EEOC Refuses to Comment About Allowing Hiring Officer to Ignore Objective Qualifications in Age Discrimination Case

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.”

The ruling flies in the face of overwhelming research that hiring officers harbor implicit or subconscious bias against older applicants and particularly older  women.  

 In 2004, Brian Reid, 52, claimed he lost his job at Google after he was called a poor cultural fit, an “old guy” and a “fuddy duddy with ideas too old to matter.” The California Supreme Court held that the comments, if actually made, were evidence of age discrimination. The case was settled for an undisclosed sum out of court.

Hadden, an African-American, would never make the same ruling (nor would the EEOC  uphold such a ruling) in a case involving race. Why does the EEOC sanction discriminatory hiring based on age?

This blog last week asked the EEOC  to comment upon the following questions: 

  1. Does this ruling represent a new policy for the EEOC, which in the past has recommended as a best practice that hiring officers use neutral job-related criteria in hiring to avoid subjective bias? 
  2. Does a policy of permitting employers to hire workers based on solely subjective criteria apply in all discrimination cases or just in age discrimination cases? If it is just age discrimination cases, what is the justification for making this differentiation?
  3. Don’t all jobs “involve the consideration of collegial, professional, teamwork and administrative abilities that do not lend themselves to objective measurement.”  An attorney-decision writer position would seemingly require objective qualifications, such as knowledge of Social Security law and the ability to do research and write.  If a purely subjective approach to hiring is acceptable here, when is it unacceptable? 

The EEOC did not respond. 

Age discrimination in hiring is epidemic and unaddressed in the United States. For years the EEOC has talked about addressing the problem but it has done virtually nothing, spurring criticism even from the AARP.  Age discrimination complaints represent almost a quarter of all complaints received by the EEOC.

In 2016, the EEOC received more than 20,588 complaints of age discrimination but filed only TWO lawsuits with “age discrimination claims.” 

Ironically, this year marks the 50th anniversary of the ADEA. Acting EEOC Commissioner Victoria A. Lipnic, a Republican appointee, promised to make age discrimination a priority.  (We’re still waiting!) President Donald Trump recently nominated Janet Dhillon to the position.

The case is Hortencia R. v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Appeal No. 0120150228 (August 24, 2017).




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