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Why Trump is wrong about transgenders serving in the military

nbc-fires-donald-trump-after-he-calls-mexicans-rapists-and-drug-runnersIf their heart calls them to service, if they are prepared to fight, bleed and die for the Country, their Country should welcome their service and praise their patriotism. It’s that simple. Donald Trump is the last person on Earth to judge those prepared to lay down their lives in military service. He is an abominable, cruel sadist who never had the courage or patriotism to serve himself.

Court finds sexual orientation discrimination is sex discrimination

1The Hon. Cathy Bissoon, District Judge for the United States District Court for the Western District of Pennsylvania, has just held: “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, “[d]iscriminating against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about ‘proper’ roles in sexual relationships – that men are and should only be sexually attracted to women, not men.” (Doc. 16) at 11-12. This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse. Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two. Contra Prowel, 579 F.3d at 291 (“[T]he line between sexual orientation discrimination and discrimination “because of sex” can be difficult to draw.”). It is, in the view of the undersigned, a distinction without a difference. Forcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction –constitutes sex stereotyping and, under Price Waterhouse, violates Title VII. Simply put, Mr. McClendon’s alleged conduct toward Mr. Baxley “stemmed from an impermissibly cabined view of the proper behavior” of men. Price Waterhouse, 490 U.S. at 236-37. *** That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination “because of sex,” Defendant’s Motion to Dismiss on the ground that the EEOC’s Complaint fails to state a claim for which relief can be granted will be denied.”  EEOC v. Scott Medical Health Center, No. 16-225 (W.D.Pa.).

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Age stereotype precludes summary judgment

stereotypes-150x150The Eighth Circuit reversed the grant of summary judgment in Hilde v. City of Eveleth, February 5, 2105, finding that the employer’s assumption that a retirement-eligible applicant would retire if hired for a job was age discrimination on its face.

To assume that Hilde was uncommited to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. he prohibited stereotype—older employees are likely to be less committed to a job because they can retire at any time—figured in the City’s decision. Using retirement eligibility to presuppose lowered productivity or dedication would not represent an accurate judgment about the employee unless evidence other than age indicates that the employee would, in fact, retire.

The City provides no evidence that the commissioners doubted Hilde’s commitment to the job for any reason but for his age-based retirement eligiblity. They admit he had a great reputation in the force and they held his continued service in the highest regard. The City argues that Hilde should have convinced them that though retirement eligible, he would not retire. According to Commissioner England:

I would have appreciated something out of [Hilde], some indication that he wanted this job and was willing to commit for at least some period of time. By not telling us anything, now you’re thinking in your mind, what’s this guy thinking, what’s he doing. If he gets the Chief’s job, he’s just going to take it and that’s going to be a feather in his hat and he’s going to pull the trigger and retire? I would have liked some commitment out of the guy.

The commissioners apparently never asked about his commitment to the job or whether he was considering retirement.

Lesson for employers: Use employee-specific facts, not unfounded, category-based assumptions, in making employment decisions.

Eighth Circuit blows summary judgment appeal

b770847555_seriouslySometimes a court makes a decision so off-the-charts wrong, so at odds with the facts, and so heedless of the governing legal standard, one can only wonder what prejudice or stereotype motivated the court’s thinking.  The dismissal of Caryln Johnson’s age discrimination case by a majority of the Eighth Circuit Court of Appeals is one of those decisions.

Caryln Johnson, born in 1932, joined Securitas Security Services USA as a security officer in 2003. Throughout his seventies Johnson earned a reputation as a dependable employee who never refused a shift. Johnson did not have a regular schedule or post, but was instead offered shifts by field service managers Robert Hesse and Charlie Bunch when they needed someone to fill in for security guards at the sites for which they were responsible. Hesse was impressed by Johnson’s dependability and called him Superman.

