Perception of Race Inequality ‘Widespread’ in Federal Sector

blackhandA panel formed  by the U.S. Equal Employment Opportunity Commission (EEOC) in 2010 to identify obstacles faced by blacks  in the federal workplace  reported  this month that  “widespread perceptions of inequality” persist  among African American workers.

The report by the EEOC  African American Workgroup says that blacks who work for the federal government are victims of significant unconscious discrimination and stereotyping that falls outside the  current ambit of federal race  discrimination laws.  An example of unconscious bias  in the report is a supervisor’s failure  to mentor or groom African Americans for promotion because  of an unconscious belief or stereotype that African Americans are not seen traditionally as leaders.

The report also states that EEOC regulations are not being effectively enforced by federal agencies. The report states that  many agencies attain technical superficial compliance with EEO regulations and directives but “there is an overall lack of commitment by the agency heads to ensuring equal employment opportunities.”  Furthermore, the report states that some agencies view equal employment directives as “a burdensome adjunct to the operations of the agency.”

 Interestingly, the workgroup did not issue a typical report with specific recommendations. Instead, the workgroup related the findings and conclusions of  “dialogue partners” who were consulted by the workgroup, including federal Equal Employment Opportunity directors, Blacks in Government and the African American Federal Executives Association.

 The so-called dialogue partners concluded that the EEOC “lacks sufficient enforcement powers” to effectively combat discrimination and eradicate impediments for African Americans in the federal workforce.   The report is particularly critical of the EEOC’s inability to force agencies to discipline managers who were found to have engaged in unlawful discrimination.

According to the workgroup, the dialogue partners recommend the following steps to remove obstacle facing African Americans in federal employment:

  • Conduct unconscious bias training for all employees so they can become aware of their biases. 
  • Legal experts must analyze how unconscious bias can be evaluated as evidence of discrimination under federal civil rights laws. 
  • Agencies should establish formal mentoring programs and monitor their effectiveness in increasing equal employment opportunities.
  • All agencies should establish an African American “affinity group” and ensure it has the resources to provide meaningful networking opportunities for African Americans.
  • Agencies should establish objective and transparent criteria for granting employees’ requested training and offering developmental assignments. 
  • Agencies should expand recruitment methods by entering into partnerships with African American affinity groups, professional organizations, universities and media that will facilitate dialogue with African Americans who may be interested in careers with the federal government. 
  • Agency heads should make a commitment to address inequities in a proactive and effective manner, and should become more visible and hands-on in managing diversity and holding senior  management accountable for results. 
  • Agencies should ensure that education requirements are job related and a business necessity. 
  • As part of their annual performance ratings, managers, supervisors and senior executives should be evaluated in at least one element that assesses their commitment to equal employment opportunity principles and goals. 
  • The EEOC should publicize findings of discrimination in the federal sector in press releases.
  • The EEOC should seek legal authority to order punishment for responsible management officials.
  • The EEOC should “ issue an agency ‘EEO Scorecard’ that evaluates agencies’ EEO programs, inclusiveness, and accomplishments in various critical EEO elements, and it should be presented in a digestible, user-friendly manner that is available to the public.”

The workgroup cites a 2007 survey by the Merit Systems Protection Board that almost three quarters of all African Americans who work for the federal government report experiencing race discrimination on the job. More than half (51%) reported there was “great” or “moderate” discrimination while 15 percent said the discrimination was “significant.”

EEOC & Age Discrimination: Then and Now

Chart going downWhen the Age Discrimination in Employment Act (ADEA) was 20 years old in 1987, the U.S. Senate Special Committee on Aging sharply criticized the U.S. Equal Employment Opportunity Commission for failing to enforce the ADEA.

What would  Senators Melcher, Heinz, Chiles, Chafee, et. al, say about the EEOC today?

The 1987 Senate  Committee blasted the EEOC in 1987 for, among other things, filing too few lawsuits and  hiring too few experienced staff to evaluated cases.

