Fairness for Older Workers (U.S)

Fifteen months ago, the Supreme Court’s conservative majority mowed past statutory language, Congressional intent and decades of precedent to make it much harder for older workers to prove age discrimination.

Under the 5-to-4 ruling, it is no longer sufficient for employees claiming illegal age bias to show that age was a motivating factor in their demotion or layoff. They must show that age was the decisive factor, an unfairly tough standard of proof and a major watering down of older workers’ civil rights.

Fortunately, the court’s mangling of the Age Discrimination in Employment Act of 1967 need not stand. Legislation introduced last fall by Senator Tom Harkin of Iowa and Representative George Miller of California, both Democrats, would reverse the ruling, once again making the standard for proving age discrimination equivalent to the standard for proving discrimination on the basis of race, sex, religion and national origin.

Once a worker showed age discrimination was a factor in his or her treatment, an employer could still win by showing it would have made the same employment decision, regardless of the worker’s age.

So far, the measure has attracted no Republican co-sponsors. But standing in the way of fair treatment of older workers is bad policy and bad politics, especially at a moment of soaring unemployment and rising age discrimination claims. This is one of the few areas where progress should be possible even in the charged lead-up to the midterm elections.

In fact, talks are under way among business and civil rights groups, advocates for older people, including AARP, and lawmakers of both parties that could potentially result in a deal on good remedial legislation.

Meantime, the problem is spreading. Some lower federal courts have read the Supreme Court’s ruling to raise the bar for employment claims under other statutes, including the Americans With Disabilities Act and the Family and Medical Leave Act.

Prompt Congressional action is needed to contain the damage.

This article was produced by the New York Times

Women to retire with less money in pension timebomb

PENSIONS are a mystery to large numbers of workers, with women particularly confused by retirement planning, new research reveals.

Even among those women who have a pension plan, large numbers admit they have no idea how much they are contributing.

And half of the women surveyed have no idea how the tax reliefs on pension investment works, the research carried out for Friends First shows.

The findings prompted financial experts to conclude that women were now facing a pension timebomb.

One in four of all those surveyed had no idea what type, if any, pension they have. But this rises to one in three for women.

The survey reveals women are less prepared for their retirement than their male colleagues

Four out of 10 women admit they do not have a pension plan compared with three out of 10 men. Men, on the other hand, contribute more to their pensions and have better quality retirement funds. They also have a better understanding of how pensions work.

Investing in a pension is regarded as highly tax efficient. For someone on the 41pc income tax rate they can end up with €100 in pension investment for just €50 because of the way the tax reliefs work.

But four out of 10 people do not understand how the tax benefits for investing in a pension work. When it comes to women, half of them do not understand the tax reliefs for investing in a pension.

"This research indicates that there is a real inequality between the sexes when it comes to pension provision," Friends First's head of pensions Simon Hoffman said.

"Our survey reveals that women are less well-informed and therefore at a greater risk of not providing adequately for their retirement. This inequality is a cause for concern and points to a need for greater education among female workers."

Complexity

Mr Hoffman said it was clear that perceived complexity remained a significant barrier to increasing private pension provision.

The recently published National Pensions Framework Strategy made a number of proposals to encourage more people to take out private pensions and to encourage people to put more into their retirement fund.

However, Mr Hoffman said there had been too many changes in the past few years, many of them making the situation worse.

"By tinkering around the edges with our pension system over the last number of decades we have created a system which alienates those who need pensions most," he added.

- Charlie Weston

Irish Independent

Government publishes details of Equality Act coming into force on 1 October 2010

Alcoholics, smokers, voyeurs and exhibitionists will not be protected by disability provisions in the Equality Act, elements of which come into force on 1 October 2010.

The Government published the Equality Act 2010 (Disability) Regulations 2010 on 31 August, which include provisions that support the definition of disability in the Equality Act 2010.

Under the Equality Act 2010, which replaces all existing discrimination laws including the Disability Discrimination Act 1995, employers and service providers are not allowed to discriminate on the grounds of individuals' physical or mental disabilities.

However, there are certain conditions that have been specifically excluded from constituting a disability, such as: addictions to alcohol, nicotine, or any other substance; some mental health conditions such as a compulsion towards exhibitionism or voyeurism; and hay fever, unless it aggravates the effect of another condition.

