Colorado Supreme Court Tackles Landmark Discrimination Case Impacting LGBT+ Public Servants

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Posted on February 24, 2020 by merrily

While the parties prepare for the biggest battle under the Colorado Anti-Discrimination Act (CADA) in 20 years, the employment rights of Colorado’s LGBT+ public servants hang in the balance

Denver, Colorado (February 24, 2020): Earlier this month, the Colorado Supreme Court announced that it will hear Houchin v. Denver Health and Hospital Authority (Denver Health), an LGBT+ discrimination case that will determine the rights and remedies of thousands of LGBT+ public servants working for municipal and county governments, “special districts” (e.g. water, fire, sanitation, culture, recreation), and school districts.

“Getting in the door of the Colorado Supreme Court is remarkable by itself because it hears so few cases, less than 10%,” states Houchin’s attorney, Merrily Archer, Esq., M.S.W. of EEO Legal Solutions. “Still, the battle has just begun.”

Archer expects attorneys for the parties to spend the next several months, until mid-June 2020, drafting legal briefs on the four specific issues that the Supreme Court identified. Advocacy and local bar associations such as the LGBT Bar Association and the Plaintiff Employment Lawyers Association (PELA), which filed briefs in support of Houchin’s cross-petition for certiorari, have also pledged on-going support.

“The stakes are high,” Archer acknowledges. “This case will decide whether Colorado’s LGBT public servants enjoy the same remedies when they suffer intentional workplace discrimination as any other Colorado employee. The knowledge that employees have rights and remedies in court plays a big role in deterring intentional discrimination,” Archer says.

Although Archer represents the employee in Houchin v. Denver Health, she has also represented Colorado employers for two decades. “Most employers voluntarily comply with EEO laws because they understand the strong business case for diversity and inclusion,” Archer says. “But when an organization like Denver Health denies that Colorado anti-discrimination laws apply, it’s a prescription for discrimination and abuse, especially against its most vulnerable workers.”

The Houchin litigation began in early September 2016, when Denver Health fired Houchin, its Employee Relations Manager, after he recommended “investigative leave” following credible reports of employee drug diversion. Denver Health claimed this recommendation violated this employee’s patient privacy rights under HIPAA. Houchin insists, however, that his recommendation strictly complied not only with applicable DEA and patient privacy regulations, but also Denver Health’s own internal drug-free workplace policies, among others.

Because Denver Health has offered up a justification that conflicts with its own policy, DEA regulations, and blackletter HIPAA guidance, Houchin contends that Denver Health’s explanation is a pretext to mask intentional discrimination because of his LGBT status. After all, just weeks earlier, Denver Health had appointed a new Interim Human Resources (HR) Officer who grimaced when Houchin mentioned his husband in an introductory meeting, treated Houchin with overt disrespect, and made anti-LGBT slurs to other members of the HR Department. When Houchin filed his lawsuit in June 2017 asserting his anti-discrimination rights under the Colorado Anti-discrimination Act (CADA), which ostensibly protects Colorado’s LGBT+ workers from discrimination, Denver Health claimed that CADA stopped covering its workforce in January 2015.

“I was stunned,” Houchin said. “My job was to ensure that all Denver Health managers complied with applicable federal and state equal employment opportunity laws. I had no idea that the General Counsel, Scott Hoye, Esq., has considered Denver Health exempt from the only law protecting LGBT+ workers, CADA, since 2015.”

“We’re especially concerned about this lack of notice issue,” Archer revealed. “Denver Health’s recruiting page states that it treats LGBT+ like any other ‘protected status’ under the law. But Denver Health takes the exact opposition position in court, where it counts.”

Archer hopes that after the parties and advocacy organizations submit their last brief in June 2020, the Colorado Supreme Court will set the case for oral argument and then publish its opinion shortly thereafter.

“This is the biggest anti-discrimination case before the Colorado Supreme Court in 20 years,” Archer added, “since it decided in 2000 that employees could sue public employers like Denver Health for intentional discrimination. We expect this case to make new law and hopefully, pave the way for Colorado’s LGBT+ public servants to obtain equal remedies in court when they suffer intentional discrimination.”

FAQ’s about Houchin v. Denver Health and Its Impact on Colorado’s LGBT Public Servants

Status

Truth matters. And Denver Health has not been forthright with its workforce, the public, and likely its own Board of Directors about the legal positions its lawyers have taken in court . . . where it COUNTS. We are grateful for the interest that this LGBT-discrimination litigation has generated, particularly because Denver Health still markets itself as an LGBT-friendly workplace. These divergent positions in court versus in public, however, are impossible to reconcile. And worse, we anticipate that Denver Health will continue to mislead its employees, Board members, and the public about its legal campaign to divest its workforce and thousands of other LGBT public servants of any remedy for intentional discrimination, harassment, and retaliation under the Colorado Anti-Discrimination Act (CADA).

Q: What is the status of the litigation?

This matter has been pending at the Colorado Supreme Court since June 11, 2019, when the Colorado LGBT Bar Association and the Colorado Plaintiff’s Employment Lawyers Association (PELA) submitted amicus (friend of the Court) briefs in support of our cross-petition for certiorari. After the Colorado Court of Appeals issued its decision on April 4, 2019 rejecting Denver Health’s claim of absolute immunity from LGBT discrimination claims under CADA, Denver Health sought certiorari (review) at the Colorado Supreme Court. Houchin cross-petitioned for certiorari because (among other reasons) the April 4, 2019 decision violated basic Constitutional equal protection principles by treating similarly situated public servants differently based solely on where they work. Under the April 4, 2019 decision, employees technically employed by the State could receive CADA’s full protections and remedies whereas those working for one of its numerous spun-off political subdivisions like municipal/county governments, Special Districts, and school districts would NOT.

Thus, the workplace rights of MOST of Colorado’s LGBT public servants have hung in the balance for over seven months now. Worse, public entity employers have started citing the Houchin case to assert that their LGBT employees enjoy no rights or remedies against intentional discrimination or harassment either.

Q: Whom does this litigation affect?

The Houchin v. Denver Health case affects every LGBT public servant working at Denver Health and at every county or municipal government, special district (for fire protection, sanitation, water treatment, recreation, cultural facilities, etc.) and school district. Accordingly, this litigation directly impacts every LGBT+ nurse, fire fighter, teacher, social worker, law enforcement officer, city or county employee, rec center staff, code enforcement professional, etc.–namely, the people who make our communities WORK.

Q: What is Denver Health’s primary legal argument?

Denver Health argues that because of changes to CADA in 2013 (HB13-1136) that took effect on January 1, 2015, CADA became more like a personal injury claim (tort) for which ALL public employers enjoy immunity from prosecution under the Colorado Governmental Immunity Act (CGIA).Indeed, as a matter of public policy, the legislature long ago immunized taxpayer-funded public entities from tort claims, which are the kinds of legal claims typically resulting from someone’s negligence or buffoonery. Think about it: if we citizens could sue the State of Colorado every time one of its employees had a car accident or made a mistake, our Colorado treasury would be bankrupted. And so, our legislature struck a balance: public entities are typically immune from tort claims unless the legislature expressly waives that CGIA immunity. Right now, the parties are battling about two fundamental issues: (1) are discrimination claims really like “torts” now just because the legislature authorized compensatory damages (e.g. pain/suffering damages) against public entities in 2013? and (2) did the legislature in 2013 intend waive the CGIA immunity for public entities like municipal/county governments, Special Districts and school districts?

Indeed, in 2013, the legislature did waive the CGIA immunity of ALL public entities for compensatory damages, but left in place their immunity from punitive damages that are available against private employers. And in no case did the legislature intend to transform CADA into a tort for which public entities like Denver Health enjoy ABSOLUTE immunity from LGBT discrimination claims. On the contrary, in the preamble to that important legislation–i.e. the Job Protection and Civil Rights Act of 2013, HB13-1136–the legislature expressly stated its intent to provide equal remedies to LGBT employees (e.g. compensatory damages, attorneys’ fees) that are available to employees protected under federal law, Title VII, based on race, ethnicity, gender, age, disability, religion, etc. Besides, employment discrimination is not a PERSONAL injury at all, even though its victims suffer dire consequences and extensive damage. Rather, employment discrimination is an act of economic violence against an entire group of people that prevents them competing on equal footing in a competitive economy.

Thus, according to Denver Health, when HB13-1136 went into effect on January 1, 2015, CADA stopped protecting its LGBT workforce against discrimination, harassment, and retaliation. And Denver Health is leading the charge to immunize all public entities like itself from LGBT discrimination claims on a statewide basis.

Q: Did Denver Health notify its workforce of this alleged fundamental change in their workplace rights, protections, and remedies?

No. At a public hearing on October 23, 2017, Denver Health General Counsel Scott Hoye acknowledged that employees were provided NO notice of this alleged fundamental change in their workplace rights as of January 1, 2015, even though such notice would be “relevant” to “some” employees–i.e. its LGBT ones particularly.

Worse, Denver Health has continued to promote itself as an LGBT-friendly workplace, effectively luring LGBT talent to a workplace where, according to General Counsel Hoye, there are no protections against intentional discrimination, harassment, or retaliation. Its EEO policy published prominently on its website recruiting page STILL promises to treat LGBT employees like any other group protected under CADA based upon race, gender, ethnicity, religion, etc. When an LGBT employee, Brent Houchin, attempted to exercise his anti-discrimination rights under CADA in 2017, however, Denver Health argued absolute immunity from LGBT discrimination claims under CADA instead of bothering to defend on the merits. For that reason, we have postured Mr. Houchin’s breach of contract and promissory estoppel claims as class-based, anticipating that other LGBT employees at Denver Health have also detrimentally relied on Denver Health’s broken promise of legal protection against intentional discrimination. After all, the LGBT community is talent-rich and when offered truthful information, would likely choose employment where such basic anti-discrimination protections exist.

Q: I heard Brent Houchin violated patient privacy rights under HIPAA and deserved to be fired. What makes him think Denver Health discriminated against him because he’s gay?

No doubt, in MOST cases, discrimination is difficult to prove but easy to allege. And so experienced EEO lawyers and investigators look for inconsistencies, implausibilities, illegalities, and departures from published policies in the employer’s stated reason termination. We look for witnesses who can offer information, corroborate other witnesses, and validate hunches. And, we look for and examine as many written documents and policies as we can get our grubby little hands on because “truth requires proof.”

It is true Denver Health alleges, in the Termination Notice, that it summarily fired Houchin for “two HIPPA [sic] violations in a six month period.” Both alleged violations involved reports of employee drug diversion at Denver Health–i.e. stealing drugs from patients and the public for personal use.

But Denver Health’s explanation crumbles upon examination (1) Denver Health did not even spell correctly the name of the law that Houchin allegedly violated; (2) Denver Health subsequently admitted that Houchin never had ANY previous violations or infractions prior to the ONE incident for which he was allegedly terminated, already repudiating its Termination Notice–(3) in the ONE incident for which he was allegedly terminated, Houchin acted in full compliance with Denver Health’s own HIPAA (patient privacy) and Drug and Alcohol-Free Workplace Policy, which requires the imposition of “investigative leave” for employees credibly suspected of drug diversion; (4) DEA regulations expressly require Denver Health thoroughly to investigate credible reports of employee drug diversion; (5) Denver Health fired Houchin without consulting his longtime supervisor and carried out the termination while she was on vacation, a decision she adamantly opposed; (6) prior to his termination, Houchin had endured weeks of dismissive and rude treatment from the ostensible decision-maker, co-Defendant Tim Hansen, whom Employer’s Council sent over just seven weeks prior to Houchin’s termination to fill the Interim Chief Human Resources Officer vacancy on a temp-to-hire basis; (7) co-Defendant Tim Hansen made rude, homophobic, and unnecessarily critical comments about Houchin to other HR staff, stating that he was “taken aback” by Houchin’s “openness” about his sexual orientation; (8) co-Defendant Tim Hansen now denies that he fired Houchin, and blames General Counsel Scott Hoye for ordering Houchin’s termination and directing him to prepare the botched Termination Notice; (9) Denver Health did not comply with its own HIPAA and performance management procedures in terminating Houchin, etc.

Any ONE of these facts would suffice to establish the pretextual nature of Denver Health’s stated reason for firing Houchin. These facts not only call into question Denver Health’s reason for terminating Houchin, but also raise troubling public health concerns about a potential culture of employee drug diversion that Houchin was trying to investigate. Put simply, Denver Health abruptly fired the guy, Houchin, for allegedly violating an employee’s “patient privacy” while he was discharging Denver Health’s duty under DEA regulations and its own policy to investigate credible evidence of that employee’s on-the-job drug diversion. Scary. But likely because of these established facts, Denver Health has NEVER defended this matter on the merits. Quite the contrary, Denver Health has instead insisted that it enjoys full immunity from prosecution for intentional LGBT discrimination. Perceptions of absolute immunity breed lawlessness and abuse.

Q: When will we get a decision from the Colorado Supreme Court?

We simply do not know. In this stage of the process, we are waiting to hear IF the Colorado Supreme Court will entertain the case. And it’s a long-shot: the Colorado Supreme Court hears about 8% of the petitions for certiorari presented to it. But the fact that it has taken so long could be a good sign, at least according to the poor clerk whom I hassle each month. And since our case was decided on April 4, 2019, the Colorado Court of Appeals has issued a unanimous decision in Williams v. Elder that accepts our arguments in total. Thus, there’s hope.

Q: What can I do if I believe that my employer is discriminating against me because of my LGBT status?

Become a little detective. Because “truth requires proof”, the more evidence you have in the form of policies, emails, recordings, videos, contemporaneous notes, witness statements, etc. the better off you will be. And in this day and age, jurors have come to expect SOMETHING in the form of audio, video, or documentary proof given that virtually all of use carry smartphones. For example, in one recent case, the employer claimed that it fired an otherwise mild-mannered employee after he allegedly became irate, abusive, crazed and “scary” in a meeting with HR and his general manager; his recording of the entire meeting on his smartphone put the issue to rest and settled his case quickly.

