Georgetown Faces Yet Another Major Age Discrimination Lawsuit

Yet more evidence that institutions of higher education blatantly engage in age discrimination in hiring.

George Mazza, 62, an attorney for the U.S. Department of Justice (DOJ), has filed a federal lawsuit against Georgetown University alleging he applied for and was denied admission to a university doctoral program in theology studies in the Fall of  2017 because of his age.

He alleges a member of the admissions committee “indicated the preeminent selection criterion was whether the admissions candidate would likely find on graduation a full-time tenure track faculty position at a major university.”

Mazza states a faculty member who encouraged him to apply for admission to the program, Dr. Peter C. Phan, told him the admissions committee could not justify offering him a position because no major university would consider hiring him because of his age at the time of graduation (estimated to be 68).

The on-line application for the theology program included specific questions about the applicant’s age,  the date of the applicant’s undergraduate degree, and the number of years of the candidate’s relevant work or professional experience.

Georgetown, in its response to the complaint, asserts that Mazza “was not among the most qualified candidates for admission to the program.”

Mazza holds several advanced degrees and serves in a senior position in the DOJ, supervising a team of experienced attorneys who investigate complex civil rights cases and representing the DOJ on a White House interagency initiative on religion issues.

Georgetown was a defendant in an earlier notorious case of age discrimination in hiring filed by the late Nicholas Speeth, a former state Attorney General in North Dakota who sought a full-time law teaching position in 2010. Spaeth applied for vacancies at 172 law schools through the American Association of Law Schools but was invited to only two interviews and did not receive any job offers.

Spaeth, then 60, was a magna cum laude graduate of Stanford Law School, a Rhodes Scholar, former U.S. Supreme Court Clerk and general counsel for three publicly held companies with billions in assets – including H & R Block.

Georgetown hired a 35-year-old applicant who had worked for only two years as a “tax associate” at a law firm.

U.S. District Judge Ellen Segal-Huevell of the D.C. circuit dismissed Spaeth’s case on a pre-trial motion for summary judgment, disregarding seemingly overwhelming evidence of age discrimination. She was required to interpret all evidence in Spaeth’s favor but seemed to do the opposite. For example, she said the work “young” in an internal Georgetown memorandum that discussed the need to hire “promising young scholars” did not refer to age but to “new.”  Judge Segal-Huevell took semi-retired or senior status on June 3, 2014.

Mazza alleges Georgetown violated the Age Discrimination Act of 1975, which makes it unlawful for a program receiving federal financial assistance to discriminate on the basis of age. and the District of Columbia Human Rights Act of 1977.

The lawsuit, Mazza v. Georgetown University, was filed in U.S. District Court for the District of Columbia on February 12, 2018.

Jury Orders Chevron to Pay $1 Million in Failure to Hire Case

A Los Angeles Superior Court jury has  ordered Chevron USA, Inc. to pay $1,002,360 in damages to a  contract worker who was passed over at the age of 54 for a permanent position at Chevron’s El Segunda refinery.

According to court documents, Maria Hoffer was an independent contractor who helped pioneer the position of “work control specialist” and trained others for the job. She was encouraged by her boss to apply for one two permanent positions that opened up  in 2015. The company instead hired two women aged 34 and 35 who were less qualified than Hoffer.

The jury deliberated a mere two hours before ordering Chevron to $702,360 in compensatory damages and $300,000 in punitive damages.

Hoffer argued that she “was substantially the most experienced, qualified and … stellar applicant.”

Chevron claimed Hoffer was not eligible for one of the two vacancies, which was reserved for an internal candidate, and that she was not the highest ranked external candidate.

The Chevron verdict was reported earlier this month by MyNewsLA.com. 

Verdict Contrasts with Recent EEOC Decisions

Aside from the high amount of the damage award, the jury verdict is noteworthy in that it conflicts with recent decisions by EEOC in age discrimination cases involving failure to hire.  The EEOC diminished the significance of  objective qualifications (i.e., experience and education) while emphasizing purely subjective qualifications (i.e. poise and leadership potential).

