Change Offers Clarity: EEO in Trump’s America

After my stint at the EEOC (1997-2000), I vowed that I would not take on another employee-side case. I had many reasons, but the main one was this: the emotional aspects of employee-side litigation are simply harder and the stakes are higher. After losing their jobs, many people’s lives implode. Financial insecurity creates new pressures, testing even the strongest relationships. They lose their homes. The constant “wound-opening” of litigation renews their rage with each deadline. For an “empath” with a competitive streak, the pressure is palpable, even painful sometimes. Sure, discrimination allegations also cut employers (e.g., HR folks, managers) deeply, but usually without risking their personal welfare and faith in fairness. And so, I’ve spent the better part of 17 years working with EMPLOYERS and HR professionals, helping to prevent bad employment decisions before they happen, “shutting down” bad litigation risks quickly, and fighting vigorously only when making an important point–e.g., EEOC v. Picture People.  

But the election of Donald J. Trump changed everything.  After the election, it became obvious that an era of tolerance and civil rights evolution that I’d taken for granted was over.  My daughter’s elementary school–which proudly hosts a Newcomer program for newly settled immigrants and refugees–became the target of hate graffiti by Westside “Deutches Jungvolk” (Hitler Youth) a few days later.

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We were not alone. The Southern Poverty Law Center has reported that hate groups and hate crimes have skyrocketed since the election. And, as an old social worker, I know that where there is violence, there is FIRST discrimination. Employees most vulnerable to violence (e.g., LGBT, immigrant, women, religious and ethnic minorities) experience the GENERATIONAL economic violence of inequitable employment opportunities and its stagnating effect on social mobility. Thus, I expected some uptick in workplace discrimination and harassment complaints, but I was not prepared for the volume in calls for help that I would receive through my website and Facebook, especially from my LGBT friends.

The Trump administration’s employment policy oscillates 180 degrees away from Obama’s sometimes overly pro-employee positions. Trump has literally gutted the budgets of the Department of Labor, the NLRB, and coming soon, the EEOC.  He’s pillaged the budgets of other important programs like Meals on Wheels, Head Start, and Energy Assistance for low income seniors. By design, employers should flourish under Trump’s policies, with limited (if any) governmental enforcement of the rules requiring OVERTIME, a minimum wage, non-discrimination in federal contracts, family leave protections, etc. With Trump on employers’ side and with the deliberate evisceration of federal enforcement programs, employers do NOT need me anymore.

And, if they do need me, I’m happy to help via WorkplaceTrainingHub.com, which offers a customized and cost-effective online training solution for employers. Unlike most legal compliance training, the Hub draws on other disciplines (e.g., psychology, law enforcement) to offer programming that is uniquely effective for adult learners like managers.  It’s cool stuff.

Plug aside, extraordinary times call for extraordinary adaptations. It’s time to step up. It’s time to help. It’s time to fill in the gaps left by pithy and anemic, if any, future federal enforcement.  And so, after the election, I started hand-picking cases to prosecute on behalf of EMPLOYEES. But before anyone accuses me of TREASON again (I faced this allegation when I left the EEOC to work with employers in 2000), EEO Legal Solutions has NOT morphed into a plaintiff-side personal injury type of firm.  After all, I have been extremely critical of personal injury lawyers who entered the employment law field after passage of the Civil Rights Act of 1991 (CRA 1991) over 25 years ago. Because of their focus on financial gain, they have laser-focused on cases that yield greater damages, especially TERMINATION cases involving high wage-earners. As a result, data demonstrates that the great March for Jobs and Freedom that started in August, 1963 has largely stalled for the people that Title VII was most intended to help (e.g., African-Americans, women, Latinos/as), based on several metrics of progress and workplace inclusiveness. Since CRA 1991, employee-side lawyers have prosecuted the wrong cases for the wrong reasons.

Thus, EEO Legal Solutions is actively seeking employee-side cases that focus on:

  • LGBTQ Workplace Rights and Protections: since the election, there’s been an upsurge in discrimination against LGBTQ employees. We’re prosecuting an LGBTQ discrimination matter that shows, unfortunately, how vulnerable even top-performing LGBTQ employees are to termination after the introduction of a bigot into their supervisory chain. Likewise, discrimination against transitioning and transgender employees remains rampant.  If the government cannot (or will not) put a stop to it, then we must get out our “litigation” and “advocacy” tools.
  •  HIRING Discrimination Against Women, Racial/Ethnic/Religious Minorities, LGBTQ Employees:  most plaintiff-side lawyers shy away from HIRING cases because . . . well, they’re much harder and far less lucrative.  Hiring cases are harder because in a typical “cohort analysis” (i.e., comparing the rejected employee to the selected employee), courts are deferential to the employer’s judgment regarding which candidate was “better.” Likewise, in discriminatory hiring cases, employees often quickly land comparable employment elsewhere, thereby reducing their monetary and psychological damages. Thus, in FY2015, only 8% of the EEOC’s charge intake involved HIRING matters; over 75% of charges filed involved TERMINATION decisions.

But, if we’re going to “move the needle” re the economic mobility of women and racial, ethnic, gender, and LGBTQ “minorites,” we need to return our attention to HIRING matters.  And with a little know-how, HIRING cases are not that complicated.  In fact, while at Biglaw, I defended several large multinational corporations in EEOC systemic and directed investigations involving alleged hiring “selection barriers.” Moreover, I teach a popular course on how to use adverse impact calculators to analyze HIRING data.  I love this geeky math stuff, and it’s time to put that quirky passion to good use.

I fear that workplace horror stories are only starting, given (a) the severe budgetary cuts to federal enforcement agencies and (b) how emboldened President Trump’s base has become in expressing anti-LGBTQ, anti-immigrant, anti-Semitic, and racist ideas.  As these stories find their way to you, please keep in mind that I’m here to help if I can.

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

(303) 248-3769 (office)

archerm@eeolegalsolutions.com

 

Three Short Stories about “Harassment”

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:

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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:

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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:

Jan Brady

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:

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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. FAE#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.

Elizabeth-Warren

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.

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“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!

shutterstock_423915988On 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. MorganIndeed, 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.

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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.

shutterstock_83361721Inadequate 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.

workplacesnotworkingFew 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

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.

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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, Confirmationthe 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

People Thomas Hill

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 WorkplaceIn 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.  Intake

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.

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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

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.  

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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.

No Irish, no blacks no dogsonly native born americans need applyNo Italians, Blackswhites only

Men wanted

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.

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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.

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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?

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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.

IntakeWHY?  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.

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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.

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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.

