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. Continue reading “EEOC Denies Freedom of Information Act Requests Re. ‘Cultural Fit’ Ruling”

Is Placing Age Limits on Gun Sales ‘Age Discrimination’?

No federal law prohibits age discrimination with respect to raising the age for gun sale purchases from 18 to 21.

The federal law that protects Americans from age discrimination is the Age Discrimination in Employment Act of 1967, which applies only to workers who are aged 40 and over.  It does not protect Americans under the age of 40 from age discrimination.

What about lawsuits filed against gun sellers in states like Oregon, where a state law prohibits discrimination against individuals aged 18 and older?

A half-dozen states, including Oregon, have passed laws raising the age for cigarette purchases from 18 to 21.  Cigarettes kill almost a half million people a year, including more than 41,000 nonsmokers who die from secondhand smoke. The ever litigious tobacco industry has not challenged  Tobacco 21 laws on discrimination grounds.

Like Tobacco 21 laws, state laws placing reasonable age restrictions on gun purchases reflect an important public health interest. So far this year, there have been 18 school shootings, the latest being a mass shooting at a Florida high school that killed 17 people. The U.S. Centers for Disease Control and Prevention estimates that an average of 35,141 Americans are killed by guns each year.

It is extremely unlikely the U.S. Supreme Court would overrule a state law that creates an age-based prohibition on gun sales on equal protection grounds.  The Court accords age its lowest standard of review so a state law that discriminates based on age need only be rational.  It is at least rational to raise the age of gun sales to 21 in an effort to prevent more school shootings.  It is arguably irrational NOT TO do so.

Lawsuits alleging age discrimination  with respect to raising the age for gun sale purchases would seem to have little chance of success and might even be considered frivolous.

The US is Inexplicably Backwards about Age Discrimination in Employment

As an American, it is frustrating to read about the steps that Great Britain is taking to attack age discrimination in employment.

The British government is actively working to address the problem because it considers age discrimination a threat to future economic growth. The UK  estimates that if everyone in the UK worked just one year longer, the country’s gross domestic product would increase by one percent.

By contrast, every branch of the US government has made the problem of age discrimination in employment much worse in recent years.

The executive branch since 2012 has actively engaged in age discrimination and the EEOC, which supposedly enforces the Age Discrimination in Employment Act, either  ignored the problem or treats it dismissively.  Meanwhile, the Social Security Administration penalizes workers between age 62 and normal retirement age who collect benefits and continue to earn significant employment income.

The federal judiciary over the years eviscerated the already weak ADEA, making it much more difficult to win an age discrimination lawsuit, and the legislative branch, the U.S. Congress, has done nothing to fix the damage.

While America was backpedaling,  Britain in 2015 created a special team led by a government official who is  called the  Business Champion for Older Workers. The team works to help  employers to retain, retrain and recruit older workers.

The current Business Champion for Older Workers is Andy Briggs,  the chief executive officer of Aviva UK Life, a  multinational insurance company headquartered in London that has about 33 million customers in 16 countries.

Briggs challenged UK companies a year ago to increase the number of employees aged 50 to 69 on their payrolls from nine million to more than 10 million by 2022. That’s a 12 percent increase.  To encourage transparency and progress, Briggs asked every UK employer to publish the number and percentage of older workers in their workforce. Several major UK corporations heeded Brigg’s call, including his own Aviva and Barclays Bank. About 19 percent of Aviva’s 16,000 UK employees and 16 percent of Barclay’s workers are over the age of 50.

The United States has done little to acknowledge demographic shifts that will affect American productivity in the years ahead.

Why is the US so backward about age discrimination? It’s hard to pin down the impact of age discrimination in the US because very little research has been done on the topic. But we do know that age bias drives older workers out of the workforce and age discrimination in hiring relegates older workers to low-paid part-time and temp jobs.  This makes little sense when  society needs the  “wisdom capital” (i.e. experience and knowledge) of older workers.

By the year 2050, the U.S. population aged 65 and over is projected to be 83.7 million Americans, which is nearly double the estimate of 43.1 million in 2012.

Federal judge says Hollywood’s problem is sex (not age) discrimination

Judge Vince Chhabria, 48.

