EEOC Rulings Validate Hiring Youngest Candidates with Fewest Objective Qualifications

The EEOC, in recent rulings, appears to have completely subverted the stated goal of the Age Discrimination in Employment Act (ADEA), which is to insure the most qualified candidate gets the job.

When former President Lyndon Johnson signed the ADEA fifty years ago, qualifications referred to criteria that were largely capable of objective measurement,  like education, experience and achievement.

In August, the director of the Office of Federal Operations, Carlton M. Hadden, Jr., issued at least two decisions finding no discrimination in cases where highly-qualified applicants were passed over for much younger applicants with far few objective qualifications.

Hadden ruled that a white male police detective, 48, with 20 years of high-level experience in law enforcement, failed to show he was more qualified for the position of lead police officer  at the Dallas veteran’s medical center than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden said the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership, and the ability to cope with stress …”

Hadden ignored the significance of procedural irregularities in the hiring process because, he said, the complainant didn’t prove the veteran’s center intended to discriminate when it failed to follow its own regulations and the union’s Collective Bargaining Agreement in the hiring process.

The second case is eerily similar. Again, Hadden and the EEOC ignore objective qualifications and serious procedural irregularities.

In the second case, Hadden ruled the Social Security Administration (SSA) did not  discriminate when it’s hiring officer failed to consider objective qualifications in filling five attorney vacancies at a new SSA office opening in Reno NV.  The  hiring officer initially chose five attorneys under the age of 40, including some recent law school graduates. The hiring officer acknowledged the complainant, a 60-year-old female, had superior objective qualifications compared to most, if not all, of the successful applicants.

Hadden again ignored the significance of serious procedural irregularities in the hiring process. He acknowledged that SSA attorneys illegally interfered in the investigation of the woman’s complaint but made no inferences from their actions. He wrote: “Participants in EEO investigations should be assured that they can give candid, truthful responses to investigators. Consequently, we urge the Agency to henceforth avoid actions that might create the appearance that it is influencing employees’ responses to EEO investigation.”

The EEOC said employers could ignore the objective qualifications of a white police officer, 48, and a female attorney, 60, but not a 42-year-old female weather caster.

In these rulings, the EEOC seems to place absolutely no importance on objective qualifications so it was ironic when, earlier this month, the EEOC filed a lawsuit against a group of CBS television stations in Dallas, TX, accusing it of engaging in age discrimination in hiring . The EEOC charged that CBS engaged in age discrimination when it failed to consider the superior qualifications of a 42-year-old female weather caster and instead hired a 24-year-old woman with far less experience.

Of course, a major difference between the CBS lawsuit and  the EEOC decisions is that the CBS case involves the private sector. Apparently, the EEOC is holding the private sector up to a higher standard than it applies to the federal government, which is the nation’s largest employer. The EEOC is effectively enabling discriminatory practices by federal agencies.

For years, the EEOC has neglected rampant age discrimination in hiring in the United States.  In 2016, the EEOC received more than 20,000 complaints of age discrimination but filed only TWO lawsuits with “age discrimination claims.”  Meanwhile, the U.S. Chamber of Commerce taunted the EEOC last year for operating a hiring program that has a clear disparate, discriminatory impact on older workers.

Where is the oversight?

U.S. Senate and Congressional committees have done nothing in more than a decade to insure the fair treatment of older workers who are victims of age discrimination.  Indeed, they have neglected since 2009 to pass the Protecting Older Workers Against Discrimination Act, which would make it slightly easier for age discrimination victims to sue in federal court.

Former President Barack Obama made the problem of age discrimination much worse when he issued an executive order in 2010 allowing federal agencies to hire recent graduates, the vast majority of whom are under the age of 40.   It is estimated that older workers have been prevented from applying for tens of thousands of federal jobs as a result of Obama’s order.

Meanwhile, the AARP,. which purports to advocate for older Americans, has had no appreciable impact on age discrimination in hiring, while it reaps billions from lucrative licensing deals that exploit its  37 million membership base.

This year marks the 50th anniversary of the Age Discrimination in Employment Act. Woo Hoo!

 

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Federal Judge says Facts Not Plausible

U.S. District Judge Andrew L. Carter, Jr. of the Southern District of New York threw out the paralegal”s age discrimination claims because, he said, they were speculative and unsupported by plausible facts.

But what is a plausible fact?

Judge Carter is around the same age as the plaintiff in the case, Terri Jablonski, 49, and that’s where the similarities end. He’s a male graduate of Harvard Law School who was appointed to his position by President Barack Obama in 2011. He earns around $200,000 a year and enjoys lifetime tenure.

Jablonski is a female Haverford College graduate who earned a paralegal certificate from New York University. She has 19 years of experience as a paralegal and, according to her attorney, excellent references. But she has hit a roadblock.

 Jablonski filed 41 unsuccessful job applications with the legal staffing firm, Special Counsel, Inc., from August 2, 2013 to July 21, 2015. She was never hired or even referred for placement.