Hesse, however, had concerns about Johnson’s advancing age. On several occasions over a three year period Hesse told Johnson he “needed to hang up his Superman cape.” Hesse “also said [that Johnson] was too old to be working.” On one occasion, when Johnson’s wife called Hesse to advise him that her husband was in the hospital, Hesse commented that Johnson “should retire,” “was ‘too old’ to continue working,” and “‘needed to hang up his Superman cape and retire.'” Hesse also compared Johnson to Hesse’s retired father, who was in his 80’s at the time of Johnson’s termination. Hesse told Johnson that Hesse’s father “tried to work, do more than [he] could do.” Hesse testified that he made the comparison to his father in response to Johnson’s acceptance of more work as a utility officer with Securitas. Johnson testified that Hesse “always referenced to his own father who was 86 [and] had to quit [work], and now Bob [Hesse] had to take care of him. He said, ‘You ought to do the same thing. Just drop everything.'” Hesse admitted to telling field service managers, including Bunch, that Johnson “needed to hang up his cape” and that Johnson was “working past his limitations.” Hesse also suggested to other managers that they “prevent [Johnson] from working 50, 60 hours a week.”

So it was until January 25, 2009, when Johnson worked the 4 PM to 8 AM shift at the site of Rail Logistics, one of Securitas’s clients. At about 5:30 AM, Johnson accidentally damaged his patrol vehicle when it came into contact with a stationary semi-trailer. The semi-trailer was not damaged. Johnson’s vehicle was still driveable and Johnson was not hurt. Securitas policy required that accidents be reported as quickly as possible. However, Securitas did not provide cell phones or radios to its security officers, and Johnson did not have access to a telephone at the Rail Logistics site. Johnson tried unsuccessfully to call the office using his own cell phone, but there was no signal.

At about 7 AM, Johnson departed and began driving his vehicle back to the office. He reached Bunch by phone at 7:02 AM and reported the accident. Bunch went to the Rail Logistics site and began preparing an accident report. Bunch spoke with Hesse at this time, and Hesse said that Johnson’s shift went to 8 AM, not 7AM. Hesse told Bunch to contact Sherri Parker in human resources about Johnson’s unauthorized departure from the Rail Logistics site, which was listed in Johnson’s employee handbook as a potentially terminable offense. Hesse called Johnson and told him to expect a call from Parker. Once again, Hesse told Johnson that it was time to hang up his Superman cape and retire. Parker called a short time later, asked Johnson if he was born in 1932, and then fired him for two stated reasons, leaving his shift early and not immediately reporting the accident. Securitas had never before fired another employee for either reason.

The court faced only one question: could a reasonable group of people look at the facts and decide that it was more likely than not that Johnson’s age was a determinative factor in Securitas’s decision to terminate his employment? A nine judge majority comprised of George W. Bush appointees held that the answer was no. Three dissenting judges correctly held otherwise.

It’s difficult to overstate the audacity of the majority’s ruling. The majority literally decided that if a group of eight ordinary people sitting in a jury box took in all the evidence and felt that the scales tipped even slightly in Johnson’s favor, they would be acting outside the bounds of reason. The majority was wrong. A reasonable jury could have ruled in Johnson’s favor based solely on Hesse’s remark that Johnson was too old to be working. It could have decided that Hesse was itching to terminate Johnson because of his age and used the car accident at Rail Logistics as a pretext to do so. To be certain, a jury might also have found in favor of Securitas. But for the majority to hold that to be the only reasonable decision was a gross and impermissible substitution of its own judgment for that of the factfinder.

In addition to the majority’s abjectly incorrect holding, its repeated reference to “the but-for cause” as the standard of causation betrays its political motivation. Every court to consider the issue has held that but-for causation does not mean sole cause. There can be ten but-for causes of a termination and if one of them is age, the employer broke the law. One must also remark on the majority’s use of the phrase “with regards to” and encourage the author of the opinion and those who failed to correct this embarrassing error to revisit their high-school grammar books.

The broken bargain for LGBT workers

The basic American bargain is that people who work hard and meet their responsibilities should be able to get ahead. This basic bargain is not just an idea—it is embedded in laws that promote equal access to jobs and that protect workers from unfair practices.