A federal court judge has dismissed as unconstitutional a 2016 law that prevented the Internet Movie Database ( from posting the ages of actors upon request.

The law was a desperate measure to combat overwhelming age discrimination in hiring in Hollywood, where young women are routinely cast in roles opposite much older men.

U.S. District Judge Vince Chhabria in San Francisco said the law violates the First Amendment rights of by preventing it from publishing factual information. Judge Chhabria also said the law  was “underinclusive” because it bans only one kind of speaker from disseminating age-related information.

Interestingly, Judge Chhabria, who was appointed to the bench in 2014 by former President Barack Obama,  opined that the problem in the entertainment industry is not age discrimination but rather sex discrimination. He said the problem was”objectifying women” and “overvaluing their looks while devaluing everything else.”

Aren’t  women being treated less favorably because of their age? That’s age discrimination.

Duncan Crabtree-Ireland, general counsel of  the Screen Actors Guild told The Sacramento Bee that Judge Chhlabria “fails to understand or recognize the massive impact gender and age discrimination has on all working performers.” He said the union plans to appeal.

California Gov. Jerry Brown signed AB 1687 into law in 2016. The bill required that “commercial online entertainment service providers” such as IMDbPro remove users’ age upon request.

Will the EEOC Start Holding Feds Accountable for Systemic Age Discrimination?

The EEOC has a new feature on its website called Faces of the ADEA that celebrates the stories of a half-dozen victims of age discrimination who were helped by the EEOC.

In reality, the vast majority of age discrimination victims – tens of thousands of older workers – who have sought justice from the EEOC in the past decade found a deaf ear. Meanwhile, age discrimination in employment – particularly in hiring – has been overt, unaddressed and epidemic.

Nothing in the EEOC’s new strategic plan for 2018-2022  specifically indicates the EEOC intends to improve its pathetic response to age discrimination  in the years ahead but there is one glimmer of hope.

In its new strategic plan, the EEOC announced it will conduct on-site program evaluations of several federal agencies this year “that have been identified through the integrated data system” (i.e. that generate the most discrimination complaints). The EEOC will “issue compliance plans that recommend changes in their employment practices.” The EEOC will review the agency’s implementation of the compliance plans and if their efforts found wanting take “corrective action” if necessary.

Perhaps the worst age discriminator in the United States – in terms of scope and impact – is the  U.S. government, which is also the nation’s largest employer.

The EEOC acknowledges  the federal sector is an “integral part” of combating employment discrimination because it has “tremendous influence” over the employment practices of private and public employers in the United States and around the world. The EEOC says the promotion of equal employment opportunity in the federal government can “positively impact all employees and job-seekers.”

This represents a distinct change of attitude for the EEOC, which has ignored age discrimination by the federal government for years.

This blog in 2013 became a lonely voice in opposition of an executive order signed by former Democratic President Barack Obama that effectively amended the Age Discrimination in Employment Act of 1967 (ADEA) to allow federal agencies to discriminate on the basis of age. The EEOC was conspicuously silent when Obama signed the order in 2010 and when it went into effect in 2012.  So far, the Office of Program Management’s Pathways “Recent Graduates” Program has barred older workers from applying for more than 100,000 federal jobs. The EEOC also buried its head in the sand when Obama’s Secretary of Labor Tom Perez endorsed a  hiring initiative  that permitted  America’s largest corporations to engage in age discrimination in hiring.

It  was revealed last year that the EEOC’s appellate unit, the Office of Federal Operations,  dismissed two age discrimination complaints against federal agencies that hired younger workers and bypassed  older workers on purely subjective grounds (i.e., poise,  “cultural fit” , etc).

The EEOC ‘s failure to aggressively enforce the ADEA has flown under the radar for years. One reason is that the EEOC’s actions are secret unless the EEOC chooses to make them public or the complainant does. Many complainants fear publicity will hinder their chances of finding new employment.

In addition,  older Americans lack a strong  public voice. The AARP is apparently too busy making billions from  licensing agreements that exploit its  membership base. And the media  has widely ignored the problem while it engaged in wholesale age discrimination itself .

Last year marked the 50th anniversary of the ADEA.

