Differing Approach to Sexual Harassment by Congress and the Federal Courts

Differing Approach to Sexual Harassment by Congress and the Federal Courts

Taxpayers will no longer be forced to pick up the tab for settlements resulting from the sexual harassment and retaliation of interns and staff by members of the U.S. Congress.

The news media reported Wednesday that House and Senate negotiators  agreed on compromise legislation that will require members of Congress to personally pay settlements or awards stemming from claims of harassment or retaliation claims based on sex, ethnicity, and race.

The proposed bill will amend the sadly misnomer Congressional Accountability Act of 1995, which currently insulates members of Congress from their sexual misdeeds rather than holding them accountable.

According to the Senate Rules Committee, the proposed bill will make members of Congress, including those who leave office, financially liable for settlements resulting from harassment and retaliation claims. The bill eliminates barriers to justice for victims, including mandatory counseling, mediation and a “cooling off” period that victims now must wait filing a lawsuit or requesting an administrative hearing. Settlements will be publicly disclosed and identify lawmakers who are liable.

The bill is a monumental step forward when compared to how a second branch of the federal government, the  federal judiciary, has addressed the problem of sexual harassment by powerful, mostly male federal judges who hold lifetime appointments.

The Federal Judiciary Workplace Conduct Working Group studied the problem of sexual harassment last year after a prominent appellate judge, Alex Kosinsky of the U.S. Court of Appeals for the 9th Circuit, became the focus of more than a dozen sexual harassment complaints by law clerks, law students and staff. Kosinsky, 67, resigned with his full pension, short-circuiting an investigation.

The working group issued vague conclusions last summer that drew bi-partisan criticism in Congress. For example, the working group recommended creating a process so employees could make alternative work arrangements “when egregious conduct by a judge or supervisor makes it untenable for the employee to continue to work for that judge or supervisor.”  Senate Judiciary Chairperson Chuck Grassley, R-Iowa, effectively called the report a whitewash that “didn’t indicate how its recommendations will prevent a similar scenario (a reference to Kosinsky) from happening again.” He also criticized the lack of an inspector general position to oversee the federal courts.

The Congressional Office of Compliance has since 2008 used taxpayer funds to pay $199,000 to settle four sexual harassment claims by members of Congress. In the past year, more than a half-dozen lawmakers resigned after being accused of sexual misconduct,

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Author pgbarnesPosted on Categories CULTURE, SEXUAL HARASSMENT, UncategorizedTags Alex Kosinsky, Congressional Accountability Act, Federal Judiciary Workplace Conduct Working Group, , Sen. Chuck Grassley, Senate Rules CommitteeLeave a comment on Differing Approach to Sexual Harassment by Congress and the Federal Courts

Workplace Bullying Associated with Coronary Heart Disease

Workplace Bullying Associated with Coronary Heart Disease

A large-scale Danish study shows that targets of on-the-job bullying and violence face significantly higher risk of cardiovascular disease (CVD).

The study analyzed data from 79,201 participants in Denmark and Sweden with no prior history of CVD. The participants were aged 18 to 65, with a mean  age of 43 years, and 53% were women.

Nine percent of the participants were subsequently bullied at work and 13% experienced violence or threats of violence at work.

The study found:

  • Compared with participants who were not bullied at work, those who were had a 59% increased risk for CVD after adjusting for sex, age, marital status, educational level and country of birth.
  • People who said they were bullied frequently (almost every day) in the past 12 months had a 120 percent higher risk of CVD.
  • Workers who suffered the intentional use of force or threats of force at work  had a 25% higher risk of CVD.

The study defined workplace bullying as repeated or enduring psychological aggressors at work.

Stopping workplace bullying would prevent a ‘sizable number” of heart attacks and strokes.

The study found “consistent support for our hypothesis that workplace bullying and workplace violence are associated with a higher risk of new-onset CVD.”  If the association is causal, the researchers add, “eliminating workplace bullying and violence would prevent a sizable number of CVD events from happening.”

The researchers said workplace bullying and violence contribute to lower self-esteem and loss of coping resources. They may elicit a range of coping mechanisms, such as over-eating and excessive alcohol consumption. Bullied workers also are three times more likely to report depression.

The perpetrators of workplace bullying were mostly from inside the organization – 79% were colleagues, supervisors, or subordinates.

The study, “Workplace bullying and workplace violence as risk factors for cardiovascular disease: a multi-cohort study,” was published on November 19 by the European Health Journal.

Civility and the White House Press Corps

Civility and the White House Press Corps

A reporter becomes involved in a  physical contest over the control of the microphone at a presidential press conference, ignoring the objections of the President and swatting away a young female White House intern.

