Free Speech and the Law, Part II

GUEST: Harriet Pilpel
VTR: 2/4/1983

I’m Richard Heffner, your host on THE OPEN MIND. Some years ago there was a perfectly delightful magazine article in which the author lamented that her generation, mine too, in fact, had always gotten the short end of the family stick symbolized by who got the white meat of the chicken at Sunday dinner. As a child, she watched dutifully while her parents got the white meat, for in those days, old people were treated best, and children kept in their place. By the time she grew up, however, American values had changed. Now the young had become most important. The white meat went instead to the little darlings, and the author’s time seemed never to have come, even now as the years advanced.

Well, those of us who are now “getting on”, as they used to say, surely tend to feel increasingly deprived, and of much more than our favorite chicken parts. Since there are so many more of us older folk proportionately, however, and since demographics indicate that our numbers will increasingly be legion in the years ahead, society is going to pay much more attention than ever before to the infinite range of problems that face those of us who are indeed fortunate enough to grow old and older still. It hurts, but it’s better than the alternative. And as we move from a youth-conscious to an age-conscious society, I think that given the huge role the law plays in our lives, we ought to take at least an initial glimpse at some of the law-related issues that have an impact upon the aging.

For that reason, my guest today on The Open Mind is a distinguished attorney, Harriet Pilpel, who has spent a good deal of her professional time concerned with problems that relate to our topic today.

Harriet, not only do I identify you as one who is expert in these areas, but I know you’ve thought a lot of what happens to us and what ought to happen to us as we grow older, and perhaps how we can prepare ourselves legally and otherwise.

What are the major words of advice that you do have for people growing old?

PILPEL: I guess the first major words of advice I’d have for people growing old is that they should bear in mind that they might get old someday, and that’s a very important bit of advice, because most of us who are older don’t really believe it. And since we are perceived by other people to be older but don’t so perceive ourselves, it’s a good idea to fix clearly in our mind that whatever we think, they think we’re older.

HEFFNER: Let me interrupt. Are you suggesting that many people don’t plan because they simply don’t deal with the thought that age is creeping up?

PILPEL: I think they don’t plan because they don’t feel that age is creeping up. I always thought that older people knew they were older – I mean, all you have to do is look at them. But the fact of the matter is that most of the older people I know who are active do not consider themselves older people. I don’t know what they describe themselves as, perhaps advanced middle age, but they don’t consider that they’re old. And therefore it is sufficient until the day when they feel they really are old.

HEFFNER: And you’re suggesting that that’s too late?

PILPEL: It’s too late in a variety of specific situations. Typically, until recently anyway, the chief family characteristic was that the man was the person who made the money, and the woman was the person who managed the home. Now that is a stereotype which really doesn’t exist to any extent today in most economic levels. However, what does still exist at many economic levels is that even where the woman is a worker outside the home, she has not assumed any responsibility for the maintenance of the home in financial terms. If you ask many women how much do we live on, how much does it cost us for rent, what’s the price of gasoline or bread, they will look at you in a sort of blank way if they come from middle or upper income groups and say, “I don’t know, my husband takes care of that.” In the lower income groups, where every penny counts, I think that that may not be the case. But, whatever the income group, it is very important that both parties, in my opinion, to a marriage, who live together, should be fully acquainted with the economic underpinning of their marriage.

HEFFNER: Are you saying that because of the potential for an earlier death on the part of the husband or are you saying it because of the potential for divorce, or are you saying it in just good principle?

PILPEL: I don’t think so many people get divorced when they reach older years. I think middle-aged people tend to get divorced. I’m saying it because there are so many instances in which the person who handles the funds dies first. It usually is the man. It could be the woman. And, the lawyer comes up and says, “Well now, let’s see what properties are involved here.” They don’t know whether they own the house jointly or separately. They don’t know for sure where all the bank accounts are or where the insurance policies are kept or indeed what insurance policies there are. And what is really one of the worst things they don’t know is they don’t know where the will is and we have lots of movies and television programs about lost wills. Most people that I have spoken to who are not lawyers or legally inclined particularly say, “I’ll never forget where my will is. It’s in a safe deposit box.” That is absolutely the worst place for a will to be, because in many states including New York for example, when a person dies, everything is sealed until their state tax authorities have an opportunity to see what’s there. So, if it’s in a safe deposit box, the chances are you can’t get a hold of it, and that’s not a very good idea. You can, of course, proceed on the basis of a copy of the will, but if the original is different, then you’ve proceeded at your peril.

