Is the EEOC Above Reproach? It Seems to Think So. Maybe It Is.

Can the EEOC be held accountable for engaging in age and sex discrimination in its decision-making process or is it above reproach?

The issue arose this week when the EEOC filed a lawsuit alleging CBS Stations Group of Texas violated the Age Discrimination in Employment Act (ADEA) when it failed to consider the qualifications of a 42-year-old woman and, instead, hired a 24-year-old woman who was less qualified.

The premise of the lawsuit  – that qualifications matter – is completely contrary to an EEOC decision last month to dismiss  a lawsuit filed by a 60-year-old woman who was rejected for one of five attorney positions with the Social Security Administration (SSA). In that case, a novice middle-aged male hiring officer testified the woman was more qualified than some or all of the younger applicants but that he didn’t consider objective qualifications. He said he based his hiring decisions entirely upon whom he thought would be the best fit for the “culture” of the agency. The hiring officer initially selected five attorneys under the age of 40, many of whom were recent law school graduates. The EEOC also ignored gross procedural irregularities, including the intervention by SSA attorneys in the investigation of the complaint in direct violation of EEOC rules.

Opposite legal conclusions about the same core issue – whether qualifications should be considered in hiring – give rise to a serious question about whether the EEOC itself engages in age and/or sex discrimination.

It is technically impossible for an employer to violate the ADEA by ignoring qualifications in a case involving a 42-year-old woman but to be in compliance when it ignores qualifications in a case involving a 60-year-old woman. The EEOC obviously does not value the right of the 60-year-old woman to be considered for a job free from illegal age discrimination.

An unidentified spokesperson for the EEOC Office of Federal Operations said Thursday that, while the EEOC acknowledges the older woman’s concerns that she was a victim of age and sex discrimination by the EEOC,  “there is no right to further consideration from the EEOC” after an administrative appeal is closed.  The EEOC media office failed to return a request for comment Thursday regarding whether the EEOC itself can be held accountable for age and sex discrimination. 

Shouldn’t Congress care that the agency responsible for enforcing the ADEA not only fails to do so but actually violates it? 

This is not the first time the EEOC has been accused of age discrimination. The U.S. Chamber of Commerce last year taunted the EEOC for operating a hiring program that has an obvious discriminatory impact on older workers.  Moreover, the EEOC has ignored age discrimination for a decade. In 2016, the EEOC received 22,000 complaints of age discrimination but filed only two lawsuits with “age discrimination claims.”

Research shows that older women are by far the most affected by age discrimination in hiring. Women who are forced out of the workplace and unable to find a new job are unable to save for retirement.  The National Institute on Retirement Security last year reported that women are 80 percent more likely than men to be impoverished at age 65 and older. 

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