Senate Aging Committee asked to Investigate EEOC’s Inequitable Treatment of Age Discrimination Cases

This blog has asked the U.S. Senate Special Committee on Aging to investigate the U.S. Equal Employment Opportunity Commission for essentially discriminating against older workers in the adjudication of age discrimination complaints.

The EEOC recently dismissed two cases where highly qualified older job applicants were passed over for far less qualified workers under the age of 40 (some were recent graduates). The EEOC ruled that it is not illegal for employers to make hiring decisions based entirely on subjective considerations (i.e., cultural fit).  The EEOC offered no legal support for this position, which is contrary to the EEOC’s position in race discrimination cases and well established law. The U.S. Supreme Court ruled in 2006  that an employer’s failure to hire a candidate who is significantly better qualified for a job may raise an inference of illegal discrimination.

The EEOC also ignored serious procedural irregularities by the federal hiring agencies in both cases.

The Senate Special Committee on Aging, chaired by Maine Sen. Susan M. Collins, is authorized to conduct oversight of federal programs and to investigate reports of fraud and waste. In the past, the Committee has championed the rights of age discrimination victims.

For years, the EEOC has all but ignored its Congressional mandate to enforce the Age Discrimination in Employment Act of 1967 (ADEA). The EEOC received more than 20,000 complaints of age discrimination in 2016 –  almost a quarter of all  of the complaints filed with the EEOC that year -but filed only two lawsuits with “age discrimination claims.” The EEOC was taunted by the U.S. Chamber of Commerce in 2015 for operating a hiring program that discriminates on the basis of age.

When President Lyndon Johnson signed the ADEA fifty years ago, he said its sole purpose was to ensure the most qualified candidate gets the job. The ADEA prohibits using age as a factor in employment decisions except in very limited circumstances that are not relevant to the two cases in question.

Cultural Fit

In August, the EEOC upheld a decision by Carlton M. Hadden, Jr., the director of the EEOC’s Office of Federal Operations, to dismiss an age discrimination case where a middle-aged male hiring officer for the Social Security Administration (SSA) testified he ignored objective qualifications and hired four applicants under the age of 40 based on his perception of how well they would fit within the culture of the office.  The complaint was filed in 2011 by a 60-year-old female attorney who was not selected, despite having what the hiring officer admitted were superior qualifications when compared to most or all of the successful candidates. Initially the hiring officer said she lacked enthusiasm during a 20 minute telephone interview.

The EEOC’s ruling conflicts with a guidance published by the EEOC in 2006 that states hiring based on cultural fit is discriminatory in the context of race.  Even the business community knows that hiring based on cultural fit is fraught with potential for prejudice and bias.

The EEOC also failed to punish the SSA for violating its legal obligation to insure the investigation of the age discrimination complaint was fair and impartial. Hadden acknowledged that SSA attorneys “improperly” interfered in the investigation of the case in violation of EEOC Directive  for 29 C.F.R. Part 1614 (EEO MD-110) at Chapter 1, Section  IV.  However, Hadden merely reminded the SSA to be “careful to avoid even the appearance that it is interfering with the EEO process.”

Intangibles

In the second case, Hadden ruled that a 48-year-old white male police detective who had 20 years of high-level experience in law enforcement, failed to show he was more qualified for promotion to the position of lead officer at a Texas veteran’s  center than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden writes that the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership potential, and the ability to cope with stress…”  So-called intangibles like “poise” and “compassion” are  similiar to “cultural fit” in that they are subjective assessments that are prone to conscious and subconscious bias.

It is well established in the law that an employer’s reliance on subjective criteria for significant personnel decisions may be viewed as circumstantial evidence of discrimination.*

Hadden also disregarded evidence that the veteran’s center violated its own regulations and union Collective Bargaining Agreement in the hiring proces. Hadden said the complainant failed to prove the veteran’s center “intended” to discriminate when it failed to follow the rules.Courts generally consider an employer’s failure to follow its own rules in employment matters to be evidence of discrimination.**

Since the EEOC operates in virtual secrecy, the public has no way to know how many age discrimination complaints have been dismissed by the EEOC on spurious grounds.

