As an aging- baby boomer, I’ve admired Pat Barnes since I began reading her trail-blazing age discrimination blogs, urging Congress to scrap the Age Discrimination Employment Act (ADEA) of 1967, which fails to grant older employees the same level of protection as the 1964 Civil Rights Act’s Title VII, which confers equal status on race, religion, sex, and national origin.
“Age was initially proposed for inclusion as a protected class under Title VII but Congress decided that more study was needed about age discrimination, “Pat writes in Overcoming Age Discrimination in Employment.
“When Congress finally got around to passing the ADEA three years after, the law was riddled with exceptions, loopholes and was structurally weaker than Title VII,” Pat writes.
I was dumbfounded to read that the ADEA permits employers to engage in age discrimination when it is based on a ‘reasonable’ factor other than age.
“There is no such thing as ‘reasonable’ discrimination under Title VII of the Civil Rights Act,” Pat points out.
Ninth Circuit Rules Against AARP
What compelled me to ask Pat for a one-one-one interview with American Legal News was her coverage of the AARP’s Medigap kickback scheme with UnitedHealth.
A former Hartford Courant reporter, a Google search revealed Pat appears to be the only reporter to have covered the AARP’s exploitations of its members.
“I wrote about my naïve effort to engage the AARP in the substantive work of combating a half-century of second-class citizenship of older workers,” Pat writes in her blog, AARP and UnitedHealth Group Face Multiple Class Action Lawsuits over Alleged Health insurance Kickbacks,
“They declined.”
“Instead, what is the AARP, the professed consumer rights advocate doing?”
“It is defending multiple federal class action lawsuits filed in California, Pennsylvania, Florida and Connecticut that accuse AARP and UnitedHealth Group of fleecing some 4.3 million seniors and disabled through a Medigap insurance ‘rebate’ scheme,” Pat writes.
The bellwether case currently advancing in the U.S. Court of Appeals for the Ninth Circuit charges AARP’s with engaging in a predatory insurance scheme that artificially inflates prices in the Medigap marketplace.
In 2017, the Ninth Circuit reinstated a California lawsuit against the AARP after finding the plaintiff had asserted a plausible claim that the AARP “solicits” insurance without a license, Pat writes.
The plaintiff’s lawyers are working to have the case, Friedman v. AARP, (filed on May 3, 2017,) certified as a class action, which means “big trouble” for AARP”, Pat says.
She notes that lawsuits filed in 2018 in Connecticut, Florida and Pennsylvania–three states with huge retirement communities– also allege the AARP markets and sells UnitedHealth insurance products to it 39 million members through AARP’s publications and website.
In return, United Health tenders a 4.9 percent rebate or commission to AARP on each new policy sold or renewed.
By failing to disclose AARP’s role as a “de facto agent” for UnitedHealth, the lawsuits allege the AARP is violating state insurance laws and evading oversight by state insurance regulators, Pat writes.
The AARP denies it receives fees or commissions from United Health. It contends it receives royalties from UnitedHealth for the use of its intellectual property.
Taking 5 Percent off the Top
The Pennsylvania lawsuit charges the AARP “secretly” charges a 4.9 percent payment by UnitedHealth to AARP on top of the premium paid by customers for the actual health insurance, resulting in usuriously inflated insurance charges.
The Connecticut lawsuit alleges AARP pockets more than $400 million in “tax free cash”, through the patently unlawful rebate scheme, Pat writes.
She compares AARP’s predation “to a large employer offering group health insurance to its employees, and then taking 5 percent off the top of their employees’ contributions for insurance coverage, with the consent of the insurance company.”
The Connecticut class action lawsuit charges the AARP “secretly” invests enrollees’ monthly premium payments in securities to earn money during a 31-day grace period before it pays the premiums to UnitedHealth.
It states the AARP earned almost $45.77 million in 2016 from that investment vehicle, Pat concludes in her blog.
Patricia G. Barnes is an attorney and former judge, who is editor of the blog,” Age Discrimination in Employment,” and the author of two books that tap into the financially-devastating inequities suffered by older workers: Betrayed: The Legalization of Age Discrimination in the Workplace; and Overcoming Age Discrimination in Employment.
Pat Files Ageism Suit against SSA
In an interview with American Legal News, Pat disclosed she is suing the Social Security Administration for refusing to hire her at age 60, claiming she was not “enthusiastic” enough during the interview.
“When my son was a junior in high school and getting ready for college, I began looking around for higher paying jobs with benefits,” she says.
“At the time, I was a judge for two Native American tribes in Northern Nevada.
“I found out that an office of the Social Security Administration was opening in Reno when I saw a job ad on USAJobs for a legal assistant for the office.
“I inquired and found out they were hiring attorneys so I applied.
“I was surprised that I didn’t get the job and emailed the Selection Officer several times asking why.
He ignored my emails and referred me to an SSA Human Resources Officer in Sacramento.
“The HR guy got back to me and said the Selection Officer told him I didn’t sound enthusiastic enough about the job in the interview.
“That seemed absurd to me because I had expressed enthusiasm in both the interview and my application materials. Then I asked him why he hadn’t advertised the jobs on USAJobs, like the legal assistant position.
“He said the jobs fell under a special classification that permitted the Selection Officer to design a recruitment [plan] and make selection decisions.
“He told me the Selection Officer’s recruitment targeted the law school at the University of Nevada and an office of outgoing Peace Corps volunteers.
“I observed that the population served by both institutions has an average age of well under 40.
