Part I: Measuring What Matters at Title VII’s 50^th Anniversary

Title VII of the Civil Rights Act of 1964 (“Title VII”) will turn 50 on July 2, 2014.  Over the past year, we have already observed the 50^th anniversary of Dr. Martin Luther King’s March on Washington for Jobs and Freedom, as well as the assassination of John F. Kennedy, significant historic events that prompted Title VII’s passage.  In his famous “I Have a Dream” speech in August, 1963, Dr. King entrusted our generation with the important task of keeping the march toward equal employment opportunity  moving forward and developing new, innovative ways to deliver on Title VII’s promises.

We’re failing, not only these civil rights trailblazers, but also the kids marching behind us.

Employer Money:  A Poor Proxy for Progress

In passing Title VII, Congress created the U.S. Equal Employment Opportunity Commission (EEOC) to eliminate workplace discrimination “through informal efforts of conference, conciliation and persuasion.”  Nearly 25 years after its passage, trial/employment lawyers urged Congress to amend Title VII to allow for jury trials, compensatory/punitive damages, and automatic attorneys’ fees awards.  They insisted that if Congress made it worth it (financially) to prosecute discrimination matters in court, they– as mini-deputized Attorneys General–would help an underfunded EEOC end discrimination and by logical extension, foster equal employment opportunity for Title VII’s beneficiaries. To learn more about CRA 1991’s brief legislative history, click here.

Since adopting CRA 1991’s “gladiator” enforcement model of Title VII, a tremendous amount of money has changed hands between employers, Employment Practice Liability (EPL) insurance carriers, trial lawyers, defense attorneys, and employees who raise allegations of workplace discrimination, harassment or retaliation (collectively, “discrimination”).  In fact, for at least the past two fiscal years, the EEOC has measured its efficacy by the amount of money it has collected from employers to resolve discrimination allegations: in both FY2012 and in FY2013, the EEOC has characterized its historic collections from employers–$365.4m and $372.1m, respectively—as evidence of “enforcing the law more effectively.”

But does the amount of money collected from employers really measure our progress toward eradicating discrimination and promoting EEO?

Of course not, and the EEOC knows better.  First, a recent survey of employers regarding common statements that EEOC mediators make in its “fabulously successful” ADR Program shows that mediators emphasize cost-of-defense, not charge merits, when encouraging employers to pay more money to resolve discrimination charges. EEOC mediators even threaten [disingenuously] EEOC enforcement action (e.g., cause determinations, systemic investigations, and prosecutions) to ratchet up employer monetary payouts.  Accordingly, the EEOC is well aware that cost-of-defense considerations, more than charge merit, now drive employers’ settlement deliberations.  In fact, the EEOC exploits that state of affairs so that it can later equate its efficacy with the amount of money it has “secured” on behalf of “victims.”

Second, because of the proliferation of EPL insurance following CRA 1991, employers and EPL carriers now treat ostensibly intentional discrimination claims like any other unavoidable, insured business risk.  Based on business (i.e., cost-of-defense) considerations alone, EPL carriers routinely pony up $25K to $50K in settlement proceeds, just to dodge suffocating defense costs.  Without EPL insurance, most employers can no longer afford to fight even when they’re right given the non-recoverable nature of defense fees.  By design, EPL insurance took the sting out of the stick of CRA 1991’s enhanced remedies and amplified risks.  Now, money changes hands in an automatic cycle of employers, EPL carriers, defense attorneys, trial lawyers, and then lastly discrimination claimants. The amount of money changing hands, however, makes a poor proxy for progress toward equal employment opportunity.

More Meaningful Measurements

Ultimately, a candid assessment of how far we have come at this historic, 50-year milestone begins with measuring what matters.  In evaluating the efficacy of any intervention to address a measurable social problem like inequitable employment opportunity, we start by visualizing success, as Dr. King did in his landmark “I Have a Dream” speech in August, 1963.  Once fulfilled, what does the dream of equal employment opportunity look like? Title VII’s architects and proponents certainly never dreamed that employer monetary payouts would one day measure our progress.  Instead, they likely dreamed about (a) the advancement of minorities/women toward top jobs; (b) comparable unemployment rates among racial groups; (c) improved perceptions of racial equality/opportunity in the workplace; and (d) maybe even EEO leadership among other industrialized nations, to name only a few desired outcomes.  We welcome your additions to this list; please join the conversation.

Looking for progress through this analytic lens, the march toward equal employment opportunity has decelerated for most of Title VII’s intended beneficiaries; African-Americans have actually lost ground in recent years.

Private Sector Progress of Women/Minorities toward Attaining Official/Manager Jobs

EEO Legal Solutions recently teamed up with Dan Kuang, PhD of Biddle Consulting Group, LLC in Folsom, California to analyze publicly available EEO-1 data from 1998-2012.  The EEOC requires all employers with 100 or more employees to provide an annual “EEO-1” report regarding the gender, racial, and ethnic composition of their workforces, resulting in a large database of granular employment data across industries.  Our analysis measured the pace and trajectory of women, Latinos, Asians, and African-Americans toward achieving top jobs across industries—i.e., Official/Manager positions in EEO-1 speak.  How far have women/minorities come in reaching the top?

Here’s what we discovered:

Despite earlier gains, women have not made significant strides toward greater representation in the Official/Manager ranks over the past decade; since 1998, the percentage of women holding these top jobs has hovered around 8%, graphically depicting a long flat line. Our findings comport with those reported by Catalyst.org: women make up nearly half of the workforce, but less than 10% actually reach the top. Women of color have fared particularly poorly in achieving management jobs.

Our findings regarding “Minorities”, however, reveal just why we cannot logically or legitimately lump everyone together in a single “Minority” group.  Although the pace appears [too] slow, Latinos have made progress toward achieving Official/Manager positions, a slight upward trajectory that we find encouraging.   Equally encouraging, Asian Americans, a classification that includes people of Asian and Middle Eastern descent, have significantly narrowed the gap with Whites in attaining Official/Manager positions, showing a steep increase since 2002.  African-Americans have lost ground since 2008, however, and have fallen behind Latinos, in their march toward inclusion at the top.  Given the historic election of President Barack Obama, and the appointment of Jacqueline Berrien, a former NAACP attorney, as Chair of the EEOC, this finding startled us, and deserves further analysis.

