The EEOC’s strategy for addressing epidemic age discrimination in hiring has suddenly become apparent.
On this Labor Day 2018, it appears the highly-paid advocates for workplace equality on the EEOC – Victoria Lipnic (R), Chai Feldblum (D) and Charlotte Burrows (D)- are waiting for President Donald Trump to act.
The EEOC was charged by the U.S. Congress with enforcing the Age Discrimination in Employment Act of 1967 (ADEA) but has ignored blatant age discrimination in hiring by federal agencies for a half dozen years.
Since 2012, the U.S. Office of Personnel Management (OPM) has barred older workers from applying for 100,000 federal jobs under the Pathways Program. This is known as disparate impact discrimination – where a supposedly neutral policy has a disproportionately negative impact on a protected group. About 94% of candidates hired under the Pathways program are under the age of 40.
Older workers have been barred from applying for more than 100,000 federal jobs (and counting).
Last month, Carlton M. Hadden, the director of the EEOC Office of Federal Operations (OFO), upheld the Pathways Program for at least the second time. Hadden ruled the EEOC “doesn’t have jurisdiction over the legality of a program created by Executive Order.” See Neary v. Pon, EEOC Appeal No. 0120181475 (August 22, 2018). The EEOC has at least twice rejected (without a hearing) challenges to the Pathways program by older workers .
The Pathways program was created in an executive order issued by former President Barack Obama in 2010. It went into effect in 2012.
The OPM last year said it has no choice but to engage in age discrimination until President Trump overturns Obama’s executive order establishing the Pathways program. Now the EEOC has adopted that same courageous position. The difference, of course, is that the EEOC is charged with stopping the OPM from discriminating based on age.
Damage from the Pathways program is not confined to the federal government. The program sends a de facto message to private sector employers that age discrimination in hiring is legitimate, reasonable and will be tolerated. This may explain why the EEOC has done nothing about corporate use of Internet screening algorithms to weed out the resumes of older workers or the use of social media to direct job vacancy advertisements directly to younger workers.
The Pathways Program legitimizes private sector age discrimination.
The EEOC’s professed lack of ownership of the problem of age discrimination in hiring by the feds raises several questions:
- What if Pres. Trump, who is not known to be a civil rights advocate, doesn’t overturn his predecessor’s executive order? How many years do older workers have to wait for non-discriminatory treatment in the workplace?
- Would the EEOC acquiesce to hiring discrimination if the excluded workers were not aged 40 and above but were African-Americans, women or LGBT workers?
- Are the Commissioners aware that decades of scholarship show age discrimination is the equivalent of discrimination based on race, sex, religion, color and national origin? Why is it more acceptable to discriminate based on age?
What if no President ever overturns Obama’s discriminatory executive order?
It is also worth observing that all types of employment discrimination now prohibited under the law were once legal, including race and sex discrimination.