Age Discrimination Hearing Draws Support for More
Regulatory, Legislative Action
Older workers who lose their jobs may have more
difficulty finding another job than their younger counterparts: EEOC
hearing yesterday
July 16, 2009 - The effect on older workers of
widespread layoffs, threats to employee benefits, and controversial
recent court decisions were major topics at a hearing yesterday by the
U.S. Equal Employment Opportunity Commission (EEOC) that focused on the
“devastating impact” of age discrimination.
The Commission hearing specifically highlighted
recent developments under the Age Discrimination in Employment Act (ADEA).
The Commission will consider expert panelists’
proposals for regulatory and legislative action, and today issued a
technical assistance document on waivers as part of severance
agreements.
“Whether trying to retain or obtain a job, older
workers may find themselves susceptible to unlawful age-based
stereotypes and discrimination,” said Acting EEOC Chairman Stuart
Ishimaru.
“Employers’ conscious or unconscious stereotypes
about older workers may cause them to underestimate the contributions of
these workers to their organizations. As a result, older workers may be
disproportionately selected for layoffs during reductions-in-force.
“To then make matters worse, evidence suggests that
older workers who lose their jobs may have more difficulty finding
another job than their younger counterparts, due to age discrimination.”
These conclusions were substantiated at the hearing
by the testimony of a variety of experts in age discrimination law and
policy. The expert panelists testified in detail about the damaging
effect of age stereotyping and recent judicial decisions that have
curtailed the ability of older workers to successfully challenge age
discrimination. These cases include Kentucky Retirement Systems v. EEOC
and Gross v. FBL Financial Services, Inc.
The experts also proposed – and urged – a variety
of potential enforcement and policy solutions to counteract these
adverse judicial decisions, such as issuing regulations to fully define
the components and burdens of pleading and proof of the reasonable
factor other than age defense in the ADEA; developing policy guidance to
make uniform the relevance and weight of ageist comments; and using the
EEOC’s rulemaking authority under the ADEA to clarify the factors
announced by the Supreme Court in the Kentucky Retirement case. They
also said that legislative action was essential to ensure that the ADEA
was a meaningful enforcement tool.
Commissioners pledged to consider the experts’
suggestions and to take steps to provide additional regulatory and
policy guidance.
Plaintiffs from recent ADEA cases also testified at
the hearing, putting a human face on the problem. John Stannard, a
plaintiff in Meacham v. KAPL, testified that he believed he was selected
for layoff due to “the false stereotype which characterizes older
workers as less flexible and critical.”
Losing his job after 27 years of
excellent work, Stannard said, he found himself “in desperate need of
money, [and] took the only job readily available, which was a janitor
position at KAPL. I was cleaning the wastebaskets of my former
colleagues. . . I was very humiliated.”
Ishimaru said witnesses’ experiences demonstrated
“first and foremost, the devastating impact that age discrimination can
have on a person. What’s more, their experiences underscore that age
discrimination is an equal opportunity plague. It is not limited to
members of a particular class or a particular race. It is not limited to
particular industries or particular regions. And it is not limited to a
particular gender.”
Below are the panelists with links to their remarks
and biographies, as available:
Panel 1: Experienced or Expendable: Stereotyping, Disparate Impact,
and Mixed-Motive Analysis in the Meacham and Gross era
● Michael Campion, Professor of Management at Purdue University
● Cathy Ventrell-Monsees, President of Workplace Fairness, a
non-profit organization dedicated to educating workers about their
employment rights; and a veteran employment discrimination attorney.
Panel 2: Workers Explain How Age-Based Policies Have Harmed Them
●
Anna Park, EEOC’s Regional Attorney for the Los Angeles District; and
Nancy Edmonds, EEOC Senior Trial Attorney in the Indianapolis District
Office, who both have extensive experience litigating ADEA cases.
The EEOC’s technical assistance document explains
terminated employees’ rights and obligations when offered severance pay
in exchange for a waiver of discrimination claims. The EEOC issued the
document following a significant spike in age discrimination charges,
and amid increased layoffs involving waivers of rights. The document, in
straightforward Q&A format, is posted on the EEOC’s website at
www.eeoc.gov/policy/docs/qanda_severance-agreements.html.
The EEOC is responsible for enforcing federal laws
prohibiting employment discrimination. Further information about the
EEOC is available on the agency’s web site at
www.eeoc.gov.
July 16, 2009 - The effect on older workers of
widespread layoffs, threats to employee benefits, and controversial
recent court decisions were major topics at a hearing yesterday by the
U.S. Equal Employment Opportunity Commission (EEOC) that focused on the
“devastating impact” of age discrimination.
