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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Author: pgb

Attorney at Law, author and blogger.

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