Granny Bird Award: Michael McGough

The latest recipient of this award, given from time to time to those who go out of their way to harm the interests or benefits of the elders, is Michael McGough of the Los Angeles Times whose opinion piece (issued just one week before the election) implies that Dianne Feinstein just might be too old for another six years as Senator from California.  Mind you, he doesn't exactly state that.  Oh, no, not him.  Instead he engages in media bafflegab under the headline "Does Senator Dianne Feinstein's Age Matter?"

In her uphill campaign against Sen. Dianne Feinstein, Republican Elizabeth Emken, albeit obliquely, has made an issue of Feinstein’s age. The senator turned 79 on June 22 and if reelected she would be 85 at the conclusion of one more term.

Would that be unusual? Yes, but not unprecedented.

He then proceeds to list the other octogenarians who have served past their 80th birthday.  At least he did some research there.  What he didn't research, however, is telling.  He didn't check to see if Sen. Feinstein has behaved in any manner which suggests she probably should call an end to her career.  He doesn't give any indications that she has missed any roll-call votes on bills, nor any indications that she is not showing up for committee meetings or party caucus or state caucus meetings.  He doesn't list any bizarre behavior, like forgetting where she was or peeing on the Senate floor.  He just, well, implies that she's pretty old.

Age isn’t “just a number.” At the same time, it’s evident that people are living and thriving longer. (That’s why the solvency of Social Security is, or should be, an issue.)  It wouldn’t be a medical miracle if Feinstein remained healthy and active through another term.  But as an octogenarian she would definitely be in a small and select group.

Look, DINO Dianne is not my favorite politician, but it's not because of her age.  In fact, she has become wilier with time.  I wouldn't be surprised if she won the election, served a month into the next administration and then retired to work with a think tank or some such (i.e., pulled a "Jane Harmon").  But, she's doing just fine at 79, thank you very much.

So, Mr. Magoo Mr. McGough, I suggest you polish up your spectacles so you can do your job a little better.  Unless, of course, you're just polishing up your act in case Rupert Murdoch does buy the L.A. Times.

Lighten Up

I decided I needed a break from all the dismal news. It didn't take long for me to find something that made me grin. Sy Rosen did it with his op-ed piece in the Los Angeles Times. He decided that what we elders need is our own perfumes, one geared dispel the usual bigotry on what "old people" smell like. After all, young tweens have Justin and hip women have Katy and Jennifer. We're entitled to some Sy.

It got me thinking that we seniors should have our own scents. These perfumes could help dispel some serious prejudices and stereotypes about older people. And, best of all, we can offer a senior discount.

He's come up with several possibilities, all worthy, but here's the one I liked best.

Power: When we worked, people valued our opinions and were a little intimidated by us. Now, they roll their eyes when we talk. With the combination of the scents of the lion, jaguar and alligator, we will regain that lost power. To that we also added hair follicles from Bill O'Reilly and Alec Baldwin, replicating their complete scents. This potent mixture says, "I am still powerful — and a little crazy."

Yes.

Too Old For This

Last June, I commented on the Supreme Court decision of Gross v FBL Financial which made it harder for older Americans to prove age bias in worker discrimination cases. The 5-4 decision written by Justice Clarence Thomas held that workers had to prove that age discrimination was the decisive reason for layoff or demotion. That's an almost impossible burden of proof unless the worker got told directly that the action was because "you're too old to keep on board." The hook that Justice Thomas used for the holding was that while other employment discrimination legislation had been amended on the issue of burden of proof, Congress had not included age discrimination in the amendments, thereby indicating an intention to make it harder for older workers to sue their employers.

That, of course, was utter nonsense, but it did indicate a way to fix the mess. An AP report published in the Boston Globe notes that Congress is getting around to the job. Sen. Tom Harkin (D-Iowa) introduced such a bill on October 6. While the text for S.1756 was not yet available at Thomas when I checked last night, there is enough there to confirm that the bill does what I hoped it would.

The bill has now been referred to the Committee on Health, Education, Labor, and Pensions which Sen. Harkins chairs. Here's a list of others on the committe:

Democrats by Rank

Tom Harkin (IA)
Christopher Dodd (CT)
Barbara A. Mikulski (MD)
Jeff Bingaman (NM)
Patty Murray (WA)
Jack Reed (RI)
Bernard Sanders (I) (VT)
Sherrod Brown (OH)
Robert P. Casey, Jr. (PA)
Kay Hagan (NC)
Jeff Merkley (OR)
Al Franken (MN)
Michael Bennet (CO)


Republicans by Rank

Michael B. Enzi (WY)
Judd Gregg (NH)
Lamar Alexander (TN)
Richard Burr (NC)
Johnny Isakson (GA)
John McCain (AZ)
Orrin G. Hatch (UT)
Lisa Murkowski (AK)
Tom Coburn, M.D. (OK)
Pat Roberts (KS).

