Title: Barriers to Women Working Longer
Date: 07/03/09
Program Number: 1817

HOST: BONNIE ERBE

PANELISTS:

REP. DONNA EDWARDS, (D-MD)

CARI DOMINGUEZ,
FORMER EEOC CHAIR

IRENE NATIVIDAD,
GLOBAL SUMMIT OF WOMEN PRESIDENT

KAREN CZARNECKI,
FORMER LABOR DEPT. OFFICIAL

JOAN KURIANSKY,
WIDER OPPORTUNITIES FOR WOMEN

SUNDAY, JULY 5, 2009

TRANSCRIPT PROVIDED BY
DC TRANSCRIPTION - WWW.DCTMR.COM

MS. ERBE: This week on To the Contrary, up first, race, gender and affirmative action. Behind the headlines: legal barriers to delayed retirement.

(Musical break.)

MS. ERBE: Hello, I'm Bonnie Erbe. Welcome to To the Contrary, a discussion of news and social trends from diverse perspectives. Up first, reversing discrimination.

With Judge Sonia Sotomayor's Supreme Court confirmation hearings starting in little more than a week, her conservative critics are preparing to grill her on her judicial record, especially in the area of affirmative action. The Supreme Court this week overturned a ruling in which Judge Sotomayor participated as a member of a federal Appeals Court panel, but by a five to four vote, the Supreme Court favored the claims of a group of 19 white and one Hispanic New Haven firefighters who sued the city for denying them promotions. The promotions were based on an exam, which the city threw out because it feared lawsuits by minority firefighters who did not score high enough to be promoted.

Progressive legal commentators say the Supreme Court's ruling will undermine efforts by racial minorities and by women to achieve equality in the workplace - that by setting legal precedent making it more difficult for women to bring claims of discrimination to court.

So Congresswoman Donna Edwards, does the fact that America has elected its first black president mean that affirmative action, or what's left of it, because it's been carved away, should become history in terms of helping women and minorities advance in the workforce?

REP. EDWARDS (D-MD): Not a chance, Bonnie. I mean, what it means is that President Obama's election actually offers us an opportunity to be a catalyst for creating greater opportunities for women and minorities. And I think that affirmative action is still the way to do that. And I think that this case actually, despite the direction of the Supreme Court, there still are opportunities to be created to expand the chances for women and minorities to move through business in the public sector.

MS. DOMINGUEZ: It means that having elected a biracial president - he's not an African-American, he's a biracial president, reflects that we've made some progress. But I also think that we have a long ways to go in terms of so many other pockets of employment in our society that need support.

MS. NATIVIDAD: A long way to go? All I have to do is to look at the number of women CEOs or minority CEOs or presidents of major universities or women or people of color, and you can see that the dream of affirmative action has yet to happen.

MS. CZARNECKI: I think we're really at a cross roads right now. We have to decide how equal protection and civil right laws can coexist peacefully if at all.

MS. ERBE: Well, my point, though, in terms of asking the question about President Obama, doesn't his election - and let's not even go near the black versus biracial because that's a whole show on its own. (Laughter.) But doesn't his election - I know that Hillary Clinton was running, I thought, if she runs, affirmative action for women is dead because women will have reached the highest - you know, gotten to the highest possible place in society. Doesn't his election give the conservative justices on the Supreme Court cover to say we don't need this anymore?

REP. EDWARDS: You know, President Obama's election is actually an example of affirmative action. I mean, he went to some of the best schools in this country, was able to work at the highest levels and in a lot of ways that's precisely because we had carved this path with affirmative action. I'd say that about myself. I'm an affirmative action baby, and I embrace that. And so I think we have a long way to go to make sure that those who really haven't had the kind of opportunity they need in business, in the public sector throughout this country to move to the highest ranks possible achieve education and opportunity, and we're just not there yet.

MS. NATIVIDAD: You know, the polls may say that most Americans support affirmative action but the legacy of former President Bush is a far more conservative court and that is how come judicial appointments are so important. You can actually have judges who can rule in a way that is diametrically opposed to what people want. So we may have the first black president who is, you know, held in high esteem by the majority of the population, but a court that is now conservative-driven by five judges who will rule in the way that they feel is right whether we like it or not, whether we think it's right or not.

MS. DOMINGUEZ: Well, again, I think the whole notion of affirmative action has taken a back seat because of all the connotations about affirmative action meaning quotas, and I'm glad to see that the whole notion is back up in the lexicon of the American workplace. But I do think that we have to reconcile, as Karen said, the issue of diversity. When you use race as a consideration, are you depriving opportunities of others and how do you make the two peacefully coexist?

