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.

Obama created the Pathways Recent Graduates Program in 2010 to serve as a back-door exemption to  Age Discrimination in Employment Act of 1967 (ADEA), which expressly prohibits the consideration of age as a factor in hiring. The Pathways program is a type of  age discrimination known as  “disparate impact discrimination,” where a seemingly neutral policy has an adverse impact on older workers. The vast majority of recent graduates are under the age of 40.

It is estimated the program, which went into effect in 2012, has barred older workers from applying for 100,000 federal jobs and counting. The U.S. government is America’s largest employer.

Neary, then 49, was prohibited from applying for the position of Financial Institutions Specialist  with the Federal Deposit Insurance Corporation because he obtained a Masters of Business Administration more than two years prior to his application.

An only child, Neary said he was forced to leave his former employer, DLJ/ Credit Suisse, to care for his mother, who is now deceased, after she incurred congestive heart failure and other complications.

Neary said he is going to appeal the OPM’s decision to the EEOC and may file a lawsuit.

Neary sent a letter last week to Jeff T.H. Pon, newly-appointed director of the OPM,  urging him to contact President Donald Trump and encourage him to permanently revoke the Pathways Recent Graduates Program.  Until then, he asked Pon to”[b]e proactive. Unilaterally suspend the OPM Pathways Program pending his revoking President Obama’s ‘legacy’ Executive Order.”

The AARP, which claims to advocate for Americans aged 50+, has failed even to respond to Neary’s request for  assistance.   (The AARP also has completely ignored discriminatory rulings by the U.S. Equal Employment Opportunity Commission in age discrimination cases.)

At this point, one wonders how the AARP –  which collects dues from 38 million older Americans – defines the term”advocacy.”

It is more than a little ironic that the OPM traces its history to the Civil Service Act of 1883 , which was passed to end the corrupt spoils system of partisan hiring in the U.S. government.

The American Lawyer forms a ‘Young Lawyer’ Editorial Board

Gina Passarella Cipriani

It is ironic that the legal profession is one of the worst in terms of adherence to the age discrimination in employment.

There are many lawsuits describing how law firms use creative means to get rid of older workers and law firms in past years have run ads that  blatantly targeted new attorneys for hire, while discouraging older lawyers.

Perhaps it should be no surprise the The American Lawyer, a monthly magazine published by ALM Media in New York City, has “proudly” announced it has formed a “Young Lawyer Editorial Board.” The members “range from just a year or so out of law school to some serving as young partners in their firms.” According to the magazine’s web site: “The goal of this board is to serve as a voice for the next generation of professionals in the legal profession.”

The existence of the young editorial board begs the question -is there an old editorial board that is the voice of the past generation?

Interestingly, the first monthly editorial promulgated by the Young Lawyer editorial board involves sexual harassment in the legal profession. Here’s a suggestion for next month’s editorial: age discrimination in the legal profession.

Of course, all of this could be the dying gasps of a magazine that is in itself old and irrelevant.

About a year ago, ALM laid off more than 15 of its “senior” editors, including the editors in chief of The American Lawyer, Corporate Counsel, Legaltech News, the editorial director of ALM, the Executive Editor of the New York Law Journal, the director of Legal Intelligence, and several longtime copy editors and reporters, etc. The company was reportedly seeking to cut costs.

It’s not clear whether this activity led to any age discrimination lawsuits against ALM … or were they smart enough to buy off the high paid cast-offs?

Gina Passarella  Cipriani took over the reigns at The American Lawyer as its new editor-in-chief.  After obtaining a graduate degree in journalism in 2005, she immediately began working for  ALM’s The Legal Intelligencer in Pennsylvania. Her entire 12-year journalism career has been spent at ALM.

The chief executive officer of ALM Media Properties, LLC, and ALM Media, LLC,  is William M. Carter, 49, a  former senior executive at LexisNexis and Reuters who holds a master of business administration degree.

U.S. Supreme Court Opts to Review Lesser of Two Evils

The U.S. Supreme Court had a choice of reviewing two cases involving age discrimination.

One  involves an obscure issue. A  small government agency near Tucson, AZ,  is arguing it does not have to follow the  Age Discrimination in Employment Act (ADEA) because it has fewer than 20 employees.

