In the past, the U.S. Senate Special Committee on Aging has been an advocate for older workers who are faced with age discrimination in employment.
However, the committee has done nothing about age discrimination in employment in recent years, even though millions of older workers lost their jobs and savings after Wall Street collapsed and were forced into a premature and impoverished retirement.
U.S. Sen. Susan Collins, R-ME, the chairperson of the committee, has yet to respond to a plea to address the failure of the U.S. Equal Employment Opportunity Commission (EEOC) to enforce the Age Discrimination in Employment Act a (ADEA) and its inequitable treatment of older workers.
The EEOC filed two lawsuits with age discrimination claims in 2016, a year in which it received more than 20,000 complaints of age discrimination. After much criticism, the EEOC filed 12 lawsuits with age discrimination claims in Fiscal 2017 but that is still far below its historical record. The EEOC filed 87 lawsuits with age discrimination claims a decade ago, and 120 lawsuits with age discrimination claims in 1993.
The EEOC has demonstrated gross unfairness – if not actual age discrimination – against older workers in its decision-making.
This blog has asked the U.S. Senate Special Committee on Aging to investigate the U.S. Equal Employment Opportunity Commission for essentially discriminating against older workers in the adjudication of age discrimination complaints.
The EEOC recently dismissed two cases where highly qualified older job applicants were passed over for far less qualified workers under the age of 40 (some were recent graduates). The EEOC ruled that it is not illegal for employers to make hiring decisions based entirely on subjective considerations (i.e., cultural fit). The EEOC offered no legal support for this position, which is contrary to the EEOC’s position in race discrimination cases and well established law. The U.S. Supreme Court ruled in 2006 that an employer’s failure to hire a candidate who is significantly better qualified for a job may raise an inference of illegal discrimination.
The EEOC also ignored serious procedural irregularities by the federal hiring agencies in both cases.
The Senate Special Committee on Aging, chaired by Maine Sen. Susan M. Collins, is authorized to conduct oversight of federal programs and to investigate reports of fraud and waste. In the past, the Committee has championed the rights of age discrimination victims.
For years, the EEOC has all but ignored its Congressional mandate to enforce the Age Discrimination in Employment Act of 1967 (ADEA). The EEOC received more than 20,000 complaints of age discrimination in 2016 – almost a quarter of all of the complaints filed with the EEOC that year -but filed only two lawsuits with “age discrimination claims.” The EEOC was taunted by the U.S. Chamber of Commerce in 2015 for operating a hiring program that discriminates on the basis of age.
When President Lyndon Johnson signed the ADEA fifty years ago, he said its sole purpose was to ensure the most qualified candidate gets the job. The ADEA prohibits using age as a factor in employment decisions except in very limited circumstances that are not relevant to the two cases in question.
In August, the EEOC upheld a decision by Carlton M. Hadden, Jr., the director of the EEOC’s Office of Federal Operations, to dismiss an age discrimination case where a middle-aged male hiring officer for the Social Security Administration (SSA) testified he ignored objective qualifications and hired four applicants under the age of 40 based on his perception of how well they would fit within the culture of the office. The complaint was filed in 2011 by a 60-year-old female attorney who was not selected, despite having what the hiring officer admitted were superior qualifications when compared to most or all of the successful candidates. Initially the hiring officer said she lacked enthusiasm during a 20 minute telephone interview.
The EEOC’s ruling conflicts with a guidance published by the EEOC in 2006 that states hiring based on cultural fit is discriminatory in the context of race. Even the business community knows that hiring based on cultural fit is fraught with potential for prejudice and bias.
The EEOC also failed to punish the SSA for violating its legal obligation to insure the investigation of the age discrimination complaint was fair and impartial. Hadden acknowledged that SSA attorneys “improperly” interfered in the investigation of the case in violation of EEOC Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chapter 1, Section IV. However, Hadden merely reminded the SSA to be “careful to avoid even the appearance that it is interfering with the EEO process.”
In the second case, Hadden ruled that a 48-year-old white male police detective who had 20 years of high-level experience in law enforcement, failed to show he was more qualified for promotion to the position of lead officer at a Texas veteran’s center than a female African-American in her 20s whose experience was limited to a stint in the Army military police. Hadden writes that the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership potential, and the ability to cope with stress…” So-called intangibles like “poise” and “compassion” are similiar to “cultural fit” in that they are subjective assessments that are prone to conscious and subconscious bias.
It is well established in the law that an employer’s reliance on subjective criteria for significant personnel decisions may be viewed as circumstantial evidence of discrimination.*
Hadden also disregarded evidence that the veteran’s center violated its own regulations and union Collective Bargaining Agreement in the hiring proces. Hadden said the complainant failed to prove the veteran’s center “intended” to discriminate when it failed to follow the rules.Courts generally consider an employer’s failure to follow its own rules in employment matters to be evidence of discrimination.**
Since the EEOC operates in virtual secrecy, the public has no way to know how many age discrimination complaints have been dismissed by the EEOC on spurious grounds.
Here’s another case that illustrates the type of unconventional “justice” that is being meted out by the EEOC these days.
A veteran white male police officer, 48, was passed over for the position of lead police officer at the Dallas Veterans Affairs Medical Center in Dallas, TX.
An African-American female “in her 20s” whom the EEOC agreed had spent “a relatively brief time in the workforce” was rated as the top candidate. Her experience was as a military police sergeant in a combat zone in Afghanistan. She got the job.
The complainant was working as a senior detective at the center. His experience included service as a Sargent in the Army military police and ten years as a deputy sheriff and lead detective. He had become certified as a Dallas police officer so he would be knowledgeable about local issues. And he received several commendations by the department.
The hiring panel, which consisted of three Lieutenants, unanimously ranked the female as the top candidate out of a field of 13.
The complainant argued the veterans administration implemented a selection process that was pretext “to permit the selection of a younger minority candidate regardless of the candidate’s qualifications.” Among other things, he said, the administration failed to follow promotion criteria outlined in its regulations and in its Collective Bargaining Agreement with the Union.
Furthermore, he said the Assistant Chief, and not the Chief, was the actual selecting official and made comments about his age. He said other candidates felt the process was unfair and a veteran Sargent and other unnamed witnesses told him “the Agency was deliberately seeking to fill the position with an individual of a specific race or gender.”
In August, EEOC Appeals Judge Carlton M. Hadden, director of the EEOC Office of Federal Operations, dismissed – without a hearing – the male officer’s claim that he was a victim of race and age discrimination.
Hadden conceded the record showed the panelists were not “briefed on” promotion and interview “requirements” but said there was no evidence this omission was “motivated by discrimination.”
A major problem facing victims of age discrimination today is judicial bias – which is well documented in research but widely ignored and unaddressed.
Judges are not unique in society; age bias is the most tolerated form of social prejudice. However, age bias in the judiciary is particularly damaging to older workers because it is the judiciary’s role to insure equal justice under the law.
Age bias generally is more than twice as prevalent as other types of bias, according to a 2016 survey by a Canadian firm, Revera, Inc., which operates 500 senior care properties. The survey, conducted by the Sheridan Centre for Elder Research in Ontario, involved 2,400 Canadians. Forty-two percent said they tolerate ageism, compared to 20% who said they tolerate racism and 17% who tolerate sexism.
Meanwhile, a 2004 study found evidence that judges are more biased in age cases than race or sex discrimination cases. The study also found that younger judges are the least sympathetic to age discrimination claims.
Judicial age bias yields decisions that would be shocking in race or sex discrimination cases.