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.


Oregon Interns Get Harrassment/Discrimination Protection

InternsUnpaid interns are especially vulnerable to predatory behavior in the workplace because they are young and inexperienced.

However, many courts have ruled that unpaid interns are not protected by state and federal harassment and discrimination laws.

This week the Oregon legislature agreed to extend workplace protections against harassment and discrimination to unpaid interns.  These protections formerly were reserved only for employees.

The Oregon Senate unanimously passed HB 2669, sending it to Gov. John Kitzhaber for signature. The Oregon house unanimously passed the bill last month. Kitzhaber has indicated that he will sign the bill. 

The new law will give unpaid interns legal recourse against employers for workplace violations including sexual harassment; discrimination based on race, color, religion, gender, sexual orientation, national origin, marital status or age; and retaliation for whistleblowing, among other things.

With no protection in state law, you might think that unpaid interns could turn to federal law. You’d be wrong.

The Equal Employment Opportunity Commission has issued  guidelines that provide coverage to volunteers under Title VII of the Civil Rights Act of 1964 “if the volunteer work is required for regular employment or regularly leads to employment with the same entity.”  However, unpaid interns have been unable to bring sexual harassment or civil rights complaints under Title VII  because judges have not found them to be “employees”  to whom protections are explicitly afforded.

According to a  2010 study by the Economic Policy Institute (EPI), federal courts have consistently found that the question of whether an individual is compensated for his or her work by an employer is the first test for determining employee status. Accordingly, unpaid interns, or even interns paid by an entity other than an employer, do not receive workplace discrimination protection.

The EPI study reports that the leading precedent for the failure to protect unpaid interns is the case of O’Connor v. Davis,  126 F.3d 112 (2d Cir. 1997).  Bridget O’Connor was required to complete an internship for her college degree and chose to work at a local psychiatric center. There, O’Connor allegedly was subject to repeated sexual harassment by one of her supervisors, Dr. James Davis. The district court summarily dismissed O’Connor’s complaint because the plaintiff, as an unpaid intern, did not receive compensation from the center, and thus did not qualify as an employee protected under Title VII. The decision was upheld on appeal.

Oregon Labor Commissioner Brad Avakian told the Associated Press that interns had contacted his office looking for help in the past and “we had to tell them that the law did not protect them.”

Under the measure, an intern who alleges workplace harassment or discrimination, among other violations, can bring a lawsuit against the employer or file a formal complaint with the Oregon Bureau of Labor and Industries.

Avakian said the idea for the bill came from a legislative intern at the Bureau of Labor and Industries. He said the intern discovered the loophole and brought it to his attention.  In 2011, a similar bill failed to gain traction. This year, however, the bill passed with broad support from civil rights groups and a student advocacy group.

The Oregon law  does not create an employment relationship and does not affect wage or workers’ compensation laws.

 Photo by: John Amis



EEOC’s 1st Genetic Discrimination Class Action

Update: The U.S. Equal Employment Opportunity Commission settled this case on Jan. 10, 2014 when Founders Pavilion Inc.  agreed to a five-year consent decree in which it will provide a fund of $110,400 for distribution to 138 individuals who were asked for their genetic information and $259,600 to five individuals whom the EEOC alleged  were fired or denied hire in violation of the ADA or Title VII.

IGenesmagine that an employer could ask applicants  about their family’s medical history: “Do you have a parent or grandparent who suffered from epilepsy. sickle-cell anemia Huntington’s Disease, etc.?”

Why would an employer ask such a question? To find out if the applicant could have a genetic predisposition for a disease that could lead to higher medical expenses down the road. Many employers would simply throw the application into the garbage if an applicant answered the question affirmatively. 

So-called “genetic discrimination”  has been illegal since the  Genetic Information Nondiscrimination Act (GINA) was signed into law by former President George W. Bush  on May 21, 2008.  However, the U.S. Equal Employment Opportunity Commission (EEOC), the authority responsible for enforcing GINA, has done little to enforce it.  Until now.

One of the six national priorities identified in the  EEOC’s strategic plan is  to address emerging and developing issues in equal employment law, including the problem of genetic discrimination.

