April 01, 2015

Book Review | Betrayed: The Legalization of Age Discrimination in the Workplace

David M. Godfrey

(The pdf for the issue in which this article appears is available for download: (Bifocal, Vol. 36, Issue 4).)

 

Betrayed: The Legalization of Age Discrimination in the Workplace
by Patricia Barnes

 

This book is a call to action for strengthening the protections against age discrimination in the workplace. At a time when an increasing number of older workers want or need to remain in the workforce because of longer lifespans and economic pressures, age discrimination in employment laws are weak and have been systematically weakened. In Betrayed, attorney Patricia Barnes explores the challenges faced by older workers who have suffered discrimination in employment based on age.

The book is well-researched and well-written, and offers a fundamental overview of age discrimination in employment law from an employee’s point of view. The idea for the book came from the author’s personal experience and her passion for the issue is evident.

The book talks frankly about weaknesses in the Age Discrimination in Employment Act (ADEA) and how it has been weakened by court decisions. Complaints under the ADEA are filed with the Equal Employment Opportunity Commission (EEOC). In 2012, 85% of the age discrimination complaints filed with the EEOC were found by the Agency to lack sufficient merit. The EEOC only filed 12 age discrimination cases in 2012 from nearly 23,000 complaints. The author contrasts ADEA protections with those provided by Title VII of the Civil Rights Act of 1965 (the Act protects those discriminated against due to race, gender, and national origin). Barnes argues convincingly that Title VII offers far greater protections and a significantly lower burden of proof for the plaintiff. ADEA has never been on equal ground with Title VII, and amendments and case law have made bringing an age-based case nearly impossible.

The book explores the various causes of action for age-discrimination cases including intentional discrimination, disparate impact, and hostile work environment, and affirmative defenses such as bona fide occupational qualification.  She explains how and why each presents a nearly insurmountable barrier for a person who has been discriminated against based on age. The bottom line is that unless a worker can prove that the sole reason for refusal to hire or for termination is age, it is nearly impossible under existing law to prove an age-discrimination case.

This is more of a policy book than how-to book. The author’s outrage is obvious at a few points in the book. At 225 pages, it is well worth the read. It is available in print and as an e-book. ■

David M. Godfrey

David M. Godfrey is a Senior Attorney at the ABA Commission on Law and Aging in Washington, DC.