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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Author: pgb

Attorney at Law, author and blogger.

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