The EEOC’s Predicament with Respect to the ADEA’s 50th Anniversary

EEOC50ADEAPity the poor EEOC.

The EEOC is in the painful position of having to celebrate the 50th anniversary of the Age Discrimination in Employment Act of 1967, which the EEOC has failed to aggressively enforce and arguably violates itself. The U.S. Congress passed the ADEA on December 15, 1967.

This important anniversary of the ADEA also shines a spotlight on how the EEOC’  has  failed millions of older Americans who became victims of age discrimination in employment during and since the Great Recession.

Yet, the EEOC must go through the motions. That is the least that is expected of the agency that is responsible for enforcing the ADEA.

So the EEOC has adopted a handsome marketing logo, Ability Matters – Not Age, and the agency is purporting on Twitter to “count down” to the big day on Friday .

The modern history of the ADEA shows that a law does not yield justice if it is not enforced.

I don’t want to throw a wet blanket on the EEOC’s festivities but, in the interest of history I feel obliged to note:

  • The EEOC has failed to address epidemic age discrimination in hiring in both the private and public sector, despite overwhelming evidence documenting the problem. It is particularly galling that older workers are subject to gross age discrimination by their own federal government.
  • The EEOC’s enforcement of the ADEA is weak at best. It filed two lawsuits with age discrimination claims in 2016, a year in which it received more than 20,000 age discrimination complaints. Even the AARP –  which has not exactly distinguished itself as an advocate for older workers  – took note last summer of the EEOC’s intransigence.
  • Is it too much to expect the EEOC to accord equal treatment to victims of age discrimination? The EEOC issued at least two decisions this year sanctioning what would be obvious discrimination if race or sex were alleged and not age. In one case, the EEOC ruled a middle-aged male hiring officer for the Social Security Administration did not engage in age discrimination when he refused to hire a 60-year-old women because he did not fit within his perception of “cultural fit.” The hiring officer selected five applicants under the age of 40, including many recent graduates. What does it say about the EEOC when it lags behind the business community with respect to civil rights.
  • If ability matters and not age, then why does the EEOC operate a program that effectively hires on the basis of age? The U.S. Chamber of Commerce, a fiercely pro-business advocate, taunted the EEOC in 2015 for criticizing private sector employers for targeting college students for hire when the EEOC operates an internal hiring program that does the same thing. How can the EEOC be so clueless?
  • Another real irony here is that the current crop of EEOC Commissioners are all female. Overwhelming research shows that women are the primary victims of age discrimination hiring, which is the major problem affecting older workers and contributes to ill-health and poverty in old age.  So age discrimination in hiring is both an age discrimination issue and a sex discrimination issue. Don’t they now that? Don’t they care?

This recitation of the EEOC’s failings could continue but the bottom line is that the EEOC has consistently failed, at least since the Great Recession,  to show intellectual honesty, courage and commitment to equal rights.

The EEOC has failed to show intellectual honesty, courage and commitment to equal rights.

In my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I propose that, instead of celebrating another ADEA birthday,  Congress should do what it should have done in 1964. Age was proposed for inclusion in Title VII of the Civil Rights Act of 1964 but was omitted because it was thought more study was needed.  When Congress passed the ADEA three years later, it offered far less protection to older workers than Title VII of the Civil Rights Act offers to minorities and women. And since its adoption the ADEA has been eviscerated by the U.S. Supreme Court, which consistently accords age discrimination lesser treatment than race and sex discrimination.

It should not be surprising to anyone that age discrimination remains epidemic and unaddressed in the United States.

It’s time to repeal the ADEA and include age as a protected class in Title VII.

 

 

 

 

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Another Example of Age Discrimination in the Digital Age

EditorialTeam.The Information
Staff at The Information

Is it any wonder that older people are almost invisible in society today, except for their reliance upon adult diapers, anti-depressants and “Help! I’ve Fallen and I Can’t Get Up!”  buttons?

The Information, a New York-based technology web site and magazine start-up,  has rolled out a new subscription plan for people aged 30 and under.

The “Young Professional Plan” offers a discounted rate to the magazine, and a low-cost “all-access plan” and the opportunity to join “a Facebook group only for people 30 and under.”

CEO Jessica E. Lessin, who founded the magazine in 2013, said the plan is “designed to serve people who are early in their careers and haven’t reached their earning potential and are looking for events where they can meet people from outside their own companies.” Lessin is described as a former Wall Street Journal writer “with family money.”

