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).
  • Nearly 60 percent of respondents said bullying was most often committed by coworkers, followed by a manager (39 percent) or company executive (23 percent). One in five experienced bullying from a subordinate.
  • Most targets of bullying confront the offender or discuss the issue with an HR representative but nearly one in four take no action.
  • Of workers who specifically experienced or witnessed sexual harassment in the workplace, 44 percent reported the problem remains unresolved.
  •  One in three workers admitted to behaving in ways that are considered bullying, while not intentionally meaning to be hurtful or insensitive.

Radius, a global market research company based in New York City, says its “Bullying in the Workplace” survey was conducted online within the United States from September 21 – October 9, 2017 among 1,025 adults aged 18+. The sample is representative of the U.S. adult population.

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”

Appeals Court Rules Job Applicants Can’t Sue for Systemic Age Discrimination

A federal appeals court has ruled that job applicants cannot sue an employer under the Age Discrimination in Employment Act for promulgating policies and practices that discriminate in hiring on the basis of age.

The ruling is a major setback for victims of age discrimination in hiring, which for years has been widespread, overt and unaddressed.

The full 11th Circuit of Appeals in Atlanta, in a ruling dated Oct. 5, ruled the Age Discrimination in Employment Act of 1967 “makes it clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no “status as an employee.’” The ruling overturns an earlier 2-1 ruling by a three-judge panel holding that the ADEA permits older job applicants to sue for age discrimination in hiring. The 11th circuit has jurisdiction over cases in Alabama, Florida and Georgia.

The ruling graphically illustrates the lack of protection afforded to older workers compared to victims of other types of employment discrimination. Job applicants are permitted to file so-called disparate impact lawsuits under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin.

The ruling came in the case of Richard M. Villarreal who, beginning at age 49, applied seven times over the Internet for a position as a territory manager at R.J. Reynolds Tobacco Co.   He was never hired and he was never told why his applications were rejected.

The 11th Circuit’s ruling deprives older job applicants of a way to counter modern-day age discrimination in hiring, including the use of covert Internet screening tools.

After being contacted by a whistle blower, a  law firm told Villarreal that Reynolds had contracted with two recruiting firms to develop internet screening tools to target young job applicants for hire and screen out applicant having eight to ten years of experience.

Villarreal filed suit in 2010 against Reynolds and a staffing firm, Pinstripe, Inc., alleging disparate treatment and disparate impact discrimination.

The disparate treatment theory requires the plaintiff to prove the employer engaged in intentional age discrimination whereas the disparate impact theory argues the employer adopted a seemingly neutral policy or practice that had a disproportionate and adverse impact upon older job applicants. The plaintiff is not required to show intentional discrimination under the disparate impact theory.

Villarreal’s case now hangs by a thin thread.

The appeal’s court affirmed the lower court’s dismissal of Villarreal’s disparate treatment claim because it was filed after the statute of limitations expired. The Court agreed that Villarreal failed to exercise “diligence’ because he did not ask Reynolds why he was not hired in 2007. The appeals court remanded the case back to the lower court so Villarreal could pursue a  “continuing-violation” theory that would render his 2007 claim timely.

The appeals court said the ADEA does not permit job applicants to use the so-called disparate impact theory, which challenges company-wide employment policies and practices that adversely affect older job applicants. The court refused to defer to the Equal Employment Opportunity Commission’s argument that the ADEA does permit disparate impact lawsuits “because we do not defer to an agency’s interpretation of a statute when the text is clear.”

The ruling eliminates any means of redress for thousands of older job applicants who applied for positions at Reynolds only to have their applications diverted into a digital trash can sight unseen.

The case is Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602,(11th Cir.).

Federal Courts Protect Big Law Firms From Competition

justice-scale-761665_1The sad reality is that most victims of illegal employment discrimination have no realistic means of redress.

This is because our court system is absurdly antiquated and has not changed appreciably since it declared itself the place where the buck stops in Marbury v. Madison (1803).

