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”

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”

EEOC Acting Chair says it’s time for “thorough Review” of Age Discrimination in Employment Act

EEOC Acting Chair Victoria Lipnic said Thursday the Age Discrimination in Employment Act of 1967 – which turns 50 Friday – “deserves a thorough review to insure it is meeting the needs of today’s workforce.”

In addition, she said, “We need a cultural awakening. Instead of  negative expectations, how about recognizing the positives? Age diverse teams and cross-generational mentoring produce real benefits for both workers and employers.”

“Utilizing the talent of everyone, regardless of age, is good business. This is talent that our economy cannot afford to waste. . .” – Lipnic

Lipnic was not specific about why she believes the ADEA deserves a thorough review; how the ADEA may be failing to meet the needs of today’s workforce; and whether the ADEA will indeed get the thorough review that it deserves.

Lipnic focused on what she characterized as the ADEA’s success. She noted the ADEA was adopted in 1967 when “age discrimination was blatant. Workers over age 45 were barred from many jobs based solely on their age and mandatory retirement was commonplace for those in their 60s. Since then the ADEA has largely stopped openly discriminatory practices. But age discrimination is still too common and often accepted.” She said older workers continue to confront negative stereotypes and that age discrimination deprives them of their dignity and financial security.

But is the ADEA a success?

Others would point to evidence that age discrimination remains blatant, epidemic and unaddressed 50 years after the ADEA’s adoption.

Older workers are (and have been for years) significantly underrepresented in the high-tech industry while Silicon Valley employers unabashedly word job advertisements to discourage older applicants. Some, for example, advertise to hire “digital natives” or specify a maximum number of years of experience.

The U.S. government is openly engaged in blatant age discrimination in hiring through the Pathways Recent Graduates program, which since 2012 has barred older workers from applying for almost 100,000 jobs.  When former President  Barack Obama signed an executive order in 2010 establishing the program, he sent a message to private sector employers that age discrimination was reasonable, necessary and would be overlooked. And it was overlooked.

The ADEA’s 50-year-old mandatory retirement provision still exists for a large swath of workers, including public safety workers who are forced to retire with fat pensions and then go on to perform the same work in private industry. Some also might argue that while formal “mandatory retirement” rules are largely gone, older workers are effectively pushed out of the workforce by age discrimination. Older workers disproportionately languish in long-term unemployment and end up in temp, part-time or low wage work. Many are forced to retire as soon as they become eligible for Social Security, which results in lower Social Security benefits for the rest of their lives. Research shows that older women suffer the highest rate of age discrimination in hiring.

Lipnic did not address criticism that the EEOC failed to aggressively enforce the ADEA during and since the Great Recession, has ignored blatant age discrimination in hiring by Silicon Valley and the federal government,  and itself discriminates against older workers in administrative decision-makings and in hiring.

Finally, Lipnic said the basic purpose of the ADEA is that “ability matters, not age.” However, that’s not what President Lyndon B. Johnson said after he signed the ADEA into law. Johnson said:

The ADEA “does require that one simple question be answered fairly:  Who has the best qualifications for the job?”

There’s a big difference between “ability” and “qualifications.”  Society traditionally had judged  ability by qualifications.  However, the EEOC issued at least two decisions this year in which objective qualifications were ignored and hiring decisions were based upon subjective criteria like poise and cultural fit. In one case, the EEOC ruled a middle-aged male hiring officer for the Social Security Administration did not engage in age discrimination when he refused to hire a 60-year-old women who did not fall within his perception of “cultural fit.”  Instead, the hiring officer selected five applicants under the age of 40, including many recent graduates.

In my groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA is far weaker than Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. I note that a broad swatch of discrimination that is illegal under Title VII is perfectly legal under the ADEA. Since its adoption, the ADEA has been eviscerated by the U.S. Supreme Court which, among other things, ruled in 2009 that ADEA plaintiffs must show a much higher standard of causation than Title VII plaintiffs. In addition, the ADEA does a poor job of deterring age discrimination because it sharply limits the amount of damages that an ADEA plaintiff can recover. Unlike Title VII, the ADEA does not permit plaintiffs to seek compensatory damages for emotional distress or punitive damages.

