Senate Aging Committee Pledges to Fight Age Discrimination in Employment

At a hearing on Wednesday, leaders of the U.S. Senate Special Committee on Aging vowed to “fix” a 2009 U.S. Supreme Court decision that makes it very difficult for older workers to fight age discrimination in federal court.

Committee Chairperson Susan Collins, R-ME, and Ranking Leader Bob Casey, D-PA,  also acknowledged the upcoming 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), which was signed by President Lyndon B. Johnson on December 15, 1967.

Collins and Casey addressed the Supreme Court’s catastrophic 2009 decision, in Gross v. FBL Financial Services, which raised the burden of proof in ADEA cases far above that of race or sex discrimination cases under Title VII of the Civil Rights Act of 1964.  Since Gross, older workers have been required prove that age discrimination was not just a motivating factor but the decisive factor in an adverse employment action. The Gross decision legalized a broad swath of  discrimination that is illegal under Title VII and sent a signal to employers that age discrimination will be tolerated.

 “For the life of me,” said Collins, “I don’t understand why there is a higher burden for proving that age discrimination was the reason for the adverse employment action … compared to gender, religion, race.”

The legislators expressed strong support for a bill they are sponsoring, the Protecting Older Workers Against Discrimination Act (POWADA), which would essentially restore the status quo with respect to the plaintiff’s evidentiary burden prior to the Gross decision. The bill  has been introduced several times since 2009 but has never made it out of committee to a vote. Sen. Casey, who worked on age discrimination cases as an attorney, said it was always hard for workers to fight back against insidious age discrimination but that it is even harder today “because the Supreme Court weakened the ADEA and we’ve got to fix that.”

A witness at the hearing, Laurie McCann, a senior attorney for the AARP, urged the Committee to hold a series of hearings to learn what changes are needed to update and strengthen the ADEA to adequately protect older workers. “The AARP believes that it is well past time to update and strengthen the ADEA so that it can respond to the challenges facing today’s older workers in today’s workplace,” she said.

As I demonstrated in my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, the ADEA was far weaker than Title VII when it was adopted 50 years ago and it has since been eviscerated by the U.S. Supreme Court.  In the book, I proposed repealing the ADEA and making age a protected class under Title VII, as was originally proposed when the passage of Title VII was being debated by Congress.

According to McCann, three in ten near-retiree-age (55-64) households have no retirement savings at all and the median retirement savings of all near-retiree households was only $14,500 in 2013. McCann said financial need is by far the most important reason that workers aged 45-74 work. She blamed age discrimination on persistent negative stereotypes and discriminatory employer recruitment practices, including advertising for “digital natives,” specifying a maximum number of years of experience or limiting recruitment to entry-level positions on college campuses.

Financial need is by far the most important reason that workers aged 45-74 work – AARP.

The committee also issued a report on Wednesday examining the nation’s aging workforce, “America’s Aging Workforce: Opportunities and Challenges.”  The report states the number of Americans over age 55 in the labor force is projected to increase from 35.7 million in 2016 to 42.1 million in 2026, and, by 2026, aging workers will make up nearly one quarter of the labor force.  The business case for hiring, retaining, and supporting older workers is strong, according to the report, but challenges exist – including age discrimination, inadequate training opportunities, working while managing health conditions and disabilities, balancing caregiving responsibilities with work, and preparing financially for retirement.

Collins said U.S. employers are going to need older workers in the years ahead and can’t afford to “discard skills and experience that older workers bring to workplace.”

Another witness, Lisa Motta, 54, from Pittsburgh, Pa., testified about re-entering the workforce in her 50s  after having lost her sight. A former teacher, she now works as a recruiting administrator at PNC Bank. “As America’s workforce grows older, more and more workers will face challenges like these and will need additional supports and accommodations,” Motta said. “They will also need laws in place that ensure that when they walk into an interview they do not face any form of discrimination. When we make it easier for these workers to succeed, everyone benefits.”