Today, there are fewer full-time staff members working at the EEOC than there were in 1987 during the Republican administration of Ronald Reagan (who was widely perceived to be hostile to civil rights).

There were 2,941 full-time employees working at the EEOC in 1987, compared to 2,505 in 2011.

And it appears the EEOC filed many more lawsuits in 1987 than it did last year.

Clarence Thomas, now a U.S.  Supreme Court Justice, was appointed to the EEOC in 1982 and was serving as its controversial chairperson in 1987.  Thomas  told the  Committee that the EEOC filed  526 actions in federal district courts in 1986. Of these, he said, a record 109 were lawsuits filed under the ADEA.  More than 25 percent of all cases filed in 1986 were class actions, said Thomas.  And  more than 40 percent of the class action lawsuits were age cases.

The EEOC recently reported that in fiscal year 2012 it filed only 122 lawsuits in federal court,  including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 “systemic suits.”

Does lack of funding account for the paltry  number of lawsuits filed by the EEOC in 2012 compared to 1987?  No. The EEOC budget was $165,000 million in 1987 compared to $360,000 million in 2012.

The 1987 commitee generally was not satisfied with the EEOC’s performance. “It’s all well and good to have a strong bill on the record protecting the aged and preventing discrimination based on age in the work force but if the law isn’t enforced, then we haven’t got much,” said committee member John Chafee, then a senator from Rhode Island.

It appears that no one is criticizing the EEOC’s performance today.

Successor Committee

Interestingly, there is still a U.S. Senate Special  Committee on Aging in existance – though it  appears to lack the diligence of the 1987 committee.

Today’s Senate Select Committee on Aging does not mention the problem of age discrimination on its web page. Nor does it mention age discrimination as an issue of concern on its issue page. And it has no schedule listed for hearings in 2013.

The  issues of interest to the modern-day U.S. Senate Committee on Aging are elder abuse and fraud, long-term care, Social Security and Medicare, prescription drug costs and retirement security.

The Committee explains the retirement security problems this way: “Saving for retirement has shifted dramatically in recent decades, and seniors now increasingly face retirement with little money saved or little guaranteed income due to the shift away from traditional pension plans toward the 401(k) plan.

Of course, this explanation fails to acknowledge that many people over the age of 40 consider age discrimination to be a problem that has serious implications for retirement security.

In 2012, the EEOC received 22,857 complaints of age discrimination – 23 percent of  the 99,412 discrimination complaints it received that year.

According to a  report last year in  the New York Times, a “startling proportion” of older people report they’ve experienced discrimination –  63 percent –  in a study recently published in Research on Aging.  Age is the most commonly cited cause, followed by gender, race or ancestry, disabilities or appearance.

 Cases Harder to Win

Meanwhile, it is considerably more difficult today for older workers to win an age discrimination lawsuit, no matter how egregious the discrimination, because of a  decision by the U.S. Supreme Court,  Gross v. FBL Fin. Servs., 557 U.S. 167 (U.S. 2009).

The Supreme Court held in Gross that a plaintiff in an age discrimination case must prove that  “but for” age discrimination, he or she would not have suffered the adverse job action (i.e. demotion, dismissal).   In most other types of discrimination, the plaintiff must only show the existence of age discrimination — not that it was the cause of the adverse action.

Interestingly, Supreme Court Justice Thomas, the first African-American to head the EEOC and to serve on the U.S. Supreme Court,  wrote the Gross  opinion.

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.

Dance Over: College Must Pay

The dance is over for Marymount Manhattan College.

 The EEOC has announced that  Marymount, a private liberal arts college in New York City,  has settled a lawsuit filed by EEOC alleging that it refused to hire a choreography instructor for a tenure-track assistant professorship because of her age.

dancer The EEOC prosecution  appeared to be the first salvo by the EEOC in the war against rampant age discrimination in higher education.

