Editor’s Note: This Generations Today column, “Aging While ...” is sponsored by AARP Foundation. It focuses on creating and advancing innovative solutions that help older Americans build economic opportunity and social connectedness.
“Dead Wood. Millstones. Extraordinarily change-averse population, almost all … over 50 … .”
The words that Ohio State administrators used to describe the older English as a Second Language (ESL) program teachers were demeaning. But their actions were even worse.
Younger ESL teachers received choice assignments, promotions and private offices with their own computers. Older instructors had to share computers in a cramped open space. Eventually more than 20 older ESL staffers were pushed out of their jobs. Among them were Julianne Taaffe and Kathyrn Moon, who had built the ESL program since 1983 and enjoyed consistently first-rate performance reviews. They were forced out years earlier than planned after each had worked there for more than two decades. Neither could find comparable positions elsewhere.
Taaffe, then 64, and Moon, then 59, turned to AARP Foundation, which joined with an Ohio law firm in 2015 to represent them in an age discrimination lawsuit. The fight was stressful, financially and emotionally. Taaffe and her husband considered selling their home and putting off dental care. Taaffe lost 23 pounds from the stress. Moon developed back problems and put off home maintenance. Both women say they lost part of their identities when they had to leave work earlier they had intended.
After several years of fighting in court, AARP Foundation and our co-counsel negotiated a settlement with Ohio State. In 2018, the University rehired both women with back pay, retroactive benefits and attorneys’ fees totaling $765,000. The University committed to put policies in place and conduct staff training to prevent age discrimination from recurring.
While Taaffe and Moon secured relief for themselves, lawsuits like theirs can drive broader social change. That is why, in addition to AARP Foundation’s robust direct service programs, social impact litigation is a key strategy for eliminating older adult poverty. When we employ the courts to protect older adults from age discrimination, secure their retirement by helping them obtain promised pensions and other benefits, maintain access to affordable quality healthcare and preserve their voting rights, we help ensure that older adults don’t slip into poverty.
Deterring Illegal Behavior
In the Ohio State case, the monetary settlement will provide economic redress for Taaffe, Moon and others harmed by Ohio State’s ageist treatment of its workers. Hopefully it will change one large state university’s treatment of its older workers to be more inclusive and even-handed.
‘Transforming what people understand society to accept is, “one piece of how social change happens.” ’
But the Ohio State result may achieve other important goals. It will likely deter some universities from instituting ageist practices in the first place, knowing they might be sued. And, it could incentivize organizations to proactively change existing discriminatory practices to avoid costly litigation, negative media coverage and reputational harm.
These effects on older adults’ job prospects complement AARP Foundation’s direct service programs that train and coach older adults to find new jobs or start their own businesses.
Changing Social Norms
Social impact litigation also can change harmful societal attitudes by reshaping social norms that influence behavior. Following the Supreme Court ruling in favor of same-sex marriage in Obergefell v. Hodges, a five-wave longitudinal time-series study found an increase in perceived social norms supporting gay marriage.
Rand Corporation researcher Margaret Tankard, who conducted the study, said, “These findings provide the first experimental evidence that an institutional decision can change perceptions of social norms, which have been shown to guide behavior ... ”
Transforming what people understand society to accept is “one piece of how social change happens,” said Tankard. It follows that court decisions which alter social norms about the acceptability of age discrimination are critical to eradicating it.
Catalyzing and Accelerating Social Change
Social change can be accelerated through the courts when legislators are unwilling or unable to act and ballot initiatives and referenda can take years to succeed. Before the 2015 Supreme Court decision legalizing gay marriage, marriage equality supporters were fighting for their right to marry in 50 state legislatures, and through multiple ballot initiatives and referenda. In June 2015, the Supreme Court decision eliminated the need for state-by-state battles with its historic decision affirming that same-sex couples’ right to marry is guaranteed by the Constitution.
Further back in history, the landmark Supreme Court decision, Brown v. Board of Education of Topeka, struck down racial segregation in public schools as unconstitutional, serving as a major catalyst for the civil rights movement. According to the NAACP Legal Defense Fund, the victory helped make possible advances in desegregating housing, public accommodations and higher education institutions.