So that, I always feel that with people of older years, it’s a good idea to make some sort of an inventory of what they have, and where it is and whom to notify and who the insurance agent is, et cetera. And it will save a great deal of time, anguish, and even money…

HEFFNER: When you say…

PILPEL: …when one of them dies.

HEFFNER: When you say even money, because you mean it costs so much for legal and accounting help if you…

PILPEL: Yeah, to find out where all these things…I know of an estate where the decedent died a year ago February. That’s now just about two years. And we’re still finding bank accounts and stock certificates in the most unlikely places because he didn’t expect to die when he died, and he never told anybody where any of these were, and it’s extremely difficult to make an estate orderly if you don’t know what’s in it.

HEFFNER: With perhaps more people thinking about retirement there’s been so much of a concern about Social Security recently, and we don’t want to go into those concerns, but with more and more people thinking about that issue, won’t more and more people be thinking about, “Where are these papers, what are my resources, what do I have?”

PILPEL: Well, you are probably a much better prognosticator than I am. I am not at all sure that the confidence in Social Security, so long as it’s possible to have it, doesn’t diminish rather than enhance people’s willingness to do the other thing. Because for an awful lot of people, all they really have that they consider important is Social Security, and that goes the way it goes if the matter’s not disposed of by will.

There is a great problem today, of course, for people whose chief or only means of support is Social Security in view of the constant warnings over television and newspapers and so forth that the system is bankrupt or is going to be bankrupt. I am under the impression now that it may have been saved, but there are going to be changes made in it which will affect the lifestyle, I think, of a great many people.

Now, organizations like the Gray Panthers have been pretty effective, I think, in defeating a lot of proposals. One proposal would remove millions of people from Social Security altogether. Another would have reduced the age…would have increased the age at which you could begin to take Social Security benefits. But obviously, as part of the whole budget discussion for the next several months there is going to be a problem of where they are going to cut Social Security.

HEFFNER: Harriet, in terms of this urging that you do that people take stock, take inventory in preparation for the…I was going to say waning years, but I don’t want to say that…preparation for the years ahead, do you think the fact that more and more women are working does contribute more and more to an awareness on the part of those women? I mean, just, you’ve got to be fairly hard-nosed to go out in the world of work, and doesn’t a hard-nosedness lead to this kind of inventory-taking?

PILPEL: Usually, women are aware of what happens to their earnings, but they are not necessarily interested in what happens to their husbands’ earnings. I know a great many women who just simply pay what they earn into a joint account, and if anything were to happen to their husbands, they would know what they contributed, but they wouldn’t know what their husband contributed.

There is a smaller class of women whose general attitude is that what they earn is their property and what their husband earns is the property of them both, and that sometimes gives rise to a little argument between the parties while they’re both alive. In any event, it’s up to one or the other of them to get the inventory in some kind of shape, and I think maybe if a woman is in a field where that’s relevant she might be more hard-nosed about it.

HEFFNER: What do you mean, “In a field where it’s relevant?”

PILPEL: Well, if she is a lawyer or a doctor who has to pay off his expenses or a stockbroker or an estate advisor and so forth, but if a woman goes into a career like teaching, I’m not sure that that makes her much more hard-nosed about economics than she would be if she were at her home.

HEFFNER: What are the other issues that touch upon legal considerations that do relate to people who are getting on in years?

PILPEL: One of the great problems for older women particularly has been that they have no credit standing of their own. In other words, if you open charge accounts at department stores it’s usually Mr. and Mrs. John Jones and they don’t bother to check the credit standing of Mrs. John Jones if Mr. John Jones is clearly a good credit risk. If John Jones dies, or if they get divorced, then sometimes in the normal course their credit might be discontinued. The wife would have to apply for credit in her own name and might find that she has no credit history. There is legislation now on the books which says that the wife is just as entitled to the credit history of the couple as the husband was, and that she cannot be discriminated against in terms of borrowing money or charging goods if that is a satisfactory record of them both. They can’t make her start all over again.

