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age discrimination

Suppose an enterprise has an 81-year-old executive who’s currently able to perform well, but has had recent health problems and faces a significant actuarial risk of disablement or worse within a few years. Suppose the continued tenure of this executive complicates the enterprise’s future, through sheer uncertainty (since an unforeseen departure crisis might come at just the wrong time) and because certain high-quality potential successors available to step in now might not be available two or three years hence.

Is it somehow illegitimate or invidious even to think through considerations like these, because the absolutely only relevant factor is how well the person can perform the job right now?

If you say, “yes, it’s totally illegitimate and invidious, you should be ashamed of thinking this way” then congratulations: current federal workplace law is on your side. Disabled-rights law makes it legally hazardous for an employer, in the course of pretty much any action — say, career counseling of existing employees — to consider the risk of future recurrence of a disabling condition now in remission. Age-discrimination law makes it unlawful to treat an 81-year-old as lacking any advantage that a 46-year-old might bring to an enterprise with long time horizons — and again, just evidence that an employer has been thinking along these lines is a lawsuit risk whether or not it actually proceeds to send hints to an individual employee about passing on the torch. In the Mad Men era, employers routinely had policies expecting their executives to retire at a certain age; now the law bans such policies, whether the age in question be 65, 75, or 85.

If on the other hand you say, “no, it’s not illegitimate, it’s just common sense to acknowledge factors associated with age and disability as part of life and we all take them into account whether we admit it or not,” then come on over and join the unlikely duo of me and, more importantly, the distinguished Prof. Erwin Chemerinsky, who applies all this logic to the situation of Justice Ruth Bader Ginsburg. Now as it happens, on the particulars of this one case, I don’t go along with Chemerinsky’s conclusion; I find myself more swayed by Prof. Garrett Epps’s rather more gracious argument that Ginsburg has good reason to stay, especially as the intellectual firepower of the Court’s left wing might well take a hit if she leaves.

It’s great to know, though, that Prof. Chemerinsky sees through the flimsy rationale that underlies these sectors of discrimination law. I was afraid he was going to turn out to be some kind of big liberal.

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That’s Ann Althouse’s question. (The actual measure on the ballot would have increased the retirement age for New York judges from 70 to 80, which does not go as far as the federally enacted mandate applicable to private-sector employers, which forbids the prescription of automatic retirement at any age at all.)

The state’s chief judge, Jonathan Lippman, calls the old age limit “outdated,” and Althouse replies:

What is outdated about thinking that older persons hang onto their jobs too long and fail to open positions to younger persons with new perspectives and experience with life as it is lived today? What is outdated about thinking that judges, cloistered and cosseted by the respect their office commands, lack accurate feedback about how well they are really doing? What is outdated about thinking that the judges, with their sharp and hardworking ghostwriters (AKA “clerks”), are unusually shielded from having their failing competence exposed?

I would add that while many advocates of modern employment law insist that we regard “age discrimination” as if it were somehow a phenomenon parallel to prejudice on the basis of race or ethnicity, and odious for the same reasons if not to as high a degree, I see little evidence that the general public has been sold on that proposition.

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In an article today on challenges facing older jobless workers, New York Times reporter Michael Winerip asserts that “Since the Supreme Court ruling [Gross v. FBL Financial Services, a 2009 Supreme Court ruling that made it slightly more difficult to win suits] most lawyers won’t even take age discrimination cases.” Connecticut employment-law blogger Daniel Schwartz wonders where that claim comes from, since the number of EEOC charges in age-bias cases has gone up, not down, since 2009, and since “NELA – the National Employment Lawyers Association — continues to put forward CLE programs discussing how to advance ADEA claims. … So, where did the Times get this assertion from? I’ve hunted for a source but have yet to find one.” [Connecticut Employment Law Blog]

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Thousands die while waiting for kidneys, while thousands of sound donated kidneys are thrown out. Among culprits, per the New York Times: “an outdated computer matching program, stifling government oversight, the overreliance by doctors on inconclusive tests and even federal laws against age discrimination.” One federal initiative, for example, penalizes institutions whose transplant success rate is less than stellar. What could go wrong?

…dozens of transplant specialists said the threat of government penalties had made doctors far more selective about the organs and patients they accepted, leading to more discards … [Toledo transplant surgeon Michael] Rees still bristles at the trade-off. “Which serves America better?” he asked. “A program doing 100 kidneys and 88 percent of them are working, or a program that does 60 kidneys and 59 of them are working? It’s rationing health care under the guise of quality, and it’s a tragedy that we are throwing away perfectly good organs.”

