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 …”

Texas Roadhouse Suit Settled $12 million

texas-roadhouseA major age discrimination lawsuit brought by the EEOC against Texas Roadhouse was settled out of court Friday for $12 million.

A four-week trial in the cased ended in February in a hung jury. The retrial was scheduled for next month.

The EEOC brought a class action “pattern or practice” lawsuit against the Kentucky-based company in 2011 charging  the chain had refused for years to hire workers aged 40 and above for front-of-the-house positions (i.e. servers, hosts, server assistants and bartenders).

Clearly, $12 million won’t break the bank for Texas Roadhouse, a national restaurant chain that  earned $400 million in gross profits in 2016. However, Texas Roadhouse also  agreed, as part of the settlement, to stop discriminating on the basis of age in the future and to increase its recruitment and hiring of employees aged 40 and older for front-of-the-house positions.

Hopefully, the case will serve as a warning to other national restaurant chains that refuse to hire older workers for front–of-the-house positions.

The EEOC also said Texas Roadhouse will establish the position of diversity director and pay for a compliance monitor to oversee the terms of the three and a half-year consent decree. Continue reading “Texas Roadhouse Suit Settled $12 million”

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.

Updated: Overcoming Age Discrimination in Employment

smokeI have updated my book, Overcoming Age Discrimination in Employment,  to include an important appeals court decision involving age discrimination in hiring.

The U.S. Court of Appeals for the 11th Circuit, based in Atlanta,  ruled last year that older job applicants have no protection whatsoever from systemic and calculated age discrimination in hiring – also known as disparate impact discrimination – under the Age Discrimination in Employment Act of 1967.

The 11th Circuit’s ruling in Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., technically affects only Georgia, Florida and Alabama. However, it could influence other federal circuits or lead to a difference in opinion between the circuits that ends up before the U.S. Supreme Court.

The 11th Circuit’s decision was shocking because evidence in the case showed the defendant, R.J. Reynolds Tobacco, hired two staffing agencies (Pinstripe and Kelly) to use internet software to weed out the resumes of applicants for a territory sales manager job who had more than eight years of experience. An estimated 20,000  older job applicants filed on-line applications for the  position; their applications were diverted to a digital trash can sight unseen.

Writing for the majority, Judge William Pryor held that the disparate impact provision of the ADEA only creates a cause of action for employees and cannot be the basis of a claim by a job applicant. The majority rejected the EEOC’s position that the ADEA does permit disparate impact lawsuits by job applicants, ruling the EEOC  was not due any deference.

Few would argue that age discrimination in hiring is devastating to older workers, many of whom are forced into a financially ill-advised early retirement and end up in poverty in their old age.

My book, Overcoming Age Discrimination in Employment, originally published in Jan. 2016, helps individuals and employers understand  key provisions of the Age Discrimination in Employment Act and how the law is interpreted by the federal courts.  It was a follow up to an earlier book, Betrayed: The Legalization of Age Discrimination in the Workplace, where I argue for repeal of the ADEA. Age should be added as a protected class to Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. That way at least older workers would have equal rights under the law.

The ADEA was weak and riddled with loopholes when it was adopted 50 years ago. Since then it has been eviscerated by the U.S. Supreme Court and federal appellate courts (like the 11th Circuit Court of Appeals).

Older workers literally have been second class citizens under federal law for 50 years. Isn’t that long enough?

 

 

 

 

Justice Delayed is Justice Denied in Baltimore

prison guardHow can an employer engage in blatant age discrimination for years and completely escape the consequences of its action?

A federal judge last month agreed that Baltimore County illegally discriminated against correctional officers on the basis of age but refused to order monetary damages, which were estimated at more than $19 million.

Judge Richard D. Bennett cited the  “extreme” “troubling” and “unreasonable” delay in pursing the case by the plaintiffs’ attorney, the  U.S. Equal Employment Opportunity Commission.

The EEOC in 1999 and 2000 issued notices of charges of discrimination to the county on behalf of two Baltimore correctional officers who alleged the County’s pension plan discriminated against them based on their ages. The County denied the charges. The EEOC apparently put the matter on a back burner for five and a half years.

Finally, in March 2006 the EEOC issued a notice to Baltimore County that it’s pension plan violated the Age Discrimination in Employment Act of 1967. After failing to reach a settlement, the EEOC filed the equivalent of a class action lawsuit against the County in September 2007.

Of course, the case took many  wrong turns and dead ends in the federal court system that Judge Bennett failed to note. One might conclude these delays also were troubling and extreme.

In 2009, the case  was dismissed altogether when U.S. District Judge Benson E. Legg ruled the higher rates charged to older workers were “motivated not by age, but by the pension status – i.e. the number of years until retirement eligibility – of older new hires.”  The U.S. Court of Appeals for the Fourth Circuit rejected Legg’s  tortured reasoning in 2010 and reinstated the case. Continue reading “Justice Delayed is Justice Denied in Baltimore”

Would Trump Halt Age Discrimination by Feds?

TrumpIn his address to the Detroit Economic Club on Monday, GOP Presidential hopeful Donald Trump said something that could have tremendous impact on the problem of age discrimination in employment.

He promised to immediately cancel all of President Barack Obama’s “illegal and overreaching executive orders.”

Older workers have been subject to blatant age discrimination in hiring by our nation’s largest employer, the U.S. government, since President Barack Obama signed an executive order in 2010 that essentially created an exemption to the Age Discrimination in Employment Act of 1967 (ADEA) for federal agencies.

President Obama’s order allows federal agencies to bypass older workers and hire “recent graduates.” The ADEA unambiguously states that it is unlawful for any employer “to fail or refuse to hire” any individual “because of such individual’s age.” Obama’s order has a disparate impact upon older workers because the vast majority of recent graduates are under age 30.

Paradoxically, President Obama claimed that merit-based civil service rules put the federal government at a “competitive disadvantage compared to private-sector employers when it comes to hiring qualified applicants for entry-level positions.” The point of civil service regulations is, of course, to hire the best qualified applicant. Obama’s order enables federal agencies to hire young applicants with fewer qualifications than older applicants. Continue reading “Would Trump Halt Age Discrimination by Feds?”

The Feds’ Double Standard for Discrimination

noworkplacediscriminationDiscrimination on the basis of transgender status was first declared by the U.S. Equal Employment Opportunity Commission (EEOC) to be a form of sex discrimination under Title VII of the Civil Rights Act  in 2011.

The decision was made in the case of a transgender woman  who complained to the EEOC that she was not hired by the U.S. Department of Justice (DOJ) because of her gender identity. The complainant, Mia Macy, said she was told the job was hers until she informed the DOJ that she was transitioning from male to female.

The EEOC “clarified” that Macy had a right to sue for sex discrimination under Title VII of the Civil Rights Act of 1964, which until then had applied only to individuals on the basis of race, sex (straight and homosexual), religion, color and national origin.  The EEOC declared that  “claims of discrimination based on transgender status … are cognizable under Title VII’s sex discrimination prohibition…”

Whether the EEOC’s decision will hold up will be tested in the weeks ahead as Attorney General Loretta Lynch and the state of North Carolina have filed competing lawsuits regarding North Carolina’s refusal to allow transgender individuals to use the restroom of their gender identity

It is ironic that the EEOC ‘s landmark transgender decision occurred in a case involving hiring discrimination.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note that the EEOC  completely ignored the epidemic of age discrimination  that began during the Great Recession in 2007 (and persists today). In fact, I point out that the Obama administration in 2009 authorized widespread age discrimination in federal hiring as a diversity measure.

It has also come to light that both the EEOC and the DOJ actually engage in age discrimination in hiring, the very agencies that exist to defend equal employment and equal rights, respectively!

I have a question: Why do the feds consider trans discrimination to be reprehensible but not age discrimination?

The bottom line is that Ms. Macy has more protection from irrational and unfounded employment discrimination as a transgender woman than she will have as an older woman.  And it is hard to reconcile Ms. Lynch’s ringing defense of transgender workers with the federal government’s indefensible practice of discriminating against older workers.