Addictions that were originally the result of the administration of medically prescribed drugs or other medical treatment are included under the act. More detail is provided here.

Those that have been certified blind, sight-impaired or partially sighted by a consultant ophthalmologist will be deemed to have a disability under the regulations.

Stephen Simpson, senior employment law editor at XpertHR, says the new legislation carried across some uncontroversial exclusions to the new Equality Act.

"What's more interesting is what has been left out of the Regulations," he told Personnel Today. "An individual no longer has to show that, where an impairment adversely affects his or her ability to carry out a normal day-to-day activity, that activity involves one of a specified list of capacities, such as mobility, speech, or the ability to understand.

"It will be left to tribunals to make a common-sense decision as to whether or not a particular impairment has a substantial effect on day-to-day activities. This should make it easier for individuals to show that they are disabled under the Equality Act 2010."
Daniel Barnett, employment law barrister at Temple Garden Chambers, said: "This law makes it clear that employers are not required to make special adjustments to welcome voyeurs or exhibitionists into the workplace. Nor are employers required to make allowances for any mental disability if an employers wants to dismiss someone who turns out to be a voyeur or flasher."
In addition, the Government is planning to replace the guidance on matters to be taken into account in determining whether or not an employee is disabled under the DDA with updated guidance to take account of the Equality Act 2010. It is consulting on draft guidance until 31 October 2010.

The Equality Act 2010 (Sex Equality Rule) (Exceptions) Regulations 2010 and Equality Act (Age Exceptions for Pension Schemes) Order 2010, which come into force on 1 October 2010, have also been published. These regulations set out exceptions to the rules on non-discrimination in relation to sex and age for occupational health schemes.

Employer seeking ‘younger’ replacement guilty of age discrimination

In a recent decision of the Employment Appeal Tribunal (EAT), an employer who had included the word ‘younger’ in a person specification drafted for the purpose of replacing an employee, was found to have committed an act of age discrimination and had unfairly dismissed that employee.



The claimant in this case, Mr Beck, was employed as head of marketing by the Canadian Imperial Bank of Commerce. The Bank was not happy with his performance and dismissed him for redundancy, at the age of 42. An employment agency was instructed to recruit a replacement, and the Bank’s person specification for this purpose stated that it was “seeking younger, entrepreneurial profile”.



Mr Beck’s claim for unfair dismissal was upheld. The tribunal was satisfied that the Bank did not have a potentially fair reason for his dismissal. The tribunal also upheld Mr Beck’s claim for age discrimination.



The Bank’s appeal to the EAT has now been dismissed. The tribunal had noted that the word “younger” had been included in several drafts of the person specification, against the express advice of the Bank’s head of HR. The EAT agreed that the use of this word constituted the “clearest possible evidence of potential age discrimination”. The Bank attempted to argue that “younger” did not refer to age but referred to a less “senior” individual who would be less expensive, but the EAT was not convinced by this argument.



Tina Maxey, an employment solicitor at Steeles Law commented: “This case provides a good illustration of the approach taken by employment tribunals to the use of overtly ‘ageist’ language in recruitment materials.



"The Bank attempted to disprove the allegation of age discrimination by pointing out that one of the preferred candidates was 50 years old, and the person eventually appointed was 38 years old – just four years younger than the claimant (who had himself been appointed at the age of 41). Both the tribunal and the EAT gave this argument short shrift in light of the wording used in the person specification.”



She added: “The case also demonstrates that employers should take the advice of their own HR experts!”

British workers plan to defer retirement

One in ten workers have no plans to retire, while 42% of non-retired workers have no idea at what age they will be able to give up work, according to research from Baring Asset Management.

In comparison, when the firm conducted a similar survey in 2008, before the downturn, the majority of respondents were confident that they would retire and just one per cent did not know what age they would stop working at.

Marino Valensise, chief investment officer at Barings, said: "Our research shows that, for a large number of people, the ability to retire is now uncertain. A combination of increased longevity, a rise in the cost of living, and people not saving enough means that more people are being forced to work beyond the age of 65. They simply can't afford to stop working."