“I asked him the ages of the five individuals who were hired and he told me I’d have to file a Freedom of Information request.
“I told him I was concerned about age discrimination, noting I was far more qualified than the vast majority of recent law school graduates or outgoing Peace Corps volunteers.
“I did file a Freedom of Information request, but the SSA denied my request for the ages.”
Highly-Educated Women; Troves of Men at Bookstores
“I began researching and was appalled to discover how little protection older workers have from age discrimination compared to protected groups under Title VII.
“I also looked around and I saw so many women around my age who had been driven out of the workforce.
“Successful and highly educated women who had previously held high positions couldn’t find work.
“And I saw troves of older men sitting in bookstores in the middle of the day, obviously unemployed.
“That’s why I wrote my book: Betrayed: The Legalization of Age Discrimination in the Workplace. And, I filed an EEOC complaint against the SSA alleging age discrimination.
“I naively tried to get the AARP interested in my book but they weren’t.
“Meanwhile, they were making billions on Medigap insurance by exploiting their membership base, “Pat says.
SSA Attorney Completely Clueless
“Around that time, I spoke to an AARP attorney who defended the 1967 ADEA because it has a more favorable class action provision, the only thing about the ADEA that is more favorable than Title VII.
“She seemed completely clueless about the devastating impact stemming from the inherent weakness of the ADEA, which allows ‘reasonable’ discrimination and limits damages to monetary damages, excluding compensatory and punitive damages available in Title VII.
“I discovered that the U.S. Supreme Court accords age discrimination its lowest standard of review, far lower than discrimination on the basis of race, sex, religion, color and national origin.
“So older workers were and are denied equal protection by the highest court in our land, the Court that is supposed to insure adherence to the U.S. Constitution.
Blatant Ageism Veiled as a “Cultural Fit”
“Meanwhile, in the EEOC case, I deposed the Selection Officer who testified that he completely ignored qualifications in the hiring process for the five attorney positions and based his selections on cultural fit.
“The first five candidates he selected were under the age of 40. Many were recent college graduates. Ignoring qualifications is completely contrary to the law.
“And yet the EEOC dismissed my case after six years. I have now filed a U.S. District Court case, which is pending.
Pat notes that Social Security Administration penalizes age discrimination victims who are forced to retire at age 62 by at least 25 percent for the rest of their lives compared to workers who retire at age 66.
EEOC Files TWO Lawsuits, Despite Jump in Cases
“The EEOC [Equal Employment Opportunity Commission] by the way, almost completely ignored a huge jump in age discrimination cases during the Great Recession and continues to devote a shockingly, disproportionately small percentage of its litigation resources to the problem,” Pat says.
“In 2016, the EEOC had more than 20,000 age discrimination complaints but files only TWO lawsuits with age discrimination claims.”
“The situation was so bleak and absurd that I started a blog on age discrimination and began following legal trends.
“Since then, I have been a paid consultant to many individuals and a few employers who are dealing with age discrimination.
“And, of course, I am working on my own case, which is giving me tremendous insight into the profound lack of justice that age discrimination victims face in federal courts, where age discrimination cases are routinely dismissed prior to trial,” Pat says.
Hostile Federal Judges with Lifetime Tenure
“I am seeing how impossible it would be for the vast majority of age discrimination victims to represent themselves in an age discrimination case due to the legal hurdles they must jump to avoid arbitrary dismissal, the unequal playing field faced by a pro se defendant versus a federal agency that has unlimited resources and experienced attorneys from the U.S. Department of Justice, and hostile federal court judges with lifetime tenure who never have to retire and have no idea what the workplace is really like for most workers.”
Clarence Thomas and Sandra Day O’Connor Weaken Law
“Two Supreme Court cases that have considerably weakened the ADEA Act are:
“Gross v. FBL Financial Services (2009), where the U.S. Supreme Court, in a decision authored by Clarence Thomas, ruled that age discrimination cases would henceforth be forced to meet a much higher standard of causation than Title VII plaintiffs under The Civil Rights Act.
“They would have to show that ‘but for’ the age discrimination, they would not have suffered an adverse employment action.
“So older workers who can prove age discrimination lose their case because the employer can say there were other determining factors for the adverse employment action.
“This made taking an ADEA case to federal court a crapshoot for attorneys because the chances of success plummeted.
“Now it is very difficult for an older worker who isn’t rich to afford an attorney, who routinely charges a high retainer ($25,000 plus) plus a $400 hourly fee, at least.
“Another important case is Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) where the Supreme Court said there was a difference between age discrimination and an employment decision that is merely correlated with age.
“In that case, Walter Biggins, 64, was fired a few months before he was to vest in the company’s pension plan.
“Justice Sandra Day O’Connor wrote the majority opinion that the dismissal was not ‘because of’ age but because of cost savings.
“There are also two federal circuit decisions that say job applicants have no protection from systemic ‘disparate impact’ discrimination–that’s a supposedly neutral policy or practice that has a disparate impact on older workers, Pat tells American Legal News.
Older Workers Must Demand Equal Protection
Pat concludes that “a job is central to an individual’s self-esteem, to their role in the family and position in the community.
“There is no reason to acquiesce to the inevitability of age discrimination in employment any more than race or sex discrimination.
“It is not inevitable.
“It is a byproduct of unjust social and legal forces that will surely change in time, if enough older workers demand change, “Pat concludes.
Pat has been quoted in numerous national media outlets, including: The New York Times, Bloomberg Business Week, and Vox.
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