Another Nightmare from the EEOC Crypt

Here’s another  case that illustrates the type of unconventional “justice” that is being meted out by the EEOC these days.

A veteran white male police officer, 48, was passed over for the position of lead police officer at the Dallas Veterans Affairs Medical Center in Dallas, TX.

An African-American female “in her 20s” whom the EEOC agreed had spent “a relatively brief time in the workforce” was rated as the top candidate. Her experience was as a military police sergeant in a combat zone in Afghanistan. She got the job.

The complainant was working as a senior detective at the center. His experience included service as  a Sargent in the Army military police and ten years as a deputy sheriff and lead detective. He had become certified as a Dallas police officer so he would be knowledgeable about local issues.  And he received several commendations by the department.

The hiring panel, which consisted of three Lieutenants, unanimously ranked the female as the top candidate out of a field of 13.

The complainant argued the veterans administration implemented a selection process that was pretext “to permit the selection of a younger minority candidate regardless of the candidate’s qualifications.” Among other things, he said, the administration failed to follow promotion criteria outlined in its regulations and in its Collective Bargaining Agreement with the Union.

Furthermore, he said the Assistant Chief, and not the Chief, was the actual selecting official and made comments about his age. He said other candidates felt the process was unfair and a veteran Sargent and other unnamed witnesses told him “the Agency was deliberately seeking to fill the position with an individual of a specific race or gender.”

In August, EEOC Appeals Judge Carlton M. Hadden, director of the EEOC Office of Federal Operations, dismissed – without  a hearing – the male officer’s claim that he was a victim of race and age discrimination.

Hadden conceded the record showed the panelists were not “briefed on”   promotion and interview “requirements” but said there was no evidence this omission was “motivated by discrimination.”

Continue reading “Another Nightmare from the EEOC Crypt”

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Federal Judge says Facts Not Plausible

U.S. District Judge Andrew L. Carter, Jr. of the Southern District of New York threw out the paralegal”s age discrimination claims because, he said, they were speculative and unsupported by plausible facts.

But what is a plausible fact?

Judge Carter is around the same age as the plaintiff in the case, Terri Jablonski, 49, and that’s where the similarities end. He’s a male graduate of Harvard Law School who was appointed to his position by President Barack Obama in 2011. He earns around $200,000 a year and enjoys lifetime tenure.

Jablonski is a female Haverford College graduate who earned a paralegal certificate from New York University. She has 19 years of experience as a paralegal and, according to her attorney, excellent references. But she has hit a roadblock.

 Jablonski filed 41 unsuccessful job applications with the legal staffing firm, Special Counsel, Inc., from August 2, 2013 to July 21, 2015. She was never hired or even referred for placement.

Continue reading “Federal Judge says Facts Not Plausible”

Is the EEOC Above Reproach? It Seems to Think So. Maybe It Is.

Can the EEOC be held accountable for engaging in age and sex discrimination in its decision-making process or is it above reproach?

The issue arose this week when the EEOC filed a lawsuit alleging CBS Stations Group of Texas violated the Age Discrimination in Employment Act (ADEA) when it failed to consider the qualifications of a 42-year-old woman and, instead, hired a 24-year-old woman who was less qualified.

The premise of the lawsuit  – that qualifications matter – is completely contrary to an EEOC decision last month to dismiss  a lawsuit filed by a 60-year-old woman who was rejected for one of five attorney positions with the Social Security Administration (SSA). In that case, a novice middle-aged male hiring officer testified the woman was more qualified than some or all of the younger applicants but that he didn’t consider objective qualifications. He said he based his hiring decisions entirely upon whom he thought would be the best fit for the “culture” of the agency. The hiring officer initially selected five attorneys under the age of 40, many of whom were recent law school graduates. The EEOC also ignored gross procedural irregularities, including the intervention by SSA attorneys in the investigation of the complaint in direct violation of EEOC rules.

Opposite legal conclusions about the same core issue – whether qualifications should be considered in hiring – give rise to a serious question about whether the EEOC itself engages in age and/or sex discrimination.

