Behind the Scenes: Discrimination by Job Search Engines

WalmartGreeterSeveral years ago, I filed a formal complaint with the EEOC that attorney internet job search web sites were blatantly discriminating in hiring on the basis of age.

I did this after finding dozens of ads targeting members of the most recent graduating class(es) on Lawjobs.com.

Months later, the EEOC, which supposedly implements the Age Discrimination in Employment Act (ADEA), sent me a piece of paper saying that it was not going to do anything but I could file a lawsuit if I wanted to. Not being independently wealthy, I had no choice but to pass.

Today, I looked again. I found absolutely no ads on Lawjobs.com for “recent graduates” or “members of the Class of….”  What does this mean?

Does it mean the search engine is not engaging in age discrimination or does it mean that age discrimination is now taking place behind the scenes?

It’s hard to conclude that Lawjobs.com has gone “straight” given a series of events that have come to light which showcase the role of internet job search engines in age discrimination.

In the case of Villarreal v. R.J. Reynolds Tobacco, the plaintiff applied a half-dozen times for a territory sales manager job only to learn the company was using internet software behind the scenes on Careerbuilder.com to target resumes from workers  with fewer than eight years of experience.

Reynolds hired 1,024 applicants for territory sales manager positions over a three-year period, of whom only 19 were over the age of 40.

A federal appeals court last year eliminated any prospect for a class action lawsuit in the Reynolds case when it ruled the ADEA does not cover job applicants who are the victims of systemic and calculated age discrimination in hiring because they are not “employees.” This ruling, by the 11th Circuit Court of Appeals in Atlanta,  remains in effect today in Georgia, Florida and Alabama.

Illinois Attorney General Lisa Madigan issued a press release recently stating she began  investigating alleged age discrimination by internet search engines after a 70-year-old man complained that a resume building tool on Jobr, an app owned by Monster Worldwide, excluded job applicants over the age of 52. A drop down menu required applicants to select the year they graduated or got their first job but the dates only went back to 1980.

Madigan queried six job search engines about their practices. So far, three have responded, CareerBuilder, Beyond and Indeed. All admitted to using resume building software containing age limitations that deter older applicants; all said they fixed the software upon learning of Madigan’s concerns.

I think it is reasonable to conclude that many (if not most) internet search engines for years have silently engaged in age discrimination against older job applicants. This has contributed to longstanding chronic unemployment for older workers, who often are forced to retire as soon as they become eligible to receive Social Security benefits, whereupon they quietly disappear from government employment statistics. Age discrimination in hiring makes it impossible for older job applicants to earn a decent wage and to finance a secure retirement. As a result, many, particularly women, endure an old age marked by difficult choices, anxiety and poverty.

But who is going to stop it?

Madigan told NPR that her office simply wants to stop the specific practice that relates to discriminatory resume building tools but not file a lawsuit.

The AARP has done virtually nothing about age discrimination in employment for 50 years; It wrote an amicus or friend of the court brief in the Reynolds case.

The EEOC is almost completely absent from the age discrimination scene, despite an unprecedented increase in age discrimination complaints during and since the Great Recession. It filed two – yes, two – lawsuits with age discrimination claims last year. Age discrimination complaints comprise almost a quarter of all complaints received by the EEOC.

Me? Alas, I still can’t afford to finance years of complex litigation against some of America’s largest corporations.

My 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, chronicles the epic failure of all three branches of government to address the completely predictable problem of age discrimination during and since the collapse of Wall Street. It is an  appalling abdication of governmental responsibility and it continues.

PricewaterhouseCoopers’ Defense: Older Job Applicants Can’t Sue for Systematic Discrimination

Note: U.S. District Judge John S. Tigar has rejected PwC’s argument that the Age Discrimination in Employment Act does not permit job applicants to file disparate impact lawsuits alleging systemic age discrimination. The case will proceed.

pwcSo PricewaterhouseCoopers, the second largest professional services firm in the world, is being sued for refusing to hire older applicants to work as accountants.

But instead of waging a defense to that charge, PwC is arguing the Age Discrimination in Employment Act (ADEA) doesn’t allow job applicants to sue for systemic discrimination.

