The EEOC Ignored Precedent in Dismissing Two Age Discrimination Cases

The EEOC ignored legal precedent in August when it dismissed two age discrimination cases where older job applicants were rejected in favor of  far less qualified applicants under the age of 40.

A search of precedential case law on the EEOC ‘s own web site  revealed a federal appeals court decision holding that an employer’s failure to hire a candidate who is significantly better qualified for the job raises a question of illegal discrimination.

This precedent was not followed by Carlton M. Hadden, Jr., director of the EEOC’s appellate unit, who dismissed two age discrimination complaints in August.  The cases were filed by a female attorney, 60, and a white police detective, 48, who were not hired despite having substantially more objective qualifications than selectees under the age of 40. The EEOC upheld Hadden’s rulings. In the attorney’s case, the hiring officer testified he ignored objective qualifications entirely and based his hiring decisions on cultural fit.

The U.S. Court of Appeals for the District of Columbia Circuit in 2006 cited a U.S. Supreme Court decision holding that “qualifications evidence may suffice, at least in some circumstances,” to show that an employer’s proffered explanation is pretext for discrimination. Ash v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006).

Memo to EEOC: There is an inference of discrimination when when a plaintiff is “significantly better qualified” than the candidate who was hired.

The DC Court outlined how qualifications should be evaluated to assess  the employer’s  crediblity:

“If a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate — something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture.” (emphasis added)

The EEOC did not cite any legal authority to justify ignoring objective qualifications in age discrimination cases The EEOC repeatedly has upheld the importance of qualifications in race discrimination cases. It appears the EEOC is attempting to insure that young workers, especially minority applicants, get federal jobs, and not older applicants (including minority workers).  But it’s the EEOC’s job to enforce existing laws. If Congress wanted to grant preference to younger workers, it could amend or repeal the Age Discrimination in Employment Act.

It is the job of the EEOC to implement federal discrimination laws consistently and fairly, and not to pursue its own ends.

Hadden ruled a hiring officer for the Social Security Administration did not discriminate when he admittedly ignored the 60-year-old attorney’s qualifications and hired four attorneys under the age of 40 based on his perception of cultural fit.  The hiring officer testified the attorney had superior objective qualifications compared to some or all of the selectees, many of whom were recent law school graduates. Hadden and the EEOC did not cite any legal authority to justify ignoring objective credentials.

In the other case, Hadden 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 writes 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, and the ability to cope with stress…”

In both cases, the EEOC also ignored serious procedural irregularities by the hiring agencies.

There may be many more cases in which the EEOC ignored legal precedent regarding qualifications in age discrimination cases; the EEOC takes the position that its cases are secret unless the EEOC decides to file a lawsuit.

The matter is not academic. Plaintiffs and the business community rely on legal precedent as a guidepost to determine whether to file or defend an age discrimination complaint.  And the U.S. government paid tens of thousands of dollars to defend and process the two cases in question.

The complainants were denied jobs, income and benefits and spent years working to vindicate their rights before the EEOC, only to have their cases dismissed on the equivalent of a whim.

The D.C. Circuit ruling was made in a case involving Gary Hamilton, a black male industrial hygienist for the Internal Revenue Service (IRS) who alleged he was not promoted to manager because of his race and gender. Both Hamilton and the selectee, a white woman, received perfect scores on the IRS’s ranking of relevant knowledge and abilities for the job. IRS officials testified that they chose the white woman because she performed better than Hamilton in the interview process.

The D.C. Circuit reinstated Hamilton’s complaint.  “We believe that, when taken together, the evidence of a significant disparity in the candidates’ qualifications, the highly subjective nature of the [Agency’s] proffered nondiscriminatory explanation, and the absence of any contemporaneous documentation supporting that explanation could lead a reasonable jury to disbelieve the [Agency] and reach a verdict in Hamilton’s favor,” writes the court. The case is Hamilton v. Geithner, 666 F.3d 1344, and 1352-57 (D.C. Cir. 2012).

Just to really confuse the situation, the EEOC in September filed a lawsuit against a group of CBS–owned television stations in the Dallas/Fort Worth area, claiming they engaged in age discrimination  when they offered the job of weather caster to two “less qualified” candidates in their 20s. The EEOC filed the lawsuit on behalf of Tammy Domback Campbell, 42,  a veteran weather caster who was performing the job on a freelance basis

The EEOC has declined to comment about its confusing stance on qualifications in hiring.



An interesting societal shift seems to have pushed age (70 and above) into the undesirable position of  the most negative characteristic for a political candidate.

A Pew Research Center poll last year found that 55 percent of Americans said it would make no difference to them if the candidate was in his or her 70s. But 66 percent of Americans  said it would make no difference to them if a candidate was gay or lesbian and 71 percent  said it would make no difference if the candidate were female.  Thus, it  makes more difference to the public if candidates are in their 70s than if they are gay or lesbian or female.

At the same time, 36 percent of those polled said it was less likely that they would support a candidate in their 70s, compared to 27 percent who would be less likely to support candidates who are gay or lesbian and nine percent who are less likely to support female candidates.  So more Americans – of all ages – are less willing to vote for politicians in their 70s than they are for gay and lesbian and female candidates. Continue reading “AGE TAKES THE LEAD AS A NEGATIVE IN POLITICS”