The EEOC’s Quiet Transformation to Business Service Provider

At one time, the EEOC was seen as an opponent of big business, a champion of powerless workers who were denied equal rights in the workplace.

Not so much today.

Is it a coincidence that the EEOC recently got its first big budget increase in years and was applauded by U.S. Chamber of Commerce  – no friend to workers – for focusing on “compliance assistance” rather than enforcement and litigation?

In the past decade, the EEOC has quietly shifted its emphasis away from litigation to “compliance” through education, training and mediation.

Bloomberg recently reported that Janet Dhillon, the nominee to chair the EEOC, and Sharon Fast Gustafson, the nominee to serve as EEOC general counsel, hope to focus more energy on conciliation and mediation in the years ahead. Since the pie is only so big, this  means the EEOC will focus even less energy on litigation, which has been declining for years.

One can see why the EEOC’s new focus benefits the EEOC,  which has endured withering criticism in recent years from members of the U.S. Congress and the federal courts for filing lawsuits against large employers. It is unlikely that anyone  in Congress or the federal courts will mourn or even notice the EEOC’s absence. Yet, the EEOC’s shift in focus is not likely to address systemic and/or intentional discrimination by employers.

The EEOC acknowledges that it is responsible for “enforcing” the nation’s employment discrimination laws. The dictionary definition of enforcement is “the act of compelling observance of or compliance with a law, rule, or obligation.” Mediation does not compel compliance with the law except in the sense that it is  a free and painless exit strategy for companies that have engaged in illegal discrimination.

The EEOC’s mediation program, which began in the 1990’s, allows discriminators to avoid the expense, notoriety and  potentially catastrophic risk of a  court proceeding. Mediation is confidential so employees back home and the general public are kept in the dark.  And it’s free.

The EEOC quotes several “satisfied customers” on its web page – all employers. The agency says discrimination victims also give mediation a thumb’s up. However, this claim should be viewed in context.

As this blog has noted in the past, mediation works far better for employers than victims. Many (if not most) discrimination victims have no legal counsel, no clue about the real “value” of their case, and are willing to settle for the equivalent of small change because they’ve lost their job and something is better than nothing.   Moreover, the alternative to mediation is the federal court system, where judges with lifetime tenure treat discrimination victims with thinly disguised disdain and overwhelmingly favor employers in their rulings. (To some extent, the EEOC’s shift away from litigation is a byproduct of a  U.S. federal court system that is antiquated, inefficient and unfriendly to workers.)

It would be great if the EEOC’s new focus led to greater compliance with the nation’s civil rights laws … but there is no evidence that it will.

On its web site, the EEOC  advertises  “no cost outreach and education programs” to public and private sector employers.It is implied that employers would not discriminate if they had knowledge of U.S. discrimination laws.  In fact, many employers – and all large employers  – have professional human relations departments and legal staffs that are well versed in the law. They discriminate for a reason. Texas Roadhouse hires young wait staff to portray a fresh image and Google recruits recent graduates who are willing (and able) to devote all of their waking hours to Google.

Clearly,  Texas Roadhouse and Google, with teams of highly paid attorneys on staff, know U.S. discrimination laws.

In recent months, the EEOC began offering  “in depth” and on-site training “tailored to an employer’s needs” for a low-cost fee.  This can’t hurt, of course, but there are private providers who already do this work. And it’s one thing  to train workers to get along in a diverse workforce but it’s quite another to go after  systemic, intentional and damaging  age discrimination in hiring, which most adversely affects  women.

Meanwhile, the EEOC refused a request to release the curriculum of its training program, stating the information is only available to paying customers (employers).

Move Over Dred Scott: NY Appeals Court Upholds Age Discrimination by Feds

Unfortunately, many federal court decisions live in infamy.

Now the U.S. District Court of Appeals for the Second Circuit in New York City has added a new one to the list.

A three-judge panel ruled last week that a discriminatory federal hiring program does not violate the U.S. Constitution’s Equal Protection Clause because it involves age discrimination, rather than race or sex discrimination.

The Equal Protection Clause states the government shall not “deny to any person within its jurisdiction the equal protection of the laws”.

Former President Barack Obama signed an executive order in 2010 creating the U.S. Office of Personnel Management’s Pathways Recent Graduates Hiring Program. The program, which took effect in 2012, created a back-door exception to the Age Discrimination in Hiring Act of 1967, allowing federal agencies to limit hiring to applicants who graduated within the past two years. The Pathways program has had an overwhelmingly disparate impact on older workers, who have been barred from applying for 100,000 jobs and counting. This is clear disparate impact discrimination.