 According to the EEOC’s suit, Marymount passed over a 64-year-old applicant for an assistant professorship in dance composition who had been working at Marymount, and instead hired a 38-year-old applicant. The suit charged that this violated the Age Discrimination in Employment Act (ADEA), which prohibits age discrimination against employees and job applicants who are age 40 or older.

 By the terms of the consent decree settling the suit, Marymount agreed to pay $125,000 to Patricia Catterson. Further, it agrees to comply with the requirements of the ADEA. The decree also requires monitoring and training on anti-discrimination law. The decree will last for four years.

Marymount initially selected Ms. Catterson and two other applicants as finalists for an assistant professorship in dance composition.  After determining that the  Ms. Catterson was the leading candidate,  Marymount’s search committee expanded its search to include the less qualified younger applicant as a fourth finalist because it considered her to be “at the right moment of her life for commitment to a full-time position.”

 New York District Director EEOC Kevin Berry said, “Under the law, age has no place in making hiring decisions – and tenure-track positions in academia are no exception.

Ms. Catterson had been teaching as an adjunct professor in MMC’s Dance Department for 10 years. She had also been on the faculty of The Juilliard School, Princeton University, and Manhattanville College.

Crime & Sexual Harassment

_41030565_mugging_203_bbcWhy isn’t sexual harassment a crime in the United States?

 It is in France.

 France’s General Assembly enacted a new sexual harassment law on July 31, 2012 that includes criminal penalties of up to three years in prison and a fine of approximately $56,000 for serious cases.

 The new French law defines harassment as imposing on someone, in a repeated way, words or actions that have a sexual nature and either undermine the person’s dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation.

 In the United States, sexual harassment is prohibited by Title VII of the 1964 Civil Rights Act. The remedy is civil, which means it is up to the victim to sue and the damages are monetary and/or  injunctive relief.  In criminal cases, a prosecutor sues on behalf of the state and may seek  fines and imprisonment.

It can be very difficult to win a sexual harassment case in the United States. The  U.S. Supreme Court has ruled that U.S. law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  This leaves a lot of room for interpretation by judges, especially with respect to whether sexually harassing conduct  is frequent enough  and severe enough to be actionable.

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that WirelessComm, a Northern California distributor for the Metro PCS cell phone service provider, had agreed to pay $97,000 to settle a sexual harassment lawsuit filed by the agency.

 According to the EEOC’s lawsuit, the store manager of WirelessComm in Watsonville, CA,    subjected then-19-year-old Deisy Mora to abuse throughout her seven months of employment at the store

He frequently commented about her physical  appearance, texted her photos of himself and the words “Te quiero” (‘I love  you’ in Spanish), and referred to women in general with slurs and epithets.

In addition, the EEOC said, the store owner  contributed  to the harassmen by inviting Ms. Mora to travel with him, asking her and others if  they were pregnant and, on one occasion, asking her to text photos of herself  and other female staff members.

The EEOC says Ms. Mora’s complaints were not addressed and she eventually quit her job  when she could no longer endure the harassment.

 What happened to the store manager and the store owner?

Under the consent decree, WirelessComm agreed to train the store owner and staff regarding anti-discrimination laws.  But there is no indication the WirelssComm store owner and store manager didn’t understand anti-discrimination laws in the first place, only that they didn’t place any importance on these laws and didn’t follow them.

The EEOC said  WirelessComm also  agreed to hire an equal employment opportunity consultant and a human resources consultant to revise its EEO policies; monitor the workplace; respond to any allegations of harassment arising during the three-year  pendency of the decree; and report harassment complaints to the EEOC.

In other words, WirelessComm will start following the law.

In  the final analysis, it seems like a small price  to pay for a campaign of a harassment waged by two adult men in positions of authority against a  vulnerable teenager.  If the store owner and store manager had mugged Ms. Dora while she was walking down a street, they’d probably spend at least some time in jail.  Here  they stole  her peace of mind and robbed her of  financial security in a time of high un employment.

 The United States recognizes two types of sexual harassment: (1) quid pro quo and (2) hostile environment.

