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:

Fundamental-Attribution-Error

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

RISE Together: Resource Integration to Support Employment (RISE)

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As the Huffington Post recently reported, “even at a company obsessed with fair pay, men still make more than women.”  I got misty for a moment, realizing that this article reflects the most balance treatment of the pay gap that I’ve yet encountered.  I’ve also looked at the pay gap from many sides now, as a fervent EEOC Trial Attorney in the late 1990’s, as an employer advocate and litigator, as a master’s level social worker, and as a feminist with two brilliant daughters.  And finally, with articles like this one, smart people are starting to understand that the pay gap is far more complex than the simplistic victim/villain dichotomies depicted by the EEOC and plaintiff’s employment bar . . . organizations that, not coincidentally, recommend more litigation against employers as the FIX.

A better FIX, the article concluded, was more family-friendly workplace policies that allow women to REMAIN in the workforce, instead of forcing them out when they’re unable to reconcile the competing demands of work/family.  Indeed, time away from the workforce (even for legally protected purposes) initiates incremental pay disparities that eventually snowball into larger pay gaps.  And unless we’re willing to build “escalator provisions” into Title VII and the Equal Pay Act like those reserved for returning veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA), any time spent away from the workforce results in foregone promotions, annual COLA increases, pension contributions, paid health insurance, etc.

Nowadays, women primarily reconcile work/family conflicts by exiting the workforce . . . but as men increasingly expand traditional fatherhood norms as co-parents, they too will suffer from the utter lack of workplace support infrastructure.

And so, a few weeks ago, my husband and I started a voluntary mutual support group on Facebook called RISE: Resource Integration to Support Employment.   Because of initial insurance and liability-based concerns about tethering this group directly to his employer, we launched this private Facebook group as a voluntary program to match employee NEEDS with employee RESOURCES.

RISE rests firmly on the belief that this growing community of talented, caring people holds the key to many of our work/family balance struggles.  RISE also proceeds on the assumption that if everyone helps just a little, the community will thrive–i.e., all boats RISE together. Indeed, many community members even have TEENAGERS looking for babysitting and pet care gigs, as well as retired parents who would be happy to babysit for an afternoon. Unfortunately, because many managers have treated employees with foreseeable work/family conflicts as “less dedicated liabilities,” women (in particular) have been squeamish about asking for help.  Instead of criticizing struggling working parents, however, RISE seeks to marshal RESOURCES to meet foreseeable, everyday needs.

This project is experimental, but it WILL work.  And if it does not work, we’ll experiment with new ways to help reconcile work/family conflicts, retain talented working parents, and build a strong workplace community based on mutual support.  Further, we’re currently researching whether voluntary workplace RISE groups pose legal risk to employers, as one insurance carrier vaguely alleged.  Needless to say, attorneys and insurance types are unusually VERY risk averse, and tend to stifle innovation based on generalized liability concerns that are not always well-founded.  As this project develops and grows, we plan to overcome any legal concerns about voluntary mutual support programs and make the BUSINESS CASE for their adoption in other organizations:

  • Increased leverage in recruiting Top Talent;
  • Better employee retention;
  • Improved employee engagement (i.e., feeling part of a supportive community);
  • Enhanced reputation in marketplace as an “Employer of Choice”;
  • Reduced absenteeism;
  • Higher productively; and by extension,
  • Higher profits.

Please stay tuned here for updates.  Better yet, if you have any input or suggestions, we’d love to hear from you.  Let’s RISE together.

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

March 24, 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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Under the Surface of EEOC Enforcement

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Earlier this week, the U.S. Equal Employment Opportunity Commission (EEOC) asked the U.S. Supreme Court (SCOTUS) to grant Mach Mining LLC’s petition for certiorari, following its Seventh Circuit victory in December, 2013, here.  In EEOC v. Mach Mining LLC, the Seventh Circuit sided with the EEOC, holding that courts lack the authority to adjudge the adequacy of the EEOC’s pre-litigation conciliation efforts.  According to the EEOC, its administrative enforcement activities (e.g., mediation, investigation, determination, and conciliation) are immune from court scrutiny under the “government deliberative process privilege,” including the question of whether the EEOC has fulfilled its four statutory “conditions precedent” prior to initiating prosecution—e.g., charge, investigation, determination, and conciliation.

