S. 2189: Protecting Older Workers Against Discrimination Act

On March 13, 2012, Sen. Thomas “Tom” Harkin [D-IA] introduced Senate bill 2189: Protecting Older Workers Against Discrimination Act. Senator Harkin is the chairman of the Senate Committee on Health, Education, Labor, and Pensions, where the bill has been referred. This bill would modify the Age Discrimination in Employment Act of 1967 (ADEA) by making provision for "mixed motive claims."

ADEA prohibits discrimination in employment against persons who are of the age of 40 or over. The Act prohibits employment decisions (i.e., hiring, classifying, limiting, etc.) based solely on age, except in cases of a bona fide occupational qualification for reasons that are "reasonably necessary" for the job. For example, an employer looking for a model for a teenage clothing line is not in violation of ADEA because (s)he will not hire a 50 year old to play the part.

What happens, however, if age was not the sole factor? What if age was only a minor or even half contributing factor?

Unlike Title VII of the Civil Rights Act (1964), there is no specific language in ADEA that allows for a "mixed motive claim." Because specific language is present in Title VII, an employer is in violation of the statute if the protected status (race, color, national origin, religion, and gender) plays any role in employment policies or actions. As amended by the Pregnancy Discrimination Act of 1978, it would be unlawful, for example, if an employer decided that Sarah was ineligible for a promotion because "her work isn't all that great and she's pregnant and will be going on maternity leave soon, anyway."

The Age Discrimination in Employment Act of 1967 (ADEA) does not contain such language. Additionally, and, notably, ADEA was not addressed in the Civil Rights Act of 1991 (limited to Title VII, the Americans with Disabilities Act, and Section 501 of the Rehabilitation Act of 1973). Supreme Court cases (Kolstad v. American Dental Association, 1991) following the Civil Rights Act ruled that an employee need not prove a discriminatory act under the statute was "egregious or outrageous."

Since neither the Civil Rights Act nor subsequent Supreme Court rulings addressed age discrimination, this omission became the focus of the Supreme Court Decision in Gross v. FBL Financial Services, Inc. (2009). The Court ruled that since Congress did not include ADEA in its Civil Right Act of 1991 its clear intent was to disallow mixed motive claims under ADEA. The courts, according to Gross, could not assume the intent of one statute--in this case, Title VII--to be the intent of other, even similar, statutes.

The intent of the Senator Harkin's "Protect Older Workers Against Discrimination Act" is to close this exception and to add language that would make mixed motive prohibited under ADEA. In other words, "John is absent too much to be considered for CFO and, really, he's 55 and we want someone younger, with fresher ideas, and who will stay around longer" would now be in significant danger of being in violation of ADEA.

In my opinion, this was probably the intent of ADEA to begin with, although it is curious that the language that was present in other discrimination legislation was noticeably absent in the age discrimination statutes. With or without this bill being passed, it is likely best to leave age out of the equation in employment practices to avoid litigation and possible penalties.

Click here for full text of ADEA

Ted Taylor, SPHR, CSP

Job recovery looks durable as factories add more workers, fewer people seek unemployment aid

CHRISTOPHER S. RUGABER AP Economics Writer

WASHINGTON — A resurgent U.S. job market that has lifted the economy appears to be enduring.

Factories in the Northeast kept hiring in early March. And the number of people applying for unemployment aid last week fell back to a four-year low. The economy is adding jobs at a time when inflation remains relatively mild outside of higher gas prices.

Upbeat government reports Thursday reinforced the message sent by last week's encouraging February job figures.

The good economic news drove stocks higher. The Standard & Poor's 500 index closed above 1,400 for the first time since June 2008. The Dow Jones industrial average finished up for the seventh straight session at 13,252.76 — the highest close since the last day of 2007.

"More solid U.S. economic data (are) pointing to a gradually improving labor market, a bounce-back in manufacturing and no material ... inflation pressure," said Robert Kavcic, an economist at BMO Capital Markets.

Applications for unemployment aid dropped to a seasonally adjusted 351,000, the Labor Department said Thursday. That matched a four-year low reached last month. The four-week average, which smooths fluctuations, was unchanged at 355,750, also a four-year low.

Applications have declined 14 percent since October. When applications drop consistently below 375,000, it usually signals that hiring is strong enough to lower the unemployment rate.

The steady decline has coincided with the best three months of hiring in two years. From December through February, employers added an average of 245,000 jobs a month. The unemployment rate has fallen to 8.3 percent, the lowest in three years.

The figures "indicate that the labor market is steadily, if slowly, improving," said Steven Wood, an economist at Insight Economics. "Another month of 200,000-plus payroll employment in March is likely."

U.S. factories in the Northeast are likely to contribute to those March payroll gains, based on two surveys conducted by the Federal Reserve Bank of Philadelphia and the Federal Reserve Bank of New York.

The Fed banks said manufacturing in both regions is growing at a healthy pace in March. The Philadelphia Fed manufacturing index posted its highest reading since April 2011; the New York Fed index hit a 21-month high.

The two surveys also showed that factories in those areas are hiring more workers.

Factories have played a leading role reviving job growth. The Labor Department reported last week that manufacturing jobs grew by 31,000 in February. Over the past year, manufacturing added 227,000 jobs.

In this March 3, 2012 photo, George's restaurant employee David Lopez works on filling a customers order, in Waco, Texas. Fewer people sought unemployment benefits last week, adding to signs that the job market is strengthening. (AP Photo/Tony Gutierrez)

Rising auto sales and increasing demand for heavy equipment, such as mining and agricultural machinery, have kept factories busy.

Still, there were some cautionary signs in the Fed surveys. Both showed that new orders and shipments slowed, indicating that output may decelerate in coming months.

Higher gas prices could also force consumers to cut back on discretionary spending. That could weigh on growth and slow hiring.

On Thursday, the average price nationally for a gallon of gas rose to $3.82, according to AAA. That's 51 cents higher than a month ago.

Rising gas costs drove U.S. wholesale prices up last month, according to a separate Labor Department report. But excluding the big jump in gas, inflation was mostly tame.

In the past 12 months, wholesale prices have increased 3.3 percent. That's the smallest year-over-year gain since August 2010.

The report "suggests that inflationary pressures are still contained," Paul Ashworth, an economist at Capital Economics, said in a note to clients. "More evidence that the U.S. economy could finally be on the right track."

The Federal Reserve said this week that it expects oil and gas prices to temporarily boost inflation. But it predicted longer-term inflation should remain stable.

Fed policymakers sketched a slightly more upbeat view about the recovery after their one-day meeting on Tuesday, largely because of the surge in hiring. They said unemployment should continue to decline gradually as the economy expands. And they noted that consumer spending and business investment have picked up.

The central bank took no further steps to aid the recovery and repeated its plan to keep short-term interest rates near zero through 2014.

The job market has a long way to go to fully recover from the Great Recession. More than 12.8 million people remain unemployed. And the economy still has 5 million fewer jobs than before the downturn.

But the more robust job market has caused many so-called "discouraged workers" who had stopped looking for jobs to start looking again. The workforce surged by 476,000 in February and by nearly 750,000 in the past two months.

Orignal article on THE REPUBLIC . COM

ASA Supports Efforts to Promote Employers' Use of Criminal Background Checks

American Staffing Association (03/02/12) by Anne Duffy

Employers' ability to perform criminal background checks during the hiring process is essential to ensure safety in the workplace. Recent activity at the U.S. Equal Employment Opportunity Commission suggests that the manner in which employers access and use criminal background checks may be limited through forthcoming agency guidance.

Last July, the EEOC held a public meeting to discuss the topic of employers' use of criminal history checks, which could lead to the agency revising the existing guidance on the issue. The meeting was part of a series convened by EEOC to examine the implications of various hiring practices.

ASA has been participating in a coalition of business groups concerned that the EEOC's plans to revise its longstanding guidance will make it more difficult for employers to review the criminal histories of job applicants and volunteers. Earlier this month, the coalition sent a letter to federal lawmakers emphasizing the positive aspects of criminal background checks and the concerns over the potential guidance that may inhibit employers' use of these checks. Part of the concern is that the EEOC does not intend to publish its revisions for public comment prior to issuance, which would preclude meaningful consideration of employers' concerns.

EEOC first published written guidance on employers' use of criminal history checks in the 1980s. Although the agency has said for several years that it would issue new guidance to employers regarding the use of criminal background checks, it has not yet done so. It is anticipated that new guidance will be published in the near future.

EEOC has a longstanding position that an employer's policy of excluding an individual from employment because the individual has a criminal conviction record is unlawful under Title VII of the Civil Rights Act of 1964, unless the policy is justified by a business necessity.

