Outten & Golden: Empowering Employees in the Workplace

Archive for December, 2018

New York City’s transgender community faces significant employment discrimination, new report finds

Wednesday, December 12th, 2018

The New York City Anti-Violence Project (AVP) released a new report Tuesday detailing systemic discrimination against transgender and gender non-conforming (TGNC) people across the city.

Compared to the general New York City population, TGNC individuals are five times more likely to be unemployed, and among those with college degrees, more than four times more likely to be making less than $30,000 a year, the report found.

The report also outlines specific barriers TGNC people face while trying to find a job. Thirty-one percent reported experiencing discrimination before they even finished applying for jobs because they were asked what gender they were assigned at birth, a question employers are not legally allowed to ask. Others said they were asked for references from past employers who only knew them by their “dead name,” or the name they used before they transitioned.

Over half of respondents said they were forced to educate their coworkers about their identities, and a third reported being isolated by coworkers and receiving unwanted sexual comments. Many were overqualified for their jobs, while others said non-TGNC peers received higher salaries for the same work. A third of respondents said they were unable to use their health insurance to receive the gender affirming care they needed.

The New York City Anti-Violence Project (AVP) released a new report Tuesday detailing systemic discrimination against transgender and gender non-conforming (TGNC) people across the city.

Compared to the general New York City population, TGNC individuals are five times more likely to be unemployed, and among those with college degrees, more than four times more likely to be making less than $30,000 a year, the report found.

The report also outlines specific barriers TGNC people face while trying to find a job. Thirty-one percent reported experiencing discrimination before they even finished applying for jobs because they were asked what gender they were assigned at birth, a question employers are not legally allowed to ask. Others said they were asked for references from past employers who only knew them by their “dead name,” or the name they used before they transitioned.

Over half of respondents said they were forced to educate their coworkers about their identities, and a third reported being isolated by coworkers and receiving unwanted sexual comments. Many were overqualified for their jobs, while others said non-TGNC peers received higher salaries for the same work. A third of respondents said they were unable to use their health insurance to receive the gender affirming care they needed.

Renata Ramos, a 57-year-old transfeminine Latina immigrant, claimed she lost a catering job when she transitioned because the business owner was allegedly concerned about “how their customers would react.” She claimed she was repeatedly told by employers such Trader Joe’s and a local dollar store that there were no open positions for which she could apply.

ThinkProgress has reached out to Trader Joe’s for comment on the allegation.

Lolan Sevilla, an AVP training coordinator and co-author of the report, told ThinkProgress that for many TGNC individuals, instances of discrimination were often compounded by their race. “For example, there was a significant disparity between trans and gender non-conforming people of color and white respondents on education, employment, and income,” they said, noting TGNC people of color with bachelor’s degrees were nearly four times more likely than to their white counterparts to make less than $10,000 a year.

“In order for us to have true economic justice for trans and gender non-conforming people, these issues must be looked at, and addressed, holistically with a framework that includes other identities held like race, disability, and immigration status,” Sevilla said.

New York City protects against employment discrimination on the basis of gender identity and expression, and has even issued guidance specifying that those protections apply to issues like correct name and pronoun usage in the workplace. The report recommended the city take things one step further and create educational opportunities and employment programs to help TGNC individuals overcome inequities they still face while attempting to enter the workforce.

It’s often impossible for TGNC individuals to know whether they are being treated differently, as many are simply unaware of the favorable treatment afforded to their non-TGNC peers. The report therefore recommends screening employers to ensure they are welcoming of TGNC employees through methods like resume testing.

The Washington, D.C. Office of Human Rights conducted one such test in 2015, sending various fake resumes to different employers, some with indications that the invented job candidate was transgender. In nearly half of the tests, employers favored a less-qualified cisgender candidate over a more qualified transgender candidate. As a result, the office was able to take enforcement actions against several of these employers for violating nondiscrimination laws, even though no real-life transgender people experienced discrimination.

New York City has used a similar process for identifying anti-transgender discrimination at substance abuse centers.

Chanel Lopez, Transgender Communities Liaison at the NYC Commission on Human Rights, emphasized the importance of such work and the need to continue pushing for more transparency in a statement Tuesday. “As we know all too well at the NYC Commission on Human Rights, TGNC individuals endure a range of discrimination and harassment in their daily lives, including in the workplace,” she said. “This is simply unacceptable.”

