The Economic Violence of “You’re Fired!”

“You’re FIRED!”

We’ve all heard the Donald say it; it’s his favorite (and defining) tag line. He said it to a Mar-a-Lago employee during an on camera press conference when the sound system glitched. People once tuned in to watch him say it on his never-Emmy-winning show, “The Apprentice.” He said it to FBI Director James Comey when he felt that Comey was not “loyal” enough to stop investigating his ties to Russian meddling. Even when deployed in the most serious of circumstances, however, the line “You’re Fired!” has become just another phrase in the American vernacular, like “Kiss my grits!,” or “Word.” or “That’s what she said” or “it is what it is.” Or “meh.” Meh.

But “You’re Fired!” is distinctly different: it is an act of verbal violence of the economic kind–i.e., the kind that leaves marks deeper and uglier than any bruise.

WORK is the glue that holds people’s lives together. When people lose their jobs (for any reason–e.g., layoff, discrimination, retaliation), their lives fall apart. With most people living paycheck-to-paycheck, they first blow through their savings, their “hope chests.” Then, they lose their lifestyles, the activities that made their lives fun. And then things get bad: they lose their homes. Financial pressures widen cracks in even the most stable relationships; they lose their anchors, their marriages and families. They lose their confidence. Sometimes they lose their sobriety. And sometimes they lose the will to live. Suicide is nine times more common among the long-term unemployed in an economic downturn than in the general population.

Work lies at the core of our self-esteem. Work gives us all an opportunity to not simply survive, but to thrive, to be good at something. Work gives us something to DO–activity is an antidote to despair. Work empowers us; for many, it gives meaning and structure to our days, even our lives. As an employment lawyer for 20 years, I’m increasingly convinced that people would rather lose a finger or leg than their JOBS.

Maybe for that reason, “You’re Fired!” feels like an act of betrayal, apart from its practical consequences. “You’re Fired” is a bomb that destroys lives. It hurts people; therefore, it is violence. The Donald, however, has cheapened “You’re Fired,” minimizing the aftermath of a violent act, like showing all the bullets on TV but none of the blood. And though terminations seldom involve blood, they ALWAYS involve pain.

“You’re Fired!” deepens divides between workers and owners. Whereas as successful employers build on employee engagement with their work, most employers are like Trump Industries and use the threat of economic violence to cow their employees into constant insecurity and resigned submission. Business owners and their favored spawn (i.e., The Trumps) have never lived with the insecurity of being one capricious asshole away from financial ruin with two simple words “You’re Fired!” Indeed, “You’re Fired” is the nagging, nameless dread of schmucks who rely on WORK (not inherited WEALTH) to survive. “You’re Fired!” weakens trust between owners and employees, jeopardizing the inherent symbiosis between workers and owners upon which our economy depends. After all, from a talent management perspective, the opposite of “You’re Fired!” is “Fuck You!” or more delicately stated, “Take This Job and Shove It.”

Let’s start recognizing “You’re Fired!” for what it is: an act of economic violence against working people. And let’s recognize that we’ve been conditioned to believe that “You’re Fired!” is perfectly acceptable, perfectly normal in a democratic society. We’ve been co-opted into accepting that if you are poor or struggling (e.g., due to medical bills, educational debts, discrimination, automation), it’s YOUR FAULT, certainly not the systemic inequities that keep people poor and struggling. Our acceptance of “You’re Fired!” and of a candidate who embraces “You’re Fired!” as a leadership style shows just how passively complicit we’ve become in an economic system that undermines and jeopardizes our financial security.

MSA, July 17, 2017

 

 

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

Jumpstarting the Stalled March toward EEO: Eight Sparks (and Counting!)

Eight (and Counting!) Sparks to Jumpstart the Stalled March toward Equal Employment Opportunity 

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The March toward equal employment opportunity (EEO) passed its 50-year mile marker on July 2, 2014, the 50th anniversary of the passage of Title VII of the Civil Rights Act of 1964 (Title VII).  As predicted, the EEOC staged a big celebration, without offering any insights about our progress at this milestone. Recently, the Society of Human Resources Management (SHRM) blazed on the cover of its flagship publication, HR Magazine, “Celebrating 50 Years of Progress”, touting how Title VII “changed the face of the American workplace” . . .  again without actually examining how far the March toward EEO has actually progressed.  When we measure what matters, however, Title VII’s 50th anniversary leaves little cause for celebration.

