Employers Eschew Settlement in Class Actions

justice-scale-761665_1Employers are settling fewer class action employment discrimination cases than at any time in recent history.

This is a finding  of the employer defense  law firm,  Seyfarth and Shaw, LLP, in its Annual Workplace Class Action Litigation Report: 2014 Edition.

The tone of the report is almost gleeful as it chronicles pro-employer rulings by the  U.S. Supreme Court in the past five years that make it  much more difficult for employees to prevail in  class action lawsuits against employers.

According to the  report, the total amount  for the top ten largest employment discrimination class action settlements in 2012 was $48.6 million, compared to $282.1 million in 2007 and  $91 million in 2006. The number was higher in 2013 ($234.1 million) because of a single $160 million settlement. However, when that settlement is deducted, the 2013 represents the second smallest settlement figure in the past decade.

The firm  attributes the reduction in class action settlements to two decisions by the  U.S. Supreme Court, Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) and Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), which  “influenced settlement strategies in workplace class actions in a profound way.”

The report states Comcast and Walmart decisions have “impaired the ability of the plaintiffs’ bar to convert their case filings into blockbuster settlements”  and improved the “ability of defendants to dismantle large class cases, or to devalue them for settlement purposes.”

“ Simply stated, Wal-Mart and Comcast Corp. aided employers to defeat, fracture, and/or devalue employment discrimination class actions, and resulted in fewer settlements at lower amounts.”

The   Comcast decision, decided by a slim 5 to 4 majority, added a new weapon to employers’ arsenals in challenging class certification. The  majority held that individual issues of damages may preclude class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure.  This means the plaintiffs may have to conduct hundreds or perhaps thousands of mini-hearings on the issue of damages, raising the cost of the litigation to prohibitive levels.

The Comcast decision  has “sharply curtailed” the ability of plaintiffs to obtain certification on the damages and “provides companies with a significant and rational defense to class certification in class actions,” according to the report

 The  2011  Walmart decision  held that a small group of female employees of the world’s largest retail chain  did not have enough in common with other Walmart female employees to constitute a class in a sex discrimination lawsuit.  The Court unanimously ruled in Walmart’s favor, although Justice Ruth Bader Ginsburg concurred in part and dissented in part, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The consistent conservative majority on the Court includes Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony  Kennedy and Samuel Alito.

Roberts Tells Congress to Set Aside Politics?

Chief Justice John G. Roberts Jr. has called on Congress to set aside politics when it comes to funding the federal courts.

Oh, the irony.

In his year end report, he wrote, “The United States courts owe their preeminence in no small measure to statesmen who have supported a strong, independent, and impartial judiciary as an essential element of just government and the rule of law.”

This from a Supreme Court justice who is considered to be the most pro-business, anti-worker justice since World War II.

One cannot help but wonder how the Court hopes to rally public support when it has consistently refused to allow its proceedings to be televised and has provided virtually no leadership to encourage the use social media and internet technology to  better serve the public.  The Roberts’  court has done little, if anything,  to help the public understand the importance of the judiciary is a democratic society.

The U.S. Supreme Court who?

A suggestion for Congress  – this might be a good time to encourage the Court to open its doors to television cameras.

Moreover, the Roberts’ court appears to be terribly, woefully and sadly out of touch with the masses, tuning out the little folk who pay federal judges’ hefty salaries while providing a megaphone to the U.S. Chamber of Commerce.

Roberts is seeking $7 billion appropriation in 2014, which compares to $6.97 billion allocated last year (reduced by about  $300 million  by sequestration, after Congress gave the courts an additional $51 million in October). The Court has passed along budget cuts to federal public defender offices, clerks,  parole and probation officers.

The business of federal courts appears to be down overall.  Filings in  civil and criminal cases grew by 1 percent in 2013 but  filings in appeals courts dropped by 2 percent; filings in the Supreme Court dropped by 2.6 percent; and, filings in bankruptcy courts dropped by 12 percent.

One reason for the decline may be that  victims  of employment discrimination are foregoing the use of federal courts because of the hostility of federal judges to job discrimination claims.

