Auditing for Compensation Discrimination

When: 05-21-2014 | 12:00 pm MDT


The EEOC and OFCCP have both announced crackdowns on workplace wage disparities ostensibly due to gender, ethnicity, and race.  For most employers, these disparities arise from a complicated constellation of factors tied to length of service, performance, disparate duties, etc.  Nevertheless, without documentary support to explain these reasonable disparities, employers can fall prey to lengthy, expensive regulatory investigations.  In short, it pays to detect and address pay disparity issues before the EEOC and OFCCP do.

EEO Legal Solutions is delighted to team up with compensation discrimination expert Patrick Nooren, PhD of Biddle Consulting Group.  Patrick literally wrote the book on auditing for pay discrimination, and can guide you through some essential exercises to detect potential pay problems in your compensation structures.

This webinar is approved for 1 General HRCI credit.

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Our FOIA Fight for EEO-1 Data (and Why Winning Matters)


On March 7, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) ultimately agreed to publish two more years (1996 and 1997) of aggregate EEO-1 data in electronic, researchable format by May 1, 2014 and “to begin the process of converting the aggregate EEO-1 data into electronic format for the years from 1966 to 1996 as resources allow.”  Read the EEOC’s recent Appellate Determination here.  The battle to get the EEOC to release this public data, however, is a story worth telling.  And, without public scrutiny, will the EEOC follow through on its data-publication promises?

For over four decades, the EEOC has required employers with 100 or more employees to submit an annual EEO-1 survey of the gender and racial/ethnic composition of their workforces, which provides (in the EEOC’s words) a “rich database for various uses.”  To that end, the EEOC has already made available on its website aggregate EEO-1 data for the years 1998-2012, here.   Recently, EEO Legal teamed up with Dan Kuang, Ph.D. of Biddle Consulting Group to analyze this public, granular database, to measure the pace of progress of women and minorities toward achieving top jobs across industries—i.e., Official/Manager positions in EEO-1 speak.  Our initial analysis yielded startling results: in our march to the top, women’s progress has flat-lined; Asian-Americans are gaining on Whites; and African-Americans have lost ground.

Intellectual (and morbid) curiosity took hold, making us wonder about larger trends over time.  For this one measurement of progress (i.e., attainment of top positions across industries), we wondered whether we could correlate any statistically significant changes with any major regulatory and/or legal enforcement shifts over Title VII’s 50-year history.   We quickly realized, however, that we needed a much larger swatch of data to draw any statistically meaningful conclusions . . .

. . . and hence, our odyssey to obtain this publicly available data from the EEOC under the Freedom of Information Act (FOIA) began.

Overcoming “No Mode”

In late November, after researching online the EEOC’s FOIA process, I called Stephanie Garner, Assistant Legal Counsel at the EEOC overseeing FOIA programs, using the phone number provided; much to my pleasant surprise, Ms. Garner answered the phone.  While describing the nature of our data request, Ms. Garner interrupted, Let me stop you right there.  That data is confidential, she claimed.  Our initially pleasant discussion then turned tense, as I read from passages of the EEOC’s website describing aggregate EEO-1 data as “publicly available.” Later that day, we tendered our initial FOIA request for raw, aggregate EEO-1 data from 1966 (or as early as practicable) to 1998, specifically rebutting the reasons Ms. Garner initially gave for perfunctorily denying it over the phone.  Ms. Garner, we correctly sensed, had switched into “No Mode,” an officious reluctance to serve the public that I observed firsthand among numerous career EEOC personnel during my brief EEOC service (1997-2000).  Sure enough, that SAME day, Ms. Garner’s administrative assistant summarily denied it because our FOIA request listed only an electronic, not physical, address to which to produce the requested electronic data.   No Mode.

