Posts Tagged ‘age discrimination’

From Overlawyered posts to SCOTUS hypotheticals

At oral argument yesterday in Babb v. Wilkie, a case on the standard needed to prove age discrimination in federal employment, Chief Justice John Roberts offered a hypothetical of a younger manager who says “OK boomer” to a job applicant. [Mark Sherman, AP] In November, we and others discussed the legal pressure on employers to keep employees from using that phrase. More: William Baldwin, Forbes.

“OK Boomer?” HR law to the rescue!

1) Under federal employment discrimination law, employers face higher risk of liability if they fail to take action against stray workplace comments that are derogatory toward protected groups.

2) There is no exception for comments derogatory toward older persons.

3) People will now get warned, disciplined, or fired for saying “OK Boomer.”

Welcome to the House That Social Justice Built!

P.S. To make things clear, whatever lawsuits are at issue are unlikely to be aimed at whoever made the remark, but instead at the employer, which is after all the party with money worth going after. Most likely, claims of boomer insults, overheard or direct, will be used as additional leverage to raise the buyout/payoff level of departing older executives. That is why the employer, in its self-interest, has a reason to suppress such comments before they start. (The tweet above is by a seasoned management-side employment attorney.)

Age discrimination is already by some measures the most successful branch of employment discrimination law for plaintiffs, and it pays off especially in the case of high earners, that is to say persons of middle management rank and above, mostly affluent white males. They can afford to hire good lawyers, the sort who can afford to probe and trawl a large record for age-related remarks. [More: Robin Shea]

Discrimination law roundup

  • Can a law ban calls to police by the public that are based on stereotyping or bias? Grand Rapids may find out [Scott Greenfield]
  • Courts and EEOC have held that the federal ban on pregnancy discrimination encompasses a ban on discrimination related to abortion [Jon Hyman] Legislative proposal in Ohio, fortunately given little chance of passage, would make anti-vaxxers a protected group under state employment discrimination law [same]
  • “Finally Some Robust Research Into Whether ‘Diversity Training’ Actually Works – Unfortunately It’s Not Very Promising” [Jesse Singal, British Psychological Society Research Digest, earlier]
  • New EEOC employer reporting requirements represent “an order of magnitude increase in the amount of information the government wants” for one recreation management business [Coyote] How are federal agencies doing on civil rights issues in this administration? Federalist Society panel with Gail Heriot, Kenneth Marcus, Theodore Shaw, Timothy Taylor, moderated by Erik Jaffe;
  • When an outcry arose over its partnership decisions, “Paul, Weiss did what every other mainstream institution does today when accused of racial bias: it fell on its sword.” [Heather Mac Donald, City Journal via Eugene Volokh]
  • “Targeted Advertising and Age Discrimination: An Explainer” [Joe Ruckert, On Labor]

February 6 roundup

  • Local crackdowns on home-sharing can do a lot of harm [Christina Sandefur, Federalist Society teleforum] Sandefur on laws banning working from home [Regulation mag, Cato Daily Podcast]
  • “Apparently the ad [about a 9-year-old daughter willing to do household chores for neighbors] generated multiple phone calls from paranoid neighbors thinking I was using my child as a slave,” and next thing the sheriff called [Lenore Skenazy; Woodinville, Wash.]
  • Seventh Circuit rules against “disparate impact” age discrimination claims for job applicants, and a Forbes columnist writes as if it had decided to abolish disparate treatment claims for them as well [my Twitter thread on botched coverage of Kleber v. CareFusion Corp.]
  • “The Law Merchant and Private Justice. A Conversation with Professor Barry Weingast” [Kleros]
  • “Disabilities Rights Group Files Lawsuit Against San Diego, Scooter Companies” [Rachel Kaufman, Next City]
  • Ideology vs. kid placements: “Some 440,000 kids are in foster care in the U.S.; if we shut down [theologically conservative] faith-based foster agencies, those children will have a much harder time finding homes.” [Naomi Schaefer Riley, City Journal, earlier here, here, etc.]

Labor and employment roundup

  • California becomes fourth state to ban asking job applicants about salary history. Bad law. [Gerald Skoning, WSJ] Together with required disclosure of “pay range,” ban on salary history inquiries could hurt studios, talent biz [Philip Bonoli, Forbes]
  • Claim: age-targeted Facebook employment ads unlawful under age discrimination law, even if hiring firms are listing jobs and soliciting applicants through many other channels as well [Julia Angwin, Noam Scheiber, and Ariana Tobin, New York Times] More: Charles Sullivan, Workplace Prof (“It’s not at all clear that the practice is illegal under current federal law.”)
  • “‘Opt Out’ Provisions May Provide Path Forward for Class-Action Waivers in Employment Contracts” [Andrew Trask, Class Action Countereasures]
  • Payments to workers’ comp attorney: “Former NBA Player Pleads Guilty to Charity Fraud Scheme” [Phil Yacuboski, WCI360] Report: jihadist group in Colorado in 1990s funded acts of terror through workers’ comp fraud [Liz Carey, WCI360]
  • Will #MeToo scandal result in a leftward lurch in employment law? Some certainly hope so [Terri Gerstein, On Labor]
  • Weirdly influential “pay workers enough to buy back the product” fallacy, associated with Henry Ford, doesn’t work for aircraft carriers or matches or most other products [David Henderson, earlier here, etc.]

January 24 roundup

  • Bryan Caplan and Arthur Brooks on international adoption, the Hague Convention, and Type I and Type II error [Caplan/EconLog, Brooks/NYT]
  • It’s about the pecking order: enrolling a 3-month-old chicken in a “distinguished lawyer” marketing program [Conrad Saam]
  • West Baltimore police checkpoints, Montgomery County rent control proposals, taxes, regulations, gerrymandering and more in my latest Maryland policy roundup [Free State Notes]
  • Also from me: with Oprah Winfrey in the news, I recall the time I was on her talk show [Frederick News-Post]
  • Yet more from me: as part of a Reason symposium on Trump’s first year, his administration’s centrist course on gay issues;
  • More work for age discrimination lawyers? “The New York Times is looking for young writers” for paid positions according to its ad [archived original, and updated current page with legally safer wording, via @jackshafer]
  • “Copyright Troll Gets Smacked Around By Court, As Judge Wonders If Some Of Its Experts Even Exist” [Tim Geigner, TechDirt]

October 11 roundup

Recruiting on campus might be an age discrimination violation

“Are college job fairs and recruiting doomed as discriminatory activities? In February, a District Court in California ruled that job applicants could maintain a disparate impact claim under the Age Discrimination in Employment Act (ADEA) challenging the practice of recruiting entry-level workers mostly through a program available only to recent college graduates.” Other courts, however, have adopted standards markedly less favorable toward age discrimination plaintiffs. Eric Dreiband of Jones Day discusses in a Federalist Society podcast. More: Roy Maurer, SHRM on PWC (Price Waterhouse Coopers) class action.

Cato Handbook chapters on labor and employment, minimum wage law

My chapter on labor and employment law in the new 8th Edition Cato Handbook for Policymakers has caused a riffle or two of reaction, what with its proposals to repeal the NLRA, ADEA, FMLA, and a bunch of other laws (and that’s just the start, really). Robin Shea and Jon Hyman both respond with posts on the theme of what would happen if they ran the world, could push a button, or were monarch for a day. Their responses are good-tempered in both agreement and disagreement, which cannot be said for all the corresponding fun had once the list started circulating over on Twitter.

If my chapter doesn’t manage to flood the outrage zone completely for committed supporters of current law, the handbook’s chapter on the minimum wage can help provide further stimuli. It’s written by Thomas Firey.