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.

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”

Solutions Exist to End Workplace Bullying; What is Lacking is the Will to Act

What to do about workplace bullying?

The Boston Globe published an article on the problem of workplace bullying recently that focused on a proposed state-by-state solution that has been touted since 2001 by Gary Namie of the Workplace Bullying Institute and Suffolk University Professor David R. Yamada, author of the proposed  Healthy Workplace Bill (HWB).  Originally introduced in California in 2002, the HWB  has been considered in some form by more than two dozen states. If Massachusetts eventually passes the HWP, that only leaves workers in 49 states,  five territories and the District of Columbia without protection from workplace bullying.

Is this really where all the din and struggle of the past decade has gotten us? The United States is falling even farther behind other western democracies, some of which acted decades ago to protect workers from bullying.

The Globe article also perpetuates the common misconception that all workplace bullies are sadistic bosses and mean-spirited co-workers. In fact, much of the problem can be attributed to unscrupulous employers that use bullying tactics strategically to expel older workers and workers who  demand  better working conditions or a legal right (i.e., overtime pay). The absence of anti-bullying laws and regulations in the United States leave these bottom-of-the-barrel employers free to cut corners and evade their legal responsibilities. Taxpayers are left to pick up the tab in the form of higher social welfare costs.

The Globe article, like so many others, fails to note that there are many possible approaches to the problem of workplace bullying in addition to the HWB. Continue reading “Solutions Exist to End Workplace Bullying; What is Lacking is the Will to Act”

Age Discrimination in Employment Became More Visible in 2017

Victoria A. Lipnic, the acting chairperson of the EEOC, earlier this month called for a “thorough review” of the Age Discrimination in Employment Act of 1967 (ADEA).

The chairperson of the U.S. Senate Special Committee on Aging, Sen. Susan Collins, questioned why age discrimination is treated differently under the law than discrimination on the basis of race, sex, religion, color and national origin.

The above statements represent a sea change in thinking about age discrimination in employment, which has long been epidemic, unaddressed and invisible in American society.

It is also significant that an attorney for the AARP suggested in 2017 – for the first time – that the ADEA is not up to the task of addressing age discrimination. The AARP claims to advocate for Americans over the age of 50 but has had little impact on age discrimination in employment in the past 50 years, while reaping billions from licensing deals with medical, internet and travel providers that exploit its supposed 38 million membership base  Over the years, the AARP issued press releases (a.k.a.marketing materials) about surveys and studies and a tiny AARP legal advocacy team filed occasional lawsuits or “friend of the court” briefs in age discrimination cases.  But the AARP never put its money where its mouth is, which raises questions about whether the AARP’s advocacy mission is overwhelmed by a conflict of interest with AARP’s mammoth profit-making enterprise.

When I began writing about age discrimination in 2011, there was virtually no understanding that the ADEA actually legalizes a broad swatch of age discrimination that is illegal under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin.    In my groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in Employment, I painstakingly documented how that older workers are second class citizens under U.S. law, deprived of their right to equal protection under the U.S. Constitution. Not only is the ADEA far weaker than Title VII but the U.S. Supreme Court accords laws that discriminate on the basis of age its lowest level of review – mere rationality –  far lower than laws that discriminate due to race or sex.  As a result of legal inequality, older workers (primarily women)  are driven from the workforce,  disproportionately dumped into long-term unemployment, forced to spend down their savings and to take low-paid temp and part-time work. Many have no choice but to retire as soon as they can collect Social Security benefits, triggering a significant reduction in their benefits for the rest of their lives.

While age discrimination in employment remains epidemic and unaddressed, the statements of Lipnic, Collins and the AARP indicate it might be slightly more visible.

If Lipnic and Sen. Collins follow through, 2018 may finally see some progress in addressing the epidemic of age discrimination in hiring.

Certainly, the past year, which marked the 50th anniversary of the ADEA, was nothing to celebrate for older workers. Continue reading “Age Discrimination in Employment Became More Visible in 2017”

Senate Aging Committee Pledges to Fight Age Discrimination in Employment

At a hearing on Wednesday, leaders of the U.S. Senate Special Committee on Aging vowed to “fix” a 2009 U.S. Supreme Court decision that makes it very difficult for older workers to fight age discrimination in federal court.

Committee Chairperson Susan Collins, R-ME, and Ranking Leader Bob Casey, D-PA,  also acknowledged the upcoming 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), which was signed by President Lyndon B. Johnson on December 15, 1967.