The 2nd Circuit panel states in its decision that the federal government proffered a “rational basis” for allowing age discrimination under the Pathways Program – “to replenish a workforce containing an evergrowing number of Federal employees near[ing] retirement age with students and recent graduates.”  Moreover, the panel said the government’s rationale is connected to a “legitimate” government purpose.

How can it be “rational” and “legitimate” to discriminate based on a trait (age) that is not relevant to a job and over which group members have no control?

Continue reading “Move Over Dred Scott: NY Appeals Court Upholds Age Discrimination by Feds”

When the Alleged Abuser Refuses to Leave …

The lack of legal protection from workplace abuse has consequences, as can be seen in the cases of two politicians who have ignored calls to resign.

Utah County Commissioner Greg Graves is weathering a storm of protest after an investigation concluded in December that he was “widely viewed as a workplace bully, dishonest, demeaning, intimidating, threatening and explosive.” According to The Daily Herald, Graves is ignoring calls to resign, while working mainly from home. The investigation was prompted after a worker complained that she was sexually harassed by Graves.

Meanwhile, State Rep.  Raul Grijalva, D-AZ, is undeterred by a flap involving his use of taxpayer funds in 2015 to pay a $48,395 settlement to a female employee in Washington, D.C.  who allegedly threatened to sue him over frequent drunkenness and a hostile work environment.

The flap generated a letter to the editor in a local newspaper calling for Grijalva’s resignation but otherwise seems to have had little impact in Southern Arizona. Grijalva is seeking re-election to Congress to his eighth term in Congress.

The settlement was initially disclosed by The Washington Times in December when it reported on how the Congress uses taxpayer money to quietly settle sexual harassment and other worker complaints against members of Congress.  Grijalva denied the settlement involved sexual harassment but said he was constrained from providing “further details on this matter” by a confidentiality agreement in the settlement.

According to the Times, a top Democratic staffer, after only three months on the job, hired a lawyer and threatened to sue Grijalva “for being too often drunk at work and creating a hostile work environment.” Grijalva’s office stopped paying the woman until she agreed to settle the matter for five additional months of pay. Continue reading “When the Alleged Abuser Refuses to Leave …”

Trump’s Revolving Door May Hit Him in the Behind

Former Secretary of State Rex Tillerson

It does not speak well for the employer when the employer fires multiple employees who were handpicked for their positions.

In the past year, President Donald Trump has fired a long list of high-ranking appointees, including Secretary of State Rex Tillerson, advisor (and reality TV star) Omarosa Manigault, Chief Strategist Steve Bannon, FBI Director James Comey, numerous members of Trump’s White House communication’s staff, etc.

Employers are  at least partly responsible when an employee does not succeed in a job.

Continue reading “Trump’s Revolving Door May Hit Him in the Behind”

Execs to Challenge Sexual Harassment in Advertising Industry

A group of 180 senior female advertising executives is partnering with Time’s Up to address sexual harassment and systemic inequality in the advertising industry.

In a letter of solidarity posted on the Time’s Up web site, the ad executives state:

“Hey, Sisters, we know  … As women in senior leadership positions in advertising, we’ve agreed that we have the power to change this business we love until it looks more like the industry we want to lead.”

They write that “old power dynamics are a lot of the problem. Power that blurs the lines between what you get to do/have/touch/ask for/expect and what you don’t.” Continue reading “Execs to Challenge Sexual Harassment in Advertising Industry”

Survey Finds the American Workplace is Toxic

A survey by a market research group has found that about half of American workers – 77 million people – are affected by workplace bullying.

The survey by  Radius Global Market Research found that 60 percent of American workers report having witnessed a coworker being bullied.

Radius Vice President Jill Gress notes that toxic work environments can severely impact employee productivity and job satisfaction.

Here are some additional survey results:

  • Despite the proliferation of digital channels, such as email, texting and social media, 81 percent of respondents said they experienced or witnessed bullying in person;
  • The most common form of mistreatment is being ridiculed or reprimanded in front of other staff (29 percent), followed by being harassed based on looks or body type (23 percent), work attire (23 percent), pressured to take on a specific task (23 percent) or coerced to work extra hours (22 percent).