This article was originally published at ThinkProgress on December 12, 2018. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.”

Mugno or not to Mugno: The Senate Must Decide

Tuesday, December 11th, 2018

As the sun sets on the 115th Congress and the mid-point of this term of the Trump administration, the sun also seems to be setting on any chance of seeing an Assistant Secretary for OSHA in the foreseeable future.

Or maybe not….

You may recall that former FedEx Ground safety director and Chamber of Commerce favorite Scott Mugno was nominated by President Trump in October 2017, has survived a Senate confirmation hearing and has been approved by the Senate Health, Education, Labor and Pension (HELP) committee (twice) on party-line votes. But Mugno’s nomination has never come to a final vote on the floor of the Senate.

Politico’s Morning Shift reminded us last week that the nomination of Mugno, as well as the nominations of Cheryl Stanton for the agency’s Wage and Hour Division, William Beach at the Bureau of Labor Statistics, and Gordon Hartogensis with the Pension Benefit Guaranty Corporation continue to be mired in a fight over the confirmation of two Democratic favorites: Mark Gaston Pearce to be reconfirmed for a seat on the National Labor Relations Board, and Chai Feldblum to be reconfirmed for a seat on the Equal Employment Opportunity Commission. (There are two other DOL nominees out there as well: John Pallasch for assistant secretary for employment and training was cleared by the Senate Committee last week, and Bryan Jarrett for assistant secretary for policy has not yet had a hearing. )

The business community (e.g. Chamber of Commerce and others) and their Republican cohorts in the Senate hate, Hate, HATE the idea of confirming Pearce and Feldblum more than they love the idea of having someone head the other labor agencies. The Chamber opposes Pearce because he “engineered some of the most harmful decisions and regulations in the Board’s history.”  And even though he was only on the Board from 2010 to 2018, he somehow managed to reverse “more than 4,550 years of precedent,” causing King Tut to roll over in his sarcophagus. According to Bloomberg Law, the Republicans fear that Pearce will slow down their efforts to roll back worker protections that were strengthened under Obama. But their real worry is that if Trump is defeated in 2020, Pearce would be the likely candidate to become NLRB Chair — with the downfall of Western Civilization shortly to follow.

Chai Feldblum served as EEOC chair throughout the Obama administration and has been renominated by Trump.  Her main sin is being an “open” lesbian and gay rights activist which is more important than the fact that she is a graduate of Harvard Law, clerked for Supreme Court Justice Harry Blackmun, and is a Georgetown Law School professor.  Utah Senator Mike Lee is particularly incensed with Feldblum’s nomination, calling her a “threat to religious liberty and the institution of marriage.”

Senator Patty Murray, ranking member of the HELP committee reemphasized last week that Democrats would continue to block the Labor Department nominees until the Senate confirms Pearce and Feldblum.

Why did Trump renominate these candidates who threaten the American way of life?

Because the party controlled by the President gets three appointees to these Boards, while the minority party gets two. Traditionally, the parties get to put up their own candidates who are then nominated by the President. In other words, they’re traditionally a package. Technically, the Democrats can’t block the DOL nominees because the Republicans eliminated their ability to require 60 votes, but Democrats can force Senate Leader Mitch McConnell to consider the confirmation of each candidate separately (instead of as a package), which would take up an enormous amount of scarce Senate floor time that McConnell would rather use to confirm Trump’s judges and higher level nominees. If the nominees aren’t confirmed in the next couple of weeks before this session of Congress ends, the entire nomination process starts all over again.

So what will happen? Will the dam break next week? Rumors of high level talks between the Democrats, McConnell and the White House have been flying, but if I had a nickel for every time a deal was reported to be imminent…

This blog was originally published at Confined Space on December 6, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Ivanka Trump promised her dad would deliver a great family leave plan. Here’s what we got.

Monday, December 10th, 2018

Ivanka Trump once promised that if her father was elected, she would ensure paid family leave was a staple in every workplace, and Donald Trump promised the program would finance itself.

Two years later, the Trump administration is no closer to accomplishing this goal than they were when Ivanka and her father told prospective voters and working parents that they could be trusted to deliver on paid leave and thus deserved their votes.

“My father’s policy will give paid leave to mothers whose employers are among the almost 90 percent of U.S. business that currently do not offer this benefit,” Ivanka Trump said at a September 2016 rally.

