MLK, the EEOC & Age Discrimination

MLKIt’s hard not to be cynical when the EEOC leadership trumpets its commitment to the ideals of Martin Luther King but ignores the reality of age discrimination in employment and, worse, engages in it.

EEOC Acting Chair Victoria Lipnic tweeted on MLK Day yesterday:

“Every day at the EEOC, we are reminded of Dr. King’s work, his vision, his prophecy. Our work is a deep part of his legacy. His call to service is what each member of the EEOC brings to our work every day.”

That’s a worthy sentiment but the EEOC has yet to walk the talk when it comes to age inequality.

Not only has the EEOC virtually ignored the problem for years but it sanctions age discrimination in hiring by the federal government and actually  engages in the practice itself, thereby undermining enforcement of the Age Discrimination in Employment Act of 1967 in the private sector.

Dr. King understandably focused on the crisis of racial inequality in the United States but his appeal was based on the underlying concept of equal justice for all.  One can only wonder whether Dr. King, who was assasinated at age 39, would have recognized that age discrimination is a major hindrance to older minority group workers if he had lived.

In addition to the EEOC, the U.S. Congress ignores the problem of age discrimination and the U.S. Supreme Court accords age discrimination its lowest standard of review – mere rationality – a far lower standard than the Court accords to discrimination on the basis of race, sex, national origin or religion. A law that discriminates on the basis of age need only be rational to survive the U.S. Supreme Court’s review.

Moreover, it is supremely ironic that our nation’s first African-American president, Barack Obama, signed an executive order in 2010 allowing federal agencies to refuse to hire older workers. The Pathways “Recent Graduates” Program so far has cost older workers almost 100,000 jobs and counting.

Here are some quotes from Dr. King:

  • “Injustice anywhere is a threat to justice everywhere.”
  • “He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it.”
  • “There comes a time when people get tired of being pushed out of the glittering sunlight of life’s July and left standing amid the piercing chill of an alpine November.”

And here a couple of bonus quotes for the EEOC:

  • “A genuine leader is not a searcher for consensus but a molder of consensus.”
  • “Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.”

If older workers can do the job, they have a fundamental right not to be arbitrarily fired or driven out, dispatched in thinly disguised layoffs or omitted from consideration in the hiring process.  Who would deny that older workers have a right to equal justice under the law?

And, b.t.w.,  Research shows that women are, by far, the worst victims of age discrimination in hiring.

Advertisements

Another Way to Get Rid of an Older Worker

skiA New Jersey appeals court has dismissed an age discrimination lawsuit filed by a woman who was fired from her job  at Mountain Creek Resort in Vernon, NJ a few hours after she “raised her voice” at her boss upon learning she had to work on Christmas Eve.

A two-judge panel of the Appellate Division of the Superior Court of New Jersey recently refused to reinstate a lawsuit filed by Karen Murphy, who was fired at the age of 58 after working in the accounts payable department at the resort for 16 years. The lawsuit was originally dismissed on a pre-trial motion for summary judgment filed by the resort.

Appellate Division Judges Harry Carroll and Hany Mawla concluded that Murphy  offered “no evidence” that her termination was motivated by age discrimination.

Murphy was fired on Dec. 11, 2012 a few hours after she “raised her voice” at her supervisor, Lindsey Spasova, upon learning that she would have to work on Christmas Eve. Murphy also asserted that younger workers in her department formed “cliques” and that she was excluded from their groups. Continue reading “Another Way to Get Rid of an Older Worker”

Old Men and Sexual Harassment

Why are so many perpetrators of sexual harassment old men in $500 suits?

Michigan Democratic Rep. John Conyers, Jr., is 88.  Television personalities Charlies Rose and Bill O’Reilly are aged 75 and 68, respectively. Michigan Democratic Senator Al Franken, is 66.  Former Alabama Supreme Court Chief Justice and would-be Republican Senator Roy Moore is 70. Hollywood movie producer  Harvey Weinstein is 65.  Etc.

It is not coincidental that so many  harassers are older. After-all, it usually takes many years to become rich and powerful. However, the age of harassers is incidental. It’s the $500 suit (a metaphor for money and power) that really matters.

Sexual harassment is an abuse of power. Hence, few CEOs file sexual harassment complaints.

Many of the politicians and personalities who were unmasked as harassers in recent months are deeply entrenched in  positions of power.  They use that power in two ways –  to abuse people with less power and to protect themselves from any consequences arising from their bad behavior. They know the system works to protect them, and not the targets of their abuse.

