Discrimination Victims Deserve REAL Justice

The EEOC has asked for public input so here goes:

Why is the EEOC operating the equivalent of a “get out of jail free card” for employers that engage in employment discrimination and retaliation?

When the EEOC determines there is reasonable cause for a charge of discrimination, the agency offers the employer (and the victim) the opportunity to participate in its free mediation program, where a neutral mediator assists the parties in reaching an early and confidential  resolution to a charge of discrimination.

In its 2014 performance report, the EEOC contends the mediation program is a “win for both Employees and Employers” but in the final analysis it is a much bigger win for employers.

The EEOC says its mediation program for private sector complainants  achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination.  The effort yielded $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.

A payout of less than $20,000 per mediation is a bona fide windfall for employers, who might otherwise be forced to spend a hundred thousands dollars or more to defend a lawsuit, plus a potentially staggering damages award.

But $20,000 is a pittance at best for many – if not most – victims of employment discrimination – especially those who lost their jobs or who were not hired because of illegal discrimination.

There’s the rub

The EEOC is not supposed to be in the business of protecting discriminatory employers from the reasonable consequences of their harmful actions. Continue reading “Discrimination Victims Deserve REAL Justice”

Corporations Point to Age Discrim. in Hiring by Feds

You might think it would be an embarrassment to our nation’s largest employer – the federal government – that corporate America is defending age discrimination in hiring by pointing out the U.S. government engages in the same behavior.

Most recently, the Equal Employment Advisory Council (EEAC), an association of America’s 250 largest corporations, filed a friend-of-the-court brief in an age discrimination case in which it opposed allowing older job applicants to file disparate impact lawsuits challenging broad-based discriminatory hiring practices.  If they are allowed to do so, the EEAC warns, numerous federal programs “most certainly will be impacted… ”

The EEAC goes on to cite various federal training, education and hiring programs that are closed to older workers, including the AmeriCorps National Civilian Community Corps, a residential program open to individuals between the ages of 18 and 24 who perform team-based national and community service, including disaster response and environmental stewardship. Members receive $4,000 for ten months of service, health benefits, $400 a month to pay for childcare and an educational award of $5,730.

Come to think of it, why can’t a 40-year-old join the Corps and dedicate a year of his/her life to community service for the same amount of remuneration?

Last May, the U.S. Chamber of Commerce filed a friend-of-the-court brief in which it defended age discrimination in hiring by noting that even the U.S. Equal Employment Opportunity Commission (EEOC) does it. The Chamber cited the EEOC Attorney Honor Program, which employs in “permanent” positions “third-year law student[s], “full-time graduate law students[s],” and “Judicial Law Clerk[s] whose clerkship must be [their] first significant legal employment following [their] graduation.”  The EEOC states on its web site that graduates of the Honor Program go on to serve as trial attorneys or Administrative Judges in the EEOC’s District Offices. The  EEOC program appears to have a disparate impact upon older workers because the vast majority of  law school students and graduates are under the age of 40.

The  EEOC is the federal agency that enforces the Age Discrimination in Employment Act of 1967 (ADEA). Continue reading “Corporations Point to Age Discrim. in Hiring by Feds”

Worker Entitled to a Fair Investigation (in the UK)

justice-scale-761665_1In the United States, so-called workplace investigations can be little more than pre-trial preparation for employers intent upon building a record to justify dismissing a troublesome worker.

It is refreshing to note a recent  decision by the London-based Employment Appeal Tribunal (EAT)  finding  a breach of an implied term of trust and confidence where an agency’s Human Resources Dept. interfered in the outcome of an investigation of employee misconduct.

In Ramphal v. Department for Transport,  a manager  was investigating alleged misconduct by an aviation compliance inspector, who allegedly filed a false expense report.  The manager’s initial report concluded that any abuse was not deliberate. After the manager sought advice from HR, he switched his recommendation that the employee receive a written warning for misconduct to a recommendation that the employee  be summarily dismissed for gross misconduct.

The EAT said the lower court erred when it failed to determine whether HR had exerted “improper influence” over the manager’s decision to dismiss the worker

The EAT said a worker facing disciplinary charges and a dismissal procedure “is entitled to expect that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability.”

