Senate Aging Committee asked to Investigate EEOC’s Inequitable Treatment of Age Discrimination Cases

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.

Cultural Fit

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.”

Intangibles

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.

EEOC decisions typically are shrouded in secrecy.  The complainant in the SSA hiring case spoke up and the EEOC published Hadden’s decision in the veteran’s center case in a recent digest of EEOC decisions, presumably to serve as precedent to follow in future cases. Continue reading “Senate Aging Committee asked to Investigate EEOC’s Inequitable Treatment of Age Discrimination Cases”