PwC attorney Joshua Z. Rabinovitz of Kirkland & Ellis LLP recently urged a federal judge in San Francisco to follow the lead of a federal appeals court in Atlanta  and rule that the ADEA does not permit job applicants to sue for disparate impact discrimination.

The disparate impact theory of discrimination is invoked when an employer adopts a practice or policy that has a disproportionate and negative impact upon a protected group.

Rabinovitz said the ADEA was not amended when its sister statute, Title VII of the Civil Rights Act , was amended in 1972 to permit disparate impact lawsuits by job applicants. Therefore, he said, the ADEA does not allow disparate impact lawsuits by job applicants. Title VII covers discrimination on the basis of race, sex, color, national origin and religion.

The suit was filed by Steve Rabin, 53, a certified public accountant who was rejected in 2013 for a position at PwC. He alleges that PwC relies almost exclusively upon campus recruiting to fill entry-level positions and does not post vacancies on its public web site. The only way to apply for a job is through PwC’s “Campus track recruitment tool, which requires a college affiliation.”  The lawsuit also notes that PwC  maintains a mandatory early retirement policy that requires partners to retire by age 60 which allegedly discourages the hiring of  experienced older applicants.

The average age of PwC’s workforce in 2011 was 27, while the median age of accountants and auditors in the U.S.was 43.2.

Daniel B. Kohrman, an attorney for AARP Foundation Litigation,  argued the ADEA prohibits age discrimination against “any individual” who is aged 40 and above, which could include job applicants.

Ironically, pervasive discrimination against older job applicants was why Congress adopted the ADEA in the first place.

According to Congressional testimony leading up to the passage of the ADEA, job applicants  in 1964 who were over the age of 55  were barred from half of all job openings in the private sector. Workers over 45 were barred from a quarter of these jobs, and workers over 65 were barred from almost all of them.

In addition to the AARP Foundation Litigation, the  case was filed by the New York firm of Outten & Golden,  and the San Francisco firm, The Liu Law Firm.

Will the AARP Fight for Seniors or Itself?

AARPHouse Speaker Paul Ryan’s proposal to essentially privatize Medicare to cut costs is causing fear among older Americans who rely upon Medicare for health coverage.

Who is fighting to  protect the interests of older Americans?

Today, the AARP’s web site features the “Ultimate Super Bowl Quiz,” hot travel deals, and suggestions about what movies to watch this weekend. Toward the bottom of the page, there are two links, “AARP on the Front Lines Defending Medicare,” and “Tell Congress to Protect Medicare.”

The AARP has a complicated relationship with Medicare. It is the nation’s largest purveyor of supplemental Medi-gap health insurance, reaping literally billions each year in profits from seniors who are essentially forced to purchase catastrophic coverage to stave off health-induced financial disaster. One reason that seniors must purchase Medi-gap insurance in the first place is the AARP.

The AARP has a major conflict of interest with respect to Medicare.

The AARP was sharply criticized several years ago as selling out older Americans when it supported Obamacare, which cut $716 billion from Medicare to pay for its $1.9 trillion expansion of coverage to low-income Americans. Not coincidentally, the AARP obtained the equivalent of a waiver in the new law when Obama abandoned reforms that would have saved seniors hundreds of dollars in Medi-gap premiums a year.

Clearly, the AARP is not a disinterested party in the debate over the future of Medicare but it is, unfortunately, the elephant in the room by virtue of its 38 million members, many of whom joined to take advantage of AARP licensing deals that purportedly give members a small discount on hotels, car rentals, etc.

On its web site, the AARP states reassuringly that it has launched a “national campaign to fight proposals to turn Medicare into a voucher system.” But what does that really mean? No vouchers unless the AARP gets its cut?

Laura Polacheck, the communications director of the AARP Utah, on Feb. 1 issued a press release condemning  House Speaker Paul Ryan’s proposal to privatize the government-run health program for people with disabilities and those aged 65 and older. Polacheck says AARP staff and volunteers will remind members of Congress that Ryan’s proposal would put more than 300,000 Utah seniors’ benefits at risk, as well as the benefits of over 400,000 workers who are set to transition to Medicare over the next 15 years.