For workers who are lesbian, gay, bisexual and transgender (LGBT), this bargain is broken. Instead of having a fair chance to get ahead, LGBT workers and their families often are held back by bias, fewer workplace benefits, and higher taxes.

Employers who value diversity and who understand that it gives them a competitive advantage can take some steps to ease the burden of unfair treatment of LGBT workers and their families, but they can’t fix the broken bargain on their own. The reason: unequal treatment of LGBT workers under the law.

First, no federal law provides explicit nondiscrimination protections for LGBT workers, and fewer than half of states have laws that protect workers based on sexual orientation and gender identity/expression. Second, LGBT workers may do the same job as their coworkers, yet be denied equal access to worker and family benefits—as well as family tax relief.

The combination of job discrimination, fewer benefits and higher taxes leaves many LGBT workers in a vulnerable position that threatens their ability to provide for themselves and their families. If fairness and equality are part of America’s basic workplace bargain, this bargain is clearly broken for LGBT workers.

A portrait of the LGBT workforce

The U.S. workforce includes an estimated 5.4 million LGBT workers:

  • LGBT workers are geographically dispersed. Same-sex couples live in 93% of all U.S counties. As many as 4.3 million LGBT people live in states with no state laws providing employment protections based on sexual orientation or gender identity/expression.
  • LGBT workers are racially and ethnically diverse. One in three (33%) of LGBT respondents in a 2012 Gallup poll identified as people of color, compared to 27% of non-LGBT individuals. The LGBT workforce, like the overall U.S. workforce, also includes a significant number of immigrants.
  • LGBT workers are raising children in significant numbers. New analyses show that 37% of LGBT adults have had a child, while a recent MAP analysis of three different data sources suggests that between 2.0 and 2.8 million American children are being raised by LGBT parents. This makes family benefits important to LGBT and non-LGBT workers alike.
  • LGBT workers have varying levels of education. Recent polls show that Americans with lower education levels are more likely to identify as LGBT than college graduates and those who have post-graduate degrees. In contrast, census data show a higher probability that individuals in same-sex couples have at least a bachelor’s degree. Similarly, the 2011 National Transgender Discrimination Survey found that transgender respondents had much higher levels of educational attainment than the population as a whole.
  • LGBT workers experience unemployment at an equal or higher rate than other workers. A 2009 state-level survey in California found that 14% of lesbian, gay and bisexual adults were unemployed, compared to 10% of heterosexual adults. Among transgender workers, unemployment rates are twice the rate of the population as a whole, with rates for transgender people of color reaching as high as four times the national unemployment rate.
  • LGBT workers are at higher risk of poverty than other workers. Among the hardest-hit by the broken bargain for LGBT workers are those who are parents, together with their children. Married or partnered LGBT individuals raising children are twice as likely to have household incomes near the poverty line compared to married or partnered non-LGBT parents. In addition, transgender people are nearly four times more likely to have a household income under $10,000 per year than the population as a whole (15% vs. 4%).

Fixing the broken bargain for LGBT workers

This report organizes the inequities LGBT workers face into two overarching problems:

  1. Job discrimination without legal protection makes it harder for LGBT workers to find and keep a good job; and
  2. LGBT workers receive fewer benefits and pay more taxes, which puts LGBT workers and their families at risk.

Many of the access or equity gaps that affect LGBT workers also disproportionately affect low-income workers broadly, workers with unmarried heterosexual partners, workers of color, and workers who live with and support family members who are not a spouse or legal child, such as an uncle providing care for a nephew.

Fixing the broken bargain will require government and employers to address multiple barriers to equal and fair treatment for LGBT and other workers, as outlined below.

Discrimination without legal protection makes it harder to find and keep a good job

Barrier #1: Bias and Discrimination in Recruitment and Hiring. LGBT workers can put their job prospects at risk if they disclose that they are LGBT while looking for work.

Barrier #2: On-the-Job Inequality and Unfairness. An LGBT employee may be in a workplace that is blatantly hostile, one that condones anti-gay jokes and slurs, and/or one where employers look the other way and allow a discriminatory climate to flourish.

