AARP Official Calls Out EEOC on Age Discrimination

An AARP official has called upon the EEOC to “significantly ramp up” its minimal efforts to combat age discrimination in employment in the United States.

Daniel B. Kohrman, a senior attorney with AARP Foundation Litigation, told a select EEOC panel studying workplace  harassment earlier this month that complaints of age-based workplace harassment grew by about ten percent in the past two years –  from 3,700 in 2012 to 4,157 in 2014 –  which was faster than race and sex-based harassment complaints. However, he said, older workers face unique difficulties in combating harassment and other forms of age discrimination in employment.

Ageism is not treated “as seriously” as other forms of bias, he said.

“First,” he said, “courts, and often our culture, do not treat ageism as seriously as other forms of bias. As a result, age harassment cases often founder because they don’t appear sufficiently severe, even if pervasive, to meet the hostile environment standards.”

Kohrman said some courts demand a level of “animus” to sustain an age-based harassment claim that is not required in the law. He also noted the Age Discrimination in Employment Act does not provide for compensatory (i.e. emotional distress) or punitive damages. An older worker who is not actually fired may not have any legally recognized damages,  he said.

Pot Calling Kettle Black?

This blog has been highly critical of both the AARP and the EEOC for virtually abdicating their responsibility to protect older workers from age discrimination in employment, especially given the epidemic nature of the problem since the Great Recession. In my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show indisputably that older workers literally have been second-class citizens under the law for almost fifty years.

Kohrman indicated that  AARP Foundation Litigation lacks the resources to do more (which is somewhat hard to believe given the fact the Foundation’s parent organization is hauling in billions in profit through sales of Medi-Gap health insurance to seniors).

Groups like AARP Foundation Litigation “may engage in some cases as warranted … [but] capacity for such action generally is limited,” he said. 

Kohrman urged the EEOC to prioritize age discrimination cases, because older workers are essentially  prevented from exercising their rights under employment discrimination statutes.  He cited  three age discrimination lawsuits brought by the EEOC since 2009, adding, “That said, we could only find a few more age-based harassment cases discussed in news releases going back to 2009.”

Kohrman said  research shows that 64 percent of older workers (ages 45-74) say they have seen or experienced age discrimination in the workplace.

Appeals Ct Says OK for Supervisor to Throw Things

shoeA federal appeals court panel  has ruled that a supervisor did not violate the rights of a subordinate when he allegedly yelled at her in front of coworkers and violently threw a heavy notebook at her.

A panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit ruled the above conduct may be  “unprofessional, uncivil and somewhat boorish” but it does not rise to the level of malevolence necessary to constitute a “hostile work environment” under Title VII of the Civil Rights Act o f 1964.

Instead, the appellate panel compared the behavior to the “ordinary tribulations of the workplace,” which include petty insults, vindictive behavior and angry recriminations.

The  decision, written by Justice Janet Rogers Brown, comes in a case that is also unusual because it involves the Merit Systems Protection Board, an independent agency charged with addressing the grievances of federal workers who challenge discriminatory employment practices.

Patricia A. Brooks, who is an African-American, filed a race discrimination complaint alleging that she was a victim of a “hostile workplace environment” at the Office of Information Resources Management of the MSPB.

Brooks, who had worked at the MSPB since 1998, said her supervisor in 2005 insulted and demeaned her in front of coworkers when he yelled at her and threw a heavy notebook in her direction.  The supervisor admitted slamming the book with his hand. Brooks said she was subsequently given poor performance ratings and became subject to selective enforcement of workplace rules.

After filing several equal employment opportunity complaints, Brooks filed a lawsuit alleging  race discrimination and retaliation in violation of Title VII.  A federal judge dismissed Brooks’ complaint on a pre-trial motion for summary judgment, which means the judge ruled that no reasonable jury could find that the supervisor’s “conduct was so severe and pervasive as to alter the conditions of Brooks employment.”  The three-judge panel for the D.C. Circuit court upheld the dismissal of  Brooks’ complaint.

Justice Brown writes in an April 15 decision that Brooks failed to show that she was subjected to “discriminatory intimidation, ridicule and insult” that was “sufficiently severe or pervasive to alter the conditions of [her] employment.”  Justice Brown said the panel evaluated the “totality of the circumstances, including the frequently of the discriminatory conduct, its severity, its offensiveness and whether it interferes with an employee’s work performance.”

Even if the supervisor did violently throw a book at Brooks, the appellate panel said, the incident involved “unprofessional conduct” but was isolated and not sufficiently malevolent to constitute actionable abuse.

A retaliation complaint and other other claims were rejected on technical grounds.

See Patricia Brooks v. Susan Tsui Grundmann, chairman, Merit Systems Protection Board, No. 12-5171.

 

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.

Great Policy; No Follow-Through

The best policy in the world won’t protect you without follow-through.

That’s the lesson of a decision by the Seventh Circuit  Court of Appeals  in a Wisconsin sexual harassment case, Equal Employment Opportunity Commission v. Management Hospitality of Racine, Inc., et al., No. 10-3247 (Jan. 9, 2012,).