Prior to Wednesday’s hearing, the Senate aging committee was criticized for failing to act in the face of the epidemic of age discrimination in the workplace that occurred during and since the Great Recession.

Absent from Wednesday’s hearing was a representative from the U.S. Equal Employment Opportunity Commission (EEOC), which has ignored a major spike in age discrimination complaints dsince 2008 and rampant age discrimination in the federal government, and has issued administrative decisions that reflect a higher standard in age discrimination cases than in race or sex discrimination case.

The Sleeping Bear Awakens: The AARP Questions Legal Inequality of Older Workers

Something has poked the sleeping bear.

An attorney for the AARP was quoted in The New York Times recently as stating that the Age Discrimination in Employment Act of 1967 “may not be up to the task.” This represents a profound shift for the AARP, which has done little in recent years (if anything) to acknowledge the fundamental legal inequality of older workers under the Age Discrimination in Employment Act of 1967. The AARP states on its web site that the ADEA was passed in 1967 with the  “strong backing” of the AARP.

In my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA gives older workers far less protection than Title VII of the Civil Rights Act of 1964 provides to victims of discrimination on the basis of race, sex, religion, color and national origin. For example, the ADEA permits age discrimination if  it is based on a reasonable factor other than age (i.e., cost savings).  Title VII requires employers to show “business necessity” and to demonstrate there were no alternatives with less discriminatory impact.  Victims of age discrimination can recover only monetary damages and if there are none they get nothing.  Title VII plaintiffs are entitled to monetary damages plus  punitive and compensatory damages (i.e. damages for emotional distress).

Because of legal inequality,  millions of older workers have been forced out of the workplace and into an impoverished retirement since the Great Recession.

Mind you, there has never been any intellectual or moral justification for treating age discrimination differently than other types of discrimination – all discrimination is based on fear, false stereotypes, and animus directed toward a specific group. If workers are not capable of doing a job due to age-related decline, they can be dismissed. That’s not discrimination.

What Prompted The Change?

I contacted the AARP earlier this week to applaud the organization for finally acknowledging the ADEA “may not be up to the task” of preventing older workers from  irrational and harmful discrimination.  I then asked the AARP officials whether their position was influenced by my book, which is the first to challenge the fundamental legal inequality of older workers under the ADEA. I observed the AARP had never acknowledged the book – or a follow up companion work, Overcoming Age Discrimination in Employment –  despite my efforts to bring these works to the attention of the AARP and the readers of its publications. I said that capitalizing on my work without giving me credit is disrespectful and intellectually dishonest. The AARP officials insisted they have been working hard (sometimes behind the scenes) all these years to battle age discrimination in employment. They did not confirm or deny that my work had influenced their change of heart about the ADEA but suggested that “this should not be about who gets credit, but rather, about how best to improve the lives of older workers.”

This is about improving the lives of older workers but it is also about credit.

I care about credit for the same reason the AARP cares about its brand as the advocate for the rights of Americans over the age of 50. The AARP’s brand name establishes its credibility and helps the AARP sell Medi-gap health insurance and European vacations.

I suggested it would be appropriate for the AARP  to give credit where credit is due; that the AARP should do what it should have done in 2014 and acknowledge the publication of Betrayed; The Legalization of Age Discrimination in the Workplace  and the important ideas that are contained within the book.  These ideas appear to have been powerful enough to make the AARP question the insufficiency of the ADEA.

The AARP assured me that it has been as active as it can be in fighting age discrimination and wished me good luck in my future endeavors!

