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.