According to the  EAT:

“… an investigating officer is entitled to call for advice from human resources; but human resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction….. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct”.

In the United States, most workers who do  not belong to unions or receive the protection of an employment contract can be fired for almost any reason – without any cause –  as long as the reason doesn’t break an actual law (i.e. discrimination)  or a narrowly defined public policy (i.e. protection for whistleblowers).  There is no legal requirement that employers treat workers with respect, dignity and fundamental fairness.  Of course, employers who are not fair  risk significant liability if the worker later files a lawsuit alleging a violation of the law, such as a race or sex discrimination lawsuit.

The Employment Appeal Tribunal is a superior court of record in the United Kingdom that hears  appeals from Employment Tribunals in England, Scotland and Wales.

Appeals Court Strikes a Blow for Unrepresented Litigants

A federal appeals court recently struck a blow for the unrepresented litigant, who often is  ill-equipped to understand and overcome procedural hurdles that effectively block access  to federal courts.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago,  reinstated a case that was dismissed by a district judge because the handwritten complaint filed by the plaintiff, who was representing himself, contained “little more than conclusory legal jargon.” Moreover, the judge said, the plaintiff checked a “variety of boxes “with “conclusory statements such as that the Defendant failed to reasonably accommodate the plaintiff’s disabilities.”

The plaintiff, John Tate, was a driver trainee in 2014 for SCR Medical Transportation, which provides non-emergency transportation services for disabled persons and veterans.  His complaint states: “The defendant was aware of my disability. During my employment, I was subjected to sexual harassment. I complained to no avail.” Tate  alleges he was fired in retaliation for his complaint. He alleges discrimination on the basis of disability, sexual harassment and retaliation.

The appeals court said Tate filled out a complaint form supplied by the  court that “does not require, or indeed permit, extensive factual detail, for it provides only six lines for listing ‘the facts supporting the plaintiff’s claim of discrimination.'”  Also, the appeals court said, the judge made a “serious mistake”  by dismissing Tate’s lawsuit prior to the expiration of a 21-day period  during which a plaintiff may file an amended complaint without the court’s approval.

The panel’s decision, written by noted jurist Richard Posner,  states that the lower court judge “should have told the plaintiff what is required to allege disability discrimination.”

Rather than dismissing the case, the judge should have helped the pro se complainant correct the procedural defect in the complaint.

The panel said Tate had no obligation to be more specific with respect to his claim of sexual harassment or retaliation.  The panel agreed,  however, that  the Americans with Disabilities Act requires a plaintiff to allege that s/he is disabled within the meaning of the Act. The panel said Tate should have identified a specific disability.

“Had the judge told the plaintiff before dismissing his suit what was missing from the complaint, or had he dismissed just the complaint and not the suit and informed the plaintiff of a plaintiff’s right to rectify the deficiencies of his complaint in an amended complaint, we might have been spared this appeal, and the district judge a remand,” concluded the panel.

Posner, an expert in the area of law and economics, is one of the most cited legal scholar of the 20th century.

The case is TATE , v. SCR MEDICAL TRANSPORTATION, No. 15–1447 (7th Cir. December 28, 2015).

NPR’s Diversity Problem: Why So Few Women Sources?

The high-tech industry in Silicon Valley isn’t the only American industry with serious diversity problems.

National Public Radio this week reported that male sources outnumber female sources on the network’s two largest weekday newsmagazines by two-to-one.  Sources include on-air personalities and  subject matter experts, Only about 30 percent of all  sources on Morning Edition and All Things Considered were female in the fiscal year ending Sept. 30, 2015. There has been no improvement for the past three years.

Women, who comprise 50.45 percent of the U.S. population, are under-represented along all racial classes.


Here are the percentage  of male/female sources broken down by race:

  • Asian : Males, 76%; Females 24%.
  • Whites: Males, 70%; Females 30%.
  • Latino: Males, 71%; Females 29%.
  • Blacks: Males 62%; Females 39%.

Women and Latinos are severely under-represented as NPR sources.

The percentage of NPR sources who are Latino remained flat at six percent for each of the three years. The U.S. Census Bureau reports that Latinos make up 17.4 percent of the U.S. population.

