Feds Bear Responsibility for Age Discrimination in Hiring

Note:  A major research study was released Monday finding “robust evidence of age discrimination in hirng against older women.” – Is It Harder for Older Workers to Find Jobs? New and Improved Evidence from a Field Experiment by David Neumark, Ian Burn, and Patrick Button

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Age discrimination in hiring is epidemic in the United States and much of the reason for this is directly attributed to our own federal government.

It’s almost impossible for individuals to fight age discrimination in hiring because they lack access to critical information, such as the identity of the other candidates and why the successful candidates were chosen.  A highly qualified older job applicant  may suspect age discrimination but can’t prove it. The evidence is in the hands of the employer, who has no obligation to release it unless it is demanded pursuant to court-ordered discovery in a lawsuit.  A lawsuit alleging age discrimination in hiring is almost certain to be dismissed prior to discovery if it is based solely upon speculation. It’s a vicious circle –> no information, no basis for a lawsuit -> no lawsuit, no ability to obtain information.

This is why it is incumbent upon the Equal Employment Opportunity Commission  and the U.S. Department of Labor to protect workers from arbitrary discrimination in hiring. But the EEOC and DOL have virtually ignored the problem since it became an epidemic during the Great Recession of 2008.

The EEOC filed 12 lawsuits with age discrimination claims in 2014, compared to 76 lawsuits with Title VII claims  (primarily race and sex discrimination)  and 49 lawsuits with disability claims. The EEOC filed only 7 lawsuits with age claims in 2013.

Here are somes things that our government can do now to deter age discrimination in hiring:

1. The EEOC could require employers to provide age-related data, along with data on the race and gender of their employees,  in their mandatory EEO-1 Reports, which are due at the end of this month. The EEOC could use this information to identify and prosecute corporate “bad actors” who refuse to hire older workers (i.e. Silicon Valley tech companies). If the EEOC does not accept that it has the regulatory authority to require employerss to provide age  data, it could ask Congress for the authority.
2. The federal government could stop engaging in age discrimination in hiring. Not only does this hurt older workers but it sends a terrible message to private sector employers that age discrimination in hiring is warranted, reasonable, okay and will be tolerated.
   1. U.S. Department of Labor Secretary Thomas E. Perez could withdraw his support for the “100,000 Opportunities Initiative”  by America’s top corporations to hire workers between the ages of 16 and 24. This initiative blatantly violates the terms of the ADEA, which prohibits any consideration of age in hiring (except for a few categories of workers to which this does not apply).
   2. President Barack Obama could rescind his 2010 executive order that permits federal agencies to discriminate against job applicants on the basis of age. After all, if the feds can do it, why can’t Silicon Valley?
   3. The EEOC could acknowledge that complaints about age discrimination comprise almost a quarter of all of the complaints the EEOC receives annually but only a tiny fraction of the agency’s investigatory and prosecutorial resources are devoted to the problem. Age discrimination is no less harmful than other illegal and arbitrary discrimination so why does it get such short shrift from the EEOC?

On Monday, there were  1000+ jobs on Monster.com posted by employers and employment agencies seeking to hire  “recent graduates” and 1000+ jobs  advertising for a “digital native.”  Technically, it is unlawful under the ADEA to print or publish a “notice or advertisement” indicating preferences or limitations relating to age. The overwhelming majority of recent graduates and digital natives are under the age of 40.  But no one has been held to account in recent years for this widespread practice.

A law that is not enforced is an illusion.