Trump judges blow big hole in age discrimination law
Discrimination against older workers may be common. Society for Human Resource Management

CHICAGO — Thanks to a Trump-appointed judge it’s now OK to discriminate against workers on the basis of age when they are applying for a job. According to the judge it’s only workers on the job who are protected by law against age discrimination.

A top union lawyer lays the blame for the ruling at the feet of appellate judges nominated by GOP President Donald Trump – and warns the same resultant curtailing of workers’ rights by right-wing Trump-named appeals judges could occur elsewhere.

That’s important because federal appellate courts, like the one in Chicago, decide most labor law cases. Except for the D.C. Circuit Court of Appeals, whose rulings reach nationwide, the appellate rulings legally cover only the states those circuits include. But in practical terms, they’re cited by both lawyers and judges in other courts around the country.

Writing for the 7th Circuit majority, Appellate Judge Michael Scudder, one of four recent Trump nominees the Senate confirmed for the Chicago-based court, ruled the (Age Discrimination Act) ADEA’s “disparate impact” section does not apply to job applicants, though the rest of the law does.

The disparate impact section, in practical terms, says that if someone sues an employer for age discrimination and can prove the employer’s standards have a greater negative “disparate impact” on older workers, the employer is guilty of age discrimination.

But the 7th Circuit majority ruled ADEA’s “disparate impact” section covers only workers already on the job for that employer, not people seeking jobs. If Congress wanted to cover applicants, too, it would have said so, the judges declared.

Deliberate and intentional discrimination by age alone is another matter, Scudder’s opinion for the court majority added. There, the ADEA finds a firm guilty regardless of whether the job seeker is already employed there or not, because Congress explicitly said so.

Scudder’s ruling upholds a decision by federal District Judge Sharon Johnson Coleman. She sided with CareFusion Corp., against Dale Kleber, a 58-year-old lawyer who sought a job in its legal department. CareFusion specified applicants had to have “three to seven years of relevant legal experience,” but no more.

Kleber didn’t get the job; a 29-year-old did. Kleber sued under the ADEA, alleging CareFusion’s experience standard showed “disparate impact against older applicants.”

“The ADEA does not authorize job applicants like Kleber to bring a disparate impact claim against a prospective employer,” Scudder wrote for the court majority on Jan. 23. “Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants.”

Two judges dissented, but that wasn’t the point for Andrew Strom, associate general counsel for Service Employees Local 32BJ, writing in Harvard Law School’s On Labor blog. This is what happens, he said, when Trump stacks appeals courts with ideologues.

“For right-wing judges, congressional purpose is largely irrelevant,” Strom wrote. “Instead, far-right judges are increasingly becoming ‘textualists,’ focusing on grammatical nuances rather than legislative history to interpret disputed statutory provisions.”

“Even if you thought that in the abstract this (textualism) is the best way for judges to interpret statutes, one problem with this approach is that these judges have changed the rules after Congress wrote” the laws, he noted.

When Congress originally enacted the ADEA in 1967, its drafters “had no reason to expect judges would be acting as grammarians.” That’s because, then, the Supreme Court and lower courts interpreted anti-discrimination laws, such as civil rights laws and the ADEA, as broadly as possible, he added.

Now, Trump-named “textualist” judges provided enough votes to defeat Kleber and blow the hole in the ADEA, Strom said. And the hole would primarily hurt older white male workers – scads of whom voted for Trump in 2016, believing he would help them get jobs, Strom added.

“I don’t think it’s a coincidence the textual analysis used by the majority in Kleber happens to line up with Republican policy preferences,” he said.

“Decisions like this one don’t get a lot of attention from the media. But this is what happens when we elect a Republican president and Republican senators – rights we thought we had won get chipped away.”

Trump-named judges, including Scudder, formed the heart of the appeals court majority, he pointed out. The written dissents came from judges Frank Easterbrook, named by GOP President Ronald Reagan, and Ilana Rovner, named by GOPer George H.W. Bush.

“While Republican-appointed judges have long been more conservative than Democratic appointees, so far the Trump appointees are more predictably ideological than their predecessors,” Strom noted.

“The challenge for the Democrats in 2020 is how to explain the cumulative effect of these kinds of relatively low-profile decisions in a way that gets through to the voters who were taken in by Trump’s promise that he would help them,” Strom concluded.


CONTRIBUTOR

Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.

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