And the case that was just decided, it really changed the standards. As chair of EEOC, I had "Griggs v. Duke Power" standard, which said if one group is greatly disadvantaged by a standard then the burden was on the employer to demonstrate that that requirement is job related. And when I looked at what they called bona fide occupational qualifications of what is job related, believe me, it's just a very small you had - back in the old days you had wet nurses who were considered job related qualification, sperm donors, surrogate mothers, things that have to be gender specific. The "Griggs v. Duke" had to do with a requirement that this individual has a high school diploma. Well, 80 percent of the individuals of the blacks did not have a high school diploma. So since 1971 we've been operating under this standards. In fact, at the EEOC, that's how we looked. We looked to see whether 80 percent of a particular group passed the test and whether less than 80 percent of another group didn't pass the test. And if they didn't, there was a certain presumption of a violation of Title Seven.

MS. CZARNECKI: I think if you're if taking a look at this whole thing, what have we learned from the cases? Two things: number one, I think we have come a long way in 40 years. It might not be where some would like us to be. We've come a long way and there's also a fairness question. I think reverse discrimination is supposed to be clearly wrong and not supposed to occur. You can't just say, I've been discriminated again. What the court has said is you didn't prove it. You can't be a Monday morning quarterback and say, okay. The test wasn't fair. You should have done something about it before time instead of invalidating the test these firefighters took after the fact.

Another interesting point was that the whole reason the test existed was because of the union contract. The union contract stipulated it had to occur. And what we hadn't heard about in the discussion really is do we want to pit the civil rights activists against the union officials. That would be a fight - I would like to sit side by side exactly who would win.

MS. ERBE: Well, you know, the union -

(Cross talk.)

REP. EDWARDS: What I want to say is that I think that's what going to happen is, one, we're going to pay a lot more attention to these tests at the front end to make sure that they're fair. But we learned that in education. We learned in business and now we'll learn it in the public sector.

MS. ERBE: I have a question, because I've given this case a lot of thought. Why is it that the 20 people who passed - and I don't know how many took the exam. Maybe somebody here does. But the 20 who passed, 19 whites, one Hispanic, why did no African-Americans pass? And I know that they tend to be lower income. They tend to go to worse schools, public schools in inner cities that are largely African-American are usually - they have the lowest tax basis. But why - and I don't mean that as a response. I mean, why are we still allowing - why aren't we improving education so blacks pass the same test that whites pass?

REP. EDWARDS: Look, the reality is that New Haven was actually using a system that a lot of cities had really abandoned where they rely on this sort of test only. A lot of cities now including other cities in Connecticut are using assessment centers. They're looking at people in terms of their communication skills and other ways to measure leadership. There are a broad range of ways - and colleges and universities are learning this now - by which you can use to measure people and measure their capacity to succeed that don't have to do with - (inaudible).

(Cross talk.)

MS. ERBE: Let me also ask you in terms of the test, the actual test itself, was it a knowledge issue or was it more cultural in that the test was skewed toward things that white people and Latinos would know and African-Americans wouldn't know?

REP. EDWARDS: I don't know, but you raised the question that I think where the court made the biggest mistake was by not sending it back to the trial court for exactly that kind of fact finding. I think it was a huge mistake for the Supreme Court to actually make this decision rather than saying, we've articulated a new standard. Now, go back and judge the facts of this case and make sure that they standard - (inaudible).

MS. NATIVIDAD: You know, there was a sense, there was always a sense of ownership among a certain group of people of firemen's jobs. It went from father to son to uncle to whatever.

MS. CZARNECKI: It's like law firms.

MS. NATIVIDAD: Exactly. And there was actually talk many times of fathers giving copies of the test to sons and that's - so Griggs addressed the whole issue of a test being okay formally, but that underneath it there may be ways -

MS. DOMINGUEZ: Adverse things.

MS. NATIVIDAD: Exactly. And so I agree with the congresswoman. It should have gone back to the trial court to take a look precisely at those tests.

MS. ERBE: All right. Behind the headlines: the barriers to working longer. Longer life expectancies, shrinking corporate pensions, and rising medical costs are creating the need for most Americans to work longer and save more for retirement, especially during a deep recession. Since we're living longer, there are also immense psychological benefits to remaining in the workforce. In the second of a two-part series, To the Contrary examines the tax bias and the legal barriers for Americans who want to work longer.

(Begin video segment.)

MS. ERBE: In part one of this series, we showed that increasing life expectancies, shrinking federal and personal retirement assets, and a high level of job satisfaction for older Americans are combining to lengthen the number of years Americans stay in the workforce. The recession has also forced many Americans to work longer, as only 13 percent of workers questioned this year told researchers they were very confident they had enough in savings and pensions to be financially comfortable in retirement. But to work longer, workers must overcome a number of significant barriers. First, there are the cultural ones. Age bias or ageism is just as prevalent in society as the other isms but perhaps more difficult to detect.