Another place where the federal government has tried, and I think succeeded, in being helpful is with reference to displaced homemakers. Now, displaced homemakers are – I guess that’s a self-defining term – again, it happens most frequently with older women that’s for two reasons: First of all, women outlive men by a considerable number of years. I have no idea why that is. People say hormones and so, perhaps that’s what it is, hormones. But whatever the reason is, they sometimes find themselves without a husband, with limited economic facilities, and with really nothing for which they were trained. Nothing. Displaced homemaker services are an effort on the part of the government to take these older women and equip them to go back into the job market in one way or another, preferably in jobs that do not displace other workers. I can’t give you an enumeration of them because many of them are quite original. For example, one older woman I know really loved helping the real elderly balance their books, pay their checks, and so forth, but there was no one elderly person who wanted her. However, there were five elderly people who wanted her, so each day of the week she has a job with a different elderly woman. She balances the books, she pays the checks, and so forth. That’s one example of something where she hasn’t really displaced anybody; it’s a new kind of career.

Another way in which older women can sometimes be very helpful is by acting as foster grandparents. More and more, I think, there is a tendency on the part of the social service agencies who recognize that the old and the young have a great deal in common, ant that when parents are out working or otherwise engaged in the prime of their lives, there is something that older people can contribute to younger people, children, and vice versa.

So you do have a lot of activity in the form of foster grandparents, and, as you probably know, in some cities, which includes New York, you have retired elderly businessmen who give free services in terms of consultation and advice under the auspices of a league of the city. But it’s a very valuable service for which people used to be paid, but which they now do as volunteers and perform a valuable social function.

HEFFNER: You finally have come to the point of older men.

PILPEL: Yes, although there aren’t that many of them…(Laughter)

HEFFNER: Thank you, Harriet. You fill me with something or other – maybe dread. Do we really go that much earlier than…

PILPEL: Well, statistically you do. I’m sure you will live to be 103, and many men do outlive their wives, but the statistics are the other way. And, as I say, no one seems to be quite sure. Arguments have been made that now that women are subjected to the same job stresses that men are, maybe they will not live longer. So far at least that does not seem to be the situation. Whether they are subjected to job stresses or not they seem to be living longer. And the average expectancy for a woman now I think is 76 or something like that. And that, of course, is a vast difference form what it was years ago. For a man, I think it’s 72.

HEFFNER: Still 72.

PILPEL: I think so.

HEFFNER: This matter you mentioned a moment ago, the matter of foster grandparents – and it does tick off in me the question of grandparents who have been unfortunate enough as not to have access to their own grandchildren. I suppose in terms of numbers this isn’t a major problem, but in terms of those who do suffer in this way, is the law moving in any direction?

PILPEL: Yes, it is, and I’m not sure that you’re right when you say you’re not sure that in terms of numbers it’s a significant problem. I think it may be. That thought is premised on the fact that within the last several years, 41 out of the 50 states have passed specific laws giving grandparents certain rights which suggests that: a) there is a group of people putting this forward very actively as a program, and b) that there is a need for this kind of legislation.

HEFFNER: how do you feel about that kind of legislation, that kind of governmental involvement?

PILPEL: I think that the government involvement is on a very flexible basis. Obviously you can’t pass a law which says every grandparent has a right to see his grandchild anytime he wants to or every grandparent has a right to see his grandchild on Sundays. I mean, that’s not the way the laws are. What the laws do is give what lawyers call a “standing to sue” to grandparents to seek visitation rights if those rights are cut off by reason of usually death or divorce. What happens sometimes is that if one parent dies the remaining parent may take up residence with his parents and his children. And the parents of the spouse that died find that they no longer have access to their grandchildren. And since I said before I think grandchildren/grandparents contribute a great deal to each other, that is a real loss, and under these laws a grandparent could go into court and say, “I would like to have the right to see my grandchildren once in a while.” And the court would work something out.

