No Contest: Older Workers Most Oppressed by Federal Courts

justice-scale-761665_1It is not surprising that attorneys from the Center for the Study of Law and Religion at Emory University perceive the federal courts’ bias in employment discrimination cases as being “particularly oppressive on followers of minority religious traditions.”

Attorneys associated with the Center recently filed an amicus brief  questioning the high rate of dismissal for employment discrimination cases in federal court. They point to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.

There’s no question that all employment discrimination cases are subject to shockingly high rates of pre-trial dismissal. But, in reality, the most oppressed  victims of employment discrimination in federal court are older workers. Consider:

  • The Age Discrimination in Employment Act of 1967 (ADEA) is much weaker than Title VII of the Civil Rights Act of 1962, which prohibits discrimination on the basis of religion.
  • Rulings by the U.S. Supreme Court have eviscerated the already weak, Plaintiffs must  show that age discrimination was the “but for” or primary reason for an adverse employment action. Title VII requires plaintiffs to show only that discrimination was a factor in an adverse employment decision.
  • Unlike Title VII plaintiffs, the potential for damages in an age discrimination case is far more limited. ADEA plaintiffs cannot get compensatory damages for emotional distress or punitive damages.
  • Let’s be honest. Age discrimination cases rarely even get to a federal court. 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 recently upheld an administrative decision in an age discrimination case that permits employers to ignore objective qualifications and hire workers based on “cultural fit.”  The EEOC rejects “cultural fit” in Title VII cases. The concept is so blatantly discriminatory that it has been widely rejected by business. In addition to all of that, the EEOC operates a hiring program that has a disparate impact on older workers – which means it’s discriminatory.

Age discrimination cases rarely even make it to court because the EEOC has abdicated its responsibility to enforce the ADEA.

Meanwhile, the AARP, which earns billions in profits from licensing deals exploiting its 50+ membership base, has ignored the second class legal status of older workers under the ADEA for 50 years. Until recently, the AARP did not even acknowledged the gross disparity between the ADEA and Title VII.

Age bias being what it is, few understand (or care?) about the extent to which older workers are vulnerable to irrational and harmful discrimination in the workplace and its negative consequences to society as a whole.

Our downsized media generally does not cover the federal courts closely enough to detect differences in treatment of discrimination victims. Like federal judges, members of the media also harbor age bias, which is twice as prevelant as other forms of bias.

The bottom line is that in  the race for the bottom, older workers beat out other employment discrimination victims. Not all older workers.  Older women suffer age discrimination a decade earlier than men do and are much more crippled by epidemic and unaddressed age discrimination in hiring.

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EEOC Lags Behind Business on the Appropriateness of Hiring for “Cultural Fit”

EEOCThe EEOC recently condoned a hiring manager’s selection of job candidates based upon “cultural fit,”  despite the fact this concept is increasingly disfavored in the American business community.

According to a March 21, 2017 article at Forbes.com, The End of Cultural Fit, the concept of ‘cultural fit’ was once the bedrock of corporate recruiting but today is widely considered taboo because it is fraught with bias.

“In some organizations ‘culture fit’ has become a weaponized phrase that interviewers use as a blanket term to reject candidates that don’t match the hiring manager’s view of the ideal candidate; and as such, it has become the embodiment of unconscious bias. ” writes author Lars Schmidt.

Overwhelming research shows that hiring managers harbor implicit or subconscious bias, including irrational prejudice or harmful stereotypes.

“Most interviewers are more likely to hire people like themselves and discount those who are different. This type of thinking hinders diversity and leads to homogenous cultures,” writes Schmidt.

Facebook has prohibited the use of the term “cultural fit”  because it invites bias

The EEOC’s decision to sanction hiring for cultural fit occurred in an age discrimination case filed against the Social Security Administration by a 60-year–old female applicant. The hiring officer, a middle-aged male, testified that his initial choice of five candidates  under the age of 40 was based solely upon his perception of who was the best cultural fit for the office.  He testified that he ignored objective qualifications entirely.

The four commissioners who currently serve on the EEOC are Democratic appointees Jenny Yang (Asian-American), Charlotte A. Burrows (African-American) and Chai R. Feldblum (the first openly lesbian commissioner) and Republican appointee Victoria A. Lipnic.

Would they have approved hiring decisions based on cultural fit if the case had involved a highly-qualified Asian, African-American or lesbian?  Of course not. The EEOC for years has ignored epidemic age discrimination in hiring, despite the fact (or maybe because) older women are the most adversely affected.

The EEOC cites an example of race discrimination  in the EEOC Compliance Manual on Race and Color Discrimination that involves a Native American who was not promoted because the hiring officer said a similarly qualified white candidate “seemed to be a better fit; I’m comfortable with him and I can see him in my job one day.”

According to an article at hireview.com, one problem with hiring for “cultural fit” is that the term means something different to everyone. “If company’s ‘culture’ just so happens to be young, white, and male, what’s to keep them from ‘hiring for culture’ and screening out women and minorities?” writes author Jon-Mark Sabel.

The bottom line –  the business community is more intellectually advanced on the issue of  hiring discrimination than the EEOC, which is charged with implementing the nation’s civil rights laws.

 

EEOC Refuses to Comment About Allowing Hiring Officer to Ignore Objective Qualifications in Age Discrimination Case

lipnic
Acting EEOC Commissioner Victoria A. Lipnic

The EEOC  has declined to comment on its decision to uphold an administrative ruling that dismissed an age discrimination case where a hiring officer said he ignored objective qualifications and hired workers based on cultural fit. 

