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”

Our Justice System in Action: Fired Older Workers Get Short Shift.

So here’s a classic example of how federal courts give short shrift to victims of age discrimination compared to victims of discrimination on the basis of race, sex, religion, color or national origin.

A federal appeals court has ruled that Lake County, Indiana, did not  engage in age discrimination when it terminated 20 part-time workers in 2013, though all of the workers were over the age of 65.  The County claimed it fired the workers for cost reasons because its insurer, Aetna, said the County would have to provide the workers with supplemental health insurance benefits.

The fired workers alleged discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA) and the Fourteenth Amendment’s Equal Protection Clause.

A panel of three judges on the U.S. Court of Appeals for the Seventh Circuit recently upheld the lower court’s dismissal of the case without a trial. The panel said there is no evd “is no evidence that the county engaged in any prohibited stereotyping.” The panel concluded the County’s action was based on a reasonable factor other than age (cost) and that the dismissals were “rationally related to a legitimate state interest” (saving money).

Title VII of the Civil Rights Act requires employers to show that discrimination on the basis of race, sex, religion, color or national origin is a “business necessity” and that no alternatives are available that are less discriminatory.

Under the ADEA, it doesn’t matter if there are less discriminatory alternatives available. The panel recognized the County might have found a “more sensitive solution to its problem” than firing the 20 workers but concluded “that does not change the bottom line result in this ADEA case…” Continue reading “Our Justice System in Action: Fired Older Workers Get Short Shift.”

What to do about Age-Related Decline among Physicians, Judges?

scalpelThe sad fact is that some older professionals show signs of serious age-related decline but refuse to retire, potentially endangering the public.

There is ongoing debate in the legal and medical professions about how to protect  the public from cognitively impaired federal judges and aged surgeons who suffer from a serious loss of fine motor skills. However, aging professionals typically scream age discrimination when their autonomy is questioned so the proposed solutions to age-related impairment all rely upon voluntary action by the impaired individuals.   And this is pretty much what we have already.

A recent article in the Journal of the American Medical Association (JAMA) expresses concern that “[a]bsent robust professional initiatives in this area, regulators and legislators may impose more draconian measures.”  Of course, in truth, patients and litigants have little reason to hope that Congress will forgo campaign contributions from two of the nation’s largest lobbying groups – the AMA and the American Bar Association – to act to protect the public.

Meanwhile, the JAMA article notes that 23 percent of practicing physicians were 65 years or older in 2015. The authors note that research indicates the mean cognitive ability of an individual declines between the ages of 40 and 74 by more than 20 percent. The “mean” is the calculated “central” value of a set of numbers. At one end of the spectrum individuals have retained their full ability and skills while at the other, individuals are profoundly impaired. When it comes to aging, the author state, there is “significant variability from one person to another.”

Continue reading “What to do about Age-Related Decline among Physicians, Judges?”

Feds Defense of Discriminatory Hiring Program; It’s Legal?

PathwaysThe worst thing about the federal government’s policy of institutionalized age discrimination is that it undermines respect in the government’s promise to insure equal justice for all.

The Office of Program Management in Washington, DC, recently defended the Pathways “Recent Graduates” Program, which allows federal agencies to limit job vacancies to individuals who graduated from high school, technical school and college within the past two years.

Yasmin A. Rosa, who identifies herself as “lead EEO Specialist” for the OPM, states in a recent letter that the Pathways Program “does not discriminate against anyone” because it is legal under an executive order signed in 2010 by former Democratic President Barack H. Obama.

(So, wait a minute, slavery and denying women the right to vote weren’t discriminatory because they were legal?) Continue reading “Feds Defense of Discriminatory Hiring Program; It’s Legal?”

Corporate Attorneys Nominated to Head EEOC and Justice Dept. Civil Rights Division

justice-scale-761665_1Republican President Donald J. Trump has nominated attorneys who have spent their careers representing employers to head the Equal Employment Opportunity Commission and the U.S. Justice Department’s Civil Rights Division.

Janet Dhillon, of Pennsylvania, was nominated to chair the EEOC.  She will replace Acting Chair Victoria Lipnic, who has been praised for her non-partisan leadership style.  Dhillon will hold the seat occupied by former EEOC chair Jenny Yang, who was appointed by Democratic President Barack Obama.

Dhillon is  executive vice president, general counsel and corporate secretary at Burlington Stores and  previously  served as general counsel for JC Penney and U.S. Airways.