Improved Opportunity for African-Americans in the Federal Workforce

In a 2013 report, the EEOC has openly acknowledged that despite its greater control over federal sector discrimination issues, African-Americans still face significant obstacles in obtaining employment and advancing within the federal personnel system.

Comparable Rates of Unemployment Among Racial Groups

According to a U.S. Department of Labor, Bureau of Labor Statistics employment report issued on March 7, 2014, unemployment remains highest among African-Americans, with a sharp spike in 2010.  Latinos follow in a distant second, but Whites now outrank Asian Americans in terms of overall unemployment rates.  The burdens of unemployment, and of economic downturn, are not evenly shared, still hitting African-Americans the hardest.

Improved Perceptions of Workplace Fairness

The election of President Obama initially infused everyone with the hope that racial barriers (and maybe even gender, sexual orientation, and disability barriers) were starting to crumble.  According to a recent Gallup poll, however, a majority of African-Americans still feel disadvantaged compared to Whites in obtaining employment.  Notably, African-Americans’ confidence in equal employment opportunity has waned since 1995, shortly after the implementation on CRA 1991.  Further, the EEOC continues to take in nearly 100,000 new charges of discrimination every year, which suggests that increasing numbers of employees perceive their workplaces as discriminatory.

International EEO Leadership among Modern Societies and Economies

The U.S. is ranked at 69th in the world in terms of women’s representation in national legislatures or parliaments (tied with Turkmenistan) out 188 direct election countries (as of October 31, 2011), down from 57th in November 2004.  The U.S. lags behind Israel, Canada, and even South Africa in the number of female CEO’s, and behind many European nations in the number of women holding seats on boards of directors.  In fact, the U.S. has fewer female Board chairs  than Turkey, South Africa, and the Philippines.

Title VII’s golden anniversary provides a golden opportunity to assess whether our methods have worked to promote equal employment opportunity.  Given foreseeable market responses to CRA 1991, particularly the proliferation of EPL insurance among employers, this privatized litigation enforcement model no longer works, by itself or at an acceptable pace, to fulfill Title VII’s promises.  At one historical point in the march, the notion that the EEOC and “gladiator” trial/employment lawyers could reform the American workplace initially resonated with me and made me believe in a victim/villain paradigm of employment disputes that, I quickly discovered while working at the EEOC, bears little resemblance to reality.  With 20 years of data to draw on, however, we must now accept that with CRA 1991, Congress entrusted the march toward equal employment opportunity to trial lawyers, and trial lawyers have done exactly what trial lawyers do–namely, find a way to profit from the problem without actually solving it.

Please stay tuned for Part II where we will address specific non-litigation based policy recommendations to jumpstart our march toward equal employment opportunity.

Merrily S. Archer, Esq., M.S.W.

March 12, 2014

Politics Masquerading as Workplace Policy

Every election year, members of my political party clamor to rebrand themselves as “Pro Business Democrats.”  Only Cheri Jahn (D-Arvada), however, can legitimately lay claim to this important middle ground, where sound public policy trumps partisan politics.  Bucking party lockstep, Cheri Jahn voted against 2013’s HB-1136, which takes effect on January 1, 2015 and dramatically changes the litigation landscape for Colorado’s employers.

Self-defeating Policy: Duping Stakeholders or Just Dumb?

On February 17, 2014, Colorado Senate Democrats issued a press release announcing the defeat of an obviously half-assed Republican effort to repeal HB-1136 that, with the notable exception of Cheri Jahn, passed along party lines last year.  According to Senate President Morgan Carroll, one of HB-1136’s primary sponsors, “Colorado was the 43rd state to enact a law to protect all workers.  Americans have been fighting for this since the 1960s . . .”   Rachel Martinez of the pro-employee lobby “9 to 5” also claimed that without HB-1136, victims of atrocious, overt sexual harassment perpetrated by small employers “had no access to recourse” and that with HB-1136, women like her will now have “access to justice.”

Not exactly.  Actually, federal laws (e.g., Title VII, ADA, ADEA, EPA) and their Colorado counterparts in the Colorado Anti-Discrimination Act (“CADA”) have long outlawed workplace harassment, retaliation and discrimination based on race, gender, religion, national origin, age, and disability.   Whereas Title VII covers employers with 15+ employees, the CADA protects employees of employers with less than 15 employees.  Though virtually identical, Title VII has historically offered distinct advantages to employee-side lawyers—namely, the compensatory and punitive damages and automatic attorneys’ fee awards available under the Civil Rights Act of 1991 (“CRA 1991”).  Because of the comparatively paltry economic damages available under CADA, alleged victims like Rachel Martinez had a tough time finding employee-side lawyers (“PELA/CTLA attorneys”) to vindicate their workplace rights.  Simply put, for these so-called civil rights gladiators, the low monetary recoveries available under the CADA hardly made their standard contingent fee arrangements profitable.

In her public comments last year, Ms. Carroll insisted that Colorado law must replicate the federal scheme (i.e., CRA 1991) for employers with 15+ employees, and must “close the gap” to provide greater remedies to “victims” of employers with 14 and fewer employees.  Echoing the same arguments advanced by national PELA/CTLA organizations for CRA 1991 over twenty years ago, see infra, Ms. Carroll claimed that if CADA’s remedial scheme made it worth it for PELA/CTLA attorneys to champion discrimination/harassment cases involving small employers, victims like Rachel Martinez could more easily find an attorney to prosecute her claims.  Notably, Ms. Carroll and Representative Joe Salazar, HB-1136’s primary proponents in the Senate and House, respectively, are both PELA/CTLA attorneys who exclusively represent employees in workplace disputes.