 The EEOC filed and settled its first GINA lawsuit on the same day earlier this month when it reached a consent decree with a Tulsa, Oklahoma company,  Fabicut, Inc.   Now the EEOC  has filed its second federal GINA lawsuit and its first Class Genetic Information Discrimination Suit.


The EEOC alleges that  Founder’s Pavilion, Inc., a  Corning, NY, nursing and rehabilitation center, violated GINA by asking for genetic information during the hiring process. Founders is also charged with violating the Americans with Disabilities Act  (ADA) and Title VII of the Civil Rights Act of 1964.

Founders allegedly conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information.

The lawsuit alleges that Founders fired two women because of perceived disabilities and fired another employee after it refused to accommodate her during her probationary period,  all in violation of the ADA.

Founders also allegedly either refused to hire or fired three women because they were pregnant, in violation of Title VII.

The EEOC filed the lawsuit in federal court after it was unable to reach a pre-litigation settlement with Founders. 


GINA prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.

“GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law,” said Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office. “Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women.”

GINA also forbids unions and labor organizations from discriminating on the basis of genetic information.  

Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. This form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle-cell anemia, a disease which afflicts African-Americans.  In the early 1970s, some state legislatures began mandating genetic screening of all African-Americans for sickle-cell anemia, leading to discrimination and unnecessary fear.

Furthermore, genetic history does not  always equal genetic future. As a result of rapid advances in technology, there is far less certainty today that any individual will inherit  or be incapacitated by a genetic disease.

 * Patricia G. Barnes is the author of Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

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.”


Note: The media office of the Administrative Office of the U.S. Courts has failed to respond to a request for comment about this blog entry. PGB

Workers who bring employment discrimination cases in federal court are not just paranoid. Apparently, the deck really is stacked against them!

(Isn’t this discrimination in itself?)

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts.

Specifically, they discussed why employment discrimination cases are more likely to be summarily dismissed by federal judges through rulings on pre- and post-trial motions.  One factor is believed to be  U.S. Supreme Court decisions (Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal) that raised the quantum of facts that a plaintiff must plead to avoid a motion to dismiss.

“A substantial and growing body of evidence, both empirical and anecdotal, shows that civil rights cases, and in particular those alleging employment discrimination, are disproportionately susceptible to dismissal before trial as well as to unfavorable  (judgment notwithstanding verdict)  motions after trial,” said the symposium planners.

Approximately 150 attended the symposium, including  retired Judge Nancy Gertner from the U.S. District Court for the District of Massachusetts. She said the message sent by Twombly and Iqbal is that courts should be more concerned with protecting employers from being falsely accused of discrimination than they should be with allowing discrimination to go unpunished, and that as a result, the courts effectively have repealed the protections of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination.  A report of the symposium is availble from the Employee Rights Advocacy Institute for Law and Policy.

A study by the Federal Judicial Center of summary judgment cases filed in seventy-eight federal district courts in 2006 found that federal judges granted requests by the employer for dismissal on a motion for summary judgment 73 percent of the time. This compares to a rate of dismissal of:

  • 53 percent in contract cases,
  • 54 percent in tort or personal injury cases
  • 70 percent in civil rights cases generally
  • 64 percent in prisoner cases
  • 53 percent in “other” cases, including antitrust (53%) and patent (47%) and trademark (50%).

See Joe Cecil & George Cort, Federal Judicial Center, Estimates of Summary Judgment Activity in Fiscal Year 2006 (2007).

Some district courts granted summary judgment motions in employment discrimination cases more than others. In the Ninth Circuit, which is based in San Francisco, CA, some courts granted summary judgment in employment discrimination cases 93% of the time. In the Eleventh Circuit, which is based in Atlanta, GA, some courts granted summary judgment in employment discrimination case 95 % of the time.

This is a trend that has been getting WORSE for years, according to Cornell Law School Professors Kevin M. Clermont and Stewart J. Schwab, authors of Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? 3 Harv. L. & Pol’y Rev. 103 (2009).

They write that the plaintiff win rate for employment discrimination cases in federal court from 1979-2006 was 15 percent, which was much lower than that for non-jobs cases (51%), possibly because of hurdles placed in jobs cases that do not exist in non-jobs cases.

Furthermore, the authors state that there was a startling 37 percent drop in the number of employment discrimination cases in federal district courts between 1999 and 2007.  They say the decline may be  because “federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts.”  In other words, fear of bias by federal judges may be discouraging  potential plaintiffs from even filing employment cases in federal court!

Plaintiffs who appeal their losses or face an appeal of their victory “again fare remarkably poorly in the circuit courts,” the authors write.  Defendant/employers in the federal courts of appeals have managed over the years to reverse forty-one percent of their trial losses in employment discrimination cases, while plaintiff/employees manage only a nine percent reversal rate.

Generally, it appears that employers do far better in federal courts these days than ever before. A 2010 study found  the U.S. Supreme Court under the leadership of Chief Justice John G. Roberts, Jr., has ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and  42 percent by all courts since 1953.

Some other sobering but well-documented observations from the Clermont/Schwab article:

  • Plaintiffs in employment discrimination cases are much more likely to have to go to trial, possibly because employers perceive the anti-plaintiff bias works in their favor and refuse to settle.
  •  “ … [E]mployment discrimination cases constitute one of the least successful categories at the district court level, in that plaintiffs win a very small percentage of their actions and fare worse than in almost any other category of civil case.”
  • “Defendants, in sharp contrast to plaintiffs, emerge from appellate court in a much better position than they were in when they left trial court. … we have unearthed an anti-plaintiff effect that is troublesome.”
  • “The bulk of employment discrimination cases turn on intent … The subtle question of the defendant’s intent is likely to be the key issue in a nonfrivolous employment discrimination case that reaches trial, putting the credibility of witnesses into play.  When the plaintiff has convinced the fact finder of the defendant’s wrongful intent, that finding should be largely immune from appellate reversal … Reversal of plaintiffs’ trial victories in employment discrimination cases should be unusually uncommon. Yet we find the opposite.”

It is unlikely that employment law cases are weaker than other types of cases. The authors note that many studies show that people are not anxious to sue except in egregious situations and that contingent-fee attorneys, as well as those looking to fee-shifting, are reluctant to bring questionable claims. They say the impact of other factors on the decline of employment discrimination cases in federal court —  such as alternative dispute resolution — is not known but is unlikely to have caused the precipitous drop.

The authors say the employment discrimination category has dropped in absolute number of terminations every year after 1998, when the total was 23,722.  They say the drop has gone virtually unnoticed and unexplained.

It is understandable that courts want  to place procedural limitations on  cases to avoid overcrowded dockets and to  safeguard judicial resources. However, it is obviously unfair (or worse) for judges to single out employees who allege discrimination for disparate treatment. Like any other plaintiffs, these plaintiffs have  no where else to go but the courts for justice and they have every right to expect a fair and impartial hearing.

In fact, Americans are guaranteed a right to a trial by jury in federal court cases under the Seventh Amendment of the U.S. Constitution.  Specifically, the Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

New Record for Discrimination Claims

Employment discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) reached an all-time high in 2011.

A total of 99,947 charges of employment discrimination were filed with the EEOC in Fiscal 2011, compared to  99,922 in Fiscal 2010. This sets a new record for discrimination claims.

Once again, charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37.4 percent of all charges, followed by charges of race discrimination ( 35,395) and sex discrimination (28,534).

Other allegations include:

  • Disability discrimination–25,742
  • Age discrimination—23,465
  • National Origin  discrimination – 11,833
  • Religious discrimination – 4,151
  • Color discrimination – 2,832
  • Equal Pay Act – 919
  • Genetic Discrimination Act – 245

The EEOC filed 300 lawsuits in 2011, which resulted in $91 million of relief.  Twenty-three of the lawsuits involved systemic allegations involving large numbers of people.

Through its combined litigation, enforcement, mediation programs, the EEOC obtained  $455.6 million in relief for private sector, state, and local employees and applicants,  an increase of more than $51 million from the 2010 fiscal year and a new record for the agency.

Of possible interest to workplace anti-bully advocates, the EEOC’s enforcement of the Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all of the statutes the EEOC enforces: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million.  Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes. Many of these ADA claims could be stress related – targets of workplace bullying suffer high levels of stress that are blamed for short-and long-term physical impairment.

The EEOC enforces Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act.

The fiscal year 2011 enforcement and litigation statistics, which include trend data, are available on the EEOC’s website at