A 2013 article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Roberts  and Associate Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946.  And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

 

Appeals Ct Sides with EEOC in Conciliation Dispute

A federal appeals court in Chicago has departed from several other federal circuits by ruling that judicial review is not appropriate over efforts by the U.S. Equal Employment Opportunity Commission  to settle employment discrimination complaints.

Title VII of the Civil Rights Act directs the EEOC  to try to negotiate an end to an employer’s unlawful employment practices before it seeks a judicial remedy but it does not require the EEOC to actually reach a settlement.

Nevertheless, several federal appeals courts have allowed employers to raise an affirmative defense in employment discrimination cases that the EEOC failed to engage in good faith settlement negotiations  prior to filing a lawsuit. This is referred to as a “failure-to-conciliate” defense.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled last week that an implied failure-to-conciliate defense would add an “unwarranted mechanism” in Title VII by which employers could avoid liability for unlawful discrimination. “They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle,” said the panel.

In addition, the panel said, the implied failure-to-conciliate defense runs “flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process  ‘as evidence in a subsequent proceeding.’”

Six other federal circuits – the Second, Fourth, Fifth, Sixth, Tenth and Eleventh Circuits –  allow some form of judicial review over the sufficiency or good faith of the EEOC’s conciliation efforts.

The 7th Circuit ruling came in a 2008 sex discrimination case filed against Mach Mining, which  allegedly refused to hire female applicants  for coal mining jobs. After investigating, the EEOC found there was reasonable cause to believe Mach had discriminated against a class of female job applicants at its Johnston City site. The EEOC engaged in informal conciliation with Mach but in 2011 the EEOC concluded the parties could not agree and filed a lawsuit.

Mach argued the suit should be dismissed because the EEOC failed to conciliate in good faith.  The EEOC did not contend that its efforts were either sincere or reasonable, only that they were not reviewable as a defense to unlawful discrimination.

The 7th Circuit panel said the U.S. Congress gave the EEOC broad discretion to negotiate as it sees fit, including the power to accept or reject any offer or proposed settlement for any reason.  “Nor can Mach Mining explain just how many offers, counteroffers, conferences, or phone calls should be necessary to satisfy judicial review, despite repeated invitations to provide the court with a workable standard,” it added.

The U.S. Chamber of Commerce filed a brief in the case arguing that it was necessary to keep the EEOC on a tight leash to avoid “agency shenanigans” but the 7th Circuit panel noted the EEOC  filed only 122 merit lawsuits in 2012.  “That so few unsuccessful efforts at conciliation end up in court shows how constrained the agency is by practical limits of budget and personnel,” said the appeals court.

The panel remanded the case, EEOC v. Mach Mining, No. 13-2456,  to the lower court for further proceedings.

In brutally harsh decision last fall in  EEOC v. CRST Van Expedited, Inc.,  Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled  that the  EEOC  must pay CRST, one of the nation’s leading transport companies,  a judgment of $4,694,422.14  stemming from a lawsuit filed by the EEOC alleging sex discrimination.  Judge Reade dismissed at least 67 class members from that case because the EEOC’s allegedly failed to conciliate with CRST with respect to each individual class member.

Courts Scrutinize Employer “Look” Policies

Dreadlocks and Hijabs

An employer’s vision of a company’s “culture” can be risky business when it involves the appearance of workers.

Abercrombie & Fitch recently settled two lawsuits involving a provision of its dress code or “Look Policy” that prohibited Muslim employees from wearing a hijab (religious scarf) on the job.

Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Catastrophe  Management Solutions, a Mobile, Alabama catastrophic  insurance claims company, for alleged discrimination against a  black applicant for employment because she wore dreadlocks.

In both cases, the employers allegedly interpreted their culture in such a way as to exclude workers who demonstrated physical or cultural characteristics  of race or religious identity.  Other employers run afoul of  Title VII of the Civil Rights Act of 1964 law when they interpret their culture in ageist or sexist ways.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and  hiring practices that discriminate against racial, ethnic and religious groups,  older workers, women, and people with disabilities, is one of six national  priorities identified by the EEOC’s Strategic Enforcement Plan.

Dreadlocks

Chastity Jones was among a group of  applicants who were selected for a group interview by Catastrophe Management Solutions on May 12, 2010.  Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.”  Jones was offered a position as a customer service  representative.

According to the EEOC, Jones’s offer of employment was rescinded later that day when  human resources staff met with Jones to discuss her training schedule and realized that Jones’s curled hair was in  dreadlocks.  The manager in charge told  Jones  the company did not allow dreadlocks and that she would have to cut  them off to obtain employment.  Jones  refused to cut her hair.

The EEOC argues that Catastrophe’s ban on dreadlocks discriminates against African-Americans is based  on physical and/or cultural characteristics in violation of Title VII. The EEOC filed suit in U.S.  District Court for the Southern District of Alabama (Equal Employment Opportunity Commission v. Catastrophe Management  Solutions, Inc., Civil Action No. ­­­­­­­­­­­1:13-cv-00476-CB-M).

“This litigation is not about policies  that require employees to maintain their hair in a professional, neat,  clean or conservative manner,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District Office.  “It focuses  on the racial bias that may occur when specific hair constructs and styles are  singled out for different treatment because they do not conform to normative standards  for other races.”

Third time’s the Charm?

The EEOC reports that three federal judges have issued rulings in different cases in recent years rejecting Abercrombie’s claim that it would create an undue hardship and/or violate Abercrombie’s free speech rights to require the company to permit employees to wear hijabs. Title VII requires employers to accommodate the sincere religious beliefs or practices of employees unless doing so would impose an undue hardship on the business.

Abercrombie & Fitch last month settled two EEOC lawsuits involving its “Look Policy” –  an internal dress code that included a prohibition against head coverings.

The settlement follows a ruling by U.S. District Judge Yvonne Gonzalez Rogers ruled that Abercrombie was liable for religious discrimination in the firing of Muslim employee Umme-Hani Khan for wearing her hijab.

Khan, 19, started working in  2009 at the firm’s Hollister store (an Abercrombie & Fitch brand targeting teenagers aged 14 through 18) at the Hillsdale Shopping Center in San Mateo, Calif.  As an “impact associate,” she worked primarily in the stockroom.  At first she was allowed to wear headscarves in Hollister colors. Several months later, she was informed that her hijab violated Abercrombie’s “Look Policy” and that she would be taken off schedule unless she removed the hijab while at work.  Khan refused and was fired on Feb. 23, 2010.

Judge Rogers rejected Abercrombie’s argument that its Look Policy goes to the “very heart of [its] business model” and any deviation from the policy threatened the company’s success. She said Abercrombie offered only “unsubstantiated opinion testimony of its own employees to support its claim of undue hardship.”  That testimony, she added, demonstrated “their personal beliefs, but are not linked to any credible evidence.”

Abercrombie settled Hahn’s case along with a lawsuit by Halla Banafa, who was not hired as an “impact associate” in Abercrombie’s Great Mall outlet in Milpitas, Calif., because of her headscarf. In April, U.S. Judge Edward J. Davila dismissed Abercrombie’s undue-hardship claims on summary judgment, citing the “dearth of proof” linking store performance or the Abercrombie brand image to “Look Policy” compliance.

The settlement requires Abercrombie to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations to the “Look Policy” may be available, and incorporate headscarf scenarios into all manager training.  The company must make regular reviews of religious accommodation decisions to ensure consistency and provide biannual reports to the EEOC and Khan.  Khan and Banafa will also receive $71,000 under the terms of the settlement.

In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011  that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. The case is pending on appeal.

Lots of Work for New Labor Secretary

Perez Faces Daunting Obstacles

Labor Secretary Tom Perez pledged this week to aggressively defend workers rights in a speech to the AFL-CIO but it may be a bit early to break out the balloons and confetti.

For one thing, Perez, who was appointed by President Barack Obama in July, has little power to overcome some of the daunting obstacles facing both the labor movement and American workers generally.

Research earlier this year documented what many casual observers already knew – the U.S. Supreme Court is, in fact,  the most anti-employee rights court in modern U.S. history.

In the past two years, the Court has issued decisions that make it far more difficult for plaintiffs to prevail in employment discrimination lawsuits, retaliation lawsuits and class action lawsuits. See One-Two Punch by Anti-Worker Court and Wal-Mart Doges Bullet.

Congress has done little or nothing to repair these devastating blows to worker rights.

Congress has not even addressed the Court’s absurd 2009 decision in Gross v. FBL Financial Services  to treat plaintiffs in age discrimination lawsuits less favorably than plaintiffs in race or sex discrimination lawsuits.

Finally, Congress’ so-called budget compromise – the sequester  – threatens to devastate the U.S. Department of Labor, which faces a potential budget cut of up to 26 percent in 2014.

Still …  Let the wind be at his back as Perez defends collective-bargaining rights, aggressively enforces wage laws and takes steps to improve workplace safety.

He also plans to crack down on employers who unlawfully misclassify workers as contractors instead of as employees and extend wage protections—such as overtime pay—to groups like home health-care workers who now have limited protections. Mr. Perez also said the DOL also will focus on job-training skills, calling he agency the “Department of Opportunity.”

And there’s no time like the present!

Union membership is down from a high of 20 percent in 1983 to 11.3 percent in 2012 (of which only 6.6 percent are private sector workers).

 

One-Two Punch by Anti-Worker Court

The U.S. Supreme Court continued its march toward being the most anti-employee rights court in modern U.S. history by issuing two decisions this week that make it more difficult for workers to gain the protection of federal discrimination laws.

In both decisions, the Court was divided along the same ideological lines. Voting in the majority were  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy  and Alito.  Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Supervisor?

In the first case, the Court threw out a lawsuit filed by a Maetta Vance, a black catering worker at Ball State University in Indiana. who said a white colleague whom she regarded as a supervisor slapped and intimidated her. Vance also said she was generally subjected to racially offensive  epithets in the workplace.

 The Court said the alleged harasser didn’t meet the legal definition of supervisor, even though the woman’s job description said she was a supervisor, because she couldn’t fire Vance.  

Justice Samuel Alito, writing for the majority in Vance v. Ball State University, said workers qualify as supervisors only if they can take  “tangible employment actions” against the alleged victim (i.e., hire,  suspend, transfer, demote, fire, discipline). 

The issue is important because employers are vicariously liable under Title VII of the Civil Rights Act of 1964  for discrimination by supervisors (but not co-workers) that culminates in a tangible employment action.

The dissent questioned why the majority chose to articulate its restrictive  definition of a supervisor:

“Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts …  Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.”

 The  opinion completely rejects an approach adopted more than a decade ago by the U.S. Equal Employment Opportunity Commission and several appellate courts that a supervisor is an employee who has the authority to recommend tangible employment decisions or is authorized to direct the employee’s daily work activities.

The majority also rejects the common dictionary definition of the term:

su·per·vise:  to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of.  (Dictionary.com)

Under the decision, victims of illegal harassment by non-supervisors can still sue an employer for negligence if they can show the employer failed to monitor the workplace, respond to complaints or effectively discouraged complaints from being filed. The majority also said an employer can be held to have “delegated” the power to take tangible employment actions to employees upon whose recommendation it relies. The majority upheld the lower court finding  that Ball State was not negligent because it took “reasonable steps” to halt the discrimination.

Retaliation

In the second 5-4 ruling, the Court made it much more difficult for workers  to win claim o f retaliation against employers in discrimination lawsuits.

The plaintiff  in University of Texas Southwestern Medical Center v. Nassar,  Dr. Naiel Nassar, a physician, said he was denied a faculty position with a University of Texas medical center because he complained he was  the victim of discrimination on the basis of his Middle Eastern background.

 Justice Anthony M. Kennedy, writing for the majority, said a worker must show that retaliation was the “but for” reason that  the employer took action, not merely one of several motives.  In other words, the  plaintiff must show the retaliation would not have occurred “but for”  the defendant’s discriminatory conduct. 

Justice Kennedy cites the Court’s somewhat notorious ruling in  Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176.  In that case, the Court  distinguished  the Age Dis­crimination in Employment Act of 1967 from other discrimination claims by requiring plaintiffs to prove that age discrimination was the “but for” cause of any adverse employment action.  It is a rare case that an employer cannot point to at least one other factor to justify an adverse employment action. The Gross decision has made it exceedingly difficult for plaintiffs to win age discrimination claims.

In her dissent, Justice Ginsburg wrote:

“The ball is once again in Congress’s court to correct the error into which the court has fallen and to restore the robust protections against workplace harassment the court weakens today.”

The American Council on Education and five other higher-education groups urged the justices, in a friend-of-the-court brief, to base their test of whether someone is a supervisor on the amount of authority possessed by the worker rather than workplace titles or worker perceptions.

A recent study published in the Minnesota Law Review determined that the Court is  the most pro-business Court since World War II.

* See earlier coverage of Vance case.

 

 

 

U.S. Supreme Court Decidedly Pro-Business

justice-scale-761665_1This blog has questioned whether employees who file discrimination lawsuits get a fair shake from federal judges who have lifetime tenure barring bad behavior.

Now there is a comprehensive study that shows the U.S. Supreme Court is the most pro-business court since World War II.

An article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Supreme Court Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946. 

And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

In the eight years of Chief Justice Robert’s tenure, workers have lost ground while corporations have gained ground. Some of the pro-business decisions include:

  • In Genesis HealthCare Corp. v. Symczyk, the Court in a 5-4 vote in April 2013 dismissed a proposed class action case filed by a nurse who alleged her employer docked employees for meal breaks even when they worked through the shift  in violation of the Fair Labor Standards Act.  The Court ruled the nurse’s lawsuit was moot because the company offered her a settlement – even though she rejected the settlement – and therefore could not be the basis for a class  action lawsuit..
  • In Wal-Mart v. Dukes, the Court in  2011 by a vote of 5-4, refused to certify a class action of 1.6 million female employees who alleged discrimination  in pay and promotion policies and practices in Wal-Mart stores. The Court said the plaintiffs did not have enough in common to be a class.
  • In Knox v. Service Employees International Union, Local 1000,  the Court in 2011 effectively curtailed a union’s ability to raise money for political purposes. The Court in a 7-2 vote overturned a longstanding rule that  that  non-union members covered by union contracts be given the chance to “opt out” of the assessment of special union fees for political expenses. The Court said the First Amendment requires that non-members should be sent a notice giving them the chance to “opt in” to the special assessment.
  • In  Gross vs. FBL Financial Service, Inc.,  a 5-4 decision issued in 2009, the Court made it much more difficult for plaintiffs to win age discriminations lawsuits by requiring workers to show that age discrimination was the “but for” cause of the adverse employment action (i.e. termination) they suffered. In other discrimination cases, the discriminatory motive need only be one factor in the adverse employment decision.

The study in Minnesota Law Review looked at cases with a business on one but not both sides. The adversary might be an employee, job applicant, shareholder, union, environmental group or government agency. A vote for the business was counted as a pro-business vote.

The study concluded, “the Roberts court is indeed highly pro-business — the conservatives extremely so and the liberals only moderately liberal.”

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium on April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts. These cases are dismissed at a  significantly higher rate than non-employment cases before they ever to get a jury.

EEOC Settles1st Genetic Discrimination Suit

GenesThe U.S. Equal Employment Opportunity Commission has settled its first  lawsuit alleging genetic discrimination.

 Fabricut, Inc., one of the world’s largest distributors of decorative fabrics, has agreed to pay $50,000 to a woman who  applied  unsuccessfully for a position of memo clerk at the company.

The Tulsa, Oklahoma corporation “allegedly” violated Genetic Information Nondiscrimination Act of 2008  when it asked job applicant Rhonda Jones for her family medical history in its post-offer medical examination. Jones was required to fill out a  questionnaire asking about “the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and ‘mental disorders’ in her family.”

The EEOC filed the lawsuit and the settlement on May 7 in U.S. District Court for the Northern District of Oklahoma. The EEOC called it  the first lawsuit ever filed by the EEOC alleging a violation of GINA. 

“Fitness for Duty”

 This may be the first EEOC lawsuit alleging genetic discrimination but it follows a controversy last year when the EEOC sought to enforce an administrative subpoena seeking genetic information collected by Nestle Prepared Foods.