In signing HB-1136 into law, however, Governor Hickenlooper expressly commented that the caps on compensatory and punitive damages negotiated into this bill (e.g., $10K for 1-4 employees; $25K for 5-14 employees) will protect small businesses:  most PELA/CTLA lawyers take discrimination/harassment cases on a contingent fee, he correctly observed, such that the very low damage caps will make smaller employer discrimination/harassment matters unattractive to PELA/CTLA attorneys. Thus, in ostensibly trying to encourage PELA/CTLA attorneys to prosecute EEO cases for victims of small employers, HB-1136’s scheme actually makes it less likely that PELA/CTLA attorneys will pursue them.  After all, given the low damages caps, PELA/NELA attorneys like Morgan Carroll and Joe Salazar would have no more financial or moral incentive to help victims like Rachel Martinez than before HB-1136’s passage.

We were duped . . . or these Democrats stink at crafting legislation to effectuate their ostensible public policy purposes.  In fact, the results of HB-1136 speak volumes about the underlying intent.  HB-1136 was never about helping small employer victims like Rachel Martinez.  On the contrary, HB-1136 was always about switching EEO enforcement forums from federal court, where knowledgeable federal judges routinely dismiss non-meritorious discrimination/harassment matters before trial, to Colorado state court, where overwhelmed judges unfamiliar with 50 years of federal employment law allow even the dumbest discrimination matters to reach, or careen darn close to, juries.  Perhaps for that reason, HB-1136’s proponents actually proposed the low caps applicable to small employers, but refused to negotiate (or lower) the damages caps applicable to Colorado employers with 15+ employees, which mirrors existing federal law (i.e., CRA 1991).   In fact, HB-1136’s final draft contains a provision instructing Colorado state judges to rely on over 50 years of federal EEO law very well known to Colorado’s federal bench.

As passed, HB-1136 gives PELA/CTLA attorneys the best of both worlds: the ability to file discrimination/harassment lawsuits in historically employee-friendly jurisdictions like Denver, Boulder, and Adams counties, while fully benefiting from the same damages and LAW available in the federal EEO enforcement system.

The Great Divide between Rhetoric and Reality

Difficult to Prove . . . EASY to Allege

At the House Judiciary Hearing for HB-1136 on February 14, 2013, attorneys representing PELA and CTLA testified about how difficult discrimination cases are to prove. Morgan Carroll even postulated that Colorado employers will not likely encounter frivolous discrimination litigation arising out of everyday personnel decisions because actual discrimination is the “rare exception;” Governor Hickenlooper actually characterized the difficulty proving intentional discrimination or harassment as a “safeguard” for employers! Indeed, the federal U.S. Equal Employment Opportunity Commission (EEOC) issues “reasonable cause” determinations to believe discrimination/harassment has occurred in less than 4% of all charges, a percentage that has steadily decreased over the past five years. Likewise, the EEOC issues “no reasonable cause” determinations in nearly 2/3 (66%) of all charges filed, as does CCRD in all but approximately 5% of charges.

Although discrimination is difficult to prove, it is extremely EASY to allege.  And under HB-1136, employers start losing money as soon as the allegation is made.  HB-1136 mimics CRA 1991’s attorneys’ fees provisions, which require employers to pay the attorneys’ fees of a prevailing employee as a matter of course.  Accordingly, under this scheme, PELA/CTLA attorneys can recover BOTH (a) 33%-40% of the judgment as a contingent fee; AND (b) hourly attorneys’ fees based on an exaggerated rate and an inflated hourly time estimate, a real windfall.  Employers, by contrast, can recover their substantial defense investment only upon a showing that the lawsuit was patently frivolous or prosecuted in bad faith, a finding Colorado judges virtually never make (even when they should).   In the federal EEO enforcement system upon which HB-1136 is modeled, $700K in attorneys’ fees to the plaintiff’s lawyer, based on a $27K judgment, have become commonplace.  Meanwhile, the employer must not bear this incredible expense, but also the weight of its own non-recoverable defense fees, which typically exceed $100K for litigation.  Check out these Biglaw cost-of-defense estimates here.

Employers’ Cost of Defense Conundrum: A Cost-Prohibitive Fight to Prove Themselves Right

Cost-of-defense now drives employers’ settlement deliberations more than any other factor.  In the federal enforcement system that HB-1136 replicates, employers instantly walk into a cost-of-defense conversation as soon as the charge of discrimination is made, regardless of wrong-doing.  EEO Legal Solutions’ recent survey of employers’ experience in the EEOC mediation process demonstrates that these federal mediators regularly use cost-of-defense in “encouraging” employers to settle.  More troubling, our survey also shows that EEOC mediators regularly threaten EEOC enforcement activity, including prosecution, to ratchet up employers’ cost-of-defense monetary offers.  Thus, not only is it common knowledge within Colorado’s employment bar that employers, more often than not, settle out of cost-of-defense concerns, our study shows that this kind of “shakedown” has become an institutionalized tool to exact employer payouts.   Adding insult to injury, for the past several years, the EEOC has characterized its historic collections from employers, $372.1m in FY2013, as “enforcing the law more effectively.”

Déjà Vu All Over Again

The arguments advanced by PELA/CTLA, bar associations, and employee advocacy groups in favor of HB-1136 in 2013 bore a striking, and disturbing, resemblance to those articulated over 25 years ago in passing CRA 1991. Nearing the 25-year mark since passage of Title VII, these groups urged Congress to modify Title VII’s remedial scheme to allow for jury trials, compensatory and punitive damages, and recovery of attorneys’ fees.  They claimed that if Congress sweetened the pot to make it more profitable to prosecute employers for EEO violations, they, as “gladiators” and “mini Attorneys’ General”, would advance the cause for equal employment opportunity and help an underfunded EEOC deliver on Title VII’s promises.  By ratcheting up the damages against employers, victims of discrimination, they maintained, would have meaningful remedies to punish employers for bad behavior and to serve as an example to others of the importance of EEO compliance.  For more reading about the CRA 1991’s legislative history, click here.

