A good time to remember Holbrook "Hobey" Bradley

He took the USG to court for age discrimination 33 years ago

Image from Amazon

I  recently learned that the FSO who took the federal government to court for age discrimination passed away last month. Hobey Bradley was the plaintiff in Bradley v. Vance; he won in the lower court, but the Supremes reversed the decision and sided with the government in an 8-1 decision in 1979.  

We note that Hobey took the government to court in 1977 when he was 61 years old.  The case was decided by the Supreme Court in 1979 when he was 63 years old. Two years after that, when Hobey was 65 years old, Congress reversed course and again raised the mandatory Foreign Service retirement age to 65 in the Foreign Service Act of 1980 (as it had been from 1924 to 1946). In 2010, Hobey died at the age of 93.

Below is an excerpt from signonsanddiego by Caroline Dipping:

In 1977, Holbrook “Hobey” Bradley sued the federal government for age discrimination. The then-61-year-old Foreign Service member objected to the service’s mandatory retirement age of 60.

Like everything in Mr. Bradley’s colorful life — be it as a correspondent during World War II to writing his memoir at age 90 — he prevailed, winning in U.S. District Court in the District of Columbia. The government appealed the decision to the Supreme Court and won.

Mr. Bradley died of bladder cancer July 10 at his daughter’s home in Encinitas. He was 93.

Mr. Bradley joined the The Baltimore Sun in 1942 as a police reporter before being assigned a year later to cover the 29th Infantry Division of Maryland training for the invasion of Europe in Devonshire and Cornwall. He was under orders from his editor not to go ashore on D-Day, June 6, 1944, during the assault on Omaha Beach.

“My editor, Neil Swanson, said if I got myself killed, we’d have no one there,” Mr. Bradley told The Sun in a 2005 interview. “On the 7th, I told my ship’s captain I’d be hitting the beach. He said, ‘Not from my ship!’ He was afraid if I kicked the bucket, he’d get the blame. When the next small boat came, I just went down the rope ladder and got in.”

Mr. Bradley was born Sept. 25, 1916, in Boothbay Harbor, Maine, to Alvin and Ruth Bradley. His grandfather, Alvin F. Bradley Sr., was a photographer noted for his portraits of Mark Twain.

He was a 1936 graduate of the Pomfret School in Pomfret, Conn., and earned an archaeology degree from Yale University in 1940. After college, he married Polly Chennery Patterson, the daughter of The Baltimore Sun Publisher Paul C. Patterson.

After the war, Mr. Bradley was a correspondent for Life magazine in Washington, D.C., before returning to Berlin and Nuremburg as an information officer for the U.S. Occupation forces. There, he aided the re-emergence of the German press and was later transferred to Munich and Bavaria as a Kreise Resident Officer in the United States Office of the U.S. High Commissioner for Germany.

In 1951, Mr. Bradley joined the Asia Foundation with posts in San Francisco , Ceylon and Indonesia . In 1962, he was a Foreign Service officer for the State Department assigned to the Voice of America Far East news desk.

From 1964 to 1976, Mr. Bradley worked for the United States Information Agency, a job that took him to Korea, Saigon, Turkey, Calcutta and Paris for the peace talks with North Vietnam.

“It was a very exciting life,” said daughter Phoebe Bradley of Encinitas. “It was not just moving to another town, it was moving to an entirely new language and culture. It was an incredible opportunity, and looking back, I loved every moment of it.”
[…]
“The most interesting thing was the way he faced his death,” Bradley said. “It was like he faced life: openhearted with an almost childlike curiosity.

“He was fully conscious of the fact he was dying, and he would say to visiting friends, ‘I’m doing something remarkable,’ and they’d say, ‘What is it Hobey?’ And he’d say, ‘I’m dying. I’ve never done this before.’ ”

Read the whole thing here.