We have more work to do . . . the familiar refrain for EEOC Commissioners, employee-side trial lawyers, governmental administrators, advocates and policymakers. True enough.  But, responsible advocacy and policymaking require us to evaluate whether our work has WORKED, to any degree.  That is, instead of celebrating “progress,” we should be asking:

  • Have our methods, initiatives, approaches to eliminating workplace discrimination and fostering equal employment opportunity actually reduced discrimination against and increased opportunity for Title VII’s intended beneficiaries; AND,
  • What can we do differently, and better, to deliver on Title VII’s promises for the generations marching behind us?

Progress: Measuring What Really Matters

Money: A Poor Proxy for Progress

For at least the past two fiscal years, the EEOC has measured its efficacy by the amount of money collected from employers to resolve discrimination allegations. In both FY2012 and in FY2013, the EEOC has characterized its historic collections from employers–$365.4m and $372.1m, respectively—as evidence of “enforcing the law more effectively.”  Employer settlement payouts, however, make a poor proxy for progress, given the absence of any reasonable, logical or practical nexus between employer settlement payouts and the EEOC’s mandate to end discrimination and foster equal opportunity.

By focusing on settlement payouts as a proxy for EEO progress, the EEOC has recalibrated its entire enforcement machine around maximizing money.  EEO Legal Solutions’ survey of 780 practitioners (e.g., HR, in-house counsel, EPL adjusters) regarding their experiences in the EEOC mediation program revealed that EEOC mediators understand employers’ cost-of-defense concerns, hammering cost-of-defense as the most often invoked reason to settle EEOC disputes. Worse, this national survey also showed that EEOC mediators then regularly brandished the EEOC’s enforcement weapons (e.g., cause determinations, systemic investigations, prosecutions), certainly to scare employers into higher-than-necessary cost-of-defense settlements.  Thus, because MONEY is the metric that matters, the EEOC’s administrative enforcement methods have focused more on wealth redistribution rather than, again, advancing the mandate to reduce discrimination and promote opportunity.

Toward More Meaningful Measurements

When we focus on more meaningful measurements of progress, a troubling picture emerges: real progress toward equal employment opportunity has stalled for most of Title VII’s intended beneficiaries.  In Part I, Measuring What Matters at Title VII’s 50th Anniversary, we looked at unemployment rates among racial and ethnic groups.  We reviewed Gallup polls and federal sector employment reports. We analyzed EEOC charge receipt data and enforcement statistics.  We tapped into the databases of Catalyst.org for international EEO statistics. We also teamed up with our friends at Biddle Consulting Group in Folsom, California, analyzing the EEOC’s own EEO-1 data to measure the pace and trajectory of women and minorities toward achieving top jobs (Official/Manager), across industries.

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

Our findings regarding “Minorities” reveal just why we cannot logically or legitimately lump everyone together in a single “Minority” group.  Although the pace appears [too] slow, Latinos have made progress toward achieving Official/Manager positions, a slight upward trajectory that we found encouraging. Equally encouraging, Asian Americans, a classification that includes people of Asian and Middle Eastern descent, have significantly narrowed the gap with Whites in attaining Official/Manager positions, showing a steady increase since 2002.  African-Americans have lost ground since 2008, however, and have fallen behind Latinos, in their march toward inclusion at the top; unemployment still hits the African-American community the hardest.  Given the historic election of President Barack Obama, and the appointment of Jacqueline Berrien, a former NAACP attorney, as Chair of the EEOC, this finding startled us, and deserves further analysis.   Fortunately, after a long battle under the Freedom of Information Act (FOIA), the EEOC has agreed to make a broader swatch of historic EEO-1 data available for academic research.

Has Our Work . . . WORKED?

When we evaluate measurements of progress that actually matter–e.g., unemployment, advancement, international leadership–responsible policymaking requires us to wonder whether our WORK (i.e., the current enforcement scheme) has actually worked (i.e., delivered the desired results).  Data shows that while this enforcement scheme may not have delivered the desired results (i.e., increased opportunity, decreased discrimination), it produced the intended one—namely, a full wealth redistribution loop between employers, insurance carriers, defense attorneys, and employee-side lawyers in which little changes except money changing hands.   Indeed, under our current enforcement model—i.e., EEOC administrative enforcement and prosecutions, and private civil litigation under the Civil Rights Act of 1991 (CRA 1991)—money counts as progress, while actual progress toward equal employment opportunity has stalled.