Since CRA 1991: Measuring What Matters

As noted above, the EEOC boldly characterizes its historic collections from employers as evidence of “enforcing the [EEO] laws more effectively.”  Nevertheless, despite 20+ years of measurable data since CRA 1991 (HB-1136’s federal counterpart), neither HB-1136’s proponents nor opponents questioned whether this privatized civil litigation enforcement scheme even WORKED to promote greater workplace equal employment opportunity.  If we look at more meaningful evaluative metrics of our progress, the march toward equal employment opportunity has stalled.

As mere examples, the EEOC’s own EEO-1 data from 1998 to 2012 shows that women and Latinos have not made significant strides toward greater representation in Official/Manager jobs across industries; despite earlier gains, their progress has flat-lined in recent years.  Unfortunately, African-Americans have lost ground toward achieving these tops jobs since 2008, a downward trajectory that should cause obvious concern among policymakers; women of color have fared particularly poorly in achieving management jobs.  Further, the EEOC has openly acknowledged that despite its greater control over federal sector discrimination issues, its processes and procedures have yielded little progress for the federal African-American workforce.  A recent Gallup poll revealed that African-Americans feel as disadvantaged in obtaining desired employment as they did in 1963.  According to research by Catalyst.org, pay inequality based on gender, race, and ethnicity continues to plague our workplaces.  The U.S. lags behind numerous other modern economies (e.g., Norway, the UK, and even South Africa) in including women on Boards of Directors.

CRA 1991’s privatized civil litigation enforcement model has not proven effective at delivering greater equal employment opportunity for Title VII’s stakeholders, although a substantial amount of money has changed hands between employers, insurance carriers, and lawyers. Money changing hands, however, is no substitute for real EEO change.

The Market’s Foreseeable Response to CRA 1991: EPLI and the California Problem

After CRA 1991, the market responded in foreseeable ways—namely, the proliferation of Employment Practices Liability Insurance coverage (EPLI) for employers and of HR consulting practices like that of Senator Linda Newell, another leading HB-1136 proponent.  By design, EPLI takes the sting out of the stick of CRA 1991’s enhanced remedies, thereby allowing employers to treat discrimination matters like any other insured business risk (e.g., slip-n-fall, workers’ comp claim, car crash).  Employers now regard discrimination/harassment claims as an unavoidable cost of doing business, a sentiment that makes real workplace rehabilitation impossible.

In response to HB-1136, Colorado employers will also seek necessary protection by purchasing EPLI.  In the California EEO enforcement model that Colorado now copies, however, EPLI insurance has become increasingly un-affordable for small to mid-sized employers.  Colorado employers should expect the same, particularly steep increases in their EPLI premiums once HB-1136 takes effect on January 1, 2015.

It’s About the Money, Money, Money . . .

If HB-1136’s proponents cared as much about civil rights and equal employment opportunity as they do the money that this enforcement model makes for them, they would surely share our concerns about its efficacy as we near Title VII’s 50th anniversary in July, 2014.   Given the intensely ad hominem and overly simplistic tenor of last year’s passage of HB-1136, however, optimism seems ill-advised. In the “victim/villain” dichotomy perpetuated by PELA/CTLA lawyers for the benefit of PELA/CTLA lawyers, rhetoric about victims, fighting for civil rights, a passion for justice, and doing “God’s work” often just masks ego and greed in the most Machiavellian manner.

HB-1136’s primary cheerleader, Senate President Morgan Carroll, is an attorney with Denver personal injury giant, Bachus & Schanker. Following HB-1136’s passage in May, 2013, Bachus & Schanker announced the expansion of its employee-rights practice by merging with longtime PELA/CTLA attorney Elwyn Schaefer. According to Darin Schanker, Bachus & Schanker founding partner, expanding their personal injury practice into employment law is simply “logical,” and with the addition of Mr. Schaefer, his firm looks forward “to benefiting from the high energy and outstanding results his firm is known for” (i.e., money, again).

The House’s primary sponsor in the House, PELA/CTLA attorney Joe Salazar, also stands to make more money prosecuting employers.  Likewise, Senator Linda Newell, who owns an HR consulting firm, should also profit from HB-1136 by cautioning/counseling Colorado’s employers about the increased EEO litigation risks that, ironically, she herself created!  Come to think of it, HB-1136 could allow me, a longtime and visible EEO litigator, to churn cost-of-defense payouts like a personal injury settlement mill too! Whether legislation benefits me, however, does not measure its value as public policy, an ethic I’d always assumed my fellow Democrats shared.

Elevating Lawyers over Employers

With an overbroad brush, HB-1136’s proponents claimed that “Colorado was the 43rd state to enact a law to protect all workers.  Americans have been fighting for this since the 1960s . . .”, as though Coloradans were backwards, racist hater hillbillies.   This misleading statement, however, smacks of the false “victim/villain” paradigm created by PELA/CTLA attorneys for the benefit of PELA/CTLA attorneys—i.e., if you oppose this legislation for sound business and public policy reasons, you must be a backwards, racist hater hillbilly.

This false dichotomy, however, prevented really SMART people among Democratic legislators (maybe even Governor Hickenlooper himself) from addressing the real downstream problems that HB-1136 poses.  In fact, HB-1136 renders Colorado one of the most employer-punitive states in the Rocky Mountain region.  According to legal research prepared by Biglaw employment boutique Littler Mendelson, the majority of states (29) do not permit recovery of punitive damages, as does HB-1136.  Even our neighboring states (e.g., New Mexico, Kansas, Wyoming, Utah), with which Colorado competes to attract business, do not allow punitive damages against employers.  Likewise, HB-1136 places Colorado in the minority of states that allow employees to recover compensatory and punitive damages, AND unlimited attorneys’ fees.

In enacting HB-1136, Colorado’s Democrats have steered us towards the California EEO enforcement model, which has hardly proven successful for anyone except lawyers.  Because damages available under California law are more generous than Title VII and CRA 1991, PELA/CTLA attorneys now bypass the federal EEO enforcement system entirely, opting to pursue their claims in state agencies and state courts—namely, the intended effect of HB-1136.  No doubt, this shift from federal to state EEO enforcement has foisted additional administrative and judicial burdens on a state teetering on the verge of bankruptcy for years.  The litigation climate in Southern California, for example, has become so bad that EPLI carriers are now pulling out of the market or are forced to charge exorbitant premiums that many small to mid-sized employers cannot afford.  Learn more here.  These conditions may help explain why large California businesses with lots of personnel needs migrate to the Rocky Mountain region in the first place.

Fostering Equal Employment Opportunity through Colorado Innovation and Collaboration

Coloradans are innovators.  Instead of enacting an EEO enforcement model that has proven ineffective, that burdens employers, that reduces our regional competitiveness, that treats employers as villains, and that legislates the exception, let Colorado become a beacon of innovation toward achieving meaningful EEO progress in our workplaces.  This July, 2014 marks the 50^th anniversary of Title VII of the Civil Rights Act of 1964, an ideal moment to measure how far we have come toward inclusive, fair workplaces.  HB-1136’s model simply has not worked to transform our workplaces, which compels our generation to experiment with new ways to deliver on Title VII’s promises.  By partnering with business and investing in inclusiveness initiatives throughout our state, Colorado has an opportunity to become a positive, national example in the continuing march toward equal employment opportunity over the next 50 years.  The path forward requires more collaboration, less litigation.

Merrily Archer, Esq., M.S.W. (once politically Blue, but now a pleasant shade of Purple)

On Friday, January 31, 2014, President Obama called on CEO’s of the nation’s largest employers (McDonald’s, Morgan Stanley, and Wal-Mart) to hire long-term unemployed  and “credit challenged” people.  Given the employment litigation climate, however, why SHOULD they?

Drones, Krones and Apps

The “Octocopters” that Amazon CEO Jeff Bezos unveiled on CBS’ 60 Minutes in December of 2013, dazzled the daylights out of me too.  According to Bezos, these drones (called Amazon “Prime Air”) will fly packages from warehouse to doorstep within 30 minutes.  “Prime Air vehicles will be as normal as seeing mail trucks on the road today,” Amazon said in a statement, and could be available four to five years, pending further safety testing and FAA approvals.  In response, the Senate scheduled a hearing in 2014 to address the “economic benefits and threats to airspace.” 

Economic benefits for whom, I wondered?  Unlike mail trucks, unmanned drones are, well, UNMANNED, another human job lost to technology.  In fact, it looks like Amazon, the world’s largest online retailer, has figured out other clever ways to take PEOPLE out of the operational equation.  In Amazon’s massive distribution centers around the country, finding people among the busy bustling KRONES (i.e., high tech robots developed by Kiva Robotics Systems) is pretty tough.  Kiva robots do most of the heavy lifting and thinking, eliminating the risks of hiring PEOPLE: workplace injuries, lawsuits, human error, unreliability and unpredictability, to name a few.  By eliminating these risks, however, Amazon has simultaneously eliminated livelihoods of PEOPLE (i.e., warehouse workers and delivery drivers).   To say the least, therefore, the economic benefits of Amazon’s drones and Krones are not evenly distributed.

Just as righteous indignation started to surge, I realized that I, as a small business owner, have done exactly the same thing—i.e., used technology to avoid hiring PEOPLE.  At Biglaw, I had a secretary to handle dictation and court filings, a paralegal to manage documents, a receptionist to answer phones, in addition to an entourage of billing clerks, marketing coordinators, and miscellaneous “office support” (e.g., coffee and copy makers).  In setting up EEO Legal Solutions in May, 2012, I deliberately invested in technology (and in myself to master it) to slash the unnecessary “people overhead” that contributes to unreasonable rates.  Now, Dragon software handles my dictation (more accurately, actually); Adobe Acrobat makes document management and production a snap; Citrix’s online products, tablets, and smartphones foster fast communication and access; and other entrepreneurs in billing, IT, and marketing fill in any gaps . . . at a fraction of the cost and risk.  Worse, I openly criticize Biglaw for increasing rates when the actual cost of practicing law has decreased, again, due to technology. 

In an era when “there’s an App for that,” why hire PEOPLE?  That same question apparently occurred to Professors Erik Brynjolfsson and Andrew McAfee of the prestigious MIT Sloan School of Management years ago in their article How Technology is Destroying Jobs.  According to these researchers, advances in computer technology (e.g., robotics, automated translation) account for the sluggish employment growth over the past 10 to 15 years.  More troubling, these MIT academics forecast dismal job prospects as employers increasingly adopt new technologies “not only in manufacturing, clerical, and retail work but [also] in professions such as law, financial services, education, and medicine.”  In fact, Professors Brynjolfsson and McAfee argue that technology is replacing jobs faster than it is creating them, which explains why the past 10 years have seen economic growth, with no parallel increase in job creation. 

The Problem with People

No problem ever got less complicated by adding more people ranks high on my list of “inalienable truths” to emerge from years as an EEOC attorney, defense litigator, social worker, and more recently, a small business owner.  Although academics disagree about the core cause of technological job displacement, few of them have addressed the downstream legal risks that employers face when hiring PEOPLE for any job. 

For employers, hiring people means complying with a morass of federal and state laws governing every aspect of the employment relationship.  For employers, hiring people means submitting to the enforcement authority of overlapping federal and state administrative agencies.  For employers, hiring people means risking later litigation arising out of basic personnel decisions (e.g., firing, hiring, operating while accommodating) under numerous regulatory schemes.   And, these schemes now come fully loaded with a private civil litigation remedy, enabling plaintiffs’ lawyers to exact cost-of-defense settlements for alleged violations.  More here.   For employers, these realities make the choice between technology and people pretty easy:

after all, technology may fail me, but it will never sue me. 

