EEOC Denies Freedom of Information Act Requests Re. ‘Cultural Fit’ Ruling

The EEOC has refused to answer several Freedom of Information Act requests asking why it is appropriate to base hiring decisions on “cultural fit”  in age discrimination cases but not in cases involving discrimination on the basis of race, sex, religion, color or national origin.


  • Denied a request to provide copies of decisions issued by the EEOC in the past decade involving the use of “cultural fit”in the hiring process;
  • Denied a request to identify the legal basis for applying a different legal standard with respect to hiring complaints  filed under the Age Discrimination in Employment Act compared to complaints filed under Title VII of the Civil Rights Act.
  • Denied a request to identify whether any outside agency, committee or commission reviews the adherence of the EEOC to legal standards.

The FOIA letter, signed by Kimberly J. Hall, an EEOC government information specialist, failed to cite any basis for the EEOC’s refusal to disclose agency records. She states the EEOC is not required to answer questions.

Last fall, the EEOC upheld two decisions by  its appellate arm, the EEOC Office of Federal Operations,  dismissing age discrimination cases where federal agencies based  hiring decisions upon subjective criteria. The EEOC cited  no legal precedent for  dismissing the importance of objective qualifications  (i.e. education and experience) in the hiring process in age discrimination cases and ignored well-settled legal precedent holding otherwise.

In one case, a middle-aged male hiring officer for the Social Security Administration agreed that a 60-year-old female candidate had superior objective qualifications (i.e. education and experience) for one of five vacant positions at a new SSA office opening in Reno, NV. However, he said he chose five applicants under the age of 40 because he thought they were a better cultural fit for the office.  Research shows that older women suffer the highest rates of age discrimination in hiring.

In the other case, a superbly qualified 48-year-old white male applicant was passed over for a public safety position at a veteran’s center . Instead, a minimally qualified African-American woman in her 20s was hired. The EEOC ruled the woman “may” have had more poise, compassion and leadership potential.

In both cases, the EEOC ignored evidence of serious irregularities by the hiring agencies.

The EEOC routinely treats education and experience as critical factors in complaints involving race, sex and religion.

The EEOC issued a guidance several years ago stating that hiring for cultural fit was discriminatory in a case involving Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, color, national origin and religion.

It is widely understood – even in the business community –  that hiring for “cultural fit” invites subjective bias into the hiring process. The Society for Human Resource Management advises employers to base hiring decisions “around skill sets, rather than softer ‘fit’ factors that can be a cover for discrimination. ”

At best, the EEOC’s rulings represent a form of intellectual dishonesty with respect to concepts of equal opportunity and equal justice. At worst, the EEOC rulings reflect prejudice and illegal age discrimination by treating older complainants less favorably than other complainants.

The EEOC rulings show  intellectual dishonesty about the right to equal opportunity and equal justice.

EEOC actions are  secret unless the EEOC files a lawsuit or the complainant makes the decision public so it is impossible to tell how many older older complainants have had their complaints dismissed by the EEOC for purely subjective and seemingly discriminatory reasons.

The ruling in the case involving the veteran’s center was published by the EEOC to serve as precedent in future cases.

Acting EEOC Commissioner Victoria Lipnic has declined to comment on the matter.

This blog has asked the U.S. Senate Special Committee on Aging to investigate the EEOC’s failure to aggressively enforce the Age Discrimination in Employment Act , including its rulings in the above cases.  Meanwhile, the AARP has chosen to ignore the discriminatory rulings.

Is Placing Age Limits on Gun Sales ‘Age Discrimination’?

No federal law prohibits age discrimination with respect to raising the age for gun sale purchases from 18 to 21.

The federal law that protects Americans from age discrimination is the Age Discrimination in Employment Act of 1967, which applies only to workers who are aged 40 and over.  It does not protect Americans under the age of 40 from age discrimination.

What about lawsuits filed against gun sellers in states like Oregon, where a state law prohibits discrimination against individuals aged 18 and older?

A half-dozen states, including Oregon, have passed laws raising the age for cigarette purchases from 18 to 21.  Cigarettes kill almost a half million people a year, including more than 41,000 nonsmokers who die from secondhand smoke. The ever litigious tobacco industry has not challenged  Tobacco 21 laws on discrimination grounds.