Now that the AARP  has acknowledged the ADEA may not be up to the task of protecting older workers, one can only hope the AARP will recognize other areas in which age discrimination has been legalized in the Untied States.  The AARP  was silent when former President Barack Obama in 2010 signed an executive order allowing our nation’s largest employer, the federal government, to blatantly discriminate in hiring on the basis of age and then again in 2015 when Obama’s Labor Secretary Thomas Perez, now chair of the Democratic Party, endorsed a private initiative by Starbucks and other major American corporations to hire only younger workers in clear violation of the ADEA.  I wrote about both of these issues in my employment law blogs, as well as the EEOC’s consistent failure to devote significant resources to prosecute age discrimination.  In the New York Times, it was reported: “Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.” The reporter said the AARP’s list was assembled in July, about six months after I reported the EEOC had only filed two cases with age discrimination claims in 2016.  But who’s counting?

Sexual Orientation Discrimination in the Workplace

  • Note: The 11th U.S. Circuit Court of Appeals, in a 2-1 ruling in March 2017 declined to expand workplace protections to gays and lesbians under Title VII of the Civil Rights Act of 1964, which already prohibits discrimination on the basis of race, sex, religion and national origin. That ruling in Evans v. Georgia Regional Hospital, is applicable to Georgia, Florida and Alabama.

Harassment on the basis of sexual orientation has been largely ignored in the workplace but this is changing.

Gays, lesbians and transgender workers are not mentioned as a “protected class” under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin. And no federal anti-bullying or anti-harassment laws or regulations protect workers who are not members of a protected class. So workers who were targeted for harassment because they were perceived to be gay, lesbian or transgender historically had little recourse against cruel and harmful harassment.

But the  U.S. Equal Employment Opportunity Commission (EEOC) last year held that Title VII’s “broad prohibition of discrimination” on the basis of sex “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances.”

The EEOC ruling was made in a case filed by Leon Brooker, a  clerk at a U.S. Postal Service distribution service in Atlanta, GA, who has been forced to wage a lonely but important legal battle to be free from sexual orientation harassment. Continue reading “Sexual Orientation Discrimination in the Workplace”

Donald Sterling, Racism & Federal Courts

The life-time suspension from the National Basketball League of  Los Angeles Clippers owner Donald Sterling for making racist comments to his girlfriend raises questions about how such conduct is treated in the workplace.

Although Sterling received the equivalent of a death sentence from the NBA, it is  unlikely that a federal court would consider Sterling’s conduct to be severe enough to violate the nation’s leading civil rights law, Title VII of the Civil Rights Act of 1994.

It what may be a sad commentary about the federal courts, racist, ageist and sexist comments often are relegated to the category of ordinary workplace incivility.

The  U.S. Supreme Court has cautioned federal judges against changing  Title VII into a “civility code” for the American workplace. See Oncale v. Sundowner Offshore Services, 523 U.S. Reports 75 (1998). As a result, most federal judges require numerous instances of egregious racist or sexist conduct before they hold employers accountable.

Sterling told his girlfriend, in a telephone conversation, that he was bothered that she associated with blacks.

Racist & Sexist Comments

A federal appeals court upheld the dismissal of a Title VII lawsuit brought by  an African-American clerk for CSX Transportation Company, Inc.  who was allegedly subjected to a racially and sexually hostile work environment.  The  court ruled that “occasional offensive utterances” do not rise to the level required to create a hostile work environment.

When Stephanie Williams declined to watch the Republican National Convention on a television at the plant in 2004, she said a male supervisor  told her that  she was a Democrat “only because she was a black woman; that unmarried women cannot ‘have the love of God in their heart[s]’; and this country should “get rid of Jesse Jackson and Al Sharpton because without those two ‘monkeys’ the country would be a whole lot better.”  The following day, the supervisor allegedly told Williams that “if she returned to school, she would not have to pay for her education because she was a single black mother. He also allegedly said all blacks should go back to where they came from.

A federal judge granted a pre-trial motion to dismiss Williams’ claim that she was a victim of a sexually hostile environment on the grounds that  her supervisor’s conduct was “neither severe nor pervasive enough to constitute a sexually hostile environment.”  He rejected on technical grounds evidence that pornography was left on tables at the plant for all to see.