The ruling by Carlton M. Hadden, director of the EEOC Office of Federal Operations, involved an allegation of age discrimination by a 60-year-old woman who was not selected for one of five vacancies for the position of attorney decision-writer at a new Social Security Administration office in Reno, NV in 2011.

The novice hiring officer testified that he completely ignored objective qualifications when he selected five applicants under the age of 40.   After three or four applicants declined the job, the hiring officer selected a 42-year-old male applicant. The hiring officer initially said he rejected the 60-year-old female applicant because she lacked enthusiasm during a 20-minute telephone interview. He agreed  she was more objectively qualified than most or all of the other applicants but said she did not fit within his perception of SSA “culture.” 

Hadden upheld an Administrative Law Judge’s finding that “reliance on subjective criteria is appropriate and necessary when the selection, as here, involves consideration of collegial, professional, teamwork, and administrative abilities that do not lend themselves to objective measurement.” Continue reading “EEOC Refuses to Comment About Allowing Hiring Officer to Ignore Objective Qualifications in Age Discrimination Case”

U.S. Age Discrimination Law Misses Mark Set 50 Years Ago

JohnsonSignsADEAWhen Democratic President Lyndon B. Johnson signed the Age Discrimination in Employment Act 50 years ago, he said the law requires employers to do only one thing – hire the person most qualified for the job. 

Based on that criteria, the ADEA is an utter failure.

 In many sectors, what society has traditionally considered to be “qualifications” are ignored with impunity.  Some employers ignore experience altogether and bar older workers from applying for jobs.

For example, former Democratic President Barack Obama signed an executive order in 2010 that permits federal agencies to hire only “recent” graduates, the vast majority of whom are under the age of 40. It is estimated that older workers have been barred from applying for more than 60,000 federal jobs since 2012.

Silicon Valley is a well-known virtual apartheid state for younger workers.

Research shows that when older women lose their jobs, they are subject to gross hiring discrimination. This dooms may older women to poverty in their old age.

 President Johnson said the ADEA does not compel employers to hire older workers.

“[The ADEA] does require that one simple question be answered fairly:  Who has the best qualifications for the job?”

Continue reading “U.S. Age Discrimination Law Misses Mark Set 50 Years Ago”

Ageism is Bad – Except in Silicon Valley?

GlobalAgingA report last year by the Milken Institute’s Center for the Future of Aging  reaches a shockingly ageist conclusion – a younger workforce is “tremendously beneficial” for growth in industries like Silicon Valley.

The 2016 report, Redefining Traditional Notions of Aging; Embracing Longevity Across Cultures,  discusses the evils of ageism and goes on to state:

“Granted, there are industries and sectors within the economy in which a younger workforce is tremendously beneficial to growth. This is especially true in places like Silicon Valley, the global bastion for young budding technology engineers and entrepreneurs.”

The authors credit Silicon Valley’s youthful workplace for “creative ideas and the abilities to build new products and provide new services have boosted innovation, efficiency, and economic growth.” The report notes the average age at Google is 30; Facebook, 28; LinkedIn 29;  and Apple, 31.

(The authors do not acknowledge that the average ages noted above are the result of pervasive and unaddressed age discrimination in Silicon Valley, which technically is illegal under the Age Discrimination in Employment Act of 1967.) Continue reading “Ageism is Bad – Except in Silicon Valley?”

Age Bias by Judiciary Denies Older Workers Equal Justice

DsicriminationDefinedA major problem facing victims of age discrimination today is judicial bias – which is well documented in research but widely ignored and unaddressed.

Judges are not unique in society; age bias is the most tolerated form of social prejudice. However, age bias in the judiciary is particularly damaging to older workers because it is the judiciary’s role to insure equal justice under the law.

Age bias generally is more than twice as prevalent as other types of bias, according to a 2016 survey by a Canadian firm, Revera, Inc., which operates 500 senior care properties. The survey, conducted by the Sheridan Centre for Elder Research in Ontario, involved 2,400 Canadians. Forty-two percent said they tolerate ageism, compared to 20% who said they tolerate racism and 17% who tolerate sexism.

Meanwhile, a 2004 study found evidence that judges are more biased in age cases than race or sex discrimination cases. The study also found that younger judges are the least sympathetic to age discrimination claims.

Judicial age bias yields decisions that would be shocking in race or sex discrimination cases.

Continue reading “Age Bias by Judiciary Denies Older Workers Equal Justice”

Science Funding Shifts Due to Potentialities and Ageism

Institutionalized and irrational age discrimination has crept into an unlikely sector of the U.S. government – federal funding for neuroscience research.

The National Institutes for Health (NIH) has adopted a “Next Generation Researchers Initiative” that will allocate $210 million  in funding per year for the next five years ($1.1 billion) for biomedical research for early-stage and mid-career “investigators” (a.k.a. scientists).

scienceNIH officials claim this is necessary because baby boomers refuse to retire and are crowding out younger scientists and that this threatens to deter new scientific advances in the years ahead.

It is true the scientific workforce is two or three years older today than in the past but there is no evidence that this will have any adverse impact on the pace or quality of future scientific discoveries. It also seems probable that many factors contribute to joblessness for younger scientists, including changes in funding patterns for scientific research, globalism, automation and the economy.

Using the NIH’s reasoning, taxpayers should create a special fund for newly-minted history PhD’s and law school grads, who also can’t find jobs.

Continue reading “Science Funding Shifts Due to Potentialities and Ageism”