In one case, the EEOC said the Social Security Administration did not violate the Age Discrimination in Employment Act when it hired five applicants solely on the basis of “cultural fit.”

The other thing noteworthy about the Chevron verdict is that a separate lawsuit against Chevron with a similar failure to hire claim was dismissed last year by the U.S. Court of Appeals of California, Second District, Division Eight. That case involved Robin Ford, 57, an independent contractor who, like Hoffer, was passed over for one of the two work control specialist positions. The appeals court found that Ford’s candidacy was influenced by documented on-the-job “behavioral issues.”

Where was the EEOC and the AARP?

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 .

So far, older workers have been barred from applying for  100,000 federal jobs – and counting.

Continue reading “Where was the EEOC and the AARP?”

A U.S. Appeals Court’s Absurd Justification of Age Discrimination

Just in case there is any doubt, a  federal appeals court in New York City ruled last week that age discrimination is entitled to far less protection under the U.S. Constitution than other types of discrimination.

A three-judge panel on the U.S. District Court of Appeals for the 2nd Circuit in New York City ruled that age discrimination “does not offend” the Equal Protection Clause of the U.S. Constitution if it is “rationally related to a legitimate [government] interest. ” They said a law that discriminates on the basis of age  must literally be irrational to be unconstitutional.  By contrast, federal courts accord race and sex discrimination much more exacting strict and intermediate scrutiny, respectively.

The panel cites Kimel  v. Florida Bd. of Regents, an 18-year-old  decision by now retired U.S. Supreme Justice Sandra Day O’Connor, who speculated that age discrimination differs from other types of discrimination because:

  • Older persons have not been subjected to a “history of purposeful unequal treatment” and,
  • “[Old] age also does not define a discrete and insular minority” as the status of old age is one which all persons, regardless or ace or gender, may experience.”

 Justice O’Connor’s statements were outdated and dis-proven in 2000.

Continue reading “A U.S. Appeals Court’s Absurd Justification of Age Discrimination”

EEOC Puts a Low Price Tag on Age Discrimination

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.

Continue reading “EEOC Puts a Low Price Tag on Age Discrimination”

Union: EEOC Should fill “Desperately Needed” Front Line Positions

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.”

Meanwhile, acting EEOC Chairperson Victoria Lipnic said the commission has set aside funds to hire six additional attorney-examiners and is”committed to ensuring that our approved positions are up to date and to updating our agency’s succession plan to ensure that our staff is well-equipped and poised for the future.” Continue reading “Union: EEOC Should fill “Desperately Needed” Front Line Positions”

PROPUBLICA/MOTHERJONES REDISCOVER AGE DISCRIMINATION BY IBM …

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

Does a Google search qualify as an investigation?

Continue reading “PROPUBLICA/MOTHERJONES REDISCOVER AGE DISCRIMINATION BY IBM …”

40% of Older Workers Will Fall From Middle to Lower Class in Retirement

The persistent myth of the wealthy retiree took a hit recently when the Schwartz Center for Economic Policy Analysis (SCEPA) published a report predicting that 40% of older workers and their spouses  will experience downward mobility in retirement.

SCEPA estimates the average older worker has only $15,000 saved for retirement.

An estimated 2.6 million middle class workers who retire at age 62, which is the most common age for retirement, will actually fall below the poverty level – $11,670 for an individual and $15,730 for a two-person household.

About 5.9 million will teeter into near poverty, which is 200% percent of the federal poverty level. They will have an annual income of $23,340 for singles and $31,260 for couples.

So why don’t these folks just keep working? According to SCEPA, many older workers are unable to delay retirement due to poor health and the inability to withstand the physical demands of work. Others  have difficulty finding jobs with decent pay.  Some workers who must keep working into old age may die before they can retire.

The solution, SCEPA says, is to strengthen Social Security and create Guaranteed Retirement Accounts.

Continue reading “40% of Older Workers Will Fall From Middle to Lower Class in Retirement”

OPM Dismisses Complaint about OPM’s Discriminatory Hiring Program

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.

Continue reading “OPM Dismisses Complaint about OPM’s Discriminatory Hiring Program”

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.

The EEOC:

  • 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”