CRA 1991, like analogous enforcement schemes in several states such as California and Colorado, significantly increased the remedies available to employees accusing employers of workplace discrimination—e.g., compensatory/punitive damages, attorneys’ fees, jury trials.   In pressing for CRA 1991’s passage now nearly 25 years ago, trial lawyer groups lobbied stakeholders and Congress with this pledge:

Make employment discrimination disputes ‘worth it’ for us to prosecute by ratcheting up the available remedies against employers, and employers will stop discriminating and then equal employment opportunity will flourish. 

After its passage, CRA 1991’s punitive, litigation-based model (i.e., the stick) initially worked.  Smart employers, appreciating the significant risk and expense of discrimination disputes, started constructing internal HR infrastructure designed to prevent and defend against them.  A highly profitable cottage industry of HR and AA consultants, employment law boutiques, national workplace defense firms, and training vendors sprung up around the risk of discrimination disputes.  Most employers got the message, and took affirmative steps to protect themselves from the sting of CRA 1991’s enhanced damages and skewed attorneys’ fee awards.

And, of course, where there is risk, the insurance industry provides a remedy: over the past 25 years, Employment Practices Liability Insurance (EPLI) has proliferated among employers, largely out of sheer necessity.  Without EPLI, most employers simply cannot afford the suffocating expense of non-recoverable defense fees, let alone the risk of an adverse judgment with the automatic order to pay plaintiff’s attorneys’ fees—i.e., amounts often exceeding six figures. By design, EPLI took the sting out of CRA 1991’s stick, covering defense costs, settlements and judgments.  As a result, employers now treat allegations of intentional discrimination like any other insured (and unavoidable) business risk, which effectively eliminates incentives to modify behavior and rehabilitate workplaces.  Because of EPLI, CRA 1991 no longer stings.

Besides, EEO disputes arising out of legitimate everyday personnel actions have become so pervasive, many employers now legitimately wonder whether they really can prevent them.  After all, discrimination is difficult to prove, but easy to allege, and the allegation itself (untrue as it may be) immediately triggers a cost-of-defense conversation that many employers have cynically characterized as “extortion”—i.e., I need to pay this terminated employee and her attorney $35K to settle EEOC allegations because I cannot afford the non-recoverable cost of proving that I did NOT discriminate in the first place???  At that point, the EEO dispute ends in the usual way:  with a check from the employer’s EPLI carrier to the employee’s attorney.  Money changed hands, but nothing really changed.

The more we evaluate CRA 1991’s efficacy at this historic milestone, the clearer it becomes that this enforcement model no longer works, by itself or at an acceptable pace, to advance the March toward real equal employment opportunity.  In fact, as a self-loathing lawyer myself, I fear that with CRA 1991 and similar state schemes like Colorado’s HB-1136, we entrusted the March to lawyers, and lawyers have done what lawyers often do: find a way to make money on a problem without actually solving it.

Eight Sparks (and Counting) to Jumpstart Our March

Ending discrimination and securing equal employment opportunity for the generations marching behind us should become our singular purpose as we pass this historic milestone in July, 2014.  Thus far, our methods have centered on legal processes and “solutions”—i.e., CRA 1991, analogous state remedial enhancements, and other legislation that creates new workplace claims for private litigation enforcement.  These legislative schemes come from attorneys for the benefit of attorneys, and are deeply rooted in institutionalized myopia; after all, as famed psychologist Abraham Maslow once observed, “He who is good with a hammer thinks everything is a nail.”  At EEO Legal Solutions, however, not all the solutions are “legal,” the natural byproduct of our faith in the SUPERIORITY of multicultural and multidisciplinary approaches to problems.   The sparks that will jumpstart our March will come from many sources, places, and disciplines.

We intend to build on this work for years to come, especially as we near CRA 1991’s 25th anniversary in November, 2016.  We urge practitioners from a variety of fields to contemplate other “sparks”, both within their organizations and the global business village, to stimulate progress toward EEO on the ground (e.g., workplaces, schools, arts/cultural/sports organizations), where it matters most.   Some sparks may never fully catch fire or light the path.  But we must be willing to experiment with (and evaluate) a variety of initiatives, instead of blindly adhering to a legal enforcement model that stopped working a while ago.