Like Tobacco 21 laws, state laws placing reasonable age restrictions on gun purchases reflect an important public health interest. So far this year, there have been 18 school shootings, the latest being a mass shooting at a Florida high school that killed 17 people. The U.S. Centers for Disease Control and Prevention estimates that an average of 35,141 Americans are killed by guns each year.

It is extremely unlikely the U.S. Supreme Court would overrule a state law that creates an age-based prohibition on gun sales on equal protection grounds.  The Court accords age its lowest standard of review so a state law that discriminates based on age need only be rational.  It is at least rational to raise the age of gun sales to 21 in an effort to prevent more school shootings.  It is arguably irrational NOT TO do so.

Lawsuits alleging age discrimination  with respect to raising the age for gun sale purchases would seem to have little chance of success and might even be considered frivolous.

The American Lawyer forms a ‘Young Lawyer’ Editorial Board

Gina Passarella Cipriani

It is ironic that the legal profession is one of the worst in terms of adherence to the age discrimination in employment.

There are many lawsuits describing how law firms use creative means to get rid of older workers and law firms in past years have run ads that  blatantly targeted new attorneys for hire, while discouraging older lawyers.

Perhaps it should be no surprise the The American Lawyer, a monthly magazine published by ALM Media in New York City, has “proudly” announced it has formed a “Young Lawyer Editorial Board.” The members “range from just a year or so out of law school to some serving as young partners in their firms.” According to the magazine’s web site: “The goal of this board is to serve as a voice for the next generation of professionals in the legal profession.”

The existence of the young editorial board begs the question -is there an old editorial board that is the voice of the past generation?

Interestingly, the first monthly editorial promulgated by the Young Lawyer editorial board involves sexual harassment in the legal profession. Here’s a suggestion for next month’s editorial: age discrimination in the legal profession.

Of course, all of this could be the dying gasps of a magazine that is in itself old and irrelevant.

About a year ago, ALM laid off more than 15 of its “senior” editors, including the editors in chief of The American Lawyer, Corporate Counsel, Legaltech News, the editorial director of ALM, the Executive Editor of the New York Law Journal, the director of Legal Intelligence, and several longtime copy editors and reporters, etc. The company was reportedly seeking to cut costs.

It’s not clear whether this activity led to any age discrimination lawsuits against ALM … or were they smart enough to buy off the high paid cast-offs?

Gina Passarella  Cipriani took over the reigns at The American Lawyer as its new editor-in-chief.  After obtaining a graduate degree in journalism in 2005, she immediately began working for  ALM’s The Legal Intelligencer in Pennsylvania. Her entire 12-year journalism career has been spent at ALM.

The chief executive officer of ALM Media Properties, LLC, and ALM Media, LLC,  is William M. Carter, 49, a  former senior executive at LexisNexis and Reuters who holds a master of business administration degree.

U.S. Supreme Court Opts to Review Lesser of Two Evils

The U.S. Supreme Court had a choice of reviewing two cases involving age discrimination.

One  involves an obscure issue. A  small government agency near Tucson, AZ,  is arguing it does not have to follow the  Age Discrimination in Employment Act (ADEA) because it has fewer than 20 employees.

The other involves the major issue of our day  – systemic age discrimination in hiring.  R.J. Reynolds Tobacco Co. used internet technology from 2007 to 2010 to weed out 20,000 applications submitted by older workers for the position of sales manager and targeted workers who were “2-3 years out of college” who “easily adjusts to change.”

Guess which case the Court selected for review.

The Court said this week it will decide an appeal filed by the Mount Lemmon Fire District  of a decision by the U.S. Court of Appeals for the Ninth Circuit holding that the ADEA applies to government agencies with fewer than 20 employees. The  fire district argues the ADEA covers only employers with 20 or more workers and that employed only 13 workers. Four other federal circuits have ruled in accordance with the fire district.

The case involves two firefighters, aged 46 and 54, who were the district’s oldest full-time employees when they were fired in 2009. They allege age discrimination in violation of the ADEA.   The district said they  were fired in a cost-cutting action because they did not participate in volunteer assignments fighting fires in natural wildland areas.

When the ADEA was passed in 1967, it applied only to private sector workers. The U.S. Congress amended the ADEA in 1974 to extend its coverage to states, political subdivisions of states and other state-related entities.  The split between the circuits involves a tortured dispute about the wording of the amendment.

