The EEOC’s Cynical, Shameless Rejection of Judicial Ethics

-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:

  1. EEOC judges are members of the executive branch and cannot be held to standards adopted by the judicial branch or the states.
  2. 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.”

Complaint

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.

Another Age Discrimination Case Bites the Dust in Colorado

U.S. District Judge Monica S. Krieger

It seems obvious that Monica Schnittgrund would have fared much  better in federal court if, instead of representing herself, she had a competent attorney.

Schnittgrund was a teacher in the Denver Public School District for 17 years, earning satisfactory performance reviews, when her position was eliminated in 2011.  Schnittgrund, who is now 54, subsequently applied for 85 teaching positions at four schools in the district. She received a couple of interviews but was not hired. Almost all of the jobs went to younger applicants.

Schnittgrund filed a pro-se age discrimination lawsuit alleging one count of age discrimination in hiring. While Schnittgrund represented herself, three attorneys from the Denver law firm of Semple, Farrington & Everall, P.C. represented the Denver school district.

Schnittgrund had no lawyer while the school district had three.

Continue reading “Another Age Discrimination Case Bites the Dust in Colorado”

Why Are So Many Older Workers Trying to ‘Reinvent’ Themselves?

 

Alissa Quart makes many good points in her excellent article, The Snake Oil of the Second Act Industry, in The New York Times, June 22, 2018.

Older workers  are encouraged to “reinvent” themselves to escape long-term unemployment, which makes them ripe for exploitation and leaves them in an even worse financial situation.

However, Ms. Quart,  author of the book “Squeezed: Why Our Families Can’t Afford America,” fails to note why older workers disproportionately face long-term unemployment and joblessness.  Older workers are second class citizens under U.S. law and their fundamental legal inequality encourages widespread, unaddressed age discrimination in employment.

The Age Discrimination in Employment Act of 1967 is far weaker than Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, sex, religion, color and national origin. Over the years, a series of U.S. Supreme Court decisions has weakened the law to a point where today it is a Sisyphean struggle to obtain justice for egregious age discrimination

Moreover,  the federal government is actively engaged in age discrimination itself; the U.S. Equal Employment Opportunity Commission (EEOC) has done virtually nothing to address the problem; and federal courts are unsympathetic at best. Even the AARP  ignores the issue of legal equality for older workers, a proposal I raised in my 2014 book, Betrayed: The Legalization of Age Discr45miination in the Workplace.

In any case, Ms. Quart makes many astute  and important observations in her NYT article that are worth repeating here.

“According to the Bureau of Labor Statistics, 33.5 percent of job-seekers age 55 and older are long-term unemployed people, and long-term unemployment rates for people over 55 are triple the rates for those 25 and under.”

Continue reading “Why Are So Many Older Workers Trying to ‘Reinvent’ Themselves?”

An Appellate Judge Defends Age Discrimination

What do you do when a three judge panel on a federal appeals court is not only completely clueless about age discrimination in employment but actually ill-informed?

You lose.

That’s what happened to Adam A. Carter, an attorney with The Employment Law Group of Washington, D.C., who represented  plaintiff Craig Waters before the 4th Circuit Court of Appeals in Richmond, VA.  Carter was appealing the lower court’s pre-trial dismissal of Water’s age discrimination lawsuit.

The EEOC mentioned the case Tuesday in a report marking the 50th anniversary of the Age Discrimination in Employment Act of 1967. Over the years, the EEOC notes, research has shown that age discrimination is more  “alike than different” from race and sex discrimination. Yet, the report states, judges continue to treat age discrimination dismissively.

The EEOC notes that in the Water’s case an appellate judge, in questioning the plaintiff’s claims, insisted that age discrimination is different from race and sex discrimination because everyone ages.  The panel proceeded to rule against the plaintiff.

“[T]his notion that age discrimination is ‘different’ should not justify less protection for older workers in interpreting the ADEA,” the EEOC states.

Continue reading “An Appellate Judge Defends Age Discrimination”

AARP’s Timid Goals for Age Discrimination in Employment Act

First, some historical context.

The first time anyone from the AARP publicly criticized the efficacy of the Age Discrimination in Employment Act of 1967 was in the summer of 2017, three years after the publication of my book,  Betrayed: The Legalization of Age Discrimination in the Workplace.

My book  was the first to argue that the ADEA legalized a broad swath of age discrimination compared to Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, sex, religion, color and national origin. Moreover, it notes that, unlike Title VII, the ADEA denies victims of age discrimination punitive and compensatory damages. My book advocates repealing the ADEA and adding age as a protected class to Title VII, which was originally proposed in 1964 but rejected when Congress decided more study was needed about age discrimination.

Now AARP Senior Attorney Laurie McCann has turned a new page in the continuing AARP saga.