Victims of employment discrimination who are poor or middle class often can’t find an attorney who will take their case because the cost is too high in light of the potential damages. And they can’t effectively represent themselves because federal and state courts have adopted obscure and unnecessary rules and procedures that seem to be designed to keep them out.

There is virtually no public acknowledgement of this problem because apparently it is too complicated or un-glamorous for mainstream media.

I would like to applaud the heroic efforts of an organization that is trying to change this sorry state of affairs – the National Association for the Advancement of Multijurisdictional Practice (NAAMJP) of Los Angeles, CA.  The NAAMJP  has filed lawsuits in several jurisdictions challenging parochial bar admissions rules.

NAAMJP wants to ensure that, once licensed, a lawyer in good standing can practice in any state.

Repealing anti-competitive and  anti-consumer bar admission rules would increase competition among legal service providers and lower costs for consumers. 

The real reason for requiring licensed lawyers to take another state’s bar exam is to discourage them from practicing in that state. In other words, the state bar association is misusing the law to prevent competition. The defenders of the status quo are large and powerful law firms in the state who lobby the legislature and contribute to political campaigns. They are abetted by federal district court judges who want to maintain complete control over their fiefdoms.

According to the NAAMJP, lawyers in the European Union and Canada do not face the kind of  geographical licensing restrictions that are imposed upon U.S.  lawyers (and consumers).

Nevada, for example, requires out-of-state lawyers to take the entire bar exam (a two-day test) as if they had just graduated from law school. This protects a handful of large and complacent Nevada law firms from competition (particularly from California) and enables the state court system to exact high fees for each case filed by an out-of-state attorney or firm. All of this drives up the cost and availability of legal services in Nevada. This is a form of institutionalized corruption that is completely indefensible and yet continues year after year.

Lawyers from around the country regularly contact me for advice about workplace bullying and age discrimination but I cannot represent clients in Nevada because I am licensed in Pennsylvania. Who benefits?  Attorneys in Nevada who know far less about this area of the law than I do.

For anyone who is interested,  The ABA Journal has a story this month about the challenges faced by the NAAMJP  in federal courts, which thus far have shown themselves to be intent upon maintaining the current anti-consumer practices.

The NAAMJP contends that barriers to admission erected by state bar associations violate, among other things, the First Amendment’s guarantee of freedom of association and speech.

Wells Fargo’s Senior Management Must Be Held Responsible for Bank Fraud

The arrogance of Wells Fargo was apparent when it announced earlier this month that it would phase out a questionable “sales goals” program in Jan. 2017. Those sales goals created the incentive for 5,300 Wells Fargo employees (since fired for ethical violations) to create some 2 million fraudulent customer bank accounts. The bank announced Wednesday that it will discontinue the sales goals by the end of the week. Meanwhile, eEx-Wells Fargo employees  filed a class action lawsuit seeking $2.6 billion in damages. Finally, on Oct. 12, 2016, John Stumpf  abruptly “retired.” Stumpf reportedly did not get any severance but will retain more than $100 million in vested stock, plus accumulated pension and 401(k) benefits exceeding $24 million –  Ed.

A few years ago, I opened an account at a local branch of Wells Fargo Bank for a limited purpose. Once that purpose was accomplished, I intended to immediately close the account.

A young bank officer who facilitated the transaction persuaded me to keep the account open. He assured me that he had set up my account in such a way that I would never lose the account balance of $100 deposit through the churning of bank fees.

Of course, in less than a year, all the money was gone, usurped by Wells Fargo in bank fees. Meanwhile, I was assaulted  with notices, offers and credit card applications. One paper in this mountain of paperwork may have contained an obtuse notice that my account was being transferred to a different charge-bearing vehicle. I complained to the bank, which said it was my fault, and then I put the matter behind me, chalking it up to yet another example of pervasive and persistent financial fraud in America.