If one of your senators is on the committee, do an old broad a favor and drop them a note asking them to get busy on the bill so that it can go to the full Senate. Unemployment for workers 55 and older is at an all-time high, even higher than for most categories of younger workers. We know what the Roberts Court thinks of workers, but we have a perfectly legitimate way to get around that bias. We just have to start using it.

The Smell Of Dry Powder

Life just got a little tougher for the over-40 crowd. Yesterday, the US Supreme Court ruled that in age-bias claims, the plaintiffs will have the full burden of proving that age was a factor in their firing or demotion. From the Los Angeles Times:

With workplace age-discrimination claims rising rapidly, the Supreme Court made it much harder Thursday for older workers to win in court.

The 5-4 decision reversed a long-standing rule. Many federal appellate courts had decided that if a worker could show age was one of the factors in a layoff or demotion, then the employer was required to prove it had a legitimate reason for its action apart from age.

The court's conservative majority, led by Justice Clarence Thomas, threw out this two-step approach. Instead, the court said, workers bear the full burden of proving that age was the deciding factor in their dismissal or demotion.

Because workers claiming such discrimination almost certainly will not be present while their employers discuss laying them off or demoting them, analysts said, it will be extremely difficult to obtain hard evidence that age was the key factor.

The last paragraph is crucial in understanding just why this decision is so devastating to elders in the workplace. No employer is going to come right out and say, "You're too old for this job. We need younger people," and the target employee is not likely to be present at the meetings where the action is being set up. Unless a whistle blower steps forward, there is no practical way that the age bias law as it currently stands will ever have any force.

Justice Thomas' opinion, in which he was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr., found, unfortunately, a pretty sturdy hook upon which to hang the decision:

In 1991, Congress amended the law covering discrimination on the basis of race, sex, religion and national origin to allow mixed-motive claims. It did not revise the age bias law. Thursday's majority said that age, therefore, should be treated differently.

That, of course, should mean that the problem can be fixed by Congress, just as Congress fixed the problem with the Lilly Ledbetter decision by this Court. New legislation can, and should, be drafted which extends the "mixed-motive" approach to the age bias law. Given the outrage expressed by Sen. Patrick Leahy (D-VT) to the decision, at least one senator is obsiously considering such a a move. I certainly hope so.

But hope isn't legislation. Please consider writing your congress critters urging them to undo the travesty of this decision.

Good News

The Supreme Court issued its ruling on an age discrimination case, and once again surprised me by coming out with the right decision for the right reasons. While their ruling turned on a technical procedural issue, that procedural issue is an important one. From today's NY Times:

The Supreme Court ruled for older workers Thursday in a closely watched age discrimination case, placing on employers the burden of proving that a layoff or other action that hurts older workers more than others was based not on age but on some other “reasonable factor.”

The 7-to-1 decision overturned a ruling by the federal appeals court in New York, which said employees had the burden of disproving an employer’s defense of reasonableness. ...

The age discrimination law provides that an employment action that would be “otherwise prohibited” is lawful if “the differentiation is based on reasonable factors other than age.” The question in the case was what happens once an employer invokes this defense: does the employer have to prove, or do the plaintiffs have to disprove, the existence of the reasonable non-age factors? [Emphasis added]

One of the first things taught at law school is that the party raising a defense has to prove it up. Here, the defendant in the case claimed the defense that "factors other than age" were behind the layoffs. The facts, however, seemed to suggest otherwise:

In the case on Thursday, Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, the employer was faced with laying off some employees after a voluntary buyout failed to produce the desired staff reduction. Managers were instructed to rate employees for how “flexible” and “retrainable” they were. Of the 31 who were eventually laid off, 30 were at least 40 years old.

The key is in that last phrase because it is at age 40 that the age discrimination law kicks in. In this case, the defendants were clearly suggesting that the "factors other than age" defense applied because they used the criteria of flexibility and retrainability rather than age. The fact that all but one of those laid off were 40 or older was just a remarkable happenstance. The Supreme Court said, "Fine, now prove it." The burden is not on the plaintiffs, but rather on the party raising the defense.