Give your employer a chance to address your concerns. Once made aware of your worries, many employers will do the right thing: take your concerns seriously, conduct some type of investigation, and figure out how to fix the underlying problem. Then again, many employers will also do the wrong thing: dismiss your concerns, conduct a sham investigation, and concoct some pretext to fire you in retaliation. Fortunately and unfortunately, legal claims do not accrue until an employee suffers damages in the form of a termination. And so, although it feels risky for an employee to raise concerns about workplace discrimination and harassment, it is the EMPLOYER, not the employee, who legally carries more at risk in that situation. Besides, if you get fired for complaining about harassment, disparate treatment, and abuse at work, you will be better off elsewhere while you vindicate your legal rights in court: YOU deserve to work where you’re celebrated.

Please stay tuned. We will update you with new developments.

Merrily Archer, Esq., M.S.W.
January 31, 2020
EEO Legal Solutions LLC
Brent’s attorney

Denver Health: Colorado Anti-Discrimination Laws Don’t Protect Our LGBT Employees

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Posted on June 23, 2019 by merrily

Yesterday, OutFront Colorado published another article touting how LGBT-friendly Denver Health is, “Denver Health to Expand Surgeries Offered for Sex Reassignment.” Earlier this month, OutFront Colorado called Denver Health an “oasis in the desert” of LGBT health care. We are also grateful for the services that Denver Health provides to the LGBT community.

But there’s one BIG problem:

While Denver Health (and the Colorado LGBT community) tout in the press the terrific services that Denver Health provides to the LGBT community, Denver Health continues to argue in court–i.e. where it matters most–that the only law protecting its LGBT employees stopped applying to its workforce on January 1, 2015. Despite acknowledging that this ostensible fundamental change in workplace protections would be “relevant” to “some” Denver Health employees, Denver Health General Counsel Scott Hoye provided no notice to the workforce. On the contrary, on its website and published EEO policies, Denver Health continues to claim that it will treat LGBT employees like any other minority class protected under federal anti-discrimination laws–e.g. race, ethnicity, religion, gender, color, age, disability. In practice, however, when a high-ranking LGBT employee in Denver Health’s HR department brought meritorious LGBT discrimination claims in 2017, however, Denver Health simply claimed that Colorado’s Anti-Discrimination Act (CADA) no longer covered its workforce.

Denver Health continues to argue in court–i.e. where it matters most–that the only law protecting its LGBT employees stopped applying to its workforce on January 1, 2015.

And so, for anyone interested in FACTS, I have briefly summarized Denver Health’s positions, the procedural history and likely litigation trajectory. I have also embedded publicly-available documents like pertinent court orders and motions filed by Denver Health’s attorneys.

Brent Houchin, former Employee Relations Manager, filed his Complaint in June 2017, alleging unlawful discrimination and retaliation under CADA AND unlawful whistle-blowing reprisals. You may read the factual allegations in his Complaint HERE.
Instead of answering the factual allegations in the Complaint, Denver Health’s attorneys moved to dismiss it entirely, arguing: (1) Denver Health enjoys absolute immunity from discrimination claims under CADA; and (2) its employees, unlike every other employee in Colorado, have no protection against retaliation for whistle-blowing–e.g. getting fired for expressing concerns about matters in the public interest and/or fulfilling a governmental duty, like reporting waste, fraud, employee drug diversion at a publicly funded hospital. You may read Denver Health’s briefing on these issues HERE.
On November 7, 2017, Denver District Judge David Goldberg rejected Denver Health’s self-serving arguments that (1) its workforce enjoyed no CADA protections; and worse (2) its workforce has no whistle-blowing remedies for raising internal/external concerns about matters in the public interest–i.e. an unabated employee drug diversion problem that squanders public resources and creates public health risks through drug-addled service delivery. In fact, Judge Goldberg characterized some of Denver Health’s arguments as “absurd” and as leading to unintended consequences. Read HERE.
Denver Health appealed. Recognizing that this matter affects the public interest, our panel of Court of Appeals judges asked the Colorado Supreme Court to clarify the impact of 2015 amendments to CADA on its previous analysis in Conners v. City of Colorado Springs. HERE. Unfortunately, the Colorado Supreme Court declined to act on this critical problem (i.e. legislation that conflicts with precedent) and the parties proceeded to oral argument on December 11, 2018. Then, Court of Appeals asked the parties to brief whether Denver Health’s interpretation of CADA violated equal protection guarantees in the U.S. and Colorado Constitutions . . . we argued strenuously that Denver Health’s interpretation would create two classes of Colorado public servants treated unequally under the law, which is unconstitutional. You can read Houchin’s and Denver Health’s briefs HERE.
Then, on April 4, 2019, the Colorado Court of Appeals partially affirmed and partially reversed the district court’s decision, linked HERE. In a 2-1 split, the majority held that public entities such as municipalities, county governments, and “special districts” like Denver Health (e.g. for school, fire, police, water, sanitation, parks/recreation, cultural events and facilities, health care . . .) enjoy governmental immunity from compensatory damages in litigation CADA, but did not buy into Denver Health’s argument of complete immunity from all CADA claims. As a result, LGBT public servants working for one of these numerous spun-off special districts have only limited rights and remedies under CADA, unlike employees working for the State of Colorado or a private employer. Again, we maintain that this uneven scheme violates the equal protection rights of all public servants (but especially LGBT ones) working for one of these numerous political subdivisions like Denver Health.
Denver Health appealed to the Colorado Supreme Court. Its grouse? The Court of Appeals rejected its claim of complete immunity from employee lawsuits under CADA and thereby exposed Denver Health to litigation and further discovery of the already-damning facts of this case. You can read Denver Health’s brief HERE. On June 28, 2019, we cross-petitioned for certiorari to the Colorado Supreme Court: while we agree that the Colorado Supreme Court should review this matter, we argued that that Court of Appeal’s order (1) betrays the non-discrimination goals inherent in its prior decision in Conners; (2) disregards our legislature’s intent in making compensatory damages available in the 2015 CADA amendments; and (3) violated constitutional equal protection guarantees. You can read our brief HERE.
Finally, on June 4, 2019, the Colorado Plaintiff’s Employment Lawyers Association (PELA) and the Colorado LGBT Bar Association filed amicus (i.e. friend of the court) briefs in support of Houchin‘s cross-petition, recognizing that this matter affects the employment rights of every Colorado LGBT public servant working for a municipality, county government, school district or special district. Again, the Colorado LGBT Bar Association’s position supports Houchin, not Denver Health.

What happens next?

We wait . . . if the Colorado Supreme Court agrees to review this case, then this matter will determine the anti-discrimination rights of every LGBT public servant in Colorado, including Denver Health’s LGBT workforce. As Employee Relations Manager, Houchin viewed his role as essential to protecting the anti-discrimination rights of Denver Health employees. Houchin is STILL standing up for the rights of Denver Health employees, even those who ridicule him on social media out of misguided loyalty to Denver Health.

But what if the Colorado Supreme Court, again, denies review and lets this published decision stand?

We head back to Denver District Judge David Goldberg’s courtroom to begin litigation, which Denver Health’s motions suspended in November 2017. Notably, pending before Judge Goldberg is a motion to open Houchin’s “promissory estoppel” (i.e. broken promise) claim up to other Denver Health employees who are/were affected by its published-and-broken promises of equal treatment. Indeed, under Colorado employment and contract law, Denver Health cannot have it both ways: publicly promising to treat LGBT employees like any other protected class (e.g. race, ethnicity, gender, age, disability), while claiming in court that LGBT employees enjoy no anti-discrimination protections whatsoever.

Denver Health cannot have it both ways: publicly promising to treat LGBT employees like any other protected class (e.g. race, ethnicity, gender, age, disability), while claiming in court that LGBT employees enjoy no anti-discrimination protections whatsoever.

Many talented members of the LGBT community choose to work for Denver Health because of its LGBT-friendly reputation. After all, Houchin himself loved his job at Denver Health, in part, because of its work in our LGBT community and notably, he represented Denver Health’s EMPLOYEES on the LGBT committee that he helped form years ago. What happened to Houchin at Denver Health is every LGBT employee’s worst nightmare: after years of “exceptional” service, a subcontractor (and co-defendant here) newly appointed into an interim executive role fired Houchin within weeks of a get-acquainted meeting in which Houchin revealed his longtime marriage to his spouse, Frank. Before carrying out this misdeed, however, the subcontractor complained to several witnesses about Houchin’s “openness”, treated Houchin with overt disrespect, and violated every HR policy calling for progressive discipline before termination.

What happened to Houchin at Denver Health is every LGBT employee’s worst nightmare.

Perceptions of immunity breed lawlessness and abuse. In its treatment of Houchin, Denver Health declined to follow CADA and its own internal policies because it maintains CADA does not apply and by extension, Houchin is powerless to challenge the intentional LGBT discrimination and retaliation he suffered.

Perceptions of absolute immunity breed lawlessness and abuse.

Without its dedicated employees, Denver Health cannot perform much-needed services in the LGBT community. That proposition seems obvious enough. Unfortunately, some local LGBT advocates are comfortable distinguishing between Denver Health’s treatment of its employees and its patients: so long as Denver Health treats its LGBT patients well, it apparently does not matter that Denver Health now insists that its LGBT employees have no rights or remedies against unlawful discrimination, harassment, and retaliation because of their LGBT status. That trade-off–one apparently condoned by LGBT advocacy organizations bestowing “Ally Awards” on Denver Health–reflects the kind of “mission creep” (i.e. doing what’s easy instead of what’s right) that afflicts well-meaning helping organizations. Instead of becoming educated about Denver Health’s legal arguments in the public record that harm LGBT workers, several have castigated Houchin for daring to suggest that Denver Health’s perceptions of CADA immunity make it the OPPOSITE of LGBT-friendly. Indeed, according to Denver Health, LGBT employees could work for any other type of employer (e.g. private, the State of Colorado) EXCEPT Denver Health and get the benefit of CADA’s anti-discrimination protections. By perpetuating the myth of LGBT-friendliness, however, these advocacy organizations effectively dupe their constituents into working for an organization where they enjoy no legal rights against LGBT discrimination, harassment, and retaliation. That’s crazy.

By perpetuating the myth of LGBT-friendliness, however, these advocacy organizations have duped their constituents into working for an organization where they enjoy no legal rights against LGBT discrimination, harassment, and retaliation.

We trust that eventually, the facts will come into sharper focus for the LGBT community and that leaders will understand the important work Houchin has undertaken to advance LGBT rights at Denver Health and every other public entity in Colorado. Until then, we urge LGBT advocates to read the linked documents and make INFORMED judgments about this litigation and Denver Health.

With pride and faith, Merrily

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

PRIDE UPDATE: Denver Health LGBT Discrimination Litigation

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Posted on January 16, 2019 by merrily

The Denver Health LGBT litigation gathers momentum, with several key developments over the past eight weeks

The Status: Waiting to See if the Colorado Supreme Court Will Review

On April 4, 2019 (coincidentally, the 51st anniversary of Dr. Martin Luther King’s assassination), the Colorado Court of Appeals dealt another blow to the advancement of civil rights with the publication of its opinion in Houchin v. Denver Health, linked HERE. In a 2-1 split decision, the majority held that public entities like municipalities, county governments, and “special districts” (e.g. for school, fire, police, water, sanitation, parks/recreation, cultural events and facilities, health care . . .) enjoy complete governmental immunity from compensatory damages in litigation under the Colorado Anti-Discrimination Act (CADA). Unfortunately, LGBT workers only enjoy protection from discrimination under CADA. As a result, LGBT public servants working for one of these numerous spun-off special districts have only very limited rights and remedies when, as occurred in Houchin v. Denver Health, their employers intentionally and blatantly discriminate against them. For an interesting discussion about how state governments have systematically spun-off traditional state functions into “special districts,” check out John Oliver’s brilliant piece HERE.

In any case, under the Court of Appeal’s unequal scheme, LGBT employees working for the State of Colorado or a private Colorado employer can recover CADA’s full panoply of remedies, which our legislature enhanced in 2013 to provide greater relief to LGBT employees suffering workplace discrimination. That kind of irrational differentiation, we argued, violates the Equal Protection clauses of the United States and Colorado Constitutions, provisions designed to guarantee equal treatment under the law of similarly situated people.

Much to our surprise, on May 13, 2019, Denver Health appealed the Court of Appeals order to the Colorado Supreme Court. Read Denver Health’s brief HERE. Denver Health’s grouse? The Court of Appeals did not buy its argument that governmental immunity completely bars employees from suing under CADA . . . Denver Health argued that effective January 1, 2015, its workforce no longer enjoys CADA’s protections. Unfortunately, only CADA protects LGBT employees, given that Title VII does not YET cover LGBT status. Worse, Denver Health provided no notice to its employees of this fundamental change in their workplace rights, even though General Counsel Scott Hoye agreed that the absence of anti-discrimination protections would be “relevant” to “some” of them.

Nevertheless, the Court of Appeals order would permit Houchin to litigate his LGBT discrimination allegations in Denver District Court and obtain the “equitable” relief of backpay, frontpay, and attorneys’ fees. And that’s the LAST thing Denver Health wants. After all, General Counsel Scott Hoye, who controls the flow of information to Denver Health’s Board of Directors and the payment of legal fees, participated in the discriminatory decision to fire Houchin abruptly; in fact, his co-defendant has even fingered him as the “actual” discriminatory decision-maker. Thus, Denver Health’s legal claim of absolute legal immunity is ultimately designed to cover up General Counsel Scott Hoye’s wrongdoing.

On May 27, 2019, we cross-petitioned for Supreme Court review on three grounds. The Court of Appeals order: (1) overlooked the fundamental anti-discrimination mandate in Supreme Court precedent, namely the 2000 Conners decision that exposed all public entities to CADA discrimination claims; (2) betrayed the legislature’s intent when amending CADA in 2013 to stamp out discrimination in public and private employment throughout Colorado; and (3) violates the equal protection clauses of both the U.S. and Colorado Constitutions. Then, on June 4, 2019, the Plaintiff Employment Lawyers Association (PELA) and the Colorado LGBT Bar Association filed a brief in support of our cross petition as amicus curiae. We are so grateful for PELA’s and the LGBT bar’s on-going advocacy on behalf of Colorado’s employees.

The Stakes: The Rights of LGBT Public Servants Hang in the Balance

Two outcomes are possible: either the Colorado Supreme Court decides to review the Court of Appeals decision or it decides to let it stand. Indeed, the Colorado Supreme Court reviews very few cases–I’ve read varying statistics ranging from an 8% to 11% re how often the Colorado Supreme Court grants review. And so, it’s a long-shot.

