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Complain to your elected officials about age discrimination in employment, and they probably will immediately refer you to the Equal Employment Opportunity Commission(EEOC). The process for filing EEOC charges under the Age Discrimination in Employment Act(ADEA) very simple.1  You may complete the form in the office, or a form will be mailed to you.  The .intake worker tells you that the staff will investigate your charge. Then you wait and wait and wait and wait.  Several months later,  you probably will receive a No Cause Finding.  You are not alone. As evident in a report of additional funding for the EEOC, published in the Legal News Network on Oct 4, 2000;  long waiting periiods,   and the  EEOC;s  negative reputation   are well known by the legal profession2.         "Flush with cash from a $37 million budget increase last year, the much-maligned  Equal Employment Opportunity Commission has been under pressure from Congress to prove itself worthy of the raise....Now agency chairwoman Ida Castro, one year into her tenure at the helm, says the EEOC has delivered. At a commissioners' meeting   last week reviewing the agency's performance in fiscal year 1999, Castro boasted that the EEOC is whittling down its backlog of cases, processing new complaints more quickly, and sending more disputes to mediation than ever before......"           " Castro reported that the agency's average  processing time for resolving charges of discrimination is down to 268 days—46 days fewer  than last year..."   Below you will see an analysis of EEOC's own statistics that reveal rapid decline in new case receipts -- a  finding that may explain,  at least in part, the reduction in waiting times.   However,  nothing was said in the report about the consistently low proportions of Reasonable Cause findings,   large numbers  of no reasonable cause determinations and administrative closures.   Since 1992, from 92%(once in 1999) to almost 98% of  people who filed  age discrimination charges received no cause findings.  The graphs, tables and explanations below demonstrate that,  notwithstanding political rhetoric,  the consistently very high proportions of No Reasonable Cause findings appear more convincingly related to gliches in the legal and political systems,   rather than the availability of  staff to investigate the cases.  Therefore.  additional expenditures on EEOC salaries and staff is unlkely to reduce the proportion of No Reasonable Cause findings in ADEA cases.   The EEOC's  Definition of Terms is provided below to facilitate your understanding of the graphs, data tables and explanations.

Definitions of Terms

Administrative Closure

Charge closed for administrative reasons, which include: failure to locate charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, closed due to the outcome of related litigation which establishes a precedent that makes further processing of the charge futile, charging party requests withdrawal of a charge without receiving benefits or having resolved the issue, no statutory jurisdiction.

Merit Resolutions

Charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations.

No Reasonable Cause

EEOC's determination of no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. The charging party may exercise the right to bring private court action.

Reasonable Cause

EEOC's determination of reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. Reasonable cause determinations are generally followed by efforts to conciliate the discriminatory issues which gave rise to the initial charge. NOTE: Some reasonable cause findings are resolved through negotiated settlements, withdrawals with benefits, and other types of resolutions, which are not characterized as either successful or unsuccessful conciliations.

Settlements (Negotiated)

Charges settled with benefits to the charging party as warranted by evidence of record. In such cases, EEOC and/or a FEPA is a party to the settlement agreement between the charging party and the respondent (an employer, union, or other entity covered byEEOC-enforced statutes).

Successful Conciliation

Charge with reasonable cause determination closed after successful conciliation. Successful conciliations result in substantial relief to the charging party and all others adversely affected by the discrimination.

Unsuccessful Conciliation

Charge with reasonable cause determination closed after efforts to conciliate the charge are unsuccessful. Pursuant to Commission policy, the field office will close the charge and review it for litigation consideration. NOTE: Because "reasonable cause" has been found, this is considered a merit resolution.

Withdrawal with Benefits

Charge is withdrawn by charging party upon receipt of desired benefits. The withdrawal may take place after a settlement or after the respondent grants the appropriate benefit to the charging party.

TABLE 1
 

Table 1

CASE RECEIPTS AND RESULTS BY THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN
AGE DISCRIMINATION IN EMPLOYMENT COMPLAINTS
YEAR			1992-1999
	1992	1993	1994	1995	1996	1997	1998	1999
RECEIPTS	19,573	19,809	19,618	17,416	15,719	15,785	15,191	14,141
RESOLUTIONS	19,975	19,761	13,949	17,033	17,699	18,279	15,995	15,448
Settlements	963	774	585	571	452	642	755	816
Withdraw/w benefits	1,537	1,197	990	856	671	762	580	578
AdminClosures	4,957	5,556	5,021	6,571	5,028	4,986	4,175	3,601
NO REAS CAUSE	12,075	11,481	6,872	8,309	11,084	11,163	9,863	9,172
REAS. CAUSE	443	753	474	726	467	726	622	1,281
YEAR	1992	1993	1994	1995	1996	1997	1998	1999
RECEIPTS	19,573	19,809	19,618	17,416	15,719	15,785	15,191	14,141
RESOLUTIONS	19,975	19,761	13,949	17,033	17,699	18,279	15,995	15,448
PERCENTAGES
Settlements	4.8	3.9	4.2	3.4	2.6	3.5	4.7	5.3
Withdraw/w benefits	7.7	6.1	7.1	5.0	3.8	4.2	3.6	3.7
AdminClosures	24.8	28.1	36.0	38.6	28.4	27.3	26.1	23.3
REAS. CAUSE	2.2	3.8	3.4	4.3	2.6	4.0	3.9	8.3
NO REAS CAUSE	60.5	58.1	49.3	48.8	62.6	61.1	61.7	59.4

