Our Workplaces Don’t Work

Our workplaces aren’t working. Since the passage of the Civil Rights Act of 1991 (“CRA 1991), our workplaces have become “overlawyered” regulatory quagmires in which employers balance competing laws and risks on a daily basis:

  • the risk of a negligent hiring/entrustment/supervision claim versus the risk of an EEOC systemic investigation over use of pertinent criminal background information
  • the risk of retaining an underperforming employee versus the risk of an EEOC charge
  • the risk of workers’ compensation claims against the risks of claims under the Americans with Disabilities Act of 1990, as amended (“ADA”) and the absurdly complicated Family and Medical Leave Act (“FMLA”)
  • the risk of financial collapse versus the risk of individual and systemic EEO claims arising from a necessary Reduction-in-Force
  • the risk of going out of business versus the risk that the EEOC will impose its judgment regarding what constitutes “successful” job performance…

And on it goes . . . employers have become stuck in this “damned-if-you-do-damned-if-you-don’t” EEO regulatory maelstrom, sacrificing basic management considerations of employee accountability, reliability, and even competency.

Law firms haven’t helped either. Attorney rates and billing practices have increased defense costs to the point where employers believe that they can no longer afford to defend themselves, either in hyper-aggressive EEOC regulatory actions and/or private lawsuits. In fact, the law firm model itself elevates the BILLED attorney over the SKILLED attorney able to recognize and contain EEO risk cost-effectively.  As a result,  employers too often end up paying for expensive “solutions” to minor problems.

Certainly, Employment Practices Liability [EPL] insurance helps employers avoid the potentially catastrophic financial risk of many EEO claims. But, EPL policies end up feeding the very law firm machine that too often produces expensive solutions to comparatively minor EEO problems. With deductibles increasing claim-by-claim, employers must develop an overall EEO risk management strategy, not just an EEO claims management strategy. Flipping every EEOC matter to outside counsel might be a “process;” it cannot fairly be characterized, however, as a strategy.

During this post-CRA 1991 surge of EEO claims, another trend has emerged: the growth and professionalization of Human Resources as a valued business partner. Through the Society of Human Resources Management and its state chapters, visionary educational institutions that have developed HR’s expansive body of knowledge, and corporations that recognize HR as an instrument of organizational effectiveness, HR has become a sophisticated “voice at the table.” More importantly, with many HR professionals possessing advanced degrees and certifications, HR can, with proper coaching, more cost-effectively take on many of the duties once previously assigned to outside employment counsel, particularly handling lower risk EEOC charges.

Social workers often talk about “working themselves out of a job.” In social work/ mental health crowds, the old joke “I’ve had the best therapist for 25 years” is uproariously funny. In other words, social workers strive to become so effective that their clientele do not need them anymore. This ethic has literally haunted, plagued and ruined my experience at each workplace boutique and defense law firm I have served since leaving the EEOC in 2000. With a background and graduate education in social work, my goal is to empower employers and HR colleagues in the trenches not to need me through training, coaching, and strategic litigation management—contain risk early, but fight when you’re right. This approach works great for employers, but, intentionally, does not yield bloated billable hours.

The EEOC will likely announce that it has received over 100,000 new charges for FY2012, particularly in the big discrimination “growth areas” of AGE and DISABILITY discrimination and RETALIATION. Given the increased risk of EEOC charges, employers must adopt a more cost-effective strategy for managing the risk and ensuring workplace accountability. With that infrastructure, employers can weather the EEOC’s regulatory crackdown while still meeting its legitimate business and job performance objectives.