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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

Numbers EEOC Hopes You Won’t Notice

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On February 11, 2016, EEOC released composite charge data from fiscal year 2015, which ended on September 30, 2015.  And not surprisingly, the EEOC emphasized certain data points while completely burying other important (even helpful) facts about its charge intake.

As a matter of math, EEOC prosecutes less than .1% of the charges filed.  Accordingly, and contrary to EEOC propaganda, the likelihood that any employer will deal intimately with the EEOC (i.e., beyond filing a Position Statement or participating in an EEOC mediation) is exceedingly low.  The overwhelming bulk of Equal Employment Opportunity (EEO) enforcement, therefore, comes in the form of PRIVATE litigation, filed pursuant to the Civil Rights Act of 1991 (CRA 1991).  Much more on that topic later.

Before any employee can initiate a private lawsuit in state or federal court, he must first file a Charge of Discrimination within 300 days with the EEOC or its state counterparts (FEPA’s in EEOC-speak). Failure to file charge, or otherwise exhaust “administrative remedies,” is fatal to discrimination litigation.  Because of this critical jurisdictional prerequisite to litigation, the EEOC’s charge intake data provides the best barometer of how employers are experiencing our EEO enforcement scheme (i.e., private litigation) on the ground.  Thus, a more holistic, panoramic view of the EEOC’s charge intake data (e.g., what data EEOC highlights and what data it obscures) provides valuable insights into (a) how the EEOC thinks; and (b) the state of EEO enforcement, particularly private litigation, in the American workplace.

Data EEOC Highlights

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In its press release, the EEOC underscored the “metric that matters” at the EEOC–i.e., M-O-N-E-Y.  The EEOC touted the number of charges “resolved” (92,641) and the amount of employer dollars collected on behalf of “victims” ($525 million) of discrimination. Chair Jenny Yang, a plaintiff-side lawyer from California, claimed that

we demonstrated our strong commitment to working with employers to voluntarily resolve charges of discrimination by achieving the highest mediation and conciliation success rates in our history.

Not even close.  EEOC “resolutions” and employer settlement payouts make terrible proxies for progress toward equal employment opportunity, especially given the suffocating cost of defense on employers.  Allegations of discrimination, harassment, and retaliation are extremely difficult to prove, but extremely easy to allege.  And the allegation itself causes employers to incur upwards of $70,000 in non-recoverable legal bills to prove they did nothing wrong in the first place.

The EEOC not only appreciates employers’ cost-of-defense conundrum, its personnel actively exploit it.  From 2013 – 2014, EEO Legal Solutions conducted a national survey of employers’ experience in the EEOC’s mediation program.  Nearly 800 mediation participants representing Respondents (e.g., HR practitioners, employment lawyers, and EPL adjusters) took the survey, the first of its kind to peer beneath the surface of carefully-guarded, selectively-invoked confidentiality and “government deliberative process” privilege.

The results show that the EEOC has now re-calibrated its entire enforcement machinery to churn out quick cost-of-defense settlements.  Over 82% reported that EEOC mediators hammered cost-of-defense when recommending settlement, regardless of charge merit. Worse, participants reported that EEOC mediators then disingenuously brandished EEOC enforcement weaponry to bully them into settlement, threatening “reasonable cause” determinations (73%), systemic investigations (61%) and even EEOC prosecution (70%) if not “resolved” in mediation. Learn more HERE.  Given the amount of bullying employers experience in the EEOC’s ostensibly neutral mediation program, we urged our courts to exercise some oversight of the EEOC’s conciliation process, an EEOC precondition to prosecution, HERE.   At the EEOC, employers walk into a cost-of-defense conversation (i.e., “it will cost $70K to prove you did nothing wrong, but you can pay $35K to just make the charge go away for good“), even when the allegations themselves are provably unfounded.

Thus, the EEOC’s emphasis on employer “resolutions” and monetary payouts for “victims” of retaliation, harassment, and discrimination raises questions about whether, as a law enforcement agency, it can (or even tries to) distinguish between ALLEGATIONS and ACTUALITY.  Under EEOC logic, the fact that an employer paid some money transforms Accusers into “Victims” that the EEOC has “helped” by securing monetary settlements. And although this enforcement model works wonderfully well for trial lawyers who take 33% to 40% of these “resolutions,” EEOC and Bureau of Labor Statistics (BLS) data show that this scheme has failed to level the playing field in HIRING and PROMOTION for African-Americans, Latinos, and women.  Learn more HERE.

Data EEOC Downplays

The EEOC’s press release neglects to mention other numbers that depict more accurately the EEO enforcement landscape.

  • Reasonable Cause/No Reasonable Cause Determinations

According to EEOC data, the EEOC issued Determinations of Reasonable Cause–i.e., the formal agency finding of a violation and a condition precedent to prosecution–in 3.5% of charges and “No Reasonable Cause” in 65.2% of charges, as depicted below.

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This low rate of finding “Reasonable Cause” to believe discrimination, harassment, or retaliation has occurred casts considerable doubt upon the alleged 92,641 “Victims” for whom EEOC obtained $525 million in “relief.”  Certainly, a Reasonable Cause determination rate of 3.5%–juxtaposed against steady No Reasonable Cause determination rates of 66% or 2/3 of all charges–belies the EEOC’s campaign to characterize all Accusers as Victims and all employers as perpetrators of discrimination, harassment, and of course, retaliation. On the contrary, the EEOC’s own data demonstrates that workplace discrimination occurs far more rarely than alleged. Employers, however, pay anyway.

  • Employment Practices Yielding EEOC Charges

Reasonable employers may inquire, “What kinds of employer practices generate the most EEOC charges?”  This information, after all, could help employers address specific problems and risks associated with EEOC charges.  But in its press release, EEOC Chair Jenny Yang simply stated

Over the past year, EEOC removed barriers to hire and obtained relief for thousands of people facing retaliation, unfair pay, harassment, and other forms of discrimination.

This statement is both grammatically and factually problematic.  Although the EEOC touts its National Enforcement Plan (NEP), its ad hoc task forces, and its interpretive enforcement guidance, these efforts have little impact on employers compared to the steady swell of private litigation. Indeed, in the real world of EEO enforcement (i.e., private litigation), very few charges involve HIRING, PROMOTION, and UNFAIR PAY. Post-CRA 1991, the overwhelming majority of workplace EEO disputes (76%) deal with TERMINATION decisions.

* “Discharge” includes “constructive discharge” allegations, in which an employee voluntarily quits but blames the employer for creating an intolerable work environment.