The EEOC was investigating a complaint of genetic discrimination by Nestle employee Michael Peel, who was fired a month after he was required to complete a “fitness-for-duty” medical examination that included the collection of his family medical history.

 Nestle and the National Chamber of Commerce objected to the subpoena.

 A federal judge in Kentucky refused to enforce the subpoena after concluding he was “ not persuaded that [the EEOC] has free reign to conduct a broad, company-wide investigation based upon a single  allegation of an isolated act of discrimination.”

Disability Issue 

Fabricut also was charged with violating the Americans with Disabilities Act (ADA) because it  deemed Jones unsuitable after concluding that she had carpal tunnel syndrome even though Jones’ physician said she did not have carpal tunnel syndrome. The ADA prohibits discrimination against qualified individuals with disabilities and  individuals who are incorrectly regarded as having disabilities.

After working a temporary position as a memo clerk for 90 days, Jones applied for a permanent job. Fabricut made Jones an offer of permanent employment on Aug. 9, 2011, and sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. Jones was required to fill out a questionnaire seeking disclosure of medical disorders in her family’s medical history.

 The examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome. Fabricut told Jones she needed to be evaluated for CTS by her personal physician and to provide the company with the results. Jones’s physician gave her a battery of tests and concluded that she did not have carpal tunnel syndrome. Despite this Fabricut, rescinded its job offer because Knox Labs indicated that she did have carpal tunnel syndrome.

 Fabricut  also agreed to disseminate anti-discrimination policies to employees and provide anti-discrimination training to employees with hiring responsibilities.

 Title II of GINA prohibits employers with more than 15 employees, employment agencies, labor organizations, and joint labor-management training and apprenticeship program committees from using genetic information when making employment decisions (e.g. hiring, firing, promotions, placement, compensation, privileges, seniority, etc.).

 

 

Judges Who Blog

gavelI was surprised to find out this week from LawSites that I may be one of only three judges in the United States who “blog.”

 I am an appellate justice for a Native American tribe in Northern Nevada. I work for a sovereign nation that has its own court and code of laws but  is bound to the United States by a complex series of federal laws and treaties.  I formerly worked as a tribal court judge for another tribe.

 I don’t blog about being a judge, per se, though that experience undoubtedly informs my blog.

I write about employment discrimination, workplace bullying and abuse – from a worker’s perspective.  I began blogging after I took a job at a national domestic violence organization and became a target of a bullying supervisor.  I have since written a book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

 I find it appalling that the United States is one of the few industrialized countries in the world that does not protect workers from workplace bullying,  which is a widely recognized form of  violence that can severely impact a target’s health, lead to physical violence,  and costs society billions each year in lost work hours, higher medical costs, social services expenditures, etc.

 Back to blogging judges  …

 It seems a shame to me that more judges don’t blog. Their silence supports the status quo, which works largely to benefit corporate interests, the powerful and the rich (who contribute to political campaigns).   

 I would argue that silence does not serve the judiciary.  As Alexander Hamilton stated in The Federalist Papers,  the judiciary is the weakest branch of government because it controls neither sword nor purse.  The judiciary has utterly failed to make its case to American taxpayers for  appropriate funding.

 According to the American Bar Association,  most states have cut court funding by at least ten percent in recent years. Many states have stopped filling judicial vacancies and/or laid off judges. Many states have frozen or cut the salaries of judges or staff, despite ever increasing caseloads.  Many courts have reduced their opening hours or even close on some work days.

 It’s almost like the painful post-Internet downfall of the Post Office, but there is no satisfactory alternative to the court system for the vast majority of Americans.

 By its silence, the judiciary fails in particular to effectively champion the plight of people who need a just resolution of civil disputes. Civil courts are largely inaccessible to the poor and, increasingly, to the middle class. This has led to injustice on a massive scale. Meanwhile,  taxpayers become more disillusioned, which makes the judiciary even weaker.  

 I suspect that some people find the judiciary  to be arrogant and secretive – perhaps because its leaders on the U.S. Supreme Court refuse to allow their proceedings to be televised and it’s virtually impossible to work there unless you graduate from an Ivy League law school.  

