Feds Defense of Discriminatory Hiring Program; It’s Legal?

PathwaysThe worst thing about the federal government’s policy of institutionalized age discrimination is that it undermines respect in the government’s promise to insure equal justice for all.

The Office of Program Management in Washington, DC, recently defended the Pathways “Recent Graduates” Program, which allows federal agencies to limit job vacancies to individuals who graduated from high school, technical school and college within the past two years.

Yasmin A. Rosa, who identifies herself as “lead EEO Specialist” for the OPM, states in a recent letter that the Pathways Program “does not discriminate against anyone” because it is legal under an executive order signed in 2010 by former Democratic President Barack H. Obama.

(So, wait a minute, slavery and denying women the right to vote weren’t discriminatory because they were legal?)

The Pathways program is being challenged by a job seeker who applied for a position at a federal agency pursuant to a national recruitment campaign only to be rejected because he graduated from college more than two years ago.

Saying Pathways does not discriminate is like proclaiming the naked Emperor is resplendent in his golden robes.

The Pathways “Recent Graduates” Program obviously violates the Age Discrimination in Employment Act of 1967, which unambiguously prohibits consideration of age in hiring.  Since the vast majority of recent graduates are under the age of 40, the program has a disproportionate and negative impact on older workers. This is called disparate impact discrimination.

President Obama established a kind of back-door amendment to the ADEA when he signed the executive order creating the Pathways “Recent Graduates” program. Obama claimed  the government was at a disadvantage in hiring younger workers compared to the private sector.

In response to a Freedom of Information request, the OPM last month disclosed that  29,595 candidates were selected for employment under the Pathways Program from May 2012  to  Fiscal Year 2014.   A total of  27,423 were under the age of 40 and 2,172 were over the age of 40. This means almost 93% of Pathways hires were under the age of 40 while only about 7% were over the age of 40. The OPM claims its data only covers that period.

By now,  tens of thousands of older workers have been denied the chance to work for our nation’s largest employer -the federal government.

In her letter, Rosa wrote:

 “According to the Program Manager, the Pathways Program does not discriminate against anyone. … The Recent Graduates Program establishes the basis of the two (2) year requirement as being contained in the Executive Order; ‘that is, it is not up to OPM or even the hiring agency (it’s a global or universal requirement). The regulations merely reflect the President’s directive.’”

Rosa said only the President has the authority to rescind or alter the Pathways’ “Recent Graduates” program.”

It is more than a little ironic that the OPM traces its history to the Civil Service Act of 1883 , which was passed to end the corrupt spoils system of partisan hiring in the U.S.  government. According to the OPM, ” The Commission, led by the energetic Teddy Roosevelt, laid the foundations of an impartial, professional civil service based on the merit principle – that employees should be judged only on how well they can do the job.”

The Civil Service Commission was reorganized in 1978 into the Office of Personnel Management, the Merit Systems Protection Board, and the Federal Labor Relations Authority.  The OPM became responsible for personnel management .

Under President Obama’s directive, “A Recent Graduate is an individual who obtained a qualifying associates, bachelors, master’s, professional, doctorate, vocational or technical degree or certificate from a qualifying educational institution, within the previous 2 years …”  5 CFR 362.302(a),

Corporate Attorneys Nominated to Head EEOC and Justice Dept. Civil Rights Division

justice-scale-761665_1Republican President Donald J. Trump has nominated attorneys who have spent their careers representing employers to head the Equal Employment Opportunity Commission and the U.S. Justice Department’s Civil Rights Division.

Janet Dhillon, of Pennsylvania, was nominated to chair the EEOC.  She will replace Acting Chair Victoria Lipnic, who has been praised for her non-partisan leadership style.  Dhillon will hold the seat occupied by former EEOC chair Jenny Yang, who was appointed by Democratic President Barack Obama.

Dhillon is  executive vice president, general counsel and corporate secretary at Burlington Stores and  previously  served as general counsel for JC Penney and U.S. Airways.

Eric S. Dreiband, a veteran employer-side attorney in civil rights lawsuits, was nominated to head the U.S. Justice Department’s Civil Rights Division.

He recently represented R.J. Reynolds Tobacco Co. in an age discrimination case involving the company’s use of internet screening tools to divert the applications of thousands of older workers into a digital trash can. The U.S. Court of Appeals for the 11th Circuit in Atlanta ruled that the Age Discrimination in Employment Act of 1967 protects only employees and not job applicants from employer policies that result systemic “disparate impact” discrimination. The decision affects older workers in Florida, Georgia and Alabama.

Dreibrand couldn’t defend R.J. Reynold’s blatantly discriminatory hiring practices but devised a winning argument nonetheless.