Pushing Employers Away from People: Bad Enforcement Policy

Our current, public policy approaches to enforcing workplace rights—e.g., privatized civil litigation–drive employers away from using PEOPLE for the job.  Now, before proceeding further, I do NOT advocate workplace deregulation.  History provides numerous examples of the horrors of child labor, unsafe working conditions, picket line violence, blatant discrimination, unlivable wages, inhumane working hours, and other forms of human exploitation.  Each regulatory effort evolved to right a specific workplace wrong and to raise the “federal floor” of economic decency and fairness, ensuring relatively uniform conditions, standards, and rights. 

Yet, our mechanisms for enforcing these uniform conditions, standards and rights (i.e., a privatized litigation scheme that rewards lawyers at the expense of employers) pushes employers away from hiring PEOPLE at all, particularly in the equal employment opportunity (EEO) arena.  These days, employers find themselves stuck between the increasing likelihood of EEO disputes and the increasing, if not suffocating, cost of defending against them.  More here.  Worse, the U.S. Equal Employment Opportunity Commission (EEOC) admittedly has used its regulatory enforcement power to carve out new protected classes, to expand its authority, and to substitute its judgment for employers’ regarding workplace operations and minimally effective job performance, which exposes employers to even more private litigation. 

Paradoxically, in an EEOC prosecution I defended a few years ago under the Americans with Disabilities Act (ADA), EEOC v. Picture People, the EEOC literally took misanthropic positions that cut against using PEOPLE to interact with other PEOPLE in a retail or restaurant setting . . . all in the name of vindicating one person’s ADA rights.   In fact, the EEOC attempted to order a national retailer to jettison its “strong verbal [oral] communication skills” requirement to accommodate a profoundly deaf person without any oral communication skills at all (e.g., lip reading, minimal speech).  In substituting its judgment for this retail employers’, the EEOC insisted that this highly interactive customer service and sales position could be adequately performed via text message, gesturing, writing notes, and pointing to available product; its own expert, however, conceded that these methods are “not as effective” as speech in a sales/customer service position.  Thus, instead of verbal exchanges characteristic of most retail and restaurant positions, the EEOC advocated using technology (e.g., text messages, computers/tablets) so that customers can place their own orders, confirm their own contact information, look at written material in lieu of a sales dialog, and interact with staff.   If the EEOC is right, why hire PEOPLE, even for the most people-centric positions? 

People matter, and deserve workplaces that are safe and fair.  In our efforts to protect people, our enforcement system dissuades employers from hiring them at all.   Because technology enables employers to avoid hiring PEOPLE to accomplish unskilled, repetitive and/or administrative tasks, we must re-think how we approach workplace policy, focusing on collaborating with employers, not making it easier to sue them.  Punitive approaches like the privatized civil litigation enforcement model of CRA 1991 have not proven effective at ensuring equal employment opportunity, although a substantial amount of money has changed hands since its enactment.   Given the overwhelming burdens of this enforcement scheme, technology will continue to provide a cheaper, more reliable, and less litigious alternative to hiring humans, thereby equalizing only a lack of employment opportunity for EVERYONE. 

 Merrily Archer, Esq., M.S.W., February 4, 2014

Does EEOC General Counsel David Lopez Really Belong “Under the Bus”?

On January 27, 2014, EEOC Commissioner Constance Barker delivered the keynote at ACI’s Employment Practices Liability Insurance seminar before an audience teeming with defense lawyers and EPL carriers.  According to the Seyfarth Shaw’s description of her speech, Commissioner Barker acknowledged that the Obama Administration has used its executive, regulatory powers to make new law, given that the gridlock in Congress makes worker-friendly legislation difficult to pass.  She forecasted that because of “too much delegation of litigation decision-making” in the hands of EEOC General Counsel David Lopez, employers can expect more aggressive, extensive litigation in 2014.  She suggested that EEOC Commissioners should enjoy a greater role in deciding which cases the EEOC pursues in litigation, as though the GC (and the EEOC Legal Units) bear the fault and shame exclusively for the EEOC’s recent litigation debacles.  She then suggested that the EEOC’s Strategic Enforcement Program (SEP) will govern the regulatory efforts of EEOC personnel in the Field.  And finally, she predicted that litigation (and specifically, systemic litigation) will take precedence over discrimination prevention efforts.

Commissioner Barker’s comments reveal one of the EEOC’s historic institutional dysfunctions—i.e., the tension between EEOC Commissioners and the GC, all of whom are presidentially appointed upon Senate confirmation.  As a former EEOC Trial Attorney (1997-2000), I interpret her comments as an effort to deflect blame away from herself, Enforcement, and other Commissioners for the EEOC’s recent litigation failures in ADA and systemic matters.  But, these EEOC litigation failures simply reflect the iceberg’s tip of its bureaucratic defects—e.g., a legalish “enforcement” agenda, a warped measurement of efficacy, and an exploitative mediation and conciliation process that the Commissioners theoretically control on the Enforcement side of the EEOC house.  Remember that a long tortured Enforcement investigation necessarily preceded these litigation failures, which likely cost the employer MORE than the USDC litigation itself.

In last two Performance and Accountability Reports (PAR), the EEOC has equated its historic collections from employers as “enforcing the law more effectively.”  Employer MONEY has become the new “metric that matters” at the EEOC, and now drives the behavior of its personnel in the ADR (mediation) and Enforcement (investigation/conciliation) units.  Even though the Commissioners publicly peddle the SEP, its PAR’s still define success by how much money the EEOC has exacted from employers on behalf of “victims”, regardless of charge merit.  As our EEOC Mediation Study revealed, because money means “success”, EEOC personnel routinely exploit employers’ cost-of-defense conundrum, even threatening the use of EEOC enforcement powers to increase settlement payouts to employees and their attorneys.  Money changing hands, however, is no substitute for real EEO change.  

Particularly in this regard, the EEOC’s Enforcement and ADR Units inflict far more financial pain on employers than the Legal Unit in USDC litigation.  In FY2013, for example, the EEOC again collected a record amount of money, $371.1 million, from employers, broken down in Figure 1, below.  Collections resulting from verdicts and settlements in litigation made up only a very small part of the EEOC’s overall take in FY2013; by contrast, over 80% of dollars collected from employers came from Enforcement (i.e., typically during “conciliation,” after a finding of Reasonable Cause) and/or Mediation.

Figure 1

More concerning, the EEOC’s administrative processes (e.g., Enforcement and ADR) occur under the carefully guarded cloak of confidentiality and “government deliberative process privilege,” which permits the EEOC strenuously to resist any judicial inquiry into its conduct.  Under the Freedom of Information Act (FOIA), the EEOC mechanically refuses to release charge information even to Respondent-Employers, unless and until a lawsuit already makes the allegations a matter of public record; even then, EEOC FOIA personnel redact any information that could invite scrutiny or criticism as “government deliberative process,” such as the basis for the Determination, the quality of the investigation, and the sufficiency of its conciliation efforts.  In peeking behind this EEOC’s iron curtain of confidentiality and “deliberative process,” however, our EEOC Mediation Study showed that EEOC personnel in the field seemed far more motivated by the “money metric” than some SEP cooked up by EEOC Commissioners in an ivory tower called “Headquarters.”  In reality, EEOC-initiated litigation marks the first opportunity to shine a spotlight on an otherwise confidential regulatory process, such that the EEOC’s litigation failures in systemic and ADA matters are just the first visible symptoms of more pervasive problems.   

Deflecting Instead of Doing

EEOC Barker then seemingly complains that because the EEOC’s prosecutorial discretion rests with the GC and not the Commissioners, litigation will continue to take precedence over EEOC prevention and compliance efforts.  This statement struck a dissonant (okay, disingenuous) chord: if the EEOC Commissioners sincerely bemoaned the likely increase in litigation, one would hope that they would take reasonable steps to mitigate its impact by investing MORE in EEOC compliance and prevention efforts.  After all, the Enforcement (i.e., Commissioners) side of the EEOC controls prevention programs and outreach. 

In various public outlets, we have suggested some cheap AND easy compliance programs that the EEOC COULD launch if it truly valued problem prevention–e.g., webinars, a YouTube training library, affordable Excel programming, publication of wins and losses so that employers have an ACCURATE view of the enforcement landscape.  These programs would fall squarely within the budgetary and organizational province of EEOC Commissioners, not its GC.  Given that the EEOC Commissioners have emphasized employer money as the measure of its success, however, it seems reasonable to question their commitment helping employers prevent EEO violations. Prevent works, but apparently, it does not PAY.  Likewise, ensuring that the EEOC maintains the credibility of its allegedly impartial ADR program also lies at the feet of EEOC Commissioners, not its GC.  And, defining meaningful measurements of success toward EEO (i.e., not employer payouts) is an inherently policy-related EEOC Commissioner function.  In this historic year, therefore, we would urge the EEOC’s Commissioners to stop deflecting blame for EEOC litigation failures, to recommit to improving EEOC’s problems directly within their control, and to start investing in collaborative efforts with employers to fulfill Title VII’s objectives.  After all, CRA 1991’s litigation-based enforcement approach has not worked well to secure equal employment opportunity anyway. 

Profiting from Politics

“Our passion is justice” is the catchphrase of TV-hawking personal injury firm Bachus & Schanker.  Last month, Bachus & Schanker announced its expansion into another burgeoning “passion” apart from car crashes and slip-n-falls: employment law.  According to Darin Schanker, Bachus & Schanker founding partner, expanding their personal injury practice into employment law is simply “logical,” and with the addition of longtime Denver plaintiff’s employment lawyer Elwyn Schaefer, his firm looks forward “to benefiting from the high energy and outstanding results his firm is known for” (i.e., money).  More here, http://goo.gl/dOj1YC.

While Bachus & Schanker looks forward to profiting from its new employment law practice, Colorado employers should start asking serious questions . . . quickly, particularly BEFORE the Colorado General Assembly opens its new legislative session on January 8, 2014.

On October 8, 2013, Senate Democrats elected Bachus & Schanker attorney Morgan Carroll as their President, a key leadership and public policy position in Colorado’s legislature.   According to Bachus & Schanker’s website, Ms. Carroll represents employees in employment litigation.  She is a member of the Colorado Trial Attorneys Association (CTLA) and the Plaintiff Employment Lawyers’ Association (PELA), and is committed to “leveling the playing field for ordinary people to exercise their rights.”  http://www.coloradolaw.net/html/carroll.html.

Last year as a Senate Democrat, Ms. Carroll co-sponsored HB-1136, which significantly ratchets up the damages employees can recover by accusing their employers of discrimination, harassment and retaliation (collectively, “discrimination”).  More here, http://goo.gl/2D61yr.  Under HB-1136, which takes effect on January 1, 2015, employees alleging discrimination under Colorado law can recover more money from employers as compensatory (i.e., emotional pain, embarrassment) and punitive damages. Since 1991, these same remedies (e.g., compensatory, punitive damages) have been available under federal law against employers with 15 or more employees, covering the vast majority of the American workforce.   Nevertheless, in passing Title VII nearly 50 years ago, and enhancing its remedial scheme with the Civil Rights Act of 1991 (CRA 1991), Congress sought to insulate small employers from the staggering expense of civil litigation and exempted them as a matter of public policy.

In her public comments, Ms. Carroll insisted that Colorado law must replicate the federal scheme for employers with 15+ employees, and must “close the gap” to provide greater remedies to “victims” of employers with 14 and fewer employees (i.e., small employers). More here, http://goo.gl/sZW5Yi.   Yet ironically, in signing HB-1136 into law, Governor Hickenlooper expressly noted that the low caps on compensatory/punitive damages for small employers (e.g., $10K for 1-4 employees, $25K for 5-15 employees) will make discrimination matters involving them unattractive to personal injury attorneys using contingent fees, thereby raising legitimate questions about whether HB-1136 was about helping “victims” of small employers in the first place.   In fact, the results of HB-1136 reveal its underlying goals: to switch the litigation forum from federal courts, where judges routinely dismiss meritless employment claims on summary judgment, to Colorado state courts, where beleaguered judges grappling with huge dockets and unfamiliar subject matter (e.g., EEO law) allow most matters to careen toward jury trials until the bitter end.