 Quid pro quo is Latin for “this for that.” This type of harassment occurs when a  boss or supervisor asks for a sexual favor in return for a job benefit.

 Hostile environment sexual harassment occurs when the harassment is so severe or pervasive that it creates a sexually intimidating or abusive work environment. Hostile environment sexual harassment must be:

  • based on sex (sexual conduct, sexual comments, or nonsexual conduct that is based on your gender);
  • unwelcome (you must show that you do not enjoy the harasser’s attention and that you are not encouraging it); and either
  • severe (one or more serious incidents that affect your job) or pervasive (a pattern or series of smaller incidents that are so widespread that you have trouble doing your job as a result).

SEXUAL HARASSMENT, DINE EQUITY & PEANUTS

peanutsThe EEOC has been settling lawsuits at a frenzied pace of late, some for the monetary equivalent of peanuts.

This week, the EEOC settled for $1 million a sexual harassment case filed against IHOP restaurants in New Mexico that are owned and operated by Fahim Adi.  The EEOC says the case is the second-largest litigation settlement ever reached by the EEOC’s Albuquerque Area Office.  An EEOC press release says:  “At least 22 women are expected to receive relief through the decree.”

If it  is only  22 women and they split full amount of the award equally among themselves  – without any deductions by the EEOC for fees and costs – they will each get about $45,454.

I submit that this is not a large amount of money for women – some were teenage girls – whom the EEOC says were subjected to sexually offensive conduct by Lee Broadnax, then manager of the defendant’s IHOP restaurant. The EEOC doesn’t go into details but says Broadnax’ illegal conduct included sexual comments, innuendo and unwanted touching (i.e., otherwise known as battery).

Some of the women were forced to quit their jobs because IHOP did nothing when they complained.  People who work as servers at a pancake house generally are not well-to–do and this is not an economy where jobs are easy to find.  Some of the victims were pretty college girls en route to a better future but others were mature women (including several members of a minority group).

One wonders how many IHOP  employees were forced to tolerate abuse because they had children to feed at home and no other options?

The figure of $1 million particularly pales when one considers the IHOP brand is owned by Dine Equity, Inc., which is based in Glendale, California and also owns the Applebee’s Neighborhood Grill & Bar brand.

According to Nation’s Restaurant News  magazine, Dine Equity had $7.9 billion in food service sales in 2011, making it  the ninth rranked in the United States for  “systemwide foodservice sale.”  For the quarter ending Sept. 30, 2012, DineEquity’s net income almost quadrupled to $58.7 million.  DineEquity operates almost entirely through subsidiaries and over 400 franchisees, which operate 1,842 Applebee restaurants and 1,535 IHOPs  around the world.

Dine Equity  vigorously enforces any encroachment upon the the IHOP brand.   One wuld hope that Dine Equity also would vigorously enforce the human rights of employees in IHOP and Applebee restaurants.  What could Dine Equity do?  For one thing, Dine Equity could train franchisors to follow  discrimination laws and respond appropriately to complaints. Dine Equity also could get rid of franchisors that tolerate hostile work environments and fail to respond to discrimination complaints.  Now that would get their attention!

Don’t get me wrong. If the EEOC had not taken on this case, it is quite possible that some of these victims would not have gotten anything at all (except, possibly Post Traumatic Stress Syndrome).  Courts seem to be utterly unsympathetic to victims of employment-related discrimination these days, which is probably why it is so prevalent in society. Poor people can’t afford to hire lawyers and pay court costs.  But lets get real – $1 million is  not exactly a windfall for people who likely suffered emotional trauma and stress and whose lives were completley upended by an IHOP franchisor.

In addition to the monetary relief, the decree prohibits the defendants’ IHOP restaurants from further discriminating or retaliating against its employees and requires IHOP to implement policies and practices that will provide its employees a work environment free of sex discrimination and retaliation. The defendants must also provide its employees in Bernalillo and Sandoval County IHOPs with anti-discrimination training and notice of the settlement.