Collins and Casey addressed the Supreme Court’s catastrophic 2009 decision, in Gross v. FBL Financial Services, which raised the burden of proof in ADEA cases far above that of race or sex discrimination cases under Title VII of the Civil Rights Act of 1964.  Since Gross, older workers have been required prove that age discrimination was not just a motivating factor but the decisive factor in an adverse employment action. The Gross decision legalized a broad swath of  discrimination that is illegal under Title VII and sent a signal to employers that age discrimination will be tolerated.

 “For the life of me,” said Collins, “I don’t understand why there is a higher burden for proving that age discrimination was the reason for the adverse employment action … compared to gender, religion, race.”

The legislators expressed strong support for a bill they are sponsoring, the Protecting Older Workers Against Discrimination Act (POWADA), which would essentially restore the status quo with respect to the plaintiff’s evidentiary burden prior to the Gross decision. The bill  has been introduced several times since 2009 but has never made it out of committee to a vote. Sen. Casey, who worked on age discrimination cases as an attorney, said it was always hard for workers to fight back against insidious age discrimination but that it is even harder today “because the Supreme Court weakened the ADEA and we’ve got to fix that.”

A witness at the hearing, Laurie McCann, a senior attorney for the AARP, urged the Committee to hold a series of hearings to learn what changes are needed to update and strengthen the ADEA to adequately protect older workers. “The AARP believes that it is well past time to update and strengthen the ADEA so that it can respond to the challenges facing today’s older workers in today’s workplace,” she said.

As I demonstrated in my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, the ADEA was far weaker than Title VII when it was adopted 50 years ago and it has since been eviscerated by the U.S. Supreme Court.  In the book, I proposed repealing the ADEA and making age a protected class under Title VII, as was originally proposed when the passage of Title VII was being debated by Congress.

According to McCann, three in ten near-retiree-age (55-64) households have no retirement savings at all and the median retirement savings of all near-retiree households was only $14,500 in 2013. McCann said financial need is by far the most important reason that workers aged 45-74 work. She blamed age discrimination on persistent negative stereotypes and discriminatory employer recruitment practices, including advertising for “digital natives,” specifying a maximum number of years of experience or limiting recruitment to entry-level positions on college campuses.

Financial need is by far the most important reason that workers aged 45-74 work – AARP.

The committee also issued a report on Wednesday examining the nation’s aging workforce, “America’s Aging Workforce: Opportunities and Challenges.”  The report states the number of Americans over age 55 in the labor force is projected to increase from 35.7 million in 2016 to 42.1 million in 2026, and, by 2026, aging workers will make up nearly one quarter of the labor force.  The business case for hiring, retaining, and supporting older workers is strong, according to the report, but challenges exist – including age discrimination, inadequate training opportunities, working while managing health conditions and disabilities, balancing caregiving responsibilities with work, and preparing financially for retirement.

Collins said U.S. employers are going to need older workers in the years ahead and can’t afford to “discard skills and experience that older workers bring to workplace.”

Another witness, Lisa Motta, 54, from Pittsburgh, Pa., testified about re-entering the workforce in her 50s  after having lost her sight. A former teacher, she now works as a recruiting administrator at PNC Bank. “As America’s workforce grows older, more and more workers will face challenges like these and will need additional supports and accommodations,” Motta said. “They will also need laws in place that ensure that when they walk into an interview they do not face any form of discrimination. When we make it easier for these workers to succeed, everyone benefits.”

Prior to Wednesday’s hearing, the Senate aging committee was criticized for failing to act in the face of the epidemic of age discrimination in the workplace that occurred during and since the Great Recession.

Absent from Wednesday’s hearing was a representative from the U.S. Equal Employment Opportunity Commission (EEOC), which has ignored a major spike in age discrimination complaints dsince 2008 and rampant age discrimination in the federal government, and has issued administrative decisions that reflect a higher standard in age discrimination cases than in race or sex discrimination case.

Feds Are Engaged in Age Discrimination in Hiring on Unprecedented Scale

About 93% of applicants hired for 92,193 federal jobs under the U.S. government’s Pathways “Recent Graduates” Program  from May 2012 to July 2017  were under the age of 40.

Only  7.16% of applicants hired under the program were over the age of 40, according to statistics released by the U.S. Office of Personnel Management (OPM) pursuant to a Freedom of Information request.

The data shows the federal government is engaged in a practice of age discrimination in hiring that dwarfs anything in the private sector and is unprecedented since the enactment fifty years ago of the Age Discrimination in Employment Act (ADEA) of 1967.

The OPM released the data on Nov. 28 pursuant to a FOI request filed by a job seeker who was rejected for a federal job because he was not a recent college graduate. Given that publicity about workers who demand their legal rights often makes them a pariah to potential employers, the job seeker’s identity is not disclosed here.

The federal government is engaged in a pattern of age discrimination in hiring that is unprecedented in modern history.

Barack H. Obama, the nation’s first African-American president, created the Pathways “Recent Graduates” Program through an  executive order in 2010. Obama’s executive order operates as an exemption to the ADEA for federal agencies. The OPM issued regulations and the program began operating in May 2012.

The ADEA prohibits the consideration of age in hiring except in limited circumstances such as when it involves a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business or where the differentiation is based on reasonable factors other than age (i.e,  cost). These were not considerations with respect to the Pathways program.

The OPM at the time disingenuously implied the hiring program did not involve age discrimination because anyone of any age can be a recent graduate.  Of course, the vast majority of recent graduates are and always have been under the age of 40.

The Pathways program  is form of age discrimination under the “disparate impact” theory, which is invoked when a seemingly neutral policy results in a disproportionate negative impact on a protected class.

The U.S. Congress passed the ADEA 50 years ago to protect individuals aged 40 and older from irrational and harmful employment discrimination.  In signing the order, then President Lyndon B. Johnson said the ADEA’s purpose was to insure the most qualified applicant got the job.

Obama signed the order in the wake of Wall Street’s collapse and the Great Recession, when older workers were disproportionately mired in long-term unemployment.

A spokesperson for the OPM said in July that the program doesn’t discriminate because it is legal and the program will continue until Obama’s executive order is rescinded by the sitting President.

Unique Perspective of  Young People

Without offering any supporting data, Obama said the order was needed to remove “barriers” in hiring younger workers caused by civil service regulations and “to achieve a workforce that represents all segments of society.” Obama also said he wanted  to “infuse” the federal government with the “enthusiasm, talents and unique perspective” of young people.

In an Oct. 4, 2011 letter to the OPM, Angela Bailey, a spokesperson for the National Treasury Employees Union, said there can be “no doubt” the Pathways program targeted younger applicants ” by design.” Furthermore, she said, the program was “intended to, and will, discriminate against older applicants” in violation of the ADEA and merit selection principles. She denied the government faced barriers to hiring young people and questioned the government’s competency with respect to recruitment. She said the absence of a cap on hiring under the program was the “single most disappointing aspect” of the program.

The OPM’s Merit System and Accountability Office released incomplete age data from Pathways program last summer that only covered hiring between May 2012 through June 2014. The OPM claimed, falsely, that it lacked more recent figures.  The persistent FOIA applicant filed an appeal and requested  the later statistics.

OPM General Counsel Theodore M. Cooperstein writes that his office “determined that OPM does have additional responsive data regarding Pathways Programs appointees” after 2014.

The federal government is the nation’s largest employer.

Under President Obama’s directive, “A Recent Graduate is an individual who obtained a qualifying associates, bachelors, master’s, professional, doctorate, vocational or technical degree or certificate from a qualifying educational institution,within the previous 2 years …”  5 CFR 362.302(a),

Behavioral Design Algorithms Show Promise and Peril in Hiring

A new technology has the potential to both reduce and exacerbate illegal bias in hiring.

The New York Times has reported that two start-up hiring platforms, Applied and Pymetrics, have created algorithms using  artificial intelligence and neuroscience games that can level the playing field for gender, ethnic and socioeconomic representation.

Age discrimination also is illegal but it was not mentioned. This despite considerable evidence  showing that employers currently are systematically discriminating against older workers by using computer software to screen out their resumes and divert them to a digital trash can.  Research shows that older women are the most severely affected by hiring discrimination.

Spokespersons for Applied and Pymetrics said behavioral design algorithms  are capable of analyzing hiring factors that are more predictive of performance and less biased than traditional resume screening tools. The algorithms are tweaked until men and women and people of different ethnic backgrounds get similar scores to qualify for hire. A spokesperson for Applied cited a large test in which over half of the people that were hired would not have been were it not for the platform. A  Pymetrics spokesperson said the company has been highly successful in improving gender, ethnic and socioeconomic representation for clients like Accenture and Unilever.

