Appeals Court Strikes a Blow for Unrepresented Litigants

January 2, 2016 by Leave a Comment

A federal appeals court recently struck a blow for the unrepresented litigant, who often is  ill-equipped to understand and overcome procedural hurdles that effectively block access  to federal courts.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago,  reinstated a case that was dismissed by a district judge because the handwritten complaint filed by the plaintiff, who was representing himself, contained “little more than conclusory legal jargon.” Moreover, the judge said, the plaintiff checked a “variety of boxes “with “conclusory statements such as that the Defendant failed to reasonably accommodate the plaintiff’s disabilities.”

The plaintiff, John Tate, was a driver trainee in 2014 for SCR Medical Transportation, which provides non-emergency transportation services for disabled persons and veterans.  His complaint states: “The defendant was aware of my disability. During my employment, I was subjected to sexual harassment. I complained to no avail.” Tate  alleges he was fired in retaliation for his complaint. He alleges discrimination on the basis of disability, sexual harassment and retaliation.

The appeals court said Tate filled out a complaint form supplied by the  court that “does not require, or indeed permit, extensive factual detail, for it provides only six lines for listing ‘the facts supporting the plaintiff’s claim of discrimination.'”  Also, the appeals court said, the judge made a “serious mistake”  by dismissing Tate’s lawsuit prior to the expiration of a 21-day period  during which a plaintiff may file an amended complaint without the court’s approval.

The panel’s decision, written by noted jurist Richard Posner,  states that the lower court judge “should have told the plaintiff what is required to allege disability discrimination.”

Rather than dismissing the case, the judge should have helped the pro se complainant correct the procedural defect in the complaint.

The panel said Tate had no obligation to be more specific with respect to his claim of sexual harassment or retaliation.  The panel agreed,  however, that  the Americans with Disabilities Act requires a plaintiff to allege that s/he is disabled within the meaning of the Act. The panel said Tate should have identified a specific disability.

“Had the judge told the plaintiff before dismissing his suit what was missing from the complaint, or had he dismissed just the complaint and not the suit and informed the plaintiff of a plaintiff’s right to rectify the deficiencies of his complaint in an amended complaint, we might have been spared this appeal, and the district judge a remand,” concluded the panel.

Posner, an expert in the area of law and economics, is one of the most cited legal scholar of the 20th century.

The case is TATE , v. SCR MEDICAL TRANSPORTATION, No. 15–1447 (7th Cir. December 28, 2015).

Filed Under: DISPATCHES, EMPLOYERS Tagged With: , , , ,

NPR’s Diversity Problem: Why So Few Women Sources?

December 17, 2015 by 1 Comment

The high-tech industry in Silicon Valley isn’t the only American industry with serious diversity problems.

National Public Radio this week reported that male sources outnumber female sources on the network’s two largest weekday newsmagazines by two-to-one.  Sources include on-air personalities and  subject matter experts, Only about 30 percent of all  sources on Morning Edition and All Things Considered were female in the fiscal year ending Sept. 30, 2015. There has been no improvement for the past three years.

Women, who comprise 50.45 percent of the U.S. population, are under-represented along all racial classes.

NPRDiversity

Here are the percentage  of male/female sources broken down by race:

  • Asian : Males, 76%; Females 24%.
  • Whites: Males, 70%; Females 30%.
  • Latino: Males, 71%; Females 29%.
  • Blacks: Males 62%; Females 39%.

Women and Latinos are severely under-represented as NPR sources.

The percentage of NPR sources who are Latino remained flat at six percent for each of the three years. The U.S. Census Bureau reports that Latinos make up 17.4 percent of the U.S. population.

Here is the breakdown of sources by race from the NPR report:

  • There was a decline in the overall percentage of white sources, from 80 percent in 2013 to 73 percent in 2015.   Whites make up 77.4 percent of the U.S. population in 2014.
  • African-American voices rose from 5 percent in 2013 to 11 percent in 2015. African-Americans comprise 13.2 percent of the U.S. population.
  • The share of Asian sources rose to eight percent in 2015, compared to five percent in 2013.  Asians comprise 5.4 percent of the U.S. population.

Asians as a group are actually over-represented but Asian women lag the farthest behind in any racial group.

Of course, the U.S. population is not the same as NPR’s listener-ship. NPR listeners are 85 percent white, eight percent Latino and seven percent black.

Keith Woods, NPR’s vice president for diversity in news and operations, is quoted as stating he is “generally pleased with the direction that this is going,” noting the increases in the share of black on-air sources, as well as the percentage of “subject matter experts” who are people of color. He said he had “hoped for better news on our coverage of women, on our inclusion of women.”

Note: Two protected classes were not surveyed by NPR, age and disability.

Filed Under: CULTURE, EMPLOYERS, TITLE VII Tagged With: , ,

Fed Diversity Measure Omits Older Workers & Disabled

December 9, 2015 by Leave a Comment

What does diversity mean in the employment context?

A recent report on standards that federally regulated companies can use to evaluate their diversity policies and practices provides that diversity refers only to racial minorities and women. Minorities are defined as “Black Americans, Native Americans, Hispanic Americans, and Asian Americans.”

One might expect the term “diversity”  to at least encompass protected classes under federal discrimination laws. After-all, these groups have been historically deprived of jobs and opportunities  precisely because they are diverse from the mainstream.Yet older workers and the disabled are omitted from the definition of diversity set forth in the Final Interagency Policy Statement Establishing Joint Standards for Assessing the Diversity Policies and Practices of Entities Regulated by the Agencies.

The report was issued by six federal agencies pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The agencies are the Federal Reserve Board, Bureau of Consumer Financial Protection, Federal Deposit Insurance Corporation, National Credit Union Administration, Securities and Exchange Commission and the Office of the Comptroller of the Currency. [Read more…]

Filed Under: CULTURE, DISPATCHES, EMPLOYERS Tagged With:

The Considerable Downside of Mediation for Discrimination Victims

November 29, 2015 by 1 Comment

Mediation is a really good deal for employers but what about workers? Not so much.

In its 2014 performance report,  the EEOC states that its mediation program for private sector complainants achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination. Mediation is a voluntary process where a neutral mediator assists the employer and employee in reaching an early and confidential resolution of the employment dispute raised in a charge of discrimination.  The  effort yielded  $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.

UPHere are some of the many ways that employers benefit from the EEOC’s mediation program:

  • Thanks to the generosity of the American taxpayer, it doesn’t cost employers anything to use this form of alternate dispute resolution. The EEOC doesn’t charge the complainant either but the complainant often has no money because s/he is the victim of illegal discrimination. There’s a difference.
  • The employer  usually has a major advantage because it is  represented by an experienced attorney while the complainant often can’t afford to hire an attorney and his or her only knowledge about  the legal process is derived from television shows like Law and Order.
    • A settlement costs the employer practically nothing compared to the cost of responding to an EEOC investigation and then litigating a lawsuit , which would likely exceed $100,000. If the employer loses the case,  add on damages and  the plaintiff’s attorney fees.
    •  No one has to know! It’s all secret.

What’s the down side of mediation for the employer? There aren’t any. Even if the employer fails to achieve a settlement, the employer gains valuable information about the complainant’s case, including his or her evidence, whether the complainant is or will be represented by counsel, and whether the complainant has been so emotionally damaged by discrimination that s/he would be a poor witness in front of a jury. [Read more…]

Filed Under: DISPATCHES, EEOC, EMPLOYERS Tagged With: