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.

Impact of Age on the Gender Wage Gap is Ignored at EEOC Hearing

Pageflex Persona [document: PRS0000038_00069]  Something was missing from a  hearing this week on the EEOC’s proposal to reduce employment discrimination by requiring employers to report the number of individuals they employ on the basis of race, ethnicity and sex.

There was no mention of age or age discrimination.

The new reporting requirement is aimed at eliminating persistent pay inequity for women.

Several experts testified that the gender pay gap grows over women’s careers because women take time out of paid work to care for children. They cited gender differences in raises and promotions and noted that hurdles exist in some high paying occupations, such as high tech, where many women leave, citing a hostile workplace environment. They even cited research that shows women of all education levels are less likely to negotiate their first job offer than men.

A study by the American Association of University Women (AAUW) shows that over a lifetime of work (47 years), the total estimated loss of earnings of women compared to men is $700,000 for a high school graduate, $1.2 million for a college graduate and $2 million for a professional school graduate.

It seems obvious that age discrimination is a factor in the gender wage gap. Research shows that age discrimination forces women out of the workplace years earlier than men and then prevents from finding new work.

A recent study by the National Bureau of Economic Research looked at more than 40,000 job applications across a variety of industries and found “robust” evidence of age discrimination in hiring female candidates and “considerably less evidence” for age discrimination against male candidates.

Across all job types, sales and administrative, the researchers found “unambiguous” evidence that age discrimination starts earlier and never relents for women.

In sales, the only occupation for which researchers submitted applications from both men and women, the study found “considerably stronger evidence of discrimination against older women than older men.”

Researchers suspect that physical appearance matters more for women than men and that the law does far less to protect   women from age discrimination than men.

Continue reading “Impact of Age on the Gender Wage Gap is Ignored at EEOC Hearing”

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”

Tepro to pay $600,000 for ‘promotions’ that led to layoffs

flat tireTepro, Inc., a manufacturer of rubber products for the automotive industry, will pay $600,000 to settle a 2012 class age discrimination lawsuit brought by the U.S. Equal Opportunity Commission (EEOC).

Tepro reclassified 25 employees aged 40 and above from “Tech II” to “Tech III” positions, causing them to suffer a loss of seniority and then to be laid off. The EEOC alleges Tepro, which is located in Winchester, TN, accomplished the reclassifications through the use of misrepresentations, coercion, or threats.

The EEOC states the two-year consent decree ending the case also requires Tepro to:

  • Develop new lay-offs and age discrimination policies; 
  • Provide annual training on age discrimination to all employees, capped with an appearance by a high-level executive who will announce Tepro’s age discrimination policy and the consequences for violating such policy;
  • Submit to monitoring and review by the EEOC to insure compliance with the consent decree; and
  • Post a notice of the resolution of the lawsuit in the workplace.

“Congress passed the ADEA to ensure that older workers could be employed based on their ability rather than age and ‘to prohibit arbitrary age discrimination in employment,'” said Faye A. Williams, regional attorney for EEOC’s Memphis District Office. 

TEPRO is a  subsidiary of the Kinugawa Rubber Industrial Co., a Japanese manufacturer of automotive parts with overseas facilities.  TEPRO supplies automotive parts for various automobile manufacturers. 

The case is EEOC v. Tepro, Inc., Civil Action No. 4:12-cv-00075.