Recent Disturbing Legal Trends for Women and the Elderly

In one day, I read two headlines that indicate a disturbing trend against equality and justice in the workplace.

First, about women: according to a new survey released by Major, Lindsey & Africa, the average compensation for male law partners is about 44 percent higher than that of female partners. FORTY-FOUR PERCENT! Sadly, this is an improvement: in the 2014 survey, male partners made 47 percent more.

Next, about seniors: in Villarreal v. R.J. Reynolds Tobacco Company, the U.S. Court of Appeals for the 11th Circuit recently held that job applicants who are discriminated against on the basis of age cannot seek full relief under the Age Discrimination in Employment Act (ADEA).

At 49 years of age, Richard Villarreal applied for a position as a territory manager at R.J. Reynolds. A contractor screened out Villarreal’s application based on the following guidelines provided by R.J. Reynolds: find someone “2-3 years out of college” who “adjusts easily to changes” and “stay away from” applicants “in sales for 8-10 years.”

The ADEA expressly prohibits discrimination based on age in both hiring and firing employees. There’s a provision, however, that prohibits the limiting of employees “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” (Section 4(a)(2)) The provision does not specifically protect job applicants; it only protects employees. So for an individual who is discriminated against on the basis of age in the application process, like Villarreal, he does not have a “status as an employee,” per the 11th Circuit’s interpretation of the provision, and thus does not enjoy protection under the provision.

According to Harvard University constitutional law professor Noah Feldman, the 11th Circuit’s interpretation of the provision is “bad textualism and an embarrassment to Antonin Scalia’s legacy.” Feldman concludes:

“A judge’s job isn’t to be some sort of computer program applying the law mechanically, like a judicial robot. The judge is supposed to interpret the law, which means translating Congress’s necessarily abstract words into a concrete decision. That decision needs to accord with common sense and work in the world.”

With these recent legal headlines in mind, woe to the elderly woman who applies for a job as a law firm partner!

About the Author – Dara Lovitz

Dara Lovitz is the author of Muzzling A Movement: The Effects of Anti-Terrorism Law, Money, and Politics on Animal Activism (2010) and Catching Falling Cradles: A Gentle Approach to Classic Rhymes (2014), Adjunct Professor of Animal Law at Temple University Beasley School of Law, and CLE Project Coordinator for American Law Institute CLE. She is a founding member of the non-profit organization Peace Advocacy Network.

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