The defendant, a company owned by Salauddin Janmohammed  which operates 21 International House of Pancakes restaurants, had a “zero-tolerance”  anti-harassment policy in place, anti-harassment training, and a policy of investigations of complaints.

What it didn’t have was follow-through. Or, in the words of the Court, “the policy and complaint mechanism were not reasonably effective in practice.”

According to the Court:  “the presence of a sexual harassment policy is encouraged by Title VII [but] the mere creation of a sexual harassment policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace.”

The Court upheld an award of $105,000 to two teenage servers at an IHOP operated by the defendant in Racine.  Katrina Shisler and Michelle Powell said they were sexually harassed in 2004 and 2005 by an IHOP assistant manager in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

Normally, an employer can advance the so-called Faragher/Ellerth affirmative defense in a Title VII case sexual harassment claim involving a hostile work environment. This allows the employer to escape liability for damages if:

 (a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and

 (b) “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.”

The Court said the  Faragher/Ellerth affirmative defense was not available to the Management Hospitality because both teens had complained to managers about sexual harassment  and the managers did nothing.  The company did not begin investigating until a private investigator hired by an attorney for one of the teenager began asking questions.

The Court said a rational jury could have found that the sexual harassment occurred “every shift,”  was “highly offensive,” and included “physical touching.”

The Court said a rational jury also could conclude that the employer failed to follow its own policies by discouraging  employees from reporting complaints, providing inadequate anti-harassment training to supervisors, and failing to “promptly” investigate the complaints.

The EEOC filed suit on behalf of the two teenaged servers. A jury awarded one of the servers $1,000 in compensatory damages and the other $4,000 in compensatory damages and $100,000 in punitive damages.

Ron Paul to sexual harrassment victims — Go home?

Unlike Herman Cain, his former competitor in the GOP presidential race,  Ron Paul is not facing accusations of sexual harassment.

However, Paul, a member of the U.S. Congress from Texas, may be accused of having stunningly little understanding of the problem.

Earlier this month, Paul told Fox News he is standing by statements he made in a 1987 book, Freedom Under Siege, that workers who are targets of sexual harassment must bear some responsibility for the abuse and do not require any special legal protection.

“Why don’t they quit once the so-called harassment starts?” wrote Paul. “Obviously the morals of the harasser cannot be defended, but how come the harassee escapes some responsibility for the problem about sexual harassment in the workplace.”

Earlier this month, host Chris Wallace of  Fox News Sunday asked Paul whether he still agreed with those 1987 statements.  Paul said he does, adding that neither verbal and physical harassment  warrants a federal law.

Regarding the issue of verbal harassment, Paul said:  “If it’s just because somebody told a joke to somebody who was offended, they don’t have a right to go to the federal government and have a policeman come in and put penalties on those individuals. They have to say maybe this is not a very good environment. They have the right to work there or not work there.”

Paul said workers who are victims of physical sexual harassment also do not require protection from a federal law because there already are laws prohibiting assault and rape.

“Because people are insulted by rude behavior, I don’t think we should make a federal case about it. I don’t think we need federal laws to deal with that. People should deal with that at home,” he said.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment, which is a form of sex discrimination. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Harassment becomes illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

In other words,  to be actionable, victims of sexual harassment must feel their very freedom to work  is … under siege.

Target can have job, not $4.4 million

Here’s yet another case where a jury “got it” but the court did not.  Not only did the appeals court minimize the trauma of workplace abuse in its ruling but it did not hold the employer accountable for failing to halt workplace abuse. PGB

Court Overturns Jury Award

James McKelvey was an Army soldier in 2004 when he lost his right hand trying to defuse a roadside bomb in Iraq.

After recovering at a base in Germany and at Walter Reed Army Medical Center, McKelvey moved back to Michigan, and in February 2006 accepted a civilian job with the army as an operations specialist first at Selfridge Air National Guard Base and eventually at the Detroit Arsenal.

There he became a target of verbal abuse regarding his injury by his supervisor and co-workers, and his supervisor either failed to give him work to do or gave him demeaning work assignments.

McKelvey quit on February 16, 2007 to take a non-military job in the local sheriff’s department, saying he had only stayed that long at the armory because he had a wife and child to support. He then filed a lawsuit alleging he was essentially fired – or constructively discharged – because of a hostile work environment stemming from discrimination because of his disability.

A Michigan federal court jury ruled for McKelvey on both claims but it awarded no damages on the hostile-work-environment claim.  Instead, the jury awarded McKelvey $4,388,302 in front pay on the constructive-discharge claim. Front pay is money awarded for lost compensation during the period between judgment and reinstatement, or if reinstatement is not feasible, instead of reinstatement.

The trial court judge immediately vacated the jury’s award, finding that it was not supported by law.

This week, an appellate court found that McKelvey was constructively discharged from his job at the armory but agreed with the trial court that the proper remedy is reinstatement and not the $4.4 million jury award. (See McKelvey v. Secretary of United States Army, No. 10-1172 (Dec. 14, 2011).