Trump himself said he would “provide six weeks of paid maternity leave to any mother with a newborn child whose employer does not provide the benefit” and “get them to be okay, right? And we will be completely self-financing.” He said he would do that “by recapturing fraud and improper payments in the unemployment insurance program.”

His campaign website also promised “6 weeks of paid leave to new mothers before returning to work.” The campaign’s proposal did not include fathers or adoptive parents in their paid family leave proposal. Offering paid leave only to mothers carries economic costs to women, who already face a motherhood penalty in the workplace.

Since then, there have been paid family leave policies announced in budget documents that were subsequently ignored by the administration and the Republican-controlled Congress.

Ivanka Trump was there for the announcement of Sen. Marco Rubio’s (R-FL) paid family leave bill in August, which would allow working parents to access some of their Social Security benefits early, to give them the facsimile of paid leave at the expense of the worker’s retirement.

That this campaign promise has seemingly died on the vine shouldn’t be too surprising, as Trump’s own businesses often fell far short of paid family leave for its own workers.

Ivanka Trump, who was an executive at the Trump Organization before joining her father’s administration, asserted that the company provided paid family leave to all of its workers. But that turned out not to be true — the company complied with the Family Medical Leave Act which requires employers to allow workers to take up to 12 weeks of unpaid leave, however it did not provide paid parental leave to employees across all its properties and hotels.

The United States is one of only nine countries in the United Nations that doesn’t guarantee paid time off for new mothers.

Some states have struck out on their own to pick up the slack, passing legislation that ensures the expansion of paid family leave coverage for their residents.

But working parents nationwide are still waiting for a solution to a crisis that impacts millions of new parents who need to work to support their families.

This article was originally published at ThinkProgress on December 7, 2018. Reprinted with permission.

About the Author: Ryan Koronowski is the Research Director for ThinkProgress. He grew up on the north shore of Massachusetts and graduated from Vassar College with dual degrees in psychology and political science, focusing on foreign policy and social persuasion. He earned his M.S. in energy policy and climate at Johns Hopkins University. Previously, he was the research director and rapid response manager at the Climate Reality Project. He has worked on Senate and presidential campaigns, predominantly doing political research and rapid response.

Economy Gains 155,000 Jobs in November; Unemployment Unchanged at 3.7%

Friday, December 7th, 2018

The U.S. economy gained 155,000 jobs in November, and unemployment was unchanged at 3.7%, according to figures released this morning by the U.S. Bureau of Labor Statistics. The labor market can be a leading indicator for the economy. Soft wage growth has been accompanied by weaker auto sales than typical for this low level of unemployment, leading General Motors to plan plant closings, and slowing home sales point to stresses for workers and the household sector of the economy. The Federal Reserve needs to move with great caution and hold off on more rate increases.

Last month’s biggest job gains were in health care (32,000), professional and business services (32,000), manufacturing (27,000), transportation and warehousing (25,000) and retail trade (18,000). Employment in other major industries—including mining, construction, wholesale trade, information, financial activities, leisure and hospitality, and government—showed little change over the month.  

Among the major worker groups, the unemployment rates for teenagers (12%), blacks (5.9%), Hispanics (4.5%), adult women (3.4%), whites (3.4%), adult men (3.3%) and Asians (2.7%) showed little or no change in November.

The number of long-term unemployed (those jobless for 27 weeks or more) declined slightly in November and accounted for 20.8% of the unemployed.

This blog was originally published by the AFL-CIO on December 7, 2018. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.

Philadelphia Just Passed the Strongest Fair Scheduling Law in the Nation

Thursday, December 6th, 2018

Philadelphia, the poorest big city in the country, just enacted the most sweeping bill yet to give low-wage workers some control over their schedules.

The city’s new law, which passed the city council on Thursday, will require businesses with more than 250 employees and more than 30 locations worldwide to provide employees their schedules at least 10 days in advance. If any changes are made to their schedules after that, employers will owe employees more money. Employers will also be required to offer more hours as they become available to existing employees who want them rather than hiring new people, and they’ll be banned from retaliating against those who either request or decline more hours.

The law is poised to have a huge impact: A recent survey conducted by UC Berkeley found that among food and retail sector workers in Philadelphia, 62 percent receive their schedules less than two weeks ahead of time and two-thirds work irregular or variable schedules. Almost half usually work 30 hours or less each week even though less than 15 percent have a second job to supplement their incomes.