EEOC decisions typically are shrouded in secrecy.  The complainant in the SSA hiring case spoke up and the EEOC published Hadden’s decision in the veteran’s center case in a recent digest of EEOC decisions, presumably to serve as precedent to follow in future cases.

Where is the Accountability?

When the EEOC dismisses a complaint, the individual complainant has the right to file a federal court lawsuit. However, this option represents a waste of taxpayer dollars, given  the EEOC has already spent years processing the complaint. More importantly, a federal lawsuit is not a viable option for complainants.

Age discrmination victims were prevented from  working and earning money.  Most can’t afford to pay attorneys the growing rate – a retainer of several thousand dollars, an hourly fee of $400 or more, and at least a third of any recovery. And many age discrimination victims don’t have the time left or the tolerance to engage in endless litigation. Finally, age discrmination plaintiffs have a severe disadvantage in federal court when the EEOC has dismissed their complaint.

 In reality, the EEOC dismissals represent a complete denial of justice to the complainants.

Disturbingly, the EEOC refuses to comment about the dismissals.

The EEOC indicates on its web site just how unaccountable it is to the public. The EEOC states it will not honor Freedom of Information requests for  information that provides insight into the EEOC’s action, including “[r]ecords that reflect EEOC’s internal decision-making.” The EEOC refuses to disclose information about charges of employment discrimination filed with the EEOC, federal sector complaint files, records containing inter or intra agency pre-decisional deliberations, recommendations, analyses and opinions, attorney-client communications, attorney work product, information given to EEOC by confidential sources, matters involving personal privacy, and confidential commercial or financial information. Etc. Etc.

The EEOC takes the position that it does not have to justify decisions that are inconsistent and show gross unfairness toward older workers.

As I wrote in my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, older workers have suffered epidemic and unaddressed age discrimination for years.

Age discrimination is a pervasive and systemic form of bias that is just as or more harmful than other types of discrimination. Older workers (including members of minority groups) have less time in the workplace to rebound and often face poverty in the final years. There is no legal or moral justification for treating age discrimination differently than other types of discrimination – all discrimination is based on fear, false stereotypes, and animus directed toward a specific group.

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*”[W]here subjective evaluations are made, if the members of the selection panel could manipulate the criteria and the weighting system in order to eliminate certain candidates, then the selection process could be used for purposes of unlawful discrimination … [the] contention that the criteria and the weights are chosen prior to identifying the applicants is unavailing if the applicant pool is small enough or if the department supervisor had reason to believe particular individuals would apply.” Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1149 (9th Cir.1982).

** See Porter v. California Dept. of Corrections, 419 F. 3d 885, 896 (9th Cir., 2005). Garcia v. Allstate Insurance Co., 357 Fed. Appx. 773, 2009 WL 4884539 (9th Cir., 2009). Giacoletto v. Amax Zinc Co., 954 F. 2d 424, 427 (7th Cir., 1992). Russell v. TG Mo. Corp., 340 F. 3d 735, 746 (8th Cir., 2003). Garrett v. Hewlett-Packard Co., 305 F. 3d 1210, 1220 (10th Cir., 2002). Bass v. Board of  County Commissioners, 256 F. 3d 1095, 1108 (11th Cir., 2001). Paquin v. Federal National Mortgage Insurance Assn., 119 F. 3d 23, 30 (D.C. Cir., 1997).

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Affirmative Action, Courtesy of the EEOC

It appears the EEOC’s appellate unit , and the EEOC, are engaged in an unofficial form of affirmative action that benefits young people at the expense of older workers.

The EEOC in recent weeks ignored legal precedent and dismissed two age discrimination complaints filed by highly-qualified older job applicants who were passed over for far less qualified  workers under the age of 40 (some were recent graduates). In both cases, the EEOC also ignored serious procedural irregularities by the hiring agencies.

In one  case, a hiring officer for the Social Security Administration said he discounted qualifications altogether and hired four applicants under the age of 40 based on his perception of cultural fit. Even the business community knows that hiring based on cultural fit is an invitation to bias.

In the other case, Carlton M. Hadden, Jr., director of the EEOC’s Office of Federal Operations,  ruled a 48-year-old white male police detective, who had 20 years of high-level experience in law enforcement, failed to show he was more qualified for a lead officer position at a Texas veteran’s hospital than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden wrote in his decision that the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership potential, and the ability to cope with stress…”  In any other type of discrimination case, it would be apparent that this is a subjective assessment that is prone to bias.

The EEOC is charged by Congress with implementing federal law –  including the Age Discrimination in Employment Act of 1967 – not pursuing its own vision of generational and racial justice.

Not only does the EEOC discriminate against older applicants in its complaint processing, it has ignored its duty to enforce the ADEA for years. Last year, almost a quarter of all complaints filed with the EEOC involved age discrimination but the agency filed only two lawsuits with “age discrimination claims.”

The U.S. Congress could do something about this because it holds the purse strings but it too has ignored age discrimination for years, failing even to pass the Protecting Older Workers Against Discrimination Act (which was originally introduced in 2009).

Former U.S. President Barack Obama actually made the situation worse in 2010 when he literally authorized age discrimination in federal hiring.

The idiocy of the federal government’s position on age discrimination is clear. Because of demographic shifts, it benefits society to keep older workers working – and not just at fast food joints. This allows them to save for retirement and eliminates the drain on public coffers in terms of increased health care, Medicaid and Social Security costs.

Affirmative action policies normally apply to racial exclusions at institutions of higher education.

The landmark case that established a legal precedent for affirmative action was University of California v. Bakke in 1978. Alan Bakke was a white man in his mid-30s who failed to gain admission at 12 medical schools. He argued the school admitted students of color with lower test scores than his. The U.S. Supreme Court ruled the “use of race as a criterion in admissions decisions in higher education was constitutionally permissible”but quotas are not.

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Seriously? EEOC To Offer Training on a Respectful and Diverse Workplace

The U.S. Equal Employment Opportunity Commission (EEOC) has launched two new training programs for employers: Leading for Respect (for supervisors) and Respect in the Workplace (for all employees).

This is ironic because  the EEOC so clearly has no respect for older workers who are victims of age discrimination.

For years, the EEOC has failed to vigorously implement the Age Discrimination in Employment Act of 1967. Almost a quarter of all complaints received by the EEOC in 2016 involved age discrimination; yet the agency filed only two lawsuits that year with “age discrimination claims.”

Moreover, it was recently learned the EEOC ignored legal precedent and dismissed two age discrimination lawsuits filed by highly qualified older job applicants who were passed over for far less qualified  workers under the age of 40 (some were recent graduates).  In one case, a hiring officer for the Social Security Administration said he discounted qualifications altogether and hired four applicants under the age of 40 based on his perception of cultural fit. Even the business community knows that hiring based on cultural fit is an invitation to bias. Since EEOC actions are secret unless the EEOC files a lawsuit, one can only guess how many older workers have been denied their right to work by the very agency that is responsible for implementing the ADEA.

Can We Expect the EEOC to Train Employers to Respect and Value Older Workers When the EEOC Itself Does Not?

The other irony is that older women are the most severely affected by age discrimination in employment, which dumps many of them into an impoverished old age.

The EEOC’s press release indicates the “Respectful Workplaces Training Program” is available to both private and public employers. The program is a follow-up to an EEOC study of workplace harassment.

“The training program focuses on respect, acceptable workplace conduct, and the types of behaviors that contribute to a respectful and inclusive, and therefore ultimately more profitable, workplace,” states the press release.

