Is “Poise” a Qualification or a Subjective Assessment Prone to Bias?

Qualifications normally are an  important consideration in discrimination cases.

In recent weeks, however, the EEOC has ruled in two age discrimination cases that subjective assessments  outweigh objective qualifications.

In both cases, Carlton M. Hadden, Jr. director of the EEOC’s Office of Federal Operations, held that federal agencies did not engage in age discrimination when they ignored the superior qualifications of older applicants and hired younger, seemingly far less qualified workers. The EEOC, which has declined to comment, upheld both decisions.

In one of the cases, Hadden ruled that an African-American female in her 20s was more qualified for the position of lead police officer at a veteran’s center in Dallas than a 48-year-old white male who was then serving as lead police detective at the center.  The male had 20 years of high-level experience in policing; the female had served a stint in the Army military police.

Hadden said the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership, and the ability to cope with stress…” But are “poise” and “compassion” really “qualifications” or are they subjective assessments that are subject to cultural bias? And why doesn’t an officer who is in a leadership position show more leadership potential than an individual who is not? These decisions raise questions about whether the EEOC is implementing its own vision of affirmative action rather than federal law.

In the past, courts have looked skeptically at subjective assessments in hiring  because research shows that hiring managers often harbor subconscious bias.

An older candidate may not seem poised if members of the hiring panel harbor bias that older people are ugly, sickly or lacking in enthusiasm.

The issue is important because today there is rarely direct evidence of  discrimination. Plaintiffs must show that the employer’s non-discriminatory explanation for a negative employment action was a pretext for discrimination.  It’s hard to disprove an employer who says the other candidate had more poise and compassion.

The U.S. Supreme Court in 2006 discussed how courts should assess  “plainly superior qualifications”  in the  case of  Ash, et al. v. Tyson Foods, Inc. The U.S. Supreme Court clearly was not talking about  the employer’s subjective assessment of the candidates – that’s what the Court was concerned about.

In the Ash case, the plaintiffs, two African-Americans, argued that Tyson used job qualifications that were not required by company policy to exclude them and justify promoting two white males. The 11th Circuit Court of Appeals in Atlanta dismissed their complaint, ruling they had ailed to raise an inference of discrimination.

The 11th Circuit ruled that a plaintiff must show the disparity in qualifications was “so apparent as virtually to jump off the page and slap you in the face.”  The Supreme Court rejected this standard, calling it “”unhelpful” and “ambiguous.”

In the Ash decision, the U.S. Supreme Court referred approvingly to far less stringent standards than the one articulated by the 11th Circuit. The Court noted a federal appeals court in California ruled  that a pretext of discrimination can be found where a candidate was not hired despite  “clearly”superior qualifications.” The Court cited a ruling by a federal appeals court in the District of Columbia that a fact-finder might infer pretext if a “reasonable employer would have found the plaintiff to be significantly better qualified for the job.”

Hadden did not cite any legal authority to justify equating subjective assessments with objective qualifications. The EEOC has declined to comment.

The EEOC routinely rejects subjective assessments in race and sex discrimination cases. Why is there a different standard for age discrimination?

The other age discrimination case dismissed by the EEOC in August condoned hiring workers based on “cultural fit.” This concept is so widely regarded as an invitation for bias that it is now considered taboo even in the business community.

The bottom line is that the EEOC is locked in a time warp, despite the fact that it was designated by Congress to implement the Age Discrimination in Employment Act and should be in the forefront on the issue of equal rights. And, since EEOC cases are secret, we have no way of knowing how many older workers have had their cases dismissed on the basis of reasoning that follows no legal precedent and appears to be the equivalent of a whim.

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. 

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Federal Courts Criticized for Dismissive Treatment of Employment Discrimination Victims

There is overwhelming evidence that federal courts for years have ignored and marginalized plaintiffs in employment discrimination cases.

Judge Richard A. Posner, one of the nation’s leading appellate judges, recently resigned from the 7th Circuit U.S. Court of Appeals citing his disgust for the dismissive treatment that his fellow jurists accorded to pro se litigants. The vast majority of pro se litigants are victims of a justice system that is too expensive for all but a privileged few. Most Americans cannot afford to hire an attorney and either must proceed on their own or passively suffer gross injustice. Posner told abovethelaw.com that pro se litigants “deserve a better shake.”

Posner says judges divert the cases of pro se litigants to staff attorneys and then routinely dismiss the case after the employer files a motion for summary judgment.

In addition to Posner, attorneys for the Center for the Study of Law and Religion at Emory University School of Law are questioning the high rate of dismissals in lawsuits involving employment discrimination. They filed an amicus brief last month that points to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.

The win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

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U.S. Chamber of Commerce No “Friend of the Court”

Nice to see someone calling out the U.S. Chamber of Commerce, which frequently inserts itself into national litigation as a “friend of the court.”

In reality, the Chamber is almost always an advocate for a dues paying corporate member and espouses a position that is anti-employee and anti-consumer. In 2014, I argued the Chamber was a federal court lobbyist.

According to Reuters, the firm of Lieff Cabraser Heimann & Bernstein has opposed  the Chamber’s request to file an amicus or “friend of the court” brief in a case involving a challenge by Direct TV to the certification of a class action by the 11th Circuit Court of Appeals in Atlanta.  Lieff’s brief argues the Chamber, the Chamber’s lawyers, DirectTV and Direct TV’s lawyers are bound so closely together that even under a liberal reading of the definition of an amicus curiae, the Chamber cannot legitimately be regarded as a friend of the court.

“The Chamber is not merely a friend of the party, but essentially the party itself.” – Lieff Cabraser Heimann & Bernstein

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