Barrier #3: Wage Gaps and Penalties. In addition to job and workplace discrimination, LGBT employees face wage disparities that make it harder for them to provide for themselves and their families.

Barrier #4: A Lack of Legal Protections. Only 21 states and the District of Columbia have laws prohibiting discrimination in employment based on sexual orientation. Transgender workers facing workplace discrimination may seek federal legal recourse by filing a complaint with the Equal Employment Opportunity Commission (EEOC), but only 16 states and the District of Columbia explicitly prohibit discrimination based on gender identity/expression.

Fewer benefits and more taxes put LGBT workers and their families at risk

Barrier #5: Unequal Access to Health Insurance Benefits. Under federal and most state laws, most employers can extend family health benefits to married opposite-sex couples yet deny same-sex couples the same coverage. When employers electively offer family coverage to LGBT workers, most of them have to pay thousands of dollars in extra taxes on the value of the family coverage, although heterosexual workers get the same benefits tax-free. In addition, exclusions in health insurance often deny transgender workers access to both basic healthcare and transition-related care.

Barrier #6: Denial of Family and Medical Leave. Because the federal government does not legally recognize the marriages of same-sex couples under the Defense of Marriage Act (DOMA), LGBT employees do not have equal access to federally mandated unpaid leave to provide care for same-sex spouses or partners. Only about one-fifth of states provide equal access to unpaid leave for same-sex couples under state leave laws. In addition, employers may deny transgender workers leave for transition-related care.

Barrier #7: Denial of Spousal Retirement Benefits. The same-sex spouses and partners of LGBT workers are systematically denied Social Security benefits designed to protect workers’ families during their retirement years. This may cost a retired same-sex couple up to $14,484 per year and a surviving same-sex spouse or partner up to $28,968 per year. An LGBT employee also may be unable to opt for continuing pension benefits for a same-sex spouse or partner under an employer-provided pension plan.

Barrier #8: Unequal Family Protections When a Worker Dies or is Disabled. When an LGBT worker dies or becomes disabled, the worker’s same-sex spouse—and in some cases, his or her children—will be denied Social Security disability and survivor benefits. A surviving family (spouse and two children) of a worker earning $40,000 could lose as much as $29,520 in annual benefits.

Barrier #9: A Higher Tax Burden for LGBT Families. State marriage and parenting laws, combined with the federal government’s lack of recognition of same-sex couples, mean that LGBT workers pay more taxes because they cannot file using the advantageous “married filing jointly” status. Consider an LGBT family with one working parent who has a taxable income of $60,000 a year and a stay-at-home parent who has no income. The inability to file a federal tax return as a married couple costs the LGBT family $2,902 in additional taxes. When working LGBT parents cannot form legal ties to their children, they also generally cannot claim important child-related deductions and credits such as the child tax credit, the child and dependent care expense credit, and multiple education-related deductions and credits potentially totaling thousands of dollars per year.

Barrier #10: Inability to Sponsor Families for Immigration. An LGBT worker is unable to sponsor a foreign-national spouse or partner or a partner’s children for the purposes of immigration. This means American LGBT workers may need to live abroad to avoid separation from their families, while highly skilled foreign national LGBT workers may decline to come to the United States if it means they must leave their families behind.

Fixing the broken bargain is good for business and America’s prosperity

America’s most successful businesses are opposed to the current inequities for LGBT employees and are taking independent steps to try and fix the broken bargain. Nearly 9 out of 10 Fortune 500 companies (88%) provide nondiscrimination protections for their gay and lesbian employees. Additionally, in a 2013 brief submitted to the Supreme Court, 278 businesses and employers (including, Citigroup, Intel, Marriott, Nike, Pfizer, Twitter, Viacom and the Walt Disney Company) argued that current laws harm business by:

  • Creating complex and difficult compliance burdens by requiring businesses to treat married LGBT employees as single for federal taxes, payroll taxes, and certain workplace benefits—but as married for all other purposes in states that recognize same-sex couples.
  • Requiring employers to implement and enforce discriminatory treatment of employees in their own companies, even when doing so goes against core corporate values and basic business sense.
  • Creating an environment that makes it harder for LGBT workers to perform at their best.
  • Negatively impacting the employer’s ability to compete for and hire top talent.