1.  Measure What Matters

Start here.  In evaluating the efficacy of any intervention to address a measurable social problem like inequitable employment opportunity, we start by visualizing success, as Dr. King did in his landmark “I Have a Dream” speech in August, 1963.  Once fulfilled, what does the dream of equal employment opportunity look like? Title VII’s architects and proponents certainly never dreamed that employer monetary payouts would one day measure our progress.  Instead, they likely dreamed about (a) the advancement of minorities/women toward top jobs, especially in government; (b) comparable unemployment rates among racial groups; (c) improved perceptions of racial equality/opportunity in the workplace; and (d) maybe even EEO leadership among other industrialized nations, to name only a few desired (and measurable) outcomes.

Stakeholders (e.g., employers AND civil rights advocates) must demand that the EEOC stop counting employer payouts as progress and start providing more meaningful, accurate benchmarks.  After all, the EEOC controls a mountain of EEO-1 data from which academics and researchers can draw valuable conclusions about our progress toward equal employment opportunity.  When we measure and focus our attention, efforts, research and resources on what matters (e.g., unemployment, advancement, leadership), desired outcomes will follow.

2.  Focus on the Fixes, Not the Fights and Factions

Title VII’s passage ended one chapter of a civil rights struggle that bore many hallmarks of battle and cultural warfare.  Growing up in St. Louis, Missouri in the late 1960’s and 1970’s, the language of battle and of fighting for civil rights became deeply entrenched in my psyche too.  These ideas guided my legal and social work studies at Washington University in St. Louis, and regrettably, followed me to the EEOC in 1997 as a young (surely insufferable) EEOC Trial Attorney, eager to rid the world of its “isms”.

Once at the EEOC, however, I quickly realized that this rhetoric of “battle,” “fighting,” and “changing hearts and minds through litigation” often just masks, in the most Machiavellian sense, baser impulses like ego and greed.  Today, very few civil rights “gladiators”—i.e., attorneys willing to champion EEO cases without a guaranteed payday—actually remain, a reality that became disturbingly apparent during the passage of Colorado’s HB-1136 in 2013.  Since CRA 1991, trial and employee-side lawyers have made EEO about money, under the guise of “fighting for civil rights.”  After all, if these “gladiators” cared as much about EEO and civil rights as money, then their willingness to prosecute these claims would not have depended so dearly on CRA 1991’s and HB-1136’s passage.

No civil rights movement has ever succeeded without allies.  Photographs from the March in August, 1963 depict people of all colors, ages, religions, sizes, gender, etc. coming together for the singular purpose of leveling the playing field for future generations.  Today, however, CRA 1991’s highly adversarial victim/villain model squanders opportunities to build on shared values among the employer and civil rights communities, particularly among HR, AA/EEO, and recruiting professionals.

Rampant “tribalism” among civil rights villages and academic researchers has become another great obstacle in the March.  Unlike the unity of 50 years ago, today’s civil rights movement has Balkanized into discrete factions, each “fighting” for the rights of minorities that look, think and act just like themselves, without building bridges between them. Academics have also proven notoriously tribal, eschewing input from other disciplines, as well as the business community where real reform takes place.  Meanwhile, other well-meaning civil rights advocates have become so focused on this concept of an on-going FIGHT that they have completely neglected the FIX—i.e., ways to measure and promote equal opportunity.  The path forward requires greater collaboration among businesses, attorneys, governmental agencies, academics, and civil rights leaders, and a unified focus on the fixes, not just fights and factions.

3.  Demand that the EEOC, As A Federal Law Enforcement Agency, Provide Accurate and Complete Information to Stakeholders

EEO Legal Solutions has long criticized the EEOC’s longstanding press policy of releasing information only about its new lawsuit filings, settlements, and occasional wins. By releasing information only about its successes and new filings, the EEOC paints an extremely distorted portrait of the actual enforcement landscape. In our CRA 1991 climate, employers must parse through varying iterations of EEO law, further complicating everyday personnel decisions.  Can employers trust the EEOC to tell them the full truth about the success or failure of its various enforcement initiatives, prosecutions, or legal interpretations?  Further, even for EEOC supporters, the idea of a federal enforcement agency telling stakeholders only what it wants them to know should conjure up the word “propaganda.”    As a law enforcement agency, the EEOC has an obligation to provide an accurate depiction of the actual legal landscape: when it wins, loses, and gets sanctioned.