The appeals court said “reasonable minds” could find that McKelvey was constructively discharged from his job at the armory because “ … the crux of this claim turns on the harassment McKelvey endured. McKelvey presented evidence that (a supervisor and coworker) repeatedly called him, among other derogatory things, “all fucked up,” “a piece of shit,” “worthless,” and “a fucking cripple.” … Repeated over the course of nine months, this constant stream of invective could sustain a finding of constructive discharge.”

And yet, the appeals court said, the proper remedy in McKelvey’s case is reinstatement. The court said the $4.4 million award of front pay was too “speculative” for a relatively young man of 38 years old and any trauma McKelvey might experience by returning to the job would be mitigated by the fact that he would have different supervisors and four of his six co-workers would be new, with no connection to the prior harassment.

The  Army had argued that McKelvey could not claim constructive discharge because conditions had improved two months before he quit. According to the appeals court,“This gap is too short for us to say as a matter of law that McKelvey’s workplace was no longer intolerable, and is shorter than the gaps in cases where an employee’s delay in leaving precluded a finding of constructive discharge.”  However, the court said it might agree that McKelvey had waited to long to quit if he had stayed much longer.

The appeals court said McKelvey is entitled to back pay from the time he was constructively discharged until the Army offered him reinstatement  following the trial in his case.

Service Members Option: Quit

Appeals Court says “No” to Hostile Environment Claim

New Orleans, LA –   The U.S. Court of Appeals for the Fifth Circuit has ruled that members of the armed services cannot file a lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA) against a civilian employer for creating a “hostile work environment” through harassment.

The appeal came in the case of Derek Carder, et al v. Continental Airlines, Inc., a class action suit filed by pilots employed by Continental Airlines, Inc. who are members of the United States Armed Forces Reserves and Air National Guard.

The jurisdiction of the 5th circuit court includes Texas, Louisiana and Mississippi.

The pilots alleged that management at Continental created a “hostile work environment”  that discriminated against them because of their military service.  Continental argued that USERRA does not prohibit harassment of military members nor otherwise contemplate a hostile work environment action.

In a March 11, 2011 ruling, the appeals court sided with Continental and affirmed a lower court decision that dismissed the service members claim on the grounds that USERRA does not permit a claim for hostile work environment discrimination.

The pilots, the court said, may sue for constructive discharge if the alleged harassment becomes sufficiently severe that they are forced to quit their jobs.

According to the complaint, Continental has created a hostile work environment through  “harassing, discriminatory, and degrading comments and conduct relating to and arising out of Appellants’ military service and service obligations.” The complaint cites a “continuous pattern of harassment in which Continental has repeatedly chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations.”

Examples of these alleged derisive comments include comments by Continental managers such as the following:

  •  “If you guys take more than three or four days a month in military leave, you’re just taking advantage of the system.”;
  • “I used to be a guard guy, so I know the scams you guys are running.”;
  • “Your commander can wait. You work full time for me. Part-time for him. I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines.”;
  •  “Continental is your big boss, the Guard is your little boss.”;
  •  “It’s getting really difficult to hire you military guys because you’re taking so much military leave.”;
  •  “You need to choose between CAL and the Navy.”

The pilot argued that they could file a “ hostile work environment” because a clause in Section 4311(a) of USERRA (entitled “Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited”) prohibits denial of “any benefit of employment” to persons serving in the armed forces. However, the appeals court said the phrase is narrower than the language in other federal anti-discrimination laws and not intended by Congress to permit hostile work environment claims.

So what options do service members have?

“ If an employer makes service members’ employment so intolerable that they feel forced to quit, these service members could likely make a claim under USERRA for constructive discharge,” the appeal court states.

To make a claim of constructive discharge, the plaintiff must show that his or her working conditions became ‘so intolerable that a reasonable person would have felt compelled to resign.’”) (quoting Penn. State. Police, 542 U.S. at 147, 124 S. Ct. at 2354).

Still pending in the lawsuit is a separate count that the district court did not dismiss for denial of retirement benefits based upon Continental’s alleged denial of flight time to the Appellants and other class members because of their service obligations.

A Matter of Personal Space

The U.S. Court of Appeals for the First Circuit ruled on Oct. 6, 2010 in the case of Vera v. McHugh that a supervisor’s allegedly intentional encroachment on a subordinate’s personal space was severe and pervasive enough to constitute sexual harassment under Title VII.

The plaintiff , a U.S. Army soldier, shared a small office with her male supervisor.  She  alleged that for three months he stared at her,  sat very close to her,  made it difficult for her to leave the office and called her “babe” on one occasion. She alleged that he enjoyed her discomfort, and would smirk at her reaction to his behavior.

The First Circuit reversed a grant of summary judgment for the Army, remanding the matter for jury trial. The court ruled the plaintiff alleged sufficiently severe and pervasive conduct to constitute a violation of Title VII if proven.

Federal courts take different positions with regard to the level of severity necessary to constitute a hostile work environment and sexual harassment under Title VII.

The First Circuit includes U.S. District Courts in Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies.