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),

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Author: pgb

Attorney at Law, author and blogger.

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