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”

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.

EEOC Appears to be Alone in Sanctioning Hiring for ‘Cultural Fit’

Note to EEOC:  Hiring for “cultural fit” is also frowned on by the Society for Human Resource Management (SHRM), the world’s largest HR professional society, representing 285,000 members in more than 165 countries.

In  Hiring in the Age of Ageism , the SHRM advises employers to “work to structure interviews around skill sets, rather than softer ‘fit’ factors that can be a cover for discrimination. ”

The  EEOC upheld two rulings in age discrimination cases last fall  by its appellate division, the EEOC Office of Federal Operations (OFO), that endorsed hiring based on purely subjective factors like poise and cultural fit.

The complaints allege that two federal sector agencies violated the Age Discrimination in Employment Act of 1967 when they ignored the superior qualifications of the older applicants and  hired far less qualified applicants under the age of 40 based upon subjective factors.

In one case,  the Social Security Administration admitted that its hiring officer selected five applicants under the age of 40 –  and rejected two highly qualified candidates age 47 and 60 – based upon how he thought they would fit within the “culture” of an SSA office that had not yet even opened. The hiring officer, a middle aged male, said he completely ignored objective qualifications, finding them to be “irrelevant.”

In the other case, a superbly qualified white male candidate, 48, was rejected in favor of a  minimally qualified African American female candidate in her 20s because she “may have” had more poise, compassion, leadership and the ability to deal with stress.

The EEOC is extremely skeptical and carefully parses the use of subjective criteria in the hiring process when it involves race, sex, religion, national origin and color. The EEOC issued a policy guidance stating that hiring for cultural fit was discriminatory in a case involving national origin.

The EEOC has declined to comment upon why hiring for cultural fit is legal in age discrimination cases. The EEOC appears to have adopted a double standard that is completely unsupported by the ADEA and federal case law and which appears in itself be considered discriminatory.

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.

AARP Ignores the EEOC’s Discriminatory Rulings in Age Discrimination Cases

Note: A spokesperson for the EEOC on 2/7/18 announced the EEOC has adopted a procedure to review ethical complaints against the Agency staff.  Gary J. Hozempa, a staff attorney in the EEOC Office of Legal Counsel, said he and his team are responsible for “considering ethics issues that arise in the workplace about EEOC employees.”  He saId the current head of the Office of Legal Counsel, Carol R. Miaskoff, Associate Legal Counsel, is EEOC’s Designated Agency Ethics Official.  PGB

Since EEOC decisions are secret, there is no way of telling how many older workers have had their age discrimination complaints  dismissed on spurious and discriminatory grounds.

It came to light last fall that the EEOC upheld two rulings by its appellate division dismissing age discrimination complaints where the federal government ignored objective qualifications and used purely subjective criteria (i.e., cultural fit, poise)  to make promotion and hiring decisions. The rulings contradict EEOC stated policy, EEOC rulings in race and sex discrimination cases, and settled federal case law. The rulings go beyond the EEOC’s generally dismissive treatment of age discrimination and reflect actual age bias.

Then it became apparent the EEOC is unaccountable to the public. The EEOC has no appeal process. There is no EEOC ombudsperson to investigate complaints against the agency. Incredibly, the EEOC even lacks a procedure for filing ethical complaints against the EEOC’s so-called “administrative judges.” The EEOC Office of Inspector General takes the position that it is not its job to investigate complaints related to EEOC rulings.

The AARP & EEOC declined to comment on the discriminatory rulings.

Continue reading “AARP Ignores the EEOC’s Discriminatory Rulings in Age Discrimination Cases”

MLK, the EEOC & Age Discrimination

MLKIt’s hard not to be cynical when the EEOC leadership trumpets its commitment to the ideals of Martin Luther King but ignores the reality of age discrimination in employment and, worse, engages in it.

EEOC Acting Chair Victoria Lipnic tweeted on MLK Day yesterday:

“Every day at the EEOC, we are reminded of Dr. King’s work, his vision, his prophecy. Our work is a deep part of his legacy. His call to service is what each member of the EEOC brings to our work every day.”

