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”

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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”

Huge Settlement in Livermore Lab Age Discrimination Case

In one of the largest settlements in history of an age discrimination case, the National Nuclear Security Administration’s Livermore National Laboratory has agreed to pay $37.25 million to 129 workers who were laid off during a workforce restructuring  in 2008.

LivermoreThe plaintiffs were long-standing Lab administrative employees with an average age of 54 who were laid off in 2008, seven months after a consortium led by Bechtel, a private management company, won a contract from the U.S. Department of Energy to manage the Lab. Other consortium members are the University of California, Babcock and Wilcox, Washington Division of URS Corporation, and Battelle.

Judge Robert Freedman of the Alameda County Superior Court ruled in 2012  the case could proceed to trial after finding the plaintiffs had presented sufficient statistical evidence that the layoff had a disproportionate impact on employees over the age of 40. In 2013, the claims of five “test plaintiffs” were litigated in two separate jury trials. The first trial, alleging breach of the plaintiffs’ employment contracts, resulted in a verdict for the plaintiffs and an award of $2.73 million in damages. The second trial alleged age discrimination and this time the Laboratory prevailed.  Both verdicts were appealed.

Judge Freedman encouraged the parties  to participate in mediation, which after several months led to the settlement.  Under the terms of the settlement, the Lab does not admit guilt.

One plaintiff did not settle her case, which now will move forward independently..

Plaintiff Elaine Andrews, who had worked at the Lab for 30 years, told the Livermore Patch that many of the laid-off workers were too young to retire and were unable to find jobs during the Great Recession.

“Many lost their homes and suffered physical and mental issues from the stress of losing their livelihood,” said Andrews.

Continue reading “Huge Settlement in Livermore Lab Age Discrimination Case”

Labor Day: Not Much to Celebrate for Older Workers

United States Flag

There is little for older workers to celebrate this Labor Day 2015.

In recent months, the Obama administration has escalated its unprecedented assault on  the nation’s leading law prohibiting age discrimination in employment, the Age Discrimination in Employment Act of 1967, blatantly favoring unemployed younger workers over unemployed older workers..

Here’s the status quo:

  • The U.S. government is actively engaged in  age discrimination in the workplace. President Barack Obama in 2010 signed an executive order that permits federal agencies to discriminate against older workers. U.S. Labor Secretary Thomas E. Perez recently endorsed an effort by a coalition of America’s largest corporations to discriminate against older workers. No one seems to care.
  • Congress has failed for six years to pass the Protecting Older Workers Against Discrimination Act (POWADA). As a result, it is much more difficult for older workers to prevail in an age discrimination lawsuit than it is for workers who are victims of discrimination on the basis of race, sex (including sexual preference), religion and national origin.The POWADA would remove some of the ruinous damage that the U.S. Supreme Court inflicted on the Age Discrimination in Employment Act in 2009.
  • No group seems to be advocating for older workers in the halls of Congress. The AARP, which describes itself as the nation’s leading advocate for Americans aged 50 and above, has seen its profits skyrocket since Obamacare was passed. But older Americans have suffered from onerous co-pays and un-reimbursed medical expenses. At this point, almost half of Americans aged 65 and above are considered “economically vulnerable.”  The  AARP is the leading seller of medi-gap health insurance in the United States, and has increasingly expanded its offerings to include everything from new computers to telephones. But apparently the AARP is not making enough money to fight for the passage of  POWADA (see above).
  • Older workers are disproportionately represented in the ranks of the long-term unemployed (those workers who have been looking for work for 27 weeks or longer). Unemployed older workers are twice as likely to be chronically unemployed.  Many are forced to spend down their savings, work in low-wage part-time jobs and, ultimately, retire as soon as possible to obtain Social Security benefits. According to the Bureau of Labor Statistics: 22.1 percent of the unemployed under age 25 had looked for work for 27 weeks or longer in 2014, compared with 44.6 percent of those 55 years and older.  One reason for this sorry state is epidemic and unaddressed age discrimination in hiring.
  • The Social Security Administration’s formula for dispersing Social Security benefits favors the rich and penalizes the poor (i.e. long-term unemployed who are forced into a penurious retirement due to age discrimination). Of course, women and minorities who have experienced career-long discrimination in the workplace suffer the most under this ancient benefits formula.

I could go on but you get the idea.  In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I advocate scrapping the ADEA and adding age as a protected class under Title VII of the Civil Rights Act of 1964. The Library of Congress refuses to catalog my book, to make it available to policy-makers, because it is self-published. Sigh.  If you know a Congressional representative, spread the word.

If older workers and older Americans do not find real advocates in the coming year, it is very likely that nothing will change. 

Appeals Court finds Inference of Age Discrimination

mEGAPHONEA federal appeals court panel recently overturned the dismissal of an age discrimination case brought by a border patrol agent in Arizona against the U.S. Department of Homeland Security (DHS).

The U.S. District Court of Appeals for the Ninth Circuit in San Francisco, CA, ruled in France v. Johnson that Arizona DHS Agent John M. France presented sufficient evidence to proceed in his claim that he was denied a promotion by the DHS in violation of the Age Discrimination in Employment Act of 1967.

In March 2007, Robert Gilbert was appointed Tucson Sector Chief Patrol Agent and established a pilot program named “Architecture for Success” which created an opportunity for a promotion to a pay grade of GS-15.  Four candidates were selected for promotion; they were aged 44, 45, 47 and 48. France, the oldest applicant at age 54, was not selected.

The DHS argued that France lacked leadership, flexibility and innovation.  Gilbert stated that France failed an interview for promotion because he had a big mouth and did not know “when to turn it on or off.”

A key factor was evidence that Gilbert had repeated retirement discussions with France after France said he did not want to retire.

Continue reading “Appeals Court finds Inference of Age Discrimination”