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. Continue reading “JUDICIAL ETHICS: WHAT IS THE EEOC AFRAID OF?”

Behavioral Design Algorithms Show Promise and Peril in Hiring

A new technology has the potential to both reduce and exacerbate illegal bias in hiring.

The New York Times has reported that two start-up hiring platforms, Applied and Pymetrics, have created algorithms using artificial intelligence and neuroscience games that can level the playing field for gender, ethnic and socioeconomic representation.

Age discrimination also is illegal but it was not mentioned. This despite considerable evidence showing that employers currently are systematically discriminating against older workers by using computer software to screen out their resumes and divert them to a digital trash can. Research shows that older women are the most severely affected by hiring discrimination.

Spokespersons for Applied and Pymetrics said behavioral design algorithms are capable of analyzing hiring factors that are more predictive of performance and less biased than traditional resume screening tools. The algorithms are tweaked until men and women and people of different ethnic backgrounds get similar scores to qualify for hire. A spokesperson for Applied cited a large test in which over half of the people that were hired would not have been were it not for the platform. A Pymetrics spokesperson said the company has been highly successful in improving gender, ethnic and socioeconomic representation for clients like Accenture and Unilever.

The behavioral design companies say the technology is equally capable, in the wrong hands, of magnifying hiring bias.

Continue reading “Behavioral Design Algorithms Show Promise and Peril in Hiring”

EEOC Secrecy Rule Hides Procedural Irregularities and Gross Unfairness

Note: About a week after this story was written, the EEOC filed a lawsuit against a Texas television station because it allegedly failed to consider qualifications when it rejected a 42-year-old female applicant for a position as a weather person. This lawsuit completely contradicts the EEOC’s decision in the case below and raises questions about what the EEOC’s position is with respect to qualifications.

A recent decision by the EEOC raises questions about whether the secrecy surrounding the EEOC’s handling of discrimination complaints hides serious procedural irregularities and basic unfairness.

EEOC spokeswoman Kimberly Smith-Brown has said that federal law “prohibits EEOC employees from confirming or denying the existence of charge filings, investigations or administrative resolutions. The only time information about a specific case becomes public is if EEOC files a lawsuit against the employer, which is usually a last resort.” This means that complaints and documents associated with the EEOC’s adjudication of complaints are secret – except in the rare instance when the EEOC files a lawsuit or a complainant objects publicly (and someone listens) to the EEOC’s handling of her complaint.

The EEOC’s secrecy rule stands in sharp contrast to the openness of the federal court system. If a complaint is filed in federal court, it is public and so are the documents associated with the complaint, unless the judge enters an order to seal the file. That order can be challenged by the media. Public access to court records serves to insure the integrity of the court system. The EEOC’s closed door rule leaves the public in the dark about the basis for complaints, why the Administrative Law Judge ruled the way h/she did, the context for the OFO’s decision on an appeal of the ALJ’s ruling and why the EEOC chose to affirm or reject the OFO’s decision. With secrecy, the public has no way to insure the integrity of the EEOC’s handling of complaints.

Not only does secrecy fail to insure integrity at the EEOC but it clearly benefits discriminatory corporations and businesses. Their customers never find out about their illegal acts and neither do their employees, who might put two-and-two together and file their own discrimination complaints. Complainants, who are almost always individuals, may prefer to have their name remain confidential because the mere fact they filed a complaint may make it difficult for them to find new employment. However, this preference can be accommodated through the use of a pseudonym, which is a practice the EEOC already employs when it publishes a precedential decision.

Secrecy allows the EEOC to evade accountability for misconduct and discriminatory rulings.

Continue reading “EEOC Secrecy Rule Hides Procedural Irregularities and Gross Unfairness”