If the Colorado Supreme Court grants review, then it will issue a DECISIVE opinion that will frame the rights of Colorado’s LGBT workforce for years to come, absent legislative override. If the Colorado Supreme Court does NOT exercise its jurisdiction to review this case, then the Court of Appeals decision effectively divests every LGBT public servant working for a municipality, county government, or “special district” of the remedies that the legislature intended when modifying CADA in 2013. LGBT employees will continue to experience disparate treatment based solely on where they work, an outcome even the Court of Appeals called “anomalous.” Worse, these LGBT public servants working for municipalities, county governments, and special districts represent the BEST among us–our firefighters, law enforcement officers, paramedics, public health nurses, teachers, sanitation workers, coaches at recreational districts . . . namely, the good people who SERVE our community.

While everyone celebrates Pride, this monumental legal dispute affecting the rights of thousands of Colorado LGBT public servants simmers under the surface. Indeed, Denver Health has long promoted itself in the LGBT community as particularly LGBT-friendly and will likely assert a strong presence at this year’s Pride festivities. In court, however, Denver Health claims that its LGBT employees enjoy no protection from workplace discrimination, harassment, and retaliation. In effect, therefore, Denver Health has systematically mislead the LGBT community to lure people onto its payroll where, General Counsel Scott Hoye asserts, LGBT workers have no protection against intentional, overt discrimination. In fact, Denver Health is leading the charge to ensure that public entities like municipalities, county governments, and special districts can continue to discriminate against LGBT workers without fear of employee legal claims.

If you think that’s as wrong as we do, then share this post and spread awareness. Because of the support of PELA, the LGBT bar association, and the ACLU, we’re optimistic that the Colorado Supreme Court will review this matter. We’ll keep you posted.

With pride and faith, Merrily

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

June 7, 2019

Denver Health LGBT Discrimination Case Referred to Colorado Supreme Court

Posted on October 30, 2018 by merrily

“This matter is one of substantial public importance,” writes the Colorado Court of Appeals.

Last week, the Colorado Court of Appeals referred Houchin v. Denver Health and Hospital Authority and Tim Hansen to the Colorado Supreme Court. A referral to the Colorado Supreme Court is rare, but can happen if (1) the ultimate decision involves a prior Supreme Court ruling (only the Supreme Court can overrule itself) and (2) the case involves an issue of “substantial public importance.” We are deeply gratified and relieved that the Court of Appeals appreciates the broader impact of this case. You can read the Court of Appeals referral HERE.

Here, Denver Health argues that because of 2015 changes to the Colorado Anti-discrimination Act (CADA) designed to provide equal remedies to LGBT employees, CADA no longer applies to its workforce. These 2015 amendments, Denver Health argues, transformed CADA into a tort (i.e. personal injury) for which it enjoys absolute governmental immunity under the Colorado Governmental Immunity Act (CGIA). Never mind, Denver Health says, that in adopting these changes, the Colorado legislature expressly waived CGIA immunity for governmental entities, thereby subjecting public entities to discrimination and harassment lawsuits under the CADA. According to Denver Health’s General Counsel, Scott Hoye, however, this express waiver does not apply to Denver Health either and since January 1, 2015, he has considered Denver Health absolutely immune from CADA lawsuits. Because only CADA protects LGBT employees from workplace discrimination and harassment (whereas race, gender, national origin, religion, age, disability are protected under federal law), Denver Health’s LGBT employees have effectively worked without legal protections since January 1, 2015.

If Denver Health is right (and we firmly believe that Denver Health is WRONG), then the LGBT employees working at every statutorily created Colorado public entity enjoy NO protection or remedy under the CADA for unlawful workplace discrimination, harassment, and retaliation based on who they are and whom they love. What ARE other statutorily created public entities, you ask?

County governments;
Local governments like municipalities;
School districts;
Any “special district” for
- Water
- Sanitation
- Parks and Recreation
- Culture and Science like the SCFD;
- Health Care
- Fire Protection

In effect, according to Denver Health, the General Assembly only intended to protect a narrow swath of LGBT employees technically employed by the State of Colorado, as opposed to all publicly-employed Coloradans working for its various subdivisions. This interpretation, we submit, would undermine one of the central purposes of the 2015 amendments: to provide LGBT employees throughout Colorado the same rights and remedies against workplace discrimination, harassment, and retaliation that other protected categories of employees (e.g. race, gender, national origin, religion, age, disability) enjoy under federal law.

Perceptions of absolute immunity foment unlawful conduct. After all, if the General Counsel believes that Denver Health is absolutely immune from CADA lawsuits, what steps would Denver Health’s top leadership take to ensure compliance with anti-discrimination laws in their decision-making processes?

On September 7, 2016, Denver Health summarily fired its Employee Relations Manager, Brent Houchin, without warning, ending years of distinguished service based on his annual performance evaluations. What happened to Brent is every LGBT employee’s worst [workplace] nightmare: you love your job, your direct supervisor, your mission, your duties, and your team. And then, a new boss who makes his dislike of LGBT people known enters the picture, and less than eight weeks later, you’re summarily and unceremoniously canned (without your direct supervisor’s knowledge and consent, while she was on vacation) for trumped up “violations” that are not violations at all. No doubt, in firing him, Denver Health circumvented its own published workplace policies regarding progressive discipline, patient privacy (HIPAA) violations, employee rehabilitation, and worse, the prevention, investigation, and remediation of employee drug diversion.

Indeed, Denver Health ostensibly fired Brent for recommending “investigative leave” in two suspected (and later substantiated) cases of employee drug diversion, a recommendation that strictly followed Denver Health’s own legally mandated Drug and Alcohol-Free Workplace Policy. This recommendation, says Denver Health, violated the employee’s patient privacy rights, a justification that conflicts directly with Drug Enforcement Agency (DEA) regulations, federal grant requirements, and its own policies. Likely for these reasons, Denver Health has never defended against our discrimination, retaliation, and whistle-blowing allegations on the merits; rather, Denver Health has instead claimed that the laws we seek to enforce do not apply to its operations given its status as an “exotic legal animal.” Notably, Denver Health also argues that laws protecting whistle-blowers do not apply to its operations either.

We should know soon whether the Colorado Supreme Court will agree to decide this important issue, which affects thousands of LGBT employees throughout Colorado. We will keep you posted, and we hope that you will share this information within the LGBT advocacy community. Denver Health has long enjoyed a reputation for being LGBT-friendly based on the services that several of its PROVIDERS have offered to LGBT patients. This work is important and no doubt, we’re grateful for Denver Health’s work with LGBT patients.

But like every human-powered organization, Denver Health IS its employees. Denver Health could not operate without the dedicated and talented humans who come to work every day. Many LGBT employees choose to work at Denver Health because of its LGBT-friendly reputation. Unfortunately, unless and until the Colorado Supreme Court and/or the Colorado Court of Appeal’s dispenses with Denver Health’s claim of an exalted legal status immune from CADA lawsuits, LGBT employees working at Denver Health today enjoy no legal or practical protection against workplace discrimination, harassment, and retaliation because of who they are and whom they love.

We (including and especially many decent people at Denver Health) deserve better. We can do better and so, we must. Join us.

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

How Our Anti-Harassment Enforcement Machine Churns Out “High Value Harassers”

Posted on December 7, 2017 by merrily

Time Magazine just named the “Silence Breakers,” harbingers of the #MeToo movement, as its 2017 Persons of the Year. According to Time, the #MeToo movement marks a watershed moment in American labor history that will end workplace sexual harassment once and for all. Because of the #MeToo movement, TV pundits have speculated, women now feel empowered to speak up about harassment and as a consequence, companies will immediately clamp down on “High Value Harassers” like Harvey Weinstein, Matt Lauer, Charlie Rose, Roy Moore, Al Franken, Glen Thrush, Louis CK, Jeffrey Tambor, Kevin Spacey, Bill O’Reilly, Donald Trump . . . and . . .

Um, not exactly. My cynicism comes not just from a jaundiced view of the Nature of Man, but also from experience: three years as an EEOC prosecutor (1997-2000) and 17 years representing EMPLOYERS (e.g. big ones, small ones and in between). As a civil rights geek, I’ve also researched and written extensively about whether our model for enforcing anti-discrimination and anti-harassment laws–namely, the Civil Rights Act of 1991–has WORKED to deliver on Title VII’s promise of equal employment opportunity (EEO) for all, HERE.

And the truth is, our model for preventing and addressing workplace sexual harassment has become a silly Sylvester McMonkey McBean Machine in which nothing much changes except money changing hands . . . between employers, insurance carriers, and lawyers.

In the classic Dr. Seuss tale “Sneetches,” Sylvester McMonkey McBean built a special machine to resolve tensions between Sneetches who had bellies with stars, and Sneetches who had none upon thars. McBean’s machine could apply AND remove stars . . . for a handsome fee. Eventually, after every last cent of their money was spent, the Sneetches figured out that they’d been tricked: the machine really did nothing at all.

Our anti-harassment enforcement machine is just another contraption in which nothing much changes except money changing hands.

In our Sylvester McMonkey McBean Sexual Harassment contraption, allegations of sexual harassment go into the machine, which spits out M-O-N-E-Y, confidentiality and non-disclosure agreements (NDA’s), and “divorces” that end the employment relationship forever. And each time a victim of workplace harassment gets run through the machine, the harasser grows bigger, stronger, and bolder in his serial harassment of women. He knows that he is a “High Value Harasser,” the subject of a carefully contemplated cost-benefit calculation that prompts companies to set aside financial reserves and buy more expensive Employment Practices Liability (EPL) insurance to mitigate the KNOWN RISK. For organizations protecting High Value Harassers, the decision is purely economic: the worth of the High Value Harasser exceeds the cost of paying out sexual harassment claims.

“Yep That’s Harassment Indeed!” tells the story of the “High Value Harasser” in musical form–stay tuned for the video! In this song, the listener initially wonders whether the creep realizes that he’s a creepy harasser; the last verse, however, explains his thinking:

Now, I make them good money
So I’ll get my honey
Whenever and wherever I please

Just write me up
Like legal makeup
The lawyers we need to appease

We’ll write a check
Who gives a heck?
We set aside cash for these fees

When money matters
The owners would rather
Pay off silly claims like these

Because of this reality, High Value Harassers have preyed upon women in the workplace for generations. After all, sexual harassment has been illegal since 1986, when the U.S. Supreme Court decided Meritor Savings Bank v. Vinson, the first case to find that sexual harassment violated Title VII. Since 1986, an entire industry of anti-harassment training emerged, making annual anti-harassment training the industry standard for claim prevention. But training has not prevented High Value Harassers from pursuing women at work, nor has it reduced EEOC claims alleging sexual harassment. Given the sheer volume of #MeToo reports over the past 30 years, reasonable minds would likely agree that what we’re doing to prevent and address workplace harassment is NOT WORKING. Millions over dollars in settlement of sexual harassment claims have changed hands, but the harassment has not stopped . . . or even changed.

I know why, after looking at this issue from BOTH sides (e.g. as an EEOC prosecutor and longtime employment defense lawyer) for over 20 years. And here’s how I would tweak our Sylvester McMonkey McBean Sexual Harassment Machine:

I. Exclude “Sexual Harassment” from Employment Practices Liability (EPL) Coverage

When Congress passed the Civil Rights Act of 1991 in November 1991 (i.e. after the contentious Clarence Thomas-Anita Hill hearings), the insurance industry recognized an opportunity; after all, where there is RISK, they purport to offer a REMEDY, right? Thus, with CRA 1991’s introduction of jury trials, punitive and compensatory damages, and attorneys’ fees as enforcement tools, more and more insurance carriers started offering Employment Practices Liability coverage to mitigate the costs (attorneys’ fees) and risks (judgments, settlements) of discrimination and harassment claims. Twenty-five years after CRA 1991, most employers (over 80%) now have some kind of EPL insurance to cover attorneys’ fees and settlements related to sexual harassment claims. By design, EPL insurance took the sting out of the stick of CRA 1991’s enhanced remedies.

Sexual harassment, however, is an INTENTIONAL and DELIBERATE act, unlike the other kinds of hazards and “accidents” for which employers purchase liability insurance (e.g. premises liability, workers’ compensation, malpractice). Indeed, the whole theory behind business liability insurance is that despite our best efforts, accidents happen even when we are not behaving negligently: people slip, things break, employees get hurt. But sexual harassment is quite different: sexual harassment is a deliberate effort to demean women and define them sexually as a “piece of meat” instead of as a peer or typically, as an intellectual superior. Men’s choice to view women in sexual terms is designed to humiliate, to reinforce that no matter how smart, talented, hard-working and worthy they are, the existing male-dominated power structure will NEVER take them seriously. I felt that way each time the Regional Attorney of the EEOC’s Denver Office told me that, despite my JD/MSW degrees as a civil rights fellow at Washington University in St. Louis, he’d hired me because of my “pretty blue eyes” and/or because “I was easy on the eyes.”

Insurance is simply not available for other INTENTIONAL and DELIBERATE acts or torts like assault, battery, murder, false imprisonment, etc. Can you imagine trying to buy insurance in case you decide to beat up or murder your neighbor? No doubt, if such insurance existed, insurance carriers would sell it and people (especially in the South) would buy it. Such policies do not exist, however, because they offend our public policy favoring the imposition of penalties for intentional or reckless violent behavior. Congress could, through legislation, effectively nullify all EPL coverage for employee sexual harassment claims as against public policy, which would FORCE employers to take active measures to prevent, respond to, and immediately correct workplace harassment. Sexual harassment is PREVENTABLE, but only in organizations that take it seriously through annual training, a strong reporting infrastructure, prompt quality investigations, and punishment for substantiated harassment.

II. Dethrone “High Value Harassers”

Organizations construct entire systems to protect their High Value Harassers. In large self-insured organizations, the C-Suite has already set aside substantial reserves to pay out sexual harassment claims anticipated from a KNOWN RISK like Bill O’Reilly, Bill Cosby, Harvey Weinstein . . . in the cases of celebrity serial harassers like Charlie Rose, Kevin Spacey, Louis CK and others, their personal harassment risk factors into their contract negotiations. Thus, when the sexual harassment and assault complaints inevitably come, they get processed through the Sylvester McMonkey McBean Sexual Harassment Machine with little, if any, impact on the bottom line: reserved funds get paid out, confidentiality agreements get signed, and the serial harasser gets back to the business of harassing . . . with impunity.