One of the things I found so remarkable about the decision was that it was 7-1 (Justice Breyer did not participate because he owned stock in a company that administers the federal lab for the government). The lone dissenter? Justice Antonin Scalia, which certainly was no surprise. Justice Alito and Chief Justice Roberts voted with the majority, which was a surprise.

Just as remarkable, however, is that this session, the Court decided all five of the anti-discrimination law cases in favor of the plaintiffs by removing the procedural hurdles which made bringing such suits to trial nearly impossible. In the last session, the Court had pretty much ruled in favor of business interests on so many other issues that I anticipated more of same this year.

Good news? Absolutely.

Some Good News, For A Change

Will wonders never cease: the US Supreme Court handed down two decisions on workplace discrimination yesterday and got both decisions right. Not only that, but the decisions were not 5-4 squeakers. One was decided 7-2 and the other 6-3. From the NY Times:

The Supreme Court on Tuesday ruled that employees are protected from retaliation when they complain about discrimination in the workplace, adopting a broad interpretation of workers’ rights under two federal civil rights laws.

By decisions of 7 to 2 in one case and 6 to 3 in the other, the court found that the two statutes afford protection from retaliation even though Congress did not explicitly say so.

The decisions are significant both as a practical matter and as evidence of a new tone and direction from the court this year, following a term in which there were sharp divisions and an abrupt conservative turn.

In both cases, Justices Antonin Scalia and Clarence Thomas dissented, which comes as no surprise. However, this time around, Justice Samuel Alito, joined the majority in both cases, and wrote the majority opinion in one. Last year, he wrote the majority opinion in the Ledbetter v Goodyear case in which tight time limits were placed on plaintiffs seeking to file pay-discrimination cases, thereby making it much more difficult for workers to get such cases heard. Chief Justice Roberts, voted with the majority in one case, but dissented in the other.

Each of the two cases involved retaliation for reporting discrimination, so the decisions are significant. Retaliation is usually much easier to prove than the underlying discrimination. Interestingly, one case involved age discrimination (the other racial discrimination), so elder law has been given a boost by this Court.

One of the cases began as a lawsuit by a clerk for the United States Postal Service in Puerto Rico. The plaintiff, Myrna Gómez-Pérez, 45 at the time, complained that she had been denied a transfer to a different office because of age discrimination. Her lawsuit alleged that as a result of her complaint, she became the target of retaliatory actions by her supervisors.

The other case was brought by a former assistant manager of a Cracker Barrel restaurant, a black man named Hedrick G. Humphries. Mr. Humphries had complained that a white assistant manager had been motivated by racial discrimination in dismissing a black employee. In his lawsuit, Mr. Humphries claimed that he then lost his own job in retaliation for his complaint.

All in all, not a bad day at the highest court in the land.

May they continue.

On The Docket

Interesting fact: the US Supreme Court has accepted five age discrimination suits for hearing this term, according to an AP article published yesterday. The lede paragraph was pretty interesting itself.

There is only one anti-bias law - the one against discrimination based on age - that would cover all nine Supreme Court justices, if such laws applied to them.

The justices, ranging in age from 53 to 87, are the last people to worry about such things in their own lives. They have life tenure and no mandatory retirement age.

Yet the justices are confronted by allegations of age discrimination in five cases this term. While the sheer number of cases probably can be explained away as coincidence, the topic is one of growing importance as more people work longer because of economic necessity or by choice. [Emphasis added]

I very much doubt that the decision to accept these cases has anything to do with the ages of the justices, and I certainly don't think the current justices will be particularly sympathetic to the workers' who have filed the suits because of their age, nor should they be. After all, the Court is supposed to construe the statute involved without letting their personal biases influence them.

The five cases themselves have in common only the fact that they were brought under the statute.

The Age Discrimination in Employment Act applies to workers who are at least 40. It prohibits discrimination based on age in hiring and firing, promotions and pay. ...

The cases at the court this year include what kind of evidence an employee may present to bolster an age discrimination claim; whether retirement-age workers are entitled to disability payments; and whether federal workers who complain about age discrimination are protected from retaliation.

The fact is, however, that we can anticipate more such suits being filed because there are more elders continuing to work beyond the traditional retirement age. The numbers themselves are not particularly surprising.

The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year, AARP said. For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

Nor is it particularly surprising that even in this youth oriented culture elders refuse to be shoved out of their jobs and/or their benefits peacefully. Many are working because they have to, especially now that their 501ks have been reduced to 101ks and employer funded pensions are mostly things of the past.

The rulings on these five cases will certainly set the stage for the five years at least, which is about the time I will qualify for full benefits under Social Security. I certainly hope the justices get it right, although I am not optimistic.