While the EEOC seeks a SCOTUS ruling that its enforcement activities are shielded from court (and public) oversight, Congress has also recently raised questions about the adequacy of the EEOC’s mandatory conciliation efforts prior to initiating litigation against employers. In the context of the EEOC’s budget request, a report from the House appropriations committee expressed concern that the EEOC has not, in fact, been conciliating with employers in good faith, and demanded some accountability:

Conciliation.—The Committee is concerned with the EEOC’s pursuit of litigation absent good faith conciliation efforts. The Committee directs the EEOC to engage in such efforts before undertaking litigation and to report, no later than 90 days after enactment of this Act, on how it ensures that conciliation efforts are pursued in good faith.

May 8, 2014 House Report.

As a former EEOC litigator (1997 – 2000) and longtime EEO defense attorney who successfully battles the EEOC, I worry that Congress’s budgetary control now stands as the ONLY means to hold the EEOC accountable for (1) the pain it unnecessarily inflicts upon employers; (2) more meaningful and realistic measurements of progress toward EEO; and (3) “law enforcement” that looks an awful lot like advocacy.  After all, the EEOC refuses to disclose any information about its investigations, decision-making processes, negotiations, and conciliation efforts.  In fact, even getting the EEOC to adhere to its own statutory disclosure obligations under the Freedom of Information Act (FOIA) involves much struggle, here. And now, the Seventh Circuit has slammed shut a possible judicial window into these super-secret EEOC administrative processes. But for Congress’s control of the EEOC’s purse strings, do employers have any recourse from an abusive administrative agency that measures its “efficacy” in the amount of money it collects from them?

The Dangers and Damages Occur Below the Surface

In addition to “government deliberative process privilege,” the EEOC also relies heavily on the statutory confidentiality built to Title VII of the Civil Rights Act of 1964 (“Title VII”) to resist disclosing any information about its administrative charge handling unless and until the matter becomes public with the filing of a lawsuit.  See § 706(b) of Title VII, 42 U.S.C. §2000e-5(b).  The combined effect of statutory confidentiality and “government deliberative process privilege” is an administrative process that occurs in secret, again, unless and until the EEOC (or the Charging Party) initiates a lawsuit in U.S. District Court.   Most charges, the EEOC would surely agree, never see the light of a courtroom; on the contrary, for most EEOC-related disputes, the real action (e.g., mediation, investigation, determination, conciliation) occurs below this surface of confidentiality and government deliberative process, like a dangerous iceberg.

Consider, for example, the monetary burden on employers.  For at least the past two fiscal years, the EEOC has measured its efficacy by the amount of money it has collected from employers to resolve discrimination allegations: in both FY2012 and in FY2013, the EEOC has characterized its historic collections from employers–$365.4m and $372.1m, respectively—as evidence of “enforcing the law more effectively.”   According to the EEOC’s FY2013 Performance and Accountability Report (PAR), however, litigation accounted for only $39m of this historic take, whereas the EEOC’s Mediation (ADR) and Enforcement (e.g., investigator settlements, conciliations) programs took in the most money, as depicted in Figure 1.   Thus, employers feel the real financial impact of the EEOC’s enforcement activities in these confidential/privileged administrative processes, where questionable investigations, unfounded reasonable cause determinations, and perfunctory conciliations never reach the surface and public light.  How can an agency of the federal government inflict this much pain, with such little transparency?

Figure 1

EEOC Collections FY2013

 If Mediations, Then [a fortiori] Conciliations

Earlier this month, we released the results of our year-long survey of practitioners (e.g., HR, attorneys, EPL adjusters) regarding their experiences in EEOC mediations, ultimately hitting 780 responses.  Notably, we recently learned of other organizations that are using online surveys and social media to explore what happens to Respondents (e.g., employers, school districts) in these secret, administrative processes. Given how fiercely the EEOC and other federal agencies resist scrutiny, surveys and social media may be the only way to peek behind this iron curtain of carefully guarded secrecy.   We have other projects planned; please stay tuned.

Our EEOC mediation survey probed whether EEOC mediators made (or did not make) specific representations to employers in the mediation process; we then tested these representations against published EEOC information, including enforcement statistics.  Over 80% of practitioners reported that EEOC mediators emphasized the cost-of-defense when encouraging them to settle regardless of charge merits, here.  What impact, therefore, would threats of EEOC enforcement activity have on employers’ cost-of-defense expectations and by extension, settlement deliberations?

