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.
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.”
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 that it is not accountable to the public. The EEOC states it will not honor Freedom of Information requests for “[r]ecords that reflect EEOC’s internal decision-making” and refuses to disclose information about, among other things, 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.
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.
*”[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.” See 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).