Continue reading “Is the EEOC Above Reproach? It Seems to Think So. Maybe It Is.”

EEOC: Do Qualifications matter or not?

The EEOC appears to be hopelessly confused about the significance of  qualifications in age discrimination case.

This week, the EEOC filed a rare lawsuit alleging age discrimination in hiring. The  EEOC charges that CBS Stations Group of Texas violated the Age Discrimination in Employment Act  (ADEA) when it failed to hire Tammy Campbell, 42, for a full-time traffic reporter position because of her age.  An EEOC press release states the station hired a 24-year old female applicant  who was less qualified than Campbell.

The case contradicts the EEOC’s dismissal last month of a lawsuit filed by a 60-year-old woman who was rejected for one of five attorney positions with the Social Security Administration. The novice hiring officer testified the woman was more qualified than some or all of the younger applicants but that he didn’t consider objective qualifications. He said he based his hiring decisions entirely upon whom he thought would be the best fit for the “culture” of the agency.

Do qualifications count, as in the Texas case, or are they irrelevant, as in the Social Security case?

Continue reading “EEOC: Do Qualifications matter or not?”

Large Study Finds Systemic Age Discrimination in High Tech

Silicon ValleyThe only thing shocking about a new study showing that rampant age discrimination exists in the high tech industry is that anyone didn’t already know that.

However, Visier Insights Report: The Truth About Ageism in the Tech Industry, provides fascinating detail based upon a solid database of  330,000 employees from 43 large U.S. enterprises.

A Canada-based provider of workforce analytic services to companies around the world, Visier concludes “systemic ageism” exists in the high tech industry compared to the non-tech industry. The average tech worker is 38 years old, compared to 43 years old for non-tech workers. The average manager in the tech industry is 42 years old, compared to 47 for non-tech industries.

It has been known for years that age discrimination in rampant in Silicon Valley but the EEOC, which is charged with enforcing the Age Discrimination in Employment Act,  has almost completely ignored the problem, even as national magazines featured stories about 30-year-old tech workers flocking to plastic surgeons in an effort to appear young .

The Visier report  is more proof that the high tech workforce is marked by “significant” over-representation of millennials, between the ages of 20 and 33, and Gen X workers, between the ages of 34 and 51. Millennials comprise 42.6 percent of the high tech workforce  compared to 26.1 percent of the non-tech workforce, and Gen X workers comprise 42.6 percent of the high tech workforce compared to 46.4 percent of the non-tech workforce. Continue reading “Large Study Finds Systemic Age Discrimination in High Tech”

Classism and Forced Retirement

PhilosopherAn ugly “class”  issue lurks beneath the argument that older workers should be forced out of the workplace so that younger workers can have their jobs.

The argument is often made by people who enjoy professional status, earn big bucks and look forward to comfortable pensions.  Not by ordinary working stiffs.

This is the case in a recent essay in the Wall Street Journal by two law school professors from the University of Chicago, Saul Levmore, who is around 63 years of age, and Martha Nussbaum, who is 70.

They claim, without citing any supporting data, that the productivity of workers declines after age 50. Performance may decline in some areas for some workers (i.e., quarterbacks and major league pitchers) but aging is individualistic and not uniform. Should we also assume that all women want to be mommies and all men can bench press 500 pounds?

They argue the law should allow employers and employees “to agree” on a retirement age at the start of a new job, so the workers can be terminated “after a certain age” without cause. Don’t they know that few, if any, workers would voluntarily agree to such an onerous contract term. That these contracts would be based on age discrimination and signed under duress.

Why would the Wall Street Journal shine its spotlight on an essay that fails to show any understanding for the plight of older workers or the reality of age discrimination in the workplace? Possibly because six corporations own 90 percent of the media today and these corporations engage in age discrimination.

Ironically, the Age Discrimination in Employment Act of 1967 initially permitted colleges and universities to involuntarily retire tenured professors at age 65. How would Levmore and Nussbaum feel about being forced to hand their posh jobs over to deserving young PhDs? Continue reading “Classism and Forced Retirement”

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”