The 9th Circuit ruled the amendment unambiguously states that a political subdivision of a state is a distinct category  that lacks a 20-employee minimum employee requirement. Furthermore, the 9th Circuit contends the fire district and other circuits relied on decades old precedent and used an outmoded method of statutory interpretation that “cannot be reconciled” with the Supreme Court’s  recent  jurisprudence.

An issue of little consequence?

Counsel for the firefighters argued the issue is not significant enough to merit  Supreme Court review because “the ADEA’s numerosity requirement would have no discernible impact on the primary conduct of public employers, and questions regarding its applicability in this context rarely arise.” Also,  they note, state laws typically forbid all political subdivisions—regardless of size—from discriminating against employees on the basis of age.

Reynolds Case

Last summer, the Court refused to hear an appeal of a ruling by the 11th Circuit Court of Appeals in Atlanta in the Reynolds case.

The 11th court said Richard Villarreal, who applied numerous times for a sales manager position, could not sue Reynolds for using internet software to systematically screen out the resumes of older job applicants. The appeals court reasoned that job applicants can’t sue for systemic discrimination because they have “no status” as employees. As a result, job applicants in Alabama, Georgia and Florida currently have no protection from systemic age discrimination.

The US is Inexplicably Backwards about Age Discrimination in Employment

As an American, it is frustrating to read about the steps that Great Britain is taking to attack age discrimination in employment.

The British government is actively working to address the problem because it considers age discrimination a threat to future economic growth. The UK  estimates that if everyone in the UK worked just one year longer, the country’s gross domestic product would increase by one percent.

By contrast, every branch of the US government has made the problem of age discrimination in employment much worse in recent years.

The executive branch since 2012 has actively engaged in age discrimination and the EEOC, which supposedly enforces the Age Discrimination in Employment Act, either  ignored the problem or treats it dismissively.  Meanwhile, the Social Security Administration penalizes workers between age 62 and normal retirement age who collect benefits and continue to earn significant employment income.

The federal judiciary over the years eviscerated the already weak ADEA, making it much more difficult to win an age discrimination lawsuit, and the legislative branch, the U.S. Congress, has done nothing to fix the damage.

While America was backpedaling,  Britain in 2015 created a special team led by a government official who is  called the  Business Champion for Older Workers. The team works to help  employers to retain, retrain and recruit older workers.

The current Business Champion for Older Workers is Andy Briggs,  the chief executive officer of Aviva UK Life, a  multinational insurance company headquartered in London that has about 33 million customers in 16 countries.

Briggs challenged UK companies a year ago to increase the number of employees aged 50 to 69 on their payrolls from nine million to more than 10 million by 2022. That’s a 12 percent increase.  To encourage transparency and progress, Briggs asked every UK employer to publish the number and percentage of older workers in their workforce. Several major UK corporations heeded Brigg’s call, including his own Aviva and Barclays Bank. About 19 percent of Aviva’s 16,000 UK employees and 16 percent of Barclay’s workers are over the age of 50.

The United States has done little to acknowledge demographic shifts that will affect American productivity in the years ahead.

Why is the US so backward about age discrimination? It’s hard to pin down the impact of age discrimination in the US because very little research has been done on the topic. But we do know that age bias drives older workers out of the workforce and age discrimination in hiring relegates older workers to low-paid part-time and temp jobs.  This makes little sense when  society needs the  “wisdom capital” (i.e. experience and knowledge) of older workers.

By the year 2050, the U.S. population aged 65 and over is projected to be 83.7 million Americans, which is nearly double the estimate of 43.1 million in 2012.

EEOC Appears to be Alone in Sanctioning Hiring for ‘Cultural Fit’

Note to EEOC:  Hiring for “cultural fit” is also frowned on by the Society for Human Resource Management (SHRM), the world’s largest HR professional society, representing 285,000 members in more than 165 countries.

In  Hiring in the Age of Ageism , the SHRM advises employers to “work to structure interviews around skill sets, rather than softer ‘fit’ factors that can be a cover for discrimination. ”

The  EEOC upheld two rulings in age discrimination cases last fall  by its appellate division, the EEOC Office of Federal Operations (OFO), that endorsed hiring based on purely subjective factors like poise and cultural fit.

