JUDICIAL ETHICS: WHAT IS THE EEOC AFRAID OF?

The EEOC claims its judges are not required to follow any code of judicial ethics, which is like saying that EEOC judges don’t have to be fair and impartial or to even follow the law.

What is the EEOC afraid of? That can be summed up in two words: age discrimination.

EEOC judges treat complaints involving the Age Discrimination in Employment Act of 1967 (ADEA) dismissively compared to complaints filed under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. Yet the substantive prohibition against discrimination is the same in both the ADEA and  Title VII. Both laws make it illegal “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” because of that individual’s protected status.

The EEOC’s double standard for age discrimination can be traced to 2010 when President Obama   issued an executive order allowing federal agencies to sidestep federal civil service and merit selection requirements.

Last year,  EEOC Administrative Judge Daniel Leach and Carlton M. Hadden, the director of the EEOC’s Office of Federal Operations, ruled in two age discrimination cases that federal employers can ignore objective qualifications and base hiring decisions on subjective factors like poise and cultural fit.

The EEOC ignored its own policies prohibiting employers from basing hiring decisions entirely on subjective criteria.

It is inconceivable that such a holding would be made in cases involving discrimination on the basis of race, sex, religion, color and national origin. In 2015, the EEOC prosecuted Abercrombie & Fitch for failing to hire a Muslim American woman because she wore a head scarf.

One of the two age discrimination decisions in question was published by the EEOC as a precedent to follow; the other was made public by the complainant.  There could be many more such decisions hidden behind the EEOC’s out-sized vault of secrecy.

In one of the  cases, Carlton upheld Leach’s dismissal of the complainant’s retaliation claim, completely ignoring undisputed evidence that Leach’s ruling was based upon a critical, unambiguous error of fact.

In both cases, the EEOC judges ignored evidence of  misconduct by the federal agency defendants.

The EEOC claims its “Administrative Judges”  are not judges at all but mere attorneys.

There is or at least should be no serious question that EEOC judges are required to follow a code of judicial conduct.

The American Bar Association passed a Model Code of Judicial Conduct for Federal Administrative Law Judges in 1990 that says a federal administrative law judge “should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and the impartiality of the administrative judiciary.” There is no footnote exempting EEOC judges from this requirement.

The ABA also passed the ABA Model Code of Judicial Conduct, which was amended in 2010. This code applies to “anyone who is authorized to perform judicial functions, including … a member of the administrative law judiciary.” This code of conduct requires judges to perform the duties of judicial office “impartially, competently, and diligently.”

Even if the EEOC is not technically required to follow a code of judicial conduct, why doesn’t it do so anyway?

The EEOC contends that an unsatisfied party can file a federal lawsuit but this is not a viable option for older workers or anyone else who has invested years and scare resources on EEOC proceedings. Just as importantly, it represents a cynical waste of taxpayer dollars.

Complainant’s have a right to fair treatment by  both the federal government, our nation’s largest employer, and the EEOC, the agency designated by the U.S. Congress to enforce the ADEA.

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