In fact, over 70% of practitioners reported mediator threats of reasonable cause determinations and prosecutions.  Worse, over 60% reported that EEOC mediators even raised the specter of expensive, lengthy systemic investigations if the matter did not get resolved.  After presenting these findings, we highlighted how improbable those outcomes were under the EEOC’s own Priority Charging Handling Procedures (PCHP) and published enforcement statistics.

Our ultimate conclusion shocked some, angered others, and resonated with MOST practitioners who have represented employers in EEOC mediations over the past few years:  EEOC mediators stress cost-of-defense, and then brandish  the EEOC’s enforcement powers (e.g., cause determinations, systemic investigations and prosecutions) to drive up employer settlement payouts.   For that reason alone, EEOC mediations are not “neutral” or a “wonderful opportunity to settle,” as the EEOC would have employers believe.  On the contrary, our findings expose EEOC mediations as a vehicle to ratchet up the one measurement that the EEOC counts as progress—i.e., employer settlement money.  We have questioned (and will continue to question) whether (a) wielding federal enforcement weapons to effectuate private settlements is a responsible use of governmental power; and (b) this accuse-and-settle enforcement scheme has actually worked to foster equal employment opportunity, here.

Nevertheless, if employers encounter exaggeration and bullying in the EEOC’s mediation process, what fate must befall them in the EEOC’s conciliation process?  Unfortunately, even experienced practitioners often misuse these terms interchangeably: unlike mediation, conciliation occurs after the EEOC has issued a reasonable cause determination to believe that a statutory violation has occurred and after the EEOC has technically taken a position adverse to the employer; by contrast, the EEOC takes an ostensible “neutral” stance in mediation, although our survey casts doubt on that representation too.

Based on our EEOC mediation survey (as well as my own experiences WITH and AGAINST the EEOC), I envision a conciliation process fraught with threats of prosecution, paired with cost-of-defense monetary demands far exceeding six figures, take it or leave it.  And, the EEOC has offered clues that this vision of the conciliation process may be accurate.  In its 2012 PAR, the EEOC credited the close collaboration between EEOC’s Legal and Enforcement 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.  As most practitioners quickly discover, the EEOC exercises its prosecutorial discretion through the General Counsel (Legal), not the Commission (Enforcement), such that the presence of an EEOC Trial Attorney in the conciliation process would certainly signal an intent to prosecute—i.e., the intended effect.  Under these circumstances, most employers would opt to settle in the still-confidential conciliation process rather than face a long EEOC prosecution, suffocating defense fees, and a brand-bashing EEOC press release.

Indeed, Congress needs to probe FURTHER the EEOC’s conciliation efforts, focusing on not only matters that reach the surface of litigation, but more importantly, on those conciliation negotiations that remain hidden below the surface of governmental deliberative process privilege and confidentiality.   If the courts cannot (or will not) provide this appropriate oversight and check on the EEOC’s use of executive power, then employers have nowhere to turn but Congress.  Dig deeper . . .

The EEOC Exposed: Does the Emperor Have Clothes?

The Obama EEOC has behaved more like an advocacy group than a federal law enforcement agency.  EEOC Commissioner Chai Feldblum has publicly stated that the EEOC’s job is to interpret the anti-discrimination laws entrusted to its enforcement, which raises some fundamental “separation of powers” and “checks-n-balances” questions about our tripartite system of government.  In effect, this EEOC’s “interpretive” law enforcement bent is like a cop pulling you over and saying

Under my novel, untested and possibly incorrect view of the law, you have just violated the law.  Now, you can pay $500K to prove me wrong, or you can settle for $250K now.

The EEOC possesses tremendous enforcement powers (e.g., to issue subpoenas, to investigate, to render determinations, to conciliate, to prosecute, to demand injunctive relief) that inflict pain on employers, even though it may be advancing novel legal theories and junk statistical methods.  In EEOC v. Kaplan (credit reports), the EEOC’s investigation, conciliation, and prosecution proceeded based on a statistical analysis that a federal judge, once the case reached the surface of litigation, tossed out as inherently unreliable.  Likewise, in EEOC v. Freeman (criminal background checks), a federal judge also tossed out the EEOC’s statistical analysis for “egregious errors” and extreme “academic dishonesty.” Read more here.  The employers in Kaplan and Freeman likely spent millions in non-recoverable defense fees fending off these EEOC incursions, incursions that were not grounded in competent facts and legal precedent.