The behavioral design companies say the technology is equally capable, in the wrong hands, of magnifying hiring bias.

Continue reading “Behavioral Design Algorithms Show Promise and Peril in Hiring”

Federal Courts Criticized for Dismissive Treatment of Employment Discrimination Victims

There is overwhelming evidence that federal courts for years have ignored and marginalized plaintiffs in employment discrimination cases.

Judge Richard A. Posner, one of the nation’s leading appellate judges, recently resigned from the 7th Circuit U.S. Court of Appeals citing his disgust for the dismissive treatment that his fellow jurists accorded to pro se litigants. The vast majority of pro se litigants are victims of a justice system that is too expensive for all but a privileged few. Most Americans cannot afford to hire an attorney and either must proceed on their own or passively suffer gross injustice. Posner told abovethelaw.com that pro se litigants “deserve a better shake.”

Posner says judges divert the cases of pro se litigants to staff attorneys and then routinely dismiss the case after the employer files a motion for summary judgment.

In addition to Posner, attorneys for the Center for the Study of Law and Religion at Emory University School of Law are questioning the high rate of dismissals in lawsuits involving employment discrimination. They filed an amicus brief last month that points to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.

The win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

Continue reading “Federal Courts Criticized for Dismissive Treatment of Employment Discrimination Victims”

U.S. Chamber of Commerce No “Friend of the Court”

Nice to see someone calling out the U.S. Chamber of Commerce, which frequently inserts itself into national litigation as a “friend of the court.”

In reality, the Chamber is almost always an advocate for a dues paying corporate member and espouses a position that is anti-employee and anti-consumer. In 2014, I argued the Chamber was a federal court lobbyist.

According to Reuters, the firm of Lieff Cabraser Heimann & Bernstein has opposed  the Chamber’s request to file an amicus or “friend of the court” brief in a case involving a challenge by Direct TV to the certification of a class action by the 11th Circuit Court of Appeals in Atlanta.  Lieff’s brief argues the Chamber, the Chamber’s lawyers, DirectTV and Direct TV’s lawyers are bound so closely together that even under a liberal reading of the definition of an amicus curiae, the Chamber cannot legitimately be regarded as a friend of the court.

“The Chamber is not merely a friend of the party, but essentially the party itself.” – Lieff Cabraser Heimann & Bernstein

Continue reading “U.S. Chamber of Commerce No “Friend of the Court””

Support for American Workers is Hard to Find

Who is standing up for the rights of American workers?

GOP President Donald Trump and the GOP-led U.S. Congress seem to be determined to eliminate worker rights rather than to expand them. Trump has reversed a bevy of pro-labor measures that former Democratic President Barack Obama enacted on his own without Congressional backing. Meanwhile, workers continue to seethe about mostly Democratic trade policies that sent American jobs to other countries.

Labor unions are barely hanging on, despite the fact that unions pioneered many of the employment benefits that workers take for granted today. In 2016, the union rate for private sector workers was 6.4 percent – down from 20.1 percent in 1983.  Organized labor is currently battling a potentially crippling effort by Trump and the GOP to prevent unions from requiring nonmembers to pay representation fees.

It may be an understatement to say that advocacy of worker rights  does not appear to be high on the agendas of the Equal Employment Opportunity Commission and US. Department of Labor.

Under the Democratic administration of President Barack Obama,  the EEOC shifted its focus away from filing lawsuits and prosecuting employers who engaged in illegal discrimination. Instead, the EEOC is focused on providing free dispute resolution services to these very same employers. Mediation is often a lousy deal for discrimination victims, who walk away with a pittance to compensate for the loss of a decent job, but it’s always a great deal for employers, who avoid potentially catastrophic fees and damages stemming from a lawsuit.  Also, mediation is completely secret so other potential litigants are kept in the dark.  Meanwhile, the EEOC has for years ignored one of the most pressing civil rights issues of our day – blatant and epidemic age discrimination in hiring that is particularly devastating to older women, who suffer twice the poverty rate of men in their old age.  The EEOC received more than 20,000 age discrimination complaints in 2016; it  filed only TWO lawsuits with “age discrimination claims.” Continue reading “Support for American Workers is Hard to Find”