Data copied from the EEOC statistical report last updated 1/12/2000, published on the internet 9/11/2000.  http://www.eeoc.gov/adea.html  Table was reconstructed for this web site by this writer, to facilitate computations and graphing by Quatro Pro ³
 

Chart 1	RAPIDLY DECLINING CASELOADS Chart 1 shows the number of cases received    plunged from 19,618 in 1994 to 14,141 in 1999 -- a loss of 5,477 cases or  28%
CHART 2	REASONABLE CAUSE FINDINGS ARE CONSISTENTLY VERY SMALL FRACTIONS OF RESULTS. Chart 2 shows that the highest proportion of results is NO REASONABLE CAUSE The second highest group were ADMINISTRATIVE CLOSURES  According to the above definitions, these complainants could not be located,  lost interest in their cases, took their cases to court before completion of the investigation,.  .  The red and green lines consistently laying at the bottom of the grid are Reasonable Cause and Withdrawal with benefits.
CHART 3	Percentages of Administrative Closures Vary Inversely with percentages of  No Reasonable Cause Findings. The green and blue lines mirror each other;  as No Reasonable Cause findings rise,  Administrative Closures decline.

 
 

Fig 4
CORRELATION  COEFFICIENTS

ssdf

Matrix computed and tabulated by this writer with Quatro Pro Computer Program. Coeeficients of Determination,  based upon the Correlation Coefficients of No Reasonable Cause and Administrative Closures,  were computed and added by this writer.
 

EXPLANATIONS,  FINDINGS AND CONCLUSIONS

Charts Nos 2 and 3 illustrate  changes in number of  cases received from year to year.   whether and  the extent to which each variable changes in relation to the others, and  whether changes are in the same or opposite direction to each other. .The statistical procedure for measuring these observations  is correlation.  However, correlations are not evidence that one variable actually causes the other; they are only indices of how much and the direction one item varies with others.

Fig. 4 is known as a Correlation Matrix.  It demonstrates the extent and direction of patterns of varying among several variables.  The larger the number(ie: coefficient); the more the  the variables correlate.,  For example, in Fig. 4,    find "REASONABLE CAUSE" ,  the fourth row on the first column on the left  and follow the row until it intersects with column headed "ADMINISTRATIVE CLOSURES".The number is -0.249, indicating a negligible relationship(in negative direction) between the two variables.

A BETTER MEASURE

Now,  look at the next row,  at "NO REASONABLE CAUSE",  to where it intersects with "ADMINISTRATIVE CLOSURES".  Here you find in red. -895,  a high negative corelation between NO REASONABLE CAUSE and "ADMINISTRATIVE CLOSURES".   However,  a superior. easier to understand measure of joint variation,  is the Coefficient of Determination.  It is the corelation coefficient squared,  and  estimates the percentages of expected replication of the relationship.

Again,   look at "NO REASONABLE CAUSE AND ADMINISTRATIVE CLOSURES.   The number for  Administrative Closures and Reasonable Cause (-)0.249² = 0.06 =6%.  Therefore the probability of replication is about 6% of the time.   The number for "Administrative Closures and "No Reasonable Cause is (-)0.895² = .80,  an impressive  80%  probability of replication of these results..

THE HIDDEN FACTS AND  OBJECTIVES OF AN APPARENTLY WORTHLESS PROGRAM

While the reported shortening of the waiting periods can plausibly be explained by caseload cuts,  no signicant relationship is found with the number of Reasonable cause findings.  Clearly shown is that as  Administrative closures rise, No Reasonable Cause findings decrease.   We can then assume that the more people who  become disgusted with the waiting times and staff lethargy,  lose interest in their cases,  the lower will be the No Reasonable Cause Findings..

KEEPING THE LID SHUT ON A RATTLING PANDORA'S BOX

EEOC Commissioner, Castro's  press release,   promising to reduce the waiting time,  is good politics.  The age-old bureaucratic Funding Excuse Game-- "we are slow in processing charges because we are short of staff.  because we are short of funding" -- tells tax payers to give them more money and they will cut the waiting times and give better service..   Notice nothing is said about more thorough investigations or more Reasonable Cause Findings in ADEA cases. That would open a Pandora's box that policy makers and EEOC bureaucrats are striving to keep tightly closed.

 Appellate court opinions(cases on appeal from federal district courts) are excellent sources for learning about court treatment of  ADEA cases.   They reveal laborious,   expensive  legal procedures  lasting several years, that most of the time ultimately culminate in dismissal of workers'  cases --without trials.   Yes,   the judges dismiss the cases, by a process called Summary Judgment,   without trials.

