Article 43

 

Sunday, April 03, 2005

Supreme Court: Age bias need not be deliberate

The Supreme Court made it easier Wednesday for any worker over 40 to allege age discrimination, ruling that employers can be held liable even if they never intended any harm.

About 75 million people—roughly half the nation’s work force—are covered by the decision. However, the ruling makes it clear that older workers will have a high threshold to prove their claims.

Justice John Paul Stevens wrote that in some cases employers are within their rights to treat workers differently because of age.

“Age ... not uncommonly has relevance to an individual’s capacity to engage in certain types of employment,” wrote Stevens, who at 84 is the court’s oldest member.

The ruling sides with older police officers in Jackson, Mississippi, in saying they do not have to prove that the city deliberately tried to discriminate against them, just that the policies disproportionately harmed them. Nevertheless, the high court dismissed the suit, saying officers did not demonstrate that.

The ruling means that older workers now have less of a burden to raise their claim in court when suing under federal law, although ultimately it may still be hard for them to win.

The decision was unanimous in dismissing the police officers’ suit, but 5-3 in holding that such suits are permitted under age-discrimination laws. Chief Justice William H. Rehnquist did not participate in the decision, which was heard in November when he was being treated for thyroid cancer.

The Supreme Court already has said the so-called disparate impact claims are allowed under Title VII of the 1964 Civil Rights Act, which bans discrimination based on sex, religion or race. On Wednesday, justices said it should be no different for age discrimination, although it ruled the scope of liability is narrower.

At issue was workplace polices that appear neutral but actually disproportionately hurt older workers. Advocates for the aging say few employers would ever be up front about intentionally favoring younger workers, making age bias claims hard to win absent the rare “smoking gun.

But employers say allowing disparate impact claims under the Age Discrimination in Employment Act would hinder their ability to make necessary decisions based on age-neutral factors, such as training or performance, even if the impact happens to be greater on older workers.

The ruling in some ways strikes a compromise between the two. On the one hand, it allows older workers to make a disparate impact claim under the ADEA regardless of intent; but at the same time, it permits an employer to cite “reasonable” factors, such as cost-cutting, to justify a practice that penalizes older workers so it prevails at trial.

In a concurring opinion, Justice Sandra Day O’Connor agreed that the police officers’ suit should be dismissed but argued that ADEA bars disparate impact claims. She said Congress never intended such lawsuits because employers should have flexibility to make business decisions that might unintentionally hurt older workers.

Because older workers tend to be longtime employees with higher pay and more benefits, a business might inadvertently violate the law when it cuts expenses, even if no ill intent was involved, O’Connor noted. Her concurrence was joined by Justices Anthony Kennedy and Clarence Thomas.

“There often is a correlation between an individual’s age and her ability to perform her job,” O’Connor wrote. “That is to be expected, for physical ability generally declines with age, and in some cases, so does mental capacity.”

Currently, there are more than 70 million workers who are age 40 or older, and the number is growing. The federal government predicts that by 2010, more than half of all workers will be 40 or older.

Despite the aging trend, lawyers say employers often have economic incentives to weed out older workers. That’s because longtime employees may have higher medical bills and have locked in more expensive salary and benefit agreements.

In the Mississippi case, 30 officers and dispatchers sued over a pay performance plan they said gave substantially larger pay raises to employees with five or fewer years of tenure; as a result, that had an unfavorable impact on employees 40 and over.

The lower courts threw out the suit, reasoning that disparate impact claims were barred.

In its ruling Wednesday, the Supreme Court said that while police officers can get into court to show unfavorable impact, they failed to do so here. It said the city’s explanation that it was trying to make salaries for junior officers more competitive with similar positions was “reasonable.”

“The city’s decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a ‘reasonable factor other than age’ that responded to the city’s legitimate goal of retaining police officers,” Stevens wrote.

Federal appeals courts previously were sharply divided over whether the 1967 age bias law permits impact suits. Legal experts have said workers making age bias claims generally win their lawsuits less than one-third of the time.

The case is Smith v. City of Jackson, 03-1160.

SOURCE

Credit: pension_watchdog

Posted by Elvis on 04/03/05 •
Section General Reading • Section Pension Ripoff
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Saturday, March 26, 2005

A Different Way To Win

Don’t throw away your AT&T stock proxy information this year.  I know what you’re thinking—We won’t win against the board’s recommendation.  Of course we won’t, but no one expects us to get more than 5% of the vote.  When the cash balance question came up, we got closer to 10%, and we got their attention!  If we do that again it will be viewed as a significant moral victory, and will rattle the cages of the executive committee and the board.

Check out proposal # 8 on this year’s AT&T proxy ballot.  It’s an attempt at forcing executives to use the same retirement benefits as the rest of AT&T’s employees.

Institutional investors (The big players who have millions of shares) rarely vote against recommendations from boards of directors, and they control a huge majority of the vote.  That’s why this proposal will go down in flames, but any significant percentage of votes against the board’s recommendation will help upset the applecart.

Besides, it will cost you nothing, and give you a warm feeling of acomplishment by taking action!

Credit: pension_watchdog

Posted by Elvis on 03/26/05 •
Section Pension Ripoff
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Is This A New Dark Age

By Mark Morford
SFGate
March 25, 2005

Then come those times when you read about a 16-year-old girl SLASHING THE THROAT of a 75-year-old woman for no apparent reason, a woman who was merely walking wh her usband near a Berkeley public garden and it’s right next to the one about the 16-year-old kid smiling and waving and donning a bulletproof vest before SHOOTING NINE PEOPLE AND HIMSELF TO DEATH in a remote, poverty-stricken region of Minnesota and you can feel the numbness like a wave.

And alongside that is the morbid and insipid case of POOR TERRY SCHIAVO and the equally insipid Bush evangelicals who trumpet the backward morality of maintaining her vegetative brain-dead state and the sad, tormented parents who can’t face reality and the insidious GOP that has zero shame in using her decrepit body as a political football and that kowtows to its pseudo-religious contingency by making humiliating and rather illegal congressional maneuvers to try and keep a feeding tube in place and you just go, oh my God just stop already.

And it all seems to line up with one of those weird phases when everyone in your own life seems to be getting hit by something tragic or sad or somehow ridiculously painful—a sister with a neck trauma, a best friend going through major depression, a parent struck by illness, certainly almost everyone on the progressive Left feeling sucker-punched and morally eviscerated—friends and family and loved ones all seeming to suffer in ways you don’t want to imagine and it’s all against a backdrop of MORE WAR DEAD and more violence and the most bleak and Bush-ravaged era in recent American history and you say to yourself, what the hell is going on?

Because something in you knows. Something in you senses there is more at play right now in the world than mere depressing coincidence, that all the war and disease and brutality has more surrounding it than mere chance or fluke. Do you think? Do you feel it?

Proof? All you have to do is spend five minutes with any true healer or energy worker or divinely connected spiritual teacher in the world right now and they all say the same thing: This is not a good time. This is not the lightest, not the brightest, not the best period to be a human being. In fact, it’s one of the darkest. Fiercest. Meanest.

It is, in other words, a low period in human, and especially American, history. And it’s only getting lower.

We are in dark times. Five years of economic bloodshed and three of brutal warmongering and the worst environmental president in American history and you simply cannot deny that as the ruthless American agenda goes, so goes the populace, so goes the collective attitude, the shared vibration, the health of the planet and the feeling that this particular karmic sinkhole has no known bottom.

In other words, it is all connected. It is all of a piece. There is a direct correlation between the violent and heartless tone and attitude of our country and the mental and spiritual health of its people and by way of comparison just look at the Clinton era, which brought eight years of unprecedented prosperity and peace and a nearly balanced budget and high economic flush.

It’s true. There was, we forget, a decided lack of sexual anxiety and uptight moral rigidity in the nation, minimal pseudo-religious puling from the uptight Right and much moderate lawmaking and I don’t care a whit for what you say about the man’s personal moral compass—under Clinton, America had deeply supportive allies, intelligent foreign policy, more genuine concern for the planet and the health of our forests and oceans and air, and we had a president who was incredibly articulate and deeply intelligent and greatly beloved the world over and the nation enjoyed one of its most prosperous and nondivisive and peaceful periods in its history. 

And now, the exact opposite. Everywhere you look, the culture is fractured and divisive and mean. Everywhere you look it’s war and pollution and more toxins, red versus blue, good versus evil, more garbage and less concern where to shove it, fewer restrictions on industrial polluters and fewer controls on corporate abuse and an administration that has so shamelessly leveraged the worst tragedy in American history to further its brutal and hawkish right-wing agenda it would embarrass Mussolini.

The sad fact is, there are a great many among us who believe we have entered into a new Dark Age, that it will be a long and brutal slog indeed and BushCo is merely the precursor, the devil’s handmaiden, and that we have a long way to go into the bleak and the bloody and the environmentally devastating before the pendulum begins its slow swing back toward the light.

Just look around. No one anywhere, not priests, not nuns, not healers or mystics, not Christians, not pagans, not Repubs or Demos or Libertarians, no one anywhere in this country is saying, hey, doesn’t it feel like we’re entering into a new era of health and healing and positivism and spiritual rebirth? Aren’t our schools just teeming anew with eager students who seem to be getting smarter and more articulate? Isn’t the air getting cleaner and aren’t we proud of our government for protecting the health of future generations by pushing for more natural foods and signing on to the Kyoto Treaty and advocating antitoxin regulations and by protecting our forests and improving school textbooks and revolutionizing the hideous national health care system?

Doesn’t that tone of enthusiasm and hope sound just completely silly, wrong, out of place, like so much Prozac-grade bulls--? Damn right it does.

There’s a reason for that. We are not headed for light. Not yet, anyway. The coming years are not going to be about friendship and repaired foreign relations and a sense of our shared humanity, about equality and sexual freedom and a renewed sense of human rights. To believe this is to believe in fairy tales almost as insidious and hopeless as evangelical Christians who are right now stuffing themselves with Cheez-Its and pink wine and praying for Armageddon.

So, you do what you have to do. You focus inward and work on the self and radiate as much love and open-hearted support as possible, grit your karmic teeth and hope you survive this dark house of mirrors without cancers or tumors or bloodshed or getting stabbed in the garden by a vicious teenage girl as you ignore the fact that in all of North America, from Mexico to Canada’s Prince Edward Island, there exists only one state, province or territory that does not yet have a McDonald’s. (Nunavut, in northern Canada, inhabited by the Inuits at a density of one person per 3,300 square miles). Small solace, indeed.

So you pray your ass off to a forgiving and ambisexual and dogma-free pantheistic feminine god and you digest the increasingly nasty headlines as best you can, ever seeking that pinpoint, that tiny speck of light way, way down, at the end of this rank and desperate tunnel. Do you see it? Is it even there? It’s one of those things you just have to believe.

Mark’s column archives are HERE
The RSS feed for Mark’s column is HERE

Mark Morford’s Notes & Errata column appears every Wednesday and Friday on SF Gate, unless it appears on Tuesdays and Thursdays, which it never does. Subscribe to this column at sfgate.com/newsletters.

SOURCE

Posted by Elvis on 03/26/05 •
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Sunday, March 20, 2005

PBS Special on Retiree Health Care Coverage

If you’re retired and your former company is paying all or part of your health benefits-coverage you think you’ll have for life-then you might want to dig out your old paperwork, put on your glasses (while you can still afford them) and read the fine print.  Why?  It may depend on what your definition of lifetime is.  More and more retirees are finding themselves in court to save the health benefits they thought they were promised. And, judging by the decisions returned in a spate of cases, fine print trumps all.

It’s a story that began in the 1989 when health costs soared and corporations moved quickly to protect their bottom lines by slashing benefits and shifting costs to retirees.  Most companies can cut retiree benefits at will.  For others, fine print in contracts makes it a little trickier, and this is where the latest plot twist is playing out in courts around the nation.

The dictionary definition of lifetime is: “The period of time during which an individual is alive.” Simple enough-if your company promised you benefits for life, you just need to be alive to receive them.  But it’s a difference of opinion over the legal definition that is stirring up trouble for some former union workers.  In recent cases, corporate lawyers are arguing that “lifetime” refers to the life of the contract, not the lifetime of the retiree.  When those contracts expire, they argue, so does the promise of the benefits.

In light of that argument, Basil Chapman, a 60-year-old former worker at ACF Industries, a railcar manufacturer, calls what ACF did to him “a set up.” Chapman, a former union local president who headed a Steelworkers bargaining committee, says his union negotiated lower starting pay for new workers in exchange for lower monthly medical payments for retirees. When the company sued for the right to change the coverage, Chapman was stunned.  To these retirees the agreement with their employer was more than just a promise, it was a contract. “This story is part of a wholesale shift in risk from companies to families,” says David Brancaccio, host of the PBS newsmagazine NOW, which is featuring Chapman in a report on April 1.  “Healthcare costs are rising, but increasingly companies are insulating themselves from these costs with individuals left to shoulder the burden.” With no place for promises on corporate balance sheets, companies are turning to the fine print with their eye on the bottom line. California-based GenCorp is relying on a sentence in an enrollment form their employees signed a decade ago to increase monthly premiums.

GenCorp, formerly the General Tire & Rubber Company, a tire manufacturer you may remember from its slogan: “Sooner or later you’ll own General,” has workers worried that sooner or later they’ll have to drop out of their coverage because it’s too expensive. And while GenCorp is riding all over its retirees, they are not alone. A Kaiser/Hewitt Survey on Retiree Health Benefits shows that a vast majority of large employers say they are “very or somewhat likely” to raise premiums and/or cost-sharing requirements in 2005, including 85% of companies surveyed predicting an increase in contributions to premiums by retirees. More ominously, 8% of employers surveyed eliminated subsidized benefits for future retirees in 2004, and 11% said they are likely to follow suit in 2005.

While most employers haven’t turned to the courts, the trend is on the rise and some are using tactics that are particularly aggressive.  Just ask Basil Chapman, who was sued by ACF after he threatened to take the company to court when he learned he’d be charged for benefits that previously were free.  Chapman’s attorneys say the preemptive move allowed company lawyers to shop for a court where they think they can win a favorable opinion. As these cases make their way through the courts, there’s little risk for the companies, which if they lose, will simply have to resume paying the benefits.  In the meantime, Chapman says, retirees who can’t wait will drop out, and for others it may just end up being a lifetime. “It’s disturbing and scary for older people,” he says.  “They just die.”

For more on this important story, tune into the PBS weekly newsmagazine NOW, airing Friday, April 1, 2005 at 9 P.M. on PBS (check local listings).

Credit: pension_watchdog

Posted by Elvis on 03/20/05 •
Section Pension Ripoff
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Rising Of The Telecom Underclass Part 2

An AT&T manager told me the company calls laying off it’s highly skilled American technicians and technicianettes - then hiring them back as low paid temps via staffing agencies - an evolution to a FLEXIBLE WORKFORCE.

Staffing agencies - more often called headhunters or recruiters - match people with jobs - not a bad deal when they find, then place qualified candidates in positions, and if a candidate performs well during a contract, is eventually hired by the company permanently with a benefit package and opportunity for advancement.  In this relationship everyone wins - the company gets a good worker, the worker gets a good job, and the staffing agency gets paid for bringing the two together.

The telecom staffing agencies’ business may be evolving - turning telecom job seekers into low paid permanent temps - revolving from one assignment to another - treated like slaves, and used as doormats - rather than placed in the traditional temp-to-perm positions. In this situation the worker doesn’t benefit.

I don’t see unions - at least the CWA - EFFECTIVELY ORGANIZING displaced telecom techies like myself. What’s more alarming is their friends at TUCKER TECHNOLOGIES offered me a (maybe long-term) temporary position doing one of my former jobs at AT&T for HALF the pay with no benefits.

Partnering of telecom companies, staffing agencies, and unions - may result in widespread exploitation of telecom workers - ESPECIALLY if unions are evolving into EXPRESSIONS of corporations - approving their flexible workforce policies, and allowing inadequate compensation for their members. This jeopardizes the spirit of organized labor movements everywhere - while highly skilled telecom workers evolve into disposable day laborers - earning low wages, devoid of benefits, opportunity, career growth, job security, profit sharing, and a decent standard of living.

Rising of the Telecom Underclass
PART 1 · PART 2 · PART 3 · PART 4 · PART 5 · PART 6

Posted by Elvis on 03/20/05 •
Section Telecom Underclass
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Constitutional governments and aristocracies are commonly overthrown owing to some deviation from justice …...the rich, if the constitution gives them power, are apt to be insolent and avaricious.… In all well-attempered governments there is nothing which should be more jealously maintained than the spirit of obedience to law, more especially in small matters; for transgression creeps in unperceived and at last ruins the state, just as the constant recurrence of small expenses in time eats up a fortune. - Aristotle

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