In an EEOC prosecution that I defended a few years ago under the Americans with Disabilities Act (ADA), EEOC v. Picture People, I set out to prove that the EEOC conducted absolutely no investigation whatsoever into the essential functions of a retail sales position at the nucleus of its five-year campaign against a photography retailer.  An inevitable discovery dispute ensued after I issued a 30(b)(6) deposition notice to the EEOC—e.g., government deliberative process, burden to the government.  After a lengthy hearing, the U.S. magistrate judge ordered the EEOC to answer “contention interrogatories” about the investigative evidence undergirding its Determination that a deaf/mute person was “qualified” to perform a high-octane retail sales position requiring strong verbal communication skills.  The EEOC’s responses reveal an alarmingly perfunctory and partisan “investigation” that failed to take into account even the most basic employer prerogatives built into the ADA.  The EEOC’s prosecution ultimately failed—e.g., dismissed on summary judgment, affirmed en banc at the 10th Circuit.  This employer, however, endured five years of EEOC litigation, six figures in attorneys’ fees, and governmental “brand-bashing” at an incalculable cost, based on an incompetent (or simply arrogant) EEOC investigation and erroneous interpretation of the ADA.

Any governmental effort to resist transparency must be opposed in a free society. Experience teaches me that under this cloak of governmental deliberative process privilege and confidentiality lie legitimate opportunities to critique the EEOC’s competency and long-term efficacy, just based on the litigation that has recently reached the surface. In Picture People, the EEOC resisted transparency to conceal an incompetent investigation; in Kaplan, the EEOC cited government deliberative process to hide, among other botches, the reality that it engaged in the same hiring practice (i.e., credit scores) for which it was prosecuting this employer.  In fact, two extremely well-respected legal academics, Margo Schlanger of University of Michigan School of Law and Pauline Kim of Washington University School of Law, have recently published their longitudinal analysis of the EEOC’s litigation program, ultimately questioning its value as a tool to reform the workplace, here. If the EEOC’s litigation program—i.e., the cornerstone of our entire EEO enforcement model—is just another ineffective, bureaucratic burden, then all stakeholders (but particularly employers) should start asking fair cost-benefit questions about an administrative process so shrouded in secrecy.

Now that some courts have abdicated any oversight role in holding the EEOC accountable, only Congress’ “power of the purse” can pry open a window into the EEOC’s treatment of employers.  Given the EEOC’s resounding court defeats “above the surface,” employers must demand and/or find ways to CREATE more transparency into the EEOC’s super-secret administrative processes, or continue PAYING the consequences.

Merrily S. Archer, Esq., M.S.W., May 29, 2014

Has Private Litigation Advanced the March Toward Equal Employment Opportunity (EEO)

Politics Masquerading as Workplace Policy

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

Self-defeating Policy: Duping Stakeholders or Just Dumb?

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

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

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

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

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

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

The Great Divide between Rhetoric and Reality

Difficult to Prove . . . EASY to Allege

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

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

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

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

Déjà Vu All Over Again

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

Since CRA 1991: Measuring What Matters

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

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

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

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

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

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

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

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

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

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

Elevating Lawyers over Employers

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

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

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

Fostering Equal Employment Opportunity through Colorado Innovation and Collaboration

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

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

Some Straight Talk about the High Cost of EEOC Systemic Losses

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After the EEOC’s recent defeat in EEOC v. Freeman, a 2009 civil prosecution challenging the use of criminal background checks in hiring, social media came alive with legal alerts from various Biglaw outfits.  I gratefully posted several of them in SEEN, as well as other employment law/HR LinkedIn groups.  After all, with the EEOC’s policy of publicizing only its wins, settlements, and lawsuit filings, it is critically important to present a more balanced and accurate view of the enforcement landscape. 

Odds are, however, that the folks at Freeman are not exactly doing cartwheels over their EEOC victory.  Whatever elation they now feel will surely subside once they receive their legal bill, no matter which law firm championed their successful defense.  EEOC systemic investigations and prosecutions are crushingly expensive for employers and/or their EPL carriers, perhaps unnecessarily so in some ways.  Nevertheless, given the staggering expense of proving that they are right in the first place, employers must DEMAND more responsible and competent use of the EEOC’s prosecutorial discretion and public war-chest. 