The following excerpt from 9th Circuit Court in Colman V Quaker Oats   illustrates the formidable burdens of litigating ADEA CASES  There are two smoking guns in this case: (a) -- evidence that a supervisor told employees that in a Reduction in Force,   these workers were called "not young and promotable",  and (b) that two thirds of workers layed off were over age 40.  In addition,  the EEOC found Reasonable Cause in this case. Nonetheless,  the case was dismissed in favor of Quaker Oats because the workers failed to caste adequate doubt on the employer's articulated  legitimate reason for terminating them.

"...29 U.S.C. SS 621 et seq., makes it "unlawful for an employer . . .to fail or refuse to hire or to discharge any individual [who is at least 40 years of age] . . . because of such individual's age." Id. at SS 623(a), 631(a). To establish a violation of ADEA
under the disparate treatment theory of liability, Jeney, Gentile, and Coleman "must first establish a prima facie case of discrimination. If [they do so], the burden then shifts to[Quaker] to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, [they]must demonstrate that [Quaker's] alleged reason for the adverse employment decision is a pretext for another motive
which is discriminatory." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Despite the burden shifting, the ultimate burden of proof remains always on the former employees to show that Quaker intentionally discriminated because of their age"... See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420-21 (9th Cir. 1990   PERRY E. COLEMAN; BARBARA J. COLEMAN, husband and wife, Plaintiffs-Appellants, v. CV-96-0828-PHX-RCB  tHE QUAKER OATS COMPANY, a New Jersey corporation,  Defendant-Appellee D.C. . THE QUAKER OATS COMPANY, a New Jersey corporation Defendant-Appellee  No. 99-158854. ⁴

In this context,  It is not unlawful for employers to refuse to hire or discharge an individual for legitimate reasons other than age.  Therefore,  employers may fail or refuse to hire or to discharge any individual if the given reason is not age.  And the burden remains always with workers to prove that the employers' given reasons  are pretexts(coverups) for age discrimination.  ADEA,  therefore,  instructs  employers in how to explain their employment decisions that pertain to older workers, rather than protect older workers from discrimination.  We could say that the ADEA protects older workers from being told when they are being discriminated against because of their age.

^{A COOLING SYSTEM:  FORESTALLING POLITICAL CRISES WITH ANGER DIFFUSION, BUCK PASSING AND DECEPTION}

Given current judicial practices,  the ADEA serves political needs by  deluding older workers with the notion that they are protected by the law.  Without this law,  crowds of angry, unemployed and under-employed older workers would pressure their elected representatives to end labor market ageism.   The ADEA allows politicians to squirm out of responding to these issues by pointing  to the law and their unhappy constituents to the EEOC.

Since the courts are maintainiNg impenetrable barriers to proving age discrimination,  the EEOC is powerless to intervene.   Moreover,  EEOC attorneys are aware of  judicial attitudes and policiies in ADEA cases. They are unlikely to  risk embarrassment by attaching reasonable cause finding to cases that  are certain to be thrown out by the courts.   Therefore,  pouring more federal  money in the EEOC may , to some extent, speed up the processing,  but is unlikely to increase reasonable cause findings.

Meanwhile,   angry,  freshly discharged or rejected older workers   vent their anger -- within the walls of the EEOC offices -- rather than on  the streets or in  their elected representatives' offices.  They are told their charges will be investigated,  and, for awhile,  they may  feel that something will be done for them. As time lapses,   their anger subsides.  They may find a new job or be distracted by other events in their lives  The EEOC,  therefore is a cooling out agency that delays most complainants from discovering that attorneys shun their cases as well as the filing of cases in the few cases with attorneys.

By providing an official,  professional atmosphere and procedures for cooling out rage,  and by delaying discovery that the courts are unlkikely to help complainants,  the EEOC provides a cooling system forestalling social and political discord.   Given that policy makers will not be motivated to improve conditions for older workers until they are compelled to respond to a crises ensuing from these issues, ,  the EEOC is maintaining rather than eliminating labor market ageism.

^{1.  The Age Discrimination In Employment Act of 1967.  29 USC 621 et seq.}

^{2    Greene,   Jena,   EEOC WHITTLING AWAY BACKLOG    Legal Times, Law.com,  Oct.4, 1999.
    URL http://www.lawnewsnetwork.com/stories/A6930-1999Oct4.html}

^{3.   AGE DISCRIMINATION IN EMPLOYMENT ACT CASES(ADEA)CHARGES FY 1992-FY 1999.
      The Equal Employment Opportunity Commission web site.
   URL  http://www.eeoc.gov/stats/adea.html}

.4. Coleman, Perry E, Barbara V The Quaker Oats Company. 9th Cir., No. 99-15885, 6, 7.
     Argued and submitted,  Feb. 17, 2000
  URL   http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/9th/9915885.html
 
 

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