Older Workers Barred from Applying for Tens of Thousands of Federal Jobs

Tens of thousands of U.S. jobs have been reserved for  younger workers since 2012 under the U.S. Office of Personnel Management’s on-going Pathways Program, which permits federal agencies to limit hiring to recent college graduates.

In response to a Freedom of Information request, the OPM disclosed on June 13 that a total of 29,595 candidates were selected for employment under the Pathways Program from May 2012  to  Fiscal Year 2014.   Of the total, 27,423 were under the age of 40 and 2,172 were over the age of 40. The OPM claims its data only covers that period but clearly the loss of opportunity to work for the federal government continues for older workers.  It is fair to assume that older workers have been barred from applying for at least 60,000 federal jobs.

Of the total, 92.7 % of the Pathways Program hires were UNDER the age of 40; only 7.3 % were OVER the age of 40.

The Pathways Program permits federal agencies to limit hiring to applicants who apply within two years of earning a post-high school or college degree. Specifically, the program is “open to applicants who have completed a qualifying post-high school educational program (e.g., technical or vocational school; two-or-four year college or university; graduate or professional school) within the preceding two years.”  Veterans have six years to apply.

The OPM disingenuously took the position that any individual who meets the qualification can apply regardless of age. However, as the OPM’s letter shows, the vast majority of recent college graduates are under the age of 40. The program represents a form of age discrimination in violation of the  Age Discrimination in Employment Act of 1967 called disparate impact discrimination. The hiring policy is a seemingly neutral policy that has a egregious disproportionate and adverse affect on older workers.

Former President Barack H. Obama  sought to create an exception to the ADEA when he created the Pathways Program by signing Executive Order 13562 into law on December 27, 2010. Without citing any research or other supporting documentation, Obama claimed the federal government was at a disadvantage in hiring young people due to the competitive hiring process. The Pathways Program took effect on January 6, 2012, sixty days after the OPM issued regulations to implement the program.

Unfortunately, neither the EEOC nor the AARP, which claims to represent older Americans, acknowledged the  discriminatory impact of the Executive Order  at the time or took any subsequent steps to oppose it. This blog raised the issue of age discrimination in the Pathways Program several years ago but business continues as usual.

As a result of the Pathways Program, older workers, still suffering from the ravages of the Great Recession, were barred from participating in the recovery.  The federal government is the nation’s largest employer.

Three years ago,  when I first wrote about the Pathways Program, I observed with some incredulity that my blog might be the only source in the nation that has acknowledge the devastating impact of the Pathways Program on older workers.  I noted the Pathways Program not only discriminates against older workers but it sends a message to the private sector that age discrimination in hiring is acceptable and it likely discouraged enforcement of the ADEA by the EEOC.

The FOI request was filed by a job seeker who has filed an age discrimination complaint with the EEOC alleging age discrimination in hiring by the federal government.

U.S. Gov: Older Workers Need Not Apply

Why is the federal government engaging in systemic, blatant age discrimination in hiring?

President Barack H. Obama signed an Executive Order 13562  in 2010 that allows federal agencies to bypass older workers and hire “recent graduates.”  The highly-questionable justification for the “Pathways Program” was that the federal government was at a competitive disadvantage in hiring promising young workers during the worst economic downturn in 100 years. Really?  Moreover, Obama claimed he was acting in the pursuit of a “diverse workforce that includes students and recent graduates, who infuse the workplace with their enthusiasm, talents, and unique perspectives.”  Does that mean older workers  infuse the workplace with lack of enthusiasm, no talent and mediocrity?

The Pathways Program, which went into effect in the summer of 2013, violates the plain language of the U.S. Age Discrimination in Employment Act of 1967 (ADEA). Under the ADEA, it is illegal for an employer – any employer – to use age as a consideration in the hiring process.   The “recent graduates” program is open to applicants who have completed a qualifying post-high school educational program (e.g., technical or vocational school; two-or-four year college or university; graduate or professional school) within the preceding two years.  The overwhelming majority of “recent graduates” are under the age of 30.

The Pathways Program clearly discriminates against older workers, including workers over the age of 40 who fall under the umbrellas of the ADEA.   The ADEA states:

  • Employers cannot fail or refuse to hire any individual “because of such individual’s age,” and/or
  • Print and publish “any notice or advertisement relating to employment … indicating any preference, limitation, specification, or discrimination, based on age.”

There is no question that unemployment is a serious problem for younger workers but unemployment also is a serious problem for older workers. The latter are disproportionately represented in the ranks of  long-term unemployed and   often are forced into an ill-advised and penurious early retirement because they can’t find decent work due to age discrimination.    Solving the unemployment problem for younger workers on the backs of older workers represents appalling public policy and is a disgraceful throwback to pre-ADEA days when employment ads regularly specified age cut-offs.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I argue that age discrimination has become normalized in society as a result of the failure of the ADEA and is trickling down to workers who were once considered young.  It is entirely foreseeable under the Pathways “recent graduates” program that a 35-or -40 year-old with excellent qualifications could lose a job to a 25-year-old recent college graduate with no qualifications.  Almost fifty years after the passage of the ADEA, America has come full circle.

The Pathways Program is a testament to hypocrisy and breeds disrespect for the law.  If the federal  government won’t follow the ADEA, why should private sector employers?

The late gerontologist Robert N. Butler, the founding director of the National Institute on Aging who coined the term “ageism,”  wrote, “The tragedy of old age is not the fact that each of us must grow old and die but that the process of doing so has been made unnecessarily and at times excruciatingly painful, humiliating, debilitating and isolating through insensitivity, ignorance and poverty.”