The report offers detailed recommendations for action by the federal, state and local governments, as well as employers. The following is a summary of these recommendations:

Reducing barriers to finding and keeping good jobs

  • Pass nondiscrimination laws and policies. Federal, state and local governments should pass nondiscrimination laws/ordinances that include explicit protections for LGBT workers on the basis of sexual orientation and gender identity/expression. Employers can also adopt nondiscrimination policies for their workplaces.
  • Increase wage discrimination protections. The federal government should expand existing legal protections against wage discrimination to include protections for sexual orientation and gender identity/expression.
  • Ensure effective and swift discrimination claims processing. For example, the federal government should address the backlog of discrimination cases before the EEOC, while private employers and unions should institute clear and effective grievance systems.
  • Foster diverse and inclusive workplaces. Government and private employers should put in place policies and procedures that foster welcoming and inclusive workplaces and encourage diversity.
  • Ensure transgender workers can update the gender marker on their identity documents. A physician’s letter, not proof of surgery, should be used as a standard for changing gender on identity documents.
  • Increase data collection on LGBT workers. Federal, state, and local governments should increase data collection and research on LGBT workers including demographics, income, benefits, experiences of discrimination, and more.

Providing equal access to individual and family benefits

  • Recognize the families of LGBT workers. States should allow same-sex couples to marry and ensure their parentage laws allow LGBT parents to be legally recognized as parents. The federal government should recognize married same-sex couples to allow equal access to worker benefits, Social Security, immigration, federal family tax relief and more.
  • Advance equal access to individual and family health insurance benefits. The federal and state governments should amend health insurance laws to ensure coverage parity and nondiscrimination protections for transgender health plan enrollees. State and federal lawmakers also should ensure that LGBT families have health insurance on equal terms with other families, including eliminating unfair taxation of these benefits.
  • Provide equal access to individual and family medical leave. Federal and state medical leave laws should allow transgender workers to take needed individual medical leave—and allow workers to take leave to care for a same-sex partner or spouse.
  • Provide equal access to spousal retirement benefits. The federal government should broaden Social Security’s definition of spouse to allow a same-sex partner to access spousal and survivor benefits. Policymakers also should change federal law to ensure same-sex partners/spouses can access pension survivor benefits and are equally taxed on inherited retirement plans.
  • Provide equitable economic protections when a worker dies or is disabled. A same-sex partner/spouse and his or her children should be able to access Social Security survivor and disability benefits in the same manner as the spouse and children of a non-LGBT worker.
  • Revise the IRS tax code to provide equitable treatment for LGBT workers. The Internal Revenue Service (IRS) should create a designation of “permanent partner,” who would be treated as a spouse for the purposes of the tax code. The IRS also should allow not just legal parents but also those who act as parents to claim a “qualifying child” on their tax filing.
  • Provide pathways to immigration and citizenship for binational LGBT families. Congress should pass legislation such as the Uniting American Families Act (UAFA), which would add the category “permanent partner” to the list of family members entitled to sponsor a foreign national for U.S. immigration.

To the extent that all levels of government (and more employers) adopt policies that ensure fair and equal treatment for LGBT workers, America will make great strides in its ongoing effort to build a fair and inclusive society where everyone’s contributions are valued equally.

Whence came this enlightened law?

Though employment discrimination is most commonly understood as a field defined entirely by federal law, in fact it is not. States and localities play a pivotal role in the fight against workplace discrimination. Their laws often afford stronger protections and more substantial remedies than federal law. Therefore, when we represent clients or sue employers outside of Pittsburgh, one of the first things do is check local law. Our work recently brought us back to one of our all-time favorite local law – the Philadelphia Fair Practices Ordinance. It is a truly remarkable piece of legislation.