Positive litigation results may also, over time, create a factual record to support change in laws, regulations and policies on issues.
Setting Legal Precedents
Successful lawsuits also can set legal precedents that influence other cases affecting older adults. This occurred in a lawsuit where the financial security of retirees was threatened by a failing pension plan.
When 150 former employees of Schenectady New York’s St. Clare’s Hospital learned that their long-promised pensions would be eliminated or cut due to the pension fund’s failing finances, AARP Foundation and other legal aid organizations filed suit to recover those pensions in Hartshorne v. Roman Catholic Dioc. of Albany (N.Y. Sup. Ct.).
‘Social change can be accelerated through the courts when legislators are unwilling or unable to act.’
Last July, the Schenectady County Supreme Court rejected the defendants’ effort to dismiss our case against the Roman Catholic Diocese of Albany and St. Clare’s Corporation. The court ruled that we successfully alleged that both defendants had breached their contract to provide these pensions and that the Archdiocese was their alter ego, potentially putting it on the financial hook.
Despite the defendants’ appeal, we expect that this decision will reverberate favorably in other “church plan” pension cases around the country where the church’s involvement in an organization could shield its pension plan from financial liability. The pensions of up to a million healthcare workers, whose employers have ties to churches, could be positively affected by this decision.
Ensuring Access to Affordable, Quality Healthcare
Another component of financial security as we age is access to affordable, quality healthcare, and health insurance is a key to that goal. Having health insurance helps older adults who are not yet eligible for Medicare, especially those of low-to-moderate income, to weather unexpected medical expenses and keep working and saving for retirement.
That’s why AARP and AARP Foundation have consistently defended the Affordable Care Act (ACA) in courts across the country, and recently filed a Supreme Court amicus brief arguing that the ACA is constitutional. If the Supreme Court does not uphold the ACA’s constitutionality during its current court term, millions of older adults and other Americans will lose their healthcare coverage, which would be a catastrophe, especially during a global pandemic.
The courts can assist here, too, by helping marginalized communities secure affordable, quality healthcare.
This past June, healthcare access was threatened when the U.S. Department of Health and Human Services (HHS) moved to exclude LGBTQ individuals from a section of the ACA barring discrimination on the basis of race, color, national origin, sex, age or disability. AARP and AARP Foundation, along with SAGE, filed an amicus brief challenging this rule, arguing it would harm LGBTQ older adults. AARP’s brief emphasized the importance of ensuring equal access to healthcare for the LGBTQ community, especially as our nation grapples with a public health crisis. A preliminary injunction issued by the U.S. District Court for the District of Columbia prevents HHS from enforcing that change before the court hears the case.
Preserving Voting Rights
Ensuring that older adults can vote safely by absentee ballot or in-person, especially during the pandemic, is critical to guaranteeing they can exercise their fundamental right to vote. AARP and AARP Foundation have weighed in via amicus briefs and through litigation to protect voting rights around the country. Last July, in NAACP Minnesota-Dakotas Area State Conference v. Simon, AARP and AARP Foundation urged a Minnesota District Court in an amicus brief to send absentee ballots to all registered voters and waive a state requirement that a witness or notary sign voters’ ballot envelopes to vote in the primary.
We argued that voters should not have to choose between risking their health and casting a ballot. The parties ultimately reached a settlement to waive enforcement of the Witness Requirement as requested by the plaintiffs. The parties later agreed that absentee ballot applications would be sent to all registered voters. Once the Minnesota District Court for Ramsey County approved it, and no appeal was filed, the settlement became final.
Social impact litigation protects the rights of older adults, removes barriers they face in accessing services and benefits and helps change societal attitudes that influence how those rights are respected and enforced.
While we would prefer not to have to file a lawsuit to protect our rights, social impact litigation can be an effective driver of social change when laws are not adequately enforced or abided by, elected officials are slow to act or societal attitudes lag well behind what justice requires. It is a valuable tool as we work to ensure the future we envision for all.
Lisa Marsh Ryerson is the president of AARP Foundation, in Washington, DC.