EEOC Rebuked For Failing to Enforce Age Discrimination Law

birthday cakeThe EEOC was told repeatedly Wednesday that both it and the Age Discrimination in Employment Act of 1967 are doing a poor job of protecting older workers, particularly older women, from age discrimination in employment.

The experts were invited by EEOC Acting  Chair Victoria A. Lipnic to an EEOC meeting to commemorate the 50th anniversary of the ADEA.

Lipnic noted that “with so many more people working and living longer, we can’t afford to allow age discrimination to waste the knowledge, skills, and talent of older workers.” She expressed hope that “ we can work together to fulfill the promise of this important civil rights law to ensure opportunities are based on ability, not age.”

Senior Attorney Laurie McCann of the AARP Foundation Litigation blasted the EEOC’s lack of enforcement effort with respect to the ADEA.

She noted that only two ADEA cases were brought by the EEOC last year out of 86 merit lawsuits filed by the EEOC and that neither  case appears to involve systemic discrimination. She said older workers need the EEOC to “step up and vigorously defend” EEOC age discrimination regulations and to fight “thinly veiled efforts” by employers to exclude older workers from applying for jobs.

McCann was particularly critical of the EEOC’s failure to address blatant discrimination in Silicon Valley, where only 8 percent of firms include “age” in their diversity and inclusion policies, and in the entertainment industry, where older writers and other workers are excluded.

“In the 50th anniversary year of the enactment of the ADEA,” McMann said, “ageism unfortunately remains pervasive in the American labor force.”

McCann noted that in recent years the U.S. Supreme Court and other federal courts have diminished the ADEA’s protections and erected barriers to age discrimination suits. She said the ADEA has been treated like a “second-class civil rights statute.” Nevertheless, she said, “there is much the EEOC can do within its existing authority to update and strengthen substantive policies and to bolster its enforcement activities under the ADEA.”

Among other things, she urged the EEOC to make age-related inquiries for job applications “presumptively unlawful”; to bar requests for date of birth, graduation dates, or similar information unless age is a bona fide occupational qualification; and to prohibit online job sites from using menus and algorithms that have the effect of screening out older applicants.

Patrick Button, an assistant professor of economics at Tulane University, said age discrimination is still common, especially for older women who experience “sex plus age” discrimination. He concluded that “while age discrimination laws seem to help mitigate some age discrimination faced by older men, older women face more age discrimination, and current age discrimination laws do a poor job of protecting older women, who are even more economically vulnerable.”

John Challenger, CEO of the law firm Challenger, Gray & Christmas, said age discrimination is damaging the economic health of America and noted that if older workers stayed in the workforce, it would significantly reduce the skilled worker shortage in the U.S.

McCann and Challenger noted that the U.S. Supreme Court in a 2009 decision, Gross v. FBL Financial Services, Inc., heightened the legal standard for prevailing in an age discrimination case and made cases that were already extremely difficult to prove even more difficult. They called upon Congress to restore the previous standard of proof.

Challenger noted the latest statistics from the Bureau of Labor Statistics show the labor participation rate of workers aged 55 and older is 40 percent compared to 80 percent for workers aged 25 to 54. He blamed  “[s]ocietal tradition, outdated legislation and flawed business practices that channel older people out of the work force, especially skilled workers, is damaging the economic health of our country.”

Sara J. Czaja, director of the Center for Research and Education on Aging and Technology Enhancement at the University of Miami, decried myths that older workers are less productive, technophobic and inflexible. She said there is “no substantial literature that indicates that job performance is lower among older adults and in fact there is extensive literature demonstrating that in fact performance improves with age. Further, older workers do not have higher rates of absenteeism or turnover. In contrast, they tend to be more reliable than younger workers.’

The Commission will hold open the June 14, 2017 Commission meeting record for 15 days and invites members of the public to submit written comments on matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to: Commissionmeetingcomments@eeoc.gov.

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Author: pgb

Attorney at Law, author and blogger.

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