McCann  authored a carefully worded law review article in a recent issue of the ABA Journal of Labor & Employment Law to mark the 50th anniversary of the ADEA. The article is critical of the ADEA but stops far short of suggesting repeal. Continue reading “AARP’s Timid Goals for Age Discrimination in Employment Act”

Diversity at University of Arizona Law School

According to The Arizona Daily Star newspaper, the University of Arizona’s James E. Rogers Law School has made seven new faculty appointments this year. It is a picture of diversity with one exception – it appears that none of the new hires is over the age of 40. Rampant age discrimination in hiring for new faculty positions has been the unapologetic rule of law at law schools throughout the country for decades.  Meanwhile, these law schools dutifully teach their students about U.S. civil rights and employment law, undoubtedly decrying other institutions that engage in systemic hiring discrimination.

Tension Between Diversity and Age Discrimination at HP

So Antonio J. Lucio, the chief marketing and communications officer at HP Inc., was recently quoted by ABC news as stressing the importance of diversity in the workplace.

He extols the benefits of hiring women and people of color. He does not mention age.

Meanwhile, Lucio, who is around age 60 himself, infers that HP is focused on hiring “young talent” and that senior management should be young.  In the following “quote of the day” on Friday from Forbes, Lucio states: “If you don’t have senior management that looks like the young talent you bring in, you’re going to lose them.”

Yes, women and people of color are underrepresented in the advertising industry but why can’t the creative and innovative folks in America’s advertising industry come up with a better solution than age discrimination? For one thing, older women and older people of color deserve equal opportunity.  For another, age discrimination is no less harmful than race or sex discrimination and it violates the Age Discrimination in Employment Act.

Buy products from companies that don’t engage in age discrimination.

Continue reading “Tension Between Diversity and Age Discrimination at HP”

American Bar Assn Must Do More than Bemoan Senior Homelessness, Hunger

The American Bar Association Commission on Law and Aging has devoted the current issue of its journal, Bifocal, to the “graying” of hunger and homelessness in America.

Unfortunately, the ABA ignores a major underlying reason for these problems – that older workers are second class citizens  under American law, subject to gross and epidemic age discrimination in employment.

Could it be acknowledging the legality of age discrimination would require fat cat corporate ABA lawyers to actually do something?

There is overwhelming evidence that age discrimination in employment is epidemic and unaddressed.

The risk of poverty clearly increases when older workers are expelled from the workplace and disproportionately dumped into long-term unemployment.  Many ride out unemployment benefits , spend down their savings and are forced to take low-wage part-time jobs to survive. Many are forced to retire at age 62, as soon as they become eligible for Social Security, thereby suffering at least a 25 percent reduction in benefits for the rest of their lives. Meanwhile, they cannot afford health care and chronic conditions worsen, including heart and respiratory conditions and mental health conditions. Continue reading “American Bar Assn Must Do More than Bemoan Senior Homelessness, Hunger”

Starbucks Denies Older Workers the Key to Employment

It is ironic that Starbucks has gone to such extremes to apologize for denying a black person’s request for a key to use a restroom at an inner city Starbucks because he was not a paying customer.

Ironic because Starbucks has spearheaded a blatant campaign of age discrimination in hiring since 2015 under the auspices of The 100,000 Opportunities Initiative, which includes many of our nation’s largest corporations (i.e. Walmart, Microsoft, CVS).

Starbucks closed its stores and held a half-day training session last week to educate workers about racial bias. Outgoing Starbucks CEO Howard Schultz subsequently announced that henceforth Starbucks’ bathrooms will be open to everyone, whether paying customers or not.  But Schultz and Starbucks sensitivity to bias obviously does not extended to age bias.

The 100,000 Opportunities Initiative has held job fairs across the nation for the past three years where it has filled tens of thousands of jobs on the spot with younger workers. The initiative is so successful that it recently hiked its goal of providing 100,000 opportunities to a million. Continue reading “Starbucks Denies Older Workers the Key to Employment”

High Court Targets the Problem of Competing Civil Rights

A decision of the  U.S. Supreme Court Monday could have widespread ramifications in cases where the legal rights of one group affect the legal rights of another.

In the 7-2 decision of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the majority held the Colorado Civil Rights Commission violated cake baker Jack Phillip’s First Amendment’s guarantee of free exercise of religion. The Court said the Commission did not provide Phillips  with “a neutral and respectful consideration of his claims in all the circumstances of the case.”

 The Court said gay couples have a legal right to be free from discrimination but so do Americans with genuinely held religious beliefs.

The Court ruled the Colorado Civil Rights Commission “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating [Phillip’s} objection.” The majority said that protecting gay couples must be applied in a manner that is neutral toward religion.

The Court declined to issue a clear rule about whether  a baker can refuse to serve gay couples. Instead, the Court said, “these disputes must be resolved in future litigation with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

It is a common occurrence today for the rights of one protected group to conflict with the rights of another protected group. All too often, state and federal agencies simply pick a favored group to protect and  disregard the rights of the “other” group.  This blog, for example, has written extensively about the refusal of the federal government and the EEOC to enforce the Age Discrimination in Employment Act when the rights of older workers conflict with advancement of young minority group members. Continue reading “High Court Targets the Problem of Competing Civil Rights”