Bradley v. Vance: The Yesterday You Worried About Tomorrow

'64 - '95 album coverImage via Wikipedia

Wholesale replacements of experienced employees with inexperienced beginners is a bad bet

This is a follow up to my post here and here on a recent case challenging the mandatory age retirement (MAR) in the Foreign Service.I’ve dug and read the Bradley v. Vance decision more than once since MAR had come up as a topic during the most recent AFSA election.I remember thinking, especially after reading Justice Marshall’s dissenting opinion that he seemed to be ahead of his time on this.Perhaps reading it in light of today’s realities, gives it more resonance.

I should note that two years after the Bradley decision, Congress reversed course and again raised the mandatory Foreign Service retirement age to 65 in the Foreign Service Act of 1980, as it had been from 1924 to 1946. And 65 has remained the mandatory age for retirement in the Foreign Service since.

I don’t know if this can be overturned. Obviously, the Sutherland Asbill & Brennan lawyers believed they have a good case in Colton v. Clinton or they would not have taken the case.How difficult the task would be, I don’t know.I do believe that if you should seek to overturn this precedent, there is no better time to do it than now. (Side note: I don’t think this is over sharing but my best friend is turning 65; and I am protected under ADEA though nowhere near collecting Social Security, nor a candidate for MAR).


Will you still need me, will you still feed me – when I’m 64?

According to the report, An Aging World: 2008, the average age of the world’s population is increasing at an unprecedented rate. The number of people worldwide 65 and older is estimated at 506 million as of midyear 2008; by 2040, that number will hit 1.3 billion. Thus, in just over 30 years, the proportion of older people will double from 7 percent to 14 percent of the total world population.

One government study estimates that 93% of the growth in the U.S. labor force from 2006 to 2016 will be among workers ages 55 and older.

Finally, a Pew Research Center analysis indicates that older workers are the happiest workers. The Center says that some 54% of workers ages 65 and older say they are “completely satisfied” with their job, compared with just 29% of workers ages 16 to 64. The explanation lies in figures cited above — a high percentage of these workers are working because they want to, not because they need to.

Somethings to keep in mind…


Overturning a Precedent

A CRS report on the Supreme Court’s overturning a precedent says that “as a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare decisis (“to stand by a decision”). However it also states that “There are numerous other instances of the Court’s overruling of hoary precedent.Indeed, the older a precedent is, the more possibility there is that its doctrinal underpinnings will have been eroded through developments in the law.Age of a precedent can provide the opportunity for its reinforcement as well as for its erosion.”

It also explains that a “a precedent “that has become integrated into the fabric of the law” is more likely to have engendered reliance interests, and its overruling may even damage “the ideal of the rule of law.” The CRS report says that under this theory, “stronger arguments should be required to overrule a precedent.”

I don’t know how much stronger an argument would be required in this case. But things have changed in significant ways the last 30 years …


“Wear and Tear” wears no age

The appellees in Bradley v. Vance say that “many overseas posts are as pleasant as those in the United States, and that many people over age 60 are healthy, and many younger people are not. But they admit that age does, in fact, take its toll, and that Congress could perhaps have rationally chosen age 70 as the cutoff.” fikir

The way I see it — majority of overseas conditions are certainly not as pleasant as those in the United States.But when they are taxing and difficult, they impact not just 60-65 year old employees, but everyone assigned overseas (including spouses and children). Thus, the wear and tear of constant relocation, emotional toll and dislocation, changing weather, frustration from living away from family members, adjustment to a new culture and security threats is not unique to people of older age but affects everyone in the Service.

I call to the attention of the gentleman the fact that the kind of service which these men must render involves going to the Tropics; it involves very difficult and unsettling changes in the mode of life. The consensus of opinion was that the country was better off to retire them, as a general rule, at 65.” 65 Cong.Rec. 7564-7565 (1924) (Rep. Rogers).

 

In 1924, Mercedes-Benz had just been formed; an American airman flies from NY to San Francisco in 21 hours and 48 minutes and two U.S. Army planes complete the first round-the-world flight in 175 days. Also in 1924, the first regular airmail services start in the USA and you can get an Underwood typewriter with just a $3.00 down payment. Regular commercial flights between North America and Europe also did not start until 1945.