Why this overwhelming emphasis on employer TERMINATION decisions? For trial lawyers, TERMINATION cases yield higher settlement payouts than HIRING and PROMOTION cases. Unlike a hiring context with limited employer/accuser contact, termination cases enable trial lawyers to pile on numerous perceived violations throughout the employment relationship (e.g., discrimination, harassment, retaliation), including weird ones referenced in the EEOC’s “Statutes by Issue” data—e.g., “Filing EEO Forms,” “Intimidation”, “Seniority” and “Severance Pay Denied,” HERE.  Further, terminated employees have a tougher time find comparable employment, especially when, due to incremental cost of living adjustments, their wages exceed the market value of their labor; thus, long periods of unemployment and income differentials rack up big damages. By contrast, in HIRING cases, employees find comparable employment far more quickly, thereby reducing damages and rendering their cause far less attractive to trial lawyers.

Since CRA 1991, trial lawyers’ pecuniary interests have distorted our national dialog about equal employment opportunity, shifting employers’ focus AWAY from ensuring equal opportunity in HIRING and PROMOTION TOWARD ensuring that their TERMINATION decisions are legally defensible.  On the ground, termination decisions pose Code Red Risk, whereas from an enforcement and compliance perspective, other kinds of employment decisions (even discriminatory HIRING and PROMOTION ones) pose little risk of detection or prosecution. Likewise, employers also find this enforcement focus on TERMINATIONS particularly frustrating, especially in light of a recent Gallup report that validated many employers’ observations: nearly 2/3 of American workers are “disengaged,” a third of which are “actively disengaged” (i.e., “checked out,” unproductive, aggressively disloyal).  HERE.  For employers, termination decisions involve an employee’s squandering of an opportunity that they actually provided.

And the results of CRA 1991’s scheme speak volumes.  Discrimination in HIRING and PROMOTION against African-Americans, Latinos, and women remains rampant, based on both EEO-1 and BLS data. In 2015, the EEOC published its “50th Anniversary Report on the American Workplace,” citing results that largely mirrored the findings of Dan Kuang, PhD of Biddle Consulting Group issued more than two years earlier:

  • Advancement: Women, African-Americans and Latinos have made little progress toward achieving top-paying Official/Manager and Professional jobs, whereas Asian Americans show significant gains in reaching both Professional and Official/Manager ranks; and,
  • Job Segregation: African-Americans and Latinos remain concentrated in lower paying Service, Technician, and Operative jobs, whereas Asian Americans and Whites still predominate in Official/Manager and Professional job classifications.

These findings line up squarely with BLS data: quarterly unemployment reports consistently show that unemployment hits the African-American and Latino communities the hardest, that African-Americans and Latinos continue to make less than their White and Asian American counterparts, that women continue to exit the workforce at a rate disproportionate to male peers, etc., etc.  More HERE.

Looking Back, Looking Ahead: The March from Here

These statistical realities should cause alarm.  First, the slow pace of progress toward achieving equal employment opportunity in top jobs, toward ending rampant “job segregation,” and toward dismantling the glass ceiling in the Official/Manager ranks should make civil rights advocates question the efficacy of our EEO enforcement model–i.e., 99% private litigation and 1% anemic EEOC “enforcement.” Indeed, both EEOC and BLS data show that although employers are spending record amounts of money on EEO enforcement, Title VII’s underlying mission of removing barriers in HIRING and PROMOTION remains more elusive than ever.  Unfortunately, these advocates have apparently forgotten what sparked the great March over 50 years ago and the passage of Title VII: to level the economic playing field for the generations marching behind us. Instead, CRA 1991 perfected a wealth redistribution loop between employers, insurance carriers, and lawyers where nothing much changes except money changing hands.  And trial lawyers like EEOC Chair Jenny Yang and her ilk at the National Employment Lawyers Association (NELA) like it that way: M-O-N-E-Y.

Unless and until we change our national dialog about equal employment opportunity and how to achieve it in HIRING and PROMOTION, African-Americans, Latinos, and women will face even greater future challenges breaking through glass ceilings and historic job segregation barriers.  The kinds of jobs in which African-Americans, Latinos, and women are currently concentrated are MOST vulnerable to technological replacement–e.g., Service, Technician, and Operative jobs, in EEO-1 speak.  According to Professors Andrew McAfee and Erik Brynjolfsson of MIT’s Sloan School of Management in their work, How Technology is Destroying Jobs and The Second Machine Age, advances in technology account for sluggish job growth over the past 10 to 15 years. These MIT academics also forecast dismal job prospects, as employers increasingly adopt new technologies to reduce headcount, “not only in manufacturing, clerical, and retail work but [also] in professions such as law, financial services, education, and medicine.” In other words, because of technology, the pool of available jobs (i.e., the Opportunity Pie) is shrinking, which means we must remain even more vigilant to ensure that impact and economic opportunity are evenly distributed.

For employers, however, the choice between TECHNOLOGY and HUMANS is pretty easy: after all, technology may FAIL, but it certainly cannot SUE.  Few employers that I’ve represented over a 16-year litigation defense career ever complained about governmental regulation, even in heavily regulated industries (e.g., trucking, health care, pharmaceutical manufacturing).  By contrast, many employers have likened private EEO litigation (and the EEOC’s ADR/mediation program) to “extortion”–i.e., leveraging the cost of disproving allegations, even ridiculous ones, for pecuniary gain.  For businesses, technology  (just like off-shoring) provides the workaround–namely, a foreseeable market response to the high cost and legal risk of hiring humans.  Ultimately, time and longitudinal data will continue to show CRA 1991’s litigation-based model (ostensibly designed to help “victims” of discrimination) only further divided HAVE’s and HAVE NOT’s along color and gender lines.

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

February 24, 2016

Defensive Management: Getting the Message to Managers (Where It Matters Most)

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As a longtime regular on the HR speaker’s circuit, I have often had this nagging suspicion that I’m just preaching to the choir about EEO compliance.  Of course, today’s HR professionals need to know about the latest scary lawsuits, legislation, regulation, and EEOC enforcement guidance.  But increasingly over these past 15 years, as I would look out into audiences of HR professionals, I would catch myself thinking,

These HR folks get it.  Better yet, they’re striving to fulfill the promise of EEO on the ground, where it matters most.  You’re preaching to the choir!  Is this really who the EEOC is “fighting?”

When it comes to EEO, HR professionals more closely resemble acolytes, rather than adversaries.  Even so, discrimination litigation virtually always plays out like old spaghetti Westerns or silent movies, replete with hapless victims (played by the Employee), evil villains (played by Managers), and inept or corrupt sheriffs who refused to enforce “the law” (played by HR professionals).

