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.