The other involves the major issue of our day  – systemic age discrimination in hiring.  R.J. Reynolds Tobacco Co. used internet technology from 2007 to 2010 to weed out 20,000 applications submitted by older workers for the position of sales manager and targeted workers who were “2-3 years out of college” who “easily adjusts to change.”

Guess which case the Court selected for review.

The Court said this week it will decide an appeal filed by the Mount Lemmon Fire District  of a decision by the U.S. Court of Appeals for the Ninth Circuit holding that the ADEA applies to government agencies with fewer than 20 employees. The  fire district argues the ADEA covers only employers with 20 or more workers and that employed only 13 workers. Four other federal circuits have ruled in accordance with the fire district.

The case involves two firefighters, aged 46 and 54, who were the district’s oldest full-time employees when they were fired in 2009. They allege age discrimination in violation of the ADEA.   The district said they  were fired in a cost-cutting action because they did not participate in volunteer assignments fighting fires in natural wildland areas.

When the ADEA was passed in 1967, it applied only to private sector workers. The U.S. Congress amended the ADEA in 1974 to extend its coverage to states, political subdivisions of states and other state-related entities.  The split between the circuits involves a tortured dispute about the wording of the amendment.

The 9th Circuit ruled the amendment unambiguously states that a political subdivision of a state is a distinct category  that lacks a 20-employee minimum employee requirement. Furthermore, the 9th Circuit contends the fire district and other circuits relied on decades old precedent and used an outmoded method of statutory interpretation that “cannot be reconciled” with the Supreme Court’s  recent  jurisprudence.

An issue of little consequence?

Counsel for the firefighters argued the issue is not significant enough to merit  Supreme Court review because “the ADEA’s numerosity requirement would have no discernible impact on the primary conduct of public employers, and questions regarding its applicability in this context rarely arise.” Also,  they note, state laws typically forbid all political subdivisions—regardless of size—from discriminating against employees on the basis of age.

Reynolds Case

Last summer, the Court refused to hear an appeal of a ruling by the 11th Circuit Court of Appeals in Atlanta in the Reynolds case.

The 11th court said Richard Villarreal, who applied numerous times for a sales manager position, could not sue Reynolds for using internet software to systematically screen out the resumes of older job applicants. The appeals court reasoned that job applicants can’t sue for systemic discrimination because they have “no status” as employees. As a result, job applicants in Alabama, Georgia and Florida currently have no protection from systemic age discrimination.

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.


A class-action lawsuit alleges that Trader Joe’s implemented a company-wide “reorganization” plan last year to drive out older workers.

According to the complaint,  a company-wide reorganization by Trader Joe’s, the grocery store chain for affluent yuppies, resulted in the systematic demotion of employees over the age of 45 in violation of the U.S. Age Discrimination in Employment Act.

The suit was brought by Keith Garlough, 49, an eight-year veteran employee of a California Trade Joe’s store, who was demoted from the position of “merchant,” which is one rung below assistant store manager,  to an entry-level crew position.  He states he suffered an $8.50 per hour loss in pay, a reduction in hours and was no longer eligible for bonuses and overtime pay. He also incurred greater health insurance costs and received fewer health benefits, less vacation and leave pay, and diminished retirement contributions.

I note in my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, that it is a common practice  for employers to use the device of a “restructuring” or “business reorganization” to eliminate or demote older workers. There hasn’t been much litigation over the practice because age discrimination is treated like a second-class offense in U.S. federal courts.  If these cases aren’t immediately dismissed, federal judges permit employers to avoid accountability by dragging out these cases for years. In one major case at least two older workers died  while their age discrimination case was permitted to languish for ten years until it was dismissed!

In addition to the ADEA, the complaint alleges Trader Joe’s  company-wide policy violated the California Fair Employment and Housing Act and California’s competition law.

The case is Garlough v. Trader Jos’s Co., # 3:15-cv-01278 and was filed in U.S. District Court for the Northern District of California.

Trader Joe’s has more than 200 stores in Arizona, California, Connecticut, Delaware, Illinois, Indiana, Maryland, Massachusetts, Michigan, Missouri, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Virginia and Washington.