 

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),

The System is Rigged against Sexual Harassment Victims Inside and Outside of Congress

Many folks have expressed outrage that the system set up by the U.S. Congress to handle sexual harassment complains lodged against members of Congress is obviously rigged to protect the harassers.

But Congress’ system, while different, arguably is no worse than the system in place for everyone else. Sexual harassment victims are routinely denied justice by our nation’s court system.

According to a 2017  analysis  by legal research service Lex  Machina, very few employees who file federal job discrimination, harassment, and retaliation claims make it to court. From January 2009 through July 2017, Lex Machina found that of 54,810 cases that were filed in federal courts and closed, employees bringing the suits won just 584 times in trial, or about 1% of the total. Employers won 7,518 cases, about 14%. Another 3,883 cases, or 7%, were settled on procedural grounds, mostly dismissing the employee’s claims. What happened to the rest of the cases? According to Lex Machina, no one knows for sure why 78% of cases (42,742 cases) were dismissed by either the employee or both the employee and employer.

VICTIMS OF DISCRIMINATION WON IN COURT JUST ONE PERCENT OF THE TIME

Let’s compare the process in and out of Congress for handling sexual harassment complaints:

CONGRESS: Victims of sexual harassment by members of Congress have 180 days to bring a claim to the U.S. Congress Office of Compliance, the office responsible for handling workplace complaints.

EVERYONE ELSE:   Sexual harassment is a form of discrimination under  Title VII of the Civil Rights Act of 1964. Victims of sexual harassment cannot file a lawsuit until they go through the  U.S. Equal Employment Opportunity Commission’s complaint process, which can take years. Victims typically must file a complaint with the EEOC  within 180 days of the complained of harassment. Federal employees have a much shorter time limit and must file discrimination charges within 45 days from the date of the alleged violation.

CONGRESS: Victims of sexual harassment by a member of Congress are subject to up to 30 days of mandatory counseling, where they are informed of  their rights. They then have 15 days to decide whether to submit their claim to mediation. If they reject mediation or no settlement is reached, there is a 30-day cooling off period before they can file a lawsuit or request an administrative hearing. Victims of sexual harassment by members of Congress could potentially file a lawsuit in a couple of months.

EVERYONE ELSE;  Within 10 days of  the filing of a complaint of sexual harassment, the EEOC sends a notice of the charge to the employer. In some cases, the EEOC asks both the complainant and the employer to take part in mediation.  If one party refuses or mediation fails, the EEOC asks the employer to provide a written answer to the sexual harassment charge. The victim then has 20 days to respond to the answer.

The EEOC orders an investigation, which the EEOC says takes an average average of ten months to complete. At the conclusion of the investigation, the EEOC determines whether there is reasonable cause to believe that sexual harassment occurred.

Typically, the EEOC finds no reasonable cause and the complainant is sent a Notice of Right to Sue the harasser.

In the rare circumstance the EEOC finds there is reasonable cause to believe that sexual harassment occurred, the EEOC tries to reach a voluntary settlement with the employer.  If a settlement cannot be reached, the case is referred to EEOC legal staff, who decide whether the EEOC should file a lawsuit. The EEOC rarely files a lawsuit unless there is evidence of systemic sexual harassment involving multiple victims.

If the EEOC decides not to file a lawsuit, the EEOC sends the complainant a Notice of Right to Sue.

The vast majority of sexual harassment victims either can’t afford to file a federal lawsuit or their case is dismissed pre-trial after the employer files a motion for summary judgment.

Some fortunate complainants have the resources to pay a private attorney a retainer of many thousands of dollars and proceed to federal court.  But most of their cases are quickly dismissed.

A 2006 study by the Federal Judicial Center found that federal judges granted requests by the employer for dismissal of civil rights cases on a motion for summary judgment 73 percent of the time. Moreover, the win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

If a case survives an employer’s motion for summary judgment, it will likely languish in the court system for years.