“It seems that employers are being less and less cognizant of their workers’ needs and home lives,” noted Nadia Hewka, an employment lawyer with Community Legal Services of Philadelphia, which advocated for the bill. “This would just put a little bit of balance back into that equation.”

The effort to help workers control their schedules started around a year ago, when advocates convened to discuss how Philadelphia could take action on its own to improve living standards for its residents. “Philadelphia is a very high-poverty city,” Hewka noted. More than a quarter of the city’s population lives below the poverty line. So advocates were interested in “anything that we can do to raise the bottom just a little bit.” But thanks to a state preemption law, the city can’t raise the minimum wage—that power is reserved for the state government. So the city council has turned to a number of other measures that can make life for working people easier: paid sick leave, an anti-wage theft ordinance, a salary history ban, ban the box legislation and now a fair scheduling law.

“What I know is that I can’t be paralyzed just because the state has limited our capacity to be able to directly raise the minimum wage,” said Helen Gym, the first-term councilmember who introduced the fair workweek bill. “We have to talk about other things that impact people’s lives and could also improve them.”

The former community organizer came into the council looking for something that could “really grapple with this incredibly vast and intractable situation around deep and entrenched poverty in our city.” As she spoke with low-wage workers and those who work with them—teachers, lawyers, anti-poverty advocates—everyone brought up how unstable schedules were disrupting people’s lives. “This was a major, major issue,” she said.

“As a municipality, we have to do something,” she added. “We have the authority and the responsibility to act here as one of the largest cities in the country.” Her colleagues apparently agreed: “It has been one of the most popular bills to move through our council in a while,” she said.

While other places, such as Oregon, New York City, San Francisco and Seattle, have similar scheduling legislation, Philadelphia’s goes further by covering workers in all industries, not just those in retail. “Of all the bills that exist around the country, ours will be the most far-reaching,” Gym noted. Hewka credits the involvement of UNITE HERE Philly, which represents hotel and restaurant workers and advocated for the bill.  

Hewka sees the new law as an anti-poverty measure.  It’s difficult “when you don’t know how many hours you’re working and how much you’ll be earning by the end of the week or the end of the month to make the bills you need to make,” she said. Someone’s income isn’t just determined by her wage, but by how many hours she works. A more predictable set of hours, and the ability to get more as they become available, can make a big difference.

And there are other benefits to a steady schedule. Hewka noted that many people feel that if minimum wage workers don’t like their pay they should get better jobs. “How are you supposed to improve your lot in life and go to school if your class schedules are set and your work schedule always changes?” Hewka noted. It’s also nearly impossible to hold down a second job to make ends meet if the first one is constantly shifting.

The bind is particularly tight for parents. “When [workers] are not allowed to have a say in their schedules,” Hewka said, “it impacts their entire family.” One big hurdle is finding childcare to fit a work schedule when that work schedule is constantly shifting.

On top of that, parents have to get their children to school, doctors’ offices, after-school activities and other appointments. Poor families are also often navigating the demands of welfare offices or child services, Hewka pointed out, all of which typically require daytime appointments. “All of these systems assume that you’re available to do these tasks,” she said. She has even had clients fail to show up to meetings in her office because they had to be at work instead.

“Jobs don’t recognize [workers’] humanity, let alone these kinds of demands on their lives,” she added. “You’re spinning plates up in the air with all of these things in your life. A work schedule changing can really cause everything to come crashing down.”

Gym hopes not just to improve Philadelphians’ working lives, but to make a bigger impact. “We’re trying to change the way in which we talk about poverty and the nature of work these days,” she said. “Not only did we set a standard for what happens around the state, but we sent a message across the nation that we need to see an economic justice agenda.”

This article was originally published at In These Times on December 6, 2018. Reprinted with permission.

About the Author: Bryce Covert, a contributing op-ed writer at the New York Times, has written for The New Republic, The Nation, the Washington Post, the New York Daily News, New York Magazine and Slate, and has appeared on ABC, CBS, MSNBC and NPR. She won a 2016 Exceptional Merit in Media Award from the National Women’s Political Caucus.

At CBS, Les Moonves got away with ‘transactional’ sex. A working mom couldn’t get a schedule change.

Wednesday, December 5th, 2018

At CBS News, she asked for a role that would give her “some small measure of predictability” over her schedule so she could work while parenting a young son. From his corner office atop CBS, he was demanding that a different female employee be “on call” to perform oral sex.