The study also found that 100,000 people who have yet to retire don't plan to stop working until they are at least 76 years old, while 2.3 million Brits will work until they are 65 or older.

Recent research by HSBC found that almost a third of over-50s and 41% of 60 to 70-year-olds are aiming to change career or shift to a new role.

The United Nations Principles of Older Persons

The United Nations Principles of Older Persons

The United Nations Principles of Older Persons was adopted by the UN General Assembly (resolution 46/91) on 16 December 1991. Governments were encouraged to incorporate them into their national programmes whenever possible. Some highlights of the Principles are:

Independence

Older persons should:

* have access to adequate food, water, shelter, clothing and health care through the provision of income, family and community support and self-help;

* have the opportunity to work or to have access to other income-generating opportunities;

* be able to participate in determining when and at what pace withdrawal from the labour force takes place;

* have access to appropriate educational and training programmes;

* be able to live in environments that are safe and adaptable to personal preferences and changing capacities;

* be able to reside at home for as long as possible.

Participation

Older persons should:

* remain integrated in society, participate actively in the formulation and implementation of policies that directly affect their well-being, and share their knowledge and skills with younger generations;

* be able to seek and develop opportunities for service to the community and to serve as

volunteers in positions appropriate to their interests and capabilities;

* be able to form movements or associations of older persons.

Care

Older persons should:

* benefit from daily and community care and protection in accordance with each society's

system of cultural values;

* have access to health care to help them to maintain or regain the optimum level of physical, mental and emotional well-being and to prevent or delay the onset of illness;

* have access to social and legal services to enhance their autonomy, protection and care;

* be able to utilize appropriate levels of institutional care providing protection, rehabilitation and social and mental stimulation in a humane and secure environment;

* be able to enjoy human rights and fundamental freedoms when residing in any shelter, care or treatment facility, including full respect for their dignity, beliefs, needs and privacy and for the right to make decisions about their health care and the quality of their lives.

Self-fulfilment

Older persons should:

* be able to pursue opportunities for the full development of their potential;

* have access to the educational, cultural, spiritual and recreational resources of society.

Dignity

Older persons should:

* be able to live in dignity and security and be free of exploitation and physical or mental abuse;

* be treated fairly regardless of age, gender, racial or ethnic background, disability or other status, and be valued independently of their economic contribution.

Wales commissioner calls for older people's rights

Older people deserve a specific set of rights to ensure they are treated with dignity and respect, according to the older people's commissioner for Wales.

Ruth Marks said she heard of many instances where people were discriminated against because of age.

Examples included travel insurance premiums rising for those over 70.

An ICM poll for the commissioner suggested almost eight out of 10 people strongly support the introduction of rights for older people.
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Ms Marks said she wanted the government to ensure that older people are better protected from age discrimination, with a formal set of rights being brought in to help individuals and organisations identify how it can be identified and tackled.

She said that the survey of 1,500 people of all ages, commissioned by the commissioner, shows there was "overwhelming support" for the idea.

"Age discrimination often goes unrecognised in our society because it has, in many instances, become normal to discriminate unfairly against older people," she added.
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“Start Quote

We're finding that there are specific areas, particularly in relation to financial services and in relation to health and social care where older people seem to be badly done by”

End Quote Ruth Marks Older people's commissioner for Wales

Alun Thomas, head of policy for the Older People's Commissioner, said around 2,000 people had contacted the commissioner's information line with concerns about discrimination.

"We're finding that there are specific areas, particularly in relation to financial services and in relation to health and social care where older people seem to be badly done by," he said.

"One example relates to the fact that insurance premiums suddenly take a certain hike once an individual reaches the age of 70.

"Another example would be where on health screening programmes, people are denied the right to health screening simply because of age and no other factor."

He said some rights were currently not being used effectively while others still had to be implemented.

He said he hoped the age equality aspects of the Equality Act 2010 would be brought in at the earliest opportunity.

The poll for the commissioner found 79% would strongly support the introduction of a set of rights. ICM interviewed a sample of 1,000 adults in Wales aged 65 and over by telephone from 18 - 25 March. A further 500 adults aged 18-64 were interviewed between 14 - 19 April 2010.


For more on this story: BBC News