#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).

#OscarsSoYoung

academyA troubling aspect of age discrimination is that it is often perpetrated as a means to combat other forms of discrimination and a lack of “diversity.”

This is evident in the misguided policy adopted by the Academy of Motion Picture Arts and Sciences to promote diversity in Oscar nominations by revoking the voting privileges of supposedly “inactive” Academy members. These “inactive” members are disproportionately older writers, directors and actors, many of whom were forced to retire years ago due to pervasive age discrimination in Hollywood.

Last year, African-American actor Jada Pinkett Smith called for a boycott of the Oscars because no black directors and actors (especially her husband, Will Smith) were nominated for the award.  The movement gained national momentum on Twitter with the hashtag OscarsSoWhite.

At the time, what was portrayed as a chronic lack of minority nominations was blamed on “old white men” in the Academy who supposedly dominate membership voting and fail to appreciate the work of talented black artists and movies.

Let’s concede for the sake of argument that the makeup of voting members is the reason for the lack of nominations for black actors and directors. What can the Academy do? The Academy could invite more  minority group members into the Academy and wait for the “old white men” to die off. That will happen inevitably and soon enough.  Instead, the Academy chose to invite 683 new mostly-minority group members into the Academy this year and to effectively boot out an indeterminate number of older mostly white male members.

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 has 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.”

Even Jada and Will may someday be old. How they will feel when they get their letter from the Academy?

The fact is that from the victim’s perspective the impact of age discrimination is no different than race or sex discrimination. It fosters a sense of deep betrayal and rage over the unfairness of being singled out for adverse treatment because of an innate characteristic over which one has no control. Moreover age discrimination, like race and sex discrimination, is perpetrated by the powerful over the powerless, like a hammer pounding a nail. 

Age discrimination cannot be justified as a means to increase diversity. It is immoral and wrong, just as race and sex discrimination are immoral and wrong. Age discrimination, like all discrimination, is based upon fear, false and harmful stereotypes and animus directed toward a discrete and often powerless group.

 Age discrimination is a short-cut for lazy and unimaginative leaders who don’t want to do the real work of creating a diverse organization.

What the Academy is doing is to older members like Bassing is a shocking act of betrayal. Bassing’s generation built the Academy into the international corporation that exists today. These members deserved to be treated with respect and dignity, even as the organization changes to meet the challenges of today’s diverse society.

I propose a new campaign, OscarsSoYoung, to demand that the Academy put an end to the purge of older members and its current policy of age discrimination.

Let’s use the hash tag, #OscarsSoYoung.

Let’s demand the Academy abide by its own “strict policy” prohibiting discrimination on the basis of race, color, national origin, religion, sex, disability, age, veteran status, sexual orientation or genetic information.

Justice Delayed is Justice Denied in Baltimore

prison guardHow can an employer engage in blatant age discrimination for years and completely escape the consequences of its action?

A federal judge last month agreed that Baltimore County illegally discriminated against correctional officers on the basis of age but refused to order monetary damages, which were estimated at more than $19 million.

Judge Richard D. Bennett cited the  “extreme” “troubling” and “unreasonable” delay in pursing the case by the plaintiffs’ attorney, the  U.S. Equal Employment Opportunity Commission.

The EEOC in 1999 and 2000 issued notices of charges of discrimination to the county on behalf of two Baltimore correctional officers who alleged the County’s pension plan discriminated against them based on their ages. The County denied the charges. The EEOC apparently put the matter on a back burner for five and a half years.

Finally, in March 2006 the EEOC issued a notice to Baltimore County that it’s pension plan violated the Age Discrimination in Employment Act of 1967. After failing to reach a settlement, the EEOC filed the equivalent of a class action lawsuit against the County in September 2007.

Of course, the case took many  wrong turns and dead ends in the federal court system that Judge Bennett failed to note. One might conclude these delays also were troubling and extreme.

In 2009, the case  was dismissed altogether when U.S. District Judge Benson E. Legg ruled the higher rates charged to older workers were “motivated not by age, but by the pension status – i.e. the number of years until retirement eligibility – of older new hires.”  The U.S. Court of Appeals for the Fourth Circuit rejected Legg’s  tortured reasoning in 2010 and reinstated the case. Continue reading “Justice Delayed is Justice Denied in Baltimore”

Making Excuses for Age Discrimination

OregonianI recently read an article by the Oregonian that was noteworthy because of the number of excuses it put forth to justify age discrimination in employment.

Approximately 2,300 workers were laid off by Intel in Seattle last Spring. According to an article by Mike Rogoway on the web site of The Oregonian newspaper, the average age of an Intel worker is 43 whereas the average age of the laid off workers was 48.  He reported that Intel was nearly 8 times more likely to lay off workers over 60 as it was to lay off those under 30.

Interestingly, the Oregonian does not accuse Intel of age discrimination. Instead, the article states the layoffs were “skewed severely older. That’s not a coincidence.”   The Oregonian  goes on to offer various excuses for age discrimination in employment.

  • The article states that federal law does not protect older workers against losing jobs if their skills grow outdated…

Where’s the evidence that the skills of the older workers who were laid off were outdated? That’s a damaging stereotype.