Employers, especially public and publicly-traded ones, can no longer afford High Value Harassers. As recent events illustrate, High Value Harassers cost organizations more than money: they squander immeasurable amounts in public goodwill, credibility, productivity and talent that leaves for greener, non-groping pastures.

III. Recognize the Psychodynamics of Harassment

Sexual harassment has become the business of lawyers. Over the past 25 years, however, lawyers have not proven terribly effective at leveling the playing field and/or at eradicating sexual harassment from our workplaces. Legal tools do not always fix social problems, as we have seen with drug addiction, domestic violence, inequitable opportunity, etc. Thus, we MUST invite other experts to the discussion, including social and industrial psychologists, HR executives, andragogy (adult learning) professionals, artists, poets, shamans, etc. These other experts would reveal a universal truth about sexual harassment, a conclusion they all reached from different paths:

Harassers never perceive their own conduct as harassing.

And never means never. Because of cognitive dissonance (a psychological phenomenon afflicting us all), “Harassers” cannot imagine the possibility that (1) their attention or affection is unwelcome and/or (2) their audience could hear or experience a different message than they intended. Over 20 years, I’ve heard just about everything:

I was just kidding! Don’t be so sensitive!
I was complimenting her when I said she had a great ass!
I did not harass her; I just said I wanted to have sex with her.
It’s just locker room talk or horseplay!
When you’re a star, they let you do anything.
I thought she’d be flattered–I don’t invite just anyone to my room to watch me jerk off.

Effective training on sexual harassment challenges potential harassers to consider the possible disconnect between their intended message and the “heard” message; to understand the power dynamics that color every interaction with a subordinate; to embrace the reality that MOST women find sexual overtures really off-putting and demeaning at work; to accept that sexual harassment can jeopardize their careers and credibility just about more than anything else, etc. Effective sexual harassment training, therefore, draws on other tools borrowed from other disciplines like psychology, social psychology, management, and even law enforcement.

At this stage of our journey toward equal opportunity and harassment-free workplaces, we MUST evaluate and modify our methods, methods that have not proven terribly effective over the past 25 years. Otherwise, we will perpetuate a Sylvester McMonkey McBean Sexual Harassment Machine in which a substantial amount of money changes hands between employers, insurance carriers, and lawyers, but nothing else changes for the women in our workplaces. We need to deconstruct a sham machine that has tricked us into believing that it is “doing something” other than collecting and spitting out money, while enriching the insurance, HR, and legal industries.

Three Short Stories about “Harassment”

Posted on August 2, 2016 by merrily

Whenever I’m facilitating one of WorkplaceTrainingHub.com‘s management courses on “harassment,” I like to ask participants

Have any of you ever been accused of harassment?

Most folks immediately avert their gaze before I even finish the question–i.e., to check for an important email, Facebook post, or nearby Pokemon, right? It looks like this:

It’s a tough question to answer publicly. And so, after making clear that I’m just teasing them, I share my personal stories about “harassment,” from all the lenses through which I’ve seen and experienced “IT.” At that moment, eye contact returns and the thick fog of tension in the room dissipates.

#1: Accused at the EEOC

I launched my legal career at the EEOC’s Denver District Office, a freshly-minted attorney with an MSW in civil rights. I was insufferable. In any case, I quickly learned to despise the weekly attorney meetings at the EEOC: as more of a “directing-guiding” personality, the chit-chat and lack of clear goals, objectives, and action items drove me bonkers.

And so, one Monday morning, as my attorney teammates shuffled into the law library for our weekly meeting, I spoke these words to my African-American colleague, “Elston”:

Elston, it looks like you’re also having a tough time dragging your sorry ass in here today for the attorney meeting!

In a perfect world like the movies, a disembodied Morgan Freeman voice-over would have alerted everyone of the situation’s critical subtext:

What Elston does not know is that Merrily grew up in St. Louis and had used this phrase–“dragging your sorry ass”–regularly with both African-American and white friends.

But, life does not come with explanatory Morgan Freeman voice-overs, leaving us to our own interpretive biases and faulty attributions. See, Elston occupied the office next to mine, but kept to himself . . . I reasoned that Elston’s aloofness accounted for his longevity at the EEOC: he’d outlasted several generations of attorneys in the EEOC’s Denver legal department. I knew very little about him (except that he listened to “I Believe I Can Fly” every morning as one of his rituals), but I respected his seniority and wanted him to mentor me. After all, the learning curve is STEEP for young government lawyers.

I do not specifically recall Elston’s reaction to my comment, but I remember hearing some chuckles from colleagues who still found my distaste for meetings somewhat charming. Nevertheless, about four hours later, these words appeared across my computer screen in the subject line of an email from Elston to my bosses and me:

Potential Hostile Work Environment

I read the rest of Elston’s email and then puked. Elston interpreted my comment as racist because, according to him, “dragging your sorry ass” is a phrase created by African-Americans for the use of African-Americans. Because I am not African-American, Elston reasoned, I must have used the phrase pejoratively, to make fun of him.

I was devastated. I cared (and still do) deeply about equal employment opportunity (EEO), especially about advancing the March for African-Americans: caring about EEO forms a big part of my “self-concept,” and so, the accusation hit me really hard, like it does every other human I’ve encountered thus far. But more importantly to me, I never meant to hurt Elston’s feelings; on the contrary, I was trying to connect with him . . .

In any case, my supervisors put me on investigative leave and I spent the next two days soul-sick in my apartment imprudently looking for shelter pets to adopt in atonement. On the third day, I met with my supervisors, both of whom were, coincidentally, middle aged African-American men like Elston. To this day, I’m grateful for their patience and empathy–I was a blubbering mess. During our meeting, they disclosed Elston’s admission that he had not been happy with previous retirement offers and wanted to add some tension to their negotiations . . . and a racial harassment charge would surely do the trick. I was a pawn in a larger plan.

With that admission, the matter was over as quickly as it started. Like the 95% of people accused of harassment each year, I’d been exonerated, but still damaged–e.g., uglier, crustier, less trusting. Elston and I continued to work “in proximity” for many months afterwards at the EEOC, although never together. My effort to draw Elston closer had only alienated him further,and sadly, further outreach seemed rationally unsafe. And so, I learned to deal with Elston like a “risk,” treating him with a level of formality that only deepened the divide between us . . . because that’s what happens when you’re accused of harassment–you learn to protect yourself. And that’s a message managers must hear.

#2: Scrotum Jokes at the Christmas Party

Several years after I’d left the EEOC and switched sides to a defense practice, I found myself blessed to work among several of the best litigators in Colorado. Unfortunately, I was the only girl in my little ragtag clique of irreverent smart-asses who saw the sick humor in our work. Employment law is often amusing, which explains why I write folk songs about it.

So, in the middle of the holiday season when the office was a Ghost Town, my little clique decided to treat ourselves to an early Happy Hour at lunchtime. As usual, I was THRILLED to be included: not only did I find these guys hilarious, but we also regularly consulted with each other when things got tricky in our cases.

At some point in the endless riffing (which included welcomed riffing on each other), my colleagues all started telling jokes about their scrotums (scroti?). As I girl, I had very little to contribute to this part of the conversation, but I was enjoying the humorous dialog anyway. And then, I realized I’d tuned them out to listen to my inner voice, which suddenly sounded like a resentful Jan Brady from The Brady Bunch:

Scrotums are naughty boy parts, right? Why are they talking about them?

Scrotums, Scrotums, Scrotums!

Is this harassment?

By the time I’d tuned back in to the conversation, the group had moved on to safer lunchtime topics, like the appropriate settlement value of a gnarly wrongful death case. But I quickly dismissed the notion that I’d been the “victim” of “harassment” because of my proximity to an NC-17 conversation; after all, I’m an adult. At no time did my male colleagues seek to diminish me, to make me feel like less than a peer (despite my obvious handicap of not having a scrotum). It was like being the tomboy sister around a group of brothers who, at least in my mind, (a) thought of me as “one of the guys” or (b) feared verbal humiliation if the sex-talk ever got personal. And it never did. I’ve since acted as their employment counsel when they formed their own firm, enjoying a friendly professional relationship that has almost spanned two decades.

I have, however, contemplated my inherent power in that situation to TAKE OFFENSE and more pointedly, to cause them trouble simply by interpreting their conduct differently and/or attributing nefarious motivations to it. After all, ALL harassment lies in the eyes of the Accuser–namely, to satisfy the threshold legal element of “unwelcomeness.” If I took offense or considered myself a “victim,” I wielded the power of attribution, even faulty attribution.

Indeed, fundamental attribution error (a/k/a “correspondence bias”) is one of the basic tenets of social psychology. It holds that in explaining the behavior of other people, we have a tendency to overemphasize personal traits (i.e., disposition) and to de-emphasize situational factors . . . BUT when explaining our OWN behavior, we humans consistently focus on situational factors, not dispositional ones.

For example, how many times have you screamed “Asshole!” at another driver instead of thinking

Perhaps they’re rushing to the hospital to have a baby!
I’ll bet he’s just late for work today.
Maybe he did not see me.

And yet, social psychology studies confirm that when WE OURSELVES are the “Asshole” in traffic (and we all are occasionally), we will say to ourselves and others:

I did not see that car.
I’m late for work and could get written up.
Hurry! Faster! Screw the signals! We’re having a baby!

Check out this example:

Fundamental attribution error is pervasive in American thinking and it’s CULTURAL, meaning social psychologists have observed different attributional thinking patterns in other cultures. Yet, when contemplated in conjunction with cognitive psychology principles like “cognitive dissonance,” “rationalization,” and a whole host of recognized “cognitive biases,” a central truth about sexual harassment emerges:

We seldom perceive our own conduct as harassing, but are often quick to assign those attributions (i.e., harassing pig) and motivations (i.e., harassment) to other people’s behavior.

Particularly in that regard, the foundation of sexual harassment jurisprudence has been built on logical and psychological distortions. #3: My Sweet, Sexy Voice

Years later (and actually not that long ago), I picked up a new “wrongful discharge” and “whistle-blowing” case against a rural Colorado non-profit organization and each member of its volunteer Board of Directors in their individual/personal capacities. As an old social worker, I harbor strong negative opinions about trial lawyers who go after volunteer non-profit Board members. Indeed, decent attorneys on both sides of the bar would likely agree that naming un-paid volunteers as individual defendants is a SCUM-BAG maneuver, absent truly “willful and wanton conduct” like child sex abuse. In my new case, the naming of individual volunteers as Defendants particularly pissed me off because the Complaint stated that each member acted within the scope of their authority at all times.

Nevertheless, as was my practice (and as actually required by rule), I picked up the phone to contact plaintiff’s counsel to introduce myself, to talk about points of agreement and contention, and to discuss case scheduling. I knew nothing about my new opponent because he lacked a website and online presence, but I correctly surmised that he was an older gentlemen based upon his low attorney registration number.

The conversation started off normally, at least from my perspective. And at some point, I directly asked,

“Help me understand why you’re going after these volunteers in their individual capacities? I can get them dismissed, but not before they’ll have to bear the expense of preparing the proper pleadings. What’s your thinking?”

Instead of a response, my opponent stated

How old are you? You sound so young. I cannot get over the sound of your sweet sexy voice.

This event marks one of the very few occasions in which I’ve been knocked speechless. In fact, I was not “young;” on the contrary, 15 years of litigation had hardened me into an old crusty Battleaxe. But I was knocked speechless simply because I had no idea what to do or say next–I had no “event schema” for this kind of treatment by another attorney.

And so, I asked him to repeat himself. He obliged. I’m not entirely sure what happened next, except that I could see my colleagues coming out of their offices to look at me through the glass in my door while I raged into the phone. My voice, I imagine, probably sounded very much like Elizabeth Warren responding to a Donald Trump attack, like below.

I do, however, remember hanging up on him. He called back immediately and I sent the call immediately to voicemail. I needed to calm down and reclaim my wits for a few moments because I was reeling inside: instead of treating me like peer intent on kicking his ass, he treated me like a hooker, deliberately sexualizing a business conversation to make me feel small, like a piece of meat. His comments meant, “I will define you sexually, not professionally, and I have the power to do that.”

After I pulled myself together, I noticed the voicemail light blinking on my phone. And much to my utter horror and amusement, he left a rather lengthy voicemail message . . . again making reference to my “sweet sexy voice,” a few times, actually. And so, I did what any decent litigator would have done: I had the recording transcribed and I cited that transcript liberally in every motion in which he sought to have me sanctioned for not giving in to him (which is most of them).

Throughout the litigation, my septuagenarian opponent insulted me, even encouraging his client and her spouse to do so as well. He called me “bitch” several times to my face and often within earshot when talking about me to others. He contacted my old white guy bosses at Biglaw to tell them that I was “uncivil” and “taking irrational positions” in my case so that they would put internal pressure on me. He grieved me to Colorado’s disciplinary counsel for truly silly reasons. And during a deposition attended by several witnesses, stated that he would “knock me out” if he thought he could get away with it. Thereafter, we put the local sheriff on alert whenever I came to town for depositions.

. . . because that’s what happens in a true “harassment” situation: the party that perceives itself as more powerful will use insult, innuendo, and even internal politicking to make others feel “lesser,” like trespassers on the old white guy establishment in their quest for INCLUSION and RESPECT. The insults and innuendo are designed to convey one simple message: you do not belong here and I’m going to make your life suck for trying.

In the end, I trounced this asshole about as completely as a defense litigator can by getting 90% of the case dismissed on summary judgment before trial and winning at the “chicken game” of trial practice. Because we were loaded with evidence to overcome the one remaining claim reserved for a jury trial, the plaintiff’s lawyer fully capitulated and settled the case for nuisance value on the courthouse steps after nearly three years of litigation and six figures in attorneys’ fees . . . to me. (Don’t worry, those attorneys’ fees were paid by an insurance company, not the volunteers or non-profit). As many women know, WINNING is the best (and often only) revenge.

