The EEOC’s Analytical Framework Has a Hole

The EEOC has articulated an “analytical framework” for proving cases of intentional discrimination (also known as  disparate treatment discrimination).

Unfortunately, the framework has a crater-sized hole – the Judge.

In a decision that recently was upheld by the EEOC Office of Federal Operations (OFO), an Administrative Law Judge (ALJ) dismissed a 2011 age discrimination complaint involving a failure to hire by an agency of the Social Security Administration. There was clear evidence of collusion to cover-up of age discrimination by the hiring officer and his assistant, undisputed proof of interference by SSA attorneys in the investigation of the case by the Equal Employment Opportunity Officer in clear violation of EEOC policy, and the novice, untrained hiring officer admitted that he based his selections  entirely on subjective criteria and completely ignored the complainant’s superior qualifications.  The judges agreed with the SSA that the hiring officer’s was within his rights to  hire candidates that he deemed a good fit for the SSA’s “culture.” Specifically, the OFO upheld the ALJ’s ruling that reliance on subjective criteria is “appropriate and necessary when the selection, as here, involves the consideration of collegial, professional, teamwork and administrative abilities that do not lend themselves to objective measurement.”

The law and EEOC rules instruct employers to hire candidates based upon neutral and objective job-related criteria so as to avoid subjective decisions based on personal stereotypes or hidden bias.

Considerable research shows that hiring officers suffer from implicit bias and ageist stereotypes – what about judges?

The complainant has filed a Request for Reconsideration with the EEOC.

For what it’s worth, here’s the analytical framework to prove intentional discrimination.

The EEOC’s states the complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in the landmark case of McDonnell-Douglas Corporation v. Green.  The complainant can establish a prima facie case by showing:

  • S/he belongs to a protected class.
  • S/he was subjected to an adverse employment action (i.e., failure to hire, demotion, termination)
  • Under circumstances that would support an inference of unlawful intent.

Proof, of course, varies depending upon the facts of the case.

After the complainant establishes a prima facie case, the burden shifts to the agency to articulate a legitimate nondiscriminatory reason for its actions. If the agency does so, the burden returns to the complainant to prove, by a preponderance of the evidence (more likely than not), that the explanation the agency has put forward is a pretext (a justification that is not the real reason but rather a cover for unlawful discrimination).

A complainant can demonstrate pretext by showing inconsistencies or contradictions in the  record such that a reasonable fact finder could find the articulated reason for the agency’s action unworthy of credence.

According to the EEOC,  several indicators could support a finding of pretext. One such indicator in hiring and promotion cases is that the complainant’s qualifications for the position were plainly superior to those of the selectee. Other indicators of pretext include discriminatory statements or past personal treatment attributable to the responsible management official; comparative or statistical data showing differences in treatment across particular racial, ethnicity, gender, age-related or disability-related lines; unequal application of agency policy, deviations from standard procedures without explanation or justification; or inadequately explained inconsistencies in the evidentiary record.

What does all of this really mean when the judge hearing the case demonstrates bias with respect to age discrimination, treating the claims dismissively and ignoring the evidence and the law?

 The judiciary needs to be educated about the reality of age discrimination – especially age discrimination in hiring.

Age discrimination in hiring is epidemic and unaddressed in American society fifty years after the passage of the Age Discrimination in Employment Act.  This denies older worker their basic human right to work and leads to poverty in old age.

EEOC & AARP: The Willfully Blind leading the Willfully Blind?

You can’t make this stuff up.

The EEOC has announced that age discrimination will be a “special focus” of its major annual “training event” for employers  later this month to mark the 50th anniversary of enactment of the Age Discrimination in Employment Act (ADEA).

The invited guest speaker is Jo Ann Jenkins, the CEO of the AARP, an organization that has done virtually nothing in 50 years to address the fundamental legal inequality of older workers in the United States and for years has accorded mere lip service  to the epidemic of age discrimination in employment that began during the Great Recession.

Of course, the EEOC under Democratic President Barack Obama’s administration also did virtually nothing about the problem of age discrimination in employment. The EEOC last year filed exactly two lawsuits with age discrimination claims, despite receiving more than 20,000 complaints of age discrimination. The EEOC today arguably does more to protect employers from the consequences of illegal age discrimination than it does to protect older workers from illegal age discrimination. It remains to be seen whether GOP President Donald Trump and EEOC Acting Chair Victoria A.  Lipnic will choose do any better.

The EEOC press release states the CEO of the AARP and the EEOC Acting Chair  will engage in a “candid conversation about age discrimination.”   Maybe they could start by explaining why both organizations have completely ignored the problem for decades.