Here is the breakdown of sources by race from the NPR report:

  • There was a decline in the overall percentage of white sources, from 80 percent in 2013 to 73 percent in 2015.   Whites make up 77.4 percent of the U.S. population in 2014.
  • African-American voices rose from 5 percent in 2013 to 11 percent in 2015. African-Americans comprise 13.2 percent of the U.S. population.
  • The share of Asian sources rose to eight percent in 2015, compared to five percent in 2013.  Asians comprise 5.4 percent of the U.S. population.

Asians as a group are actually over-represented but Asian women lag the farthest behind in any racial group.

Of course, the U.S. population is not the same as NPR’s listener-ship. NPR listeners are 85 percent white, eight percent Latino and seven percent black.

Keith Woods, NPR’s vice president for diversity in news and operations, is quoted as stating he is “generally pleased with the direction that this is going,” noting the increases in the share of black on-air sources, as well as the percentage of “subject matter experts” who are people of color. He said he had “hoped for better news on our coverage of women, on our inclusion of women.”

Note: Two protected classes were not surveyed by NPR, age and disability.

Fed Diversity Measure Omits Older Workers & Disabled

What does diversity mean in the employment context?

A recent report on standards that federally regulated companies can use to evaluate their diversity policies and practices provides that diversity refers only to racial minorities and women. Minorities are defined as “Black Americans, Native Americans, Hispanic Americans, and Asian Americans.”

One might expect the term “diversity”  to at least encompass protected classes under federal discrimination laws. After-all, these groups have been historically deprived of jobs and opportunities  precisely because they are diverse from the mainstream.Yet older workers and the disabled are omitted from the definition of diversity set forth in the Final Interagency Policy Statement Establishing Joint Standards for Assessing the Diversity Policies and Practices of Entities Regulated by the Agencies.

The report was issued by six federal agencies pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The agencies are the Federal Reserve Board, Bureau of Consumer Financial Protection, Federal Deposit Insurance Corporation, National Credit Union Administration, Securities and Exchange Commission and the Office of the Comptroller of the Currency. Continue reading “Fed Diversity Measure Omits Older Workers & Disabled”

The Considerable Downside of Mediation for Discrimination Victims

Mediation is a really good deal for employers but what about workers? Not so much.

In its 2014 performance report,  the EEOC states that its mediation program for private sector complainants achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination. Mediation is a voluntary process where a neutral mediator assists the employer and employee in reaching an early and confidential resolution of the employment dispute raised in a charge of discrimination.  The  effort yielded  $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.

UPHere are some of the many ways that employers benefit from the EEOC’s mediation program:

  • Thanks to the generosity of the American taxpayer, it doesn’t cost employers anything to use this form of alternate dispute resolution. The EEOC doesn’t charge the complainant either but the complainant often has no money because s/he is the victim of illegal discrimination. There’s a difference.
  • The employer  usually has a major advantage because it is  represented by an experienced attorney while the complainant often can’t afford to hire an attorney and his or her only knowledge about  the legal process is derived from television shows like Law and Order.
    • A settlement costs the employer practically nothing compared to the cost of responding to an EEOC investigation and then litigating a lawsuit , which would likely exceed $100,000. If the employer loses the case,  add on damages and  the plaintiff’s attorney fees.
    •  No one has to know! It’s all secret.

What’s the down side of mediation for the employer? There aren’t any. Even if the employer fails to achieve a settlement, the employer gains valuable information about the complainant’s case, including his or her evidence, whether the complainant is or will be represented by counsel, and whether the complainant has been so emotionally damaged by discrimination that s/he would be a poor witness in front of a jury. Continue reading “The Considerable Downside of Mediation for Discrimination Victims”

Urban Outfitters “Asks” Salaried Workers to Volunteer

Can an employer ask a worker to “volunteer” to work on weekends?

This concept is being tested by the affluent retailer Urban Outfitters, Inc., which asked salaried employees at the company’s Philadelphia corporate headquarters to “volunteer” to work six-hour shifts on weekends throughout October at the  company’s new fulfillment center about 50 miles outside Philadelphia.  Urban Outfitters operates under the Anthropologie, Bhldn, Free People, Terrain and Urban Outfitters brands.  Somewhat ironically,  the company announced in August that its total  net sales had increased in the second quarter by 7% over the prior year to a record $867 million.

