The EEOC’s Predicament with Respect to the ADEA’s 50th Anniversary

EEOC50ADEAPity the poor EEOC.

The EEOC is in the painful position of having to celebrate the 50th anniversary of the Age Discrimination in Employment Act of 1967, which the EEOC has failed to aggressively enforce and arguably violates itself. The U.S. Congress passed the ADEA on December 15, 1967.

This important anniversary of the ADEA also shines a spotlight on how the EEOC has  failed millions of older Americans who became victims of age discrimination in employment during and since the Great Recession.

Yet, the EEOC must go through the motions. That is the least that is expected of the agency that is responsible for enforcing the ADEA.

So the EEOC has adopted a handsome marketing logo, Ability Matters – Not Age, and the agency is purporting on Twitter to “count down” to the big day on Friday .

The modern history of the ADEA shows that a law does not yield justice if it is not enforced.

I don’t want to throw a wet blanket on the EEOC’s festivities but, in the interest of history I feel obliged to note:

  • The EEOC has failed to address epidemic age discrimination in hiring in both the private and public sector, despite overwhelming evidence documenting the problem. It is particularly galling that older workers are subject to gross age discrimination by their own federal government.
  • The EEOC’s enforcement of the ADEA is weak at best. It filed two lawsuits with age discrimination claims in 2016, a year in which it received more than 20,000 age discrimination complaints. Even the AARP –  which has not exactly distinguished itself as an advocate for older workers  – took note last summer of the EEOC’s intransigence.
  • Is it too much to expect the EEOC to accord equal treatment to victims of age discrimination? The EEOC issued at least two decisions this year sanctioning what would be obvious discrimination if race or sex were involved and not age. In one case, the EEOC ruled a middle-aged male hiring officer for the Social Security Administration did not engage in age discrimination when he refused to hire a 60-year-old women because se did not fall within his perception of “cultural fit.” The hiring officer selected five applicants under the age of 40, including many recent graduates. What does it say about the EEOC when it lags behind the business community with respect to civil rights.
  • If ability matters and not age, then why does the EEOC operate a program that effectively hires on the basis of age? The U.S. Chamber of Commerce, a fiercely pro-business advocate, taunted the EEOC in 2015 for criticizing private sector employers for targeting college students for hire when the EEOC operates an internal hiring program that does the same thing. How can the EEOC be so clueless?
  • Another real irony here is that the current crop of EEOC Commissioners are all female. Overwhelming research shows that women are the primary victims of age discrimination hiring, which is the major problem affecting older workers and contributes to ill-health and poverty in old age.  So age discrimination in hiring is both an age discrimination issue and a sex discrimination issue. Don’t they now that? Don’t they care?

This recitation of the EEOC’s failings could continue but the bottom line is that the EEOC has consistently failed, at least since the Great Recession,  to show intellectual honesty, courage and commitment to equal rights.

The EEOC has failed to show intellectual honesty, courage and commitment to equal rights.

In my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I propose that, instead of celebrating another ADEA birthday,  Congress should do what it should have done in 1964. Age was proposed for inclusion in Title VII of the Civil Rights Act of 1964 but was omitted because it was thought more study was needed.  When Congress passed the ADEA three years later, it offered far less protection to older workers than Title VII of the Civil Rights Act offers to minorities and women. And since its adoption the ADEA has been eviscerated by the U.S. Supreme Court, which consistently accords age discrimination lesser treatment than race and sex discrimination.

It should not be surprising to anyone that age discrimination remains epidemic and unaddressed in the United States.

It’s time to repeal the ADEA and include age as a protected class in Title VII.

 

 

 

 

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Author: pgb

Attorney at Law, author and blogger.

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