Thursday, July 31, 2014

In an improving economy, is age discrimination getting better or worse?

From:  The Washington Post

 July 25, 2014

Recent headlines haven't made it look easy to be over the hill at work.
Washington, D.C.,  power players are turning to plastic surgery to avoid a "use by" date for their careers. Silicon Valley firms are hiring high school students as interns. Twitter got hit with a lawsuit alleging age discrimination last week by a former manager.
And when veteran NFL sideline reporter Pam Oliver confirmed that she had been replaced by a younger Erin Andrews recently, some questioned whether ageism was at play. (In media reports, Fox has said age and race had nothing to do with its decision on Oliver, and Twitter has said the case is without merit. The company did not respond immediately to a request for comment.)
All of which made us wonder: In today's economy, is age discrimination getting better or worse?
The answer, as you might expect, is that it's complicated. While numbers point to a downward trend, and there is some evidence of a warming toward older workers, ageism remains a real issue that's among the hardest complaints by workers to prove.
Charges of age discrimination to the Equal Employment Opportunity Commission have actually declined slightly in recent years. The number of age-related filings went from 22,857 in 2012 (23 percent of all claims) to 21,396 in 2013 (22.8 percent of the total). Both numbers are down from a high of 24,582 in 2008 (or nearly 26 percent of all filings).
But those numbers only offer part of the picture. While charges are down, total monetary awards are up, reaching $97.9 million for 2013, the highest level since 1997. Some workers may file charges at a state Fair Employment Practice Agency, says Ray Peeler, a senior attorney adviser for the EEOC. And of course, many employees don't actually take action after facing age discrimination at work. "Our numbers don't necessarily reflect what all's going on out in the world," says Peeler.
There are at least two possible explanations for why the number of charges have started to fall. For one, the economy has been on an upswing. "It's a well-established phenomenon that if the economy is going down, the number of job discrimination claims in various categories goes way up," says Garry Mathiason, a senior partner with Littler Mendelson, a global employment law firm. Now, he says, "employment is getting better. So there's a little bit of a drop."
Another potential rationale is that years after the worst of the recession's cutbacks, more older workers are experiencing age discrimination as they try to get hired -- rather than on their way out the door. Older employees, says Laurie McCann, senior attorney with the AARP Foundation, are overrepresented among the ranks of the long-term unemployed. While they may suspect age is limiting them from getting interviews or callbacks, it's typically not enough for them to file an actual claim. "You're on the outside looking in," she says.
A 2012 AARP survey found that 77 percent of unemployed respondents aged 45 to 54 said workers face age discrimination in the workplace, based on their experience. Just 58 percent of those employed full-time said the same.
Increases in online job applications, McCann says, also create more stumbling blocks for older workers. Candidates who might have left the year they graduated from college off of a paper or e-mailed resume can't do that if a web-based application requires them to complete every field before it can be submitted. As a result of such practices, says Norman Matloff, a computer science professor at University of California, Davis who has studied age discrimination in the tech industry, many older workers "can't even get to first base. They can't get past H.R."
The tech industry has been under particular scrutiny recently for its youth-oriented culture. Big Silicon Valley firms have been called out for explicitly requesting "new grads" in job descriptions -- a no-no in the eyes of the EEOC. Bay Area venture capitalists have a reputation for bias against older founders. And plastic surgeons in San Francisco say they're getting queries from the under-40 crowd about Botox and baldness. In the tech industry, says Matloff, "it's a funny definition of old. We're not talking about 55. We're talking about 35."
But despite tech's reputation for valuing youth, some see a thawing in the attention given to older workers. Kris Stadelman, the director of NOVA, a work force development and training agency in the Bay Area, says she's watched an interesting shift happen over the past year or so. Top-tier tech companies still have a reputation among job seekers and recruiters as wanting younger workers, she says. "We still hear things like 'stale degree' used as a euphemism for age," she says.
That said, Stadelman has seen a "warming trend" toward older workers among more mid-tier firms. There's more hiring going on, for one. But she also believes the "feeding frenzy" for young tech whizzes and the high salaries they've commanded have produced some anecdotal evidence of a trend in reverse. At the more mid-tier companies, she says, "their impression is that they've created this false marketplace. Now, they're looking at the relatively less expensive older employees."
Whether age discrimination is actually rising or falling, one thing is clear: Proving these claims is particularly hard. With other types of discrimination, such as race, employees have to show that race was just one of the factors in, say, losing their job. But if the complaint is about age, the standard of proof is higher. Employees, says the EEOC's Peeler, have to show "it was the reason that tipped the scales."

Tuesday, July 22, 2014

President Obama Signs a New Executive Order to Protect LGBT Workers

July 21, 2014
"Many of you have worked for a long time to see this day coming."
Those were President Obama's words to the audience in the East Room of the White House this morning, before he signed an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
At the signing, the President explained how, because of their "passionate advocacy and the irrefutable rightness of [their] cause, our government -- government of the people, by the people, and for the people -- will become just a little bit fairer."
Today's Executive Order amends Executive Order 11246, issued by President Lyndon B. Johnson, adding sexual orientation and gender identity to the list of protected categories in the existing Executive Order covering federal contractors.
"It doesn't make much sense," President Obama said, "but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are -- lesbian, gay, bisexual, transgender. And that’s wrong."
The President also pointed out that workplace equality is simply good business. Noting that most of the Fortune 500 companies already have nondiscrimination policies on their books, he explained that these policies help companies attract and retain the best talent.
"Despite all that," he said, "in too many states and in too many workplaces, simply being gay, lesbian, bisexual, or transgender can still be a fireable offense. There are people here today who’ve lost their jobs for that reason."

I firmly believe that it’s time to address this injustice for every American.

— President Obama, July 21, 2014
"I’m going to do what I can, with the authority I have, to act," the President said. "The rest of you, of course, need to keep putting pressure on Congress to pass federal legislation that resolves this problem once and for all."

Monday, July 21, 2014

EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues

From the EEOC's website:

Press Release
July 14, 2014

WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) today issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a Fact Sheet for Small Businesses.  The Enforcement GuidanceQ&A document, and Fact Sheet will be available on the  EEOC's website.
This is the first comprehensive update of the Commission's guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject.  This guidance supersedes that document and incorporates significant developments in the law during the past 30 years.
In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.
"Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work," said EEOC Chair Jacqueline A. Berrien.  "Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.  This guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and Americans with Disabilities Act, and thus advance EEOC's Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes."
Much of the analysis in the enforcement guidance is an update of longstanding EEOC policy.  The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work.  The guidance also explains how the ADA's definition of "disability" might apply to workers with impairments related to pregnancy.
Among other issues, the guidance discusses:
  • The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant;
  • Lactation as a covered pregnancy-related medical condition;
  • The circumstances under which employers may have to provide light duty for pregnant workers;
  • Issues related to leave for pregnancy and for medical conditions related to pregnancy;
  • The PDA's prohibition against requiring pregnant workers who are able to do their jobs to take leave;
  • The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
  • When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
  • Best practices for employers to avoid unlawful discrimination against pregnant workers.
In February, 2012, the Commission held a public meeting to hear from stakeholders about issues related to pregnancy discrimination and discrimination against individuals with caregiving responsibilities.  The Commission Meeting record was held open for 15 days following the meeting, to facilitate public comment.  The materials from that meeting, including testimony and transcripts, are available at
The EEOC enforces federal laws prohibiting employment discrimination.  Further information about the EEOC is available on its web site at