This is also sometimes true in cases of adoption, but it gets much more complicated in cases of adoption because, as you know, we have a big controversy going as to whether the adopted child or the adoptive parents ever should know who the child’s true natural parents are. And in that situation I think it is unlikely that grandparents: a) would know who they were, or b) would be allowed visitation. However, there are a great many situations where adoptees are adopted by people who are known or around. I mean a woman will adopt her deceased sister’s children or some uncle in the family will take over the children of a nephew who has died in a war or something like that. Where that happens, again, the family that takes over tends to be rather possessive and may seek to exclude the family of the deceased or the divorced spouse from seeing the children. I have great difficulty with the issue, as I think everyone does, because if the children are in the hands of a particular family and that family is hostile to the other family, it puts the kids in a somewhat…or could put the children in somewhat of a conflicting position. But actually, from the little I know, that does not seem to happen.

Children get grown up in a variety of ways very quickly today, as you know, and I think they have their own stance as well as the standpoint of the two groups that may be fighting about them.

HEFFNER: What we’re concerned about here is of course not the children, not the grandchildren, but the grandparents. And your sympathy goes to them in this regard.

PILPEL: I feel very sorry for grandparents who are cut off from their grandchildren because, speaking as a grandparent, I can say that there are few if any rewards in life equal to that of having grandchildren. Most of the cases that arise where grandparents are excluded from their grandchildren I think are susceptible of an intelligent approach, especially if expert help is sought either in the court personnel, by the court social worker, or by private psychologists or psychiatrists.

The one case where I think it would be extremely difficult would be the case of a closed adoption where, as I said, nobody is supposed to know who the actual parents are.

HEFFNER: Harriet, I wonder if I could move, in the few minutes we have remaining, to another subject, and that is the one of retirement. I’m not talking about Social Security benefits or rules or anything of the kind, but what has been your experience in terms of the pressure on people who reach 65 or reach 68, reach 70 to retire? Not just the pressure, the social pressure, but perhaps the job insistence. “You move on to make room for others.” What’s your own sense of the rightness and the wrongness, the fairness and the unfairness involved?

PILPEL: I think it depends on the job. Because if the job is not one which involves the constant growth process, and where you’re doing the same thing year after year, I don’t think there’s much problem. I think people want to retire, and, in point of fact, many people request early retirement. They’ve had enough. On the other hand, old lawyers, like old soldiers, never die, they just fade away.

HEFFNER: You said before old college professors too.

PILPEL: (Laughter) Old college professors too. I think that when you are in a field where everything is new every week, where you have new challenges and new processes, you don’t really want to retire.

I think, overall, I would oppose mandatory retirement but that leaves open some questions. For example: One of the great arguments for mandatory retirement is that it removes the invidious process of saying to a man or woman, “You’re no longer up to the standard and you have to go.” If you have a flat rule everybody at 65 has to go, then nobody’s feelings are hurt. On the other hand, you may lose some of your more valuable people.

The personnel persons to whom I have spoken about this say that it really is not any more difficult to judge the capacity of an older person than of a middle-aged or younger person, and that there are certain ways of judging people, and if a person is not discharging his job well whether because of age, poor eyesight, lack of attention or whatever, he doesn’t have to be kept on, which is the argument for not having mandatory retirement.

The situation, I think, is less intense that it was because the age now is 70 under federal law, and since the majority of people who could retire at 65 did, or retired before that, I think that majority is even larger now that the age is 70. However, I myself feel that there is nothing sadder than to see people who have been actively engaged in a career excusing themselves for “not doing anything,” and the answer to that is clear. The need for volunteer work is overwhelming. Important volunteer work. Many of the retirees with whom I am acquainted were wise enough to plan for their retirement, which is a good idea for anyone who plans to retire, and so they stepped right in – one man to becoming the financial consultant to a small hospital which desperately needed financial know-how, computer techniques, and so forth that he had used in his business. Another man I know had all his life been a camera buff and now is a very distinguished photographer who teaches photography in various of the New York public schools, and I think is responsible for a whole group of young people becoming photographers.