Here’s a tip for the EEOC. It is not acceptable for the EEOC to conduct itself in a manner that is not respectful and inclusive of older workers, especially those who are victims of age discrimination and come to you for justice.

 

The EEOC Ignored Precedent in Dismissing Two Age Discrimination Cases

The EEOC ignored legal precedent in August when it dismissed two age discrimination cases where older job applicants were rejected in favor of  far less qualified applicants under the age of 40.

A search of precedential case law on the EEOC ‘s own web site  revealed a federal appeals court decision holding that an employer’s failure to hire a candidate who is significantly better qualified for the job raises a question of illegal discrimination.

This precedent was not followed by Carlton M. Hadden, Jr., director of the EEOC’s appellate unit, who dismissed two age discrimination complaints in August.  The cases were filed by a female attorney, 60, and a white police detective, 48, who were not hired despite having substantially more objective qualifications than selectees under the age of 40. The EEOC upheld Hadden’s rulings. In the attorney’s case, the hiring officer testified he ignored objective qualifications entirely and based his hiring decisions on cultural fit.

The U.S. Court of Appeals for the District of Columbia Circuit in 2006 cited a U.S. Supreme Court decision holding that “qualifications evidence may suffice, at least in some circumstances,” to show that an employer’s proffered explanation is pretext for discrimination. Ash v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006).

Memo to EEOC: There is an inference of discrimination when when a plaintiff is “significantly better qualified” than the candidate who was hired.

The DC Court outlined how qualifications should be evaluated to assess  the employer’s  crediblity:

“If a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate — something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture.” (emphasis added)

The EEOC did not cite any legal authority to justify ignoring objective qualifications in age discrimination cases The EEOC repeatedly has upheld the importance of qualifications in race discrimination cases. It appears the EEOC is attempting to insure that young workers, especially minority applicants, get federal jobs, and not older applicants (including minority workers).  But it’s the EEOC’s job to enforce existing laws. If Congress wanted to grant preference to younger workers, it could amend or repeal the Age Discrimination in Employment Act.

It is the job of the EEOC to implement federal discrimination laws consistently and fairly, and not to pursue its own ends.

Hadden ruled a hiring officer for the Social Security Administration did not discriminate when he admittedly ignored the 60-year-old attorney’s qualifications and hired four attorneys under the age of 40 based on his perception of cultural fit.  The hiring officer testified the attorney had superior objective qualifications compared to some or all of the selectees, many of whom were recent law school graduates. Hadden and the EEOC did not cite any legal authority to justify ignoring objective credentials.

In the other case, Hadden ruled a 48-year-old white male police detective, who had 20 years of high-level experience in law enforcement, failed to show he was more qualified for a lead officer position at a Texas veteran’s hospital than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden writes in his decision that the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership, and the ability to cope with stress…”

In both cases, the EEOC also ignored serious procedural irregularities by the hiring agencies.

There may be many more cases in which the EEOC ignored legal precedent regarding qualifications in age discrimination cases; the EEOC takes the position that its cases are secret unless the EEOC decides to file a lawsuit.

The matter is not academic. Plaintiffs and the business community rely on legal precedent as a guidepost to determine whether to file or defend an age discrimination complaint.  And the U.S. government paid tens of thousands of dollars to defend and process the two cases in question.

The complainants were denied jobs, income and benefits and spent years working to vindicate their rights before the EEOC, only to have their cases dismissed on the equivalent of a whim.

The D.C. Circuit ruling was made in a case involving Gary Hamilton, a black male industrial hygienist for the Internal Revenue Service (IRS) who alleged he was not promoted to manager because of his race and gender. Both Hamilton and the selectee, a white woman, received perfect scores on the IRS’s ranking of relevant knowledge and abilities for the job. IRS officials testified that they chose the white woman because she performed better than Hamilton in the interview process.

