In the past, the U.S. Senate Special Committee on Aging has been an advocate for older workers who are faced with age discrimination in employment.
However, the committee has done nothing about age discrimination in employment in recent years, even though millions of older workers lost their jobs and savings after Wall Street collapsed and were forced into a premature and impoverished retirement.
U.S. Sen. Susan Collins, R-ME, the chairperson of the committee, has yet to respond to a plea to address the failure of the U.S. Equal Employment Opportunity Commission (EEOC) to enforce the Age Discrimination in Employment Act a (ADEA) and its inequitable treatment of older workers.
The EEOC filed two lawsuits with age discrimination claims in 2016, a year in which it received more than 20,000 complaints of age discrimination. After much criticism, the EEOC filed 12 lawsuits with age discrimination claims in Fiscal 2017 but that is still far below its historical record. The EEOC filed 87 lawsuits with age discrimination claims a decade ago, and 120 lawsuits with age discrimination claims in 1993.
The EEOC has demonstrated gross unfairness – if not actual age discrimination – against older workers in its decision-making.
This blog has asked the U.S. Senate Special Committee on Aging to investigate the U.S. Equal Employment Opportunity Commission for essentially discriminating against older workers in the adjudication of age discrimination complaints.
The EEOC recently dismissed two cases where highly qualified older job applicants were passed over for far less qualified workers under the age of 40 (some were recent graduates). The EEOC ruled that it is not illegal for employers to make hiring decisions based entirely on subjective considerations (i.e., cultural fit). The EEOC offered no legal support for this position, which is contrary to the EEOC’s position in race discrimination cases and well established law. The U.S. Supreme Court ruled in 2006 that an employer’s failure to hire a candidate who is significantly better qualified for a job may raise an inference of illegal discrimination.
The EEOC also ignored serious procedural irregularities by the federal hiring agencies in both cases.
The Senate Special Committee on Aging, chaired by Maine Sen. Susan M. Collins, is authorized to conduct oversight of federal programs and to investigate reports of fraud and waste. In the past, the Committee has championed the rights of age discrimination victims.
For years, the EEOC has all but ignored its Congressional mandate to enforce the Age Discrimination in Employment Act of 1967 (ADEA). The EEOC received more than 20,000 complaints of age discrimination in 2016 – almost a quarter of all of the complaints filed with the EEOC that year -but filed only two lawsuits with “age discrimination claims.” The EEOC was taunted by the U.S. Chamber of Commerce in 2015 for operating a hiring program that discriminates on the basis of age.
When President Lyndon Johnson signed the ADEA fifty years ago, he said its sole purpose was to ensure the most qualified candidate gets the job. The ADEA prohibits using age as a factor in employment decisions except in very limited circumstances that are not relevant to the two cases in question.
In August, the EEOC upheld a decision by Carlton M. Hadden, Jr., the director of the EEOC’s Office of Federal Operations, to dismiss an age discrimination case where a middle-aged male hiring officer for the Social Security Administration (SSA) testified he ignored objective qualifications and hired four applicants under the age of 40 based on his perception of how well they would fit within the culture of the office. The complaint was filed in 2011 by a 60-year-old female attorney who was not selected, despite having what the hiring officer admitted were superior qualifications when compared to most or all of the successful candidates. Initially the hiring officer said she lacked enthusiasm during a 20 minute telephone interview.
The EEOC’s ruling conflicts with a guidance published by the EEOC in 2006 that states hiring based on cultural fit is discriminatory in the context of race. Even the business community knows that hiring based on cultural fit is fraught with potential for prejudice and bias.
The EEOC also failed to punish the SSA for violating its legal obligation to insure the investigation of the age discrimination complaint was fair and impartial. Hadden acknowledged that SSA attorneys “improperly” interfered in the investigation of the case in violation of EEOC Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chapter 1, Section IV. However, Hadden merely reminded the SSA to be “careful to avoid even the appearance that it is interfering with the EEO process.”
In the second case, Hadden ruled that a 48-year-old white male police detective who had 20 years of high-level experience in law enforcement, failed to show he was more qualified for promotion to the position of lead officer at a Texas veteran’s center than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden writes that the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership potential, and the ability to cope with stress…” So-called intangibles like “poise” and “compassion” are similiar to “cultural fit” in that they are subjective assessments that are prone to conscious and subconscious bias.
It is well established in the law that an employer’s reliance on subjective criteria for significant personnel decisions may be viewed as circumstantial evidence of discrimination.*
Hadden also disregarded evidence that the veteran’s center violated its own regulations and union Collective Bargaining Agreement in the hiring proces. Hadden said the complainant failed to prove the veteran’s center “intended” to discriminate when it failed to follow the rules.Courts generally consider an employer’s failure to follow its own rules in employment matters to be evidence of discrimination.**
Since the EEOC operates in virtual secrecy, the public has no way to know how many age discrimination complaints have been dismissed by the EEOC on spurious grounds.
The EEOC ignored legal precedent in August when it dismissed two age discrimination cases where older job applicants were rejected in favor of far less qualified applicants under the age of 40.
A search of precedential case law on the EEOC ‘s own web site revealed a federal appeals court decision holding that an employer’s failure to hire a candidate who is significantly better qualified for the job raises a question of illegal discrimination.
This precedent was not followed by Carlton M. Hadden, Jr., director of the EEOC’s appellate unit, who dismissed two age discrimination complaints in August. The cases were filed by a female attorney, 60, and a white police detective, 48, who were not hired despite having substantially more objective qualifications than selectees under the age of 40. The EEOC upheld Hadden’s rulings. In the attorney’s case, the hiring officer testified he ignored objective qualifications entirely and based his hiring decisions on cultural fit.
The U.S. Court of Appeals for the District of Columbia Circuit in 2006 cited a U.S. Supreme Court decision holding that “qualifications evidence may suffice, at least in some circumstances,” to show that an employer’s proffered explanation is pretext for discrimination. Ash v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006).
Memo to EEOC: There is an inference of discrimination when when a plaintiff is “significantly better qualified” than the candidate who was hired.
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 …”
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.”