EEOC ‘Judges’ Are Not Subject to Any Code of Judicial Ethics

An official from the EEOC’s Office of Legal Counsel has ruled that EEOC judges are not subject to any code of  judicial ethics because they are merely attorneys working in the executive branch.

EEOC Associate Legal Counsel Carol R. Miaskoff writes in a June 25 letter that EEOC attorneys who are designated to serve in a judicial capacity and who are called ” judges” are not required to follow the Code of Conduct for United States Judges or the American Bar Association’s Model Code of Judicial Conduct.

“Because judicial standards do not apply, they could not have violated these rules,” states Miaskoff.

EEOC ‘judges’ can violate basic judicial ethical standards with impunity.

Miaskoff’s letter was in response to an ethics complaint filed by a woman who, at the age of 60, filed a  complaint of age discrimination against the Social Security Administration in 2011. She argued that EEOC “Administrative Judge” Daniel Leach, and Carlton M. Hadden, the director of the EEOC Office of Federal Operations, blatantly violated widely accepted judicial ethics in deciding her case.

Due Process?

The plaintiff argued the EEOC has a legal duty under the U.S. Constitution to provide complainants with substantive and procedural due process. She argued that the ABA’s judicial code applies “to all full-time judges” – including EEOC judges. Finally, she said the EEOC is knowingly sanctioning  judicial conduct that is widely understood to be improper, unfair, and contrary to the administration of justice.

Among other things, the plaintiff alleged Leach dismissed her retaliation claim based on a documented and undisputed error of fact. On appeal, Hadden upheld the dismissal without any comment

She argued that both Leach and Hadden ignored U.S. Supreme Court precedent and EEOC policy in ruling that federal sector employers can completely ignore objective qualifications and base hiring decisions upon subjective considerations (i.e. cultural fit).  She said the EEOC created a legally unsupported double standard for age discrimination victims, compared to victims of discrimination on the basis of race, sex, religion, color and national origin.

Hadden issued a similar ruling in another case where a federal sector employer hired an African American woman in her 20s for a senior law enforcement position over a far more qualified 48-year-old white male. Hadden ruled employers can base hiring decisions upon subjective factors like poise, compassion and ability to cope with stress.

Miaskoff: The Legal Counsel’s Office has no authority to review ethical lapses by EEOC attorneys acting in a judicial capacity.

Miaskoff writes that EEOC attorneys who act in a judicial capacity are required only to adhere to a general ethical code that applies to all executive branch employees called the Standards of Ethical Conduct for Employees of the Executive Branch. This code primarily addresses conflict of interest, bribery and earning outside income.

Miaskoff concludes the plaintiff did not show that Leach and Hadden failed to put forth an “honest effort” in adjudicating the her complaint and  “it is beyond my authority to review, or otherwise determine, whether Messrs. Leach or Hadden committed errors of fact or law.”

According to the EEOC, the mission of the EEOC’s Office of General Counsel is to ensure compliance with the statutes that EEOC is charged with enforcing.

How is compliance with federal statutes insured when EEOC ‘judges’ are not required to provide basic due process?

So where does this leave the plaintiff, now 67?  Miaskoff said anyone who is unsatisfied with the EEOC’s adjudication of their case can file a lawsuit in U.S. District Court and start the process all over again.

For the record, Canon 2 of the ABA code of judicial conduct requires a judge to “uphold and apply the law” and “perform all duties of judicial office fairly and impartially.” A comment accompanying the rule states a judge’s “intentional disregard of the law” violates the rule. This principle is echoed in Canon 2 of the U.S. Code of Judicial Conduct, which states “[a] judge should respect and comply with the law and should act at all times in a manner that promotes confidence in the integrity and impartiality of the judiciary.”

Research shows that older women suffer the highest rates of age discrimination in hiring.

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