MARCIE PITT-CATSOUPHES [Ph.D., Co-Director of the Center on Aging & Work/Workplace Flexibility at Boston College]: There is certainly some indication that some outdated and old fashion attitudes, biases, if you will, about older adults persist. And so it can be a challenge particularly for older adults who are in the job search process. There have been a number of studies conducted that it takes older adults longer, they tend to get fewer interviews if the only thing that's different is their age and so it certainly can be a more difficult job search process for them.

MS. ERBE: Age bias is very hard to prove, but there are data that show it's quite real. The MetLife Market Institute produced a survey showing older workers most frequently gave reasons suggesting or implying age bias was the reason why they failed to get hired. The older the job seekers were, the more often they identified bias as a hiring barrier. In 2005, an economist at the Massachusetts Institute of Technology sent out 4,000 hypothetical resumes for women posing as job applicants and found it was much tougher for job applicants over age 50 to get interviews than it was for those under 50.

Baby Boomers, as a large cohort of Americans and a trend-making generation, expected that age bias in the workplace would fade as they aged, but in fact it's taking longer that anticipated to eliminate society age bias. Legal barriers could be resolved more quickly, but would require changes in the tax code and the nation's federal laws. The first is changing federal law to allow older employees who sped most of their careers as fulltime workers to transition to part time work or phased retirement as they enter their 50s, 60s and even 70s.

CHAI FELDBLUM [Professor, Georgetown University Law Center, Co-Director Workplace Flexibility 2010]: We do not have a system that is set up that actively encourages flexible work arrangements that actively encourages working part time.

MS. ERBE: The obstacles are in the tax code and ERISA, the Employee Retirement Income Security Act. Some of them apply to older part-time workers who want to tap into defined benefit retirement plans while continuing to work part time.

MS. FELDBLUM: The text law actually prohibits only the distributions from defined benefit plans prior to age 62; that is, if you are 60 and what you would now like to do is figure out a way to work from 60 to 75, or maybe you're 58 and you want to do from 58 to 75 but you want to do it in a more part-time capacity - obviously, if you go part time, you're income will grow lower. If you wanted to access your defined benefit plan in some way, you could not do it under the current tax code and under ERISA. You just couldn't. So you could go part time; you could not access your defined benefit plan.

MS. ERBE: While so-called defined benefit plans - pensions that promise retirees a certain amount at a certain age - are not offered as widely as they once were, they still provide the primary source of support for just more than 30 percent of workers questioned by researchers in 2006. That is down sharply from the percentage of workers who received and relied on them a decade or two ago. Defined benefit plans have been displaced by 401(k)s and so called SEP IRA's which allow employees to save for retirement and for companies to match or contribute to employee savings and the savings grow tax free. But those plans are less generous than defined benefits plans.

Yet another legal obstacle is that many employees are eligible for early retirement benefits that are subsidized by employers. That makes it attractive for employee to cash out their early retirement benefits and then try to return to work their employers as independent contracts. But employees and employers may be skirting the law with this approach because the tax code treats employees and independent contractors very differently.

MS. FELDBLUM: It's about giving employers more guidance and therefore more security that they can offer these plans, not be in violation of ERISA, not be in violation of the tax code, not be in violation of age discrimination laws. I think it is all doable but it requires a look at all of those laws to see whether they're making sense for this particular type of program.

MS. ERBE: Then there's healthcare coverage for older workers also phasing into retirement. Federal law prevents employers from saving on health insurance premiums for older workers who want to continue to work part time into their 60s, 70s and beyond and who want to keep their employer paid healthcare coverage. Federal Medicare rules were originally set up to prevent discrimination against older workers, but in today's changed work environment, they work against people who want to transition from full to part-time work or into so-called phased retirement. Why? They force employers to continue to pay for the full cost of health insurance for older workers - a much bigger expense than for younger employees. The rules do not allow older workers who are covered by company-sponsored health insurance to use Medicare as their primary coverage.

MS. FELDBLUM: If you're working, the employer has to pay. That can be a disincentive to the employer. If you paid into Medicare, why can't I just supplement your Medicare? No. That's not the current rule. Medicare is the secondary payer. The employer has to pay the full of the health insurance. If the employee is going to provide that, Medicare will pick up the extras.

MS. ERBE: In fact, there are so many legal and tax obstacles to going part time or working past retirement for the same employer that Professor Feldblum's group is working with the Obama administration to revise many or all of them all at once.

MS. FELDBLUM: Employees are needing to navigate around a bunch of complicated walls instead of the government saying, we would actually like to make it easier for people to work from 65 to 75. That should be our governmental policy. Let's look at everything we can do to make that easier. So that would include using the bully pulpit, you know, of the White House, of the administration to say we should have quality part-time jobs.