The judge permitted Williams to proceed to a trial on the claim that she was subjected  to a racially hostile environment but dismissed the case before it reached the jury after finding that Williams’ evidence of a racially hostile work environment was not sufficiently “severe or pervasive” as a matter of law.

Mere Offensive Utterance

In two different opinions, the  U.S. Court of Appeals for the Sixth Circuit, which covers Tennessee, Ohio, Michigan and Kentucky,  upheld the lower court’s dismissal of Williams’ claims.  See Williams v. CSX Transp. Co. Inc., 643 F.3d 502 (6th Cir. 2011) and Williams V. CSX Transp. Co., No. 12-6197 (6thCir. Sep. 19, 2013).

The appeals court agreed the supervisor’s conduct was “despicable” but said the incident was not sufficiently ‘severe’ or ‘pervasive’ standing alone. “The statements were isolated, not pervasive; all but two occurred over a two-day period,” held the court.

The court said the reference to Jackson and Sharpton and the statement that black people should go back where they came from  “are certainly insensitive, ignorant, and bigoted. But they more closely resemble a ‘mere offensive utterance’ than conduct that is ‘physically threatening or humiliating.”

NBA commissioner Adam Silver said he will try to force Sterling to sell his franchise. Sterling also was fined $2.5 million, the maximum amount allowed under the NBA constitution.  Silver has called upon the NBA’s Board of Governors to force Sterling to sell the Clippers.

Judge Whacks EEOC With $4.7 in Fees

Case of Female Truck Drivers Crashes and Burns

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed  by her two “Lead Trainers.”

 Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies,  $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision  is brutally unsympathetic to the EEOC and the  255 female trainees and drivers who alleged sex discrimination and harassment against CRST.  She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST. 

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.  

 Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often”  and “You got big tits for your size, etc. . . “  She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain.   “[I] was told that I could not get off the truck until the next day.”  she said.

 Starke’s other “Lead Trainer”  allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005  “in order to get a passing grade.”

 Starke is described as a German who struggles with English. She and her  husband subsequently hired a lawyer and filed for bankruptcy.  They failed  to mention  the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel –  a doctrine that is meant to protect the integrity of the court.  Judge Reade granted the motion.

 In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST. 

  In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

  In other cases, Judge Reade said CRST did not have legal (as opposed to real)  notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of  supervisor in that they could not fire the trainees.

 Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases –  which appears to be a brand  new requirement that could severely limit the  EEOC in the future. Judge Reade conceded that dismissal was a  “severe” sanction for these complainants.

 The EEOC appealed Judge Reade’s dismissal of the case  to the U.S. Court of Appeals for the 8th Circuit.

Appeals Court

In its decision, the  Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.  

 The  appellate court generally agreed that claims by female complainants that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim.  (It was unclear exactly how many times  a worker must be propositioned for sex to qualify as being harassed.)

 However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell,  who spent  seven days on the road with a male co-driver who asked her on three to five occasions to drive naked;  refused her request to stop at a truck stop so she could go to the bathroom,  ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

 The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as  “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.”  Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving  his urine receptacles about the truck’s cab for her to clean up.  

 The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

 Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court.  That brought Ms. Starke case back into the litigation.

 After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke. 

 The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.  

 Which left Ms. Jones as the sole surviving plaintiff.

Even though  the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

 The final award to CRST is actually larger than the earlier award by Judge because Judge Reade included fees and costs expended by CRST related to the appeal.

 Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.

 

Mediation Goes Awry for Worker

After Outburst, He Won’t See Employer in Court

There is a new way for a worker to lose a lawsuit in federal court.

A three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago, IL, ruled recently that a worker could be fired for misbehaving during a mediation session called to resolve his complaint of sex discrimination.

Michael Benes had charged his Wisconsin employer, A.B. Data, Ltd. with sexgaveldiscrimination after working for the company for four months.