For the “New” News Media, There is No Past, Only a Self-Congratulatory Present

pumping ironFor years, there has been litigation over the fact that the internet is being used to screen out the resumes of older workers and deposit them in a digital trash can.

But suddenly the powers that be are taking notice in the wake of a supposed investigative story on Dec. 20 by ProPublica and The New York Times about Facebook permitting employers to exclude older workers from receiving employment and recruitment ads. That’s a good thing but …

That NYT story was based largely upon a Dec. 20  federal class action lawsuit filed by the Communications Workers of America against major employers that use Facebook to screen out older job applicants. And the CWA lawsuit is the latest of several to challenge the use of internet technology to target young job applicants and screen out older job applicants.

In fact, the U.S. Supreme Court last year refused to hear a case involving a 2010 lawsuit brought by Richard Villarreal against R.J. Reynolds Tobacco Co. that alleged Reynolds hired recruiters to develop an algorithm that was used to screen out older applicants for job vacancies on CareerBuilder (which settled its part of the case out of court). The legal press (including me) wrote extensively about the case.  This matters because it shows that the government has been on notice for years that the internet is being used as a tool to effectuate epidemic age discrimination in hiring. Continue reading “For the “New” News Media, There is No Past, Only a Self-Congratulatory Present”

Another Example of Age Discrimination in the Digital Age

EditorialTeam.The Information
Staff at The Information

Is it any wonder that older people are almost invisible in society today, except for their reliance upon adult diapers, anti-depressants and “Help! I’ve Fallen and I Can’t Get Up!”  buttons?

The Information, a New York-based technology web site and magazine start-up,  has rolled out a new subscription plan for people aged 30 and under.

The “Young Professional Plan” offers a discounted rate to the magazine, and a low-cost “all-access plan” and the opportunity to join “a Facebook group only for people 30 and under.”

CEO Jessica E. Lessin, who founded the magazine in 2013, said the plan is “designed to serve people who are early in their careers and haven’t reached their earning potential and are looking for events where they can meet people from outside their own companies.” Lessin is described as a former Wall Street Journal writer “with family money.”

How would Ms. Lessin feel about a networking opportunity for only male professionals?

Continue reading “Another Example of Age Discrimination in the Digital Age”

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”

Federal Judge says Facts Not Plausible

U.S. District Judge Andrew L. Carter, Jr. of the Southern District of New York threw out the paralegal”s age discrimination claims because, he said, they were speculative and unsupported by plausible facts.

But what is a plausible fact?

Judge Carter is around the same age as the plaintiff in the case, Terri Jablonski, 49, and that’s where the similarities end. He’s a male graduate of Harvard Law School who was appointed to his position by President Barack Obama in 2011. He earns around $200,000 a year and enjoys lifetime tenure.

Jablonski is a female Haverford College graduate who earned a paralegal certificate from New York University. She has 19 years of experience as a paralegal and, according to her attorney, excellent references. But she has hit a roadblock.

 Jablonski filed 41 unsuccessful job applications with the legal staffing firm, Special Counsel, Inc., from August 2, 2013 to July 21, 2015. She was never hired or even referred for placement.

Continue reading “Federal Judge says Facts Not Plausible”

EEOC: Do Qualifications matter or not?

The EEOC appears to be hopelessly confused about the significance of  qualifications in age discrimination case.

This week, the EEOC filed a rare lawsuit alleging age discrimination in hiring. The  EEOC charges that CBS Stations Group of Texas violated the Age Discrimination in Employment Act  (ADEA) when it failed to hire Tammy Campbell, 42, for a full-time traffic reporter position because of her age.  An EEOC press release states the station hired a 24-year old female applicant  who was less qualified than Campbell.

The case contradicts the EEOC’s dismissal last month of a lawsuit filed by a 60-year-old woman who was rejected for one of five attorney positions with the Social Security Administration. The novice hiring officer testified the woman was more qualified than some or all of the younger applicants but that he didn’t consider objective qualifications. He said he based his hiring decisions entirely upon whom he thought would be the best fit for the “culture” of the agency.

Do qualifications count, as in the Texas case, or are they irrelevant, as in the Social Security case?

Continue reading “EEOC: Do Qualifications matter or not?”