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 EEOC denied complainant’s Request for Reconsideration.

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.

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