(End video segment.)

MS. ERBE: So Joan Kuriansky of Wider Opportunities for Women, welcome to the panel.

MS. KURIANSKY: Thank you.

MS. ERBE: How long do you think it will take Congress and the administration to simplify things so that people who - and again, let's remember. This is in the case of when you want to stay with the company you've been with for a long period of time and for older workers it's so much more important because it's so much harder to get hired by a new company. But how long, if ever, do you think it will take for Congress and the administration to simplify the laws so there aren't all these problems for employers?

MS. KURIANSKY: Well, clearly, it's a longtime challenge. I think the more employers begin to appreciate the importance of flexibility to help them do their work, the quicker we're going to see this change.

MS. ERBE: Are you seeing that from employers?

MS. KURIANSKY: There are some employers and some entities, corporate voices for working families has done their own exploration of different kinds of flexibility programs that would be of interest to employers, and I think it's important to really appreciate it's a gain for employers as well as for employees.

I think the real challenge is going to be what is the economy evolving into? What are the kinds of jobs that are going to be available here, and within that, what is the opportunity for older workers to continue to be in the workforce? There's no question, as that segment indicated, that for individuals and families, it's essential that workers continue to work beyond the proverbial 62 years of age. And in fact, studies have shown if you even work only five years more, your savings can increase by 50 percent.

The other dilemma, particularly for women, is how low our incomes is as we get older. And the median income for a single white woman is approximately $16,000 a year. So we're not talking about a lot. And when you look at African-American women or Hispanic women, it's more like $10,000 a year. So this is not pin money. And I think there continues to be a bias that women, no matter what age they are, are earning money for pin purposes, you know, and which is just absurd because an increasing number of women, even in a household with two workers are playing an increasing role in supporting that family. And as an older woman, you're often in the position of not only supporting your spouse, but taking care of your spouse or another elderly person. And so you have several different challenges that you're dealing with at one time.

MS. ERBE: Did you see claims of discrimination growing while you were - of age discrimination growing while you were at the EEOC?

MS. DOMINGUEZ: Well, actually, while I was at the EEOC and subsequent to my departure, they have skyrocketed. They had over 100,000 charges last year and about 25 percent of those charges were age related. So it's a huge spike. Lot of restructuring. When the economy is down, charges go up, a lot of the restructuring, for some reason, a lot of people that are older than 55 maybe they don't have transferable skills. Maybe we need to look at that and focus on how do you do that.

MS. CZARNECKI: If you look at a lot of the corporations, all of the buyouts right now because of the economy are for people age 55 and over and that's how they structure it. They're the most expensive, their healthcare benefits are significant and as soon as they get rid of the people 55 and over, they hire them at two and three grade levels lower because it's going to be a cost savings for the company, so I'm not surprised that there are more cases of age discrimination.

MS. NATIVIDAD: But you know, there are other instances of reverse. I heard the CEO of an aerospace company who said, I face a dramatic problem which is the boomers engineers in my company are all going to retire at the same time and with them goes institutional memory, training that we invested in, and our competitiveness will depend on my being able to keep them beyond their age of retirement and to recruit others who will replace them. So for him, affirmative action, all of that, flex time, he says, whatever I need to do because we don't have enough engineers in this country and that's what I need. I will make sure that I keep the workers that I have. So employers may be -

MS. ERBE: That's one field where we're short, but the average situation is just the opposite of that. And Congresswoman Edwards, is Congress - you're in Congress. Are they talking about changing these laws? Is there any momentum in that direction?

REP. EDWARDS: There are conversations that are beginning. I think that at least part of this has to do obviously with how we deal with healthcare, particularly healthcare for those workers between age 50 and 65. We know that this is already a huge gap.

MS. ERBE: So in the president's healthcare reform package that the House and Senate are working on right now, are they changing so that those 65 and over can just go on Medicare as opposed to continuing to have their employers pay for their primary health insurance?

REP. EDWARDS: Well, I think that's what we're looking at - how do we restructure so that the 50-plusers - and it really is sort of 50, 65 where you have this huge gap of both under and uninsured. It's also true that 65 and over, we have to make accommodations for part-time workers, for people who are in business on their own. And this is all part of the conversation about how we're going to reform healthcare. That will have a huge impact on our employers and I think it's this group of employers that's losing its educated and skilled workforce that will actually drive us to the conversation about how we restructure all of these laws that actually predated a group of workers who are working for much longer than we even anticipated.

MS. ERBE: All right. And that's it for this edition of To the Contrary. Next week, the first black female head of the Environmental Protection Administration, Lisa Jackson. Please join us on the web for "To the Contrary Extra." And whether your views are in agreement or to the contrary, please join us next time.

(END)