The truth of the matter is there is no justice for the vast majority of victims of sexual harassment because the system is rigged to protect employers and not workers. That’s true both inside and outside of Congress. And federal judges from privileged backgrounds and posh colleges  have mostly worked for corporations. They can’t empathize with workers and feel these cases are trivial disputes that waste of their precious time.

I recommended in my book, Betrayed: The Legalization of Age Discrimination in the Workplace, that Congress establish a special court to consider employment discrimination complaints, staffed with specialized judges who really care about and understand the issues.

Sexual Harassment: Federal Courts are a Big Part of the Problem

A big part of the problem re. epidemic sexual harassment in the workplace involves the dismissive treatment that federal judges (of both sexes) have historically accorded to victims of sexual harassment.  Here’s a story I wrote a while back that may curl the hair on the back of your neck.  The story involves incompetence by a federal agency and a blood curdling lack of empathy by a female federal judge to women who were subjected to extreme sexual harassment and even assault when they attempted to improve their lot in life by becoming truck drivers. PGB

 

JUDGE WHACKS EEOC WITH $4.7 IN FEES AS SEXUAL HARASSMENT CASE OF FEMALE TRUCK DRIVERS CRASHES AND BURNS

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed  by her two “Lead Trainers.”

Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies,  $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision  is brutally unsympathetic to the EEOC and the  255 female trainees and drivers who alleged sex discrimination and harassment against CRST.  She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST.

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.

Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often”  and “You got big tits for your size, etc. . . “  She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain.   “[I] was told that I could not get off the truck until the next day.”  she said.

The other “Lead Trainer”  allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005  “in order to get a passing grade.”

Starke is described as a German who struggles with English. She and her  husband subsequently hired a lawyer and filed for bankruptcy.  They failed  to mention  the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel –  a doctrine that is meant to protect the integrity of the court.  Judge Reade granted the motion.

In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST.

In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

In other cases, Judge Reade said CRST did not have legal (as opposed to real)  notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of  supervisor in that they could not fire the trainees.

Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases –  which appears to be a brand  new requirement that could severely limit the  EEOC in the future. Judge Reade conceded that dismissal was a  “severe” sanction for these complainants.

The EEOC appealed Judge Reade’s dismissal of the case  to the U.S. Court of Appeals for the 8th Circuit.

Appeals Court

In its decision, the  Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.

 The  appellate court generally agreed female complainants claims that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim.  (It was unclear exactly how many times  a worker must be propositioned for sex by a superior to qualify as being harassed.)

However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell,  who spent  seven days on the road with a male co-driver who asked her on three to five occasions to drive naked;  refused her request to stop at a truck stop so she could go to the bathroom,  ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as  “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.”  Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving  his urine receptacles about the truck’s cab for her to clean up.

The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court.  That brought Ms. Starke case back into the litigation.

After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke.

The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.

Which left Ms. Jones as the sole surviving plaintiff.

Even though  the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

The final award to CRST is actually larger than the earlier award because Judge Reade included fees and costs expended by CRST related to the appeal.

Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.

Ratchet Up the Consequences for Employers that Ignore Sexual Harassment

A perusal of recent headlines shows that companies will place their heads firmly in the sand to keep harassers on the payroll if the company is focused on short term profits.

Despite potential ruinous risk to reputation, costly turnover, lost work time and higher health care costs (among other things) the fact of the matter is that many employers  tolerate sexual harassment when the harasser is valuable to the organization. In some ways, the on-going wave of public sexual harassment incidents is similar to the problem with unsafe cars manufactured in the United States in the 1960s. It was cheaper for car makers to settle lawsuits out of court than to manufacturer safer cars.

In February, 21st Century Fox renewed Bill O’Reilly’s contract  knowing that he was in the process of settling a sexual harassment complaint by a news analyst, who eventually received a $32 million settlement.  O’Reilly, then  the most-watched figure on cable TV, had earlier settled several other sexual harassment claims out of court.