CNN Anchor Jim Acosta was insisting that President Trump respond to his questions about what Trump characterizes as an “invasion”  of groups of migrants who are traveling through Mexico to the U.S. southern border. Acosta  disagreed with Trump’s characterization. After several minutes of back and forth, the President tried to entertain other questions. Acosta  refused to yield the microphone.

A lot of people voted for Pres. Trump; No one, to my knowledge, voted for  Acosta

Continue reading “Civility and the White House Press Corps”

Author pgbarnesPosted on Categories CIVILITY, CULTURETags AT&T, Ben Bagdikian, CBS, , Comcast, Fox, Jim Acosta, media control, migrants, President Donald Trump, Stephen Colbert, The Walt Disney Company, ViacomLeave a comment on Civility and the White House Press Corps

Canada Set to Address Workplace Bullying & Harassment

Canada Set to Address Workplace Bullying & Harassment

While the U.S. snoozes, Canada’s Parliament is taking steps to protect public sector workers from bullying and harassment  in the workplace.

Canada’s proposed Bill C 65 would amend Canada’s Labour Code by expanding the definition of “workplace violence”  to include both physical and psychological injuries and illnesses.

The bill’s definition of “harassment and violence” includes “any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee.”

The bill was passed by Canada’s Senate and is now pending before the House of Commons, which is seeking public input on a proposed regulatory framework to implement the bill.  If approved, the bill will apply to all federally regulated workplaces, including workers in the Canadian Parliament, banks, telecommunications and transportation industries. Continue reading “Canada Set to Address Workplace Bullying & Harassment”

Dark Money in the Federal Courts and the EEOC

Dark Money in the Federal Courts and the EEOC

So-called “dark money” groups have reported  spending more than $800 million on campaign-related activities between January 2010 and December 2016, the last full election cycle.

The top spender on the Federal Elections Commission’s list was the U.S. Chamber of Commerce, a conservative, profit-making group that laundered $130 million for … who knows?

While dark money is widely associated with political campaigns, including judicial campaigns, it also influences the machinations of federal courts and has reached the front lines of worker rights at the U.S. Equal Employment Opportunities Commission (EEOC).

Dark money is money  collected by a front or middle-man organization, usually with a vaguely positive sounding name, that is distributed to influence public policy. The source of the money is anonymous so the public is clueless about the donor’s intentions.  The U.S. Supreme Court legalized dark money in Citizens United v. FEC (2010).

Dark money strips workers of  justice in federal courts and at the EEOC.

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EEOC waits for Pres. Trump to Stop Age Discrimination

EEOC waits for Pres. Trump to Stop Age Discrimination

The EEOC’s strategy for addressing epidemic age discrimination in hiring has suddenly become apparent.

On this Labor Day 2018, it appears the highly-paid advocates for workplace equality  on the EEOC – Victoria Lipnic (R), Chai Feldblum (D) and Charlotte Burrows (D)- are waiting for President Donald Trump to act.

The EEOC  was charged by the U.S. Congress with enforcing the Age Discrimination in Employment Act of 1967 (ADEA) but has ignored blatant age discrimination in hiring by federal agencies for a half dozen years.

Since 2012, the U.S. Office of Personnel Management (OPM) has barred older workers from applying for 100,000 federal jobs under the Pathways Program. This is known as disparate impact discrimination – where a supposedly neutral policy has a disproportionately negative impact on a protected group. About 94% of candidates hired under the Pathways program are under the age of 40.

Older workers have been barred from applying for more than 100,000 federal jobs (and counting).

Continue reading “EEOC waits for Pres. Trump to Stop Age Discrimination”

Author pgbarnesPosted on Categories UncategorizedTags Chai Feldblum, Charlotte Burrows, disparate impact discrimination, , Neary v. Pon, Pathways "Recent Graduate" Program, , President Donald Trump, U.S. Office of Personnel Management, Victoria A. LipnicLeave a comment on EEOC waits for Pres. Trump to Stop Age Discrimination

Gender Bias Found among Federal Judges in Sex Discrimination Cases

Gender Bias Found among Federal Judges in Sex Discrimination Cases

A recent study shows that female plaintiffs in sex discrimination cases are more likely to prevail if a female judge is randomly assigned to the case, suggesting the existence of gender bias among male judges.

The key is how judges rule on pretrial motions, writes Matthew Knepper, PhD,  a research economist with the Bureau of Economic Analysis.

Knepper found that female judges are 15 percent less likely than male judges to grant motions filed by employer/defendants.  Knepper suggests this may encourage employers to infer that their chances of success at trial are lower and to engage in serious negotiations to settle the case. He says “litigants are more inclined to bargain in the shadow of the judge when the outline of that shadow is clearer.”

Knepper contends his study, which appeared in a recent issue of the Journal of Labor Economics, is “the first to provide quasi-experimental evidence of judicial gender bias.”

Knepper says research in the past has focused on trial outcomes and found no statistical difference between how male and female judges rule. However, he  writes, as few as five percent of lawsuits ever get to trial – the vast majority are dismissed or settled prior to trial.  He says prior research on trial outcomes “underestimated the amount of judicial gender bias prevailing in workplace sex discrimination cases.”

Research shows judges are prone to prefer the social group to which they belong.

Continue reading “Gender Bias Found among Federal Judges in Sex Discrimination Cases”

Author pgbarnesPosted on Categories CULTURE, EEOC, SEXUAL HARASSMENTTags Bureau of Economic Analysis, female judges, gender bias in federal court, Journal of Labor Economics, male judges, Mathew KnepperLeave a comment on Gender Bias Found among Federal Judges in Sex Discrimination Cases

No Reasonable Accommodation After Threats to Kill Boss, Coworkers

No Reasonable Accommodation After Threats to Kill Boss, Coworkers

The Alaska Supreme Court has upheld the dismissal of a public works employee who made statements that other employees in his workplace  interpreted as threats.

Plaintiff Tom D. Nicolos claimed his statements did not constitute threats or  misconduct under the personnel rules of the North Slope Borough Department of Public Works but were a cry for help due to a mental health crisis.

Nicolos allegedly told his boss he was “not in a good place” and was having homicidal thoughts. He then allegedly told a counselor that he had a “premeditated plan to use firearms to harm or kill people at his workplace.” The counselor notified Nicolos’ boss.

Nicolos said his discharge violated the Americans with Disabilities Act (ADA).

The Alaska Supreme Court recently upheld Nicolos’ dismissal, ruling  that a threat need not be intentional to constitute violence in the workplace. Alaska’s high court  said an employee can be punished for threatening statements or behavior “so long as it could be interpreted by a reasonable person as conveying intent to cause physical harm” Moreover, the Court said the ADA’s protection does not extend to an employee who is terminated because he cannot “perform the essential functions[his] position … (with or without reasonable accommodations.” The Court said it is an essential function of a job to refrain from making others in the workplace feel threatened for their own safety.

WOULD A REASONABLE PERSON PERCEIVE THE COMMENT AS THREATENING?

Continue reading “No Reasonable Accommodation After Threats to Kill Boss, Coworkers”

Federal Judges: Employer Friendly or Worker Hostile?

Federal Judges: Employer Friendly or Worker Hostile?

Bloomberg law recently surveyed how federal judges in U.S. District Court for the Eastern District of Wisconsin rule on employment discrimination cases.

The survey indicates the four judges dismiss most employment discrimination cases long before they ever reach a jury pursuant to employer motions to dismiss or for summary judgment.

According to Bloomberg:

  • Employment lawsuits are dismissed by Eastern District of Wisconsin judges shortly after they are filed 40.5 percent of the time. Only six in 10 employment cases proceed to an exchange of evidence and pre-trial motions.  In a motion to dismiss, the employer argues the lawsuit is baseless.
  • The judges threw out 54.5 percent of the surviving employment lawsuits pursuant to a motion for summary judgment on the eve of trial, after evidence was exchanged by the parties, This type of motion argues there is no material fact in dispute and the plaintiff has no chance of winning a trial. The judge effectively decides the case, foreclosing plaintiffs from examining witnesses or presenting evidence before a jury.

Why are employment discrimination lawsuits dismissed at a higher rate?

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Author pgbarnesPosted on Categories EMPLOYERS, FEDERALTags Bloomberg Law, Judge Lynn Adelman, U.S. District Court for the Eastern District of WisconsinLeave a comment on Federal Judges: Employer Friendly or Worker Hostile?

EEOC “Leadership” Says No Need for Code of Judicial Ethics

EEOC “Leadership” Says No Need for Code of Judicial Ethics

The EEOC has defended  the fact that it does not require EEOC judges to follow any code of judicial ethics.

In response to an ethics complaint, EEOC Associate Legal Counsel Carol R. Miaskoff ruled last month that EEOC judges are mere attorneys and not judges at all. “Because judicial standards do not apply, they could not have violated these rules,” states Miaskoff.

EEOC spokesperson Christine S. Nazer Friday rejected the premise that lack of a judicial ethics code is problematic.  “EEOC leadership feels its judges should be fair, impartial, and follow the law, and all evidence suggests that this is exactly what happens in our federal sector decision-making process,” she said.

Nazer said Acting EEOC Commissioner Victoria Lipnic declined to answer questions,  such as the following:

  • Is Miaskoff is correct? Her ruling appears to be  directly contrary to the ABA Model Code of Judicial Conduct for Federal Administrative Law Judges  and the American Bar Association’s Model Code of Judicial Conduct.
  • What about evidence showing that EEOC judges are not fair or impartial and  do not follow the law, especially in cases involving age discrimination in hiring.

Continue reading “EEOC “Leadership” Says No Need for Code of Judicial Ethics”