Senate Aging Committee asked to Investigate EEOC’s Inequitable Treatment of Age Discrimination Cases

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.

Cultural Fit

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.”

Intangibles

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 just how unaccountable it is to the public. The EEOC states it will not honor Freedom of Information requests for  information that provides insight into the EEOC’s action, including “[r]ecords that reflect EEOC’s internal decision-making.” The EEOC refuses to disclose information about 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. Etc. Etc.

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.

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*”[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.” 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).

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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.

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!

 

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”