The “system” protects those in power – not their victims.

Continue reading “Old Men and Sexual Harassment”

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.

Continue reading “No Contest: Older Workers Most Oppressed by Federal Courts”

Age Bias by Judiciary Denies Older Workers Equal Justice

DsicriminationDefinedA major problem facing victims of age discrimination today is judicial bias – which is well documented in research but widely ignored and unaddressed.

Judges are not unique in society; age bias is the most tolerated form of social prejudice. However, age bias in the judiciary is particularly damaging to older workers because it is the judiciary’s role to insure equal justice under the law.

Age bias generally is more than twice as prevalent as other types of bias, according to a 2016 survey by a Canadian firm, Revera, Inc., which operates 500 senior care properties. The survey, conducted by the Sheridan Centre for Elder Research in Ontario, involved 2,400 Canadians. Forty-two percent said they tolerate ageism, compared to 20% who said they tolerate racism and 17% who tolerate sexism.

Meanwhile, a 2004 study found evidence that judges are more biased in age cases than race or sex discrimination cases. The study also found that younger judges are the least sympathetic to age discrimination claims.

Judicial age bias yields decisions that would be shocking in race or sex discrimination cases.

Continue reading “Age Bias by Judiciary Denies Older Workers Equal Justice”

Term Limits for the Supreme Court

supremesImmediately upon losing the Democratic nomination for the presidency, Vermont Senator Bernie Sanders called on  progressives to unite behind Hillary Clinton in November to preserve the Supreme Court’s majority in favor of “a woman’s right to choose” and LGBT causes.

Meanwhile, GOP Presidential Candidate Donald Trump has expressed confidence that Supreme Court fears will keep Republicans loyal in the ballot box. Trump has vowed to nominate conservative candidates to the Court.

The fact that U.S. Supreme Court justices enjoy the perk of lifetime tenure is driving the American election to a sobering extent this year, pointing to the need to implement term limits for U.S. Supreme Court Justices.

The majority of the nine-member Court is eligible for Social Security: Ruth Bader Ginsburg is 83, Anthony M. Kennedy, 80  Stephen G. Breyer, 77,  Clarence Thomas, 68, Samuel A. Alito Jr., 66, and Sonya Sotomayor, 62.  The youngest Justice is Elena Kagan, 56.

It is likely that several Justices will be forced to step down by ill health or even death in the foreseeable future. The next President will nominate candidates to fill the vacancies.

It cannot be healthy for the election of a new U.S. President to be  so profoundly influenced by fear surrounding the potential makeup of the U.S. Supreme Court.

The candidates for the Presidency are stoking fear that the Court will divide along political lines and impose a distinct and unwanted ideology on the American public. But that ploy works precisely because the Court has voted along ideological lines for years. Continue reading “Term Limits for the Supreme Court”

Systemic Age Discrimination in Hiring Ignored, Overlooked

Several states are acting to ban employers from discriminating against job applicants on the basis of prior criminal records and lack of credit worthiness.

Wouldn’t it be nice if there was also a national movement to bar employers from discriminating  against job applicants whose only “crime” is that they are aged 40 and above?

Technically, it’s already illegal for employers to discriminate on the basis of age but the Age Discrimination in Employment Act of 1967 is widely ignored when it comes to hiring. Legions of older workers talk about sending out dozens – even hundreds – of resumes and receiving no response. Why? Employers and staffing agencies use internet resume review screening tools to weed out older workers.

The evidence of systemic age discrimination in hiring was overwhelming in a lawsuit filed by job applicant Richard Villarreal. In 2007, at the age of computer49, Villarreal began submitting online applications to work as a territory  manager for R.J. Reynolds Tobacco.  A total of six applications filed by Villarreal were rejected in favor of younger, less experienced applicants.  Villarreal learned in 2010 that Reynolds, in combination with outside staffing agencies,  was using “resume review guidelines” to week out applications from older applicants. 

The guidelines told recruiters to target candidates who are “2–3 YEARS OUT OF COLLEGE” and to “STAY AWAY FROM” candidates with “8–10 YEARS” of prior sales experience.

Reynolds hired  1,024 people as Territory Managers from September 2007 to July 2010 but only 19 or 1.85 percent were over the age of 40 as a result of the resume screening process. Continue reading “Systemic Age Discrimination in Hiring Ignored, Overlooked”