The EEOC has defended the fact that it does not require EEOC judges to follow any code of judicial ethics.
In response to an ethics complaint, EEOC Associate Legal Counsel Carol R. Miaskoff ruled last month that EEOC judges are mere attorneys and not judges at all. “Because judicial standards do not apply, they could not have violated these rules,” states Miaskoff.
EEOC spokesperson Christine S. Nazer Friday rejected the premise that lack of a judicial ethics code is problematic. “EEOC leadership feels its judges should be fair, impartial, and follow the law, and all evidence suggests that this is exactly what happens in our federal sector decision-making process,” she said.
Nazer said Acting EEOC Commissioner Victoria Lipnic declined to answer questions, such as the following:
- Is Miaskoff is correct? Her ruling appears to be directly contrary to the ABA Model Code of Judicial Conduct for Federal Administrative Law Judges and the American Bar Association’s Model Code of Judicial Conduct.
- What about evidence showing that EEOC judges are not fair or impartial and do not follow the law, especially in cases involving age discrimination in hiring.
Every U.S. District Judge and every state court judge is required to follow a code of judicial conduct . These codes address the unique power held by decision makers in adversarial proceedings. It seems clear that EEOC judges are covered under both ABA codes.
The ABA Model Code requires judges to perform the duties of judicial office “impartially, competently, and diligently” and to follow the law.
The ABA Model Code of Judicial Conduct for Federal Administrative Law Judges applies to “anyone who is authorized to perform judicial functions, including… a member of the administrative law judiciary.” EEOC judges decide discrimination complaints brought against federal agencies.
Maskioff contends that EEOC “Administrative Judges” are required only to follow a general code of ethics applicable to all federal employees that addresses bribery and conflict of interest.
Interestingly, Nazer refers to the EEOC judges as “judges” whereas Miaskoff insisted that EEOC judges are mere attorneys.
The ethics complaint was filed after the EEOC dismissed a case of alleged age discrimination in hiring without a hearing.
In that case, the Social Security Administration (SSA) admitted it ignored the objective qualifications of a 60-year-old female attorney and hired four applicants under the age of 40, includng recent law school graduates. The SSA said the hiring officer based his hiring decisions upon cultural fit.
EEOC Administrative Judge Daniel Leach and Carlton M. Hadden, the director of the EEOC’s appellate unit, the Office of Federal Operations, did not cite any legal authority for holding that employers can base hiring decisions entirely on subjective criteria and they ignored contrary legal authority and long settled EEOC policy.
In addition, Hadden upheld Leach’s dismissal of the complainant’s retaliation claim,without addressing undisputed evidence that Leach’s ruling was based upon an egregious error of fact. Moreover, Leach and Hadden ignored evidence that three SSA attorneys improperly interfered in the investigation of the case. The EEOC refused to reconsider Hadden’s decision.
This was one of two cases that became public last year where EEOC judges treated the ADEA differently than Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. The substantive provisions of the ADEA and Title VII are identical. 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.