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!

 

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No Contest: Older Workers Most Oppressed by Federal Courts

justice-scale-761665_1It is not surprising that attorneys from the Center for the Study of Law and Religion at Emory University perceive the federal courts’ bias in employment discrimination cases as being “particularly oppressive on followers of minority religious traditions.”

Attorneys associated with the Center recently filed an amicus brief  questioning the high rate of dismissal for employment discrimination cases in federal court. They point to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.

There’s no question that all employment discrimination cases are subject to shockingly high rates of pre-trial dismissal. But, in reality, the most oppressed  victims of employment discrimination in federal court are older workers. Consider:

  • The Age Discrimination in Employment Act of 1967 (ADEA) is much weaker than Title VII of the Civil Rights Act of 1962, which prohibits discrimination on the basis of religion.
  • Rulings by the U.S. Supreme Court have eviscerated the already weak, Plaintiffs must  show that age discrimination was the “but for” or primary reason for an adverse employment action. Title VII requires plaintiffs to show only that discrimination was a factor in an adverse employment decision.
  • Unlike Title VII plaintiffs, the potential for damages in an age discrimination case is far more limited. ADEA plaintiffs cannot get compensatory damages for emotional distress or punitive damages.
  • Let’s be honest. Age discrimination cases rarely even get to a federal court. The EEOC received more than 20,000 complaints of age discrimination in 2016 but filed only two lawsuits with “age discrimination claims”  that year. The EEOC recently upheld an administrative decision in an age discrimination case that permits employers to ignore objective qualifications and hire workers based on “cultural fit.”  The EEOC rejects “cultural fit” in Title VII cases. The concept is so blatantly discriminatory that it has been widely rejected by business. In addition to all of that, the EEOC operates a hiring program that has a disparate impact on older workers – which means it’s discriminatory.

Age discrimination cases rarely even make it to court because the EEOC has abdicated its responsibility to enforce the ADEA.

Continue reading “No Contest: Older Workers Most Oppressed by Federal Courts”

EEOC Refuses to Comment About Allowing Hiring Officer to Ignore Objective Qualifications in Age Discrimination Case

lipnic
Acting EEOC Commissioner Victoria A. Lipnic

The EEOC  has declined to comment on its decision to uphold an administrative ruling that dismissed an age discrimination case where a hiring officer said he ignored objective qualifications and hired workers based on cultural fit. 

The ruling by Carlton M. Hadden, director of the EEOC Office of Federal Operations, involved an allegation of age discrimination by a 60-year-old woman who was not selected for one of five vacancies for the position of attorney decision-writer at a new Social Security Administration office in Reno, NV in 2011.

The novice hiring officer testified that he completely ignored objective qualifications when he selected five applicants under the age of 40.   After three or four applicants declined the job, the hiring officer selected a 42-year-old male applicant. The hiring officer initially said he rejected the 60-year-old female applicant because she lacked enthusiasm during a 20-minute telephone interview. He agreed  she was more objectively qualified than most or all of the other applicants but said she did not fit within his perception of SSA “culture.” 

Hadden upheld an Administrative Law Judge’s finding that “reliance on subjective criteria is appropriate and necessary when the selection, as here, involves consideration of collegial, professional, teamwork, and administrative abilities that do not lend themselves to objective measurement.” Continue reading “EEOC Refuses to Comment About Allowing Hiring Officer to Ignore Objective Qualifications in Age Discrimination Case”

Ageism is Bad – Except in Silicon Valley?

GlobalAgingA report last year by the Milken Institute’s Center for the Future of Aging  reaches a shockingly ageist conclusion – a younger workforce is “tremendously beneficial” for growth in industries like Silicon Valley.

The 2016 report, Redefining Traditional Notions of Aging; Embracing Longevity Across Cultures,  discusses the evils of ageism and goes on to state:

“Granted, there are industries and sectors within the economy in which a younger workforce is tremendously beneficial to growth. This is especially true in places like Silicon Valley, the global bastion for young budding technology engineers and entrepreneurs.”

The authors credit Silicon Valley’s youthful workplace for “creative ideas and the abilities to build new products and provide new services have boosted innovation, efficiency, and economic growth.” The report notes the average age at Google is 30; Facebook, 28; LinkedIn 29;  and Apple, 31.

(The authors do not acknowledge that the average ages noted above are the result of pervasive and unaddressed age discrimination in Silicon Valley, which technically is illegal under the Age Discrimination in Employment Act of 1967.) Continue reading “Ageism is Bad – Except in Silicon Valley?”

Behind the Scenes: Discrimination by Job Search Engines

WalmartGreeterSeveral years ago, I filed a formal complaint with the EEOC that attorney internet job search web sites were blatantly discriminating in hiring on the basis of age.

I did this after finding dozens of ads targeting members of the most recent graduating class(es) on Lawjobs.com.

Months later, the EEOC, which supposedly implements the Age Discrimination in Employment Act (ADEA), sent me a piece of paper saying that it was not going to do anything but I could file a lawsuit if I wanted to. Not being independently wealthy, I had no choice but to pass.

Today, I looked again. I found absolutely no ads on Lawjobs.com for “recent graduates” or “members of the Class of….”  What does this mean?

Does it mean the search engine is not engaging in age discrimination or does it mean that age discrimination is now taking place behind the scenes?

It’s hard to conclude that Lawjobs.com has gone “straight” given a series of events that have come to light which showcase the role of internet job search engines in age discrimination.

In the case of Villarreal v. R.J. Reynolds Tobacco, the plaintiff applied a half-dozen times for a territory sales manager job only to learn the company was using internet software behind the scenes on Careerbuilder.com to target resumes from workers  with fewer than eight years of experience.

Reynolds hired 1,024 applicants for territory sales manager positions over a three-year period, of whom only 19 were over the age of 40.

A federal appeals court last year eliminated any prospect for a class action lawsuit in the Reynolds case when it ruled the ADEA does not cover job applicants who are the victims of systemic and calculated age discrimination in hiring because they are not “employees.” This ruling, by the 11th Circuit Court of Appeals in Atlanta,  remains in effect today in Georgia, Florida and Alabama.

Illinois Attorney General Lisa Madigan issued a press release recently stating she began  investigating alleged age discrimination by internet search engines after a 70-year-old man complained that a resume building tool on Jobr, an app owned by Monster Worldwide, excluded job applicants over the age of 52. A drop down menu required applicants to select the year they graduated or got their first job but the dates only went back to 1980.

Madigan queried six job search engines about their practices. So far, three have responded, CareerBuilder, Beyond and Indeed. All admitted to using resume building software containing age limitations that deter older applicants; all said they fixed the software upon learning of Madigan’s concerns.

I think it is reasonable to conclude that many (if not most) internet search engines for years have silently engaged in age discrimination against older job applicants. This has contributed to longstanding chronic unemployment for older workers, who often are forced to retire as soon as they become eligible to receive Social Security benefits, whereupon they quietly disappear from government employment statistics. Age discrimination in hiring makes it impossible for older job applicants to earn a decent wage and to finance a secure retirement. As a result, many, particularly women, endure an old age marked by difficult choices, anxiety and poverty.

But who is going to stop it?

Madigan told NPR that her office simply wants to stop the specific practice that relates to discriminatory resume building tools but not file a lawsuit.

The AARP has done virtually nothing about age discrimination in employment for 50 years; It wrote an amicus or friend of the court brief in the Reynolds case.

The EEOC is almost completely absent from the age discrimination scene, despite an unprecedented increase in age discrimination complaints during and since the Great Recession. It filed two – yes, two – lawsuits with age discrimination claims last year. Age discrimination complaints comprise almost a quarter of all complaints received by the EEOC.

Me? Alas, I still can’t afford to finance years of complex litigation against some of America’s largest corporations.

My 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, chronicles the epic failure of all three branches of government to address the completely predictable problem of age discrimination during and since the collapse of Wall Street. It is an  appalling abdication of governmental responsibility and it continues.

PricewaterhouseCoopers’ Defense: Older Job Applicants Can’t Sue for Systematic Discrimination

Note: U.S. District Judge John S. Tigar has rejected PwC’s argument that the Age Discrimination in Employment Act does not permit job applicants to file disparate impact lawsuits alleging systemic age discrimination. The case will proceed.

pwcSo PricewaterhouseCoopers, the second largest professional services firm in the world, is being sued for refusing to hire older applicants to work as accountants.

But instead of waging a defense to that charge, PwC is arguing the Age Discrimination in Employment Act (ADEA) doesn’t allow job applicants to sue for systemic discrimination.

PwC attorney Joshua Z. Rabinovitz of Kirkland & Ellis LLP recently urged a federal judge in San Francisco to follow the lead of a federal appeals court in Atlanta  and rule that the ADEA does not permit job applicants to sue for disparate impact discrimination.

The disparate impact theory of discrimination is invoked when an employer adopts a practice or policy that has a disproportionate and negative impact upon a protected group.

Rabinovitz said the ADEA was not amended when its sister statute, Title VII of the Civil Rights Act , was amended in 1972 to permit disparate impact lawsuits by job applicants. Therefore, he said, the ADEA does not allow disparate impact lawsuits by job applicants. Title VII covers discrimination on the basis of race, sex, color, national origin and religion.

