An excellent review of my book, Betrayed: The Legalization of Age Discrimination in the Workplace, appears in the Spring issue of the journal of the American Bar Association Commission on Law and Aging in Washington, DC.
“The book is well-researched and well-written, … Barnes argues convincingly that Title VII offers far greater protections and a significantly lower burden of proof for the plaintiff. ADEA has never been on equal ground with Title VII, and amendments and case law have made bringing an age-based case nearly impossible.” David M. Godfrey, BiFocal, A Journal of the Commission of Law and Aging.
My book demonstrates indisputably that older workers have far less protection from age discrimination in the workplace than do victims of discrimination on the basis of race, sex, religion and national origin. This despite the fact that no one disputes that all employment discrimination is based upon unfounded stereotypes and fear and animus directed toward a discrete group. The Age Discrimination in Employment Act of 1967 was weak as enacted and has been systematically eviscerated by the U.S. Supreme Court. I argue that the second-class treatment of older workers represents a betrayal of America’s founding principle of equal justice under the law. Yet, President Obama and the U.S. Congress have done virtually nothing about the problem.
For six years, Congress has not even managed to pass the Protecting Older Workers Against Age Discrimination Act, which would merely fix an arbitrary and disastrous ruling by the U.S. Supreme Court in 2009.
Despite his campaign promise to strengthen the ADEA, President Obama made the problem worse in 2010 when he signed an executive order that allows federal agencies to bypass older workers.
Meanwhile, age discrimination has plunged millions of older workers into chronic unemployment, low-wage and temp jobs, and, finally, into an unwanted and ill-advised early “retirement.” A 2013 study by the Economic Policy Institute shows that almost half of older Americans face poverty or near poverty in their old age.
Godfrey, senior attorney of the ABA Commission on Law and Aging, writes:
“The book explores the various causes of action for age-discrimination cases including intentional discrimination, disparate impact, and hostile work environment, and affirmative defenses such as bona fide occupational qualification. She explains how and why each presents a nearly insurmountable barrier for a person who has been discriminated against based on age. The bottom line is that unless a worker can prove that the sole reason for refusal to hire or for termination is age, it is nearly impossible under existing law to prove an age-discrimination case.”
It is my hope that this review will encourage policy-makers and others to recognize the seriousness of the problem of age discrimination in employment and to take action.