The D.C. Circuit reinstated Hamilton’s complaint.  “We believe that, when taken together, the evidence of a significant disparity in the candidates’ qualifications, the highly subjective nature of the [Agency’s] proffered nondiscriminatory explanation, and the absence of any contemporaneous documentation supporting that explanation could lead a reasonable jury to disbelieve the [Agency] and reach a verdict in Hamilton’s favor,” writes the court. The case is Hamilton v. Geithner, 666 F.3d 1344, and 1352-57 (D.C. Cir. 2012).

Just to really confuse the situation, the EEOC in September filed a lawsuit against a group of CBS–owned television stations in the Dallas/Fort Worth area, claiming they engaged in age discrimination  when they offered the job of weather caster to two “less qualified” candidates in their 20s. The EEOC filed the lawsuit on behalf of Tammy Domback Campbell, 42,  a veteran weather caster who was performing the job on a freelance basis

The EEOC has declined to comment about its confusing stance on qualifications in hiring.

Momentum Builds in Google Age/Sex Discrimination Cases

dinasaurTwo new developments in the continuing legal saga of Google, Inc. a company that apparently thought it was too big to be held accountable.

U.S. District Judge Beth Labson Freeman ruled last month that  plaintiffs who filed an age discrimination collective action against Google can amend their complaint and add a new claim of disparate impact. This claim alleges Google has adopted seemingly neutral policy that disproportionately affects older workers. It could significantly broaden the potential for damages.

This blog complained that Google in  2014  made a public commitment to increase race and gender diversity in its workforce, and released workforce statistics relating to those characteristics. But Google was completely silent with respect to age and did not release age-related statistics. Apparently, it did not feel that age was an important diversity issue?

The case is Robert Heath v. Google Inc., 5:15-ev-01824 (4/22/2015).  It was filed in U.S. District Court of Northern California in San Jose, California.

Judge Mary Wiss of the California Superior Court in San Francisco  issued a ruling that paves the way for class action status in a lawsuit filed by three women in September alleging Google has a “sexist culture” and pays women less. She named the a “complex case,”  if the case is certified as a class action, it could include thousands of female employees across the state of California. The lawsuit follows an investigation by the U.S. Department of Labor (DOL) that found evidence of systemic pay discrimination in 2015 among the 21,000 employees at Google’s headquarters in Mountain View, California. Women earned less than men in nearly every job classification.

The case is Ellis v. Google Inc., CGC-17-561299, California Superior Court, San Francisco County.

Google has denied discriminating against both older workers and women.

 

 

EEOC Rulings Validate Hiring Youngest Candidates with Fewest Objective Qualifications

The EEOC, in recent rulings, appears to have completely subverted the stated goal of the Age Discrimination in Employment Act (ADEA), which is to insure the most qualified candidate gets the job.

When former President Lyndon Johnson signed the ADEA fifty years ago, qualifications referred to criteria that were largely capable of objective measurement,  like education, experience and achievement.

In August, the director of the Office of Federal Operations, Carlton M. Hadden, Jr., issued at least two decisions finding no discrimination in cases where highly-qualified applicants were passed over for much younger applicants with far few objective qualifications.

Hadden ruled that a white male police detective, 48, with 20 years of high-level experience in law enforcement, failed to show he was more qualified for the position of lead police officer  at the Dallas veteran’s medical center than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden said the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership, and the ability to cope with stress …”

Hadden ignored the significance of procedural irregularities in the hiring process because, he said, the complainant didn’t prove the veteran’s center intended to discriminate when it failed to follow its own regulations and the union’s Collective Bargaining Agreement in the hiring process.

The second case is eerily similar. Again, Hadden and the EEOC ignore objective qualifications and serious procedural irregularities.