That’s a worthy sentiment but the EEOC has yet to walk the talk when it comes to age inequality.

Not only has the EEOC virtually ignored the problem for years but it sanctions age discrimination in hiring by the federal government and actually  engages in the practice itself, thereby undermining enforcement of the Age Discrimination in Employment Act of 1967 in the private sector.

Dr. King understandably focused on the crisis of racial inequality in the United States but his appeal was based on the underlying concept of equal justice for all.  One can only wonder whether Dr. King, who was assassinated at age 39, would have recognized that age discrimination is a major hindrance to older minority group workers if he had lived. Continue reading “MLK, the EEOC & Age Discrimination”

Tell the EEOC to Enforce the Age Discrimination in Employment Act!

The EEOC has to adopt a new strategic plan and is seeking comment (until 5 p.m .ET on January 8, 2018) about what it should do.

To weigh in, go here or to

It’s your opportunity to demand that the EEOC properly enforce the Age Discrimination in  Employment Act of 1967. The Strategic Plan is a framework for the allocation of  EEOC resources. You can be sure that employers and their advocates will weigh in.

In recent years, the EEOC has become a lap dog to corporate interests.

A main focus of the EEOC today is providing free mediation to resolve discrimination complaints. Mediation outcomes almost always favor the company –  not clueless, unrepresented discrimination victims – while saving employers potentially millions of dollars. For good measure, the EEOC assures discriminatory employers anonymity so that workers back at the farm will remain ignorant.

lapdog Continue reading “Tell the EEOC to Enforce the Age Discrimination in Employment Act!”

Communications Union Attacks Facebook Ads that Discriminate based on Age

FacebookA major lawsuit has been filed against a class of “hundreds” of American employers that allegedly “routinely” exclude older workers from receiving employment and recruitment ads on Facebook.

The lawsuit, filed by the Communications Workers of America in the U.S. District Court of Northern California, specifically names three plaintiffs, T-Mobile USA, Inc., Amazon com, Inc. and Cox Media Group, LLC.

The union seeks seek an injunction “to stop America’s leading companies from engaging in unlawful age discrimination in employment.”

According to the lawsuit, Facebook requires employers or employment agencies seeking to post job advertisements to select the age range of Facebook users who will be eligible to receive the ad. The lawsuit alleges that employers routinely target users who are under the age of forty.

This is the latest in a series of lawsuits filed to halt the use of Internet screening tools that target younger workers and screen out older workers.

Continue reading “Communications Union Attacks Facebook Ads that Discriminate based on Age”

Media Ignores ADEA’s 50th Anniversary. Surprised?

paperboyHere are the results of a Google search of media outlets for news articles on the 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), the federal law  that  prohibits consideration of age as a factor in hiring and employment. The search was conducted on mid-day Friday, the very day that Congress passed the ADEA 50 years ago.

December15, 2017

When the full name of the ADEA was spelled out, there was one result – a link to a 21-hour old video message by EEOC Acting Chair Victoria Lipnic.

In short, the 50th anniversary of the ADEA went uncelebrated and ignored by the major media in the United States, which should not come as a complete surprise. Continue reading “Media Ignores ADEA’s 50th Anniversary. Surprised?”

The EEOC’s Predicament with Respect to the ADEA’s 50th Anniversary

EEOC50ADEAPity the poor EEOC.

The EEOC is in the painful position of having to celebrate the 50th anniversary of the Age Discrimination in Employment Act of 1967, which the EEOC has failed to aggressively enforce and arguably violates itself. The U.S. Congress passed the ADEA on December 15, 1967.

This important anniversary of the ADEA also shines a spotlight on how the EEOC has  failed millions of older Americans who became victims of age discrimination in employment during and since the Great Recession.

Yet, the EEOC must go through the motions. That is the least that is expected of the agency that is responsible for enforcing the ADEA.

So the EEOC has adopted a handsome marketing logo, Ability Matters – Not Age, and the agency is purporting on Twitter to “count down” to the big day on Friday .

The modern history of the ADEA shows that a law does not yield justice if it is not enforced.

Continue reading “The EEOC’s Predicament with Respect to the ADEA’s 50th Anniversary”