How would Ms. Lessin feel about a networking opportunity for only male professionals?

Did it even occur to Ms. Lessin that the “Young Professional Plan” is ageist.  You can be any age and start out in a career in advertising, earn less than your peak potential, and desire to meet people from outside your own company.

Not so long ago, when I began my career as a journalist in the dark ages, one of my first assignments as a staff reporter at The Hartford Courant was to cover a speech by Homer Babbidge, then a candidate for governor of CT.  The event was staged at The Mystic Seaport Museum in Mystic, Ct. by the Newcomen Society, a non-profit educational society that, it turned out, was all male.

I was told I could not enter the big white tent to cover the gubernatorial candidate’s speech because the event was male-only.

I can convey many instances through the years where I encountered male-only opportunities and sexual harassment that limited my career opportunities. In fact, Ms. Lessin might be interested to know that courageous women in my generation made it possible for  young women like herself to pursue  career opportunities without regard to gender.

One day, sooner than she thinks, Ms. Lessin will be in her mid-40s and wondering where the magic went. (BTW – women start to suffer serious age discrimination in their mid-40s.) She’ll have herself to blame.

The New Yorker Wimps Out on Age Discrimination

An article on ageism in the November 20 issue of The New Yorker is oddly detached and completely misses the point.

For one thing, The New Yorker fails in the article, Why Ageism Never Gets Old,  to comprehend perhaps the major reason that age discrimination does not get old.  Age discrimination has its roots in the human psyche but is systematically carried out by individuals, public agencies and private sector employers who have little reason to fear legal consequences.

Age discrimination is rooted in the human psyche but is systematically carried out by employers with little reason to fear legal consequences.

The clueless nature of The New Yorker article is evident at the start. Fact checkers apparently did not recognize that the name of the federal law prohibiting age discrimination is not “Federal Discrimination in Employment Act” but the Age Discrimination in Employment Act  of 1967 (ADEA).  (By the way, the ADEA celebrates its 50th anniversary this year.)

Here are some things that The New Yorker should know for the next article:

  • The federal government, the nation’s largest employer, routinely engages in age discrimination in hiring. Former President Barack H. Obama signed an executive order in 2010 that permits federal agencies to discriminate against older applicants and hire “recent graduates”.  This has resulted in the loss of tens of thousands of jobs for older workers and sent a message to private sector employers that age discrimination in hiring is legitimate. The U.S. Office of Program Management defends the obviously discriminatory program as legal.
  • The  U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for implementing the ADEA,  has for years ignored a major spike in age discrimination claims that began in the Great Recession. For example, the EEOC received more than 20,000 complaints of age discrimination in 2016 but filed only   two lawsuits with age discrimination claims that year. The EEOC has done virtually nothing for years in response to widely-publicized articles on age discrimination in the tech industry. The EEOC itself discriminates on the basis of age in its rulings on administrative complaints.
  • Age was originally proposed for inclusion in Title VII of the Civil Rights Act of 1964 but was omitted because Congress decided more research was needed about the problem. The ADEA, passed three years later, provides far less protection against  discrimination than Title VII. In other words, the ADEA legalizes a broad swatch of discrimination that would be illegal under Title VII. Much of the reasoning for this difference is based on outdated stereotypes and outright ignorance.
  • Age discrimination receives the lowest standard of review by the U.S. Supreme Court –  far lower than race or sex discrimination.  A law that discriminates on the basis of age is upheld by the Court if it is merely rational – or not irrational.  Moreover, the Court has issued several rulings that make it far more difficult to prevail in a case alleging age discrimination than for a case alleging race or sex discrimination.
  • The U.S. Congress has ignored the problem of age discrimination for years, failing year after year to adopt a simple “fix” for a 2009 U.S. Supreme Court ruling that eliminated so-called “mixed motive” age discrimination cases.  Age discrimination victims must show that age discrimination was the “but for” or determinative reason for an adverse employment action. The Senate Special Committee on Aging has ignored a plea by this blog to address the EEOC’s discriminatory treatment of age discrimination victims.
  • Older Americans have no real advocacy group. The AARP today is primarily a for-profit corporation that makes billions in licensing fees by exploiting the AARP’s 30-plus million membership base. (Most older Americans don’t know this because there is no media reporting on the issue.) AARP Foundation Litigation, a small spin-off of the AAARP’s non-profit foundation, mostly writes amicus or friend of the court briefs on major cases brought by attorneys in the private sector – it has had little overall impact on the fundamental legal inequality of older workers for the past 50 years (and only recently seems to have noticed that fundamental legal inequality of older workers).
  • Age discrimination is just as or more harmful than other types of discrimination. Millions of older Americans are cast out of the workplace  into long-term unemployment. Many are forced to take part-time and temp jobs. Many are forced into an early retirement, which results in reduced Social Security benefits for the rest of their lives. Considerable research shows that age discrimination is related to  ill health and poverty in old age.
  • Research shows that older women are the major victims of age discrimination in hiring, which contributes to the fact that women  experience twice the rate of poverty as men in their old age.