So this week, it was with interest that I read about the Wells Fargo’s practice of using unrealistic sales goals to pressure employees to set up phony accounts and cheat customers. The bank has fired 5,300 employees for ethical violations and announced it would eliminate all product sales goals in retail banking, effective January 1, 2017.

Seriously?

Remember the financial crisis of 2007, which propelled the world into a deep recession, from which many will never recover?  How much of the Wall Street meltdown was due to unethical practices promulgated by massive financial institutions ( like Wells Fargo) which required workers to lie, cheat, and steal  in order to remain on the payroll?

Why is John Stumpf, Chairman and CEO of Wells Fargo, still working there?

Senior management of Wells Fargo is responsible for the fraud on its customers, not the underlings with families to feed in an unforgiving economy.  The bank employees who were fired for ethical violations are culpable and shouldn’t be working in a position of trust. But Wells Fargo created the incentive for the unethical behavior  of its employees by adopting unrealistic sales goals to increase profits year after year.  Indeed,  Wells Fargo plans to continue enforcing these “product sales goals” until January 2017.

If America permits the senior management of Wells Fargo  to scapegoat its own employees and avoid responsibility for financial fraud, aren’t we inviting another financial meltdown?  Haven’t we learned anything?

Wells Fargo CEO John Stump needs to go. IMMEDIATELY!

The bank has been fined $100 million by the U.S. Consumer Finance Protection Bureau and ordered to pay back consumers harmed by its actions.

Wells Fargo & Company, headquartered in San Francisco, is one of the nation’s biggest banks. It has $1.9 trillion in assets and, according to the company, serves one in three households in the United States. Wells Fargo & Company was ranked No. 27 on Fortune’s 2016 rankings of America’s largest corporations.

Outfoxed: Carlson Settles for $20 Million & Apology

Former Fox News Anchor Gretchen Carlson  has received among the largest payouts in history  – $20 million – to settle a sexual harassment case.

Ironically, the case was settled not by the defendant, former Fox News chairperson Roger Ailes, but by his former employer, 21st Century Fox, the parent company of Fox news.  Ailes, 76, won’t pay a dime. (Not only that,  Ailes received a $40 million payout from Fox when he left his job under pressure in July.)

It is speculated Tuesday that Carlson, a former Miss America,  secretly tape recorded Ailes, whom she alleged refused to renew her contract after she refused to have sexual relations with  him.

The largest sexual harassment award in history is believed to have occurred in 2011 when a federal jury in Tennessee awarded $95 million to Ashley Alford, a young employee who was  sexual  harassed and physically assaulted by a supervisor  at the rent-to-own company, The Aaron’s Inc. The award included $15 million in compensatory damages and $80 million in punitive damages. U.S. District Court Judge J.  Michael Reagan subsequently reduced  the amount the jury awarded Alford on the sexual harassment claim from $4 million to $300,000 pursuant to a federal statutory cap. on damages under Title VII of the Civil Rights Act. Judge Reagan also vacated $50 million of the punitive damages award. That still left Alford with about $41 million.

In addition to the monetary award, 21st Century Fox issued a press release stating:  “We sincerely regret and apologize for the fact that Gretchen was no treated with the respect and dignity that she and all of our colleagues deserve.”

Meanwhile, two other women at Fox reportedly were offered settlements after complaining about sexual harassment.

Carlson’s complaint appears to have prompted the sudden departure of Fox personality Greta Van Susteren from the network on Tuesday. Susteren had publicly defended Ailes and accused Carlson of retaliating against Ailes after  being fired due to poor ratings.

Carlson received little support generally from her former Fox colleagues. In addition to Van Susteren, more than a dozen top personalities at Fox News including Sean Hannity, Neil Cavuto and Kimberly Guilfoyle defended Ailes against claims of sexual misconduct.

Taxpayers Subsidize Age Discrimination by Feds

It is ironic that our nation’s largest employer, the U.S. government, is one of the worst offenders with respect to age discrimination in hiring.

