Stanford U. Defends Age Discrimination

The Stanford University Faculty Senate is demanding repeal of a discriminatory requirement that medical faculty aged 75 and older undergo enhanced health screening and peer assessment to retain their jobs.

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norman-rockwell-doctor-doll-postersThe Stanford University Faculty Senate is demanding repeal of a discriminatory requirement that medical faculty aged 75 and older undergo enhanced health screening and peer assessment to retain their jobs.

 In 2013, the university adopted a controversial Late Career Practitioner Policy, which requires doctors at Stanford Health Care to pass an enhanced health screening and peer assessment of their clinical skills every two years.  Enhanced screening is not required for younger medical professionals who have known mental or physical health problems, while doctors aged 75 and older who are healthy and competent must overcome a presumption that they are unfit to do their jobs.

The Stanford Faculty Senate last week cast a 20-9 secret ballot vote asking university leaders to reject the 2013 policy and to adopt a new single, uniform method for assessing the competence of all faculty members practicing medicine at its hospitals and clinics.  The faculty resolution states:

“Be it resolved that the Faculty Senate of the Academic Council recommends to the University leadership that it advise Stanford Hospitals and Clinics, Stanford Health Care, Stanford Medicine, that age discrimination in competency testing end, and that patients be safeguarded by a process that is the same for all faculty age-groups.”

According to news reports, Frank Stockdale, a professor emeritus at Stanford University School of Medicine, argued there is no evidence that older physicians at Stanford Hospital disproportionately harm patients and “in fact, the literature shows that most harm comes from younger physicians.”

Ann Weinacker, a professor of medicine at Stanford, argued the 2013 policy is necessary because some physicians who develop age-related limitations fail to voluntarily restrict their practices. She said Duke University requires mandatory retirement from clinical practice at age 75 and noted other professions, such as airline pilots, enforce mandatory retirement ages.

Neither Weinacker nor Lloyd B. Minor, dean of Stanford School of Medicine, who also opposed the resolution, appeared to have addressed the obvious question –  Why not just adopt a non-discriminatory policy that applies to all faculty members?

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I  show that the Age Discrimination in Employment Act of 1967 contains many loopholes not present in Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, sex, religion and national origin. The ADEA permits an employer to engaged in age discrimination when it is “reasonably necessary”   and “all or substantially all individuals excluded form the job involved are in fact disqualified, or some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age.” ( 29 CFR 1625.6) . This provision permits employers to rely on general stereotypes that normal aging leads to incapacity.  A much higher standard exists under Title VII,, which almost never permits discrimination on the basis of race and only rarely allows sex discrimination.

The issue of mandatory retirement for airline pilots has been the subject of extensive litigation for many years.  Former EEOC Chair Naomi C. Earp argued “there is no credible medical, scientific or aviation evidence to suggest that concerns to safety require a mandatory retirement age for pilots of 65.” Of course, the issue has new relevance today, since a 27-year-old German airline co-pilot who had been treated for chronic eye problems and severe depression crashed a plane into a mountain killing all 150 people on board.

Weinacker said the “late career practitioners” policy was approved by Stanford Health Care’s Medical Staff Executive Committee, which governs all medical staff working in Stanford Health Care and Lucile Packard Children’s Hospital, and the Board of Directors of Stanford Health Care. In addition, she said members of Stanford Health Care approved the policy by a simple majority in an anonymous vote.

Author: pgb

Attorney at Law, author and blogger.

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