Piling on the Attorney Heap

As a freshly-minted EEOC attorney in the 1990’s, it always amused me when I encountered an entourage of defense attorneys at every meeting, deposition or court appearance: if they knew how understaffed, underfunded and overworked we EEOC attorneys were, they’d never send an army to fend off little me, I thought.  When our skeleton EEOC crew successfully prosecuted a systemic age discrimination case, we literally joked about how every attorney in this mid-sized defense firm must be billing on this one case.  At the EEOC, by contrast, we litigated lean. 

Years later as a Biglaw defense attorney, I freaked when the EEOC announced its enforcement shift to systemic discrimination on April 4, 2006 (not coincidentally, the anniversary of Dr. King’s assassination).  I probably even earned the moniker of “Chicken Little of Systemic Discrimination;” in fact, my local colleagues at one Biglaw outpost actually turned my obsessive musings about systemic discrimination into a drinking game. 

Nevertheless, in early 2007, the EEOC hit one of my firm’s giant institutional clients with systemic investigation related to its use of criminal background information in the hiring process.  Given my background (but still, as an afterthought) I became part of an entourage of partners, associates, and adverse impact “analysts” working the file.  I “earned” the responsibility of responding to the EEOC’s RFI’s, while only “relationship partners” communicated with the client’s in-house counsel and could talk in marathon conference calls—i.e., an unduly expensive telephone game. All I knew is that I was really busy; I still have no idea what the other seven attorneys did.  Anyway, about five years after it started and long after I’d left this firm, I learned that the employer settled with the EEOC for over $3.3 million. With seven attorneys billing on the case for five years, I can only imagine the final price tag. In any case, and in my humble opinion,  one (maybe even two) minimally knowledgeable and competent litigators could have settled the case for $3.3m long before incurring five years of Biglaw legal fees. 

At another Biglaw outpost, a partner in a distant office requested my help with a “directed investigation” that the EEOC had initiated, alleging that this employer’s use of a manufacturing skills test screened out older applicants.  I immediately teamed up with my longtime, trusted statistical and test validation expert, understanding quite well the importance of having adverse impact analyses conducted on ANY dataset turned over to the EEOC.  To keep fees low, I advised this one-client partner that EEOC systemic investigations and prosecutions do not require an entourage of lawyers, but rather the right skill set: (1) an excellent statistical and test validation expert; and (2) a knowledgeable legal strategist.  He assigned a giant entourage of lawyers in his distant office anyway, while I (in Colorado) and our expert (in California) formulated and handled the substantive defense.  Ultimately, the EEOC ended its directed investigation after our expert demonstrated the absence of any statistically significant adverse impact against older workers by clarifying several pivotal incorrect assumptions the EEOC had made about the data and applicant flow.  The winning argument was not a LEGAL argument, but rather a STATISTICAL one developed by a PhD-level expert at an hourly rate far less than standard legal fees. 

Winning (in Context)

I fault these experiences for ruining the genuine excitement that employment defense attorneys should enjoy watching our federal courts set limits around the EEOC’s runaway systemic initiative.  In December 2012, for example, a federal judge in Ohio smacked down the EEOC’s flagship prosecution on CREDIT REPORTS, EEOC v. Kaplan University, in which the EEOC had argued that Kaplan’s use to credit reports in hiring financial aid analysts had an adverse impact on African-American applicants.  Problem is, Kaplan did not collect race information in the hiring process.  And so, to support its assumption that this practice disproportionately screened out African-Americans, the EEOC resorted to applicants’ driver’s license photos and data, counting anyone who looked or sounded African-American as African-American–i.e., creepy, racist stereotypes.

Quite understandably, the defense’s PhD-level expert went nuts, establishing that the EEOC’s use of “race raters” was simply too unreliable for admission as expert testimony.  Once the defense knocked out the EEOC’s threshold statistical case on a Daubert motion, the entire EEOC prosecution crumbled on summary judgment. Ultimately, the winning argument focused on statistical, not legal grounds.  According to the Bloomberg BNA write-up of this important defense victory, however, this excellent result necessitated the involvement of eight attorneys, seven from a single firm. 

