-Spokesperson says EEOC “leadership” sees no need to require EEOC judges to adhere to ABA Code of ethics/conduct requiring impartiality and adherence to law. Ed.
Federal and state court judges are bound by a code of judicial ethics but the EEOC insists that its “Administrative Judges” are not.
EEOC Associate Legal Counsel Carol R. Miaskoff offers two cynical explanations for this seeming anomaly in a letter dated June 25:
- EEOC judges are members of the executive branch and cannot be held to standards adopted by the judicial branch or the states.
- EEOC judges are not bound by the American Bar Association’s Model Code of Judicial Conduct because they are “mere” attorneys and not judges.
Never mind that EEOC judges are called “Administrative Judges” and adjudicate discrimination complaints filed against federal agencies .
Never mind that the ABA model code applies to “anyone who is authorized to perform judicial functions, including … a member of the administrative law judiciary.”
Never mind that the ABA passed a Model Code of Judicial Conduct for Federal Administrative Law Judges in 1990 that says a federal administrative law judge “should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and the impartiality of the administrative judiciary.”
Miaskoff’s letter was in response to a complaint by a former judge alleging that EEOC Administrative Judge Daniel Leach and Carlton M. Hadden, the director of the EEOC Office of Federal Operations, blatantly violated fundamental standards of judicial ethics in dismissing her age discrimination complaint. Miaskoff said the EEOC judges are not bound by rules of judicial ethics and therefore did not violate the rules.
“Because judicial standards do not apply, they could not have violated these rules.” – Miaskoff.
Among other things, Leach based his ruling on evidence that was indisputably false, ignored legal precedent and arbitrarily created second class status for victims of age discrimination. On appeal, Hadden ignored evidence of error and upheld Leach’s decision. The EEOC declined to review the case, which held that federal employers can base hiring decisions on subjective notions of “cultural fit.”
Hadden issued a similar decision in another age discrimination case, claiming federal employers could base hiring decisions on subjective criteria (i.e. poise) that would be clearly discriminatory in cases involving discrimination on the basis of race, sex, religion, color and national origin.
Many similar EEOC decisions could exist that are shielded from public view by the EEOC’s position that its proceedings are secret.
Why Judicial Codes Matter
There is a reason that federal and state judges are bound by judicial ethics requirements, according to recognized expert Marla N. Greenstein, Executive Director of the Alaska Commission on Judicial Conduct.
Greenstein said the “goal of any Code of Conduct for Judicial decision makers is to be free from bias and free from the appearance of bias. This covers abuse of office, maintaining memberships and participation in community groups that do not conflict with the judicial role, and disclosure of financial and other personal interests the may show an improper interest in a proceeding.”
A judicial ethics code discourages bias, abuse of office, and improper interest in a proceeding – Greenstein
In addition to maintaining the integrity of the judiciary, ethical rules also serve the important function of avoiding the appearance of impropriety and insuring public confidence in the system.
U.S. Supreme Court case
Interestingly, the EEOC’s self-serving position that its judges are not judges but mere attorneys is discredited by a recent U.S. Supreme Court case involving the Securities and Exchange Commission (SEC).
The nation’s high Court rejected the SEC’s argument that its Administrative Law Judges are “mere employees” working in the executive branch. The Court said SEC judges are “officers of the United States” and subject to the Appointments Clause of the U.S. Constitution. The Court noted the SEC judges “have all the authority needed to ensure fair and orderly adversarial hearings – indeed, nearly all the tools of federal trial judges.” The SEC has since ratified the appointments of its current administrative law judges to ensure they are valid.
Like federal and state judges and SEC judges, EEOC judges preside over pre-trial motions and discovery, hold adversarial hearings and hear appeals.
Federal judges who work in the judicial branch are required to follow the Code of Conduct for United States Judges
Every state has adopted a judicial conduct. Most of these state codes re rooted in the ABA Model Code of Judicial Conduct, Canon 2. (A judge shall perform the duties of judicial office impartially, competently, and diligently).
Miaskoff says EEOC judges are required only to adhere to a general ethical code that applies to all executive branch employees called the Standards of Ethical Conduct for Employees of the Executive Branch. This code primarily addresses conflict of interest, bribery and earning outside income.