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In this victim/villain view of workplace discrimination disputes, regular line managers play leading roles in creating liability for the overall organization and/or for themselves individually, often carrying out their villainous deeds beyond the reach or with the cooperation of the sheriff (i.e., HR).  After all, in organizations with centralized HR and decentralized operations, HR simply cannot police every potentially problematic personnel interaction or monitor every manager.  In most discrimination lawsuits, the “bad stuff” of EEOC’s charges and employee lawsuits really does happen BEFORE the sheriff (i.e., HR) can restore law and order.

And so, with all this preaching-to-the-choir, I began to wonder whether (and how) the EEO compliance message reached these potential villains in the workplace trenches.  When handing managers the keys to the executive restrooms, do we tell them that their acts and omissions vis-à-vis subordinates could result in corporate and individual liability? Do we explain HR’s essential risk management role—namely, to spare managers the dehumanizing, expensive, and soul-crushing experience of playing “the villain” in employment litigation?  Do we help them spot employee issues that require automatic escalation to HR? After all, line managers are HR’s “eyes” and “ears.”  Have we co-opted line managers into the overall compliance process, actively enlisting their support to reduce organizational risk?  Have we explained HR’s and in-house counsel’s obsession with documentation and processes in an accessible way that makes sense?  Have we made “the law” simple enough to follow during the press of everyday business?

When delivering “Defensive Management” to HR professionals and in-house employment counsel, their sheepish grins actually answer those questions.  Most organizations report a disconnection between in-house counsel, HR and managers, as though each were operating in silos without a shared sense of endgame.  This disconnect may also help explain why, despite record workplace regulation and employee litigation, the EEOC continues to take in nearly 100,000 new charges each year while progress toward leveling racial and gender disparities in unemployment, advancement, and wealth distribution has stalled. Learn more here.  Our litigation-based methods to reduce discrimination charges and promote equal opportunity have not proven particularly effective.  And one potential “fix,” among many others, will involve renewed focus on fully educating managers about organizational commitment to EEO and their important role in advancing it, as well as in reducing the risk of EEO disputes.

EEOC Conciliation Bullying Necessitates Judicial Oversight

Conciliation in the Bewitching Season

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September ushers in the most bewitching season at the EEOC, when EEOC Field personnel scurry to settle long-dormant charges, issue cause determinations, and breeze through the “conciliation” process to file lawsuits before the federal fiscal year ends on September 30.  See Figure 1.  For EEOC Field personnel, equal employment opportunity (EEO) enforcement is a “numbers game,” and September marks a final push to satisfy predetermined “productivity” quotas—e.g., dollars collected from employers, number of cause determinations, inventory reduction, and prosecutions filed.  Fellow EEOC watchdogs have long noted, and bemoaned, the EEOC’s “red zone rush.”  This annual administrative enforcement blitz deeply impacts employers, but takes place under a carefully guarded iron veil of “confidentiality” and “government deliberative process” privilege.

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Figure 1, EEOC Prosecutions Filed in 2013, by month.  Compiled/created by Seyfarth Shaw.

Fortunately, the EEOC’s conciliation conduct has recently come under fire just in time for this year’s September “red zone rush.”  In May, 2014, a congressional appropriations committee chastised the EEOC for pursuing litigation absent good faith conciliation efforts, and demanded a report by August 9, 2014 that the EEOC has not publicly disclosed.  Likewise, the U.S. Supreme Court (SCOTUS) granted certiorari in EEOC v. Mach Mining on the questions whether, and to what extent, courts can enforce the EEOC’s statutory duty to engage in good faith conciliation efforts before initiating litigation.  On September 4, 2014, Mach Mining’s attorneys filed their opening brief, affording us a rare glimpse under the EEOC’s iron curtain of confidentiality and deliberative process privilege.  The conciliation process described in Mach Mining’s brief mirrors the experiences of defense attorneys who regularly battle the EEOC, and underscores the concerns we raised in Under the Surface of EEOC Enforcement:  instead of a meaningful opportunity to discuss compliance issues and “make whole” relief, the EEOC’s conciliation process has degenerated into a perfunctory street mugging in which EEOC field personnel bluff, bluster and bully to maximize cost-of-defense payouts . . . especially at this bewitching and spooky time of year.  After all, for the past several years, MONEY has become the metric-that-matters at the EEOC—to wit, the measurement the EEOC characterizes as evidence of “enforcing the law more effectively.

The Mach Mining Conciliation Experience: Bluffing and Bullying

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In early 2008, Mach Mining became the respondent of a single EEOC charge alleging that it failed to hire the Charging Party because of her gender.  Thereafter, the EEOC issued a Determination that Mach Mining had discriminated against the Charging Party, and a class of female applicants, because of their gender, in violation of Title VII; otherwise, the determination contained no information about the factual basis allegedly supporting this finding, nor any information whatsoever about the size, character, and temporal scope of this class of female applicants.  The EEOC then made a verbal conciliation demand . . . And then, the EEOC lowered its iron curtain of confidentiality around the conciliation process, even threatening to seek sanctions against defense counsel personally if they discussed the conciliation process in the public record.  p. 5, fn 3, Mach Mining SCOTUS Brief, here.  Just a few days after issuing a conciliation failure notice, the EEOC initiated a civil prosecution and a press release with inflammatory quotes from EEOC attorneys, “Mach Mining needs to realize that this is 2011, not 1911.”

In my Biglaw gigs, I naturally became the repository of “EEOC Parade of Horrors” stories from colleagues across the country, likely because of my own EEOC service (1997-2000), experience, and practice expertise.  Thus, experience, observation, and war-story saturation allow me to fill in some blanks about the Mach Mining conciliation:

Mach Mining’s attorneys likely requested the EEOC to furnish some information about the character, size, and temporal scope of the putative class, the identity of class members, and the basis of the determination.  And of course, these are absolutely reasonable questions.  On whose behalf, or on behalf of how many class members, is the EEOC seeking relief?  What if the employer has defenses available regarding specifically identified class members?  Did the EEOC rely on the employee’s attorney to “estimate” damages or did the EEOC conduct any independent investigation into the alleged damages supporting its demand?  If the EEOC is really concerned about eliminating discriminatory practices, why will not the investigators and Trial Attorneys actually discuss in conciliation the specific practices that were, allegedly, discriminatory?

