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 .
When an employer engages in age discrimination, the repercussions are severe for the victims. Most suffer the loss of a job that might have sustained them for years.
By contrast, employers who get caught in the act of engaging in age discrimination often receive a slap on the wrist. That’s what happened last month when the EEOC settled two blatant cases of age discrimination.
Professional Endodonics, PC, of Southfield, Michigan, an oral surgery practice, will pay $47,000 to settle an age discrimination lawsuit brought by the EEOC on behalf of Karen Rueral, who was fired in 2016, four days after her 65th birthday. She had worked for the company for 37 years. Professional Endodonics supposedly had a “policy” requiring employees to retire at age 65.
The EEOC also agreed to a $50,000 settlement with Diverse Lynx, LLC, an IT staffing company that describes itself as being headquartered in Princeton, N.J., with an “off-short delivery center” in New Delhi, India. Hoovers.com estimates Diverse Lynx revenues at $12.64 million a year.
After learning an applicant’s date of birth, Diverse Lynx sent the applicant (who was not identified) an email stating that he would no longer be considered for the position because he was “born in 1945” and “age will matter.” Needless to say, under the Age Discrimination in Employment Act (ADEA), age shouldn’t matter.
The ADEA entitles victims of intentional age discrimination to recover monetary loss, doubled.
The U.S. Congress has given the EEOC an additional $15 million for 2018 and the union that represents EEOC employees has some ideas about how the money should be spent.
The American Federation of Government Employees’ (AFGE) National Council of EEOC Locals (Council 216) this week urged the EEOC to spend the money “to ensure desperately needed front-line assistance for the public.”
and give the EEOC an undeserved forum to spout righteous indignation.
ProPublica and Mother Jones recently resurrected a story about wholesale age discrimination at IBM, presenting it as a new, hard-hitting investigative report.
In fact, the core issues in the “investigation” have been known since at least 2014, when Bloomberg reported that IBM had devised a strategy to skirt federal laws designed to disclose the presence of arbitrary age discrimination in firings and lay-offs.
“A ProPublica investigation found that in making the cuts, IBM has flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination.” – ProPublica
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. Continue reading “EEOC Denies Freedom of Information Act Requests Re. ‘Cultural Fit’ Ruling”
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.
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 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.
It’s hard not to be cynical when the EEOC leadership trumpets its commitment to the ideals of Martin Luther King but ignores the reality of age discrimination in employment and, worse, engages in it.
EEOC Acting Chair Victoria Lipnic tweeted on MLK Day yesterday:
“Every day at the EEOC, we are reminded of Dr. King’s work, his vision, his prophecy. Our work is a deep part of his legacy. His call to service is what each member of the EEOC brings to our work every day.”
That’s a worthy sentiment but the EEOC has yet to walk the talk when it comes to age inequality.
Not only has the EEOC virtually ignored the problem for years but it sanctions age discrimination in hiring by the federal government and actually engages in the practice itself, thereby undermining enforcement of the Age Discrimination in Employment Act of 1967 in the private sector.
Dr. King understandably focused on the crisis of racial inequality in the United States but his appeal was based on the underlying concept of equal justice for all. One can only wonder whether Dr. King, who was assassinated at age 39, would have recognized that age discrimination is a major hindrance to older minority group workers if he had lived. Continue reading “MLK, the EEOC & Age Discrimination”