She left her job. He made $69.3 million.

It’s a tale of two professional tracks at CBS: Of Julianna Goldman, a working mother trying — and ultimately failing — to adjust her workplace responsibilities so she could continue to do her job as her home life evolved, and of Les Moonves, the CEO and chairman whose reportedly rampant sexual violence was the centerpiece of a noxious, misogynistic network over which he reigned for decades.

On Wednesday, the New York Times published a report on Moonves’ obstruction of an investigation into his sexual misconduct at CBS. That obstruction may cut the strings on the golden parachute on which Moonves surely thought he’d gently float into an early retirement — which is a little like getting Al Capone for tax evasion, considering the gravity of Moonves’ alleged violence.

The Times report also included many new sickening details about Moonves’ “transactional” sexual relations with his female underlings:

“The outside lawyers were told by multiple people that CBS had an employee “who was ‘on call’ to perform oral sex” on Mr. Moonves. According to the draft report: “A number of employees were aware of this and believed that the woman was protected from discipline or termination as a result of it.”

[…]

The report found that, in addition to consensual relationships and affairs, “Moonves received oral sex from at least 4 CBS employees under circumstances that sound transactional and improper to the extent that there was no hint of any relationship, romance, or reciprocity.”

The report said that the lawyers weren’t able to speak with any of those women, but that “such a pattern arguably constitutes willful misfeasance and violation of the company’s sexual harassment policy.”

The Times piece comes a few months after Ronan Farrow first reported that Moonves had been accused by six women of sexual harassment and intimidation, while “dozens more” detailed abuse throughout the company Moonves ran. Further reporting revealed Moonves’ methodical destruction of female-driven shows. Thorough investigations into credible allegations brought to light the abuses of longtime TV host Charlie Rose, NCIS showrunner Brad Kern, senior vice president of talent for CBS Television Studios Vincent “Vinnie” Favale. A phalanx of sexist, abusive men flourished while women suffered, under Moonves’ eye.

Tuesday, Julianna Goldman wrote about her experience with CBS News for The Atlantic. She was a general-assignment correspondent with 15 years of experience who was essentially given a no-choice choice between a job that was obviously incompatible with parenting (last-minute travel for breaking news) and no job at all. She asked for a position with more predictability; she was told the offer on the table was “final.” She left and later realized she “was not alone”:

According to a report by the Women’s Media Center, television viewers are less likely to see women reporting the news today than just a few years ago. At the Big Three networks—ABC, CBS, and NBC—combined, men were responsible for reporting 75 percent of the evening news broadcasts over three months in 2016, while women were responsible for reporting only 25 percent—a drop from 32 percent two years earlier.

It was “anti-mom” bias, in all its insidious manifestations: Assumptions made about a woman’s dedication and competence (meanwhile, men earn a “fatherhood premium” for every child they have); the fear of getting edged out while taking maternity leave and daring to be off-camera for all of three months; the exacting expectations for a woman’s appearance on television that make no allowances for a pregnant or postpartum body.

As Goldman argues, all citizens suffer when women and mothers are sidelined from the work they do so well. It is impossible to report the news fully, accurately, and with empathy, without without diversity of experience and insight on the part of those who report it. And of course the workplace discrimination she documents against pregnant women and mothers is appalling, all the more so forbeing so commonplace.

But there is something especially gross about seeing these two experiences — Goldman’s and Moonves’ — side by side.

What does it say about CBS, as an institution, that higher-ups decided it was simply unfathomable to meet Goldman’s minimal requests but that it was absolutely paramount to ensure Moonves every sexual whim be met on demand? What does it say about the board, that at least one of its members knew about an assault allegation against Moonves from 1999 and, rather than do anything meaningful with that information whatsoever, just… told no one, and did nothing, and stood up for Moonves even as more and more credible allegations came out?

Dr. Anne Peters says Moonves assaulted her in 1999. As she told CBS lawyers, she warned Arnold Kopelson, an Oscar-winning producer who was about to join the board, about Moonves. As Peters remembers it, Kopelson’s response was “that the incident happened a long time ago and was trivial, and said, in effect, ‘we all did that.’”

Kopelson joined the board in 2007 and, at a board meeting following the publication of Farrow’s investigation, kept on defending Moonves. “I don’t care if 30 more women come forward and allege this kind of stuff,” he said. “Les is our leader and it wouldn’t change my opinion of him.” (Kopelson died in October.)