 The U.S. Equal Employment Opportunity Commission arranged for mediation in which, after an initial joint session, the parties separated into different rooms and a go-between relayed offers.

Upon receiving a settlement proposal that he thought too low, court papers say Benes “stormed” into the room used by A.B. Data Ltd. representatives, and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.”

The company accepted Benes’ counterproposal but then fired him.

Retaliation

Benes filed suit under the anti-retaliation provision of Title VII of the Civil Rights Act, 42 U.S.C. 2000e–3(a), which bans retaliation because a person “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” [Emphasis supplied].

A magistrate judge upheld Benes’ dismissal, finding that Benes was fired for misconduct during the mediation, not for making or supporting a charge of discrimination.

The appeals court agreed and upheld Benes termination.

In the past, Benes’ misbehavior might have resulted in a sanction by the court or his employer.

Ignores the Employer’s Behavior

An opinion written by Chief Judge Frank A. Easterbrook states – without explanation – that Benes “abandoned” his claim of sex discrimination upon filing the retaliation complaint. This is somewhat baffling in that the original complaint of sex discrimination obviously was the underlying basis for the retaliation complaint.  Benes would never have been engaged in mediation if he had not filed the discrimination complaint. And Benes would not have been fired if he had not engaged in mediation.

The appellate panel proceeded to completely ignore A.B. Data’s  behavior and to focus only upon Benes’ conduct. 

Judge Easterbrook said Benes’ actions constituted a “serious breach” of the mediation protocol, adding, “If A.B. Data would have fired a person who barged into his superior’s office in violation of instructions, and said what Benes did, then it was entitled to fire someone who did the same thing during a mediation.”

The appellate panel said that Title VII does not establish a “privilege to misbehave” in mediation.

Chief Judge Easterbrook writes that the prospect of being fired for an egregious violation of a mediator’s protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC’s investigation.

Impact of Harassment

The details of the alleged discrimination suffered by Benes were not included in the appellate decision, nor are the details of the offer submitted by A.B. Data to resolve Benes’ complaint.

Those of us who work in the area of workplace bullying and abuse are familiar with the well-documented mental and physical stress suffered by targets over time, which occasionally results in erratic or self-defeating behavior. For these and other reasons,  mediation is not ideal in these cases.

Benes clearly did himself no favors with his hotheaded behavior. Still, this decision appears to be yet another indicator of the lack of sympathy for the problem of workplace abuse in the federal courts, where, coincidentally,  judges have lifetime tenure.

Research shows that employment discrimination cases are dismissed at a far higher rate than other types of cases in federal courts before they ever reach a jury.

Workers beware – any breach of civility on your part at any point in the proceedings can have severe consequences. 

Laws and Workplace Abuse

No federal or state  law specifically addresses workplace “bullying” but that doesn’t mean a target is without legal recourse.

Workers file lawsuits every day against abusive employers and supervisors.  For example, a worker who falls within a protected category under Title VII of the Civil Rights Act of 1964 may be able to file a discrimination complaint.  (Note that any complaint of discrimination must first be filed with the U.S. Equal Employment Opportunity Commission.  See the EEOC web site for details.)

You can find a wide range of federal and state laws on this web site that may be applicable to your situation.

You are encouraged to consult with an attorney in your community or you can  arrange a consultation with Patricia Barnes (barnespatg(at)gmail.com)

This is your job, Your livelihood.  Before you let a bully rob you of your financial security and everything else that flows from that, consult an attorney who is specialized in employee-side employment law to see what rights, if any, you have.

You may need to be persistent. It can be difficult in some locales to find an employment law attorney who represents plaintiffs (targets/employees). And it can be even more difficult to find an attorney willing to take your case. Some individuals represent themselves in court.

Here are a couple of suggestions on where to look for an attorney:

  • You might try Martindale Hubble, which lists attorneys and provides a rating system.
  • The National Employment Law Association  maintains a listing of employment lawyer members on its web site. –
  • Every state bar association has a referral list of attorneys who are willing to accept clients and they are listed by area of expertise.
  • The local bar association may host an opportunity to talk to a lawyer at no cost one day a week/ month at a local library.

Stopping Sexual Harassment

In the past, this blog has questioned why sexual harassment is not a criminal offense in the United States as it is in France.

Now the U.S. Equal Opportunity Commission (EEOC) has filed a second complaint against a business owner who is  characterized as a “serial” sexual harasser because he paid  $780,000 to five women in 2003 to settle a sexual harassment complaint.

The EEOC alleges that Fred Fuller Oil Company, a Hudson, N.H.-based oil company, violated federal law when  owner Fred Fuller sexually harassed two women, caused the constructive discharge of one, and fired the other.

Fuller allegedly forced Nichole Wilkins to quit in July 2011 after he sexually assaulted her by grabbing and squeezing both her breasts from behind while pinning her against her desk.  The EEOC says this assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller. 

 Fuller then allegedly created a sexually hostile work environment for Wilkin’s friend and co-worker, Beverly Mulcahey. Shortly after Wilkins notified Fuller in October 2011 that she intended to file an EEOC charge of discrimination, Fuller fired Mulcahey for poor performance.

Déjà Vu

The EEOC sued Fred Fuller Oil Company in 2003 and settled that case in July 2005, winning  $780,000 in relief for five women.  As part of the settlement, the company agreed to undergo training aimed at conforming to Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment.

Markus L. Penzel, trial attorney in the EEOC’s Boston Area Office, said in a press release last month, “The Commission characterized Fred Fuller as a ‘serial sexual harasser’ in its first lawsuit.  Unfortunately, that still seems to be true.”

With sincere respect to Mr. Penzel, it is more than unfortunate that additional women were allegedly targeted by Fuller.  If the EEOC’s complaint is true, these women not only suffered emotional distress but were hounded out of their jobs, resulting in a loss of their financial well-being.

The women who worked for Fred Fuller Oil Co. probably have little in common with  Sherly Sanburg, the billionaire Harvard University graduate and  chief financial officer of Google. She implies in a recent bestselling book that women are partly responsible for their own lack of equality in the workplace. 

The reality is that victims of sexual harassment often are single mothers living paycheck-to-paycheck, with few other employment options, and college students who are trying to earn money to pay their tuition. These women are vulnerable, often not believed, sometimes blamed, almost always powerless and utterly disposable.   

Get Serious!

There’s been a lot of discussion about sexual harassment in the military as a result of publicity surrounding alleged improper sexual conduct of military officers who are responsible for protecting  women from sexual harassment. Surveys show that a third of American women report experiencing sexual harassment in the workplace.

Employers have done far too little to halt sexual harassment and the EEOC lacks the resources to effectively address this problem. 

It appears that Fred Fuller  was not deterred by a monetary fine. He  also did not appear to  benefit from education about what constitutes improper sexual conduct in the workplace or training on  how to comply with Title VII of the Civil Rights Act. What might have deterred Mr. Fuller?

 France’s  Law

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.

New articles in the French Labor Code and the Penal Code state:

“Harassment is the fact of imposing on a person, in a repetitive fashion, statement or behavior of a sexual connation which violate a person’s dignity by virtue of their degrading or humiliating character or create as concerns such person an intimidating, hostile or offensive situation.”

Under the French law, it is considered an “aggravating circumstance” if a perpetrator of workplace sexual harassment is abusing his or her authority.

If Fred Fuller had snatched the purse of his first victim, he would have been lucky to get just a warning.  If he had continued this behavior, he would  have spent time in jail. That’s because stealing a  purse is a crime. 

Shouldn’t it be a crime to steal someone’s peace of mind and financial livelihood?  

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.

Violations

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

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.

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.