President Barack Obama in 2010 unilaterally signed an executive order that allows federal agencies to by-pass older workers, ignore merit and qualifications, and to hire “recent graduates” and “entry-level jobseekers” for permanent federal jobs. Since the vast majority of recent graduates and entry-lvel job seekers are under the age of 40, Obama’s order has an obvious discriminatory impact on older workers. Yet, there was no public outcry when Obama signed this order – not from the AARP or the American Civil Liberties Union.

Obama couched his action in terms of increasing diversity in federal hiring but he offered no evidence that it was necessary to resort to age discrimination, which is illegal under the Age Discrimination in Employment Act of 1967. Obama’s order operates as an exemption to the ADEA. Furthermore, Obama’s order discriminates against older African Americans and Hispanics, as well as older whites.

Not surprisingly, older applicants face a mountain of discrimination when applying for lucrative federal positions.

James W. Moeller, then 57, filed a federal age discrimination lawsuit last year after he applied for several positions an attorney at the Federal Energy Regulatory Commission (FEC) in Washington, DC. He was never  granted an interview despite the fact that he is a Harvard Law School graduate with 30 years of federal energy regulatory experience.  Moeller has represented clients before the FEC, the U.S. Nuclear Regulatory Commission and the Maryland Public Service Commission. He is a leading scholar on federal energy regulatory law, having published numerous scholarly articles on the topic.

Meanwhile, the FEC granted interviews to younger, less qualified applicants, who were subsequently hired.

How come a guy like Moeller who objectively has superb qualifications could not even get an interview with the FEC? Could it be … uh … age discrimination?

Moeller’s  lawsuit states the FEC “claims that it cannot discriminate on the basis of age because it has no knowledge of the ages of its job applicants. This claim is based on the fact that job applicants generally do not include their dates of birth on their resumes.”  Moeller argues – and basic common sense dictates – that employers can infer the age of a job applicant based upon the applicant’s job history.

It is arguably a much greater failing for the federal government to discriminate against older workers because  we are shareholders in the enterprise through our tax dollars. In addition, discrimination by the federal government sends a signal to the private sector that age discrimination is acceptable and will be tolerated.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I explore other ways in which all three branches of the federal government have overlooked, abetted and trivialized age discrimination in employment. I also show how the ADEA provides far less protection for older workers than is provided by Title VII of the Civil Rights Act to workers on the basis of race, sex, national origin, color and religion.

*See Moeller v. Bay, Case No, 1:15-cv-00724 (2015) U.S. District Court for the District of Columbia.

Rough Justice? Case Filed a Day Late

What a difference a day makes.

The U.S. Court of Appeals for the Sixth Circuit in Ohio recently upheld the dismissal of a lawsuit filed by an IRS criminal investigator in 2012 who charged he was denied several promotions because he is a white male. The grounds for dismissal were that Frank Rembisz filed his civil rights lawsuit one day after the expiration of a 90-day statute of limitations.

Here’s what happened.

Rembisz filed a discrimination complaint with the U.S. Treasury Department that he was denied several promotions because he is a white male. The Treasury Department mailed him and his attorney a “final notice” that his complaint was denied on March 15, 2013. Rembisz had 90-days after receipt of the final notice of dismissal to file a civil lawsuit in federal court.

Rembisz filed his lawsuit on June 21, 2013 and the Treasury Department filed a motion to dismiss the case on the grounds that it was filed after the expiration of the 90-day statute of limitations.

Rembisz argued that the case was timely filed because the clock did not start ticking until his attorney received the final notice on March 25, 2013.

A three-judge panel on the appeals court disagreed  and affirmed the lower court’s decision to dismiss Rembisz’ case.

The appeals court wrote that its “presume(s)” the 90-day limitations term began running on the fifth day following the mailing of the right to sue notice. Moreover, the appeals court said the statute of limitations is triggered when the complainant – not his or her attorney – receives the final notice.

Rembisz  also submitted an affidavit from his attorney’s secretary stating that she received the Treasury Department’s notice that Rembisz complaint had been denied on March 22, 2013.