  • The Oregonian quotes University of California Berkeley economist Clair Brown as stating that Intel is facing a painful transition from the fading PC market to mobile gadgets and other emerging technologies. She said it makes sense that Intel would want to develop a new generation of employee and reduce its “legacy” costs.

This is like saying it makes sense to condone irrational and harmful age discrimination in employment. Someone else might say it makes sense to keep your most experienced and successful workers in a time of crisis.

If cost was a factor to justify disproportionately laying off older workers, what other factors were considered? What about the cost of recruiting, hiring and training new employees? Did Intel reduce the inflated salaries of its top executives?  Was any consideration given to lowering salaries of the older workers instead of getting rid of them?

Brown also credits Intel with “treating departing employees relatively well” – which may come as a surprise to  older workers who have been dumped into a chronic morass of unemployment and under-employment due to pervasive and unaddressed age discrimination in hiring.

  • Courtney Angeli, of the law firm Altschul & Sullivan, is quoted as stating: “It would be rare … for a mass layoff like Intel’s to be motivated by bias against older workers – after all, she noted, it is aging executives who are typically calling the shots.”

In reality, it is not at all rare for employers to target older workers in mass layoffs. In fact, this is a common ploy  that is made possible  because older workers receive far less protection from invidious discrimination under federal law than victims of discrimination on the basis or race, sex, national origin, color or religion. (If you doubt this, read my book, Betrayed: The Legalization of Age Discrimination in the Workplace)

Earlier this month, four former employees of Hewlett Packard (HP) filed a class action lawsuit in California  accusing the company of discriminating against older workers in layoffs of employees in 2012. The former workers, who were in their 50s and 60s when they were laid off, said that while HP was laying off thousands of its employees ostensibly to cut costs beginning , it was hiring thousands of younger employees to replace them.

And why is it significant that “aging executives” are calling the shots?   Age bias is not limited to young people. It’s a prejudice that is caused by fear of death, false and negative stereotypes, and animus toward a discrete group of people who share the same trait (age).  It is fundamentally no different than race or sex discrimination. For example, it is commonly asserted that African-Americans are biased against blacks who have darker skin tones.

The Oregonian article points to a problem in the media and in American society, where age discrimination often is minimized, trivialized and tolerated.

Intel claims the layoffs were based on a review of workers performance in the company’s annual review process and not based on age, gender or other factors.

Setback for Plaintiffs in Google Age Discrimination Case

GoogleA major age discrimination lawsuit against search engine giant, Google, suffered a setback recently when a federal judge refused to allow the plaintiffs to amend their complaint.

Such an action is ordinarily permitted. In fact, a federal court rule provides that a “court should freely give leave [to amend] when justice so requires.” However, U.S. District Judge Beth Labson Freeman rejected the request on the grounds the plaintiffs failed to show “diligence” in filing the motion to amend.

The case was filed in April 2015 by Robert Heath, a software engineer who was interviewed but not hired by Google in 2011. Heath alleges Google failed to hire him after an in-person interview because he was 60 years of age at the time. According to the lawsuit, the median age of Google’s 28,000 employees in 2013 was 29 while the median age for computer programmers in the United States was 42.8 and the median age for software developers is 40.6.

A second plaintiff subsequently joined the case, Cheryl Fillekes, a  40+ programmer who was invited for in-person interviews by Google in 2007, 2010, 2011 and 2013 but was never hired. She earned a P.hD. geophysics from the University of Chicago.

In March, the plaintiffs sought to amend the original complaint to permit  a class action claim under California’s Fair Employment and Housing Act (FEHA). The FEHA would have been another arrow in the plaintiffs’ quiver.  Not only did Judge Freeman reject the request, she wrote the plaintiffs’ created “havoc” by failing to file a timely motion for conditional certification under the federal Age Discrimination in Employment Act (ADEA).

California’s FEHA permits a plaintiff to file a traditional class action lawsuit, which is not permitted under the Age Discrimination in Employment Act of 1967. The ADEA has a unique class certification feature.

Under the ADEA, the court can order an employer to divulge the names and contact information of other potential class members, who then are permitted to “opt in” to the plaintiffs’ lawsuit.

Heath and Fillekes have asked the Court to order Google to divulge the names and contact information of engineering applicants who applied for a job since 2010, received an in person interview, and were refused employment.

Google claims it cannot identify potential plaintiffs because it received “over one million” applications for engineering positions since 2010. According to Google, “there is no systemic or reliable way of identifying applicants who were 40 or more years of age when they submitted applications or interviewed in-person since Google does not collect information about an applicant’s age.

Moreover, Google argues the plaintiffs are not entitled to class certification under the ADEA because “Because plaintiffs have no evidence whatsoever of a unifying scheme” and the plaintiffs’ allegations are “so idiosyncratic and distinct.”

Google asked the court to protect Google from “a frivolous expedition conducted at its own expense, and to avoid stirring up litigation through unwarranted notice … ”

Google claims that it “rigorously forbids discrimination of any kind,” including age discrimination.