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.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

Hatch Comments on DNC-Related Construction Projects in Milwaukee
14 June 2019
Milwaukee Business Journal
Bernard Quoted on Debt-Relief Settlement with ITT Tech Lender
14 June 2019
Wall Street Journal
Dodd and Daughter Profiled in Wisconsin Golf
13 June 2019
Wisconsin Golf
Brinckerhoff Comments on SCOTUS Ruling in Patent Case
11 June 2019
Intellectual Property Magazine
Review of 2020 Medicare Changes for Telehealth
11 December 2019
Member Call
2019 NDI Executive Exchange
14-15 November 2019
Chicago, IL
Association for Corporate Counsel Annual Meeting 2019
27-30 October 2019
Phoenix, AZ
Foley's Government Contracts Annual Update
16 October 2019
Liviona, MI