Ironically, in another article in the same issue of The New Yorker, called The Autumn of the Patriarchy, David Remnick, 59, the editor of The New Yorker, expresses contempt for perpetrators of sexual harassment, including President Donald Trump. That’s great as far as it goes but …  Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act. Again, Congress and federal courts have made sexual harassment extremely difficult to prove, which encourages employers to tolerate the problem and secretly pay off victims to go away. .

Let’s hope The New Yorker – or some enterprising media outlet – steps up in the near future to address a major reason that ageism never gets old – the role of our laws and courts in the problem.

The legal system is critical to the enforcement of civil rights in America.  The legal system is very complex and difficult to understand.  In truth, most attorneys have only a vague idea about how the legal system operates when they graduate from law school. But The New Yorker is staffed by smart people who should at least be able to ask the right questions.

Old Men and Sexual Harassment

Why are so many perpetrators of sexual harassment old men in $500 suits?

Michigan Democratic Rep. John Conyers, Jr., is 88.  Television personalities Charlies Rose and Bill O’Reilly are aged 75 and 68, respectively. Michigan Democratic Senator Al Franken, is 66.  Former Alabama Supreme Court Chief Justice and would-be Republican Senator Roy Moore is 70. Hollywood movie producer  Harvey Weinstein is 65.  Etc.

It is not coincidental that so many  harassers are older. After-all, it usually takes many years to become rich and powerful. However, the age of harassers is incidental. It’s the $500 suit (a metaphor for money and power) that really matters.

Sexual harassment is an abuse of power. Hence, few CEOs file sexual harassment complaints.

Many of the politicians and personalities who were unmasked as harassers in recent months are deeply entrenched in  positions of power.  They use that power in two ways –  to abuse people with less power and to protect themselves from any consequences arising from their bad behavior. They know the system works to protect them, and not the targets of their abuse.

The “system” protects those in power – not their victims.

The U.S. Congress and federal courts have made it ridiculously difficult for victims of sexual harassment to achieve redress in court.  Filing a lawsuit alleging sexual harassment is akin to running the high hurdles wearing platform shoes.  If a victim has the resources to file a complaint, the case will take years and the odds of victory are slim.

House Democratic Leader Nancy Pelosi’s first instinct was to defend Conyers.

The role of power in addressing sexual harassment was on display when House Democratic Leader Nancy Pelosi, 77, appeared Sunday on Meet the Press. She described Conyers as an “icon” who had done a “great deal to protect women.” She suggested it was not appropriate to infer guilt because  Conyers’ victims had not stepped forward.  Commentators later suggested that Pelosi soft-peddled Conyers’ transgressions to avoid riling the black caucus.

It is appropriate to infer guilt in Conyers’ case. Taxpayers, via the  U.S. Congressional Office of Compliance, paid $27,000  to a former Conyers’ staffer who said she was fired for resisting  Conyers’ sexual advances. Conyers signed off  on the 2015 settlement. Even if Conyers did not actually admit to committing sexual harassment in the confidential settlement, the settlement speaks for itself.  Harassers often say they settled to spare their family or avoid costs.  What else can they say?  In a civil matter such as this, there is no requirement of proof beyond a reasonable doubt.

After withering criticism, Pelosi indicated Monday that she has had a change of heart. She said she now believes one of Conyers’ alleged victims, Melanie Sloan, an attorney and ethics advocate who worked for Conyers on Capitol Hill in the 1990s. Sloan said Conyers once summoned her to his office where he was dressed only in his underwear.

Sexual harassment has been in the news a lot lately and, clearly, attitudes are changing. But it is not likely that any real change will occur until Congress strengthens the law to protect victims of sexual harassment by insuring that abusers face serious consequences.

