Why do the entities that are paid to advocate for older Americans – the EEOC and the AARP – do so little about problem of age discrimination in employment.
The AARP and the EEOC were AWOL when the U.S. Court of Appeals for the Second Circuit in New York City a ruled that the overtly discriminatory Pathways Recent Graduates Program does not “offend” the Equal Justice Clause of the U.S . Constitution because it is rational and it serves a “legitimate” purpose.
Neither the EEOC nor the AARP expressed any concern when the Pathway’s Recent Graduates Program was created in 2010 through an executive order signed by President Barack Obama. His order created a back door exception to the Age Discrimination in Employment Act of 1967, which prohibits using age as a factor in hiring .
The U.S. Office of Personnel Management (OPM) has dismissed a complaint filed by a New York man who was barred from applying for a federal job in 2017 because he had not graduated from college within the past two years.
Kathleen M. MGettigan, then acting director of the OPM, stated in a 3/7/18 letter to the complainant, Brian Neary, that the OPM lacks jurisdiction “over the legality” of the Pathway’s Recent Graduates Program because it was the result of an executive order by former President Barack H. Obama.
The OPM program is an example of systemic and institutionalized age discrimination in hiring.
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.
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.
The EEOC is in the painful position of having to celebrate the 50th anniversary of the Age Discrimination in Employment Act of 1967, which the EEOC has failed to aggressively enforce and arguably violates itself. The U.S. Congress passed the ADEA on December 15, 1967.
This important anniversary of the ADEA also shines a spotlight on how the EEOC has failed millions of older Americans who became victims of age discrimination in employment during and since the Great Recession.
Yet, the EEOC must go through the motions. That is the least that is expected of the agency that is responsible for enforcing the ADEA.
So the EEOC has adopted a handsome marketing logo, Ability Matters – Not Age, and the agency is purporting on Twitter to “count down” to the big day on Friday .
The modern history of the ADEA shows that a law does not yield justice if it is not enforced.
The EEOC, in recent rulings, appears to have completely subverted the stated goal of the Age Discrimination in Employment Act (ADEA), which is to insure the most qualified candidate gets the job.
When former President Lyndon Johnson signed the ADEA fifty years ago, qualifications referred to criteria that were largely capable of objective measurement, like education, experience and achievement.
In August, the director of the Office of Federal Operations, Carlton M. Hadden, Jr., issued at least two decisions finding no discrimination in cases where highly-qualified applicants were passed over for much younger applicants with far few objective qualifications.
Hadden ruled that a white male police detective, 48, with 20 years of high-level experience in law enforcement, failed to show he was more qualified for the position of lead police officer at the Dallas veteran’s medical center than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden said the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership, and the ability to cope with stress …”
It is not surprising that attorneys from the Center for the Study of Law and Religion at Emory University perceive the federal courts’ bias in employment discrimination cases as being “particularly oppressive on followers of minority religious traditions.”
Attorneys associated with the Center recently filed an amicus brief questioning the high rate of dismissal for employment discrimination cases in federal court. They point to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.
There’s no question that all employment discrimination cases are subject to shockingly high rates of pre-trial dismissal. But, in reality, the most oppressed victims of employment discrimination in federal court are older workers. Consider:
The Age Discrimination in Employment Act of 1967 (ADEA) is much weaker than Title VII of the Civil Rights Act of 1962, which prohibits discrimination on the basis of religion.
Rulings by the U.S. Supreme Court have eviscerated the already weak, Plaintiffs must show that age discrimination was the “but for” or primary reason for an adverse employment action. Title VII requires plaintiffs to show only that discrimination was a factor in an adverse employment decision.
Unlike Title VII plaintiffs, the potential for damages in an age discrimination case is far more limited. ADEA plaintiffs cannot get compensatory damages for emotional distress or punitive damages.
Let’s be honest. Age discrimination cases rarely even get to a federal court. The EEOC received more than 20,000 complaints of age discrimination in 2016 but filed only two lawsuits with “age discrimination claims” that year. The EEOC recently upheld an administrative decision in an age discrimination case that permits employers to ignore objective qualifications and hire workers based on “cultural fit.” The EEOC rejects “cultural fit” in Title VII cases. The concept is so blatantly discriminatory that it has been widely rejected by business. In addition to all of that, the EEOC operates a hiring program that has a disparate impact on older workers – which means it’s discriminatory.