In EEOC v. Freeman, the district court also sharply criticized the EEOC’s statistical analysis, calling it “an egregious example of scientific dishonesty” and noting a “mind-boggling” number of errors, including miscoding the race of certain job applicants.As in Kaplan, the court dismissed the EEOC’s prosecution on summary judgment with a stinging rebuke, correctly noting that whether a practice causes an adverse impact depends entirely on the composition of the applicant pool, not overbroad assumptions about the impact of criminal background checks generally.  Nevertheless, I wonder how many attorneys it took to advance that winning statistical argument.

Takeaways for Employers and EPL Carriers

Given the realities of the EEOC’s systemic initiative and our courts’ reception of it, three main “takeaways” emerge for employers and EPL carriers:

Winning defense arguments are often STATISTICAL, not LEGAL

Excellent defense outcomes depend on competent adverse impact analyses performed by PhD-level industrial psychologists or labor economists. Despite its professed “expertise”, the EEOC consistently botches the adverse impact analysis necessary to make its prima facie case of disparate impact discrimination. Based on these botched analyses, the EEOC lurches forward with these expensive investigations, even using faulty logic/data to justify seven-figure monetary demands in conciliation or settlement discussions.  A competent adverse impact analysis performed by a PhD-level expert can actually scare away EEOC systemic investigations, minimize the “shortfalls” the EEOC uses to negotiate settlements, and defeat an EEOC prosecution.  Both the Kaplan and Freeman decisions make clear that statistical (not legal) arguments carry the day.

It does not take an entourage of attorneys to present a winning STATISTICAL argument

No doubt, the EEOC hopes to settle every systemic case for millions of dollars as some kind of sick return on its time/money investment; after all, last year, the EEOC equated its historic collections from employers with evidence of “enforcing the law more effectively.”  Million dollar exposure, however, does not justify million dollar attorney “pile-ons.” Because systemic cases often succeed or fail based on threshold statistical considerations, in-house counsel and EPL carriers must become more savvy about the actual skillsets needed to yield cost-effective outcomes—e.g., a PhD-level expert and one (maybe even TWO) knowledgeable attorneys. 

Employers deserve better from the EEOC

Given the staggering defense expense of EEOC systemic investigations/prosecutions, employers must DEMAND more reasonable and competent use of its enforcement powers and prosecutorial discretion.  The EEOC is well aware that employers are spending millions to fend off its systemic investigations and prosecutions, which are often based on faulty, even “laughable” and “scientifically dishonest” statistical analyses.  Notably, the EEOC’s entire systemic initiative hinges on the theory that certain employer screening practices adversely affect certain protected groups more than others, “a theory in support of facts to support it,” as the Freeman court described.  While this theory may have generalized support in social scientific literature, the determination whether a particular employer’s practice causes an adverse impact depends entirely on a specific applicant pool.  As a practical matter, therefore, the EEOC has placed individual employers in the unfortunate position of spending millions to disprove the EEOC’s generalized theory about credit and criminal background checks, a theory that has not stood up particularly well to the scrutiny of peer review and the litigation process.  

Despite the EEOC’s recent setbacks, employers and EPL carriers are probably stuck with the EEOC’s preference for big, systemic cases for the foreseeable future.  Employers and EPL carriers must, therefore, get smarter about how these cases are defended and staffed.   Unfortunately, most attorneys personify the old adage “he who is good with a hammer thinks everything is a nail.” They treat indispensable experts like playthings, not partners, and then overstaff the matter with the wrong skill sets (e.g., layers of attorneys).  If employers are going to weather the EEOC’s systemic storm intact, however, they must learn to use the right “tools” for the case. 

EEOC Mediation Survey: Q4 Rush Push!

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EEOC Mediations: Share Your Experiences!

Last year, the EEOC characterized its historic collections from employers ($365.4 million) as evidence of “enforcing the law more effectively.”  If the EEOC equates efficacy with employer settlement money, what will EEOC personnel say and do to get it? We inquired . . . although we have enough responses to draw supportable conclusions about what representations the EEOC makes to “encourage” employer settlements, we’d like to hear from as many practitioners as possible.  This confidential survey takes less than 90 seconds to complete, but will yield helpful information that will ultimately save employers MONEY.  We plan to discuss the survey results at a free, HRCI-accredited webinar on November 13, 2013 at 12:00 p.m. and in our EEO Legal Solutions blog at www.eeolegalsolutions.com. 

https://www.surveymonkey.com/s/F5KLP2B