In this case, the IHOP franchisor ignored the women’s sexual harassment complaints. Training cannot solve an employer’s lack of motivation to protect its workers from sex discrimination.

Band-Aid Not Enough in Sexual Harassment Case

NOTE:  On 1/23/13, a federal judge  denied a request from a lawyer for Paul’s Big M Grocer to reduce the $467,269 punitive damages portion of the jury verdict against the store, former manager Allen Manwaring and the store’s owner, Karen Connors.

A federal appellate court panel has issued an important ruling that it is not enough for employers to pay off victims of sexual harassment. They also must fix the underlying problem that led to the harassment.

The U.S. Court of Appeals for the Second Circuit in New York ruled on Oct. 19, 2012 that a lower court abused its discretion in denying any injunctive relief in a sexual harassment case brought by the U.S. Equal Employment Opportunity Commission.

Injunctive relief is essentially a court order that requires the employer to stop the practices that led to the discriminatory conditions.

“At minimum, the district court was obliged to craft injunctive relief sufficient to prevent further violations of Title VII by the individual who directly perpetrated the egregious sexual harassment at issue in this case,” ruled a three-judge panel of the appeal courts.

The case, EEOC v. Karenkim, Inc., 11-3309 (2nd Cir. 2012), involved  Paul’s Big M Grocer, which is owned by Karenkim, Inc.,  in Oswego, New York. Karenkim  was found liable for sexual harassment and fostering a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964.  The jury awarded the ten members of the class of defendants a total of $10,080 in compensatory damages and $1,250,000 in punitive damages. The  award was subsequently reduced pursuant to a statutory cap to a total of $467,269.

The store is owned and managed by Karen Connors, who hired the store manager, Allen Manwaring, in 2001.  Connors and Manwaring almost immediately began a romantic relationship and now are engaged and have a son together. Women who worked at the store, some as young as 16, complained to no avail that they were being sexually harassed by Manwaring. Some were  terminated after filing a complaint.

At one point, Manwaring was actually arrested and pled guilty to second degree harassment after he approached an employee, a  high school student, who was talking on the phone, stuck his tongue in her mouth as she was talking and then walked away “with a smirk on his face.”    In deposition testimony, Connors said she did not believe Manwaring had done anything wrong and accepted his explanation that he had “falleninto” the girl.

The store had no anti-harassment policy until 2007 and no formal complaint procedure until after the trial.

 The EEOC asked the court for an injunction because the store had “not adopted adequate measures to ensure that harassment of the kind at issue in this action does not recur.”  Specifically, the EEOC noted that Connors and Manwaring remained in a romantic relationship, that Manwaring still worked at the store as a produce contractor, and that following the verdict Manwaring continued to deny he had engaged in sexual harassment.

The district court denied the EEOC’s request for injunctive relief, ruling it was unnecessary and overly burdensome in that it would require the defendant to “alter drastically its employment practices …”

The appeals court said that ordinarily terminating a lone sexual harasser might be sufficient to eliminate the danger that the employer will engage in subsequent violations of Title VII. In this case, however, the Appeals Court noted that Manwaring,  the store manager, engaged in harassing conduct that was “unchecked for years” because he was involved in a romantic relationship with the owner – a relationship that continues.

The appeals court panel said the EEOC’s requested ten-year proposed injunction was overly broad but that the lower court at least should have prohibited the store  from directly employing Manwaring in the future and from entering the store premises. In addition to those provisions the EEOC had asked the court to order KarenKim to hire an independent monitor for the store.

The appeals court concluded that under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate. … Once a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it believes appropriate.”

Personality tests and Grocery Baggers

For decades, American law has moved in the direction of eliminating subjective and sometimes discriminatory considerations in the hiring process and emphasizing objective and merit.-based factors. But many employers today seem oblivious to this trend.