Several weeks (and the FOIA deadline) passed.  During this time period, we proposed several FREE options for the electronic transfer of the requested data, without response.  Eventually, after the EEOC’s delinquency hit the three-week mark, I contacted Ms. Garner again by telephone.  Ms. Garner answered, and expressed surprise that I’d not heard from her subordinate, Tracy Smalls, about our FOIA request.  Ms. Garner stated that Ms. Smalls had recommended denying it because the EEOC had made the same information publicly available in its 2011 Report, Indicators over Time.  Another spirited discussion ensued about the difference between DATA and the INTERPRETATION OF DATA, and the many data-gaps in the 2011 Indicators over Time report.  Out of sheer frustration, I probably even blurted out that our FOIA request derived, in part, from the manipulative manner in which Indicators over Time reported EEO-1 data.  At this historic milestone (Title VII’s 50th anniversary on July 2, 2014), I pleaded, EEO researchers and advocates must have access to this data—data exclusively in the EEOC’s possession—to measure our progress and tinker with initiatives that may better advance the march toward EEO.  Apparently unpersuaded, the EEOC issued a written Determination denying our FOIA request based on the Indicators over Time report shortly thereafter.  No Mode again.

FOIA requires requesting parties to first file an administrative appeal before initiating any litigation in U.S. District Court.  To that end, we immediately launched an administrative appeal of this Determination, making clear that we wanted the data, not the fight.  Still, over the next several weeks, the EEOC’s FOIA bureaucracy sent several conflicting letters by email and snail mail that created confusion about whether our FOIA request was in appellate status or was still awaiting a Determination.   During this January, 2014 period, EEOC Commissioner Chai Feldblum also got involved, curiously noting that as a Commissioner, there was probably not a lot she could do, but that she is following our battle.

Then, on January 22, 2014, Ms. Garner issued another Determination with a new way to deny our request.  No Mode again, but with a twist.   According to this Determination, the EEOC has no legal obligation under the Electronic Freedom of Information Amendments Act of 1996 to provide electronic data prior to 1996.   True enough.  For the years 1996 and 1997, however, Ms. Garner determined that EEO Legal Solutions had requested this data for a “commercial purpose” and accordingly, must pay approximately $12K to $15K for EEOC personnel to “digitize” EEO-1 data into electronic, researchable format.

EEO Legal Solutions filed yet another administrative appeal.  The EEOC’s demand for upwards of $15K so that EEOC personnel can make public data electronically available, we argued, amounts to per se evidence that the EEOC has NOT complied with the 1996 electronic amendments to FOIA.  We also pointed out that the conduct of the EEOC’s FOIA personnel violated the letter and spirit of President Obama’s 2009 mandate to federal agencies to err in favor of disclosure, as well as the “Presumption of Openness” expressed in Attorney General Eric Holder’s March, 2009 directives to federal agencies.  We challenged the EEOC to justify its finding that we requested this EEO-1 data for commercial purposes, and referenced other non-attorney academic researchers who have, anecdotally, also tried in vain to wrest this important public information from the EEOC.  And, well, because not all the solutions at EEO Legal Solutions are legal, we threatened to launch a broad-based “Demand the Data” campaign on social media.

And, for all intents and purposes, it worked.  In its recent Appellate Determination, the EEOC agreed to PUBLISH on its website electronic EEO-1 data for the years 1996 and 1997 by May 1, 2014 without charge and “as resources allow,” to begin the process of converting pre-1996 data into electronic, researchable format.  According to the Appellate Determination, the EEOC now “recognize[s] the public interest in having the pre-1996 data available in electronic format.”  For civil rights, affirmative action, and equal employment opportunity geeks (like me), gaining access to more EEO-1 data opens up a world of research possibilities—e.g., to continue measuring how far we’ve come in the march toward EEO, to examine what enforcement initiatives WORK to equalize opportunity at all organizational levels, and to make workplace policy recommendations based on real DATA.

Holding the EEOC to its Publication Promises

Throughout this FOIA odyssey, we reinforced that we wanted the DATA, not the fight, and we got the data.  The FIGHT, however, would have enabled us to obtain a court order that imposes actual timetables on the EEOC for the publication of this EEO-1 data.  By conceding our appeal, the EEOC has made it impracticable, unwise, and largely unnecessary for us to file a FOIA lawsuit in U.S. District Court, the next step in the FOIA enforcement process.  A federal judge would rightfully put teethmarks in my backside for seeking judicial intervention when the EEOC has now agreed to produce more electronic data than the 1996 FOIA amendments technically require.  Unfortunately, without the threat of a lawsuit, we may actually lack LEGAL “teeth” to enforce the EEOC’s data-publication promises.

But, not all “teeth” are LEGAL either.  Through this blog, your interest, and our Twitter updates at #EEOData, we aim to hold the EEOC accountable for delivering on its commitments to publish all EEO-1 data on its website.  Without sharing news about our FOIA fight and micro-victory, no one would have even known about the EEOC’s decision to make more raw, EEO-1 data available for research, and the six months of wrangling it took to get there.  In fact, getting the EEOC to produce this publicly available EEO-1 database—i.e., a database in which the EEOC recognizes a “public interest”—theoretically cost about $20K in attorneys’ fees, grappling with one meritless Determination after another.

Please stay tuned for updates.  We will continue to monitor the EEOC’s website to determine whether the EEOC has kept its promises.  We are also counting on YOU to increase awareness of this powerful database, the struggle to get it, and its many potential, important uses.

 Merrily S. Archer, Esq., M.S.W.,  April 9, 2014

Defensive Management 101: Shields for Supervisors

When: 04-23-2014 | 12:00 pm MDT

 and Tools for Building Defensible Workplaces


In workplace lawsuits, employee-side attorneys cast supervisors as villains whose statements, acts, decisions, and omissions should (1) impute liability to the overall organization; and (2) justify, in certain cases, the imposition of individual liability against them personally (e.g., FLSA, FMLA, torts).   Despite their critical role and risk in employment disputes, HR practitioners and corporate counsel too often overlook the importance of “co-opting” line supervisors in building a culture of compliance.  In fact, when properly trained, supervisors are the eyes, ears, and hands of HR and compliance counsel: they spot issues, detect disputes, involve appropriate stakeholders, escalate problems, and implement action plans, all of which can help stop everyday workplace clashes from degenerating into litigation. 


This webinar speaks directly to your supervisors, offering practical “defensive management” tools for today’s workplace.  We’ll cover (1) the current regulatory climate and corresponding need to partner closely with HR and compliance counsel on personnel decisions; (2) basic defense themes in employment litigation and how to develop effective documentation to support them; (3) common trouble spots that can result in individual liability for supervisors and how to avoid them; and (4) best practices for minimizing the risk of litigation. 

This webinar is also a work in progress that can benefit from YOUR participation and input.  Ultimately, based on participant feedback, we plan to re-record this webinar so that you have a FREE online training resource to share with your supervisors. 

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Jumpstarting the Stalled March toward Equal Employment Opportunity

Part I: Measuring What Matters at Title VII’s 50th Anniversary


Title VII of the Civil Rights Act of 1964 (“Title VII”) will turn 50 on July 2, 2014.  Over the past year, we have already observed the 50th anniversary of Dr. Martin Luther King’s March on Washington for Jobs and Freedom, as well as the assassination of John F. Kennedy, significant historic events that prompted Title VII’s passage.  In his famous “I Have a Dream” speech in August, 1963, Dr. King entrusted our generation with the important task of keeping the march toward equal employment opportunity  moving forward and developing new, innovative ways to deliver on Title VII’s promises.

We’re failing, not only these civil rights trailblazers, but also the kids marching behind us.

Employer Money:  A Poor Proxy for Progress

In passing Title VII, Congress created the U.S. Equal Employment Opportunity Commission (EEOC) to eliminate workplace discrimination “through informal efforts of conference, conciliation and persuasion.”  Nearly 25 years after its passage, trial/employment lawyers urged Congress to amend Title VII to allow for jury trials, compensatory/punitive damages, and automatic attorneys’ fees awards.  They insisted that if Congress made it worth it (financially) to prosecute discrimination matters in court, they– as mini-deputized Attorneys General–would help an underfunded EEOC end discrimination and by logical extension, foster equal employment opportunity for Title VII’s beneficiaries. To learn more about CRA 1991’s brief legislative history, click here.

Since adopting CRA 1991’s “gladiator” enforcement model of Title VII, a tremendous amount of money has changed hands between employers, Employment Practice Liability (EPL) insurance carriers, trial lawyers, defense attorneys, and employees who raise allegations of workplace discrimination, harassment or retaliation (collectively, “discrimination”).  In fact, 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.”

But does the amount of money collected from employers really measure our progress toward eradicating discrimination and promoting EEO?

Of course not, and the EEOC knows better.  First, a recent survey of employers regarding common statements that EEOC mediators make in its “fabulously successful” ADR Program shows that mediators emphasize cost-of-defense, not charge merits, when encouraging employers to pay more money to resolve discrimination charges. EEOC mediators even threaten [disingenuously] EEOC enforcement action (e.g., cause determinations, systemic investigations, and prosecutions) to ratchet up employer monetary payouts.  Accordingly, the EEOC is well aware that cost-of-defense considerations, more than charge merit, now drive employers’ settlement deliberations.  In fact, the EEOC exploits that state of affairs so that it can later equate its efficacy with the amount of money it has “secured” on behalf of “victims.”

Second, because of the proliferation of EPL insurance following CRA 1991, employers and EPL carriers now treat ostensibly intentional discrimination claims like any other unavoidable, insured business risk.  Based on business (i.e., cost-of-defense) considerations alone, EPL carriers routinely pony up $25K to $50K in settlement proceeds, just to dodge suffocating defense costs.  Without EPL insurance, most employers can no longer afford to fight even when they’re right given the non-recoverable nature of defense fees.  By design, EPL insurance took the sting out of the stick of CRA 1991’s enhanced remedies and amplified risks.  Now, money changes hands in an automatic cycle of employers, EPL carriers, defense attorneys, trial lawyers, and then lastly discrimination claimants. The amount of money changing hands, however, makes a poor proxy for progress toward equal employment opportunity.

More Meaningful Measurements

Ultimately, a candid assessment of how far we have come at this historic, 50-year milestone begins with measuring what matters.  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; (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 outcomes.  We welcome your additions to this list; please join the conversation.

Looking for progress through this analytic lens, the march toward equal employment opportunity has decelerated for most of Title VII’s intended beneficiaries; African-Americans have actually lost ground in recent years.

Private Sector Progress of Women/Minorities toward Attaining Official/Manager Jobs

EEO Legal Solutions recently teamed up with Dan Kuang, PhD of Biddle Consulting Group, LLC in Folsom, California to analyze publicly available EEO-1 data from 1998-2012.  The EEOC requires all employers with 100 or more employees to provide an annual “EEO-1” report regarding the gender, racial, and ethnic composition of their workforces, resulting in a large database of granular employment data across industries.  Our analysis measured the pace and trajectory of women, Latinos, Asians, and African-Americans toward achieving top jobs across industries—i.e., Official/Manager positions in EEO-1 speak.  How far have women/minorities come in reaching the top?

Here’s what we discovered:

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 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”, however, 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 find 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 steep increase since 2002.  African-Americans have lost ground since 2008, however, and have fallen behind Latinos, in their march toward inclusion at the top.  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.

Improved Opportunity for African-Americans in the Federal Workforce

In a 2013 report, the EEOC has openly acknowledged that despite its greater control over federal sector discrimination issues, African-Americans still face significant obstacles in obtaining employment and advancing within the federal personnel system.

Comparable Rates of Unemployment Among Racial Groups

According to a U.S. Department of Labor, Bureau of Labor Statistics employment report issued on March 7, 2014, unemployment remains highest among African-Americans, with a sharp spike in 2010.  Latinos follow in a distant second, but Whites now outrank Asian Americans in terms of overall unemployment rates.  The burdens of unemployment, and of economic downturn, are not evenly shared, still hitting African-Americans the hardest.

Improved Perceptions of Workplace Fairness

The election of President Obama initially infused everyone with the hope that racial barriers (and maybe even gender, sexual orientation, and disability barriers) were starting to crumble.  According to a recent Gallup poll, however, a majority of African-Americans still feel disadvantaged compared to Whites in obtaining employment.  Notably, African-Americans’ confidence in equal employment opportunity has waned since 1995, shortly after the implementation on CRA 1991.  Further, the EEOC continues to take in nearly 100,000 new charges of discrimination every year, which suggests that increasing numbers of employees perceive their workplaces as discriminatory.

International EEO Leadership among Modern Societies and Economies

The U.S. is ranked at 69th in the world in terms of women’s representation in national legislatures or parliaments (tied with Turkmenistan) out 188 direct election countries (as of October 31, 2011), down from 57th in November 2004.  The U.S. lags behind Israel, Canada, and even South Africa in the number of female CEO’s, and behind many European nations in the number of women holding seats on boards of directors.  In fact, the U.S. has fewer female Board chairs  than Turkey, South Africa, and the Philippines.

Title VII’s golden anniversary provides a golden opportunity to assess whether our methods have worked to promote equal employment opportunity.  Given foreseeable market responses to CRA 1991, particularly the proliferation of EPL insurance among employers, this privatized litigation enforcement model no longer works, by itself or at an acceptable pace, to fulfill Title VII’s promises.  At one historical point in the march, the notion that the EEOC and “gladiator” trial/employment lawyers could reform the American workplace initially resonated with me and made me believe in a victim/villain paradigm of employment disputes that, I quickly discovered while working at the EEOC, bears little resemblance to reality.  With 20 years of data to draw on, however, we must now accept that with CRA 1991, Congress entrusted the march toward equal employment opportunity to trial lawyers, and trial lawyers have done exactly what trial lawyers do–namely, find a way to profit from the problem without actually solving it.

Please stay tuned for Part II where we will address specific non-litigation based policy recommendations to jumpstart our march toward equal employment opportunity.

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

March 12, 2014

Weed at Work: Upholding Safety and Performance Standards in these High Times

When: 03-26-2014 | 12:00 p.m.

shutterstock_124875025What a long strange trip Colorado’s Amendment 64 will be for Colorado’s employers

Now that the smoke has cleared (a little), Colorado’s Amendment 64 has left employers holding a bag of new workplace issues: can Colorado employers continue to maintain their drug-free workplace policies, as well as their safety, performance and disciplinary standards?

EEO Legal Solutions is delighted to partner with Julie Pate-Gurule, Esq. of Employment Compliance Solutions, LLC.  As a former attorney with Mountain States Employers Counsel (MSEC) and as an in-house counsel, Julie understands the daily challenges HR practitioners and attorneys face when navigating the regulatory minefield in our workplaces. In this webinar, Julie will guide participants through the evolving law of weed at work and acquaint them with best practices for maintaining their performance and safety standards.

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

Politics Masquerading as Workplace Policy


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, 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 . . .


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)

Why Hire PEOPLE? Rethinking Workplace Policy in the Age of Technology

shutterstock_101985643On Friday, January 31, 2014, President Obama called on CEO’s of the nation’s largest employers (McDonald’s, Morgan Stanley, and Wal-Mart) to hire long-term unemployed  and “credit challenged” people.  Given the employment litigation climate, however, why SHOULD they?

Drones, Krones and Apps

The “Octocopters” that Amazon CEO Jeff Bezos unveiled on CBS’ 60 Minutes in December of 2013, dazzled the daylights out of me too.  According to Bezos, these drones (called Amazon “Prime Air”) will fly packages from warehouse to doorstep within 30 minutes.  “Prime Air vehicles will be as normal as seeing mail trucks on the road today,” Amazon said in a statement, and could be available four to five years, pending further safety testing and FAA approvals.  In response, the Senate scheduled a hearing in 2014 to address the “economic benefits and threats to airspace.” 

Economic benefits for whom, I wondered?  Unlike mail trucks, unmanned drones are, well, UNMANNED, another human job lost to technology.  In fact, it looks like Amazon, the world’s largest online retailer, has figured out other clever ways to take PEOPLE out of the operational equation.  In Amazon’s massive distribution centers around the country, finding people among the busy bustling KRONES (i.e., high tech robots developed by Kiva Robotics Systems) is pretty tough.  Kiva robots do most of the heavy lifting and thinking, eliminating the risks of hiring PEOPLE: workplace injuries, lawsuits, human error, unreliability and unpredictability, to name a few.  By eliminating these risks, however, Amazon has simultaneously eliminated livelihoods of PEOPLE (i.e., warehouse workers and delivery drivers).   To say the least, therefore, the economic benefits of Amazon’s drones and Krones are not evenly distributed.

Just as righteous indignation started to surge, I realized that I, as a small business owner, have done exactly the same thing—i.e., used technology to avoid hiring PEOPLE.  At Biglaw, I had a secretary to handle dictation and court filings, a paralegal to manage documents, a receptionist to answer phones, in addition to an entourage of billing clerks, marketing coordinators, and miscellaneous “office support” (e.g., coffee and copy makers).  In setting up EEO Legal Solutions in May, 2012, I deliberately invested in technology (and in myself to master it) to slash the unnecessary “people overhead” that contributes to unreasonable rates.  Now, Dragon software handles my dictation (more accurately, actually); Adobe Acrobat makes document management and production a snap; Citrix’s online products, tablets, and smartphones foster fast communication and access; and other entrepreneurs in billing, IT, and marketing fill in any gaps . . . at a fraction of the cost and risk.  Worse, I openly criticize Biglaw for increasing rates when the actual cost of practicing law has decreased, again, due to technology. 

In an era when “there’s an App for that,” why hire PEOPLE?  That same question apparently occurred to Professors Erik Brynjolfsson and Andrew McAfee of the prestigious MIT Sloan School of Management years ago in their article How Technology is Destroying Jobs.  According to these researchers, advances in computer technology (e.g., robotics, automated translation) account for the sluggish employment growth over the past 10 to 15 years.  More troubling, these MIT academics forecast dismal job prospects as employers increasingly adopt new technologies “not only in manufacturing, clerical, and retail work but [also] in professions such as law, financial services, education, and medicine.”  In fact, Professors Brynjolfsson and McAfee argue that technology is replacing jobs faster than it is creating them, which explains why the past 10 years have seen economic growth, with no parallel increase in job creation. 

The Problem with People

No problem ever got less complicated by adding more people ranks high on my list of “inalienable truths” to emerge from years as an EEOC attorney, defense litigator, social worker, and more recently, a small business owner.  Although academics disagree about the core cause of technological job displacement, few of them have addressed the downstream legal risks that employers face when hiring PEOPLE for any job. 

For employers, hiring people means complying with a morass of federal and state laws governing every aspect of the employment relationship.  For employers, hiring people means submitting to the enforcement authority of overlapping federal and state administrative agencies.  For employers, hiring people means risking later litigation arising out of basic personnel decisions (e.g., firing, hiring, operating while accommodating) under numerous regulatory schemes.   And, these schemes now come fully loaded with a private civil litigation remedy, enabling plaintiffs’ lawyers to exact cost-of-defense settlements for alleged violations.  More here.   For employers, these realities make the choice between technology and people pretty easy:

after all, technology may fail me, but it will never sue me. 

Pushing Employers Away from People: Bad Enforcement Policy

Our current, public policy approaches to enforcing workplace rights—e.g., privatized civil litigation–drive employers away from using PEOPLE for the job.  Now, before proceeding further, I do NOT advocate workplace deregulation.  History provides numerous examples of the horrors of child labor, unsafe working conditions, picket line violence, blatant discrimination, unlivable wages, inhumane working hours, and other forms of human exploitation.  Each regulatory effort evolved to right a specific workplace wrong and to raise the “federal floor” of economic decency and fairness, ensuring relatively uniform conditions, standards, and rights. 

Yet, our mechanisms for enforcing these uniform conditions, standards and rights (i.e., a privatized litigation scheme that rewards lawyers at the expense of employers) pushes employers away from hiring PEOPLE at all, particularly in the equal employment opportunity (EEO) arena.  These days, employers find themselves stuck between the increasing likelihood of EEO disputes and the increasing, if not suffocating, cost of defending against them.  More here.  Worse, the U.S. Equal Employment Opportunity Commission (EEOC) admittedly has used its regulatory enforcement power to carve out new protected classes, to expand its authority, and to substitute its judgment for employers’ regarding workplace operations and minimally effective job performance, which exposes employers to even more private litigation. 

Paradoxically, in an EEOC prosecution I defended a few years ago under the Americans with Disabilities Act (ADA), EEOC v. Picture People, the EEOC literally took misanthropic positions that cut against using PEOPLE to interact with other PEOPLE in a retail or restaurant setting . . . all in the name of vindicating one person’s ADA rights.   In fact, the EEOC attempted to order a national retailer to jettison its “strong verbal [oral] communication skills” requirement to accommodate a profoundly deaf person without any oral communication skills at all (e.g., lip reading, minimal speech).  In substituting its judgment for this retail employers’, the EEOC insisted that this highly interactive customer service and sales position could be adequately performed via text message, gesturing, writing notes, and pointing to available product; its own expert, however, conceded that these methods are “not as effective” as speech in a sales/customer service position.  Thus, instead of verbal exchanges characteristic of most retail and restaurant positions, the EEOC advocated using technology (e.g., text messages, computers/tablets) so that customers can place their own orders, confirm their own contact information, look at written material in lieu of a sales dialog, and interact with staff.   If the EEOC is right, why hire PEOPLE, even for the most people-centric positions? 

People matter, and deserve workplaces that are safe and fair.  In our efforts to protect people, our enforcement system dissuades employers from hiring them at all.   Because technology enables employers to avoid hiring PEOPLE to accomplish unskilled, repetitive and/or administrative tasks, we must re-think how we approach workplace policy, focusing on collaborating with employers, not making it easier to sue them.  Punitive approaches like the privatized civil litigation enforcement model of CRA 1991 have not proven effective at ensuring equal employment opportunity, although a substantial amount of money has changed hands since its enactment.   Given the overwhelming burdens of this enforcement scheme, technology will continue to provide a cheaper, more reliable, and less litigious alternative to hiring humans, thereby equalizing only a lack of employment opportunity for EVERYONE. 

 Merrily Archer, Esq., M.S.W., February 4, 2014



More Brainstorming, Less Blamestorming

Does EEOC General Counsel David Lopez Really Belong “Under the Bus”?


On January 27, 2014, EEOC Commissioner Constance Barker delivered the keynote at ACI’s Employment Practices Liability Insurance seminar before an audience teeming with defense lawyers and EPL carriers.  According to the Seyfarth Shaw’s description of her speech, Commissioner Barker acknowledged that the Obama Administration has used its executive, regulatory powers to make new law, given that the gridlock in Congress makes worker-friendly legislation difficult to pass.  She forecasted that because of “too much delegation of litigation decision-making” in the hands of EEOC General Counsel David Lopez, employers can expect more aggressive, extensive litigation in 2014.  She suggested that EEOC Commissioners should enjoy a greater role in deciding which cases the EEOC pursues in litigation, as though the GC (and the EEOC Legal Units) bear the fault and shame exclusively for the EEOC’s recent litigation debacles.  She then suggested that the EEOC’s Strategic Enforcement Program (SEP) will govern the regulatory efforts of EEOC personnel in the Field.  And finally, she predicted that litigation (and specifically, systemic litigation) will take precedence over discrimination prevention efforts.

Commissioner Barker’s comments reveal one of the EEOC’s historic institutional dysfunctions—i.e., the tension between EEOC Commissioners and the GC, all of whom are presidentially appointed upon Senate confirmation.  As a former EEOC Trial Attorney (1997-2000), I interpret her comments as an effort to deflect blame away from herself, Enforcement, and other Commissioners for the EEOC’s recent litigation failures in ADA and systemic matters.  But, these EEOC litigation failures simply reflect the iceberg’s tip of its bureaucratic defects—e.g., a legalish “enforcement” agenda, a warped measurement of efficacy, and an exploitative mediation and conciliation process that the Commissioners theoretically control on the Enforcement side of the EEOC house.  Remember that a long tortured Enforcement investigation necessarily preceded these litigation failures, which likely cost the employer MORE than the USDC litigation itself.

In last two Performance and Accountability Reports (PAR), the EEOC has equated its historic collections from employers as “enforcing the law more effectively.”  Employer MONEY has become the new “metric that matters” at the EEOC, and now drives the behavior of its personnel in the ADR (mediation) and Enforcement (investigation/conciliation) units.  Even though the Commissioners publicly peddle the SEP, its PAR’s still define success by how much money the EEOC has exacted from employers on behalf of “victims”, regardless of charge merit.  As our EEOC Mediation Study revealed, because money means “success”, EEOC personnel routinely exploit employers’ cost-of-defense conundrum, even threatening the use of EEOC enforcement powers to increase settlement payouts to employees and their attorneys.  Money changing hands, however, is no substitute for real EEO change.  