Nevertheless, according to Ms. Carroll, HB-1136 will not hurt Colorado’s employers because proof of discrimination often requires a “smoking gun” that very few plaintiffs have. Indeed, the EEOC and the Colorado Civil Rights Division (CCRD) find discrimination in less than 5% of allegations.  Ms. Carroll and other HB-1136 proponents even argued only “bad actor” employers that commit or tolerate discrimination have something to lose under HB-1136; “innocent” employers can avail themselves of a good faith defense to avoid punitive damages.  Ms. Carroll publicly acknowledged that actual discrimination is rare, and exceedingly difficult to prove.

Exploiting Employers’ Cost-of-Defense Conundrum

Although discrimination is exceedingly DIFFICULT to PROVE, it is extremely EASY to ALLEGE.   And under HB-1136, employers start losing money and accumulating risk as soon as the allegation is made.  HB-1136 mimics CRA 1991’s attorneys’ fees provisions, which require employers to pay the attorneys’ fees of a prevailing employee as a matter of course.  Accordingly, under this scheme, plaintiffs’ attorneys such as Bachus & Schanker can recover BOTH (a) 33%-40% of the judgment as a contingent fee; AND (b) hourly attorneys’ fees based on an exaggerated rate and an inflated hourly time estimate, a real windfall.  Employers, by contrast, can recover their substantial defense investment only upon a showing that the lawsuit was patently frivolous or prosecuted in bad faith, a finding Colorado judges virtually never make (even when they should).   In the federal EEO enforcement system upon which HB-1136 is modeled, $700K in attorneys’ fees to the plaintiff’s lawyer, based on a $27K judgment, have become commonplace. More here, http://goo.gl/3EoA1m.   Meanwhile, the employer must not only bear this incredible expense, but also the weight of its own non-recoverable defense fees, which typically exceed $100K for litigation.

As a litigator for “victims,” Ms. Carroll surely understands employers’ cost-of-defense conundrum.  In fact, anticipated cost-of-defense drives employers’ settlement deliberations more than any other factor, particularly charge merit.  For example, in EEO Legal Solutions’ recent survey of the EEOC’s mediation process, over 600 HR professionals, employment lawyers and small business owners reported that EEOC mediators HAMMER cost-of-defense (82.21%), and then exaggerate the risk of EEOC enforcement activity such as reasonable cause determinations (72.84%), systemic investigations (61.30%), and even EEOC prosecutions (68.99%), which would naturally prompt employers to pay MORE. Astonishingly, the EEOC later characterized its historic collections from employers in FY2013 ($372.1m) as evidence of “enforcing the law more effectively.” Check out our study for a little insight into what EEOC mediators are saying to employers behind closed doors, http://goo.gl/sR792n.

Thus, in the federal system that HB-1136 seeks to replicate, employers immediately walk into a cost-of-defense conversation, even when they have done nothing wrong whatsoever.  Given the highly inferential, “squishy” nature of discrimination disputes, the question is really never whether the employer did anything provably wrong, but rather, how much the employer is willing to pay to avoid the suffocating cost of proving itself right.  This reality enables plaintiff’s counsel to demand settlements of $50K to $75K, again, even when the employer’s legal liability is far from established.  This reality also enables plaintiffs’ firms like Bachus & Schanker to churn quick cost-of-defense settlements from employers and EPL carriers, without having to prove much of anything .   Employers are STUCK, as is our progress toward full equal employment opportunity under enforcement models like CRA 1991 and HB-1136.  More about that later; stay tuned.

Also in her public comments, Ms. Carroll claimed that in the 42 other states with an HB-1136 counterpart, employers have not gone out of business or suffered an uptick in discrimination litigation (um, not exactly; stay tuned).  Nevertheless, her firm, Bachus & Schanker just expanded its employment law practice by adding a well-known plaintiff’s warhorse and his associate, and looks forward to benefitting from his “outstanding results”?  In fact, during HB-1136’s deliberations, several legislators publicly commented on the apparent conflict of interest inherent in Ms. Carroll’s sponsorship of and avid advocacy for HB-1136, considering that HB-1136 would directly help her (as a plaintiff’s attorney) personally to recover more money from employers in discrimination disputes. http://goo.gl/ap37Md.  Perhaps for that reason, Bachus & Schanker’s crowing about its recent expansion into employment law seems incredibly brazen.

Now that Ms. Carroll has ascended to a leadership position in Colorado’s General Assembly, will she continue to advance a one-sided, if not personal agenda, or can employers expect justice in her public policy positions?  Time will fully tell, but employers need to start paying careful attention now or get ready to pay the consequences, as with HB-1136.

Merrily Archer, Esq., M.S.W., December 30, 2013

Addendum: some readers may commit what social-psychologists call “fundamental attribution error” by attributing these perspectives solely to political party status, pecuniary interest, or some latent racism/sexism/ageism/etc.  Actually, HB-1136 stands to benefit attorneys on both sides of the employment bar, like any other increased risk or regulation.  More fundamentally, I’ve been a registered Democrat for nearly 30 years, but now count myself among the growing legion of politically purple people who value intelligent public policy over party obedience.  I earned my M.S.W. from Washington University in St. Louis on the Roger Baldwin Fellowship, while also earning my law degree.  I’ve looked at issues of workplace discrimination and inclusiveness as an EEOC Trial Attorney, Biglaw defense attorney for 12 years, social worker, and more recently, as a small business owner and researcher.  I believe religiously in the value and necessity of equal employment opportunity, but have concluded, based on these various perspectives and research, that private litigation schemes like CRA 1991 and HB-1136 have done little to further it.   Now, with that out of the way, let’s have a meaningful policy debate without all the victim/villain rhetoric.