 A 2011 poll by The Society for Human Resource Management found that 18 percent of 495 randomly selected Human Resource professionals use some kind of personality test in the hiring or employee promotion process.

Generally, it is not unlawful for an employer to hire or promote employees on the basis of results of professionally developed ability tests provided that the tests are not designed to be used in a discriminatory fashion. However, it is essential the employer can demonstrate the tests are predictors of, or significantly related to, important elements of work behavior and successful job performance. The court will ask whether these  tests are effective predictors of success or just another way to hire “people like us”?  

According to ABC News, the Equal Employment Opportunity Commission is investigating the case of Vicky Sandy, who applied for a job as a cashier, bagger and stocker at a Kroger Supermarket in West Virginia. She took a 50-question personality test that was designed by Kronos, a workforce management solutions company, to predict whether she would be friendly and communicate well with customers.

Alas, Sandy, who is hearing- and speech-impaired, was not hired. She scored 40 percent on the test and was deemed less likely to listen, use correct language and correct enunciation.

Does it seem obvious that Sandy might have scored better if she were not hearing- and speech-impaired? And can a personality test really assess whether Sandy would be 40 percent worse at bagging  than a non-hearing impaired applicant who scored 100 percent on the test?

Are these personality tests really any better than a hiring officer who decides not to hire a highly-qualified applicant because he didn’t feel that she was as perky or enthusiastic as a recent law school graduate?

Personally, when I graduated from law school, I interviewed at a big firm where I endured six interviews on the same day by six male partners who each asked me about my aptitude for softball. The fact that I wear glasses and frequently bump into things may be a clue to my answer.  I was not hired.  (I hear they got a good first base player though.)

Discrimination is far more subtle today than it has ever been. One cannot help but wonder about whether personality tests really do predict future job success?  Or do they serve as a useful tool to justify hiring discrimination?

I’ve encountered baggers at my supermarket who appear to suffer from significant mental and/or physical disability and they do just fine.  Although  admittedly they don’t all have perfect diction, I get what they’re saying, especially if they’re smiling when they hand me my groceries. 

Remember the psychological test that claimed to reveal whether an injured plaintiff was really suffering?  The so-called Fake Bad Scale (FBS), which scores suspected malingerers via a series of questions, was widely used by expert-witness neuropsychologists for insurance companies.  FBS inventor Dr. Paul Lees-Haley, who garnered 95% of his income from appearing as an expert defense witness, chose its 43 questions from the more than 500 in the oft-used Minnesota Multiphasic Personality inventory (MMPI) test.

A retired University of Minnesota psychologist, Dr. James Butcher, said of the Fake Bad Scale “virtually everyone is a malingerer according to this scale … This is great for insurance companies, but not great for people.”

A Florida circuit judge in 2007 dismissed the value of the FBS in uncovering fakers:  “The Court concludes that the FBS is very subjective and dependent on the interpretation of the person using or interpreting it … There is no definitive scoring because the scoring has to be adjusted up and down based on the circumstances and there is a high degree of probability for false positives.”

After the Florida judge dismissed the FBS evidence,  the jury awarded the Plaintiff $1.4 million.

Time will tell how a future judge or jury – if it gets to them- evaluates the usefulness of the personality test administered by Kroger in Ms. Sandin’s case.

But for employers who are adverse to risk, it might be good idea to wait and see what happens.

The EEOC’s New Gameplan

The situation in the United States is bleak, to say the least, for workers who are targets of employment discrimination and harassment.

 Federal courts are blatantly hostile to these types of cases –  dismissing most of them before they ever reach a jury – and our leaders in Washington, D.C., seem to be oblivious.

Part of the problem is that the U.S. Equal Employment Opportunity Commission, the federal agency that is supposed to be combating employment discrimination, is overwhelmed and underfunded.

 The EEOC says there has been  a 38 percent rise in the number of charges filed with the EEOC  against private employers and state and local government employers in the past 20 years.  But  the  EEOC’s staffing levels and funding dropped nearly 30 percent between 2000 and 2008. An infusion of resources in 2009 allowed for some rebuilding of capacity, but that was quickly stalled when funding was reduced and hiring freezes were implemented in FY 2011 and 2012.