Eric S. Dreiband, a veteran employer-side attorney in civil rights lawsuits, was nominated to head the U.S. Justice Department’s Civil Rights Division.

He recently represented R.J. Reynolds Tobacco Co. in an age discrimination case involving the company’s use of internet screening tools to divert the applications of thousands of older workers into a digital trash can. The U.S. Court of Appeals for the 11th Circuit in Atlanta ruled that the Age Discrimination in Employment Act of 1967 protects only employees and not job applicants from employer policies that result systemic “disparate impact” discrimination. The decision affects older workers in Florida, Georgia and Alabama. Continue reading “Corporate Attorneys Nominated to Head EEOC and Justice Dept. Civil Rights Division”

Reynolds Tobacco ‘Walks” in Case of Internet Screening to Exclude Older Job Applicants

smokeA federal appeals court panel in Atlanta this week dismissed the tattered remains of an important lawsuit alleging age discrimination in hiring against R. J. Reynolds Tobacco Co..

In other words, R.J. Reynolds will face no legal consequences for conducting a several year campaign of internet screening to weed out the applications of older workers and target workers who were “2-3 years out of college” who “easily adjusts to change.”

Meanwhile,  the U.S. Supreme Court  has refused to hear an appeal of a landmark decision by the full 11th Circuit of Appeals last October holding that job applicants are not covered under the Age Discrimination in Employment Act of 1967. The appeals court said Richard Villarreal could not sue Reynolds under a “disparate” impact because Villarreal “has no status as an employee.”  The disparate impact theory is used to attack a supposedly neutral policy or practice that has a disproportionate, negative impact on a protected group.

Federal courts have concluded that Villarreal – who appears to be a victim of gross and provable age discrimination in hiring – has no remedy under federal law.

The 11th Circuit, which includes Alabama, Georgia and Florida, is the first in the nation to rule that the ADEA covers only employees. The ADEA has been used to protect job applicants for decades.

After the dismissal of Villarreal’s systemic discrimination claim, his only remaining claim involved intentional discrimination. A three-judge panel of the 11th Circuit on Tuesday upheld the dismissal of this claim because it was not filed within 180 days of the alleged violation.

The 11th Circuit panel said Villarreal’s disparate treatment argument was not eligible to be considered under a so-called continuing violation theory. The panel said this doctrine applies to minor incidents that alone would not be actionable but which become actionable due to their “cumulative” effect … That is not so for Villarreal. He is not challenging the cumulative effect of R.J. Reynolds multiple refusals to hire older applicants; instead he is challenging each individual refusal-to-hire.”

From 2007 to 2010, Reynolds dumped more than 20,000 applications from older workers into a digital trash can. Reynolds hired 1,024 regional territory managers during this period of whom only 1.85 percent (19) were over the age of 40.

Continue reading “Reynolds Tobacco ‘Walks” in Case of Internet Screening to Exclude Older Job Applicants”

Dear EEOC Commissioners …


EEOCThe following comments are made in response to the EEOC’s invitation for public comment regarding the EEOC’s discussion of the 50th Anniversary  of the Age Discrimination in Employment Act of 1967 (ADEA) at its June 14, 2017 meeting.

I am a licensed attorney and the author of Betrayed: The Legalization of Age Discrimination in the Workplace (2014) and Overcoming Age Discrimination in the Workplace (2016).  I am the editor of a syndicated employment law blog, When the Abuser Goes to Work and I edit a blog called Age Discrimination in Employment.  I have been quoted in many national publications about the problem of age discrimination in employment in the United States.

I am surprised that it was not mentioned at your meeting that a major reason for the on-going epidemic of age discrimination in employment in America is the legal inequality of older workers.

I urge the EEOC to advocate for repeal of the ADEA. Age should be added as a protected class to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, sex, religion, color and national origin.  This would insure uniform treatment under the law of all forms of harmful employment discrimination, including age discrimination. It is not a radical move.

Age discrimination in employment currently is treated by the EEOC and federal courts as a pesky, lesser and secondary offense. This, despite an overwhelming research showing that age discrimination, like other forms of discrimination, is based upon false stereotypes, irrational fears and deep-seated animus.  Moreover, age discrimination, like other forms of illegal discrimination, has a devastating impact on both individuals and the American economy.

Continue reading “Dear EEOC Commissioners …”