The New Yorker Wimps Out on Age Discrimination

An article on ageism in the November 20 issue of The New Yorker is oddly detached and completely misses the point.

For one thing, The New Yorker fails in the article, Why Ageism Never Gets Old,  to comprehend perhaps the major reason that age discrimination does not get old.  Age discrimination has its roots in the human psyche but is systematically carried out by individuals, public agencies and private sector employers who have little reason to fear legal consequences.

Age discrimination is rooted in the human psyche but is systematically carried out by employers with little reason to fear legal consequences.

The clueless nature of The New Yorker article is evident at the start. Fact checkers apparently did not recognize that the name of the federal law prohibiting age discrimination is not “Federal Discrimination in Employment Act” but the Age Discrimination in Employment Act  of 1967 (ADEA).  (By the way, the ADEA celebrates its 50th anniversary this year.)

Here are some things that The New Yorker should know for the next article:

  • The federal government, the nation’s largest employer, routinely engages in age discrimination in hiring. Former President Barack H. Obama signed an executive order in 2010 that permits federal agencies to discriminate against older applicants and hire “recent graduates”.  This has resulted in the loss of tens of thousands of jobs for older workers and sent a message to private sector employers that age discrimination in hiring is legitimate. The U.S. Office of Program Management defends the obviously discriminatory program as legal.
  • The  U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for implementing the ADEA,  has for years ignored a major spike in age discrimination claims that began in the Great Recession. For example, 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 has done virtually nothing for years in response to widely-publicized articles on age discrimination in the tech industry. The EEOC itself discriminates on the basis of age in its rulings on administrative complaints.
  • Age was originally proposed for inclusion in Title VII of the Civil Rights Act of 1964 but was omitted because Congress decided more research was needed about the problem. The ADEA, passed three years later, provides far less protection against  discrimination than Title VII. In other words, the ADEA legalizes a broad swatch of discrimination that would be illegal under Title VII. Much of the reasoning for this difference is based on outdated stereotypes and outright ignorance.
  • Age discrimination receives the lowest standard of review by the U.S. Supreme Court –  far lower than race or sex discrimination.  A law that discriminates on the basis of age is upheld by the Court if it is merely rational – or not irrational.  Moreover, the Court has issued several rulings that make it far more difficult to prevail in a case alleging age discrimination than for a case alleging race or sex discrimination.
  • The U.S. Congress has ignored the problem of age discrimination for years, failing year after year to adopt a simple “fix” for a 2009 U.S. Supreme Court ruling that eliminated so-called “mixed motive” age discrimination cases.  Age discrimination victims must show that age discrimination was the “but for” or determinative reason for an adverse employment action. The Senate Special Committee on Aging has ignored a plea by this blog to address the EEOC’s discriminatory treatment of age discrimination victims.
  • Older Americans have no real advocacy group. The AARP today is primarily a for-profit corporation that makes billions in licensing fees by exploiting the AARP’s 30-plus million membership base. (Most older Americans don’t know this because there is no media reporting on the issue.) AARP Foundation Litigation, a small spin-off of the AAARP’s non-profit foundation, mostly writes amicus or friend of the court briefs on major cases brought by attorneys in the private sector – it has had little overall impact on the fundamental legal inequality of older workers for the past 50 years (and only recently seems to have noticed that fundamental legal inequality of older workers).
  • Age discrimination is just as or more harmful than other types of discrimination. Millions of older Americans are cast out of the workplace  into long-term unemployment. Many are forced to take part-time and temp jobs. Many are forced into an early retirement, which results in reduced Social Security benefits for the rest of their lives. Considerable research shows that age discrimination is related to  ill health and poverty in old age.
  • Research shows that older women are the major victims of age discrimination in hiring, which contributes to the fact that women  experience twice the rate of poverty as men in their old age.

Ironically, in another article in the same issue of The New Yorker, called The Autumn of the Patriarchy, David Remnick, 59, the editor of The New Yorker, expresses contempt for perpetrators of sexual harassment, including President Donald Trump. That’s great as far as it goes but …  Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act. Again, Congress and federal courts have made sexual harassment extremely difficult to prove, which encourages employers to tolerate the problem and secretly pay off victims to go away. .

Let’s hope The New Yorker – or some enterprising media outlet – steps up in the near future to address a major reason that ageism never gets old – the role of our laws and courts in the problem.

The legal system is critical to the enforcement of civil rights in America.  The legal system is very complex and difficult to understand.  In truth, most attorneys have only a vague idea about how the legal system operates when they graduate from law school. But The New Yorker is staffed by smart people who should at least be able to ask the right questions.

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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.

Happy Days are Here Again! … Nevermind.

AARPSuppose one family, aged 50 to 64, has $1 in financial assets and another has $1 million.

It is accurate to say the mean financial assets of these families is $500,001 but does this mirror reality? Of course not.

This is essentially what the AARP did Thursday when it touted a report by the Survey of Consumer Finances, 1989-2013, which found that the mean financial assets for families of all races, aged 50 to 64 is  $351,328.  The AARP says the graph is “worth a thousand words.”

Seriously?

Older Americans suffer from the same level of wealth inequality as other age groups.  The AARP itself reported in June 2015 that the  top 10 percent of households in their fifties hold 71 percent of the wealth of households in this age group.  That means that some older Americans have a lot of assets and most have few or no assets. In reality, most older Americans are struggling to survive financially. The Social Security Administration says that Social Security is the “major source of income for most of the elderly.” Continue reading “Happy Days are Here Again! … Nevermind.”

The Marginalization of Older Workers

I am  struck by the almost complete lack of attention paid in the United States to the problem of age discrimination in employment.