Thus, the modes of travel for our diplomats assigned to distant places in Europe, the Far East, and Africa in 1924 … those invariably included rail and sea travel which took days, weeks, even months.Today, however, 21 hours in an economy class is what you get. Most travel from DC to our overseas missions occurs less than 24 hours.


You’re getting older and getting better …

In 1983, four years after the Bradley decision, Congress recognized the fact that life expectancy has increased substantially since 1940 and enacted increases in the normal retirement age gradually from 65-67.In 2008, the American Academy of Actuaries even issued a rare “public interest” statement advocating raising Social Security’s age when an eligible retiree receives full pension benefits another two years to 69.

The life expectancy in 1980 measuring overall quality of life in a country and mortality at all ages was 70 years for males in America. For females the life expectancy was 77.4. In 2009, the estimated life expectancy in the United States has increased to 75.65 years for males and 80.69 years for females.

The Colton lawsuit cites several current political appointees who are over 65 namely:

  • George Mitchell, Jr. (Special Envoy to the Middle East) 76 years old
  • Stephen Bosworth (Special Envoy to North Korea Policy) 79 years old
  • Dan Rooney (US Ambassador to Ireland) 76 years old
  • Richard Holbrooke (Special Rep to Af/Pak) 67 years old

It also points out that the current Director General of the Foreign Service Nancy Powell will turn 65 during her tenure, and Secretary Clinton will be past 65 if she serves her full 4-year term. It did not include in the list the new US Ambassador to the UK, Louis Susman who is 71 years old or Johnnie Carson, a retired diplomat who was recently asked to come back as Assistant Secretary for the Africa Bureau who was born in 1943. If Carson’s Wikipedia entry is accurate, he is 66 years old.There is obviously, a prevailing belief that experience matters … that the old hands at this game are effective in what they do.But how can one argue that political appointees over 65 are just as effective at their jobs, while career employees over 65 are no longer as good? Or that they must get out as soon as they turn 65 — on the dot or they turn into pumpkins?

The complaint also did not include the fact that a large number of work at State and USAID are performed by contractors recruited for their experience by private companies with no mandatory age requirements.In 1979 when USAID was a 20-year old agency with full staffing and funding, this argument put forward by Justice Marshall did not resonate.But in today’s reality where USAID is a poor shadow of its old self, it might be harder to argue that a 65 year old employee must leave employment under MAR, when weeks later he/she could be working in the same job as a USAID contractor (or as a political appointee, for that matter).

Mid-level Staffing/Experience Deficit

A report dated May 2009 states that a January 2008 analysis by State’s Human Resources Bureau indicates that mid-level shortages continue. The report notes the public diplomacy cone has the highest mid-level deficit among the five generalist cones, and public diplomacy officers are being promoted through the mid-levels at higher rates than other cones. State officials expect it will take several years before the mid-level deficit is erased.

The GAO report released this month on staffing at hardship posts says that “while new resources may enable State to partially address vacancies and the department has reduced its mid-level deficit since 2006, the remaining shortage of mid-level officers represents a continuing experience gap. State faced a 28 percent greater deficit at the FS-02 level than it did in 2006, with mid-level positions in the public diplomacy and consular cones continuing to experience the largest shortages of staff overall.”

In this post, I also talked about the language shortfalls in the State Department. The reality is growing a language competent corps takes time and practice. It is safe to assume then that our most competent foreign language speakers at State have had multiple assignments in specific areas of the world in the last 20-30 years of their careers.And just when they are hitting their peak, they also hit the MAR brick wall.

So even if the State Department is repopulating its mid-level ranks with faster promotion, it is at the same time reducing its already thin mid-level ranks under MAR. This, of course, could result in continued staffing gap at the mid-levels and persistent shortage of foreign language speakers.

Tell me again that this is our most adaptive strategy for talent management.


Baby Boomers Sailing into the Sunset

Remember that saying about the Army having more band members than the Foreign Service?The Foreign Service employees number approximately 11,500: 6,500 Foreign Service Officers and 5,000 Foreign Service Specialists.