That’s all fine and good but older Americans would be wise to demand transparency from the AARP. What does the AARP have to gain and what do older Americans have to lose?

After an investigation by the Center for Media and Democracy, the AARP last year was pressured into dropping its membership in the right-wing American Legislative Exchange Council, an organization affiliated with the Koch brothers that drafts and promotes bills that would undermine and privatize Social Security and Medicare. The AARP, a “trustee level” sponsor of ALEC’s 2016 annual meeting, claimed it was merely taking advantage of ” an opportunity to engage with state legislators and advance our members’ priorities.”

I have long bemoaned the absence of a true advocacy group for older America, such as the DaneAge Association in Denmark.

The AARP has done virtually nothing for 50 years to combat the legal inequality of older Americans in the workplace. Apparently, the AARP has no marketing incentive to pay more than lip service to this issue.

DaneAge is an independent, non-profit national membership organization founded in 1986 to provide advocacy “through an ongoing dialogue with the government and the public, promoting a society without age barriers and ageism.”  DaneAge has 690,000 members in 217 local chapters across Denmark, including 15,775 volunteers who engage in local advocacy. Among other things, the organization, which has approximately 100 staff members,  provides “free-of-charge and impartial legal advice and counsel” by lawyers and other professionals.

Denmark is widely regarded as having the highest quality of life  for its citizens in the world.

What About Social Security? Topic Mostly Ignored in Pres. Election

puzzlepieceThere has been surprisingly little discussion about the future of Social Security in the ongoing presidential election campaign, leaving questions about what the candidates will actually do if elected.

Democrat Hillary Clinton’s position seems to depend upon her audience:

  • “I won’t cut Social Security. … I’ll defend it, and I’ll expand it.” www.hillaryclinton.com, February 5, 2016.
  • “In lucrative paid speeches that Hillary Clinton delivered to elite financial firms but refused to disclose to the public, she displayed an easy comfort with titans of business, embraced unfettered international trade and praised a budget-balancing plan that would have required cuts to Social Security, according to documents posted online Friday by WikiLeaks.” The New York TImes, Leaked Speech Excerpts Show a Hillary Clinton at East with Wall Street, Oct. 7, 2016.

Republican Donald Trump’s position is vague. He seems to promise not to cut Social Security for existing recipients but certainly does not commit himself to expansion of the program.

  • “I’m going to save Social Security. You have tremendous waste, fraud and abuse. We have in Social Security thousands of people over 106 years old. You know they don’t exist. There’s tremendous waste, fraud and abuse, and we’re going to get it. But we’re not going to hurt the people who have been paying into Social Security their whole life and then all of a sudden they’re supposed to get less. We’re bringing jobs back.”  Source: 2016 CBS Republican primary debate in South Carolina, Feb 13, 2016

The fate of Social Security is vital to 40 million retired Americans, including 21% of married couples and about 43% of unmarried persons who rely on Social Security for 90% or more of their income.

Of course, what politicians promise during the election season is not always what they deliver. President Barack Obama promised the following and then did the reverse:

  • “Obama will fight job discrimination for aging employees by strengthening the Age Discrimination in Employment Act … .”  Source: Blueprint for Change (2008).

Two years later, President Obama signed an executive order that carves out an exception to the ADEA that permits the nation’s largest employer, the federal government, to discriminate on the basis of age in hiring for federal jobs. This was done in plain sight but there was no protest – nor indeed any comment – from the AARP, which is busy mining its treasure trove of older members through the sales of Medigap health insurance and licensing agreements. And Obama’s administration has ignored the epidemic of age discrimination in hiring that has forced millions of older workers out of the workplace and into an uncertain and ill-advised retirement.

U.S. Ignores World Health Org. Call to Combat Ageism

worldhealthorgYou may not have heard about this but the World Health Organization has called for a global campaign to combat ageism.

An editorial in the October issue of the Bulletin of the World Health Organization states that ageism has resulted in “marked health inequities” among older people.  In fact, the WHO  states, “There is little evidence to suggest that people today are experiencing older age in better health than previous generations.”

The WHO argues that changing public discourse around ageing, which largely depicts older people as burdens on public spending and economic growth, can help to capitalize on the great human capacity that older people represent.