4.  Provide Affordable (or FREE) Compliance Resources

Unlike other administrations, the Obama EEOC has devoted few, if any, resources to providing FREE (or affordable) training to employers.  The EEOC’s upcoming 2014 Excel Conference in San Diego, California, costs well over $1,300, excluding airfare, fees that most strapped corporate training budgets simply cannot bear.  The EEOC offers no FREE webinars for employers, even though technology makes webinars affordable for hosts (i.e., less than $10,000) and easily accessible for participants.   And, the EEOC has done a poor job partnering with local HR, chamber and business organizations on compliance programming, even though most employers welcome guidance, more here.  Thus, employers obtain most of their information about EEO compliance from Biglaw marketing departments.  We, and other organizations like Biddle Consulting Group Institute (BCGi), strive to fill this informational gap through FREE, skill-based webinar programming, but the EEOC can, and should, fulfill this important role, as it has done in the past.  After all, modeling HR and EEO excellent outcomes actually works better than prosecuting discriminatory ones.

5.  Partner with Employers on the Development of an Ombudsman Program

Trial and employee-side lawyers often retort that CRA 1991’s privatized litigation model is all we have; what else is there?, assuming the question rhetorical.  In reality, the U.S. Department of Labor (DOL) has proven far more successful at partnering with employers on initiatives that incentivize positive employment outcomes instead of simply prosecuting bad ones.  In the Affirmative Action arena, each administration has used its “power of the purse” (i.e., the carrot) to require employers wanting or having federal contracts to monitor its applicant flow, prepare reports, and submit to affirmative action audits of its hiring practices, as in Executive Order 11246.  Indeed, the Obama administration has contemplated using its power to award government contracts to prohibit discrimination against Gay, Lesbian, Bisexual, and Transgender (GLBT) employees, absent the votes to secure actual legislation. This executive “purse power” (i.e., linking EEO outcomes to incentives like government contracts) has far more power to reform the workplace than the prospect of litigation, where an insurance company pays the bill and assumes the risk anyway.

The DOL has also created far more effective liaisons with other agencies and volunteers to address specific workplace concerns.  As one example, to promote reemployment after military deployment, the DOL has united with the Department of Defense and retired military and community volunteers to spearhead an Ombudsman program as part of Employer Support of the Guard and Reserve (ESGR).  ESGR’s sole function is to intervene quickly in and resolve workplace disputes potentially arising under the Uniformed Service Employment and Reemployment Rights Act (USERRA).  This ombudsman approach actively seeks to preserve employment by quickly acquainting employers with clear, accessible, and affordable compliance resources on USERRA’s requirements.  If, however, the volunteer ombudsman cannot resolve the dispute, the aggrieved employee may file a charge with VETS of the DOL, which will conduct a substantive investigation and provide relief.  And, compared to EEO-based litigation, USERRA disputes in federal court are extremely rare.  Under this collaborative, ombudsman approach, everyone wins: the employee keeps her job and/or has access to meaningful redress in the DOL, while the employer avoids the staggering cost of litigation.

These more collaborative enforcement models have long existed within the DOL and its sub-agencies (e.g., OSHA, OFCCP), and show promise for the quick, cost-effective resolution of workplace EEO disputes without litigation, and with a focus on reinstatement and job preservation.  Under our CRA 1991 model, reinstatement seldom enters the settlement equation for one reason only: trial and employee-side “gladiators” cannot take a contingency fee on reinstatement, thereby reducing virtually every EEO dispute to a cold-cash transaction where nothing changes except money changing hands.  Likewise, given the EEOC’s emphasis on MONEY as the measure of its success and our progress, large monetary settlements count more than employee reinstatements, a measurement that the EEOC does not even track.  Our methods for ensuring equal employment opportunity should be inherently employment preserving. 

6.  Invest in Inclusiveness and Start Young

By the time the next generation reaches the workforce, it is already too late: the opportunity to convince a young girl with a disability, an immigrant, a homeless kid, a gang member, a transgender teen, or learning-challenged tough guy that they BELONG at the PowerTable has long passed.  For that reason, we must invest in opportunities to promote inclusiveness at all levels.   And, we must start young.

Each year, EEO Legal Solutions partners with Junior Achievement to provide a “PowerTable” experience for several young stars that shone particularly bright during its annual Business Week camp each summer.  At a local power-event in the business community, these young stars get to network with politicians and business leaders, eat dry chicken, and hear incredible entrepreneurial stories of failure and recovery.