Producer Harvey Weinstein had several Oscars to his credit but he was a notorious bully for years, not to mention sexual predator (or worse). He also was known to engage in physical violence at the office on occasion.

TMZ says  Weinstein’s 2015 employment contract states that if the Weinstein Company had to pay settlements for his sexual or other misconduct, he must reimburse the company and pay an escalating set of fines: $1 million for the fourth and any subsequent instance.

Congress must insure employers that ignore evidence of sexual harassment face consequences that make it more expensive for them to do nothing than to act.

The complacency of Fox and the Weinstein Company demonstrates how little employers today fear the American legal system, which they count on to  work on their benefit. Typically, employers retain  human resource officers and legal staff who are trained to protect the company from sexual harassment complaints. Courts permit employers to make the legal process as long and difficult as possible for the victims, who often have few resources because they were driven out of their jobs by the employer and the harasser.

A recent development has made it even easier for employers. When the EEOC finds there is reasonable cause to believe the employer is guilty of sexual harassment, it offers a free and confidential mediation program whereby the employer can settle the matter – usually for peanuts – without even having to go to court. And it’s all secret!

Both Fox and The Weinstein Company knew or should have known of their employee’s abusive behavior but apparently they concluded the benefit of retaining the abuser outweighed the cost of paying the occasional out-of-court settlement.  What is needed is serious consequence for employers who ignore evidence of sexual harassment. And by that I mean serious.  A company that is making a profit of X billion should be ordered by a court to pay a percentage of its profit in damages. In that way, society will insure that employers take sexual harassment seriously.

EEOC Secrecy Rule Hides Procedural Irregularities and Gross Unfairness

Note: About a week after this story was written, the EEOC filed a lawsuit against a Texas television station because it allegedly failed to consider qualifications when it rejected a 42-year-old  female applicant for a position as a weather person. This lawsuit completely contradicts the EEOC’s decision in the case below and raises questions about what the EEOC’s position is with respect to qualifications.

A recent decision by the EEOC raises questions about whether the secrecy surrounding the EEOC’s handling of discrimination complaints hides serious procedural irregularities and basic unfairness.

EEOC spokeswoman Kimberly Smith-Brown has said that federal law “prohibits EEOC employees from confirming or denying the existence of charge filings, investigations or administrative resolutions.  The only time information about a specific case becomes public is if EEOC files a lawsuit against the employer, which is usually a last resort.” This means that complaints and documents associated with the EEOC’s adjudication of complaints are secret – except in the rare instance when the EEOC files a lawsuit or a complainant objects publicly (and someone listens) to the EEOC’s handling of her complaint.

The EEOC’s secrecy rule stands in sharp contrast to the openness of the federal court system. If a complaint is filed in federal court, it is public and so are the documents associated with the complaint, unless the judge enters an order to seal the file. That order can be challenged by the media. Public access to court records serves to insure the integrity of the court system. The EEOC’s closed door rule leaves the public in the dark about the basis for complaints, why the Administrative Law Judge ruled the way h/she did, the context for the OFO’s decision on an appeal of the ALJ’s ruling and why the EEOC chose to affirm or reject the OFO’s decision. With secrecy, the public has no way to insure the integrity of the EEOC’s handling of complaints.

Not only does secrecy fail to insure integrity at the EEOC but it clearly benefits discriminatory corporations and businesses. Their customers never find out about their illegal acts and neither do their employees, who might put two-and-two together and file their own discrimination complaints.  Complainants, who are almost always individuals, may prefer to have their name remain confidential because the mere fact they filed a complaint may make it difficult for them to find new employment. However, this preference can be accommodated through the use of a pseudonym, which is a practice the EEOC already employs when it publishes a precedential decision.

 Secrecy allows the EEOC to evade accountability for misconduct and discriminatory rulings. 

Continue reading “EEOC Secrecy Rule Hides Procedural Irregularities and Gross Unfairness”