Remember the National Council on Aging saying that a member of the baby-boom generation will turn 50 on the average of every 7.5 seconds?

The Partnership for Public Service projects that some 7200 Foreign Service employees will retire in 2009-2012. If that projection is correct, we are talking about the departure of over 60% of the staff.And even with a projected hire of 5,663 in 2010-2012, how quickly can you replaced the experience of those sitting at the top of the pyramid? State might be able to fast-tracked promotion at any speed it wants, but wholesale replacement of experienced diplomats with inexperienced beginners is a bad bet.

In the end the real issue when it comes to mandatory age retirement is a simple one made complicated by more details than necessary.

As Justice Marshall says in 1979 “The issue, […] is not whether persons between age 60 and 70 “wear down,” but whether they are competent Foreign Service personnel.”

Related articles by Zemanta

Bradley v. Vance: Revisiting Mandatory Age Retirement

U.S. Supreme Court building.Image via Wikipedia

With Colton v. Clinton recently filed, I thought it might be interesting to revisit the landmark decision of Bradley v. Vance (1979).

Below is a quick summary of Bradley v. Vance 440 U.S. 93 (1979) from The Oyez Project.Reprinted below under Creative Commons under nc-sa/3.0:


Facts of the Case:

Section 632 of the Foreign Service Act of 1946 required that members of the Foreign Service retirement system retire at 60. No mandatory retirement age was specified for employees covered by the Civil Service retirement system. Holbrook Bradley, a member of the Foreign Service retirement system, challenged the statute in United States District Court for the District of Columbia and prevailed. The government appealed to the Supreme Court.

Question:

Did Section 632 of the Foreign Service Act of 1946 violate the Equal Protection component of the Due Process clause of the Fifth Amendment?

Conclusion:

No. In an 8-1 opinion written by Justice Byron R. White, the Court emphasized the distinction between the Civil Service and Foreign Service, and the “special attention” paid to the Foreign Service by Congress. The Court interpreted the purpose of Section 632 to be the encouragement of the “highest performance in the ranks of the Foreign Service by assuring that opportunities for promotion would be available,” a legitimate interest that justified the distinction. The Court also recognized the possibility that service in the Foreign Service would be more rigorous than service in the Civil Service. Given that possibility, Congress had a “reasonable basis” for enacting the statute, satisfying the rationality standard set forth in Massachusetts Board of Retirement v. Murgia.

* * *

Fundamental Career Principle

Justice White in the majority opinion of the Court cited the “the fundamental career principle” in the Service.This is from 101 Cong.Rec. 3554 (1955) whereRep. Richards states that “The Foreign Service is a career service that a man enters at the bottom and works his way up. When the Committee on Foreign Affairs wrote the Foreign Service Act of 1946 which the Congress adopted, that principle was stressed.” Footnote in this case indicates that the Deputy Under Secretary of State Henderson also states that the State Department would also prefer to have entrance be through the junior level.

There is something off about this fundamental career principle. Although most people still enter the Service at the bottom, they are no longer just men anymore; and they are no longer just fresh out of college.More and more entrants have had other careers before the Foreign Service, so this career principle of starting everyone at the bottom undermines effective use of valuable talent. The fact that there is a large mid-level staffing gap also puts into question the wisdom and practicality of this still current practice.

Shrinking the top of the pyramid

The Court also notes that not only was “initial selection to be on the basis of merit, but Foreign Service officers were also to be classified based on their individual abilities, and to be regularly examined for promotion by selection boards. Those officers failing to measure up to the performance expected for their class or who had failed to win promotion within an allotted time were “selected out.” The aim was to stimulate superior performance and to retain only those capable of conducting themselves in this manner in widely different assignments around the world.”

Further it states that the retirement and selection-out provisions are part of an integral plan to create “a correctly balanced Service that [was] constructed so that the size of the various classes would correspond with the distribution of the work load of the Service.”