The complaints allege that two federal sector agencies violated the Age Discrimination in Employment Act of 1967 when they ignored the superior qualifications of the older applicants and  hired far less qualified applicants under the age of 40 based upon subjective factors.

In one case,  the Social Security Administration admitted that its hiring officer selected five applicants under the age of 40 –  and rejected two highly qualified candidates age 47 and 60 – based upon how he thought they would fit within the “culture” of an SSA office that had not yet even opened. The hiring officer, a middle aged male, said he completely ignored objective qualifications, finding them to be “irrelevant.”

In the other case, a superbly qualified white male candidate, 48, was rejected in favor of a  minimally qualified African American female candidate in her 20s because she “may have” had more poise, compassion, leadership and the ability to deal with stress.

The EEOC is extremely skeptical and carefully parses the use of subjective criteria in the hiring process when it involves race, sex, religion, national origin and color. The EEOC issued a policy guidance stating that hiring for cultural fit was discriminatory in a case involving national origin.

The EEOC has declined to comment upon why hiring for cultural fit is legal in age discrimination cases. The EEOC appears to have adopted a double standard that is completely unsupported by the ADEA and federal case law and which appears in itself be considered discriminatory.

Federal judge says Hollywood’s problem is sex (not age) discrimination

Judge Vince Chhabria, 48.

A federal court judge has dismissed as unconstitutional a 2016 law that prevented the Internet Movie Database ( from posting the ages of actors upon request.

The law was a desperate measure to combat overwhelming age discrimination in hiring in Hollywood, where young women are routinely cast in roles opposite much older men.

U.S. District Judge Vince Chhabria in San Francisco said the law violates the First Amendment rights of by preventing it from publishing factual information. Judge Chhabria also said the law  was “underinclusive” because it bans only one kind of speaker from disseminating age-related information.

Interestingly, Judge Chhabria, who was appointed to the bench in 2014 by former President Barack Obama,  opined that the problem in the entertainment industry is not age discrimination but rather sex discrimination. He said the problem was”objectifying women” and “overvaluing their looks while devaluing everything else.”

Aren’t  women being treated less favorably because of their age? That’s age discrimination.

Duncan Crabtree-Ireland, general counsel of  the Screen Actors Guild told The Sacramento Bee that Judge Chhlabria “fails to understand or recognize the massive impact gender and age discrimination has on all working performers.” He said the union plans to appeal.

California Gov. Jerry Brown signed AB 1687 into law in 2016. The bill required that “commercial online entertainment service providers” such as IMDbPro remove users’ age upon request.

Will the EEOC Start Holding Feds Accountable for Systemic Age Discrimination?

The EEOC has a new feature on its website called Faces of the ADEA that celebrates the stories of a half-dozen victims of age discrimination who were helped by the EEOC.

In reality, the vast majority of age discrimination victims – tens of thousands of older workers – who have sought justice from the EEOC in the past decade found a deaf ear. Meanwhile, age discrimination in employment – particularly in hiring – has been overt, unaddressed and epidemic.

Nothing in the EEOC’s new strategic plan for 2018-2022  specifically indicates the EEOC intends to improve its pathetic response to age discrimination  in the years ahead but there is one glimmer of hope.

In its new strategic plan, the EEOC announced it will conduct on-site program evaluations of several federal agencies this year “that have been identified through the integrated data system” (i.e. that generate the most discrimination complaints). The EEOC will “issue compliance plans that recommend changes in their employment practices.” The EEOC will review the agency’s implementation of the compliance plans and if their efforts found wanting take “corrective action” if necessary.

Perhaps the worst age discriminator in the United States – in terms of scope and impact – is the  U.S. government, which is also the nation’s largest employer.

The EEOC acknowledges  the federal sector is an “integral part” of combating employment discrimination because it has “tremendous influence” over the employment practices of private and public employers in the United States and around the world. The EEOC says the promotion of equal employment opportunity in the federal government can “positively impact all employees and job-seekers.”

This represents a distinct change of attitude for the EEOC, which has ignored age discrimination by the federal government for years.

This blog in 2013 became a lonely voice in opposition of an executive order signed by former Democratic President Barack Obama that effectively amended the Age Discrimination in Employment Act of 1967 (ADEA) to allow federal agencies to discriminate on the basis of age. The EEOC was conspicuously silent when Obama signed the order in 2010 and when it went into effect in 2012.  So far, the Office of Program Management’s Pathways “Recent Graduates” Program has barred older workers from applying for more than 100,000 federal jobs. The EEOC also buried its head in the sand when Obama’s Secretary of Labor Tom Perez endorsed a  hiring initiative  that permitted  America’s largest corporations to engage in age discrimination in hiring.

It  was revealed last year that the EEOC’s appellate unit, the Office of Federal Operations,  dismissed two age discrimination complaints against federal agencies that hired younger workers and bypassed  older workers on purely subjective grounds (i.e., poise,  “cultural fit” , etc).

The EEOC ‘s failure to aggressively enforce the ADEA has flown under the radar for years. One reason is that the EEOC’s actions are secret unless the EEOC chooses to make them public or the complainant does. Many complainants fear publicity will hinder their chances of finding new employment.

In addition,  older Americans lack a strong  public voice. The AARP is apparently too busy making billions from  licensing agreements that exploit its  membership base. And the media  has widely ignored the problem while it engaged in wholesale age discrimination itself .

Last year marked the 50th anniversary of the ADEA.

Age Discrimination is not a Priority for AARP (supposed “advocate for Americans 50+”)

AARPThe AARP has informed the U.S. Office of Management and Budget of its priorities and ensuring that older workers achieve equal justice in the workplace is not one of them.

In a Jan. 23 letter to the OMB, AARP CEO JoAnn C. Jenkins listed the following AARP priorities:

  • Opposing cuts to Medicare.
  • Preserving Medicaid and long-term services and supports for seniors, children and adults with disabilities.
  • Lowering prescription drug prices.
  • Prohibiting private insurers from overcharging older Americans because of their age. Currently, insurers can charge older Americans three times more to provide the same coverage received by younger individuals. (FYI – The AARP is reaping billions through the same of Medigap health insurance.)
  • Making  the medical expense itemized deduction threshold from 10% to 7.5% of adjusted gross income permanent.
  • Preserving the Supplemental Nutrition Assistance Program (SNAP), which the AARP calls a vital nutrition safety net for older Americans and low-income families.

The AARP  (and the EEOC) have done virtually nothing for 50 years to combat epidemic and unaddressed age discrimination in the workplace.

Older workers have been second class citizens since the adoption of the Age Discrimination in Employment Act of 1967. The ADEA is far weaker than Title VII of the Civil Rights Act of 1963, which prohibits discrimination on the basis of race, color, sex, national origin and women. Since its adoption, the ADEA has been further eviscerated by U.S. Supreme Court rulings that make it almost impossible to prevail in an age discrimination lawsuit.

The AARP describes itself as the largest nonprofit, nonpartisan organization representing the interests of Americans age 50 and older.

AARP Ignores the EEOC’s Discriminatory Rulings in Age Discrimination Cases

Note: A spokesperson for the EEOC on 2/7/18 announced the EEOC has adopted a procedure to review ethical complaints against the Agency staff.  Gary J. Hozempa, a staff attorney in the EEOC Office of Legal Counsel, said he and his team are responsible for “considering ethics issues that arise in the workplace about EEOC employees.”  He saId the current head of the Office of Legal Counsel, Carol R. Miaskoff, Associate Legal Counsel, is EEOC’s Designated Agency Ethics Official.  PGB

Since EEOC decisions are secret, there is no way of telling how many older workers have had their age discrimination complaints  dismissed on spurious and discriminatory grounds.

It came to light last fall that the EEOC upheld two rulings by its appellate division dismissing age discrimination complaints where the federal government ignored objective qualifications and used purely subjective criteria (i.e., cultural fit, poise)  to make promotion and hiring decisions. The rulings contradict EEOC stated policy, EEOC rulings in race and sex discrimination cases, and settled federal case law. The rulings go beyond the EEOC’s generally dismissive treatment of age discrimination and reflect actual age bias.

Then it became apparent the EEOC is unaccountable to the public. The EEOC has no appeal process. There is no EEOC ombudsperson to investigate complaints against the agency. Incredibly, the EEOC even lacks a procedure for filing ethical complaints against the EEOC’s so-called “administrative judges.” The EEOC Office of Inspector General takes the position that it is not its job to investigate complaints related to EEOC rulings.

The AARP & EEOC declined to comment on the discriminatory rulings.

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