But the appeals court said “that still makes his complaint late by one day.”

The case is Rembisz v. Lew, No. 15-2279 (6th Cir. 2016).

Roadmap to Stop Harassment in the Workplace

In the wake of the controversy surrounding Fox CEO Roger Ailes, it is worth reviewing how to handle the problem of  harassment in the workplace.

Ailes, 76,was recently forced out of his position at the television network that he helped found because of complaints of sexual harassment that allegedly dated back for decades.

The EEOC created a select task force in January 2015 to study the general problem of workplace harassment, including sexual harassment. The task force, which included experts from around the country, issued a report last month recommending that employers actively promote an organizational culture of respect and civility.

The task force recommended:

  •  Employers should have a comprehensive anti-harassment policy that prohibits harassment based on any protected characteristic, and which includes social media considerations.
  • The anti-harassment policy should include details about how to complain of  and how to report harassment, must be communicated frequently to employees, in a variety of forms and methods.
  • Employers should provide reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
  • Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
  • Employers should periodically “test” their reporting system to determine how well the system is working.
  • Employers should devote enough resources to insure that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.

Specific details about the report are available on the EEOC web site.

Almost a third of the 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment, including charges of unlawful harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion. And that is the tip of the iceberg. The EEOC reports that three out of four individuals who experienced harassment did not talk to a supervisor, manager, or union representative about the harassing conduct because they feared disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.

Penalty for Sexual Harassment Rarely Fits The ‘Crime’

Note: News outlets reported July 21, 2016 that Ailes will receive a $40 million buyout from Fox and a new job as an “advisor” to the network.

What should the penalty be for a manager who allegedly abused his power for decades by sexually harassing female subordinates?

Disgrace? Dismissal? Banishment?

Well, that does not appear to be what is happening in the case of Roger Ailes, the chief executive officer of Fox News who allegedly sexually harassed female subordinates since the 1960s.

According to the Drudge Report, 21st Century Fox, the corporate parent of Fox News, is negotiating an exit package with Ailes that includes a $40 million buyout. Other outlets report Fox wants to keep Ailes on the payroll as a consultant. In other words, the consequences of Ailes’ allegedly abusive behavior may consist of a fat check and a change of job title.

One reason that sexual harassment remains epidemic in the American workplace is the lack of any serious consequences for the abuser.  Victims of sexual harassment lose their dignity, sense of trust and  peace of mind. Many lose their jobs and financial security. In the rare instance that a sexual harasser is held to account, the consequences range from a pat on the hand to a quiet suggestion that it is time to move on.

Women in the workplace are well aware they lack any real protection from sexual harassment and this knowledge understandably deters them from reporting the problem.

Ailes woes began a few weeks ago when Gretchen Carlson, a former news anchor, filed a lawsuit claiming that Ailes fired her because she refused to have a sexual relationship with him. Ailes, 76, vigorously denied the accusation. Some observers (including former co-workers) dismissed Carlson’s complaint as a parting shot by an aging beauty queen whose afternoon TV show suffered from poor ratings.  (Fox is presently trying to move Carlson’s lawsuit out of federal court and the public eye into a closed-door arbitration proceedings.)

The problem for Ailes arose because other women began complaining about his allegedly abusive behavior.  Carlson’s attorney, Nancy Erika Smith, said that at least a dozen women contacted her firm after Carlson’s lawsuit was filed complaining of similar harassment by Ailes. The final blow appears to be a story by New York Magazine stating that Fox News star Megyn Kelly told a law firm hired to investigate Carlson’s complaint that Ailes had sexually harassed her a decade ago.

Fox had no choice but to do something.  When an employer receives a complaint that a manager is sexually harassing a subordinate, the employer is on notice and must act to prevent future harm (including retaliation) or it will risk serious damages.  However, the law does not require the employer to actually penalize the harasser.  So Fox’s game plan appears to be this – remove Ailes from his supervisory position, while keeping him happy and on the job.