How telling, that at CBS, it’s easier to make an office work for Moonves — and Rose, and Kern, and on, and on — than to make it work for a mother. That someone like Kopelson could say, of Moonves’ alleged criminal misconduct, “we all did that,” but that no one can look at working parents and say, “we all do that.”

This article was published at ThinkProgress on December 5, 2018. Reprinted with permission.

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.

Philadelphia may be next city to pass a fair workweek law

Tuesday, December 4th, 2018

On-call scheduling is one of the worst common and legal abuses inflicted on service workers that non-service workers may know nothing about. The practice, in which bosses don’t give workers set schedules but force them to be available at the drop of a hat, can make it virtually impossible to hold a second job; hugely complicates childcare arrangements for workers who are parents; and means that workers don’t know what their income will be week to week. Laws to curb the worst scheduling abuses have started to gain some momentum, but they’re still rare.

Philadelphia, though, may become the next city to pass a fair workweek bill, with a measure introduced by Councilmember Helen Gym scheduled for Dec. 6 city council vote:

The bill requires eligible employers to start giving their employees a good-faith estimate of their work schedule when they’re hired. That doesn’t have to be a precise weekly schedule, but it must include things like the average number of work hours employees will be scheduled on each week, whether they’ll be needed for on-call shifts, and times they can and cannot be expected to work. Starting in 2020, eligible employers will also have to post detailed work schedules 10 days in advance; that time frame changes to 14 days in 2021. If hours aren’t included in the designated work schedule, employees can decline to work them.

What gives Philly’s bill teeth is that, if employers change the posted work schedule after that 10 or 14 day limit, they’ll also have to pay the employee a “predictability pay” fee, in addition to the employee’s hourly wage for the hours in question.

Philadelphia would join New York City, San Francisco, Seattle, San Jose, and Emeryville, California, as well as the state of Oregon in having a fair workweek law.

This blog was originally published at Daily Kos on December 1, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

SCOTUS rules that ADEA applies to all public employers

Monday, December 3rd, 2018

By unanimous decision, the Supreme Court has clarified that the Age Discrimination in Employment Act applies to all public sector employers.

The case centered on two Arizona firefighters who believe they were terminated because of their age. Their fire district claimed that the wording of the ADEA excluded smaller public agencies with less than 20 personnel. SCOTUS firmly rejected that interpretation.

Age Discrimination law is not limited to large agencies

At question was the Age Discrimination in Employment Act of 1967, which protects employees age 40 and over from discrimination in hiring, the workplace and termination. The case (John Guido; Dennis Rankin v. Mount Lemmon Fire District) was brought by two firefighters. When they were fired in 2009, they were the oldest full-timers (age 46 and 54) in their district.

They filed age discrimination charges with the Equal Employment Opportunity Commission. The EEOC found reasonable cause that the fire district had violated the ADEA, and they filed suit in 2013.

A district court granted summary judgment to the fire district, based on an interpretation of the term “employer” in the ADEA. The two firefighters appealed to the U.S. Ninth Circuit Court of Appeals, which reversed the lower court. The fire district appealed to the U.S. Supreme Court.

Unanimous decision

The Supreme Court unanimously upheld the Ninth Circuit, settling any ambiguity in the law. The crux of the case was the language of the ADEA. The act exempts private employers with fewer than 20 employees. But the ADEA goes on to say “The term (employers) also means … a State or political subdivision of a State.”

The Mount Lemmon Fire district asserted that the 20-employee limit applied to public employers. The Supreme Court disagreed, ruling that the ADEA applies to all public agencies regardless of size. This is consistent with how the EEOC and courts have interpreted the discrimination provisions of Title VII of the Civil Rights Act.

As a result of the SCOTUS ruling, Mr. Guido and Mr. Rankin can press their age discrimination lawsuits against the fire district. It should serve as notice to any public agency that they cannot use the size of their workforce as an excuse for laying off or discriminating against older employees.

ADEA, ADA and Title VII apply to federal employees too

The ADEA was originally written to protect private sector workers from ageism. It was later was amended to specifically apply to public employees, including federal employees. This is in line with the Americans with Disabilities Act and other federal discrimination statutes that specifically cover federal employees or to which the Supreme Court has extended that interpretation.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on December 3, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Your Rights Job Survival The Issues Features Resources About This Blog