Dreibrand’s nomination garnered criticism last week from the NAACP Legal Defense Fund, which complained that Drieband “has devoted most of his career to defending corporations in employment discrimination cases and advocating for weaker antidiscrimination protections in the workplace.”

Dreibrand, a partner with the Jones Day law firm,  was general counsel of the Equal Employment Opportunity Commission under George W. Bush,

Reynolds Tobacco ‘Walks” in Case of Internet Screening to Exclude Older Job Applicants

smokeA federal appeals court panel in Atlanta this week dismissed the tattered remains of an important lawsuit alleging age discrimination in hiring against R. J. Reynolds Tobacco Co..

In other words, R.J. Reynolds will face no legal consequences for conducting a several year campaign of internet screening to weed out the applications of older workers and target workers who were “2-3 years out of college” who “easily adjusts to change.”

Meanwhile,  the U.S. Supreme Court  has refused to hear an appeal of a landmark decision by the full 11th Circuit of Appeals last October holding that job applicants are not covered under the Age Discrimination in Employment Act of 1967. The appeals court said Richard Villarreal could not sue Reynolds under a “disparate” impact because Villarreal “has no status as an employee.”  The disparate impact theory is used to attack a supposedly neutral policy or practice that has a disproportionate, negative impact on a protected group.

Federal courts have concluded that Villarreal – who appears to be a victim of gross and provable age discrimination in hiring – has no remedy under federal law.

The 11th Circuit, which includes Alabama, Georgia and Florida, is the first in the nation to rule that the ADEA covers only employees. The ADEA has been used to protect job applicants for decades.

After the dismissal of Villarreal’s systemic discrimination claim, his only remaining claim involved intentional discrimination. A three-judge panel of the 11th Circuit on Tuesday upheld the dismissal of this claim because it was not filed within 180 days of the alleged violation.

The 11th Circuit panel said Villarreal’s disparate treatment argument was not eligible to be considered under a so-called continuing violation theory. The panel said this doctrine applies to minor incidents that alone would not be actionable but which become actionable due to their “cumulative” effect … That is not so for Villarreal. He is not challenging the cumulative effect of R.J. Reynolds multiple refusals to hire older applicants; instead he is challenging each individual refusal-to-hire.”

From 2007 to 2010, Reynolds dumped more than 20,000 applications from older workers into a digital trash can. Reynolds hired 1,024 regional territory managers during this period of whom only 1.85 percent (19) were over the age of 40.

Villarreal did not file an age discrimination claim against Reynolds in 2009 when, at the age of 49,  he was not hired the first time for a territory manager position.  He argued that Reynolds did not respond to his application and he had no way of knowing why he wasn’t selected. He finally sued in 2012 – after filing five unsuccessful applications for the position – after a whistleblower disclosed that  Reynolds had a policy of screening out Internet applications by older workers.

Villarreal also argued the statute of limitations should be waived under the doctrine of equitable tolling but the lower court rejected that argument on the grounds that Villarreal failed to inquire about why he was not hired in 2009 and, thus, failed to pursue his rights diligently.

Other defendants in the case were Kelly Staffing and Pinstripe Staffing. CareerBuilder earlier reached a settlement.

Dear EEOC Commissioners …

 

EEOCThe following comments are made in response to the EEOC’s invitation for public comment regarding the EEOC’s discussion of the 50th Anniversary  of the Age Discrimination in Employment Act of 1967 (ADEA) at its June 14, 2017 meeting.

I am a licensed attorney and the author of Betrayed: The Legalization of Age Discrimination in the Workplace (2014) and Overcoming Age Discrimination in the Workplace (2016).  I am the editor of a syndicated employment law blog, When the Abuser Goes to Work and I edit a blog called Age Discrimination in Employment.  I have been quoted in many national publications about the problem of age discrimination in employment in the United States.

I am surprised that it was not mentioned at your meeting that a major reason for the on-going epidemic of age discrimination in employment in America is the legal inequality of older workers.

I urge the EEOC to advocate for repeal of the ADEA. Age should be added as a protected class to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, sex, religion, color and national origin.  This would insure uniform treatment under the law of all forms of harmful employment discrimination, including age discrimination. It is not a radical move; Australia did it in 2008.

Age discrimination in employment currently is treated by the EEOC and federal courts as a pesky, lesser and secondary offense. This, despite an overwhelming research showing that age discrimination, like other forms of discrimination, is based upon false stereotypes, irrational fears and deep-seated animus.  Moreover, age discrimination, like other forms of illegal discrimination, has a devastating impact on both individuals and the American economy.