“Harassment” is a complicated issue, driven by a constellation of factors that have little to do with LAW. To address workplace “harassment,” therefore, we must turn to other disciplines for wisdom, especially the worlds of cognitive and social psychology. These disciplines can help us better understand the “microcosm of the workplace” and how we interact with it and each other. Instead, our workplace policy on harassment focuses on the reptilian mindset cultivated by trial lawyers: namely, that we must identify, weed out, and punish the HARASSERS and EVIL CORPORATIONS through large settlement payouts . . . of which trial lawyers take 33% to 45%. Accordingly, it comes as no surprise that our efforts to eradicate “harassment” from our workplaces have failed so miserably.

Until we give our managers a truly balanced and realistic view of the “harassment” landscape, organizations will continue to be blind-sided by harassment allegations. In reality, most “harassment” allegations arise in the context of (1) pre-termination performance rehabilitation efforts; and (2) terminations. Because managers do not recognize their conduct as “harassing,” they are unlikely to seek HR’s guidance in those common scenarios in which allegations arise. For that reason, WorkplaceTrainingHub.com‘s approach to managerial anti-harassment training also focuses on RISK, basic leadership psychology, and evidence development to help organizations manage the increasing risk of harassment allegations.

We hope you will join us.

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

August 2, 2016

EEOC on Harassment: Irresponsibly Wrong!

Posted on June 30, 2016 by merrily

On June 20, 2016, the EEOC “Select Task Force on Harassment” released its lengthy Task Force Report and staged an impromptu “hearing” to discuss their “findings.” And predictably, media outlets and Biglaw legal alert teams scurried to blast these EEOC revelations with headlines like:

Sexual Harassment Training ‘not as effective’ in Stopping Behavior at Work

and

Harassment Is Still a Massive Problem in the American Workplace

Unfortunately, none of these media outlets or Biglaw legal alert teams bothered to delve beneath the surface of the EEOC’s representations. Upon closer examination, three fundamental flaws become quickly apparent: (1) Confusing Allegations for Actuality; (2) Discounting the Fact that All Harassment Allegations Lie in the Eyes of the ACCUSER; and (3) Effectively Encouraging Employers to Jettison Training as “Ineffective,” advice that is illogical, irresponsible, and simply ignorant.

Confusing Allegations for Actuality

In Part II.B of the Report, the EEOC opens with the assumption that “harassment remains a persistent problem,” based solely on the number of harassment charges it receives annually. True, harassment charges comprised more than 1/3 of the EEOC’s FY2015’s charging intake. But the number of charges only measures how often harassment is ALLEGED, not how often it actually OCCURS. According to EEOC statistics, only 3.6% of EEOC charges alleging harassment merited a determination of reasonable cause to believe that legally actionable harassment occurred; likewise, in over 62% of these charges, the EEOC issued “no reasonable cause” determinations, a trend that has remained relatively stable since 1997. Thus, even based on the EEOC’s own data, “harassment” occurs far less often than ALLEGED.

The EEOC, however, frequently confuses allegations for actuality and makes sweeping generalizations based on the composition of its charge intake. This reasoning is illogical and dangerous, especially for the EEOC: according to data begrudgingly posted pursuant to the No Fear Act, internal complaints of discrimination within the EEOC have doubled (and race charges have tripled) since Chair Jenny Yang assumed the helm. Should we assume, therefore, that Chair Yang has reduced the EEOC to a hotbed of discrimination, based on these alarming charge trends? Needless to say, in this context, the EEOC would agree that the number of charges means only that ALLEGATIONS of discrimination were raised. And of course, seasoned practitioners on both sides of the employment litigation bar know that trial lawyers routinely include harassment claims in their EEOC charges to preserve and expand the scope of discovery after National Railroad Passenger Co. v. Morgan. Indeed, harassment allegations form part of a common trifecta of claims—e.g., discrimination, harassment, and retaliation—that increasingly challenge employers’ TERMINATION decisions.

Discounting that “Harassment” Lies in the Eyes of the ACCUSER

The threshold element of any “harassment” claim is UNWELCOMENESS, which (1) EMPOWERS employees to leverage claims simply by taking offense; and (2) EXPOSES managers to the sensibilities and motivations of their subordinates. No doubt, the manager-employee relationship can be inherently fraught with conflict: managers enforce standards, address under-performance, communicate corporate policy, etc. And, as I’ve observed over 19 years in the litigation trenches, harassment allegations have become a favored weapon for under-performing employees to lash out at managers and buy time in the job (i.e., on the hope that employers will delay termination to avoid a retaliation claim).

“Harassment” can literally include A-N-Y-T-H-I-N-G. In EEOC v. Picture People, the EEOC alleged that it was “harassment” for a retail employer to tell a profoundly disabled employee that even with her proposed accommodations, she could not effectively fulfill the job’s essential functions. In another case I defended, an under-performer lodged a harassment complaint against her manager for using the phrase “knock the stuffin’ out of that Egg McMuffin.” And in another, an under-performing employee allegedly suffered “harassment” when her manager showed coworkers a cartoon insinuating (and certainly not depicting) that two cartoon caterpillars had just had sex. What constitutes “harassment” lies in the eyes of the Accuser, and although 99 employees may have laughed at a post-coitus caterpillar cartoon, it takes only ONE to derail a career.

To date, after 30 years of EEOC enforcement and 25 years of private litigation, the definition of “harassment” remains as elusive and expansive as ever before, as the EEOC seems to recognize: “anywhere from 25 percent to 80 percent of women have experienced it at some point in their careers, depending on how the term is defined.” (emphasis added). Right . . .

Effectively Encouraging Employers to Jettison Training as “Ineffective”

The Task Force Report cautions readers not to read too much into its pithy segment on Workplace Training. As the Report noted, few studies have analyzed what makes training effective from a behavioral change perspective, and thus, its brief treatment on training

implicate[s] only the effectiveness of the specific trainings that were evaluated. The data cannot be extrapolated to support general conclusions about the effectiveness of training, Part III.C.

That reasonable admonition, however, did not stop EEOC Commissioner Victoria Lipnic from mouthing off about the general efficacy of training at the recent national conference for the Society of Human Resources Management (SHRM). According to comments attributed to Lipnic, the biggest Task Force “finding” was that it FAILED to FIND “any evidence that the past 30 years of corporate training has had any effect on preventing workplace harassment.” Indeed, “[t]hat was a jaw-dropping moment for us,” said Lipnic. The next day, featured prominently on the daily email report of SHRM’s national conference was the headline:

“No Evidence That Training Prevents Harassment, Finds EEOC Task Force”

Recently, The Guardian quoted EEOC Commissioner Chai Feldblum as stating:

We were surprised at the research that showed that the type of anti-harassment training that has been done to date … is not as effective in actually changing behaviors.

These statements about training are illogical, irresponsible, and ignorant of the basic psychological and organizational barriers that keep the compliance message from reaching MANAGERS—i.e., the organizational level where all violations and disputes occur.

Illogical

As a threshold issue, nowhere in the Task Force is there any “finding” about the general efficacy of training to prevent sexual harassment. In fact, the Report states the exact opposite, namely, that the “data cannot be extrapolated to support general conclusions about the efficacy of training.” But as a matter of logic, one simply cannot PROVE that a particular intervention (i.e., training) PREVENTED an event that MAY or MAY NOT have occurred based on the ABSENCE of EVIDENCE. This breach of logic, formally called argumentum ex silentio, is particularly “jaw-dropping,” especially from ostensibly law-trained EEOC Commissioners.

Irresponsible

SHRM is the largest organization of HR professionals in the United States, maybe even the world. Its membership routinely convenes at conferences and monthly luncheons to hear the latest about the mercurial world of employment law and to take best practices back to their workplaces. As the SHRM headline makes clear, the “takeaway” for many HR executives was this: training is not effective to prevent harassment and so, why bear the hassle and expense of it? Again, having worked with employers for 16 years under the attorney-client privilege, Lipnic’s irresponsible statement about training (especially online training) will discourage employers from investing in training altogether.

Unfortunately for employers, over the past two decades, whether employers offer regular training to their HR staff, managers, and employees has become the LITMUS TEST for minimal compliance. Indeed, the EEOC and the plaintiff’s bar treat failure to offer regular training as per se evidence of “reckless disregard for employees’ federally protected rights,” the standard for imposing PUNITIVE DAMAGES. Further, as the Task Force Report points out, the U.S. Supreme Court gave a nod to training in its 1999 Faragher v. City of Boca Raton and Burlington Industries v. Ellerth decisions, mentioning regular workplace training as evidence of an employer’s reasonable preventive efforts—i.e., the pivotal element of employer’s Faragher/Ellerth affirmative defense.

Training matters. To suggest, therefore, that employers jettison their anti-harassment training programs as INEFFECTIVE irresponsibly (1) exposes employers to punitive damages; (2) eliminates employer access to their Faragher/Ellerth affirmative defenses, and (3) deprives employers and stakeholders of the benefits of training DONE RIGHT. In fact, regular management training can further the goals of equal employment opportunity by providing educational entrees to manager positions for African-Americans, Latinos, and Women (who lag behind other economic minorities toward achieving Official/Manager jobs).

Ignorant

The Task Force Report alludes to the involvement of psychologists and social psychologists in their research and recommendations. Nowhere in the Task Force’s report, however, will readers find any analysis of the common psychological barriers that can interfere with an anti-harassment and anti-discrimination message from getting through to managers. On the contrary, despite announcing that “[i]n simplest terms, training must change,” HERE, Lipnic and the Task Force “experts” overlooked common problems with training that undermine its efficacy from a behavioral change perspective, and then neglect to make recommendations about how to improve it, likely because potential solutions lie outside their respective wheelhouses.

Yet, instead of “throwing the baby out with the bathwater” by jettisoning training altogether, HR practitioners, employment lawyers, and professional trainers should acquaint themselves with several basic concepts borrowed from clinical, social, and educational psychology that bear directly on training efficacy:

Cognitive Dissonance. Normally occurring “cognitive dissonance” prevents people from perceiving their OWN conduct as harassing or discriminatory. Numerous social psychology studies show that we humans universally rate ourselves as fair-minded, open, and non-judgmental, even while agreeing with blatantly racist statements in unconscious bias tests. “Other people harass and discriminate,” managers say to themselves. “I would never harass and/or discriminate because I’m a good person.” Partially for that reason, managers cannot conceive of the possibility that their conduct could be perceived as harassing or discriminatory—i.e., a fundamental disconnect between their intent and its effect on the listener. I’ve defended or investigated more sexual harassment cases than I can remember, and almost always, the “harasser” will say, “I was just joking around,” or “I just said she had great boobs and that’s a compliment!” I’ve even written a funny folk song about this phenomenon, “Yep, That’s Harassment Indeed!”

In any case, because of this phenomenon, managers dread sexual harassment training and assume it does not apply to them–i.e., because they would never “harass”, they could never be ACCUSED of harassment, whether it’s harassment or not. And so, they check out, rationalizing that the training is not relevant to them.

Effective training penetrates that cognitive dissonance, and explains how sexual harassment allegations commonly arise in the workplace and how managers can protect themselves. Even though most allegations are unfounded, the stain on the manager’s career is often permanent-i.e., the YOU Case. Managers need a Managerial Miranda Warning (i.e., “everything you say can and WILL be used against you in a court of law”) that shines a light on the RISK inherent in their interactions with subordinate employees: even though 99 employees laughed at the caterpillar cartoon, for example, it only took one to derail a promising management career. THAT message resonates with managers, and motivates them to coordinate more closely with their HR partners on termination decisions and workplace conflict issues.

Further, effective training also helps managers understand the COMMON ASSUMPTIONS even “good people” make that can lead to discriminatory employment decisions. Indeed, we humans apply a variety of psychological heuristics (i.e., mental reasoning shortcuts) as we navigate our world and make decisions. By normalizing then addressing problematic mental shortcuts about Ability, Customer Preference, Tenure and Commitment, etc., training can help managers recognize when their own mental processes are leading them toward discriminatory decisions. WorkplaceTrainingHub.com has developed a program, “Common Assumptions that Lead to Discriminatory Decisions” to address this phenomena and help managers understand their own “isms”. If we’re going to combat discrimination or harassment, we must break through the cognitive dissonance that keeps 100% of humans from perceiving their own conduct as discriminatory or harassing.

Inadequate Program Design and Delivery. According to EEOC Commissioners Feldblum and Lipnic, they seek to effectuate “behavioral change” in the workplace. But what do LAWYERS like Feldblum and Lipnic really know about THAT? Indeed, few law schools require coursework in Organizational Dynamics, Social Psychology, Cognitive Psychology, Group Dynamic Theory, Andragogy (i.e., adult learning science), etc. On the contrary, the truly HELPFUL insights about workplace behavioral change reside far outside most lawyers’ wheelhouses, a fact that illustrates the FUNDAMENTAL PROBLEM with historic approaches to training: most programs are designed and delivered by LAWYERS.

Few of these legal trainers, however, understand the SCIENCE of how adults take in and incorporate new information (i.e., andragogy). Adults are skeptical and practical learners who evaluate new information for consonance (i.e., sounds right!), dissonance (i.e., WTF?), and relevance (i.e., what does that mean to me?). Well-designed and delivered programs take into account adult learning psychology and present information in a manner that REACHES participants. By contrast, most attorneys throw word-crap on a PowerPoint slide, talk about lawsuits, and then wonder why no one was engaged and why the training was “ineffective.”

Inaccessibility and Cost. Finally, Commissioner Lipnic took a major swipe at ONLINE training options, claiming that to be effective,

you need training that is live, in-person and customized to your workplace. You need someone who understands what your workplace is.

This statement struck a dissonant chord, considering that the Task Force Report’s segment on training focuses on the need for more research—i.e., the Report “implicate[s] only the effectiveness of the specific trainings that were evaluated. The data cannot be extrapolated to support general conclusions about the effectiveness of training,” Part III.C.

No doubt, live training is more engaging and effective from an adult learning perspective. EEOC Commissioners too easily forget, however, that MOST ORGANIZATIONS (including the EEOC) have centralized management and decentralized operations, which makes it impossibly difficult to offer consistent regular training to managers and employees in the field. Web-based training enables organizations to (a) deliver training across their diffuse operations at a reasonable cost; and (b) catch the “stragglers” who regularly dodge live training programs—i.e., typically the folks who most NEED training. Web-based training also enables organizations to offer regular courses about the full gamut of EEO law, not just harassment. When training is expensive and difficult to arrange, organizations will forego it altogether.