The Philadelphia Fair Practices Ordinance, as amended (the Ordinance), applies to employers, defined broadly to mean “any person who does business in the City of Philadelphia who employs one or more employees exclusive of parents, spouse, or children.” Amendments enacted in 2011 expand the anti-discrimination provisions of the existing ordinance by, among other things, (1) adding three new protected classes—genetic information, domestic or sexual violence victim status, and familial status; (2) strengthening the provisions concerning prohibited practices and adding to the types of employment practices considered unlawful.

As amended, the Ordinance prohibits employment discrimination for both actual and perceived membership in a protected class, including the expanded classes above and those classes already protected, which include race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, and marital status.  The Ordinance provides broad definitions of the newly protected classes. “Familial status” includes individuals who either are now or are becoming a provider of care or support to a family member, defined broadly to include the individual’s spouse, life partner, parents, grandparents, siblings, or in-laws and children, grandchildren, nieces or nephews, including through adoption or other dependent or custodial relationships. The familial status protection also applies to any person who is pregnant.

Discrimination on the basis of genetic information is now defined to include discrimination on the basis of information about an individual’s genetic tests, the genetic tests of the individual’s family members, and the manifestation of a disease or disorder in the individual’s family members. A genetic test is defined as an analysis of DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.  The Ordinance expands the protection of domestic or sexual violence victim status to the discrimination context. Individuals subjected to acts of domestic violence, sexual assault, or stalking now have protection beyond the requirement that employers provide them with the leave rights to which they are already entitled under the Entitlement to Leave Due to Domestic Violence, Sexual Assault, or Stalking, Phila. Code § 9-3200 et seq.

As amended, the Ordinance prohibits an employer from engaging in the unlawful employment practices such as denying or interfering with the employment opportunities of an individual based on their protected status. and incorporates any other acts or practices made unlawful under federal or Pennsylvania anti-discrimination laws. However, the amended Ordinance includes stronger anti-discrimination provisions prohibiting any person from harassing, threatening, harming, damaging, or otherwise penalizing, retaliating, or discriminating against any other person because that person complied with the Ordinance; exercised rights under the Ordinance; enjoyed the benefits of the Ordinance; or made a charge, testified, or assisted with any investigation, proceeding, or hearing concerning a violation of the Ordinance. It also adds the requirement to post and exhibit in any place of business where employment is carried on any fair practices notice prepared for posting and made available by the PCHR. A failure to comply with this requirement is also considered an unlawful employment practice under the amended Ordinance.

The PCHR and complainants have greater enforcement rights based on the amended Ordinance. The PCHR may issue an order directing a respondent found to have engaged in an unlawful employment practice to take affirmative action to redress the harms suffered by the complainant, and may take any or all of the following actions: (1) issuing a cease-and-desist order; (2) ordering injunctive relief or equitable relief such as hiring or reinstating the complainant or upgrading the complainant’s employment, with or without back pay; (3) ordering payment of compensatory damages; (4) ordering payment of punitive damages, which are now increased from the maximum allowance of $300 to $2,000 per violation; (5) and ordering payment of reasonable attorneys fees and hearing costs. Respondents may seek judicial review of such orders by appealing to any court with competent jurisdiction within 30 days.

The Ordinance as amended streamlines the procedures for the filing and investigation of complaints before the PCHR, and includes a new provision requiring respondents to file answers to complaints brought against them. Complaints must still be filed within 300 days after the occurrence of the alleged unlawful practice. However, filing such a complaint does not foreclose that person’s right of action in state court. Instead, if within one year after the filing of a complaint with the PCHR, the agency either dismisses the complaint or has not entered into an agreement to which the complainant is a party, the PCHR must notify the complainant. The complainant may then file an action in the Court of Common Pleas of Philadelphia County and may seek relief in the form of compensatory damages, punitive damages, reasonable attorneys’ fees, and costs or other equitable relief. There is no cap designated for the amount of damages that may be awarded to a complainant in a civil action.  Recoverable damages include compensatory damages, punitive damages, attorney fees, court costs, and “such other relief, including injunctive relief, as the court may deem appropriate.”  This language marks a substantial expansion of the private remedies available prior to the 2011 amendments, which were then limited to back pay and other actual damages, punitive damages of $300 per violation, attorney fees and other relief, including the injunction.


