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Nov 162012

Six Pennsylvania judges have found themselves practicing law from the other side of the bench as they challenge retirement age mandates.

Earlier this week, Philadelphia Common Pleas court judges John W. Herron, Benjamin Lerner, Sandra Mazer Moss and Joseph D. O’Keefe along with Westmoreland County Judge John Driscoll and Northampton County Judge Leonard N. Zito filed suit claiming their Constitutional rights of equal protection and due process are being violated by a provision of the Pennsylvania Constitution mandating all Pennsylvania justices and judges retire at the end of the calendar year in which they turn 70. You can read the Complaint here.

“Some of our finest and most experienced legal minds are being denied unfairly the opportunity to serve the people of the Commonwealth of Pennsylvania, solely because of their age,” says Counsel Robert C. Heim. “There is no good reason to think that judges who are 70 are not equally competent as judges who are younger.”

The lawsuit claims that the judges have been singled out based on age rather than ability and are treated differently than other state employees who are not subject to forced retirement; the state Constitution separately address the removal of incapacitated judges therefore the mandatory retirement provision forces capable judges to retire; the electorate is being deprived of service by judges based on age rather than ability to perform their duties; and that while judges over age 70 are able to work on “senior” status, they perform the same duties as their younger counterparts but are not similarly compensated and receive no paid sick days, vacation or life insurance benefits.

In 1990, the U.S. Supreme Court, in Gregory v. Ashcroft, upheld a similar requirement in Missouri after concluding that the threat of deterioration by age 70 warranted mandatory retirements.

While that decision has the potential to negatively influence the outcome of this case, the six judges and their counsel hope that advances in medicine, research on aging and evolving law on the 14th Amendment’s Equal Protection Clause will work to their benefit and their claim references scientific data indicating that cognitive impairment among older Americans has indeed decreased.

The suit points out that “to be a good judge requires good judgment, and judgment is a function of, inter alia, age and experience. Judicial performance thus frequently peaks late in life,” and argues that limitation on the fundamental right to work should be scrutinized to show state interest for mandatory retirement.

The outcome of this case could have national impact since thirty-three states and the District of Columbia impose age restrictions on judges. Heim says, “we expect what will happen is that new facts, changing times and evolving law will permit us to come to a successful conclusion.”

Nov 072012

image courtesy of CNN

The votes are in, and the Obama Administration has won a second term. Now that the election is over, we can begin to more forward. But what does forward look like?

To understand where we’re going, we need to know where we’ve been. Daniel Schwartz’s post “A Look Back at Obama’s (First) Four Years and Employment Law” provides a great summary of where we’ve been. Dan concludes that “with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.”

I agree with Dan – we saw the Lilly Ledbetter Fair Pay Act, new guidance from the EEOC on the use of criminal histories and credit checks, and federal protections for nursing mothers. Not the sweeping changes that some had anticipated.

But what will the next four years hold? I think there’s the potential for more significant change in the employment law and regulatory climate. Here are the five issues I’m watching:

  1. The Paycheck Fairness Act –  the gender pay gap was a priority issue during the last term, and will continue to be a priority. As a result of education and outreach campaigns by the Department of Labor, the public is more sensitive to this issue than ever before. The Paycheck Fairness Act still has significant support, and I think it will be reintroduced into Congress in the near future (most likely in April to coincide with Equal Pay Day). The question is, with a Republican-controlled House, will the Paycheck Fairness Act survive?
  2. OFCCP Compensation Data Collection Tool – there’s a lot about this that still needs to be hashed out and thought through, and it’s going to take time. OFCCP has a lot on its proposed regulatory plate right now, and it’s not clear whether four years will be enough time to finalize the Tool in light of everything else the Agency is working on and trying to enact.
  3. Disability Employment – also on the OFCCP’s agenda is a proposed utilization goal of 7% for individuals with disabilities. As with the Data Collection Tool, there are still a lot of loose ends here. A lack of reliable data regarding the employment of individuals with disabilities, employee’s reluctance to self-identify as an individual with a disability, and the skepticism of whether the goal will evolve into a quota are just three of the concerns here.
  4. Adverse Impact in Hiring – we’ve seen a great deal of interest from the EEOC on how the use of criminal histories, credit reports, and current employment status affect the hiring of women and racial minorities. The EEOC has issued guidance on the first two, and there was a bill introduced regarding discrimination against unemployed job applicants. As the nation struggles to get its people back to work, I think it’s likely we’ll see even more action on the adverse impact front. What protected groups (women, minorities, older individuals, LGBT, etc.) and what form(s) this will take is open for debate.
  5. FLSA / Wage and Hour – let’s face it, we have a staggering national debt. This, combined with the fact that nearly every employer – no matter how diligent – is exposed to wage and hour mistakes, is seen by some as an easy source of tax revenue for the IRS and penalty income for the Wage and Hour Division. Independent contractor misclasification, exempt / non-exempt classification, and other violations have been – and will remain – a big concern for employers.
Oct 262012

A recently filed age discrimination complaint may be about to teach one school board president who thinks he can remove teachers from the classroom based on their advanced age a big lesson.

A couple of months ago, South Bend school board President Roger Parent proposed that two teachers be “gently escorted from the classroom” because of their age.

One of them, 80-year-old Beverlie Beck, has no plans to leave the classroom “gently” or otherwise and has filed an age discrimination complaint with the EEOC. She has also written a letter to the school board asking that President Parent be censured for breaking the law and blatantly discriminating against her.

Parent, in an e-mail, urged the school superintendent to remove teachers age 80 and over and favors replacing these older teachers with younger teachers let go as a result of budget cuts. Beck says, “that is assuming that everyone of a certain age is the same and you don’t go by the age, you go by how they perform.” Besides, “it’s against the law.”

Parent contends that his suggestions to remove her from teaching stem from poor evaluations and her questionable abilities within the classroom.

Beck says those insinuations are far from truth and states, “He lied. I am sorry to say that, but he lied.” Her performance has come under scrutiny since Parent’s e-mail was sent to the superintendent but regardless of what Parent and other skeptics may say, many contend that even after 57 years of teaching Beck is a force to be reckoned with in her second grade classroom at Hamilton Traditional School.

To further aid her case, copies of her most recent performance evaluations show that Beck was praised for her high energy and effectiveness in the classroom. She says in all her years of teaching she has never had a poor evaluation or any kind of warning. In addition to her EEOC claim, Beck is asking that Parent be censured, stating that “he jeopardizes the whole school board.” Although Beck believes she could sue for slander, what she really wants is an apology and her name cleared so everyone will know she is not a bad teacher.

“If I can’t do my job, I will get out,” claims Beck, stating that she’ll know when it’s time to retire and won’t work longer than she’s capable. “I wouldn’t do that to the kids or myself.”

It seems that time has not come, though, and Beck has no plans to relent or quit teaching. According to Beck, “I teach because I really do enjoy it. I love to see the kids learn.”