Age was originally proposed for inclusion as a protected class in Title VII in 1964 but was omitted when it was determined more study was needed. When the ADEA was passed in 1967, it was far weaker than Title VII and it became weaker still in succeeding years due to adverse and some would argue arbitrary rulings by federal appeals courts (i.e. Villarreal v. R.J. Reynolds Tobacco Company, 806 F. 3d 1288 – (11th Cir. 2015) and the U.S. Supreme Court (i.e. Gross v. FBL Financial Services, 557 US 167 (2009).

Attorneys today are reluctant to accept ADEA cases because even patently obvious cases are almost impossible to win due to arbitrary barriers erected by the law and court system. Also, unlike Title VII, the ADEA does not provide compensatory or punitive damages. Indeed, a plaintiff who has incurred no monetary damages may get no damages (or attorney fees) whatsoever despite having suffered egregious age discrimination. Lesser damages under the ADEA is a major deterrent to the enforcement of older workers’ rights.

The ADEA also is burdened by antiquated and arbitrary rules, such as permitting  age discrimination that is not required by ‘business necessity,” and including mandatory retirement for public safety workers, which forces older workers out of the workplace when they are healthy and fit for their jobs.

After 50 years of inequality for older workers, isn’t it time to do what Congress should have done in 1964 – include age as a protected class in Title VII.

In addition to the above, I propose the following:

  •  The EEOC should develop a national action plan to address age discrimination in employment.
  • The EEOC should demonstrate leadership and courage to ensure that older workers are protected from what is now unabashed, epidemic and unaddressed age discrimination in hiring by private sector industries, including high tech and academia, and our nation’s largest employer, the federal government.
  • The EEOC should ensure that an appropriate percentage of its resources are used to combat age discrimination. In 2016, the EEOC filed only two lawsuits with age discrimination complaints, despite the fact that age discrimination complaints comprise almost a quarter of all complaints received by the Agency. This indicates a lack of commitment by the Agency to enforcing the ADEA.
  • It should be a top priority for the Agency to educate EEOC staffers, including hearing officers, about the nature and impact of age discrimination, which is currently given short -shrift by many in the Agency.
  • The EEOC should introduce a national education campaign to dispel myths and stereotypes about older workers.
  • The EEOC should discontinue the EEOC Attorney Honor Program which results in disparate impact age discrimination in hiring. This program sends a message to private sector employers that age discrimination is appropriate and will be tolerated by the Agency. Any applicant, regardless of age, should be eligible for any job at the EEOC.

Throughout and since the Great Recession, millions of America’s older workers (especially women) have been forced out of the workplace by age discrimination and into an impoverished retirement. It is long past the time for the EEOC to step-up and demonstrate an unwavering commitment to combat all forms of irrational and harmful discrimination, including age discrimination.

‘CEO Act!on for Diversity & Inclusion’ Omits Age Bias

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Tim Ryan, the CEO of PricewaterhouseCoopers, recently announced a new campaign to address lack of diversity in the business community that appears to target every protected group except older workers.

PWC is in the midst of an age discrimination lawsuit that alleges the corporation has made it virtually impossible for older workers to apply for entry-level jobs.

Ryan, who also is PwC’s senior partner, announced June 12 on  CBS television that PwC is taking a leadership role in  “CEO Act!on for Diversity and Inclusion.”  He said more than 150 CEOs of Fortune 500 companies have signed up for the new initiative, including the leaders of IBM, Proctor and Gamble, Under Armour and CBS.

According to the campaign’s web page, the signatories agree upon the “need to address honestly and head-on the concerns and needs of our diverse employees and increase equity for all, including Blacks, Latinos, Asians, Native Americans, LGBTQ, disabled, veterans and women.”

There is no mention of older workers.

Steve Rabin, 53, a certified public  accountant, sued PwC in 2013, claiming the corporation relies almost exclusively upon campus recruiting to fill entry-level positions and does not post job vacancies on its public web site. He alleged the only way to apply for a job is through PwC’s campus track recruitment tool, which requires a college affiliation.

The lawsuit states the average age of PwC’s workforce in 2011 was 27, while the median age of accountants and auditors in the U.S. was 43.2.

The corporation attempted unsuccessfully in February to persuade a federal judge in San Francisco to follow the lead of another federal appeals court in Atlanta and rule the Age Discrimination in Employment Act (ADEA) does not permit job applicants to sue for disparate impact discrimination. This is a type of discrimination that occurs when an employer adopts a seemingly neutral practice or policy that has a disproportionate, negative impact upon a protected group. U.S. District Judge John S. Tigar denied the motion and refused PwC’s request to dismiss the case without a trial.

Signatories to the diversity campaign plan to support education about “unconscious bias” to minimize any potential “blind spots” an employee “might have but wasn’t aware of previously.” A good place to start  might be age discrimination.