Older worker stereotypes deeply entrenched

Common stereotypes about older workers include unwarranted assumptions that older workers are tired, grumpy, more costly, harder to train, less adaptable, less motivated, less flexible, more resistant to change, and less energetic than younger employees. These stereotypes stem from depictions of older persons in society generally. Employers also may be reluctant to invest in training and other developmental opportunities for older workers based on the perception that they have less time remaining in their careers. While extensive research has shown that these negative age-based stereotypes have little basis in fact, they influence many employment decisions. For instance, as a result of these stereotypes, older persons with the same or similar qualifications typically receive lower ratings in interviews and performance appraisals than younger counterparts (and thus are apt to have more trouble finding or keeping a job or securing a promotion). Older workers also typically are rated as having less potential for development than younger workers, and thus are given fewer training and development opportunities. Age-based stereotypes disadvantage older workers in corporate downsizing situations in particular. Because the main goal of such downsizing is usually to cut costs, age-based stereotypes that older workers are more costly, harder to train, less flexible, or less competent may become much more prominent in the minds of the decision-makers. To make matters worse, once older workers are laid off, they often are again vulnerable to age-based stereotyping as they attempt to find new jobs. As we have previously written, older workers who have been laid off are less likely to obtain reemployment than younger workers, take longer to find new jobs than younger workers, and generally fail to obtain jobs paying the same wages as their previous positions.


Think you’re immune to implicit bias? Think again.

It is well known that people don’t always “speak their minds.”‘  Social scientists have long suspected, and now proven, that people don’t always “know their mind” because stereotypes and implicit biases operate below the level of conscious awareness. Researchers at Harvard have developed the Implicit Association Test (IAT) to measure the way subconscious beliefs and associations differ, often radically, from those that operate on the level of conscious thought.  The links below will take you to the IATs.  They don’t take long, and you might be surprised what you learn.

Select a Test

Age (‘Young – Old’ IAT). This IAT requires the ability to distinguish old from young faces. This test often indicates that Americans have automatic preference for young over old.
Religion (‘Religions’ IAT). This IAT requires some familiarity with religious terms from various world religions.
Disability (‘Disabled – Abled’ IAT). This IAT requires the ability to recognize symbols representing abled and disabled individuals.
Sexuality (‘Gay – Straight’ IAT). This IAT requires the ability to distinguish words and symbols representing gay and straight people. It often reveals an automatic preference for straight relative to gay people.
Weapons (‘Weapons – Harmless Objects’ IAT). This IAT requires the ability to recognize White and Black faces, and images of weapons or harmless objects.
Presidents (‘Presidential Popularity’ IAT). This IAT requires the ability to recognize photos of Barack Obama and one or more previous presidents.
Skin-tone (‘Light Skin – Dark Skin’ IAT). This IAT requires the ability to recognize light and dark-skinned faces. It often reveals an automatic preference for light-skin relative to dark-skin.
Gender – Science. This IAT often reveals a relative link between liberal arts and females and between science and males.
Native American (‘Native – White American’ IAT).This IAT requires the ability to recognize White and Native American faces in either classic or modern dress, and the names of places that are either American or Foreign in origin.
Asian American (‘Asian – European American’ IAT).This IAT requires the ability to recognize White and Asian-American faces, and images of places that are either American or Foreign in origin.
Weight (‘Fat – Thin’ IAT). This IAT requires the ability to distinguish faces of people who are obese and people who are thin. It often reveals an automatic preference for thin people relative to fat people.
Arab-Muslim (‘Arab Muslim – Other People’ IAT).This IAT requires the ability to distinguish names that are likely to belong to Arab-Muslims versus people of other nationalities or religions.
Gender – Career. This IAT often reveals a relative link between family and females and between career and males.
Race (‘Black – White’ IAT). This IAT requires the ability to distinguish faces of European and African origin. It indicates that most Americans have an automatic preference for white over black.




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