U.S. Senate Special Committee on Aging Neglects its History of Advocacy for Older Workers

In the past, the U.S. Senate Special Committee on Aging has been an advocate for older workers who are faced with age discrimination in employment.

However, the committee has done nothing about age discrimination in employment in recent years, even though millions of older workers lost their jobs and savings after Wall Street collapsed and were forced into a premature and impoverished retirement.

U.S. Sen. Susan Collins, R-ME, the chairperson of the committee, has yet to respond to a plea to address the failure of the U.S. Equal Employment Opportunity Commission  (EEOC) to enforce the Age Discrimination in Employment Act a (ADEA) and its inequitable treatment of older workers.

The EEOC filed two lawsuits with age discrimination claims in 2016, a year in which it received more than 20,000 complaints of age discrimination. After much criticism, the EEOC filed 12 lawsuits with age discrimination claims in Fiscal 2017 but that is still far below its historical record. The EEOC filed 87 lawsuits with age discrimination claims a decade ago, and 120 lawsuits with age discrimination claims in 1993.

The EEOC has demonstrated gross unfairness – if not actual age discrimination – against older workers in its decision-making.

In recent months, the EEOC affirmed the dismissal by its appellate unit, the EEOC’s Office of Federal Operations, of  two administrative complaints where highly qualified older job applicants were passed over for far less qualified workers under the age of 40 (some were recent graduates). The EEOC ruled it does not violate the ADEA for employers to ignore objective qualifications and make hiring decisions based entirely on subjective considerations (i.e., cultural fit).  The EEOC offered no legal support for this position, which is contrary to the EEOC’s own policies and well established law.  The EEOC also ignored serious procedural irregularities by the federal hiring agencies in both cases.

The EEOC essentially takes the position that it is above reproach.

The EEOC’s Office of Federal Operations referred complaints about its discriminatory rulings to EEOC Acting Chair Victoria A. Lipnic, who ratified the decisions. This is akin to asking a dog  to chase its tail. But typical of a federal agency lacking in leadership and oversight.

According to a spokesperson, OFO Director Carlton M. Hadden, who wrote both of the questionable administrative rulings, “is not a judge, but an executive branch employee.  Therefore, he is not subject to the judicial code of conduct.”  Canon 3 of the Code of Conduct for U.S. Judges requires federal judges to “perform the duties of the office fairly, impartially and diligently.”

In the past, the Senate aging committee has been a strong advocate for victims of age discrimination in employment, recognizing its devastating impact on the health and economic well-being of older Americans. Advocacy by the committee in the 1970s led to the elimination of the ADEA’s  original age limit ( 65) and the extension of the ADEA’s coverage to more employers.

In 1973, the Senate aging committee issued a working paper and successfully fought for improvements in the ADEA.

According to its web site, the Senate aging committee is authorized to “study issues, conduct oversight of programs, and investigate reports of fraud and waste.” The Committee  “conducted oversight of the administration of major programs like Social Security and the Older Americans Act” and committee members “worked on adding more protections for seniors in the area of age discrimination.” The committee submits its finding and recommendations for legislation to the Senate.

Numerous studies show that most victims of age discrimination in hiring are older women, and that this problem contributes to the fact that women suffer significantly higher rates of poverty in old age.

Senate Aging Committee asked to Investigate EEOC’s Inequitable Treatment of Age Discrimination Cases

This blog has asked the U.S. Senate Special Committee on Aging to investigate the U.S. Equal Employment Opportunity Commission for essentially discriminating against older workers in the adjudication of age discrimination complaints.

The EEOC recently dismissed two cases where highly qualified older job applicants were passed over for far less qualified workers under the age of 40 (some were recent graduates). The EEOC ruled that it is not illegal for employers to make hiring decisions based entirely on subjective considerations (i.e., cultural fit).  The EEOC offered no legal support for this position, which is contrary to the EEOC’s position in race discrimination cases and well established law. The U.S. Supreme Court ruled in 2006  that an employer’s failure to hire a candidate who is significantly better qualified for a job may raise an inference of illegal discrimination.

The EEOC also ignored serious procedural irregularities by the federal hiring agencies in both cases.

The Senate Special Committee on Aging, chaired by Maine Sen. Susan M. Collins, is authorized to conduct oversight of federal programs and to investigate reports of fraud and waste. In the past, the Committee has championed the rights of age discrimination victims.