Continue reading “Survey Finds the American Workplace is Toxic”

Contrary to Pres. Trump, Happy Days Are Not Here Again

President Donald Trump’s State of the Union address this week did little to reassure American workers or retirees that happy days are here again.

Workers today are subjected to working conditions that create health endangering stress and lead to incivility, bullying and worse. They can be and often are fired without cause. Age discrimination in hiring is so prevalent that astute job seekers over the age of 30 omit any indicator of age from their resumes.

Meanwhile, 53 million Americans are “independent workers” – about 34 percent of the total workforce. It is predicted that most American workers will be freelancers in 2027. Robots have taken over manufacturing jobs and now threaten to replace lawyers, radiologists and software designers, among others. Not only do freelancers lack job security, but they get lower wages and no benefits or pensions.

Trump ignored ‘independent’ workers and retired Americans and threatened federal employees.

Continue reading “Contrary to Pres. Trump, Happy Days Are Not Here Again”

New Federal Court Lobbyist – Restaurant Law Center

The restaurant industry is taking its cue from the U.S. Chamber of Commerce , which has been a remarkably successful behind-the-scenes lobbyist in the federal court system for years.

The National Restaurant Association has launched a Restaurant Law Center to “protect and advance” the restaurant industry.

In its first action, the Restaurant Law Center has asked the U.S. Supreme Court to overturn a 2016 ruling by the U.S. Court of Appeals for the Ninth Circuit in Oregon Restaurant and Lodging et al v. Perez, et al  that prohibits employers from forcing tipped employees to share gratuities with non-tipped staff. The Restaurant Law Center wants to void a 2011 rule by the U.S. Department of Labor that was upheld by the 9th Circuit.

The Oregon decision conflicts with an earlier decision by the U.S. Court of Appeals for the Fourth Circuit and creates a split in the federal circuits that can only be resolved by the nation’s high court.

The Restaurant Law Center says it is now “managing” the Oregon restaurant case.

Continue reading “New Federal Court Lobbyist – Restaurant Law Center”

Ideas for Ending Sexual Harassment in the Workplace

Tracey Spicer, an Australian broadcaster and author, asked members of her vast social media network to suggest ways to end sexual harassment in the workplace.

And she got some interesting responses that are worthy of consideration here. The list was published recently by the web site of an Australian lifestyle network called NineHoney. 

What follows are just a few of the ideas. Those that I deem particular worthy are in bold:

  • Clearly define what comes under the umbrella of sexual harassment;
  • Teach children and parents about consent as part of a school program;
  • Re-frame the concept of what it is to be a good man – teach men to be better bystanders;
  • Empower HR Departments to take action if women are at risk;
  • The board and top executives should commit to a zero tolerance policy;
  • Sexual harassment should be a standing agenda item at board/management meetings.

Continue reading “Ideas for Ending Sexual Harassment in the Workplace”

The EEOC’s Surprising New Fan – The U.S. Chamber of Commerce

After years of criticism, the U.S. Chamber of Commerce  is now applauding the EEOC for focusing on “compliance assistance” rather than enforcement and litigation.

Randel K. Johnson, a senior vice president of the Chamber, “commends” the EEOC for “identifying efforts to focus resources on compliance assistance” in a letter submitted to the EEOC in connection with a draft of the EEOC’s proposed new strategic plan for 2018-2022. The Chamber is a conservative, profit-making group that lobbies the legislature and federal courts on behalf of business interests. It consistently opposes pro-labor measures.

The EEOC  is seeking comment on a draft of its proposed strategic plan until 5 p.m .ET on January 8, 2018.  To weigh in, go here or to https://www.regulations.gov/document?D=EEOC-2017-0005-0001.

In the letter, Johnson refers to the Chamber’s 2014 report to Congress in which the Chamber criticized the EEOC for  “enforcement and litigation abuses.” The Chamber’s report came at a time when the EEOC was litigating the fewest number of cases in modern history and had completely ignored a major increase in age discrimination cases during and since the Great Recession.  In 2013, the EEOC had  filed 147 lawsuits, compared to 416 in 2005.  But the Chamber’s report was an effective public relations ploy and seems to have had a big impact on the EEOC, which reduced its litigation efforts even further.  The EEOC filed only 114 lawsuits in 2016 (of which only TWO contained age discrimination claims). Continue reading “The EEOC’s Surprising New Fan – The U.S. Chamber of Commerce”