EEOC Secrecy Rule Hides Procedural Irregularities and Gross Unfairness

Note: About a week after this story was written, the EEOC filed a lawsuit against a Texas television station because it allegedly failed to consider qualifications when it rejected a 42-year-old  female applicant for a position as a weather person. This lawsuit completely contradicts the EEOC’s decision in the case below and raises questions about what the EEOC’s position is with respect to qualifications.

A recent decision by the EEOC raises questions about whether the secrecy surrounding the EEOC’s handling of discrimination complaints hides serious procedural irregularities and basic unfairness.

EEOC spokeswoman Kimberly Smith-Brown has said that federal law “prohibits EEOC employees from confirming or denying the existence of charge filings, investigations or administrative resolutions.  The only time information about a specific case becomes public is if EEOC files a lawsuit against the employer, which is usually a last resort.” This means that complaints and documents associated with the EEOC’s adjudication of complaints are secret – except in the rare instance when the EEOC files a lawsuit or a complainant objects publicly (and someone listens) to the EEOC’s handling of her complaint.

The EEOC’s secrecy rule stands in sharp contrast to the openness of the federal court system. If a complaint is filed in federal court, it is public and so are the documents associated with the complaint, unless the judge enters an order to seal the file. That order can be challenged by the media. Public access to court records serves to insure the integrity of the court system. The EEOC’s closed door rule leaves the public in the dark about the basis for complaints, why the Administrative Law Judge ruled the way h/she did, the context for the OFO’s decision on an appeal of the ALJ’s ruling and why the EEOC chose to affirm or reject the OFO’s decision. With secrecy, the public has no way to insure the integrity of the EEOC’s handling of complaints.

Not only does secrecy fail to insure integrity at the EEOC but it clearly benefits discriminatory corporations and businesses. Their customers never find out about their illegal acts and neither do their employees, who might put two-and-two together and file their own discrimination complaints.  Complainants, who are almost always individuals, may prefer to have their name remain confidential because the mere fact they filed a complaint may make it difficult for them to find new employment. However, this preference can be accommodated through the use of a pseudonym, which is a practice the EEOC already employs when it publishes a precedential decision.

 Secrecy allows the EEOC to evade accountability for misconduct and discriminatory rulings. 

[Read more…]

Age Discrimination by Feds Violates U.S. Constitution and Universal Declaration of Human Rights

It would seem to be patently illegal to accord lesser treatment to discrimination victims on the basis of age as opposed to race, sex, religion, color and national origin.

Yet, this is the law of our land.

The U.S. Supreme Court has consistently ruled that older workers are entitled to less protection from age discrimination than victims of discrimination the basis of race, sex, color, national origin and religion.  The U.S. Congress 50 years ago adopted the Age Discrimination in Employment Act, which is far weaker than Title VII of the Civil Rights Act of 1963. The U.S. Office of Personnel Management has operated a discriminatory hiring program for years, depriving older workers of tens of thousands of job.

And now the EEOC, the regulatory agency charged with protecting older workers from age discrimination, has sanctioned second-class treatment of older workers in hiring by the federal government.

It’s hard to square legalized age discrimination with the Equal Protection Clause of the Fourteenth Amendment, which says no state shall deny to any person within its jurisdiction “the equal protection of the laws.”  The Equal Protection Clause is extended to the federal government through the Fifth Amendment Due Process Clause. And it’s even harder to square legalized age discrimination with the Universal Declaration of Human Rights, Article 23, which declares: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” The U.S. was a leader in the movement to adopt the Universal Declaration of Human Rights in 1948.

The U.S. Supreme Court bases its unequal treatment of older workers on an absurd falsity.

[Read more…]

Support for American Workers is Hard to Find

Who is standing up for the rights of American workers?

GOP President Donald Trump and the GOP-led U.S. Congress seem to be determined to eliminate worker rights rather than to expand them. Trump has reversed a bevy of pro-labor measures that former Democratic President Barack Obama enacted on his own without Congressional backing. Meanwhile, workers continue to seethe about mostly Democratic trade policies that sent American jobs to other countries.

Labor unions are barely hanging on, despite the fact that unions pioneered many of the employment benefits that workers take for granted today. In 2016, the union rate for private sector workers was 6.4 percent – down from 20.1 percent in 1983.  Organized labor is currently battling a potentially crippling effort by Trump and the GOP to prevent unions from requiring nonmembers to pay representation fees.

It may be an understatement to say that advocacy of worker rights  does not appear to be high on the agendas of the Equal Employment Opportunity Commission and US. Department of Labor.

Under the Democratic administration of President Barack Obama,  the EEOC shifted its focus away from filing lawsuits and prosecuting employers who engaged in illegal discrimination. Instead, the EEOC is focused on providing free dispute resolution services to these very same employers. Mediation is often a lousy deal for discrimination victims, who walk away with a pittance to compensate for the loss of a decent job, but it’s always a great deal for employers, who avoid potentially catastrophic fees and damages stemming from a lawsuit.  Also, mediation is completely secret so other potential litigants are kept in the dark.  Meanwhile, the EEOC has for years ignored one of the most pressing civil rights issues of our day – blatant and epidemic age discrimination in hiring that is particularly devastating to older women, who suffer twice the poverty rate of men in their old age.  The EEOC received more than 20,000 age discrimination complaints in 2016; it  filed only TWO lawsuits with “age discrimination claims.” [Read more…]

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