The WHO conducted  a “world values survey” of 83,034 adults from 57 countries in which 60 percent of participants reported that older adults are not well-respected. The survey found “ubiquitous” attitudes that older people are frail, out of touch, burdensome and dependent.

“Unlike other forms of discrimination, including sexism and racism, ageism is socially acceptable, strongly institutionalised, largely undetected and unchallenged,” says the WHO.

The absence of reporting about the WHO’s call to arms in the U.S. is yet another indicator of pervasive ageism here, where age discrimination is embedded into U.S. law and was adopted as an official policy of the  Democratic administration of President Barack Obama

(FYI – The big story on the AARP’s web page today is “Movies for Grownups: ‘Deepwater Horizon’ Explodes with Action.” What are the chances that the AARP is getting a cut of this action?  Isn’t it past the time for a membership revolt?)

Continue reading “U.S. Ignores World Health Org. Call to Combat Ageism”

Theft: Social Security Retirement Fund

chris christieGov. Chris Christie, R-N.J., was the only one to substantively address the future of Social Security in this week’s Republican debate in South Carolina and he said something that is noteworthy:

“We have seniors out there who are scared to death because this Congress — this one that we have right now, just stole $150 billion from the Social Security retirement fund to give it to the Social Security disability fund. A Republican Congress did that.

And the fact is it was wrong. And they consorted with Barack Obama to steal from Social Security. We need to reform Social Security. Mine is the only plan that saves over $1 trillion and that’s why I’m answering your question.”

In the past, Christie has argued that there are only two options to save Social Security  – cut benefits for the wealthy and raise the retirement age or raise taxes for everyone.

He proposes cutting Social Security benefits for people who earn over $80,000 a year and eliminating benefits  entirely for seniors who are earn over $200,000. He also proposed increasing the retirement age by a month a year to age 68 over a 25-year period. The only other option, says Christie is raising taxes for everyone.

I checked the AARP web site to see if there was any coverage of this issue. There was a puff piece on the very spending bill that Christie is discussing and stories on “Sign Off: Tips to Avoid Holiday Porch Predators” and “Surf Safely: Watch Out for Public Wi-Fi Fraud This Holiday.” Let’s not be too judgmental. If you were earning billions through the sale of Medi-gap health insurance – which is necessary because America lacks a universal health care program – you probably wouldn’t the rock the boat either.

 

W.H. Aging Conf. Goes Out with a Whimper

The 2015 White House Conference on Aging released its final report Tuesday without mentioning rampant age discrimination in employment or the financial plight of older Americans caused by the collapse of Wall Street.

Celia Munoz, director of the Obama administration’s Domestic Policy Council,  congratulated the Obama administration for accomplishing a “great deal” while recognizing there is still much more work to do.  Munoz  assures us that a “better informed vision for aging in America” emerged from the Conference.

To some, the conference was a disappointing public relations event. The Obama administration partnered with the AARP, which actually organized regional events. The AARP is the nation’s leading purveyor of Medi-gap health insurance to older adults. Not surprisingly, a major theme of the Conference was healthy aging.

Conference organizers completely ignored repeated pleas to examine the link between elder poverty, the on-going epidemic of age discrimination in hiring and the disappearance of defined benefit pensions.

Some of the Conference’s highly-touted initiatives come far too late to help older adults today. For example, Obama proposed a portable retirement account that workers can take from job to job and  a law requiring financial advisers to act in their clients’ best interests.

An alarming percentage of America’s older adults today literally have no money, having lost jobs, homes and savings in the financial meltdown.

The Social Security Administration estimates the average Social Security benefit is $13,000 a year, from which Medicare payments are then deducted.  For 36 percent of recipients, Social Security provides 90 percent or more of their income.  For 24 percent of recipients, it is the sole source of retirement income.

The White House has held a Conference on Aging every decade since 1961. The 2015 Conference was a shell of its predecessors because, according to the administration, Congress failed to allocate sufficient funds for the event. In the past,  delegates from around the country converged in Washington, D.C., to discuss ways to  improve the quality of life of older Americans.

It seems more likely that the plight of older adults is simply not a priority for either Congress or the Obama administration.

There’s always 2025?