I respectfully suggest  Jenkins and Lipnic obtain a copy of my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace, which candidly describes the epic failure of the federal government protect older workers from irrational and devastating age discrimination in employment. Up to now, both the EEOC and the AARP have  completely ignored the book, which received an excellent review from The ABA Commission on Law and Aging. [Read more…]

The EEOC Veered Sharply Away from Litigation in 2016

In 2016, the EEOC filed 34% fewer lawsuits than it filed in 2015, and there were drastic declines in some areas, notably an 85.7% decline in age discrimination lawsuits.

This is not good news for victims of discrimination in employment. Without the gravity and resources of the EEOC behind them, many individual discrimination victims are puny “Davids” facing international corporate “Goliaths.”

It appears the steep litigation decline – from 174 lawsuits in 2015 to 114 in 2016 –  is the result of the EEOC’s new emphasis on resolving individual complaints through voluntary mediation. However, mediation is a far better deal for employers than workers. For employers, mediation is a form of free dispute resolution that gets the EEOC off their back and eliminates the risk of massive damages and fees in a jury trial. For workers, mediation generally results in a modest financial settlement at best.

Many workers, especially those without counsel, do not fully understand their rights and the employer’s potential liability, or they cannot realistically fight for their rights because they have no money to wage a protracted court battle.

Mediation is a far better deal for discriminatory employers than it is for discrimination victims.

Here are the types and number of lawsuits filed by the EEOC in 2016 compared to 2015 and the percentage increase/decrease.

  • Age Discrimination in Employment Act of 1967; Two lawsuits in 2016, compared to 14 in 2015 (a decrease of 85.7%).
  • Title VII of the Civil Rights Act  of 1964 (race, sex, religion, color and national origin): 46 lawsuits in 2016 compared to 83 in 2015 (a decrease of 44.5%).
  • Americans with Disability Act: 36 lawsuits in 2016 compared to 53 in 2015 (a decrease of 32%).
  • Equal Pay Act: Five lawsuits in 2016 compared to 7 in 2015 (a decrease of 28%).
  • Genetic Information Non-Discrimination  Act  Two lawsuits in 2016 compared to one in 2015 (an increase of 50%).

[Read more…]

Taxpayers Subsidize Age Discrimination by Feds

It is ironic that our nation’s largest employer, the U.S. government, is one of the worst offenders with respect to age discrimination in hiring.

President Barack Obama in 2010 unilaterally signed an executive order that allows federal agencies to by-pass older workers, ignore merit and qualifications, and to hire “recent graduates” and “entry-level jobseekers” for permanent federal jobs. Since the vast majority of recent graduates and entry-lvel job seekers are under the age of 40, Obama’s order has an obvious discriminatory impact on older workers. Yet, there was no public outcry when Obama signed this order – not from the AARP or the American Civil Liberties Union.

Obama couched his action in terms of increasing diversity in federal hiring but he offered no evidence that it was necessary to resort to age discrimination, which is illegal under the Age Discrimination in Employment Act of 1967. Obama’s order operates as an exemption to the ADEA. Furthermore, Obama’s order discriminates against older African Americans and Hispanics, as well as older whites.

Not surprisingly, older applicants face a mountain of discrimination when applying for lucrative federal positions.

James W. Moeller, then 57, filed a federal age discrimination lawsuit last year after he applied for several positions an attorney at the Federal Energy Regulatory Commission (FEC) in Washington, DC. He was never  granted an interview despite the fact that he is a Harvard Law School graduate with 30 years of federal energy regulatory experience.  Moeller has represented clients before the FEC, the U.S. Nuclear Regulatory Commission and the Maryland Public Service Commission. He is a leading scholar on federal energy regulatory law, having published numerous scholarly articles on the topic.

Meanwhile, the FEC granted interviews to younger, less qualified applicants, who were subsequently hired.

How come a guy like Moeller who objectively has superb qualifications could not even get an interview with the FEC? Could it be … uh … age discrimination?

Moeller’s  lawsuit states the FEC “claims that it cannot discriminate on the basis of age because it has no knowledge of the ages of its job applicants. This claim is based on the fact that job applicants generally do not include their dates of birth on their resumes.”  Moeller argues – and basic common sense dictates – that employers can infer the age of a job applicant based upon the applicant’s job history.

It is arguably a much greater failing for the federal government to discriminate against older workers because  we are shareholders in the enterprise through our tax dollars. In addition, discrimination by the federal government sends a signal to the private sector that age discrimination is acceptable and will be tolerated.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I explore other ways in which all three branches of the federal government have overlooked, abetted and trivialized age discrimination in employment. I also show how the ADEA provides far less protection for older workers than is provided by Title VII of the Civil Rights Act to workers on the basis of race, sex, national origin, color and religion.

*See Moeller v. Bay, Case No, 1:15-cv-00724 (2015) U.S. District Court for the District of Columbia.