In short, by selecting out and retiring more people, there will be less of them at the top of the pyramid, giving way to younger blood to assume positions at the top.

The wear and tear of Foreign Service

Another argument for the majority says that the Foreign Service involves extended overseas duty under difficult and often hazardous conditions, and that the wear and tear on members of this corps is such that there comes a time when these posts should be filled by younger persons. Mandatory retirement, it is said, minimizes the risk of less than superior performanceby reason of poor health or loss of vitality.The Court noted the “common sense proposition that aging — almost by definition — inevitably wears us all down.”

In 1979, the Court looked back to a concern cited 55 years earlier:

“I call to the attention of the gentleman the fact that the kind of service which these men must render involves going to the Tropics; it involves very difficult and unsettling changes in the mode of life. The consensus of opinion was that the country was better off to retire them, as a general rule, at 65.” 65 Cong.Rec. 7564-7565 (1924) (Rep. Rogers).

JUSTICE MARSHALL, in his dissenting opinion states:

The Court today finds a rational basis for the forced retirement of Foreign Service personnel at age 60, on a record devoid of evidence that persons of that age or older are less capable of performing their jobs than younger employees. I adhere to my view in Massachusetts Bd. of Retirement v. Murgia (1976), that mandatory retirement provisions warrant more than this minimal level of equal protection review. Because I believe that the statute at issue here cannot withstand closer scrutiny, I respectfully dissent.

Justice Marshall points out that “A person’s interest in continued Government employment, although not “fundamental” as the law now stands, certainly ranks among the most important of his personal concerns that Government action would be likely to affect. This interest is of special significance to older employees, because “[o]nce terminated, the elderly cannot readily find alternative employment. The lack of work is not only economically damaging, but emotionally and physically draining. He also added that ample clinical evidence supports the conclusion that mandatory retirement poses a direct threat to the health and life expectancy of the retired person. . . .”

Justice Marshall says that in addition, mandatory retirement provisions warrant careful judicial attention because of the class on which the deprivation is imposed. To be sure, the elderly are not a “discrete and insular minorit[y] in need of “extraordinary protection from the majoritarian political process.”

Additional items he cited in his dissenting opinion:

  • The Government submitted no evidence that it has encountered age-related problems in connection with these or other civil servants aged 60 and over.
  • AID often has its work performed on a contract basis by other agencies that do not have mandatory retirement provisions.
  • The Court closes its eyes to appellees’ evidence against the mandatory retirement provision and excuses the Government from producing evidence in support of it because Congress determined that the nomadic life of Foreign Service personnel would take its toll by the age of 60. This determination, the Court concludes, rested on the “common sense proposition that aging — almost by definition — inevitably wears us all down.” The issue, however, is not whether persons between age 60 and 70 “wear down,” but whether they are competent Foreign Service personnel. Absent any concrete evidence in the record that they are less able, or, indeed, any indication that Congress even considered such information when it enacted the statute, see n 6, supra, the Court is remitted to unsubstantiated assumptions concerning the competency of older workers for white-collar jobs.
  • As the Foreign Service personnel system now operates, persons who do not measure up to Service standards are selected out, or terminated, after an annual review. Further, all Foreign Service employees are given biennial medical examinations, as well as special examinations when necessary, and are subject to medical selection out if they are not fit for duty. See Record 20. Under this scheme, then, the continued competence of appellants’ personnel is periodically assessed. With such individualized procedures already in effect, the Government cannot realistically claim that prohibiting resort to age-based generalizations would jeopardize the quality of the Foreign Service.
  • Even if mandatory retirement does ensure promotional opportunities for younger employees, it also deprives the Service of the talents of persons who it has admitted are, at least at the time of their retirement, “its best officers.” S.Doc. No. 14, 90th Cong., 1st Sess., 118 (1967). In the absence of any evidence that employees aged 60 and over are less able, or that forced retirement does, in fact, boost productivity by enhancing recruitment and promotional opportunities, this proffered justification does not withstand analysis.

Do you think this precedent could be overturned? More later …