Not only has Congress failed to help victims of age discrimination for more than a decade, now the ranking member of the Senate Committee on Health, Education, Labor and Pensions wants to stop the EEOC from helping.
U.S. Sen. Lamar Alexander (R-Tenn) called upon the EEOC at a hearing last week to change its strategy of litigating big, high profile lawsuits and, urged it instead to resolve its backlog of almost 71,000 discrimination charges. The EEOC adopted a new strategic plan last year that, among other things, year calls for making better use of the EEOC’s limited resources by focusing upon large-scale and systemic discriminatory practices.
Ironically, Alexander, 74, focuses criticism upon EEOC efforts to insure that major law and accounting firms abide by a provision of the Age Discrimination in Employment Act of 1967 (ADEA) that prohibits mandatory retirement. Alexander complains that the EEOC has pursued cases without complaints in which “partners” voluntarily adopted a mandatory retirement age. Two law firms — Sidley Austin LLP and Kelley Drye & Warren LLP — faced EEOC claims over mandatory retirement in recent years. Sidley settled in 2007 and Kelley Drye settled in 2012.
Alexander ignores the fact that the title of “partner” is conferred by some employers for the specific purpose of avoiding compliance with the ADEA, and that the supposed “partner” has none of the duties or responsibilities of an actual partner. He also fails to acknowledge that “voluntary” agreements can be coercive, one-sided and illegal.
Alexander effectively regurgitates the mantra of the U.S. Chamber of Commerce that the EEOC needs to be reigned in. He notes that “[n]umerous federal courts have criticized EEOC’s litigation practices, failure to attempt to resolve cases and avoid court, misuse of authority and reliance on faculty expert analysis, among other complaints.” He said the EEOC’s lawsuits have been so unfounded or mismanaged that it has been required to pay attorney’s fees in ten different cases since 2011. However, Alexander fails to consider whether this criticism is merited or even valid.
A federal judge in Iowa in 2013, for example, assessed millions in attorney fees against the EEOC for bringing a sex discrimination class action lawsuit against the national trucking company, CRST Van Expedited, Inc. The judge dismissed dozens of class members who had suffered egregious sexual harassment – arguably even sexual assault – on the grounds that the EEOC had not tried hard enough to reach a settlement with the company. The so-called “failure to conciliate” defense at issue in the trucking case was flatly rejected in another case by the 7th Circuit Court of Appeals in Chicago, which called it a legal tactic used by employers to tie up the EEOC in useless litigation to avoid the consequences of discrimination. The Chicago court found the defense has no basis in law and, in fact, contradicts a provision of Title VII.
Alexander made his comments at a hearing last week on the nominations of P. David Lopez and Charlotte Burrows to serve as general counsel and member of the EEOC.
It is not likely that Alexander is seriously interested in reducing the backlog at the EEOC. However, if he is, Congress might consider providing additional resources to the EEOC to address the legacy of the past while moving forward with efforts to combat discrimination today.
In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I criticize the U.S. Congress for ignoring the plight of older workers. I argue that the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court, leaving older workers with little or no real protection against age discrimination. I note that Congress has failed for more than five years to pass the Protecting Older Workers Against Discrimination Act, which would reverse a 2009 Court decision that raised the level of proof in age discrimination cases far beyond that of race or sex discrimination cases.