Meanwhile, Europe has had success with the practice of matching donors with recipients within the same age bracket, but a similar proposal in the U.S. “died quickly after federal officials warned that discrimination laws would prohibit the use of age to determine outright who gets a transplant.”

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  • Despite misconception that the NLRB goes after employers only over union-related issues, its reach includes “concerted activity” by workers whether unionized or not, and it intends to make that power felt [Jon Hyman]
  • EEOC cracks down on Marylou’s, Massachusetts coffee shop chain said to hire “pretty” staff. Tougher scrutiny of “looksism” ahead? [James McDonald/Fisher & Phillips, HR Morning, Boston Herald, related editorial]
  • As critics warned at the time, Sarbanes-Oxley whistleblowing provisions make a versatile weapon for employment plaintiffs [Daniel Schwartz]
  • “Is Your Job Too Hard? File a Lawsuit!” [Philip Miles]
  • Unions go to court seeking to overturn new Indiana right to work law [Asheesh Agerwal, Liberty Law] “Unions: Political By Nature” [Ivan Osorio, CEI "Open Market"] SEIU vigilant against menace of higher employer wage offers [James Sherk, NRO] Metropolitan Opera’s $516,577 electrician outearned Carnegie Hall’s $436,097 stagehand [Ira Stoll]
  • Sen. Al Franken [D-Minn.] and Rep. Rosa DeLauro [D-Conn.] introduce bill to overturn SCOTUS’s Wal-Mart v. Dukes [The Hill, Paul Karlsgodt, PoL, Andrew Trask]
  • Lefties: you ‘tarians slight the greater freedom of being able to force people to employ you [MR: Tyler Cowen, Alex Tabarrok]
  • If you’re caught sleeping on the job, courts may not prove sympathetic to your age bias claim [Eric Meyer, Employer Handbook]

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Nassau County, N.Y., had let go 71-year-old veteran lifeguard Jay Lieberfarb after he failed a swim test. Charging that the county had not always dismissed younger guards who had failed the same test, the EEOC proceeded to negotiate a $65,000 back pay settlement, a three-year consent decree and other relief. [EEOC press release; h/t Roger Clegg] Earlier on superannuated lifeguards [Ocean City, N.J.] (& welcome Chris Fountain readers; he recommends this blog as a cure for low blood pressure)

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The Bloomberg columnist explains his qualms about the law, playing off the Nicholas Spaeth case, in which a 60-year-old lawyer who had achieved a distinguished career in public office was turned down by every law school at which he sought to teach, and is suing many of them. “Was the law ever intended to protect baby boomers in no particular financial distress looking for a suitable capstone to a successful career?” And suits over hiring are of course the exception; rather more often, the law supplies the legal leverage to obtain a larger severance when someone bows out of such a career. I’ve written on the subject here (in Chapter 8 of The Excuse Factory), here, and here.

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Law schools roundup

by Walter Olson on January 12, 2012

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Employment law roundup

by Walter Olson on December 15, 2011

  • Age discrimination law (including my views) discussed [Reihan Salam, NRO] “3d Cir.: Employees Fired for Pornographic Emails Lose Age-Discrimination Case” [Molly DiBianca]
  • Will Obama administration lawsuit derail employer use of career-readiness certificates? [Charlotte Allen, Minding the Campus]
  • A warning for Gov. Cuomo: “The case against pension-financed infrastructure” [Edward Zelinsky, OUP]
  • EEOC is on the warpath and employers had better hope they escape unscathed [Hans Bader, CEI]
  • Since we know unemployment extensions have no incentive effects, this story from the Midwest is purely imaginary [Marietta, Ohio Times, related]
  • Court rejects “announcement of same sex marriage harassed me” hostile environment claim [Volokh] “Jobs with a higher risk of sexual harassment pay workers more” [WaPo] Half of all students harassed? Surprising it’s only half [Katie Roiphe, NYT]
  • Funny-sad “666” workplace suit: “The safety sticker of the beast” [Volokh]
  • “Do you know what an employment lawsuit costs?” [Jon Hyman]