The bottom line is that  many observers feel the EEOC has been about  as effective as a gnat battling an elephant in recent years.

 But  it seems that change is afoot. The EEOC is seeking public comment  (see below) on a proposed new strategic plan that it hopes will be more effective than the EEOC’s prior practice of  filing individual lawsuits against select employers. 

In its new plan, the EEOC says it will strategically attack  practices and issues that adversely affect large numbers of employees. The EEOC identifies five national priorities:

1.  Eliminate Systemic Barriers in Recruitment and Hiring. The EEOC will target class-based  hiring discrimination and facially neutral hiring practices that adversely impact particular groups. This includes, for example, steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law.

2. Protect immigrant, migrant and other vulnerable workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

3. Address Emerging Issues. The agency will address emerging issues with respect to:

-The Americans with Disability Act, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;

-Lesbian, gay, bisexual and transgender individuals coverage under Title VII sex discrimination provisions.

-Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

4. Preserve Access to the Legal System. The EEOC will target policies and practices intended to prevent  individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement effort, including retaliatory actions; overly broad waivers; and settlement provisions that prohibit filing charges with EEOC.

5. Combat Harassment. The EEOC will launch a national education and outreach campaign – aimed at both employees and employers – to prevent and appropriately respond to harassment in the workplace.

 Okay, some of this sounds like politically-correct gobbledygook that is incapable of measurement. At the same time, it is encouraging that the EEOC is rethinking its past practices. The  38 percent increase in charges filed with the EEOC  also represents an increase  the suffering of American workers and their families who are subjected to illegal discrimination by employers.  American workers need all the help they can get!

Comments and suggestions must be submitted to the EEOC about the plan by 5 p.m. ET on September 18, 2012 at strategic.plan@eeoc.gov or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. The Commission plans to vote on the draft plan at the end of this fiscal year.

When the Employer is the Bully

One of the most difficult workplace bullying scenarios occurs  when the employer is the bully.

There may be no one to complain to except the harasser.

This scenario occurred to three former employees of a Baltimore medical practice who were subjected to sexual harassment  by two of the company’s highest ranking officials.  They complained to the U.S. Equal Employment Opportunity Commission  (EEOC ), which announced Tuesday that a federal jury had awarded the women $350,000 in damages.

The EEOC filed the lawsuit on behalf of the women against Endoscopic Microsurgery, alleging that Associate’s Chief Executive Officer, Dr. Mark D. Noar, M.D., and  its Chief Financial Officer Martin Virga subjected the women to frequent unwanted sexual comments, physically touching and grabbing a female worker’s rear end, kissing and blowing on female employees’ necks and other sexually egregious comments and touching.

According to the EEOC, after Linda Luz, a receptionist, rejected their advances, the medical practice began retaliating against her by issuing unwarranted discipline, rescinding approved leave, and eventually firing her.

Administrator Jacqueline Huskins also experienced unwanted sexual advances from Noar and Virga, as did nurse Kimberly Hutchinson from Noar.

The Baltimore jury of nine returned a unanimous verdict for the plaintiffs and awarded each woman punitive damages of $110,000. The jury also held the claimants were entitled to compensatory damages in amounts ranging from $4,000 to $10,000.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964.

It says something about this employer that it failed to negotiate a settlement in this case when it had the opportunity to do so. The EEOC filed suit after attempting unsuccessfully to reach a pre-litigation settlement through its conciliation process. Publicity from this fiasco is not likely to encourage new patients to flock to the clinic, nor is it likely to encourage confidence in these medical professionals from existing patients. Duh.

“This verdict is significant because it reminds high-level officials who function as the employer that their high level does not give them license to abuse women – they must treat employees as professionals,” said Debra Lawrence, regional attorney of the EEOC’s Philadelphia District Office.