisor who made the inflammatory remarks, Adam Eschtruth, was transferred to another Wal-Mart store four months before Richardson’s dismissal and Riichardson failed to produce evidence that Eschtruth had any input in the decision to terminate her employment. The Court found that Eschtruth “was not involved in the firing decision” and “his statements do not qualify as direct evidence of age discrimination.”

Of course there was other evidence, including the questionable reason cited for Richardson’s dismissal.

Store manager Mark Darby fired Richardson after he and two other store managers reviewed a surveillance video of Richardson’s fall. They concluded that Richardson created a safety hazard due to improper placement of equipment. Furthermore, they faulted her for failing to look behind when she walked backward and tripped on a piece of equipment.

Richardson argued that Wal-Mart management began mistreating her in 2012 because of her age. Among other things, she said Darby “humiliated” and “taunted and shamed her” by screaming at her in front of a vendor. Moreover, she said Darby and Eschtruth treated two younger associates more favorably than her.

She also said Eschtruth asked her several times during her evaluation  when she was going to “quit” or “leave”  Wal-Mart, to which Richardson responded, “When I can no longer walk.”

According to the appeals court, Richardson’s evaluations were generally positive. However, she received three “written coachings” over a period of 12 years. These involved an alleged attempt to influence the exchange of her daughter’s computer, failure to properly package a hazardous-material item and four unscheduled absences (due to illness) within six months.

The case is Richardson v. Walmart Stores, Inc.,  6th Cir., No. 15-1142,  (Sept. 9, 2016).