Also, judges seem to think – admittedly with some justification – that they will never be promoted if they voice a public opinion on anything that is  more substantial than the weather.

 But the biggest disservice that is done by the silence of the judiciary involves the public perception of the work of a judge.  

 Many people don’t realize that being a judge is really hard work.  Imagine trying to make a good decision,  with the clock running,  rarely enough reliable information or too much conflicting information to be helpful, with emotions running high on both sides.  Even if the stakes seem low to you or me, they are always high to the litigants.

 A few years ago, a judge in Reno, NV, was shot while standing in his office through a plate glass window  by a sniper crouched in a parking lot across the street from the courthouse. The sniper was a litigant in a divorce case who had just murdered his wife. The judge was presiding over that case.   

 A good judge must be strong enough to make the right decision when it does not serve that judge’s interests. When it goes against the grain of powerful people who feel entitled to more justice than they deserve. A good judge must be strong enough to do the right thing when it could alienate a campaign donor or someone with power over the judge. It can be  like a politician from a “red” state  who has to vote on gun control every day.

Justice is the elusive goal that good judges strive to reach in their deliberations.  But justice is often a moving target. It can be difficult to find the bulls-eye. If you make a “mistake,” there is  an appeals court that will point it out.  Sometimes you make the right decision legally but you know in your heart that it isn’t right on a moral or human level.  You don’t forget those cases.

 There is so much about the judiciary that people don’t know because the judiciary has not told them. I think more judges blogging might help people understand that the course of justice is often imperfect, even when everyone is working in good faith toward a just resolution.

Knowing that so few judges blog makes me feel oddly vulnerable – like the soldier who stands up in a field while bullets whistle past.  Alas, it may be  time to  give up any expectation of promotion to the federal bench.  

 

 

The Incredible Shrinking EEOC

incredible shrinking manThe U.S. Equal Employment Opportunity Commission (EEOC )  received 99,412 private sector workplace discrimination charges during fiscal year 2012 but determined that only 4.3 percent – or 1,800 cases – were based on “reasonable cause.”

That tiny number actually reflects a slight increase from 2011, when the EEOC found that 4.1 percent of cases (1,707 cases) were based on reasonable cause. This was the lowest number since 1998.

If the EEOC  concludes a case is not based upon reasonable cause, it will not  pursue the case. The charging party can still bring a private court action – if he or she has the money to pursue litigation and can find an attorney who will take an employment discrimination case in the face of a federal judiciary that is  hostile these types of cases.

The number of charges determined by the EEOC to have “reasonable cause” has steadily declined from a high of 12 percent in 2001, when the EEOC found that 3,012 cases were based on reasonable cause.

Does this indicate that more workers  are filing bogus charges against their employers?

According to the EEOC, a finding of “reasonable cause” means the EEOC believes “that discrimination occurred based upon evidence obtained in investigation.” A finding of “no reasonable cause” means the EEOC found “no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation.”

Linguistics  notwithstanding, the decline in cases that the EEOC deems are based on ““reasonable cause” more likely reflects  the  EEOC’s changing priorities  in the face of budget cutbacks. The EEOC last year adopted a strategic plan to focus more upon systemic patterns of discrimination. Meanwhile, the EEOC is attempting to whittle down a massive backlog of more than 70,000 cases.

The EEOC reports that in 2012 it filed a total of 122 lawsuits, including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits

The EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million.The year-end data show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges.

The EEOC lost about nine percent of its staff as a result of budget cuts in the past two years, according to the American Federation of Government Employees (AFGE). Gabrielle Martin, president of AFGE’s National Council of EEOC Locals, No. 216, warns  that threatened budget cuts in March would effectively cripple the EEOC and mean that “the United States would cease to have enforceable civil rights in the workplace.”

Overall, the EEOC  in 2012 secured monetary and non-monetary benefits for more than 23,446 people through administrative enforcement activities – mediation, settlements, conciliations, and withdrawals with benefits. The number of charges resolved through successful conciliation, the last step in the EEOC administrative process prior to litigation, increased by 18 percent over 2011.

The fiscal year runs from Oct. 1 to Sept. 30.