Go Figure: The EEOC Clears Itself on Discrimination Charges

05 August 2013 Labor & Employment Law Perspectives Blog

Yes, the title of this article is right. The EEOC recently issued a decision finding that it — the EEOC — did not discriminate on the basis of age when it chose a 35-year old applicant over a 71-year old applicant (and we will just tactfully ignore questions about the EEOC’s having the ability to decide whether it engaged in discrimination). Not only that, but the EEOC’s reasoning in its decision provides great ammunition for an employer defending against charges filed with the EEOC alleging discrimination in as to a hiring or promotion decision.

In Hardwick v. EEOC , Ms. Hardwick, who was 71 years old at the time, applied for a job as an EEOC investigator. The EEOC instead selected an applicant who was 35 years old on the basis that the younger applicant had attended law school, even though a law degree was not required for the job. Ms. Hardwick herself was no slouch applicant and met the qualifications for the job. She had an undergraduate degree with a major in labor and employment and a minor in employment law. She also had a certification in paralegal studies and had experience as a caseworker for the Missouri Division of Family Services. Interestingly, Ms. Hardwick claimed she was also qualified for the job because of “her experience as a pro se litigant.”

The EEOC concluded that the decision to hire the substantially younger employee was not age discrimination because Ms. Hardwick failed to prove that “no reasonable person” could have selected the much younger applicant over her for the job. The EEOC also held that employers’ decisions as to “the assessment of the candidates’ qualifications” should not be “second guessed.”

These are the same types of arguments employers routinely make in responding to charges filed with the EEOC that allege discrimination as to a hiring or promotion decision. So keep this decision in your back pocket (or a nearby file) for the next time you are filing a position statement with the EEOC.

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