Still even bigger questions remain: what if EEOC personnel are bluffing about the actual scope of the EEOC’s investigation and putative class to maximize the conciliation payout?  After all, as we’ve previously and publicly pointed out, what the EEOC counts as an “investigation” and as evidence to support a reasonable cause determination is often alarmingly thin.   And, as our EEOC mediation survey revealed, EEOC personnel routinely brandish EEOC enforcement weaponry (e.g., cause determinations, systemic investigations, prosecutions) to boost cost-of-defense payouts, even though they certainly know how unlikely those enforcement outcomes are under the EEOC’s own Priority Charge Handling Procedures.  Learn more here.  Further, the EEOC’s policy of suppressing losses, sanctions, censures, and other unflattering (but real) information about its enforcement programs has only further squandered employers’ trust.

After Mach Mining’s attorneys likely posed these reasonable questions, I’m betting that the EEOC steadfastly refused to provide any information, maybe even blaming the EEOC’s confidentiality provisions for its intractability.  At that point, the conciliation process probably broke down completely, resulting in the prosecution and press release filed just days later.  We have previously challenged the EEOC’s policy of filing brand-bashing, snide press releases based on allegations in the Complaint as amounting to punishment before proof, given the very real possibility that the EEOC cannot adduce evidence in litigation to support those allegations, here.  Mach Mining surely suffered brand damage, still while literally guessing about the basis of the EEOC’s determination and the number of women allegedly affected by its allegedly unlawful practice.

Congress surely envisioned more substance in the EEOC’s conciliation process.  After all, the EEOC’s mandate requires it “eliminate unlawful employment practices through informal efforts of conference, conciliation and persuasion.”  42 U.S.C. §2000e-5(a).  Now however, litigation (or more pointedly, the THREAT of litigation) has become the EEOC’s most powerful weapon to ratchet up the one measurement that it counts as successful performance of its mandate: employer settlement payouts.  Threats of litigation begin in the mediation process, loom over charge “processing,” and take center stage in conciliation.  During this bewitching time of year, EEOC personnel deliberately truncate conciliation with “take-it-or-leave-it” and/or unreasonable demands, hoping conciliation will fail so that they can file (and get credit for) the lawsuit by the end of the fiscal year.  In fact, the EEOC credits the “close collaboration” between its Enforcement and Legal units for the record amount of employer settlement monies “obtained” in the conciliation process:

Of particular note was the increased number of charges resolved through successful conciliations, with 1,591 in FY 2012 compared with 1,351 in FY 2011, an 18 percent increase. The increase in conciliations reflects an emphasis on even closer consultation between the Commission’s investigators and attorneys.

FY2012 EEOC PAR, “Enforcing the Law More Effectively,” here. Indeed, last year, conciliation brought in far more employer booty than litigation for one simple reason: the threat of EEOC litigation generates more dollars than actual litigation in court, where the EEOC must actually PROVE its allegations and over-broad legal theories. See Figure 2.

Figure 2

EEOC Collections FY2013

Thus, especially during this bewitching time of year, EEOC conciliations resemble Mafioso shakedowns (i.e., “accede unquestioningly to our demands or we’ll sue AND punish you with bad press”) more than any meaningful effort to secure voluntary compliance and make whole relief.  Instead of using conciliation to FIX whatever problem the EEOC allegedly detected, the EEOC enflames the FIGHT through litigation.  And, unfortunately for stakeholders and employers alike, a recently released study by law professors at University of Michigan and Washington University in St. Louis raises seriously doubts about the efficacy of the EEOC’s litigation program toward eliminating discrimination and promoting EEO.

Conciliations: Confidentiality of Convenience

When Mach Mining challenged the EEOC’s compliance with its statutory requirement to engage in good faith conciliation efforts, the EEOC simply responded, “conciliation is not subject to judicial review.”  The EEOC also relied heavily on the confidentiality provisions built into Title VII, which prohibit disclosure of any charge information unless and until a [public] lawsuit is filed in court.  Indeed, Sections 706(b) and 709(e) of Title VII not only prohibit disclosure of any information about a charge unless/until a lawsuit is filed, these provisions also impose CRIMINAL PENALTIES on “any person” who discloses EEOC charge information; likewise, the EEOC’s own regulations echo this strict confidentiality requirement.  29 C.F.R. §1601.22, 29 C.F.R. §1601.26; see also 42 U.S.C. §§2000e-5(a), 8(e).  Presumably, EEOC Trial Attorneys invoked these strict confidentiality standards when threatening Mach Mining’s attorneys with sanctions if they publicly disclosed what actually happened in their EEOC conciliation.

Paradoxically, however, the EEOC issues press releases announcing “successful” conciliations.  During the pendency of the Mach Mining dispute, just two weeks earlier, the EEOC issued press release announcing the CONCILIATION of a single sexual harassment charge against a small employer, with this headline, “Sal’s Mexican Restaurant Settles EEOC Sexual Harassment Charge Involving a Teenager.”  Sal’s denied all liability, but reportedly agreed to pay $15K to resolve these allegations in an ostensibly confidential conciliation.  To seasoned defense attorneys, $15K represents a true nuisance settlement.  Nevertheless, according to the EEOC’s press release, the EEOC had determined that a manager subjected a teenager to sexual propositions, advances, and groping, allegations that would naturally have an impact on Sal’s brand, goodwill, reputation and by extension, business.

No doubt, the EEOC’s position regarding the confidentiality of the conciliation process is difficult to reconcile.  The EEOC can apparently ignore Title VII’s confidentiality provisions and its own regulations to publicize charge allegations and the substance of the conciliation agreement involving a small employer like Sal’s Mexican Restaurant (i.e., “brand bashing”).  When called upon to explain the basis of its determination and astronomical conciliation demands, however, the EEOC takes cover behind these same confidentiality provisions.  This obvious contradiction highlights just how the Obama EEOC has “interpretively” and selectively enforced its own statutes and regulations, acting more like schoolyard bullies than a neutral law enforcement agency worthy of employers’ trust.

The Stakes for the EEOC and Employers

Whenever employers attempt to peek behind the EEOC’s iron curtain of confidentiality and government deliberative process privilege, the EEOC becomes predictably prickly.  But why?  Perhaps the EEOC does not want employers and stakeholders to see what lies behind the curtain.