But even beyond its affordability and accessibility, web-training training works very well from an adult learning perspective, when DONE RIGHT. Understanding that adults are skeptical learners, well-designed web-based training offers participants TOOLS (e.g., social scripts or event schemas, in psychology) to try out at work. Through their own post-training experimentation, participants discover that these new TOOLS work well, which reinforces their use, ensures internalization, and promotes mastery (i.e., learning). Learn more HERE. Thus, contrary to Commissioner Lipnic’s untutored and unsupported opinions on what makes training “effective,” web-based training surmounts all the obstacles that prevent organizations from offering any training at all.

Illogical. Irresponsible. Ignorant.

Stakeholders and employers deserve better from the EEOC.

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

June 30, 2016

The Myth of Gladiators: How Trial Lawyers Duped Civil Rights Advocates and Democrats

Posted on June 5, 2016 by merrily

The Civil Rights Act of 1991 (CRA 1991) spawned a new breed of trial lawyer–i.e., “gladiators” who, in the most Machiavellian sense, exploit the language of civil rights and equal employment opportunity (EEO) for personal profit. Unfortunately, Democrats and social advocates advancing the rights of female, African-American, Latino, and even GLBT workers still do not realize they’ve been tricked and used.

The Gladiator Spiel

The Colorado House Judiciary hearing for HB-1136 on February 14, 2013 started late, and proponents and opponents alike had camped out all day waiting to testify. Lobbyists lined the hallways and the hearing room itself was packed with civilian civil rights advocates, union representatives, business groups, and defense lawyers. Everyone was exhausted, hungry, and weary . . . on purpose: HB-1136’s House sponsors saved this bill for last, allowed unlimited testimony on other bills earlier in the day, and then confined testimony on HB-1136 to three (3) minutes, allegedly for everyone’s personal comfort.

HB-1136’s chief proponents and public cheerleaders were Representative Joe Salazar (D) in the House and Morgan Carroll (D) in the Senate. Both Salazar and Carroll are trial lawyers who represent EMPLOYEES in litigation against EMPLOYERS, and thereby stood to profit personally from their legislation. In Salazar’s lengthy firm biography, he underscores his “roots in civil rights” and emphasizes his employee-focused litigation practice. Likewise, within months of HB-1136’s passage, Morgan Carroll’s law firm–i.e., late night TV-hawking trial lawyer firm, Bachus & Schanker–unabashedly announced the addition of a longtime plaintiff-side employment lawyer, commenting in the local business journal:

The firm has a top-notch personal injury practice and expanding into this area of employee rights is logical,” Schanker said.

To trial lawyers, personal injury and “employee rights” go together.

Thus, drafted by trial lawyers for the benefit of trial lawyers, HB-1136 sought to import the damages and remedies available under federal employment discrimination law–e.g., CRA 1991’s remedial scheme of capped compensatory and punitive damages, and more importantly, automatic attorneys’ fees to plaintiffs–into Colorado’s analogous anti-discrimination statute, which had far more limited remedies. Because of the limited remedies under Colorado law, aggrieved employees and their trial lawyers were forced to “resort” to the federal enforcement system–namely, the EEOC and federal courts that, as litigators on both sides of the bar would agree, are far more likely to throw out non-meritorious claims before trial. HB-1136, therefore, sought to replicate CRA 1991’s remedies in a friendlier litigation forum. Ostensibly, however, HB-1136 was intended to “bridge the gap” between federal and state remedies, and provide greater “relief” to “victims” of discrimination and harassment perpetrated by employers covered under Colorado, but not federal law–i.e., employers with less than 15 employees.

In their brief testimony, attorneys from the Colorado Trial Lawyers Association (CTLA) and Plaintiff Employment Lawyers Association (PELA) used precious seconds to talk about their “commitment” to representing victims. They also complained about the high summary judgment dismissal rates in federal court. Civil rights advocates testified that discrimination is bad and must be abolished. Even though non-profit organizations have experienced an appreciable uptick in employment litigation, the Colorado Non-profit Association (CNPA) offered the least substantive testimony of all, supporting the bill on the grounds that their member organizations stand against discrimination–of course they do! Several union-funded lobbying groups testified that employers must be punished for discriminatory behavior, and HB-1136 would do the trick . . . obviously ignorant of the range of remedies already in place for the majority of Colorado’s employees.

And then Rachel Martinez, HB-1136’s poster child, testified about the sexual harassment she allegedly endured at the hands of a small employer. She stated that despite this allegedly egregious workplace abuse, she could not find a CTLA or PELA attorney to champion her case because of the limited remedies available under existing Colorado law. Unflinchingly, she stated that attorney after attorney declined to take her case, explaining that had she worked for a larger employer (i.e., 15+ employees), her case would be far more attractive to them because it would be worth more MONEY. Like those who testified before her, she urged Colorado lawmakers to “sweeten the pot” by increasing the damages available against all employers under state law, including employers already covered under Title VII and CRA 1991.

By the time HB-1136’s opponents were up, the Chair of the Democrat-controlled committee again stressed the importance of brevity. And so, with cartoon-like speed, HB-1136’s opponents (e.g., Chambers, NFIB, defense lawyers associations and tort reform advocates) prattled off the standard arguments: bad for small business, reduced regional competitiveness, stifled job creation. When my turn came, I hurriedly spoke of my EEOC and social work background, commitment to EEO, and my litigation career representing employers. I tried to explain that schemes like HB-1136 had been around since CRA 1991 and had simply not worked. But, a committee member, a fellow Democrat, interrupted. Because I represented employers, he stated (paraphrased), I must stand against employee and civil rights. Despite my background, I’d been branded and dismissed.

In that instant, I realized how brilliantly trial lawyers had duped Democrats and civil rights advocates into buying the thrust of HB-1136 and its predecessor, CRA 1991: namely, that as a matter of public policy, providing incentives for trial lawyers to prosecute employers for discrimination and harassment allegations would help solve the problem of inequitable workplace opportunity. Stated another way, trial lawyers convinced otherwise well-meaning civil rights advocates that what’s good for trial lawyers is also good for THEM. In reality, however, twenty-five years of data paint a diametrically different picture.

CRA 1991: The Genesis of the Gladiator Myth

CRA 1991 passed quickly and quietly in November of 1991 with surprisingly little legislative history. In fact, after the major provisions of the bill had already been agreed to, legislators haggled to recreate the legislative history of the bill in the public record, ostensibly to guide judicial interpretation. Given HB-1136’s legislative history, however, I have little doubt that CRA 1991 was the byproduct of closed-door negotiations between lobbyists for the Chambers, the National Federation for Independent Business (NFIB), and the National Trial Lawyers Association (NTLA), some of the most powerful lobbies in Washington, D.C. After all, when I arrived to testify against HB-1136 in February of 2013, an attractive lobbyist from the Colorado chamber pulled me aside to tell me that “they” had already agreed to HB-1136’s amendments . . . the hearing itself, she made clear, was simple theater.

CRA 1991’s passage quickly followed a critical juncture in America’s civil rights history: the Clarence Thomas-Anita Hill scandal. As depicted surprisingly well in the HBO drama, Confirmation, the hearing (and the hearing process itself) inspired feminist rage all over the nation, especially considering that Clarence Thomas perpetuated much of his boorish, harassing conduct while Chair of the EEOC–i.e., the agency charged with “protecting” women from such harassment. The hearing was a national outrage, and Congress realized that it must to SOMETHING, and trial lawyers had “something” up their sleeve.

Trial lawyers correctly pointed out how little progress we’d made in the March toward EEO, as evidenced by the Thomas-Hill hearings themselves and department of labor reports. The problem, they argued, is that an under-funded EEOC simply could not handle the volume of discrimination issues infecting our workplaces. In short, the EEOC needed help. Of course, they wanted to help, but the limited remedies then-available under Title VII (e.g., backpay, reinstatement, bench trials) hardly made taking discrimination cases “worth it” for them under their standard contingency fee arrangement. If, however, Congress modified Title VII to allow the recovery of compensatory (e.g., pain, suffering) and punitive damages, jury trials and attorneys’ fees, they could act as mini “Attorneys General” to help an under-funded EEOC stamp out discrimination once and for all. Congress bought it and passed CRA 1991 quickly, effectively PRIVATIZING the enforcement of Title VII.

The “gladiator myth”–i.e., trial lawyers masquerading as civil rights proponents–was born. And unfortunately over the past 25 years, the “gladiator myth” grew and spread into other social legislation designed to help PEOPLE, namely, the Affordable Care Act (ACA). In passing this historic legislation, trial lawyers lobbied hard to ensure that tort reform protections would not apply to the ACA’s new species of health care provider–i.e., the “Accountable Care Organization” (ACO). Health care attorneys have already commented that the lawsuits under the ACA will metastasize, as more trial lawyers figure out how to make money under this new legislation.

Confessions of a Recovering Gladiator

Like most other feminists, I spent October of 1991 glued to the television watching the Thomas-Hill hearings unfold . . . and when I was not watching the hearings, I was working as a domestic violence counselor at one of Chicago’s biggest shelters. During this period, feminist rage and righteous indignation coursed through my veins and arteries like glucose, and hardened my resolve to dedicate my career to striving for EEO, especially for women like me (i.e., youthful tribalism).

Shortly thereafter, I applied to Washington University’s prestigious Brown School of Social Work, and based on a scholarship essay about the interplay between societal devaluation and violence (observations that still ring true today), I received the substantial Roger Baldwin fellowship for civil rights. To enhance my “toolbelt,” I gained admission to Washington University’s law school a few months later, and again, found myself focusing on classes in labor and employment law, criminal justice, and civil rights. The course in Employment Discrimination, however, literally changed my life: perhaps because I completely “geeked out” over her class, the professor opened several doors within the St. Louis office of the U.S. Equal Employment Opportunity Commission (EEOC) and the St. Louis plaintiff’s bar. And upon completing my JD/MSW in 1997, those open doors guided me to my first law job as a Trial Attorney with the EEOC in Denver, Colorado.

Make no mistake: as a freshly-minted EEOC Trial Attorney, I considered myself a GLADIATOR in the war on discrimination and more pointedly, those bastard employers who perpetuated it. After all, I’d been well-indoctrinated into the gladiator rhetoric through studying CRA 1991 and working with the EEOC and St. Louis plaintiff’s employment bar in law school. Thus, I believed in the power of litigation to change hearts and minds about civil rights and equal opportunity. I believed in their Victim/Villain paradigm in which employees are “victims” and employers are “villains.” I believed that attacking discrimination through litigation would yield more employment opportunities for Title VII’s intended beneficiaries. And, I projected my own passion about EEO issues onto my colleagues at the EEOC and the Denver plaintiff’s bar, assuming that they fundamentally cared about these issues as much as I did. (They do not). Indeed, at the outset of my fledgling legal career as an EEOC Trial Attorney, I also believed that the plaintiff-side employment lawyers fulfilled a useful social purpose by prosecuting the numerous cases for which an underfunded EEOC simply had no resources–i.e., the crux of the gladiator myth.

Experience and evidence, however, would prove otherwise . . .

Deconstructing the Gladiator Myth

The EEOC and The Gladiator Myth

The term “Gladiator” comes from a scholarly article written by respected law professors Margo Schlanger of University of Michigan Law School and Pauline Kim of Washington University in St. Louis School of Law, The Equal Employment Opportunity Commission (EEOC) and Structural Reform of the American Workplace. In their lengthy analysis, Schlanger and Kim searched for an analytic model to explain the EEOC’s prosecutorial conduct: did the EEOC behave like “gladiators” by prosecuting complicated cases in the public interest? Or, did the EEOC behave like “collaborators,” working within institutions to effectuate social change?

Neither, Schlanger and Kim found. EEOC prosecutions neither resembled hard-fought gladiator battles nor collaborative problem-solving; instead, EEOC enforcement boiled down to a bureaucratic, “managerialist” response that is largely “cosmetic in nature,” not substantive.

Given my experience at the EEOC, I could not have agreed more. We had arrived at the same conclusions through different routes. Schlanger and Kim, however, offered little insight into HOW the EEOC’s enforcement devolved into a bureaucratic wasteland of rote, managerialist responses. But, through my lens–a lens also shaped by different disciplines and personal experience–the reason for the EEOC’s failure seemed obvious:

Complete Misalignment Between Mission and Methods

Each November, the EEOC releases its annual Performance and Accountability Report (PAR), which describes the agencies progress toward, inter alia, “Enforcing the Law More Effectively.” For at least the past five years, the EEOC leadership has touted its historic monetary collections from employers as evidence of “Enforcing the Law More Effectively,”

This point merits repetition: to EEOC Commissioners and by extension, field personnel, the amount of MONEY collected from EMPLOYERS ostensibly shows that the EEOC is effectively enforcing Title VII. Of course, Title VII’s architects codified the EEOC’s mission in statute itself: to ensure equal opportunity for all American workers and to eliminate workplace discrimination “through informal efforts of conference, conciliation and persuasion.” For social scientists experienced with statistics, research study design, and governmental reports, determining whether the EEOC was “enforcing the law more effectively” (i.e., promoting opportunity and reducing discrimination) could easily have taken into account historic job segregation and advancement patterns gleaned from the EEOC’s own EEO-1 data, Bureau of Labor Statistics (BLS) reports, EEOC charging data, Census data re wealth distribution, etc.

Instead, MONEY exacted from employers became the “metric that matters” at the EEOC after CRA 1991. By defining MONEY as the measure of its efficacy, the EEOC effectively recalibrated its entire enforcement machine to spit out monetary settlements, regardless of whether the allegations of discrimination or harassment have merit or not. In 2013, EEO Legal Solutions undertook a nation-wide survey of HR practitioners, employment lawyers, and EPL adjusters (“practitioners”) to find out what EEOC mediators SAY behind closed doors to make them PAY in the EEOC’s “successful” alternative dispute resolution program. After all, the EEOC protects its personnel and processes under an iron veil of selectively-invoked confidentiality and “government deliberative process” privilege. Thus, this study marked the first effort to EXPOSE what employers experience in a law enforcement process literally shrouded in secrecy.