I just watched a lengthy video on YouTube featuring Jenny Yang, chairperson of the U.S. Equal Employment Opportunities Commission (EEOC), addressing the recent annual meeting of the European Network of Equality Bodies (Equinet), a group that promotes equality in the European Union. She discussed 50 years of the EEOC’s history and its future goals and aspirations. She made one fleeting reference to the Age Discrimination in Employment Act of 1964 (ADEA), noting the EEOC is responsible for enforcing the ADEA.

In 2014, a tonoworkplacediscriminationtal of 20,588 complaints of age discrimination were filed with the EEOC. That represents 23.2 percent of all of the complaints of employment discrimination filed with the EEOC in 2014. And, that level of complaints has been more or less consistent for years. Age discrimination may not deserve to be the EEOC’s top priority but it should at least be on the EEOC’s radar screen.

A right that is not enforced is an illusion.

Meanwhile, U.S. Department of Labor Secretary Thomas E. Perez has ignored age discrimination except to the extent that he endorsed it in the 100,000 Opportunities Initiative, a dubious effort by America’s major corporations to hire 100,000 workers age 16 to 24 for full and –part-time jobs in blatant violation of the ADEA.

And President Barack Obama not only forgot to bolster the ADEA but he fundamentally undermined the ADEA in 2010 when he signed an executive order that permits federal agencies to discriminate on the basis of age, thereby sending a signal to the private sector that age discrimination is A-Okay!

It is interesting to note that Equinet issued a report on ageism in 2012 in which it decried institutional practices that “include the use of age limits to govern access to services or participation in the workplace, other forms of discrimination that exclude older people from work or from key services, and inadequate policy responses to the situation of older people such that they find themselves marginalised and disadvantaged in society.” Continue reading “The Marginalization of Older Workers”

‘Start the Convo’ on Obama & Age Discrimination

The White House on Wednesday will hold a Summit on Worker Voice that supposedly will provide a historic opportunity to bring together workers, employers and labor leaders “to highlight the relationship between worker voice and a thriving middle class.’

But some voices will be missing.  The voices of those who have no work due to systemic, government-approved age discrimination in hiring.

The Obama administration has been deaf to the voices of older workers who are disproportionately mired in long-term unemployment because of the misguided and harmful policies of the Obama’s administration.

In 2010, President Obama signed an executive order establishing the Pathways “Recent Graduates” Program, which allows federal agencies to engage in age discrimination in hiring.  That order sends a signal to private sector employers that age discrimination in hiring is justified and will be tolerated.

To make things Starbucksworse,  U.S. Labor Secretary Thomas E. Perez last summer announced his support for a program developed by Starbucks, Microsoft and Walmart, and other leading American corporations, called the “100,000 Opportunities Initiative.” The purpose of the program is to give 100,000 16- to 24-year-olds full and part-time jobs by 2018.
Starbucks couched the initiative as a well-intentioned effort to help young people who face systemic barriers to jobs and educations. Whether or not this is true, it is irrelevant. The Age Discrimination in Employment Act and civil rights laws generally do not allow employers to discriminate because they supposedly have good intentions. Besides, older workers also face systemic barriers to jobs. A recent report by AARP found that half of the people in the U.S. between the ages of 45 to 70 who lost their job during the last five years are still not working.

The Obama administration has effectively abandoned a 50-year-old policy of encouraging employment through discrimination-free efforts, such as through education and training.

Readers who think the government should get out of the business of age discrimination are encouraged to “start the convo” using Twitter and the hashtag #StartTheConvo:.

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. 

Raise the “Minimum Wage” (Social Security) for Older Americans

poor-old-ladyThere’s been a lot of outrage about the plight of Americans who are poor despite working full-time jobs – even a movement to raise the minimum wage.

But what about  the 20 million Americans over the age of 65 who worked a lifetime only to be forced to spend their remaining years in poverty or near  poverty conditions?  The national debate around Social Security ignores the plight of older Americans and focuses on ways to cut Social Security and Medicare by raising the age of eligibility, means testing, etc.

Why the disconnect?

For one thing, the campaign to raise the minimum wage for fast-food workers is funded by unions. Millions of economically vulnerable older Americans were involuntarily pushed out of the workforce by epidemic and unaddressed age discrimination or ill-health. They have no union and, apparently, no other effective advocate.

Another reason is that elder poverty is poorly understood . The federal government’s official poverty rate for older Americans – like the U.S. unemployment rate and the Social Security benefit formula –   is outdated and misrepresents reality. The official poverty rate was created by the Census Bureau in the 1960s and looks only at a family or individual’s cash income. In 2010, the  Bureau was forced to create an alternative measure, the Supplemental Poverty Measure (SPM), that provides a more realistic picture. The SPM reflects not only available financial resources but liabilities (taxes, out-of-pocket medial spending, housing expenses and other factors) and cost of living differences between states. However, the SPM still is not the “official” measure that is widely cited by politicians and policy makers. So many Americans do not have a realistic picture of true elder poverty.

The official poverty rate for older Americans is a fictional measure perpetuated by a moribund federal bureaucracy that is stuck somewhere in the 1960s.

The Kaiser Family Foundation recently did an analysis comparing the Census Bureau’s official poverty rate and the SPM poverty rate for Americans aged 65 and above. The Foundation reports the poverty rate among older adults is higher under the SPM (15%) than under the official measure (10%) because the SPM deducts out-of-pocket medical expenses from income when estimating the share of people living in poverty. Continue reading “Raise the “Minimum Wage” (Social Security) for Older Americans”