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.

The New Yorker Wimps Out on Age Discrimination

An article on ageism in the November 20 issue of The New Yorker is oddly detached and completely misses the point.

For one thing, The New Yorker fails in the article, Why Ageism Never Gets Old,  to comprehend perhaps the major reason that age discrimination does not get old.  Age discrimination has its roots in the human psyche but is systematically carried out by individuals, public agencies and private sector employers who have little reason to fear legal consequences.

Age discrimination is rooted in the human psyche but is systematically carried out by employers with little reason to fear legal consequences.

Continue reading “The New Yorker Wimps Out on Age Discrimination”

Happy Days are Here Again! … Nevermind.

AARPSuppose one family, aged 50 to 64, has $1 in financial assets and another has $1 million.

It is accurate to say the mean financial assets of these families is $500,001 but does this mirror reality? Of course not.

This is essentially what the AARP did Thursday when it touted a report by the Survey of Consumer Finances, 1989-2013, which found that the mean financial assets for families of all races, aged 50 to 64 is  $351,328.  The AARP says the graph is “worth a thousand words.”


Older Americans suffer from the same level of wealth inequality as other age groups.  The AARP itself reported in June 2015 that the  top 10 percent of households in their fifties hold 71 percent of the wealth of households in this age group.  That means that some older Americans have a lot of assets and most have few or no assets. In reality, most older Americans are struggling to survive financially. The Social Security Administration says that Social Security is the “major source of income for most of the elderly.” Continue reading “Happy Days are Here Again! … Nevermind.”

The Marginalization of Older Workers

I am  struck by the almost complete lack of attention paid in the United States to the problem of age discrimination in employment.

I just watched a lengthy video on YouTube featuring Jenny Yang, chairperson of the U.S. Equal Employment Opportunities Commission (EEOC), addressing the recent annual meeting of the European Network of Equality Bodies (Equinet), a group that promotes equality in the European Union. She discussed 50 years of the EEOC’s history and its future goals and aspirations. She made one fleeting reference to the Age Discrimination in Employment Act of 1964 (ADEA), noting the EEOC is responsible for enforcing the ADEA.

In 2014, a tonoworkplacediscriminationtal of 20,588 complaints of age discrimination were filed with the EEOC. That represents 23.2 percent of all of the complaints of employment discrimination filed with the EEOC in 2014. And, that level of complaints has been more or less consistent for years. Age discrimination may not deserve to be the EEOC’s top priority but it should at least be on the EEOC’s radar screen.

A right that is not enforced is an illusion.

Meanwhile, U.S. Department of Labor Secretary Thomas E. Perez has ignored age discrimination except to the extent that he endorsed it in the 100,000 Opportunities Initiative, a dubious effort by America’s major corporations to hire 100,000 workers age 16 to 24 for full and –part-time jobs in blatant violation of the ADEA.

And President Barack Obama not only forgot to bolster the ADEA but he fundamentally undermined the ADEA in 2010 when he signed an executive order that permits federal agencies to discriminate on the basis of age, thereby sending a signal to the private sector that age discrimination is A-Okay!

It is interesting to note that Equinet issued a report on ageism in 2012 in which it decried institutional practices that “include the use of age limits to govern access to services or participation in the workplace, other forms of discrimination that exclude older people from work or from key services, and inadequate policy responses to the situation of older people such that they find themselves marginalised and disadvantaged in society.” Continue reading “The Marginalization of Older Workers”

‘Start the Convo’ on Obama & Age Discrimination

The White House on Wednesday will hold a Summit on Worker Voice that supposedly will provide a historic opportunity to bring together workers, employers and labor leaders “to highlight the relationship between worker voice and a thriving middle class.’

But some voices will be missing.  The voices of those who have no work due to systemic, government-approved age discrimination in hiring.

The Obama administration has been deaf to the voices of older workers who are disproportionately mired in long-term unemployment because of the misguided and harmful policies of the Obama’s administration.

In 2010, President Obama signed an executive order establishing the Pathways “Recent Graduates” Program, which allows federal agencies to engage in age discrimination in hiring.  That order sends a signal to private sector employers that age discrimination in hiring is justified and will be tolerated.

To make things Starbucksworse,  U.S. Labor Secretary Thomas E. Perez last summer announced his support for a program developed by Starbucks, Microsoft and Walmart, and other leading American corporations, called the “100,000 Opportunities Initiative.” The purpose of the program is to give 100,000 16- to 24-year-olds full and part-time jobs by 2018.
Starbucks couched the initiative as a well-intentioned effort to help young people who face systemic barriers to jobs and educations. Whether or not this is true, it is irrelevant. The Age Discrimination in Employment Act and civil rights laws generally do not allow employers to discriminate because they supposedly have good intentions. Besides, older workers also face systemic barriers to jobs. A recent report by AARP found that half of the people in the U.S. between the ages of 45 to 70 who lost their job during the last five years are still not working.

The Obama administration has effectively abandoned a 50-year-old policy of encouraging employment through discrimination-free efforts, such as through education and training.

Readers who think the government should get out of the business of age discrimination are encouraged to “start the convo” using Twitter and the hashtag #StartTheConvo:.

Raise the “Minimum Wage” (Social Security) for Older Americans

poor-old-ladyThere’s been a lot of outrage about the plight of Americans who are poor despite working full-time jobs – even a movement to raise the minimum wage.

But what about  the 20 million Americans over the age of 65 who worked a lifetime only to be forced to spend their remaining years in poverty or near  poverty conditions?  The national debate around Social Security ignores the plight of older Americans and focuses on ways to cut Social Security and Medicare by raising the age of eligibility, means testing, etc.

Why the disconnect?

For one thing, the campaign to raise the minimum wage for fast-food workers is funded by unions. Millions of economically vulnerable older Americans were involuntarily pushed out of the workforce by epidemic and unaddressed age discrimination or ill-health. They have no union and, apparently, no other effective advocate.

Another reason is that elder poverty is poorly understood . The federal government’s official poverty rate for older Americans – like the U.S. unemployment rate and the Social Security benefit formula –   is outdated and misrepresents reality. The official poverty rate was created by the Census Bureau in the 1960s and looks only at a family or individual’s cash income. In 2010, the  Bureau was forced to create an alternative measure, the Supplemental Poverty Measure (SPM), that provides a more realistic picture. The SPM reflects not only available financial resources but liabilities (taxes, out-of-pocket medial spending, housing expenses and other factors) and cost of living differences between states. However, the SPM still is not the “official” measure that is widely cited by politicians and policy makers. So many Americans do not have a realistic picture of true elder poverty.

The official poverty rate for older Americans is a fictional measure perpetuated by a moribund federal bureaucracy that is stuck somewhere in the 1960s.

The Kaiser Family Foundation recently did an analysis comparing the Census Bureau’s official poverty rate and the SPM poverty rate for Americans aged 65 and above. The Foundation reports the poverty rate among older adults is higher under the SPM (15%) than under the official measure (10%) because the SPM deducts out-of-pocket medical expenses from income when estimating the share of people living in poverty. Continue reading “Raise the “Minimum Wage” (Social Security) for Older Americans”