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For everyone, the experience is powerful.  The young stars learn that if you can see it, you can BE it and that they BELONG at the PowerTable.  For the grown-ups, the PowerKids model the value of an inclusive community of leaders.  But more than anything else, the experience of just hobnobbing at a local power-event breeds more opportunity, generating even greater prospects for mentoring, networking, collaborating, and even summer jobs. This small investment in inclusiveness works, and gives economic minorities the tools they need to break through glass ceilings and other barriers en route to their goals, business or otherwise.

7.   Where Feasible, Let Technology Foster Greater Workplace Flexibility and Opportunity

For parents, flexibility means opportunity.  Still today, women assume the primary caregiving role in the family, a reality that is changing as more men opt to stay home. Thus, for many women, more flexible work arrangements over the past 25 years could have made the difference between keeping and quitting their careers.

Technology has torn down workplace walls and redefined how (and WHEN) work gets done, something the next generation of high professional already knows. Recently, a professor friend from Harvard observed, “Gone are the days of the panicked campus; these kids are writing their papers and studying for exams at the beach somewhere.” If these kids can ace their Harvard exams and papers while working at the beach, they will, no doubt, expect, demand and/or create similar flexibility in their workplaces. And for women (that is, parents) flexibility opens up a world of opportunity.

8.     Tie Progress to Profits: The Business Case

Years of representing employers have yielded many important insights, but none greater than this one: if you want to change how business thinks about business, you must make the BUSINESS (i.e., greater profitability, decreased risk/cost) case.  Civil rights gladiators, EEOC Commissioners and careerists, and policymakers overlook this obvious, but important principle of effective advocacy: to be persuasive, you must first learn the language.  As the March advances, we must make the BUSINESS, not the social justice or “karmic” case, for equal employment opportunity and inclusive decision-making.

As research clearinghouses like Catalyst.org gain strength and recognition, the business case for workplace multiculturalism and inclusive decision-making comes into sharper focus.   Organizations with inclusive and flexible policies, with excellent track records for promoting women/minorities, and with higher percentages of women/minorities in leadership positions PERFORM BETTER on several key business metrics, including profitability.  These more progressive companies understand that attracting and retaining TOP TALENT means creating a welcoming and flexible work environment for its greatest asset, its PEOPLE, to flourish.  They also understand that diverse decision-makers make encompassing, well-rounded and inclusive decisions that cover more bases and by extension, benefit and/or or appeal to more people.

Years ago, my family visited Mesa Verde National Park in southwestern Colorado, recommended for everyone’s Bucket List.  As we toured the ruins, I overheard our guide say, “You can tell that the ancient Puebloans started to interact with other cultures because their civilization then advanced so quickly.”  I blinked hard, and asked her to repeat herself.  She spoke the same words, this time suspiciously and really slowly. You just brilliantly summed up the BUSINESS CASE for multiculturalism, inclusive decision-making and equal employment opportunity, I sputtered.  The answer, or at least one of them, comes from Anthropology.

When we humans interact with other cultures (even other academic disciplines), we learn.  We grow.  We advance, on matters ranging from the sublime (i.e., That theology inspires and resonates with me!) to the mundane (i.e., I did not know chicken could taste so good!).  At the risk of sounding trite, our strength as a nation derives from our DIFFERENCES, and our uniquely American ability to marshal a wide variety of multicultural and multidisciplinary perspectives to solve our most pressing social problems, particularly the stalled march toward equal employment opportunity.

As progressive companies continue to prosper, they will serve as a positive example to other employers: if you want to remain competitive, you must (a) invest in an inclusive workforce and C-suite; (b) mentor economic minorities to pave the pathways to top jobs; and (c) use technology to retain top [parent] talent, to name just a few “sparks.” Once employers fully understand the economic benefits of equal employment opportunity (i.e., the carrot), the “stick” of privatized litigation enforcement will become obsolete.

Over the next 50 years, the march toward EEO must focus on the FIXES of the future, not the FIGHTS perpetuated by lawyers for the benefit of lawyers.  We still have a long way to go before fulfilling Dr. King’s dream and Title VII’s promises, but the path forward requires greater collaboration, less litigation.  Our progress toward equal employment opportunity depends on it.   Please join the conversation.

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

July 2, 2014

For Carly, Sophie, Ezra and Daemo

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