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Further update roundup

by Walter Olson on December 5, 2011

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Law schools roundup

by Walter Olson on November 10, 2011

  • Blog feature at National Law Journal on future of law schools stirs discussion with contributions by William Henderson, Brian Tamanaha and more, James Moliterno, followups here and here, plus a profile of renegade lawprof Paul Campos;
  • Richard Fallon: when should scholars sign amicus “scholars’ briefs”? [via Kenneth Anderson]
  • “If law school isn’t miserable, you aren’t doing it right.” [@Popehat]
  • “Chicago’s View on the Future of Law and Economics” [Josh Wright] Vanderbilt Law Review publishes tributes to Prof. Richard Nagareda [ConcurOp]
  • White House awards ceremony for Legal Left broadcast to >100 law schools [BLT]
  • “U of Illinois Law School Admits To Six Years of False LSAT/GPA Data” [ABA Journal]
  • Life in legal academia: 10/22 Temple confab on “Aging in the US: The Next Civil Rights Movement?” [via Post, Volokh]
  • “All law is public law.” No, not really [Solum on 10/21 HLS conference]
  • Thanks to Northwestern’s Federalist Society for inviting me to speak on Schools for Misrule this week as part of my Chicago visit. And thanks to Declan McCullagh for saying “all prospective law school students should” listen to the related Cato podcast. Why not book me for the spring semester to speak at your institution?

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“Musician suing for age bias says his 88-year-old judge is too old to preside, ‘unable to function'” [New York Daily News headline]

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Ocean City, N.J., a municipality of 12,000 residents, has recently been coping with nine lawsuits filed by municipal workers. Among them: lifeguards aged 66 and 68 who alleged employment discrimination against them based on their age. [Douglas Bergen, Ocean City Patch via AnnMarie McDonald, New Jersey Lawsuit Abuse Watch; Press of Atlantic City].

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In a new Reason symposium on how to revitalize the American job market, I explain my answer to that question.

More: This set off a round of discussion on employment blogs including Jon Hyman (nominating FLSA for vaporization), Suzanne Boy (concur), Daniel Schwartz (leave laws), Suzanne Lucas (citing “the fabulous Overlawyered.com”), the ABA Journal, Tim Eavenson, Jon Hyman again, HR Daily Report, and Russell Cawyer. Also relevant on age discrimination laws: a June symposium in the NYT’s “Room for Debate” feature; ComputerWorld on age bias and IT.

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Former North Dakota Attorney General Nicholas Spaeth may face an uphill fight in a newly filed action alleging age discrimination in law faculty hiring, predicts Jeff Lipshaw [PrawfsBlawg, with comments]. Spaeth believes “more than 100 law schools discriminated against him by refusing to consider him for teaching jobs because of his age” despite an impressive earlier career in the law [ABA Journal]. Represented by attorney Lynne Bernabei, Spaeth has sued Michigan State and expects to add other schools as defendants. As Prawfsblawg commenters note, Spaeth’s underlying gripe may be with the overwhelmingly dominant model of law faculty hiring (reinforced by accreditation and rating pressures) in which expected future scholarly output, as opposed to, say, teaching excellence or even adequacy, tends to dominate hiring for tenured positions.

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July 12 roundup

by Walter Olson on July 12, 2010

  • Kagan to senators: please don’t confuse my views with Mark Tushnet’s or Harold Koh’s [Constitutional Law Prof]
  • Too much like a Star Wars lightsaber? Lucasfilm sends a cease-and-desist to a laser pointer maker [Mystal, AtL]
  • Ottawa, Canada: family files complaint “against trendy wine bar that turned away dinner party because it included 3mo baby” [Drew Halfnight, National Post]
  • “House left Class Action Fairness Act alone in SPILL Act” [Wood/PoL, earlier]
  • Not so indie? Filmmaker doing anti-Dole documentary on Nicaraguan banana workers says he took cash from big plaintiff’s law firm Provost Umphrey [AP/WaPo, WSJLawBlog, Erik Gardner/THREsq., new plaintiffs' charges against Dole]
  • Will liability ruling result in closure of popular Connecticut recreational area? [Rick Green, Hartford Courant; earlier]
  • Class action lawyer Sean Coffey, running for New York attorney general, has many generous supporters [NYDN, more, WNYC (Sen. Al Franken headlines closed fundraiser at Yale Club)]
  • “Judge Reduces Damages Award by 90% in Boston Music Downloading Trial” [NLJ, earlier on Tenenbaum case]

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Lake-Sumter Community College in Leesburg, Florida is refusing to admit a home-schooled teenager because of her age: 13. “Undeterred, her parents have filed an age-discrimination complaint against the college with the U.S. Department of Education’s Office for Civil Rights.” [Martin Comas, Orlando Sentinel]

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