In the second case, Hadden ruled the Social Security Administration (SSA) did not  discriminate when it’s hiring officer failed to consider objective qualifications in filling five attorney vacancies at a new SSA office opening in Reno NV.  The  hiring officer initially chose five attorneys under the age of 40, including some recent law school graduates. The hiring officer acknowledged the complainant, a 60-year-old female, had superior objective qualifications compared to most, if not all, of the successful applicants.

Hadden again ignored the significance of serious procedural irregularities in the hiring process. He acknowledged that SSA attorneys illegally interfered in the investigation of the woman’s complaint but made no inferences from their actions. He wrote: “Participants in EEO investigations should be assured that they can give candid, truthful responses to investigators. Consequently, we urge the Agency to henceforth avoid actions that might create the appearance that it is influencing employees’ responses to EEO investigation.”

The EEOC said employers could ignore the objective qualifications of a white police officer, 48, and a female attorney, 60, but not a 42-year-old female weather caster.

In these rulings, the EEOC seems to place absolutely no importance on objective qualifications so it was ironic when, earlier this month, the EEOC filed a lawsuit against a group of CBS television stations in Dallas, TX, accusing it of engaging in age discrimination in hiring . The EEOC charged that CBS engaged in age discrimination when it failed to consider the superior qualifications of a 42-year-old female weather caster and instead hired a 24-year-old woman with far less experience.

Of course, a major difference between the CBS lawsuit and  the EEOC decisions is that the CBS case involves the private sector. Apparently, the EEOC is holding the private sector up to a higher standard than it applies to the federal government, which is the nation’s largest employer. The EEOC is effectively enabling discriminatory practices by federal agencies.

For years, the EEOC has neglected rampant age discrimination in hiring in the United States.  In 2016, the EEOC received more than 20,000 complaints of age discrimination but filed only TWO lawsuits with “age discrimination claims.”  Meanwhile, the U.S. Chamber of Commerce taunted the EEOC last year for operating a hiring program that has a clear disparate, discriminatory impact on older workers.

Where is the oversight?

U.S. Senate and Congressional committees have done nothing in more than a decade to insure the fair treatment of older workers who are victims of age discrimination.  Indeed, they have neglected since 2009 to pass the Protecting Older Workers Against Discrimination Act, which would make it slightly easier for age discrimination victims to sue in federal court.

Former President Barack Obama made the problem of age discrimination much worse when he issued an executive order in 2010 allowing federal agencies to hire recent graduates, the vast majority of whom are under the age of 40.   It is estimated that older workers have been prevented from applying for tens of thousands of federal jobs as a result of Obama’s order.

Meanwhile, the AARP,. which purports to advocate for older Americans, has had no appreciable impact on age discrimination in hiring, while it reaps billions from lucrative licensing deals that exploit its  37 million membership base.

This year marks the 50th anniversary of the Age Discrimination in Employment Act. Woo Hoo!

 

Supreme Court Again Ignores Legal Inequality of Older Workers

The U.S. Supreme Court this week declined to resolve a federal circuit split on the question of whether plaintiffs suing for age discrimination or retaliation can recover punitive damages and  damages for pain and suffering.

The  Court denied certiorari in a case filed by Susan  L. Vaughan, 54, a former nurse supervisor who sued Anderson Regional Medical Center in Mississippi for wrongful termination under the Age Discrimination in Employment Act of 1967.

At the hospital’s request, a federal judge dismissed Vaughan’s claim for compensatory and punitive damages for retaliatory discharge. Currently age discrimination victims are limited to monetary loss only .

The issue harkens back to Congress’ decision in 1964 to exclude age as a protected class in Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. Title VII’s plaintiffs are entitled to seek compensatory and punitive damages.

When Congress passed the ADEA, it incorporated the damages provision of the Fair Labor Standards Act (FLSA) into the ADEA..  The FLSA, a federal law that regulates the payment of overtime and minimum wage, limits damages to monetary loss only. Continue reading “Supreme Court Again Ignores Legal Inequality of Older Workers”