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.
Last month, a complainant objected to the EEOC’s decision to uphold an administrative ruling in an age discrimination case in which a hiring officer for the Social Security Administration admitted he completely ignored objective qualifications and based his hiring decisions upon his perception of the applicants’ “cultural fit.” The middle-aged male hiring officer initially selected five applicants who were recent law school applicants. He initially said he did not select the complainant, a woman who was then 60, because she lacked “enthusiasm” during a 20-minute telephone hearing. What makes the decision particularly disturbing is that the EEOC previously stated that it
is discriminatory for employers to base hiring on “cultural fit” in cases involving discrimination on the basis of race or color. So why is it okay for age?
The complainant also said the EEOC ignored evidence the hiring manager and his assistant engaged in a cover up by filing nearly identical affidavits – instead of individual accounts – with the EEO Officer who was investigating the case. The affidavits were so clearly inappropriate that SSA attorneys intervened in violation of an established EEOC policy and asked the hiring officer to insure that his assistant made certain unspecified changes to her affidavit. Moreover, the hiring officer said he alone made the decision not to select the complainant, without consulting his assistant, who was the only other person on the “hiring panel.” The complainant also said the EEOC ignored an undisputed factual error that was the basis for the dismissal of her retaliation claim.
The EEOC has declined all comment.
The backdrop of the above ruling is that the EEOC received 20,000 complaints of age discrimination in 2016 but filed only two lawsuits. The EEOC has ignored rampant age discrimination in hiring for years despite research showing that it is particularly harmful to older women, who suffer higher rates of poverty in their old age. In fact, the EEOC has been taunted by the U.S. Chamber of Commerce for operating a hiring program that discriminates on the basis of age.
Clearly, the EEOC has abdicated its responsibility to enforce the Age Discrimination in Employment Act of 1967, which prohibits using age as a factor in hiring. Where does that leave older workers? Vulnerable.