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 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.

The Sleeping Bear Awakens: The AARP Questions Legal Inequality of Older Workers

Something has poked the sleeping bear.

An attorney for the AARP was quoted in The New York Times recently as stating that the Age Discrimination in Employment Act of 1967 “may not be up to the task.” This represents a profound shift for the AARP, which has done little in recent years (if anything) to acknowledge the fundamental legal inequality of older workers under the Age Discrimination in Employment Act of 1967. The AARP states on its web site that the ADEA was passed in 1967 with the  “strong backing” of the AARP.

In my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA gives older workers far less protection than Title VII of the Civil Rights Act of 1964 provides to victims of discrimination on the basis of race, sex, religion, color and national origin. For example, the ADEA permits age discrimination if  it is based on a reasonable factor other than age (i.e., cost savings).  Title VII requires employers to show “business necessity” and to demonstrate there were no alternatives with less discriminatory impact.  Victims of age discrimination can recover only monetary damages and if there are none they get nothing.  Title VII plaintiffs are entitled to monetary damages plus  punitive and compensatory damages (i.e. damages for emotional distress).

Because of legal inequality,  millions of older workers have been forced out of the workplace and into an impoverished retirement since the Great Recession.

Mind you, there has never been any intellectual or moral justification for treating age discrimination differently than other types of discrimination – all discrimination is based on fear, false stereotypes, and animus directed toward a specific group. If workers are not capable of doing a job due to age-related decline, they can be dismissed. That’s not discrimination.

What Prompted The Change?

I contacted the AARP earlier this week to applaud the organization for finally acknowledging the ADEA “may not be up to the task” of preventing older workers from  irrational and harmful discrimination.  I then asked the AARP officials whether their position was influenced by my book, which is the first to challenge the fundamental legal inequality of older workers under the ADEA. I observed the AARP had never acknowledged the book – or a follow up companion work, Overcoming Age Discrimination in Employment –  despite my efforts to bring these works to the attention of the AARP and the readers of its publications. I said that capitalizing on my work without giving me credit is disrespectful and intellectually dishonest. The AARP officials insisted they have been working hard (sometimes behind the scenes) all these years to battle age discrimination in employment. They did not confirm or deny that my work had influenced their change of heart about the ADEA but suggested that “this should not be about who gets credit, but rather, about how best to improve the lives of older workers.”

This is about improving the lives of older workers but it is also about credit.

I care about credit for the same reason the AARP cares about its brand as the advocate for the rights of Americans over the age of 50. The AARP’s brand name establishes its credibility and helps the AARP sell Medi-gap health insurance and European vacations.

I suggested it would be appropriate for the AARP  to give credit where credit is due; that the AARP should do what it should have done in 2014 and acknowledge the publication of Betrayed; The Legalization of Age Discrimination in the Workplace  and the important ideas that are contained within the book.  These ideas appear to have been powerful enough to make the AARP question the insufficiency of the ADEA.

The AARP assured me that it has been as active as it can be in fighting age discrimination and wished me good luck in my future endeavors!

Now that the AARP  has acknowledged the ADEA may not be up to the task of protecting older workers, one can only hope the AARP will recognize other areas in which age discrimination has been legalized in the Untied States.  The AARP  was silent when former President Barack Obama in 2010 signed an executive order allowing our nation’s largest employer, the federal government, to blatantly discriminate in hiring on the basis of age and then again in 2015 when Obama’s Labor Secretary Thomas Perez, now chair of the Democratic Party, endorsed a private initiative by Starbucks and other major American corporations to hire only younger workers in clear violation of the ADEA.  I wrote about both of these issues in my employment law blogs, as well as the EEOC’s consistent failure to devote significant resources to prosecute age discrimination.  In the New York Times, it was reported: “Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.” The reporter said the AARP’s list was assembled in July, about six months after I reported the EEOC had only filed two cases with age discrimination claims in 2016.  But who’s counting?