MLK, the EEOC & Age Discrimination

MLKIt’s hard not to be cynical when the EEOC leadership trumpets its commitment to the ideals of Martin Luther King but ignores the reality of age discrimination in employment and, worse, engages in it.

EEOC Acting Chair Victoria Lipnic tweeted on MLK Day yesterday:

“Every day at the EEOC, we are reminded of Dr. King’s work, his vision, his prophecy. Our work is a deep part of his legacy. His call to service is what each member of the EEOC brings to our work every day.”

That’s a worthy sentiment but the EEOC has yet to walk the talk when it comes to age inequality.

Not only has the EEOC virtually ignored the problem for years but it sanctions age discrimination in hiring by the federal government and actually  engages in the practice itself, thereby undermining enforcement of the Age Discrimination in Employment Act of 1967 in the private sector.

Dr. King understandably focused on the crisis of racial inequality in the United States but his appeal was based on the underlying concept of equal justice for all.  One can only wonder whether Dr. King, who was assasinated at age 39, would have recognized that age discrimination is a major hindrance to older minority group workers if he had lived.

In addition to the EEOC, the U.S. Congress ignores the problem of age discrimination and the U.S. Supreme Court accords age discrimination its lowest standard of review – mere rationality – a far lower standard than the Court accords to discrimination on the basis of race, sex, national origin or religion. A law that discriminates on the basis of age need only be rational to survive the U.S. Supreme Court’s review.

Moreover, it is supremely ironic that our nation’s first African-American president, Barack Obama, signed an executive order in 2010 allowing federal agencies to refuse to hire older workers. The Pathways “Recent Graduates” Program so far has cost older workers almost 100,000 jobs and counting.

Here are some quotes from Dr. King:

  • “Injustice anywhere is a threat to justice everywhere.”
  • “He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it.”
  • “There comes a time when people get tired of being pushed out of the glittering sunlight of life’s July and left standing amid the piercing chill of an alpine November.”

And here a couple of bonus quotes for the EEOC:

  • “A genuine leader is not a searcher for consensus but a molder of consensus.”
  • “Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.”

If older workers can do the job, they have a fundamental right not to be arbitrarily fired or driven out, dispatched in thinly disguised layoffs or omitted from consideration in the hiring process.  Who would deny that older workers have a right to equal justice under the law?

And, b.t.w.,  Research shows that women are, by far, the worst victims of age discrimination in hiring.

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U.S. Senate Special Committee on Aging Neglects its History of Advocacy for Older Workers

In the past, the U.S. Senate Special Committee on Aging has been an advocate for older workers who are faced with age discrimination in employment.

However, the committee has done nothing about age discrimination in employment in recent years, even though millions of older workers lost their jobs and savings after Wall Street collapsed and were forced into a premature and impoverished retirement.

U.S. Sen. Susan Collins, R-ME, the chairperson of the committee, has yet to respond to a plea to address the failure of the U.S. Equal Employment Opportunity Commission  (EEOC) to enforce the Age Discrimination in Employment Act a (ADEA) and its inequitable treatment of older workers.

The EEOC filed two lawsuits with age discrimination claims in 2016, a year in which it received more than 20,000 complaints of age discrimination. After much criticism, the EEOC filed 12 lawsuits with age discrimination claims in Fiscal 2017 but that is still far below its historical record. The EEOC filed 87 lawsuits with age discrimination claims a decade ago, and 120 lawsuits with age discrimination claims in 1993.

The EEOC has demonstrated gross unfairness – if not actual age discrimination – against older workers in its decision-making.

Continue reading “U.S. Senate Special Committee on Aging Neglects its History of Advocacy for Older Workers”

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. Continue reading “Senate Aging Committee asked to Investigate EEOC’s Inequitable Treatment of Age Discrimination Cases”

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”

EEOC Files Rare Age Discrimination in Hiring Claim

The EEOC did something this week that it hardly ever does – it sued an employer for age discrimination in hiring.

The EEOC alleges that the City of Milpitas in California’s Silicon Valley violated federal law by choosing a younger candidate over older applicants with greater qualifications for the position of executive secretary to the city manager.

AccorEEOCding to the EEOC, the City of Milpitas failed to hire four qualified applicants who scored higher than the person selected in a three-person panel review of the candidates.  The individuals who were not selected were 55, 42, 56 and 58 years old. Instead, EEOC alleges the city hired a younger applicant (age 39) who was less qualified than these people, without a valid justification for disregarding the panel rankings.
Age discrimination in hiring is undoubtedly the most common kind of age discrimination and it is particularly blatant in Silicon Valley, which has been a virtual apartheid state for young workers for years. It is interesting that the EEOC chose to sue a government employer in Silicon Valley because private tech companies in Silicon Valley have been the focus of   scrutiny in recent months for discriminatory hiring practices

A  60-year-old software engineer who was not hired by Google in 2011 filed a class action age discrimination lawsuit against Google earlier this year. The lawsuit  alleges the company’s workforce is “grossly disproportionate” with respect to age. The lawsuit asserts the median age of the 28,000 employees who worked for Google in 2013 was 29.  The U.S. Department of Labor reports the median age for computer programmers in the United States is 42.8 and the median age for software developers is 40.6.

Meanwhile, EEOC Senior Counsel Cathy Ventrell-Monsees, in a speech last summer, singled out open and flagrant age discrimination in the high-tech industry, adding, “Some of our officers have made it a priority in looking at age discrimination in the tech industry.” Continue reading “EEOC Files Rare Age Discrimination in Hiring Claim”