So that would tend to mitigate in favor of mandatory retirement if necessary. But as I say, on the whole I think it’s better to leave it up to the individual and whether he or she is still doing a good job.

HEFFNER: A couple of years ago the President of the American Bar Association said that the matter of age discrimination in employment will be the source of a great percentage of employment discrimination litigation, perhaps even eclipsing civil rights cases. Now that would seem to indicate that we’re not all sitting around just eager to retire or not so many of us, and that indeed there will be so many cases involving my being pushed out, my being discriminated against because of my age.

PILPEL: I think there will be an increasing number of cases based on age discrimination, but I doubt very much – reluctant as I am to disagree with the President of the American Bar Association – that it will come to anything like the discrimination which has existed against Blacks, particularly, and against women. I think we could discuss if we had the time whether there should be Affirmative Action in favor of older people and I don’t think anyone has seriously suggested that, but it mightn’t be a bad idea.

HEFFNER: When you say no one has seriously suggested that, but the Grey Panthers and others, and there are many pressure groups…

PILPEL: They don’t want people fired because of their age, but they’re not, as far as I know, adopting Affirmative Action programs saying you have to have a certain percentage of old people and if you haven’t got them you have to go out and find them.

HEFFNER: Well, isn’t there an indication, though, a prima facae indication if there are, if one upper company hires, increasingly hires younger people, and increasingly lets go, gets rid of the older ones…

PILPEL: Oh, sure.

HEFFNER: …that there is a case for…

PILPEL: Well, but then it’s the older ones who are being let go who have the case, and you’re not saying to the employee, “You have to look around for older people.” You’re telling them you can’t let your older people go if they are still able to function.

HEFFNER: Would you want to impose that burden or that opportunity, as one might interpret it, upon businesses, government agencies, et cetera, that they search out older persons or that they make certain not to push them out?

PILPEL: The second, because I think there – you know, in the normal course of things everybody gets older, so not everybody becomes Black or becomes female, but everybody gets older – so I don’t know that there’s that much need for Affirmative Action when it comes to older people, but it certainly, I think, requires some effort to prevent older people from being displaced. After all, the original act provided that there should be no age discrimination from 40 to 65. I had never thought of age discrimination at age 40, but actually we ought to mention that, because I think there are industries that really feel that a man’s – particularly a man – is pretty much used up at 40. That would work very well. It may make it possible for him to have a new and second or actually more interesting career. And of course, in the armed forces to a certain extent and then there are some firms which say you can retire when you’ve been with the firm for 30 years regardless of what your age is.

HEFFNER: And that’s true certainly in many government agencies…

PILPEL: That’s right.

HEFFNER: …the military and…

PILPEL: That’s right.

HEFFNER: …and the police, et cetera.

Harriet, do you see this as a period when the, given all the pressures present and future, as this nation tends to get older, do you see that the problems are going to be lessened because there will be a more active pressure group concerned with age, or are we going to collide, the younger and the older groups in our society?

PILPEL: I think the younger groups are going to be resentful of what’s going to happen, because the elderly are accounting for increasingly large percentage of our population, and it will constantly grow, which is another reason against mandatory retirement. Because the mandatory retiree is going to be pulling money out of a pension plan and out of government payments like Social Security, whereas if he or she remains in the labor force they will not be pulling it out, they’ll be putting it in. So that from the point of view of the younger workers, I should think that they might want older workers to be kept on longer. But I think the burden of paying off the debt to older workers is going to become increasingly great, which is why I believe that the President’s Social Security Commission has had a very difficult time in coming up with a recommendation which I think they have just done.

HEFFNER: I don’t know, Harriet, as we draw the program to a conclusion, whether I’m glad I’m going to be old in this time of conflict or whether I wish I were young again. It doesn’t make any difference.

Thank you so much for joining me today, Harriet Pilpel.

PILPEL: Thank you.

HEFFNER: And thanks, too, to you, the audience. I hope that you will join us again here on The Open Mind. Meanwhile, as an old friend used to say “Good night, and good luck.”