The results were alarming. Over 80% of practitioners reported that the EEOC mediator stressed “cost-of-defense,” regardless of charge merit. The EEOC is well aware that employers settle EEOC charges not out of guilt or recognition of wrong-doing, but rather, to avoid the exorbitant cost of proving they did not thing wrong in the first place. But it gets worse: the survey showed that after emphasizing their defense cost dilemma, EEOC mediators then brandished EEOC enforcement weaponry to scare employers into higher cost-of-defense settlements, routinely threatening reasonable cause determinations, expensive systemic investigations, and even prosecutions. As we pointed out, these threats are outrageously disingenuous: EEOC mediators know (or should know) that if any of those outcomes were likely under the EEOC’s longstanding Priority Charge Handling Procedures (PCHP), the matter would not have been routed to mediation in the first place. In effect, this study validated much of the bad behavior I’d witnessed among EEOC personnel during my tenure–namely, threatening the use of federal enforcement power to effectuate a private settlement over UNSUBSTANTIATED allegations. When MONEY is the metric that matters, the “successful” EEOC personnel churn big settlements and LIE, under the absolute protections of confidentiality and “deliberative process privilege,” to accomplish their objectives.

Naturally, trial lawyers profit from this “alignment of interest” with the EEOC, reveling in watching EEOC personnel shake down employers for monetary settlements of which they will take 33% to 50% under a standard contingent fee arrangement. Of course, trial lawyers share the EEOC’s interest in maximizing MONEY for “victims” (i.e., accusers), and have found a kindred spirit in EEOC Chair Jenny Yang, a longtime employee-side employment lawyer from California.

The Gladiator Model and the Progress Toward EEO

The EEOC prosecutes less than .2% of its Charge intake, roughly 150 cases per year out of nearly 90,000 new charges. Each year, the EEOC finds “reasonable cause” to believe discrimination, harassment, and/or retaliation have occurred in around 3.5% of all charges, and “no reasonable cause” in over 66% of charges. Even when the EEOC finds “no reasonable cause” that discrimination occurred, however, “aggrieved employees” still have the right to hire a trial lawyer and sue their employer in federal court. Indeed, that was the whole point of CRA 1991: to help an under-funded EEOC deliver on Title VII’s promises through PRIVATE prosecution of alleged Title VII violations.

Twenty-five years later, over 99% of Title VII enforcement now takes the form of PRIVATE LITIGATION against employers, not GOVERNMENTAL REGULATION. In the aftermath of CRA 1991, Employment Practices Liability Insurance (EPLI) mushroomed into a booming risk management product to help employers mitigate the costs and risks of discrimination disputes; whereas only a handful of carriers offered EPLI in the 1990’s, EPLI now forms part of every bundled business policy and covers the majority of employers’ defense costs and indemnity risks. Today, EPLI carriers stress early settlement to avoid defense costs, making discrimination disputes less about vindicating civil rights than they are about the simple transfer of funds between insurance carriers and trial lawyers. And trial lawyers like it that way.

But the question civil rights and EEO advocates should be asking is this:

has this scheme of privatized EEO enforcement (i.e., CRA 1991) advanced the March to end discrimination and level the playing field?

Starting in 2013, in anticipation of Title VII’s 50th anniversary on July 2, 2014, EEO/AA experts at Biddle Consulting Group in California and I started asking this and even a more basic question: if CRA 1991 had proven effective, what outcomes could we expect to see? What are the measures of our progress toward EEO? And so, we daydreamed about and then measured:

Historic Job Segregation Patterns. Biddle’s Dan Kuang, PhD analyzed the EEOC’s own EEO-1 data from 1996 [first available year] to 2012 to determine the racial and gender composition of several major job categories at opposite ends of the pay scale. Dr. Kuang found that African-Americans, Latinos, and Women remain concentrated in the lowest paying positions, while Whites and Asian Americans still occupy the top rungs of the status and pay ladder.
Progress Toward Achieving Top Jobs. Dr. Kuang also measured the pace and trajectory of progress toward achieving top “Official/Manager” jobs. He discovered that Asian Americans have made significant progress in this job category, whereas the progress of Women and Latinos depicts a long flat line. Unfortunately, African-Americans have lost ground in the march to the top since 2008.
Impact of Unemployment. Quarterly BLS data continues to show that unemployment hits the African-American and Latino communities the hardest, whereas Asian Americans are less likely to become unemployed than Whites. BLS data also shows that Women, African-Americans, and Latinos spend more weeks on unemployment, thereby suggesting greater difficulty becoming reemployed.
International Leadership. The United States ranks 69th behind many developing nations with respect to the number of female leaders in government.
Government Employment. According to the EEOC’s own reports, African-Americans have not obtained FEDERAL employment in numbers commensurate with their overall workforce availability, thereby suggesting hiring discrimination in the federal sector.

Read the full analysis HERE. Against these reasonable benchmarks, CRA 1991 has simply not increased opportunity for most of Title VII’s beneficiaries, nor has it reduced the number of workplace discrimination claims. And according to a more recent Gallup poll, 60% of African-Americans feel like they still suffer discrimination in HIRING compared to other racial groups . . . and they’re right.

How the Gladiator Myth Distorted Our EEO Focus

Twenty-five years later, we have very little progress to show for CRA 1991. Contrary to trial lawyer promises in 1991, CRA 1991 has not improved OPPORTUNITY for Women, African-Americans, or Latinos, despite the fact that a substantial amount of money has changed hands among employers, insurance carriers, and lawyers. Likewise, CRA 1991 has not reduced discrimination allegations, nor improved the workplace climate. As a matter of fact, CRA 1991 has likely provided incentives for businesses to invest in TECHNOLOGY to accomplish job functions rather than hire HUMANS. After all, a robot may break down, but it can never sue. More HERE.

Thus, why did CRA 1991 fail to move the needle toward better opportunity (e.g., more jobs, more promotions, equal pay) for Title VII’s intended beneficiaries?

Again, gladiator GREED helps answer that question: while data suggests that discrimination in HIRING, PROMOTION, and PAY against African-Americans, Latinos, and Women remain rampant, trial lawyers disfavor such cases. They are complicated and difficult to prove; punitive and compensatory damages are harder to get; and most importantly, because of the legal “duty to mitigate,” hiring, promotion, and even pay cases yield much smaller jackpots.

TERMINATION cases, by contrast, allow trial lawyers to (a) pile on discrimination, harassment, and retaliation claims out of the same factual nucleus; (b) make big plays for pecuniary and compensatory (e.g., pain, suffering) damages; (c) recover “frontpay;” and (d) tell the familiar, tired tale of villain employers and victim employees. TERMINATION cases are easier and far more profitable, with far less WORK.

In partial recognition that TERMINATION matters (not charges alleging discrimination in HIRING, PROMOTION, and PAY) had overtaken its INTAKE of charges, EEOC commissioners voted on April 4, 2006 to switch the entire enforcement focus from “cohort discrimination” (i.e., individual instances) to “systemic discrimination,” namely, employer practices that broadly impact many employees, especially in HIRING. The EEOC subsequently (and consistently) has announced that eliminating discriminatory barriers in HIRING and recruitment is its number one priority under its Strategic Enforcement Plan. These factors make me think that EEOC leaders themselves recognize the profound disconnect between data depicting discrimination in HIRING, PROMOTION, and PAY, and a charge docket raising primarily TERMINATION allegations.

Indeed, last year, TERMINATION matters (e.g., discharge, constructive discharge) accounted for over 75% of the EEOC’s intake docket, whereas charges alleging discrimination in HIRING and PROMOTION each made up approximately 7%. Do the math HERE. Worse, PAY discrimination, which is another EEOC National Enforcement Priority, was challenged in less than 6% of all charges, despite some credible evidence of discriminatory disparities by GENDER, RACE, and ETHNICITY.

CRA 1991 has failed its stakeholders, while heaping tremendous financial burdens on employers, for a relatively simple reason: instead of helping an underfunded EEOC prosecute real discrimination in HIRING, PROMOTION, and PAY, trial lawyers prefer to fashion discrimination cases from TERMINATION decisions that will yield THEM bigger paydays in settlement negotiations. Trial lawyers’ financial interests have dictated our dialog about equal employment opportunity, forcing employers to focus on justifying their termination decisions instead of expanding recruiting practices, investing in manager development, and helping working parents achieve better work-life balance–i.e., real EEO issues. Trial lawyers are not prosecuting the real discrimination afflicting the American workplace; on the contrary, they are simply prosecuting the cases that seem potentially profitable, leaving low wage earners (e.g., African-Americans, Latinos, and Women) to fend for themselves like poor Rachel Martinez, the sexual harassment victim whom no CTLA or PELA member would help.

Trial lawyers are not “gladiators” whose “passion is justice,” to quote Colorado Senator Morgan Carroll’s late-night, TV-peddling personal injury firm. Trial lawyers claim moral high ground, while literally churning civil rights cases into insurance company settlements. Period. There is absolutely nothing noble, dramatic or enlightening about the process, given that most employers now settle for cost of defense. CRA 1991, however, enabled these trial lawyers to re-brand themselves as “gladiators” and their opponents as racist, sexist, or “ignorant” just for disagreeing with or defeating them. Despite clear pecuniary motives and/or conflicts of interest, these gladiators congratulate themselves for representing “Victims” against “Villain” employers who “violate the law,” while taking between 35% and 50% of the monetary recovery.

Gladiators have still convinced Democrats (and civil rights advocates) that they perform a useful social function as private prosecutors helping under-funded agencies enforce the law. But CRA 1991 and its aftermath should teach us about what happens when policy-makers entrust complex social problems like inequitable economic opportunity to trial lawyers: they will find a way to make money on the problem without actually solving it. Private litigation by GLADIATORS is simply not a viable substitute for responsible regulation by GOVERNMENT.

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

June 14, 2016

From Opportunity to Entitlement: How Private Litigation Distorted Our Dialog About Equal Employment Opportunity

Posted on April 14, 2016 by merrily

Twenty-five years after the Civil Rights Act of 1991, the March toward Equal Employment Opportunity has stalled: trial lawyers’ pecuniary interests have shifted our focus toward TERMINATION decisions, instead of HIRING and PROMOTION practices that keep African-Americans, Latinos, and Women from competing on equal footing in the American economy.

Connecting the Dots

This November will mark the 25th anniversary of the Civil Rights Act of 1991 (CRA 1991), an important milestone in the march toward Equal Employment Opportunity (EEO). CRA 1991 fundamentally changed the enforcement scheme of Title VII of the Civil Rights Act of 1964 (Title VII), from initial informal administrative methods of “conference, conciliation, and persuasion” with employers to private litigation against employers. Today, private litigation (i.e., employee-initiated lawsuits) accounts for 99% of EEO enforcement in the workplace trenches. The EEOC prosecutes less that .1% of its charge inventory and finds Reasonable Cause to believe discrimination occurred in only 3.5% of all charges. For the other nearly 90,000 charges in the EEOC’s annual intake, therefore, employers feel the effects of CRA 1991 through threatened and actual private litigation prosecuted by TRIAL LAWYERS.

Given the impact of CRA 1991, common sense invites us to ask: has CRA 1991 furthered the march toward EEO as its drafters had hoped (and as trial lawyers had promised?). As the late great Steve Jobs sagely observed,

Indeed, an entire sub-discipline of social work and public policy analysis is devoted to determining whether our interventions (e.g., legislation, programming) have WORKED, to any degree. For most non-profit organizations, grant funding depends on their ability to demonstrate, through carefully chosen metrics and reliable measurements, that their help is HELPING–namely, that (a) their methods and mission align; and (b) their methods are “moving the needle” toward positive outcomes. Thus, as a social intervention ostensibly designed to further the great March for Opportunity and Jobs that began in August, 1963, CRA 1991 merits attention and analysis.

Looking Back: A Brief History of EEO Enforcement

Most folks have long forgotten about the employment practices that prompted Title VII’s passage, especially the rampant discrimination in HIRING and PROMOTION that kept racial/ethnic minorities and women from participating fully in the American economy. Because paid employment forms the foundation of most people’s financial security, discrimination in HIRING and PROMOTION reinforced the separation of HAVES and HAVE-NOTS by race, ethnicity, and gender and prevented large swaths of the population from rising above the economic circumstances that trapped them in poverty and powerlessness for generations.

The great March of August, 1963 set out to secure basic equal rights in public accommodations, housing, education, and most importantly, EMPLOYMENT. Without equal opportunity in employment, civil rights advocates realized, access to public accommodations, housing, and education would remain as ECONOMICALLY elusive as before. Thus, the leaders of the great March of 1963 emphasized equal access to EMPLOYMENT, equating JOBS (i.e., economic opportunity) with FREEDOM.

This March set in motion a legislative blitz that ended with the passage of the Civil Rights Act of 1964 on July 2, 1964, including Title VII’s prohibition against discrimination in EMPLOYMENT. History buffs will recall JFK’s assassination on November 22, 1963, as well as LBJ’s desire to fulfill JFK’s civil rights vision, notwithstanding his own Texan sensibilities on racial issues.

The next year, the U.S. Equal Employment Opportunity Commission (EEOC) opened for business. Seven years later, in 1972, the EEOC lobbied Congress to modify Title VII to give it the authority to PROSECUTE private employers for violations, complaining that without the authority to prosecute, the EEOC was nothing more than a “toothless tiger.” After this statutory modification, EEOC Litigation Centers sprung up all over the nation to not only fulfill Title VII’s promises through administrative enforcement (EEOC), but also through civil prosecution of employers in our federal courts.

In its original form, Title VII stressed injunctive, non-monetary relief and the resolution of discrimination disputes through “informal methods of conference, conciliation, and persuasion.” Section 706(b), 42 U.S.C. 2000e-5(b). Indeed, the original version of Title VII did not allow for jury trials, nor the recovery of compensatory (e.g., pain/suffering, humiliation) or punitive damages. At the time, Title VII’s architects surmised (surely correctly) that juries would not effectively enforce the civil rights of groups they had historically marginalized or hated. Accordingly, Title VII enforcement was initially entrusted to federal judges, adjudicators with lifetime tenure and little oversight. And not surprisingly, the great March sputtered along.

Enter Trial Lawyers . . .

At the 25-year mile-marker, civil rights advocates called attention to our lack of progress on several EEO fronts (e.g., ending job segregation patterns, boosting diversity in top jobs, unemployment) and to a constellation of Supreme Court decisions that, advocates argued, unnecessarily limited Title VII’s broad remedial purposes. They teamed up with trial lawyers, and fashioned a public policy argument that still echoes throughout state legislatures today: because of Title VII’s limited damages (and of course, lack of jury trials), trial lawyers had little incentive to take on employment discrimination cases. Accordingly, these self-proclaimed civil rights “gladiators” asked Congress to “sweeten the pot” by allowing recovery of compensatory damages, punitive damages, and attorneys’ fees and by guaranteeing civil jury trials. With these additional financial incentives to prosecute EEO matters, trial lawyers argued, they can help the EEOC, as deputized mini Attorneys General, stop discrimination and advance the march toward equal opportunity.