A memo leaked  to Gawker  states that “volunteers” will “work side by side with your [fulfillment center] colleagues to help pick, pack and ship orders for our wholesale and direct customers.” The memo continues: “In addition to servicing the needs of our customers, it’s a great way to experience our fulfillment operations first hand. Get your co-workers together for a team building activity!”

Salaried workers are exempt from the protection of the Fair Labor Standards Act of 1938, which established the 40-hour work week and regulates the payment of wages and overtime.  They can be forced to work uncompensated overtime. But it’s a different thing to ask workers – even salaried workers –  to volunteer. The FLSA prohibits for-profit employers from permitting any individual to “suffer or permit to” work without compensation. The definition of “volunteer” is to work without compensation. So it stands to reason that for-profit employers cannot ask any employee to “volunteer” to work.

The situation demonstrates the problems facing workers who are exempt from the FLSA – especially poorly paid white-collar workers.

Urban Outfitters’ CEO; Richard Hayne’s net worth is approximately $1.35 billion (according to the Forbes billionaires list) but many white-collar workers are not so lucky. They are  barely paid enough to put food on the table.  The FLSA’s “white collar” exemption applies to employees whose job duties primarily involve executive, administrative, or professional duties and who earn a salary of at least $455 per week or $23,660 a year. This poverty-level paycheck is particularly brutal for single parents (mainly women) who must schedule and pay for child care. And, let’s face it, an employer’s request for volunteers is inherently coercive. Only a courageous worker can pass up an opportunity to experience the fulfillment center “first hand” in a “team building activity”?

Last summer, the U.S. Department of Labor (DOL) announced a proposed rule to amend the FLSA “white-collar” exemption to eventually eliminate the exempt status of an estimated 21.4 million“white -collar”employees. The DOL’s proposed regulations dramatically increase the minimum salary threshold for exempt status workers to $970 per week or $50,440 per year. This represents the 40th percentile of earnings for all full-time salaried workers throughout the United States.

But for now, it appears that salaried workers at Urban Outfitters who don’t want to risk their jobs by refusing to “volunteer”  will be spending their weekends packing overpriced clothing into cardboard boxes.

It should be noted the FLSA does permit individuals to volunteer in the non-profit sector for religious, charitable, civic or humanitarian  organizations and to perform volunteer services for a state or local government agencies. Indeed, the U.S.Department of Justice  has the gall to retain licensed attorney volunteers for up to a year at a time to work as unpaid prosecutors along-side Assistant U.S. Attorneys who earn a starting salary of more than $75,000. Instead of leading the nation, it seems the federal government, including the Office of Personnel Management,  is intent upon perpetuating  hiring practices that are sadly antiquated and even discriminatory .

Appeals Court Says ‘Bye to English Teacher Blogger

The First Amendment took a beating recently when a federal appeals court panel in Philadelphia, PA,  upheld the dismissal of an English teacher who wrote a semi-anonymous blog containing satirical observations about modern-day teaching at an affluent suburban high school.

Natalie Munroe was hired in 2006 by Central Bucks East High School in Doylestown, PA, earned tenure, and received excellent evaluations. But she became increasingly frustrated with student behavior,  especially with respect to academic integrity and honor, and lack of parental support for teachers. In 2009 she began a personal blog under the name “Natalie M’ that was called, “Where are we going, and why are we in this handbasket?”  The blog was intended for family and friends and had fewer than a dozen subscribers, including Munroe and her husband.

The U.S. Court of Appeals for the Third Circuit noted forebodingly in its ruling that “no password was required to access the blog.”

Munroe was suspended after a local reporter asked a  school official in February 2011  if he was aware that students apparently were circulating material from the blog on Facebook and other social media. Her suspension led to national media attention that inflamed the controversy. Principal  Abram Lucabaugh estimated that 200 parents told the district they did not want Munroe to teach their children.  Munroe was fired in June 2012.