The suit was filed by Steve Rabin, 53, a certified public accountant who was rejected in 2013 for a position at PwC. He alleges that PwC relies almost exclusively upon campus recruiting to fill entry-level positions and does not post vacancies on its public web site. The only way to apply for a job is through PwC’s “Campus track recruitment tool, which requires a college affiliation.”  The lawsuit also notes that PwC  maintains a mandatory early retirement policy that requires partners to retire by age 60 which allegedly discourages the hiring of  experienced older applicants.

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.

Daniel B. Kohrman, an attorney for AARP Foundation Litigation,  argued the ADEA prohibits age discrimination against “any individual” who is aged 40 and above, which could include job applicants.

Ironically, pervasive discrimination against older job applicants was why Congress adopted the ADEA in the first place.

According to Congressional testimony leading up to the passage of the ADEA, job applicants  in 1964 who were over the age of 55  were barred from half of all job openings in the private sector. Workers over 45 were barred from a quarter of these jobs, and workers over 65 were barred from almost all of them.

In addition to the AARP Foundation Litigation, the  case was filed by the New York firm of Outten & Golden,  and the San Francisco firm, The Liu Law Firm.

Will the AARP Fight for Seniors or Itself?

AARPHouse Speaker Paul Ryan’s proposal to essentially privatize Medicare to cut costs is causing fear among older Americans who rely upon Medicare for health coverage.

Who is fighting to  protect the interests of older Americans?

Today, the AARP’s web site features the “Ultimate Super Bowl Quiz,” hot travel deals, and suggestions about what movies to watch this weekend. Toward the bottom of the page, there are two links, “AARP on the Front Lines Defending Medicare,” and “Tell Congress to Protect Medicare.”

The AARP has a complicated relationship with Medicare. It is the nation’s largest purveyor of supplemental Medi-gap health insurance, reaping literally billions each year in profits from seniors who are essentially forced to purchase catastrophic coverage to stave off health-induced financial disaster. One reason that seniors must purchase Medi-gap insurance in the first place is the AARP.

The AARP has a major conflict of interest with respect to Medicare.

The AARP was sharply criticized several years ago as selling out older Americans when it supported Obamacare, which cut $716 billion from Medicare to pay for its $1.9 trillion expansion of coverage to low-income Americans. Not coincidentally, the AARP obtained the equivalent of a waiver in the new law when Obama abandoned reforms that would have saved seniors hundreds of dollars in Medi-gap premiums a year.

Clearly, the AARP is not a disinterested party in the debate over the future of Medicare but it is, unfortunately, the elephant in the room by virtue of its 38 million members, many of whom joined to take advantage of AARP licensing deals that purportedly give members a small discount on hotels, car rentals, etc.

On its web site, the AARP states reassuringly that it has launched a “national campaign to fight proposals to turn Medicare into a voucher system.” But what does that really mean? No vouchers unless the AARP gets its cut?

Laura Polacheck, the communications director of the AARP Utah, on Feb. 1 issued a press release condemning  House Speaker Paul Ryan’s proposal to privatize the government-run health program for people with disabilities and those aged 65 and older. Polacheck says AARP staff and volunteers will remind members of Congress that Ryan’s proposal would put more than 300,000 Utah seniors’ benefits at risk, as well as the benefits of over 400,000 workers who are set to transition to Medicare over the next 15 years.

That’s all fine and good but older Americans would be wise to demand transparency from the AARP. What does the AARP have to gain and what do older Americans have to lose?

After an investigation by the Center for Media and Democracy, the AARP last year was pressured into dropping its membership in the right-wing American Legislative Exchange Council, an organization affiliated with the Koch brothers that drafts and promotes bills that would undermine and privatize Social Security and Medicare. The AARP, a “trustee level” sponsor of ALEC’s 2016 annual meeting, claimed it was merely taking advantage of ” an opportunity to engage with state legislators and advance our members’ priorities.”

I have long bemoaned the absence of a true advocacy group for older America, such as the DaneAge Association in Denmark.

The AARP has done virtually nothing for 50 years to combat the legal inequality of older Americans in the workplace. Apparently, the AARP has no marketing incentive to pay more than lip service to this issue.

DaneAge is an independent, non-profit national membership organization founded in 1986 to provide advocacy “through an ongoing dialogue with the government and the public, promoting a society without age barriers and ageism.”  DaneAge has 690,000 members in 217 local chapters across Denmark, including 15,775 volunteers who engage in local advocacy. Among other things, the organization, which has approximately 100 staff members,  provides “free-of-charge and impartial legal advice and counsel” by lawyers and other professionals.

Denmark is widely regarded as having the highest quality of life  for its citizens in the world.