Continue reading “Federal Judge says Facts Not Plausible”

Feds Defense of Discriminatory Hiring Program; It’s Legal?

PathwaysThe worst thing about the federal government’s policy of institutionalized age discrimination is that it undermines respect in the government’s promise to insure equal justice for all.

The Office of Program Management in Washington, DC, recently defended the Pathways “Recent Graduates” Program, which allows federal agencies to limit job vacancies to individuals who graduated from high school, technical school and college within the past two years.

Yasmin A. Rosa, who identifies herself as “lead EEO Specialist” for the OPM, states in a recent letter that the Pathways Program “does not discriminate against anyone” because it is legal under an executive order signed in 2010 by former Democratic President Barack H. Obama.

(So, wait a minute, slavery and denying women the right to vote weren’t discriminatory because they were legal?) Continue reading “Feds Defense of Discriminatory Hiring Program; It’s Legal?”

Will the AARP Fight for Seniors or Itself?

AARPHouse Speaker Paul Ryan’s proposal to essentially privatize Medicare to cut costs is causing fear among older Americans who rely upon Medicare for health coverage.

Who is fighting to  protect the interests of older Americans?

Today, the AARP’s web site features the “Ultimate Super Bowl Quiz,” hot travel deals, and suggestions about what movies to watch this weekend. Toward the bottom of the page, there are two links, “AARP on the Front Lines Defending Medicare,” and “Tell Congress to Protect Medicare.”

The AARP has a complicated relationship with Medicare. It is the nation’s largest purveyor of supplemental Medi-gap health insurance, reaping literally billions each year in profits from seniors who are essentially forced to purchase catastrophic coverage to stave off health-induced financial disaster. One reason that seniors must purchase Medi-gap insurance in the first place is the AARP.

The AARP has a major conflict of interest with respect to Medicare.

The AARP was sharply criticized several years ago as selling out older Americans when it supported Obamacare, which cut $716 billion from Medicare to pay for its $1.9 trillion expansion of coverage to low-income Americans. Not coincidentally, the AARP obtained the equivalent of a waiver in the new law when Obama abandoned reforms that would have saved seniors hundreds of dollars in Medi-gap premiums a year.

Clearly, the AARP is not a disinterested party in the debate over the future of Medicare but it is, unfortunately, the elephant in the room by virtue of its 38 million members, many of whom joined to take advantage of AARP licensing deals that purportedly give members a small discount on hotels, car rentals, etc.

On its web site, the AARP states reassuringly that it has launched a “national campaign to fight proposals to turn Medicare into a voucher system.” But what does that really mean? No vouchers unless the AARP gets its cut?

Laura Polacheck, the communications director of the AARP Utah, on Feb. 1 issued a press release condemning  House Speaker Paul Ryan’s proposal to privatize the government-run health program for people with disabilities and those aged 65 and older. Polacheck says AARP staff and volunteers will remind members of Congress that Ryan’s proposal would put more than 300,000 Utah seniors’ benefits at risk, as well as the benefits of over 400,000 workers who are set to transition to Medicare over the next 15 years.

That’s all fine and good but older Americans would be wise to demand transparency from the AARP. What does the AARP have to gain and what do older Americans have to lose?

After an investigation by the Center for Media and Democracy, the AARP last year was pressured into dropping its membership in the right-wing American Legislative Exchange Council, an organization affiliated with the Koch brothers that drafts and promotes bills that would undermine and privatize Social Security and Medicare. The AARP, a “trustee level” sponsor of ALEC’s 2016 annual meeting, claimed it was merely taking advantage of ” an opportunity to engage with state legislators and advance our members’ priorities.”

I have long bemoaned the absence of a true advocacy group for older America, such as the DaneAge Association in Denmark.

The AARP has done virtually nothing for 50 years to combat the legal inequality of older Americans in the workplace. Apparently, the AARP has no marketing incentive to pay more than lip service to this issue.

DaneAge is an independent, non-profit national membership organization founded in 1986 to provide advocacy “through an ongoing dialogue with the government and the public, promoting a society without age barriers and ageism.”  DaneAge has 690,000 members in 217 local chapters across Denmark, including 15,775 volunteers who engage in local advocacy. Among other things, the organization, which has approximately 100 staff members,  provides “free-of-charge and impartial legal advice and counsel” by lawyers and other professionals.

Denmark is widely regarded as having the highest quality of life  for its citizens in the world.

Half Century of Inequality: Age Discrimination in Employment Act

d 40 nPageflex Persona [document: PRS0000038_00069]2017 will mark the 50th anniversary of Public Law 90-202, The Age Discrimination in Employment Act of 1967 (ADEA), enacted on December 15, 1967.

But there is little to celebrate.

For 50 years, America’s older workers have been denied equal protection from unfounded and harmful discrimination in employment.

 Federal law today not only fails to protect older workers but effectively allows employers to drive older workers out of well-paying jobs in their 40s and 50s and then out of the workforce altogether in their 60s. This has led to unemployment, underemployment and poverty in old age for many older Americans, especially for women. 

The ADEA is the frail stepsister of Title VII of the Civil Rights Act, which was passed three years earlier to protect job applicants, employees and union members from discrimination on the basis of race, sex, color, national origin and religion. Age was proposed for inclusion in Title VII but was omitted when Congress decided more study was needed about the nature of the problem. 

As I explain in my book, Betrayed: The Legalization of Age Discrimination in the Workplace, the law finally passed by Congress to address age discrimination in employment was far weaker than Title VII.  The ADEA both prohibits and legalizes age discrimination. 

Congress gave mere lip service to prohibiting age discrimination. The substantive part of the ADEA was patterned after Title VII but the ADEA includes gaping loopholes, such as permitting “reasonable” discrimination against older workers and allowing mandatory retirement of public safety workers, state elected officials and high-placed business executives.

Unlike Title VII, the damages part of Title VII is patterned after the Fair Labor Standards Act of 1938, a federal law that regulates the payment of minimum wages and overtime. As a result, victims of age discrimination in employment are treated as if they were shorted on their paycheck and not as workers who suffered grievous and long-lasting injury. The ADEA does not permit a court to order an employer to pay punitive or compensatory damages to an age discrimination victim. The most a victim can recover is twice the amount of monetary loss suffered (if no monetary loss was suffered, the victim and his/her attorney  get nothing).

If that wasn’t bad enough, the gap between the ADEA and Title VII has grown much wider over the years as a result of misguided decisions by pro-business federal courts.  It is now much more difficult to prevail in an ADEA case than a Title VII case. One appeals court has even ruled that job applicants aged 40 and above are completely without protection from discrimination on the basis of age.

In addition, the Obama administration made the situation much worse when he signed an executive order that permits age discrimination by federal agencies.

A new year marks a new beginning.

One can hope the Trump administration will reverse President Obama’s discriminatory executive order permitting age discrimination by federal agencies.

One can hope the U.S. Congress and the federal courts will – at the very least – take steps to insure that older workers receive the same rights and protections as other discrimination victims. If repeal of the ADEA is not possible this year, Congress should at least pass the Protecting Older Workers Against Discrimination Act, first proposed more than a decade ago. The POWADA would reverse a particularly disastrous decision by the U.S. Supreme Court in 2006.

Hope, of course, is an unreliable vehicle for change. We must demand action. Action is long overdue.

What About Social Security? Topic Mostly Ignored in Pres. Election

puzzlepieceThere has been surprisingly little discussion about the future of Social Security in the ongoing presidential election campaign, leaving questions about what the candidates will actually do if elected.

Democrat Hillary Clinton’s position seems to depend upon her audience:

  • “I won’t cut Social Security. … I’ll defend it, and I’ll expand it.” www.hillaryclinton.com, February 5, 2016.
  • “In lucrative paid speeches that Hillary Clinton delivered to elite financial firms but refused to disclose to the public, she displayed an easy comfort with titans of business, embraced unfettered international trade and praised a budget-balancing plan that would have required cuts to Social Security, according to documents posted online Friday by WikiLeaks.” The New York TImes, Leaked Speech Excerpts Show a Hillary Clinton at East with Wall Street, Oct. 7, 2016.

Republican Donald Trump’s position is vague. He seems to promise not to cut Social Security for existing recipients but certainly does not commit himself to expansion of the program.

  • “I’m going to save Social Security. You have tremendous waste, fraud and abuse. We have in Social Security thousands of people over 106 years old. You know they don’t exist. There’s tremendous waste, fraud and abuse, and we’re going to get it. But we’re not going to hurt the people who have been paying into Social Security their whole life and then all of a sudden they’re supposed to get less. We’re bringing jobs back.”  Source: 2016 CBS Republican primary debate in South Carolina, Feb 13, 2016

The fate of Social Security is vital to 40 million retired Americans, including 21% of married couples and about 43% of unmarried persons who rely on Social Security for 90% or more of their income.

Of course, what politicians promise during the election season is not always what they deliver. President Barack Obama promised the following and then did the reverse:

  • “Obama will fight job discrimination for aging employees by strengthening the Age Discrimination in Employment Act … .”  Source: Blueprint for Change (2008).

Two years later, President Obama signed an executive order that carves out an exception to the ADEA that permits the nation’s largest employer, the federal government, to discriminate on the basis of age in hiring for federal jobs. This was done in plain sight but there was no protest – nor indeed any comment – from the AARP, which is busy mining its treasure trove of older members through the sales of Medigap health insurance and licensing agreements. And Obama’s administration has ignored the epidemic of age discrimination in hiring that has forced millions of older workers out of the workplace and into an uncertain and ill-advised retirement.

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?”