In a 2-1 ruling, the appellate panel upheld the dismissal of Munroe’s lawsuit in which she alleged her termination was retaliatory and violated her right to free speech . The majority said public employees are entitled to discuss issues of “public concern” but the state may impose speech restrictions on public employees that are necessary for efficient and effective operations.  Although most of Munroe’s 84 blog entries had nothing at all to do with her work, the majority said Munroe’s speech was sufficiently disruptive to the school to diminish any legitimate interest in its expression. The lone dissenter observed  the majority had “ducked’ the fact that Munroe’s media appearances and interviews contributed to her discharge and said that a jury should decide whether Munroe’s speech was protected by the First Amendment.  He maintained the school district “forfeited its right to match its operational interests against Munroe’s free speech interests” when it waited two years to fire her and failed to transfer her to another school.

The stated reason for Munroe’s dismissal was  “incompetency” even though she was obviously a better-than-average English teacher. She was a good writer. Her comments were pointed but funny and thought-provoking. And she cared.

Continue reading “Appeals Court Says ‘Bye to English Teacher Blogger”

Amazon’s Brutal Conditions No Surprise to Warehouse Workers

Amazon has come full-circle. Not only is Amazon a harsh and stingy place for low-paid hourly warehouse workers, it is also a  Darwinian nightmare for white-collar workers.

The New York Times recently outlined Amazon’s assault on the respect and dignity of  its white-collar workers, who are encouraged to inform on each other and are pushed out  if their performance flags due to a family tragedy or health crisis (i.e. miscarriage, cancer).

Bezos on Monday issued a statement expressing shock about the Times expose, stating he won’t tolerate these “shockingly callous management practices.” He encouraged workers who are victims of this kind of treatment to contact him personally.  “The article doesn’t describe the Amazon I know or the caring Amazonians I work with every day.” Jeff Bezos

However, Amazon has a history of poorly treating its low-paid   hourly workers at Amazon “wish-fulfillment” centers in Nevada. These workers are subject to  relentless schedules for unpacking and repackaging of goods, constant electronic surveillance, and a system of demerits designed to weed out”weak” performers. They also are forced each workday to donate a half-hour of their personal time to Amazon.

Amazon pays a company called Integrity Staffing Solutions to operate two warehouses in Nevada that serve as storage and order-filling facilities. Integrity has an anti-theft screening procedure that requires workers to wait in line at the end of their shifts, empty their pockets, and walk through metal detectors.  However, Integrity refuses to pay workers for the time it takes to complete this mandatory screening process.

After two hourly workers filed a lawsuit, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ordered Integrity to pay the warehouse  workers overtime because the time spent for anti-theft screening was a job requirement that benefited only the company.

Integrity took the case all the way to the U.S. Supreme Court, which last year reversed the 9th Circuit court and ruled the screenings were “noncompensable postliminary activities.” In other words, the nation’s highest court said the workers weren’t entitled to be paid for the time it took to undergo the mandatory screenings because it wasn’t technically “work.”

All of this is a legal shell game; Amazon  dictates the slim profit/loss ratio that determines the working conditions and pay for warehouse workers.

Amazon’s market valuation is $250 billion and Bezos’ net worth is estimated at $47.7 billion, making him the 15th richest billionaire in the United States.

In his statement to Amazon workers on Monday, Bezos said Amazon is not a “soulless dystopian workplace where no fun is had and no laughter heard … Hopefully, you’re having fun working with a bunch of brilliant teammates, helping invent the future, and laughing along the way.”Does Bezos really think that Amazon warehouse workers who are forced to donate a half-hour of their workday to Amazon for anti-theft screening are “laughing along the way”?  One can’t help but think that if Bezos really cared about his workforce, he would not cheat already under-paid workers who labor in his warehouses out of a few bucks for time they are forced to spend at work.

If all of this isn’t pathetic enough … Forbes published an article on Monday by Oliver Pursche stating that investors shouldn’t worry about the Times’ depiction of Amazon’s brutal working conditions for white-collar employees, including long hours, infrequent vacations, and a data-based evaluation system some describe as unfair. He contends these conditions technically are not illegal, and the “reasoning behind the company’s corporate culture should be taken as a positive for investors. Amazon’s practices increase efficiency–a plus for a company that reinvests so much that its profits are, at best, razor-thin–and encourage innovation.”