Though the ADEA was passed 50 years ago to protect older workers from irrational and harmful discrimination, the problem remains hidden, epidemic and unaddressed in American society.

Ninth Circuit Ruling Widens Gulf Between Private and Public Employees under the ADEA

puzzlepieceA federal appeals court disagreed with four other federal circuits this week to hold that a political subdivision of a state need not have 20 or more employees to be sued under the Age Discrimination in Employment Act.

The ruling reinstated a lawsuit filed against the rural Mount Lemmon Fire Department, near Tucson, AZ,  by fire fighters John Guido, 46, and Dennis Rankin, 54, both captains, who claimed they were fired in 2000 because they were the oldest full-time firefighters in the district.

A three-judge panel of the 9th circuit  appeals court overturned the lower court ‘s decision to grant the Fire District’s motion to dismiss the case without a trial on the grounds that the district did not meet the ADEA’s threshold requirement of  having 20 or more employees.

The appeals court held that the 20-employee minimum does not apply to political subdivisions of the State.

The issue comes down to the wording of a 1974 amendment to the ADEA that extended the law’s reach to “employers having at least 20 workers, and to the Federal and State Governments.”  The 9th Circuit panel said the plain reading of the clause shows that the first sentences does not include the second sentence. In other words, federal and state governments are not subject to the 20-worker requirement.

The case highlights a problem inherent with the ADEA – employees are subject to differing treatment depending upon whether they work for private or public sector employers.

In 2009, the U.S. Supreme Court in Gross v. FBL Financial Services raised the standard of proof in age discrimination cases by requiring that plaintiffs show that age discrimination was the “but for” or determinative cause of an adverse employment action (i.e. demotion, dismissal).  The U.S. District Court of Appeals for the District of Columbia Circuit subsequently ruled that  the section of the ADEA that covers federal sector workers stipulates that “all personnel actions … shall be made free from any discrimination based on age.” Therefore, the appeals court said, the Gross decision does not apply to federal sector employees because it could “impermissably permit age bias to infect employment decisions. This means that theoretically, at least, it is easier for federal  sector workers to prove age discrimination than private sector workers.

 

Two Colleges Settle Age Discrimination Lawsuits

RejectedHigher education ranks behind Silicon Valley in terms of brazen and epidemic age discrimination in employment but there were two developments last week that may signal future change.

Attorneys for a 63-year-old former professor in women and gender studies (WGS) at Minnesota State University Moorhead announced that she will receive $150,000 in a settlement of her age discrimination case.

And the EEOC announced a $60,000 settlement in a 2014 lawsuit filed against City College of Chicago for refusing to hire a 66-year-old adjunct professor of English for a full-time faculty position.

Minnesota State University Moorhead 

Claudia Murphy had served as a professor in MSUM’s WGS program for more than six years when she claimed the university in 2015 required a PhD in WGS, which was not offered anywhere until 1995, as a way to exclude her from a prestigious position in the program. Murphy, who had a PhD in philosophy, was then  terminated.

The person hired for the job received her PhD in WGS in 2015.

According to her attorneys, the search committee agreed that a PhD in either WGS, feminist studies or a related field would be acceptable but its decision was overruled by Randy Cagle, dean of the College of Humanities and Social Sciences, who decided that only a terminal degree in WGS or feminist studies was acceptable. Murphy appealed to MSUM’s human resources department and university President Anne Blackhurst, but both declined to intervene. MSUM denied the allegation of age discrimination.

Murphy was represented by Schaefer Halleen, a Minneapolis law firm.

City College of Chicago

The EEOC announced a $60,000 settlement in a 2014 age discrimination lawsuit filed against City Colleges of Chicago for refusing to hire Nancy Sullivan, 66,  for a full-time faculty position.

According to the EEOC, Sullivan had worked there as an adjunct professor for five years and had a stellar record and excellent recommendations from several full-time faculty members. Nevertheless, she was passed over in favor of two substantially younger and less experienced candidates.

The settlement also mandates that City Colleges train its employees on age discrimination and report to EEOC any complaints of age discrimination it receives.

EEOC Regional Attorney Gregory Gochanour said it was not the first time the EEOC had sued City Colleges for age discrimination. In 2006, the EEOC challenged an employment decision by City Colleges that was strikingly similar to one in Sullivan’s case. The EEOC charged that City Colleges violated the ADEA by refusing to hire another one of its adjunct instructors in its English department for a full-time faculty position. The earlier case was also was settled by consent decree.  Gochanour expressed hope that City Colleges will be vigilant going forward and will not let discrimination infect future employment decisions.