For years, the EEOC has all but ignored its Congressional mandate to enforce the Age Discrimination in Employment Act of 1967 (ADEA). The EEOC received more than 20,000 complaints of age discrimination in 2016 –  almost a quarter of all  of the complaints filed with the EEOC that year -but filed only two lawsuits with “age discrimination claims.” The EEOC was taunted by the U.S. Chamber of Commerce in 2015 for operating a hiring program that discriminates on the basis of age.

When President Lyndon Johnson signed the ADEA fifty years ago, he said its sole purpose was to ensure the most qualified candidate gets the job. The ADEA prohibits using age as a factor in employment decisions except in very limited circumstances that are not relevant to the two cases in question.

Cultural Fit

In August, the EEOC upheld a decision by Carlton M. Hadden, Jr., the director of the EEOC’s Office of Federal Operations, to dismiss an age discrimination case where a middle-aged male hiring officer for the Social Security Administration (SSA) testified he ignored objective qualifications and hired four applicants under the age of 40 based on his perception of how well they would fit within the culture of the office.  The complaint was filed in 2011 by a 60-year-old female attorney who was not selected, despite having what the hiring officer admitted were superior qualifications when compared to most or all of the successful candidates. Initially the hiring officer said she lacked enthusiasm during a 20 minute telephone interview.

The EEOC’s ruling conflicts with a guidance published by the EEOC in 2006 that states hiring based on cultural fit is discriminatory in the context of race.  Even the business community knows that hiring based on cultural fit is fraught with potential for prejudice and bias.

The EEOC also failed to punish the SSA for violating its legal obligation to insure the investigation of the age discrimination complaint was fair and impartial. Hadden acknowledged that SSA attorneys “improperly” interfered in the investigation of the case in violation of EEOC Directive  for 29 C.F.R. Part 1614 (EEO MD-110) at Chapter 1, Section  IV.  However, Hadden merely reminded the SSA to be “careful to avoid even the appearance that it is interfering with the EEO process.”

Intangibles

In the second case, Hadden ruled that a 48-year-old white male police detective who had 20 years of high-level experience in law enforcement, failed to show he was more qualified for promotion to the position of lead officer at a Texas veteran’s  center than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden writes that the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership potential, and the ability to cope with stress…”  So-called intangibles like “poise” and “compassion” are  similiar to “cultural fit” in that they are subjective assessments that are prone to conscious and subconscious bias.

It is well established in the law that an employer’s reliance on subjective criteria for significant personnel decisions may be viewed as circumstantial evidence of discrimination.*

Hadden also disregarded evidence that the veteran’s center violated its own regulations and union Collective Bargaining Agreement in the hiring proces. Hadden said the complainant failed to prove the veteran’s center “intended” to discriminate when it failed to follow the rules.Courts generally consider an employer’s failure to follow its own rules in employment matters to be evidence of discrimination.**

Since the EEOC operates in virtual secrecy, the public has no way to know how many age discrimination complaints have been dismissed by the EEOC on spurious grounds.

EEOC decisions typically are shrouded in secrecy.  The complainant in the SSA hiring case spoke up and the EEOC published Hadden’s decision in the veteran’s center case in a recent digest of EEOC decisions, presumably to serve as precedent to follow in future cases.

Where is the Accountability?

When the EEOC dismisses a complaint, the individual complainant has the right to file a federal court lawsuit. However, this option represents a waste of taxpayer dollars, given  the EEOC has already spent years processing the complaint. More importantly, a federal lawsuit is not a viable option for complainants.

Age discrmination victims were prevented from  working and earning money.  Most can’t afford to pay attorneys the growing rate – a retainer of several thousand dollars, an hourly fee of $400 or more, and at least a third of any recovery. And many age discrimination victims don’t have the time left or the tolerance to engage in endless litigation. Finally, age discrmination plaintiffs have a severe disadvantage in federal court when the EEOC has dismissed their complaint.

 In reality, the EEOC dismissals represent a complete denial of justice to the complainants.

Disturbingly, the EEOC refuses to comment about the dismissals.

The EEOC indicates on its web site just how unaccountable it is to the public. The EEOC states it will not honor Freedom of Information requests for  information that provides insight into the EEOC’s action, including “[r]ecords that reflect EEOC’s internal decision-making.” The EEOC refuses to disclose information about charges of employment discrimination filed with the EEOC, federal sector complaint files, records containing inter or intra agency pre-decisional deliberations, recommendations, analyses and opinions, attorney-client communications, attorney work product, information given to EEOC by confidential sources, matters involving personal privacy, and confidential commercial or financial information. Etc. Etc.