In 1991, these arguments still rang true. Due to chronic under-funding, the EEOC had developed an insurmountable backlog of pending EEO investigations, as well as a reputation for inertia. But, according to trial lawyers and civil rights advocates, the threat of PRIVATE litigation would motivate offending, unenlightened employers to comply with Title VII’s mandates and “provide relief” for “victims” of their “unlawful employment practices.” Business groups offered anemic resistance to CRA 1991, except for insisting upon damage caps based on employer size. And by November of 1991, in backroom deals between lobbyists for advocacy groups, Chambers of Commerce, trial and civil rights lawyers, and small business, the Civil Rights Act of 1991 emerged, a significant change in federal enforcement backed up by surprisingly little legislative history.

Two Decades of Data and Dots to Connect

I joined the EEOC’s Denver District Office as a Trial Attorney six years later, in November of 1997, after finishing my JD/MSW at Washington University in St. Louis on a civil rights fellowship. I started out as a rabid “true believer” in the importance (and efficacy) of changing hearts and minds through rigorous litigation, a belief that dissipated through daily exposure to the EEOC’s methods, management, and much-distorted mission to maximize employer settlement payouts. But my own legal career grew up around CRA 1991, and because my interest equal opportunity has remained constant, I’ve paid careful attention to developments on the ground and in social science research.

Civil rights advocates and policy analysts too often forget a central tenet of natural law (Newton’s Third Law of Motion, actually): for every action, there is an equal and opposite reaction. As a longtime attorney representing BUSINESSES, Newton’s Third Law roughly translates as the caption below. How can we respond to or minimize the impact of CRA 1991’s costs and risks?

In fact, after CRA 1991’s passage, the “market” responded in foreseeable ways that we have detailed in other articles:

EEOC’s Adoption of Priority Charge Handling Procedures (PCHP)

My tenure as an EEOC Trial Attorney in Denver from 1997-2000 let me observe firsthand how the EEOC grappled with the deluge of new EEOC charges following CRA 1991’s passage. In 1995, the EEOC adopted Priority Charge Handling Procedures (PCHP), triaging protocols that remain very much in use today. Although CRA 1991 effectively privatized EEO enforcement, its statutory scheme still required employees and their attorneys first to file a Charge of Discrimination within 300 days at the nearest EEOC office and to obtain a Notice of Right to Sue before proceeding to court . . . and not surprisingly, EEOC charge intake soared and its “handling” of charges became more superficial and perfunctory than ever before. Of course, as indicated earlier, the EEOC acts on only a very small number of charges, issuing reasonable cause determinations in 3.5% of charges and prosecuting less than .1% of all discrimination allegations.

Proliferation of Employment Practices Liability Insurance (EPL)

In the 1990’s, few insurance carriers offered Employment Practices Liability coverage to defray the defense costs and risks of big damages under CRA 1991. But where there is risk, the insurance industry offers a remedy, and without doubt, CRA 1991 exposed employers to greater risks (e.g., jury trials on sensitive issues) and costs than ever before. Nowadays, over the past 20 years, a majority of employers have purchased EPL coverage.

I became very familiar with EPL insurance after leaving the EEOC in 2000 to launch my defense practice. In those early years, I considered EPL insurance a very poor fit for employment cases, given their typically emotional nature: whereas insurance carriers always favor settlement to minimize defense costs, most employers simply cannot not stomach the notion of paying out $30K on unfounded, nefarious, and brand-damaging allegations. Extortion, I’d often hear employers say, during spirited settlement conferences.

I also had difficulty reconciling a logical inconsistency about the insurability of EEO allegations, given that insurance is typically not available for INTENTIONAL acts and discrimination, harassment, or retaliation are theoretically intentional acts. But over time, I realized that without EPL insurance, the non-recoverable defense costs of proving they did nothing wrong in the first place would force many small to mid-sized businesses into bankruptcy.

By design, EPL insurance took the sting out of CRA 1991’s enhanced remedies–i.e., the “stick” designed to scare employers into Title VII compliance. Because EPL coverage pays defense and indemnity (e.g., judgments, settlements) costs, employers have minimal direct financial exposure in EEO disputes, except for their deductible and a potential increase in premiums. And although EEO allegations inherently involve INTENTIONAL acts, many employers now treat EEOC charges as simply an UNAVOIDABLE COST of doing business, like a slip-n-fall or workers’ compensation accident. From a behavioral modification perspective, therefore, EPL neutralized CRA 1991, rendering it completely ineffective as a tool to effectuate workplace change. Instead, CRA 1991 spawned a wealth redistribution cycle between employers, EPL insurance carriers, and lawyers (on both sides) where nothing much changes except money changing hands . . . between themselves.

The Stalled March Toward Equal Employment Opportunity

Since 2013, in anticipation of Title VII’s 50th birthday on July 2, 2014, my friends at Biddle Consulting Group and I have, both individually and cooperatively, conducted on-going research about our progress toward EEO. We started by asking, what kinds of measurements might indicate progress or lack thereof? After all, the EEOC and OFCCP historically claimed that they were “enforcing the law more effectively” based on employer settlement payouts, a measurement that made little sense in light of their respective missions–namely, to end workplace discrimination against and to promote opportunity for women and minorities.

We analyzed the EEOC’s own EEO-1 data, examining the pace and trajectory of change in two specific areas: (1) historic job segregation patterns; and (2) minority advancement into the Official/Manager and Professional categories of jobs, the “top jobs” in EEOC-speak. We dug further, analyzing quarterly data from the Department of Labor’s Bureau of Labor Statistics (BLS) on unemployment and its impact across racial/ethnic and gender groups. We tapped into the robust databases at Catalyst.org for international information on women’s corporate advancement, workforce participation, and governmental leadership. And, in March of 2014, we published our findings HERE and in EEO Insight, the nation’s leading periodical for the Affirmative Action and EEO industry.

Based upon our findings, we concluded that the great March for Jobs and Freedom of 1963 stalled out in the mid-1990’s, particularly for African-Americans, Latinos, and women. The next year, the EEOC released its 50th Anniversary Report on the American Workplace based upon the same EEO-1 data that Biddle’s Dan Kuang, PhD had analyzed and not surprisingly, the EEOC’s findings mirrored our earlier report (sans the helpful BLS and Catalyst.org data).

Why have African-Americans lost ground in their quest for Official/Manager jobs since 2008? Why have Women improved their participation rates in the Professional category, but not the Official/Manager category (i.e., the glass ceiling)? Why are African-Americans, Latinos, and Women still concentrated in lower paying positions, whereas Whites and Asians dominate the highest echelons of the pay scale?

From Hiring and Promotion to FIRING Claims

On April 4, 2006, the EEOC announced another major shift in its administrative enforcement of Title VII, switching from a cohort discrimination model to a systemic model. The EEOC stated its intent to focus on “discriminatory hiring barriers” (e.g., criminal background and credit checks, pre-employment tests) that reinforce past “vestiges of discrimination.” In other words, under the EEOC’s systemic initiative, the EEOC planned to return its focus to HIRING and PROMOTION practices that have kept “economic minorities” (e.g., Women, African-Americans, Latinos) from breaking through historic job segregation barriers and glass ceilings.

The EEOC’s renewed focus on HIRING and PROMOTION came as a welcome surprise, until I remembered that the EEOC takes action on less than 3.5% of its charge inventory and prosecutes less than .1% of all allegations. Despite touting this initiative, the EEOC filed only 42 systemic prosecutions in FY2015, and its flagship prosecutions–e.g., EEOC v. Kaplan Higher Ed. Corp. (credit reports) and EEOC v. Freeman (criminal background)–did not survive summary judgment.

While the EEOC’s systemic initiative floundered (despite its laudable aims), however, employers continued to face an increasing number of EEOC charges and PRIVATE litigation from their own employees. These charges seldom involved HIRING and/or PROMOTION discrimination; on the contrary, increasingly over time, the bulk of the EEOC’s charge intake came to involve TERMINATION decisions. By FY2015, the bulk of the EEOC’s charge intake challenged TERMINATION decisions, not HIRING or PROMOTION ones.

WHY? Although data shows that discrimination in HIRING and PROMOTION likely remains rampant, trial lawyers disfavor hiring/promotion cases. They require statistical experts and lots of work. Because of the universal “duty to mitigate” damages, hiring and promotion cases typically yield small monetary recoveries; after all, in many cases, a rejected applicant (even one rejected for discriminatory reasons) will simply apply for and accept another job with comparable pay and benefits.

TERMINATION cases, by contrast, allow trial lawyers to pile on discrimination, harassment, and retaliation claims in a familiar “shotgun method” of pleading (i.e., spewing many pellets in hopes that one hits the target). Termination cases yield bigger backpay awards, in light of most terminated employees’ inability to find comparable employment over long periods of time. Termination cases generate large frontpay awards. Termination cases engender greater emotional distress and juror sympathy–i.e., I was a loyal employee who planned to work here until retirement! Termination cases, especially those involving retaliation allegations, are easier to spin into settlements, at least from a trial lawyers’ perspective.

From the employers’ perspective, however, termination decisions involve an employee’s SQUANDERING of opportunity, not any discriminatory failure to provide opportunity. Indeed, for every employee allegation of discrimination arising out of a termination, there are one or more equal and opposite explanations for the decision, typically poor performance and failure to rehabilitate. According to the EEOC’s own statistics, employers’ legitimate, non-discriminatory and non-retaliatory reasons for terminating the employee persuade the EEOC in the majority of cases that no discrimination occurred whatsoever. Discrimination is, after all, difficult to prove, but easy to allege.

From Opportunity to Entitlement: Refocusing Our Dialogue About EEO

The great March for Jobs and Freedom and the quest for inclusiveness at ALL levels of our workforce have sputtered to a crawl at the 50-year mile-marker, likely for a multitude of reasons. But here’s one reason no one seems to have noticed thus far: instead of focusing on boosting diversity/inclusiveness in HIRING and PROMOTION, employers are naturally more motivated to neutralize any risk posed by TERMINATIONS and to allocate internal resources accordingly. Thus, while statistics suggest that discrimination in HIRING and PROMOTION remains pervasive, it often goes completely undetected or unchallenged because (a) few trial lawyers have the patience, wherewithal, or social conscience necessary for successful private prosecution; and (b) savvy employers allocate resources based on risk exposure–i.e., TERMINATION decisions.

Our national EEO focus on termination decisions, however, has also caused a shift in how employees perceive EMPLOYMENT generally, shifting the workforce from an OPPORTUNITY mindset to one of ENTITLEMENT: i.e., You can’t fire me! You owe me a job no matter how incompetently I perform it. Quarterly Gallup polls reveal that over 70% of the American workforce is “disengaged” (i.e., “checked out”) at work–e.g., disinterested, disloyal, disenchanted like Peter Gibbons from Office Space.

HR practitioners and workplace analysts have known for decades that disengaged employees are most likely to commit “job abuse”–e.g., chronic absenteeism, missed deadlines, poor work product or output. Disengaged employees do not treat work like an opportunity, but rather an entitlement. They could care less about advancing their employers’ business objectives or even being good at their jobs. Likewise, they could care less about the impact of half-assed performance on others, such as students, patients, customers or clients. On the contrary, chronically disengaged employees chronically under-perform, while demanding that employers tailor their positions to their unique personal circumstances on and off the job. Disengagement and entitlement, I am convinced, also form part of a constellation of behaviors that are predictive of who will sue if terminated.

The numbers are difficult to reconcile: 70% of employees are “disengaged” at work, yet 75% of EEOC charges now involve termination decisions, not HIRING or PROMOTION ones. Worse, the pool of available jobs is SHRINKING, given that technology has steadily replaced jobs quicker than it has created them. MIT professors Andrew McAfee and Erik Brynjolfsson observed in their revolutionary work, The Second Machine Age, “as technology races ahead, it may leave a lot of people, organizations and institutions behind.” And no doubt, unless we figure out how to deliver on Title VII’s promise of equal employment opportunity, the people that technology will first leave behind are those concentrated in Administrative Support, Operatives and Laborers/Helpers–to wit, Women, African-Americans, and Latinos.

The Road Ahead

Over the past few years, members of the National Trial Lawyers Association (NTLA) and National Employment Lawyers Association (NELA)–i.e., the chief architects and beneficiaries of CRA 1991–have called me “racist,” “unenlightened” and even “immature” and “anti-Islamic” for questioning the efficacy of this statutory scheme. But their attacks reveal their underlying intent: if they truly cared about advancing EEO as much as the financial windfall that CRA 1991 generates for themselves, they would echo my concerns about whether this enforcement model has worked, to any degree.

NTLA and NELA have convinced advocacy groups and the EEOC, however, that LITIGATION promotes inclusion and diversity or stated another way, that the ability to sue employers somehow equates with greater opportunity and inclusiveness. Yet, after 25 years of CRA 1991 “enforcement,” NTLA and NELA attorneys have demonstrated that rather than solve the social problem of inequitable economic opportunity, they have simply found a way to make money on it.

NTLA and NELA attorneys also commonly retort: this is the only enforcement model we have; only racists would seek to deconstruct it! In truth, this enforcement model is all we have because of their powerful lobbying and disingenuous marketing (i.e., “we’ll fight for you!”). But, public policy choices ABOUND for advancing the march toward EEO, from tax incentives like the Work Opportunity Tax Credit (WOTC) to internal management development and resource integration programs. Read more HERE.

Further, research continues to reinforce the strong correlation between diverse/inclusive workplaces and decision-making AND higher profits, better access to top talent, enhanced community reputation, and improved group synergy/creativity. More HERE. As this BUSINESS CASE for diversity/inclusiveness comes into sharper focus, our efforts to advance EEO should concentrate on collaborating WITH employers, not declaring war AGAINST them. With rapid technological advancement, businesses are increasingly questioning the value of hiring HUMANS entirely; after all, technology may malfunction, but it cannot sue.

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

April 14, 2016