Age discrimination cases rarely even make it to court because the EEOC has abdicated its responsibility to enforce the ADEA.
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.”
A report last year by the Milken Institute’s Center for the Future of Aging reaches a shockingly ageist conclusion – a younger workforce is “tremendously beneficial” for growth in industries like Silicon Valley.
“Granted, there are industries and sectors within the economy in which a younger workforce is tremendously beneficial to growth. This is especially true in places like Silicon Valley, the global bastion for young budding technology engineers and entrepreneurs.”
The authors credit Silicon Valley’s youthful workplace for “creative ideas and the abilities to build new products and provide new services have boosted innovation, efficiency, and economic growth.” The report notes the average age at Google is 30; Facebook, 28; LinkedIn 29; and Apple, 31.
Several years ago, I filed a formal complaint with the EEOC that attorney internet job search web sites were blatantly discriminating in hiring on the basis of age.
I did this after finding dozens of ads targeting members of the most recent graduating class(es) on Lawjobs.com.
Months later, the EEOC, which supposedly implements the Age Discrimination in Employment Act (ADEA), sent me a piece of paper saying that it was not going to do anything but I could file a lawsuit if I wanted to. Not being independently wealthy, I had no choice but to pass.
Today, I looked again. I found absolutely no ads on Lawjobs.com for “recent graduates” or “members of the Class of….” What does this mean?
Does it mean the search engine is not engaging in age discrimination or does it mean that age discrimination is now taking place behind the scenes?
It’s hard to conclude that Lawjobs.com has gone “straight” given a series of events that have come to light which showcase the role of internet job search engines in age discrimination.
In the case of Villarreal v. R.J. Reynolds Tobacco, the plaintiff applied a half-dozen times for a territory sales manager job only to learn the company was using internet software behind the scenes on Careerbuilder.com to target resumes from workers with fewer than eight years of experience.
Reynolds hired 1,024 applicants for territory sales manager positions over a three-year period, of whom only 19 were over the age of 40.
A federal appeals court last year eliminated any prospect for a class action lawsuit in the Reynolds case when it ruled the ADEA does not cover job applicants who are the victims of systemic and calculated age discrimination in hiring because they are not “employees.” This ruling, by the 11th Circuit Court of Appeals in Atlanta, remains in effect today in Georgia, Florida and Alabama.
Illinois Attorney General Lisa Madigan issued a press release recently stating she began investigating alleged age discrimination by internet search engines after a 70-year-old man complained that a resume building tool on Jobr, an app owned by Monster Worldwide, excluded job applicants over the age of 52. A drop down menu required applicants to select the year they graduated or got their first job but the dates only went back to 1980.
Madigan queried six job search engines about their practices. So far, three have responded, CareerBuilder, Beyond and Indeed. All admitted to using resume building software containing age limitations that deter older applicants; all said they fixed the software upon learning of Madigan’s concerns.
I think it is reasonable to conclude that many (if not most) internet search engines for years have silently engaged in age discrimination against older job applicants. This has contributed to longstanding chronic unemployment for older workers, who often are forced to retire as soon as they become eligible to receive Social Security benefits, whereupon they quietly disappear from government employment statistics. Age discrimination in hiring makes it impossible for older job applicants to earn a decent wage and to finance a secure retirement. As a result, many, particularly women, endure an old age marked by difficult choices, anxiety and poverty.
But who is going to stop it?
Madigan told NPR that her office simply wants to stop the specific practice that relates to discriminatory resume building tools but not file a lawsuit.
The AARP has done virtually nothing about age discrimination in employment for 50 years; It wrote an amicus or friend of the court brief in the Reynolds case.
The EEOC is almost completely absent from the age discrimination scene, despite an unprecedented increase in age discrimination complaints during and since the Great Recession. It filed two – yes, two – lawsuits with age discrimination claims last year. Age discrimination complaints comprise almost a quarter of all complaints received by the EEOC.
Me? Alas, I still can’t afford to finance years of complex litigation against some of America’s largest corporations.
My 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, chronicles the epic failure of all three branches of government to address the completely predictable problem of age discrimination during and since the collapse of Wall Street. It is an appalling abdication of governmental responsibility and it continues.