The EEOC takes the position that it does not have to justify decisions that are inconsistent and show gross unfairness toward older workers.

As I wrote in my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, older workers have suffered epidemic and unaddressed age discrimination for years.

Age discrimination is a pervasive and systemic form of bias that is just as or more harmful than other types of discrimination. Older workers (including members of minority groups) have less time in the workplace to rebound and often face poverty in the final years. There is no legal 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.

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*”[W]here subjective evaluations are made, if the members of the selection panel could manipulate the criteria and the weighting system in order to eliminate certain candidates, then the selection process could be used for purposes of unlawful discrimination … [the] contention that the criteria and the weights are chosen prior to identifying the applicants is unavailing if the applicant pool is small enough or if the department supervisor had reason to believe particular individuals would apply.” Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1149 (9th Cir.1982).

** See Porter v. California Dept. of Corrections, 419 F. 3d 885, 896 (9th Cir., 2005). Garcia v. Allstate Insurance Co., 357 Fed. Appx. 773, 2009 WL 4884539 (9th Cir., 2009). Giacoletto v. Amax Zinc Co., 954 F. 2d 424, 427 (7th Cir., 1992). Russell v. TG Mo. Corp., 340 F. 3d 735, 746 (8th Cir., 2003). Garrett v. Hewlett-Packard Co., 305 F. 3d 1210, 1220 (10th Cir., 2002). Bass v. Board of  County Commissioners, 256 F. 3d 1095, 1108 (11th Cir., 2001). Paquin v. Federal National Mortgage Insurance Assn., 119 F. 3d 23, 30 (D.C. Cir., 1997).

Affirmative Action, Courtesy of the EEOC

It appears the EEOC’s appellate unit , and the EEOC, are engaged in an unofficial form of affirmative action that benefits young people at the expense of older workers.

The EEOC in recent weeks ignored legal precedent and dismissed two age discrimination complaints filed by highly-qualified older job applicants who were passed over for far less qualified  workers under the age of 40 (some were recent graduates). In both cases, the EEOC also ignored serious procedural irregularities by the hiring agencies.

In one  case, a hiring officer for the Social Security Administration said he discounted qualifications altogether and hired four applicants under the age of 40 based on his perception of cultural fit. Even the business community knows that hiring based on cultural fit is an invitation to bias.

In the other case, Carlton M. Hadden, Jr., director of the EEOC’s Office of Federal Operations,  ruled a 48-year-old white male police detective, who had 20 years of high-level experience in law enforcement, failed to show he was more qualified for a lead officer position at a Texas veteran’s hospital than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden wrote in his decision that the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership potential, and the ability to cope with stress…”  In any other type of discrimination case, it would be apparent that this is a subjective assessment that is prone to bias.

The EEOC is charged by Congress with implementing federal law –  including the Age Discrimination in Employment Act of 1967 – not pursuing its own vision of generational and racial justice.

Not only does the EEOC discriminate against older applicants in its complaint processing, it has ignored its duty to enforce the ADEA for years. Last year, almost a quarter of all complaints filed with the EEOC involved age discrimination but the agency filed only two lawsuits with “age discrimination claims.”

The U.S. Congress could do something about this because it holds the purse strings but it too has ignored age discrimination for years, failing even to pass the Protecting Older Workers Against Discrimination Act (which was originally introduced in 2009).

Former U.S. President Barack Obama actually made the situation worse in 2010 when he literally authorized age discrimination in federal hiring.

The idiocy of the federal government’s position on age discrimination is clear. Because of demographic shifts, it benefits society to keep older workers working – and not just at fast food joints. This allows them to save for retirement and eliminates the drain on public coffers in terms of increased health care, Medicaid and Social Security costs.

Affirmative action policies normally apply to racial exclusions at institutions of higher education.

The landmark case that established a legal precedent for affirmative action was University of California v. Bakke in 1978. Alan Bakke was a white man in his mid-30s who failed to gain admission at 12 medical schools. He argued the school admitted students of color with lower test scores than his. The U.S. Supreme Court ruled the “use of race as a criterion in admissions decisions in higher education was constitutionally permissible”but quotas are not.

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