In EEOC v. Picture People, for example, we attempted to ascertain what evidence (if any) the EEOC possessed to determine that a profoundly deaf/mute woman was “qualified” to perform a retail sales position requiring “strong verbal communication skills.”  The EEOC strenuously resisted our 30(b)(6) deposition notice, making nearly identical arguments to those in Mach Mining: (1) EEOC investigations are not subject to judicial review; and (2) statutory confidentiality prohibits disclosure.  Ultimately, the court rewarded our tenacity by requiring the EEOC first to answer “contention interrogatories” regarding evidence in its possession that the Charging Party was “qualified” when the EEOC issued its determination, filed its Complaint, and disseminated its brand-bashing press release.  The EEOC produced this document, which should embarrass the EEOC and alarm employers.  But the point is, once we peeked behind the EEOC’s iron veil, we understood why the EEOC so strenuously resisted disclosure:  it was attempting to conceal a shoddy investigation, a highly questionable determination, and a blatant disregard for the employer prerogatives deliberately built into the Americans with Disabilities Act (ADA).

Similar considerations could explain the EEOC’s position in Mach Mining.  EEOC Trial Attorneys, after all, have come out swinging.  In Mach Mining, EEOC Trial Attorneys threatened defense counsel with sanctions if he disclosed what actually happened in conciliation, supra.  Another even claimed that Mach Mining’s challenge to its statutory conciliation requirement is just an excuse for defense attorneys to rack up billable hours, here.   Of course, this allegation makes little sense: if Mach Mining’s defense attorneys were fundamentally focused on racking up billable hours, they would not strive to resolve the allegations in conciliation; obviously, from a “billable-hours perspective,” lengthy EEOC prosecutions, even frivolous ones, can cost employers several hundred thousands of dollars in non-recoverable defense fees.

For the EEOC, the Mach Mining matter is about avoiding judicial and legislative scrutiny–i.e., “it’s discrimination if we say so.” For employers, however, Mach Mining is about leaving open an avenue of redress (i.e., the courts) to challenge abusive administrative enforcement of the law. After all, more often than not, disputes about the adequacy of the EEOC’s conciliation efforts can be efficiently and effectively resolved at the pleading phase of litigation under Rule 12 of the Federal Rules of Civil Procedure.  Upon a 12(b) Motion to Dismiss for, inter alia, lack of subject matter jurisdiction arising out of the EEOC’s failure to fulfill its administrative conditions precedent, a federal judge could simply stay the proceedings and REMAND for further (and perhaps supervised) conciliation efforts.  If the EEOC is forced to conciliate in good faith (e.g., by substantiating its monetary demands, providing pertinent risk assessment information, participating in more than one round of negotiations), most employers will elect to settle, if for no other reason than to avoid the crushing expense of an EEOC prosecution.  Under most circumstances, therefore, challenges to the EEOC’s fulfillment of its conditions precedent will ultimately spare limited judicial resources, while furthering the EEOC’s mandate to enforce Title VII through informal methods of conciliation, conference and persuasion.

As employers and small business owners, any governmental effort to resist transparency and scrutiny cannot go unchallenged, even if we agree with the EEOC’s underlying mission.  In fact, the EEOC’s strenuous efforts to resist judicial review of its compliance with Title VII’s minimal procedural safeguards ought to INVITE SCRUTINY.  As a federal law enforcement agency entrusted with investigative powers, public war-chests, and prosecutorial discretion, the EEOC owes concomitant duties of fairness, balance, and regard for the concerns of employers.  Under this iron veil of confidentiality and government deliberative process privilege lurk some extremely disturbing and unbalanced civil enforcement practices.  We can only hope that SCOTUS’ Mach Mining decision will stand for governmental transparency and accountability, and leave open an avenue to challenge EEOC bullying, especially at this most bewitching time of year.

Merrily S. Archer, Esq., M.S.W., September 10, 2014

 

Recording Available: Tech Solutions to EEOC Pregnancy Accommodation Problems

When: 09-24-2014 | 12:00 p.m. (Mountain)

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In July, 2014, the EEOC issued new enforcement guidance on “pregnancy and related discrimination,” which creates additional accommodation obligations for employers.  Perhaps for that reason, numerous Biglaw outfits have publicly challenged the EEOC’s guidance as, among others, exceeding its statutory mandate, lacking statutory basis and contradicting the majority of judicial circuits to consider these issues.  Unfortunately, HR practitioners are stuck in the middle, struggling to reconcile and administer competing legal views in everyday leave, hiring, termination, and reasonable accommodation decisions.

This webinar will candidly address the EEOC’s new enforcement guidance, pointing out where the EEOC’s “interpretation” oversteps actual judicial precedent and agency authority.  More importantly, however, we will also offer practical solutions about how to ensure accountability and enforce performance standards while accommodating pregnancy and related conditions in the workplace.   With a legally conservative, creative, and technologically-based approach, the EEOC’s new guidance on pregnancy discrimination—extrajudicial as it may be—need not undermine operations and performance objectives.

Listen in here!

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The EEOC’s Litigation Program: Bureaucracy, NOT Real Reform

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While Congress and the Supreme Court mull over the adequacy of the EEOC’s pre-litigation conciliation efforts, a more fundamental question remains: has the EEOC’s litigation program accomplished any meaningful reform of the workplace?  A recently released longitudinal study by law professors at Washington University in St. Louis and University of Michigan raises serious doubts.

The Tiger Remains Toothless

In 1972, Congress modified Title VII of the Civil Rights Act of 1964 (“Title VII”) to give the U.S. Equal Employment Opportunity Commission (“EEOC”) the authority to initiate civil prosecutions against private employers under its jurisdiction. Without prosecutorial authority, civil rights advocates then argued, Title VII and the EEOC were nothing more than “toothless tigers,” unable to effectuate real reform of the American workplace.  According to the EEOC, the 1972 Act gave “teeth” to the “tiger,” ushering in a “new era” of vigorous law enforcement that saw “legal protections extended to millions of persons, and the elimination of many discriminatory practices.”

Pretty lofty representations . . . but what’s real?

On July 2, 2014, Title VII just passed its 50-year mile marker in the March toward equal employment opportunity (“EEO”).  Likewise, for the past 42 years, the EEOC has wielded prosecutorial discretion.  And, when we measure what matters, the results speak for themselves.  Based on several reliable indicators of our progress (e.g., unemployment, advancement, job segregation, household income, international leadership, Gallup polling, EEOC charging data), the March has stalled for most of Title VII’s intended beneficiaries, particularly women, Latinos and African-Americans, more here.  Simply put, our methods for eliminating “many discriminatory practices,” extending legal protections to millions, and advancing EEO have not worked very well, and we strongly advocate for fundamental readjustments in how we think about and work towards these important goals.  Check out Eight (and Counting!) Sparks to Jumpstart the Stalled March to Equal Employment Opportunity.   In fact, since the 1972 Act and especially since the Civil Rights Act of 1991 (“CRA 1991”), a tremendous amount of money has changed hands litigating EEO disputes, but otherwise, very little else has changed to level the playing field for women, Latinos, and African-Americans.  .

In Search of a Public Interest Litigation Model to Explain EEOC Prosecutions

Recently, the EEOC Litigation Project—a project undertaken by two well-respected law professors at Washington University in St. Louis School of Law and University of Michigan School of Law—published the results of its longitudinal look at the EEOC’s prosecutorial behavior.  Pauline Kim (Washington University) and Margo Schlanger (Michigan) analyzed over 2,300 EEOC prosecutions from 1997 – 2006, a period that captures my own service as an EEOC Trial Attorney in Denver, 1997-2000.  Their analysis targeted EEOC prosecutions considered “class action” or “systemic,” explaining that such matters epitomize “public interest litigation”—i.e., litigation aimed at structural reform instead of monetary gain.  Further, as Kim and Schlanger noted, EEOC immunity from Rule 23’s class action certification requirements necessarily carves out special role for the EEOC in pursuing class-based and systemic litigation, a role they expect to increase in the aftermath of Wal-Mart v. Dukes.

In their review, Kim and Schlanger looked at the EEOC’s prosecutorial behavior through the lens of three accepted theoretical models of “public interest litigation” (e.g., gladiator, collaborative, and managerialist), attempting to discern some trends and lessons.

Gladiator” public interest litigation, they explained, resembles intense, hard-fought and high stakes fights for social justice that end in Consent Decrees to ensure remediation and future compliance.  Under this theoretical model, prosecutors—whether government, advocacy groups, private attorneys—attempt to vindicate not only the rights of individuals, but also effectuate workplace reform for the benefit of incumbent employees, future applicants and “society as a whole.”  After pouring over 2,300 EEOC prosecutions, however, these law professors found that the “gladiator model” simply did not fit:  during this period, the EEOC pursued comparatively “low stakes” cases that ended in negotiated settlements without a single substantive motion filed.  Likewise, many of these matters concluded with Consent Decrees of short duration that simply contained the EEOC’s tired trinity of “injunctive relief”—e.g., training, posting and reporting—instead of substantive rehabilitative requirements.

Collaboration” public interest litigation theories have garnered greater attention of the past decade, Kim and Schlanger note, particularly as a way to address “second generation discrimination” and institutional barriers to EEO.   Instead of the rigid “fixed rule solutions” characteristic of “gladiator” litigation, collaborative public interest litigation seeks structural reform through experimental remedies and on-going, fluid collaboration among stakeholders. The collaboration model also contemplates Consent Decrees, and significant post-prosecution engagement to determine whether experimental interventions have worked.

This model, however, also did not explain the EEOC’s litigation behavior. Instead of flexible, collaborative problem-solving toward development of customized, experimental solutions, these law professors found that the EEOC’s “injunctive relief” in Consent Decrees consisted largely of cookie-cutter, one-size-fits-all “best practices” that were already implemented in the workplace—i.e., that tired trinity of training, posting, and reporting.  Further, although the EEOC has capacity to monitor compliance with Consent Decrees, real monitoring, follow-up and evaluation rarely occurred.  As their interviews of EEOC Trial Attorneys revealed, monitoring compliance with Consent Decrees was “not a priority for the agency.”

Maybe, therefore, a “managerialist” theory of public interest litigation explains the EEOC’s prosecutorial behavior, a theory that

highlights organizations’ voluntary responses to the legal prohibition against discrimination by adopting a standard set of bureaucratic responses, such as EEO policies, training programs, and grievance procedures.

Managerialist organizational responses emerged to mitigate the risk/costs of EEO disputes, which later institutionalized standard human resources practices as actual compliance measures (e.g., employee handbooks, management training, internal grievance procedures).  For example, in response to the risk of sexual harassment disputes, many organizations adopted internal grievance procedures, a practice that the U.S. Supreme Court codified in its 1998 Faragher v. City of Boca Raton decision.  As Kim and Schlanger aptly point out, many scholars and practitioners (myself included) remain extremely skeptical about the efficacy of standard “managerialist” responses.  They are a “modern diversity toolkit . . .  window dressing that signals EEO compliance while doing little to promote equality or unbiased decision-making in the workplace.”

Through this “managerialist” lens, the EEOC’s litigation program comes into sharper focus.  The EEOC’s injunctive practices—practices theoretically designed to reform the workplace—simply reflect the “widespread adoption of routinized bureaucratic responses to the legal prohibition on employment discrimination.”  Managerialist responses amount to “going through the motions” to mitigate business risks and costs, without focusing on actually preventing discriminatory practices or championing equal opportunity.  And based on their longitudinal analysis, Kim and Schlanger concluded that the EEOC’s litigation program has played a role in ratifying managerialist responses, by imposing injunctive relief that merely duplicates the existing HR infrastructure.  In short, their study revealed that the EEOC’s litigation program emphasized “bureaucratic solutions” to enforcement challenges, without substantive efforts toward structural reform.

They concluded that the EEOC’s

structural reform efforts are best viewed not as intense battles seeking to transform the heart and soul of complex organizations, nor as equally intense and equally transformative partnerships, but as the quite routinized application of managerialist, bureaucratic responses to the legal prohibitions against discrimination.

Different Paths, Same Conclusion

The EEOC Litigation Project and resulting report derived from lengthy analysis of the EEOC’s actual work, not its words.  And remarkably, academic analysis and my personal observations and experiences converge at the same conclusion: the EEOC’s litigation program is not equipped to reform the workplace; on the contrary, the EEOC’s litigation program is simply an extension of an ineffectual bureaucratic process in which nothing changes except money changing hands.

I began my legal career as an EEOC Trial Attorney in Denver, after completing law school and a Master’s in Social Work on a civil rights fellowship at Washington University in St. Louis in 1997.   Armed with two advanced degrees, I enthusiastically joined the “fight” to combat ugly “isms” and “haters,” only to leave less than three years later in utter disgust.  In fact, I credit my EEOC experience for turning me into an EEO defense attorney, HR advocate and trainer, EEOC watchdog, and searcher for more effective ways to deliver on Title VII’s promises.  I have daughters, after all.

I became quickly acquainted with the EEOC’s litigation model and philosophy, which pervade still today:  the EEOC must sue to “change hearts and minds” about discrimination and EEO, an imagined “gladiator” stance based on an overly simplistic view of employees as “victims” and employers as “villains.” This victim/villain paradigm, however, bears no resemblance to the complex reality of discrimination disputes in the HR trenches.  Far more often than not, employers strive to do right by their employees.