Advocates for limiting employers' use of background checks contend that the use of background checks adversely affects members of minority populations that are statistically more likely to have criminal histories.

In addition to contacting lawmakers, the coalition is holding a conference in Washington, DC, this month to examine why private and public sector employers rely on criminal background checks. The goal is to create as much awareness on the issue as possible while employers wait for the EEOC guidance to be published.

5 Mistakes to Avoid for Job Interviews

In keeping with our dos and don'ts at a job interview theme, we found this on YouTube and thought it was worth the watch:

HOW TO IMPROVE YOUR CHANCES LANDING YOUR JOB

When you’re in between jobs, finding a new one can and should be your full-time job. It can also be a very nerve-wracking one, full of pitfalls and obstacles—some of which can be self-inflicted. These are some dos and don'ts to help you on your way.

The Cover Letter

When you have found a position for which you think you are suitable, it’s time to send a resume. Always send a cover letter with your resume. Never, and we mean NEVER send a resume without one. A cover letter can make or break your chances, so if you’re unsure, there are several good resources online. Follow the examples, but make sure each letter you send is original and unique for each employer.

• Make sure to address your letter to the hiring individual. You may need to call the company and explain to the receptionist that you are sending your resume for the open accounts receivable position and ask to whom you should address your cover letter.
  
• If responding to a blind box ad, try to avoid such gender-specific salutations as “Dear sirs” or “Dear Gentlemen.” In such cases, “Dear Hiring Manager” is a better option.
  
• Use simple language and uncomplicated sentences to answer the question, “why should I hire you?” NEVER make your letter longer than one page, and keep it well under a full page if possible.
  
• Always make certain to proof-read your letter and use spell-checker. Nothing says “’no’ pile” like a cover letter with typos, poor grammar, or misspellings (for example, “college” does NOT have an “a” in it).
  
• Be proactive and ask for an interview. Let the reader know you will be following up and when and then actually follow up.
  

The Resume

• Consider a bulleted style rather than paragraph form. Remember that the hiring manager will be looking at many resumes and paragraphs tend to be tedious. Hiring managers are looking for what stands out.
  
• It is okay to go beyond the old “one-page resume” rule if you have much experience, but don’t go beyond two pages (see above).
  
• Always be truthful on the resume. It is not difficult to verify claims.
  
• The objective statement is optional but can make or break your resume. If you can write a strong objective statement that highlights what you can do for the company (rather than “a position that utilizes my skills”) then write it concisely. “To utilize my management skills to increase productivity while maintaining safety and reducing expense.” Otherwise, no objective statement is better than a weak one.
  
• If you are writing the tried and true chronological resume, please list in reverse order (most recent to oldest). You don’t want the first thing the hiring manager to see is something you did ten years ago!
  
• Avoid the word “work” and personal pronouns (i.e., “I worked on the high speed line.”). “Work” is a weak verb and everyone “works.”
  
• Quantify! Quantify! Quantify! “Increased sales by 30%” “Reduced safety incidents by 40%”
  

The Interview

• Do your homework before arriving. Find the company’s website and learn as much about the company as possible.
  
• Always arrive early and NEVER late.
  
• Always bring a copy of your resume and be prepared to defend everything in it. If your resume says you reduced your department’s spending by 15%, be prepared to explain how. You will be asked.
  
• Always ask questions. It shows interest, so prepare questions ahead of time. Never ask about money, benefits, paid time off, holidays or the like at the first interview. This is more appropriate at the job offer stage.
  
• Never never never answer your cell phone during the interview. This is a cardinal sin and will guarantee you won’t get the job! Try to remember to turn it off prior to arrival, but if it does ring, apologize while you turn it off without looking to see who is calling.
  
• Dress appropriately. If a business position, wear a suit and tie, or ladies, wear a pants suit or skirt suit. If a labor position, a clean shirt with a collar and khakis or dress pants.
  
• Always, always, and we mean ALWAYS send a "Thank You" note. A "Thank You" email is sometimes acceptable, but your best bet, and the best way to make yourself noticed, is a handwritten and "snail mail" sent "Thank You" note.
  

Remember, these steps are your only opportunity to sell yourself to an employer. Follow these rules and you will vastly improve your chances

TED TAYLOR, SPHR, CSP—Managing Partner,Quantum Strategic Personnel Soluions