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”

JIM CROW AND AGE DISCRIMINATION

“All that is necessary for the triumph of evil is that good men do nothing”.  Edmund Burke.

This quote was sent to me by a reader and encapsulates the real problem with the epidemic of age discrimination in America today.  Our elected representatives and federal judges, who ultimately are responsible for ensuring equal justice for all Americans, choose to look the other way when employers engage in age discrimination.  The result is that a class of Americans is subjected to arbitrary and systemic discrimination in the workplace that robs them of, among other things, their ability to earn a living and retire with dignity.

This is reminiscent of the era of Jim Crow but it involves age, not race. Jim Crow laws were state and local laws enacted after the Civil War that had the effect of mandating racial segregation in all public facilities in the South.  In my new book, Betrayed: The Legalization of Age Discrimination in the Workforce, I show that older workers are literally second-class citizens under the law.

The major law protecting older workers, The Age Discrimination in Employment Act of 1967, was weak to begin with and has been eviscerated by the U.S. Supreme Court.  As a result, older workers are subjected to wholesale and targeted terminations, long-term unemployment due to epidemic and overt age discrimination in hiring and, finally, they are forced into low-wage or temp work until they can age into an early retirement that will reduce their Social Security benefit by at least 25%  for the rest of their lives.

Age discrimination has nothing to do with ability or merit. It’s about perception. It’s attributable to ignorance and prejudice – both conscious and unconscious – perpetuated by false and harmful stereotypes, fear of aging, and animus between that generations which is fueled by America’s staggering wealth inequality.   And, of course, it exists because of  the failure of  the supposedly good people to act.

I have no intention of diminishing the horror that is evident in the history of race discrimination in America.  Age discrimination is  different. Older people aren’t lynched. They’re put in drawers and forgotten. And age discrimination in the workplace is just the beginning. The problem also is evident in for-profit nursing homes, where old people are labelled, sedated, and neglected until they fade away. By the way, there is a strong correlation between poverty in old age and race.

Burke (1729-1797) was an Irish statesman; author, orator, political theorist, and philosopher. He isn’t the only one to observe that evil thrives when good people do nothing. More recently, Martin Luther King said: “The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.”

* This article was originally published at abusergoestowork.com on February 13, 2015.

IMPORTANT RULING ON MOTIVE & AGE DISCRIMINATION

Here’s a rare  and important victory in a federal age discrimination case involving a Minnesota city’s failure to promote a 51-year-old police lieutenant to the position of chief of police because he was “retirement eligible.”

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Minneapolis rejected the City’s theory that its action were not-discriminatory because its motive was to hire a long-term police chief.  The City relied upon a theory expounded by the U.S. Supreme Court in 1993 that it is not age discrimination if  an employer is motivated by a reason that is related to but “analytically distinct” from age discrimination (i.e. salary or pension status).

“On the facts here,” the appeals court ruled, “retirement eligibility is always correlated with age because it is dependent on the employee reaching 50; it cannot be ‘divorced from age.’”  Moreover, the  panel said that assuming a candidate is “uncommitted to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits.”

Continue reading “IMPORTANT RULING ON MOTIVE & AGE DISCRIMINATION”