At the EEOC, I learned that only things-that-can-be-counted count.  More importantly, I learned how important it was for the EEOC Field management to “make its numbers” every fiscal year. I observed a large complement of long-term, disengaged and entitled employees (management and union alike) who spent as much time pursuing their own grievances and charges against the EEOC as handling charges of discrimination.  I realized that those who most outwardly “fight” for employee rights can make the worst employers.  I discovered tremendous disconnect between “headquarters” policies and actual practices in the Field offices.  And, I saw complete misalignment between the EEOC’s mission and the manner in which Field personnel (EEOC mediators, investigators, and Trial Attorneys) carry out their work.

For example, given the paramount importance of “making numbers,” the fourth quarter (“Q4”) of the EEOC’s fiscal year (July-September) became a numbers-making frenzy.  During my EEOC service, the “metrics-that-mattered” for successful performance were (a) hitting a predetermined number of reasonable cause determinations and (b) reducing EEOC investigation inventory.  Thus, every Q4, EEOC careerists in every unit (e.g., ADR, Enforcement and Legal) re-doubled their efforts to resolve charges, to issue reasonable cause determinations, to reduce inventory by simply dismissing long-dormant charges, and to file new lawsuits and settle old ones.  And each year during my service, our district office made “its numbers,” even when such “success” resulted in ridiculous determinations and questionable prosecutions.   EEOC bureaucrats in the Field were not motivated to vindicate discrimination or promote meaningful equal employment opportunity; rather, they were simply trying to “make numbers.”  Bonuses depended on it.

I left the EEOC in 2000, convinced that there was nothing substantive or helpful about its administrative enforcement and litigation programs.  Another decade and a half defending employers against the EEOC convinced me that I was right.   And, as law professors Kim and Schlanger point out, the results of the EEOC’s litigation program speak volumes about its functionality: managerialist, bureaucratic, and ineffective.

Managerialism and the Money Metric

EEOC managerialism, dysfunction, and inefficacy, however, may be worse than Kim and Schlanger imagined.  They still give the EEOC the benefit of the doubt:

One might expect that the EEOC, as a publicly funded agency, is less likely to be driven by monetary concerns. In fact, the agency has self-consciously adopted a stance differentiating itself from private litigants, claiming to target systemic discrimination for reform and to assist complainants based on the merits, not the monetary value, of their claims.

On the contrary, according to the EEOC’s own annual Performance and Accountability Reports (“PAR’s”) in FY2012 and in FY2013, its historic collections from employers–$365.4m and $372.1m, respectively—show that it is “enforcing the law more effectively.” Although historic collections may signify effective wealth redistribution, settlement payouts make a poor proxy for progress toward EEO, especially compared to more reliable and logical indicators—e.g., unemployment, advancement, job segregation/mobility. Nevertheless, if the EEOC equates its efficacy with employer settlement payouts, what impact would this metric-that-matters have on the managerialist behavior of its Field personnel?

In reality, the EEOC’s focus on employer money as the measure its success has effectively re-calibrated the entire enforcement machine to spit out cost-of-defense settlements. In our EEOC Mediation Survey, we discovered that EEOC mediators routinely brandished EEOC’s litigation powers, while emphasizing cost-of-defense as the primary rationale for settlement.  See Figures 1 and 2, below.

Figure 1

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Figure 2

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Given the ostensibly neutral role of EEOC mediators, employers surely face even greater pressure to settle from EEOC Investigators and Trial Attorneys in the investigation and conciliation process.   In fact, in its 2012 PAR, the EEOC credited the close collaboration between EEOC Investigators and Trial Attorneys for the record amount of employer settlement monies “obtained” in the conciliation process:

Of particular note was the increased number of charges resolved through successful conciliations, with 1,591 in FY 2012 compared with 1,351 in FY 2011, an 18 percent increase. The increase in conciliations reflects an emphasis on even closer consultation between the Commission’s investigators and attorneys.

FY2012 EEOC PAR, “Enforcing the Law More Effectively,” here.  Thus, because of the exorbitant cost of defense, the THREAT of litigation apparently proves more effective than actual litigation at ratcheting up the one measure that EEOC counts as successful performance—i.e., employer settlement payouts.  Figure 3, EEOC Collections FY2013.

Figure 3

EEOC Collections FY2013

Ultimately, the EEOC’s efforts to maximize settlement payouts underscore complete misalignment of mission and methods, as well as the devastating impact of a truly disengaged workforce.  After all, most Field bureaucrats reason, “I can make my numbers and look like a star employee by bullying employers into cost-of-defense settlements with threats of reasonable cause determinations, systemic investigations, and EEOC prosecutions,” a classic bureaucratic stance that bears no reasonable relationship to the ostensible mission of the agency.  Not surprisingly, the EEOC’s “work” simply has not worked to reduce discrimination and level the playing field.

Going Further . . .

Since the 1972 Act, the EEOC has considered its prosecutorial discretion the cornerstone of its enforcement powers.  Until the EEOC Litigation Project, however, scholars and practitioners have not tested the EEOC’s representations about the value, efficacy, and reasonableness of its litigation (and enforcement) efforts.  Consequently, we have allowed the EEOC to use dollars to define its effectiveness.  When we measure what really matters (e.g., unemployment, advancement, job segregation/mobility), the results teach us that we cannot rely on the EEOC or employee-side bar to end discrimination or promote EEO.    Rather, with the 1972 Act and CRA 1991, it has now become apparent that we entrusted the March to lawyers and lawyers have used the only tool in their toolbelt (i.e., litigation) to address complex socioeconomic problems like inequitable opportunity and discrimination; after all, as Abraham Maslow observed, “He who is good with a hammer sees every problem as a nail.” Yet ultimately, the sparks that will jumpstart our March to EEO will come from a variety of important sources—e.g., HR, business, legal, social work, academe.  Learn more here.

The work of the EEOC Litigation Project, therefore, must continue.  By limiting its analysis to EEOC prosecutions from 1997 to 2006, the study ends right before the EEOC announced its shift from cohort to systemic enforcement on April 4, 2006.  This shift, however, did not become truly palpable until FY2009, when the EEOC began receiving cash transfusions in the early years of the Obama administration.  Since then, the EEOC’s systemic/class docket and investigative workload have grown, creating an even more expansive view of the EEOC’s prosecutorial behavior.  We urge other academics and practitioners to follow the lead of professors Kim and Schlanger toward the development of more meaningful measures of our progress and the efficacy of our methods to advance it.

Merrily S. Archer, Esq., M.S.W., August 11, 2014