Particularly in this regard, the EEOC’s Enforcement and ADR Units inflict far more financial pain on employers than the Legal Unit in USDC litigation.  In FY2013, for example, the EEOC again collected a record amount of money, $371.1 million, from employers, broken down in Figure 1, below.  Collections resulting from verdicts and settlements in litigation made up only a very small part of the EEOC’s overall take in FY2013; by contrast, over 80% of dollars collected from employers came from Enforcement (i.e., typically during “conciliation,” after a finding of Reasonable Cause) and/or Mediation.

Figure 1

EEOC Money FY2013

More concerning, the EEOC’s administrative processes (e.g., Enforcement and ADR) occur under the carefully guarded cloak of confidentiality and “government deliberative process privilege,” which permits the EEOC strenuously to resist any judicial inquiry into its conduct.  Under the Freedom of Information Act (FOIA), the EEOC mechanically refuses to release charge information even to Respondent-Employers, unless and until a lawsuit already makes the allegations a matter of public record; even then, EEOC FOIA personnel redact any information that could invite scrutiny or criticism as “government deliberative process,” such as the basis for the Determination, the quality of the investigation, and the sufficiency of its conciliation efforts.  In peeking behind this EEOC’s iron curtain of confidentiality and “deliberative process,” however, our EEOC Mediation Study showed that EEOC personnel in the field seemed far more motivated by the “money metric” than some SEP cooked up by EEOC Commissioners in an ivory tower called “Headquarters.”  In reality, EEOC-initiated litigation marks the first opportunity to shine a spotlight on an otherwise confidential regulatory process, such that the EEOC’s litigation failures in systemic and ADA matters are just the first visible symptoms of more pervasive problems.   

Deflecting Instead of Doing

EEOC Barker then seemingly complains that because the EEOC’s prosecutorial discretion rests with the GC and not the Commissioners, litigation will continue to take precedence over EEOC prevention and compliance efforts.  This statement struck a dissonant (okay, disingenuous) chord: if the EEOC Commissioners sincerely bemoaned the likely increase in litigation, one would hope that they would take reasonable steps to mitigate its impact by investing MORE in EEOC compliance and prevention efforts.  After all, the Enforcement (i.e., Commissioners) side of the EEOC controls prevention programs and outreach. 

In various public outlets, we have suggested some cheap AND easy compliance programs that the EEOC COULD launch if it truly valued problem prevention–e.g., webinars, a YouTube training library, affordable Excel programming, publication of wins and losses so that employers have an ACCURATE view of the enforcement landscape.  These programs would fall squarely within the budgetary and organizational province of EEOC Commissioners, not its GC.  Given that the EEOC Commissioners have emphasized employer money as the measure of its success, however, it seems reasonable to question their commitment helping employers prevent EEO violations. Prevent works, but apparently, it does not PAY.  Likewise, ensuring that the EEOC maintains the credibility of its allegedly impartial ADR program also lies at the feet of EEOC Commissioners, not its GC.  And, defining meaningful measurements of success toward EEO (i.e., not employer payouts) is an inherently policy-related EEOC Commissioner function.  In this historic year, therefore, we would urge the EEOC’s Commissioners to stop deflecting blame for EEOC litigation failures, to recommit to improving EEOC’s problems directly within their control, and to start investing in collaborative efforts with employers to fulfill Title VII’s objectives.  After all, CRA 1991’s litigation-based enforcement approach has not worked well to secure equal employment opportunity anyway. 

Systemic Discrimination Litigation Defense: Understanding What’s Working

When: 02-19-2014 | 10:00 a.m. (PST), 11:00 a.m. (MST)

Background Checks

Systemic discrimination—particularly challenging employers’ “discriminatory hiring barriers” (i.e., qualification standards)—forms the foundation of the OFCCP’s and EEOC’s strategic enforcement plans.  Since announcing the shift to systemic discrimination in April, 2006, the EEOC has investigated and/or prosecuted numerous employers for using skill-based testing, criminal history information, and credit report scores to screen applicants.  These EEOC prosecutions, however, have not stood up to the scrutiny of the litigation process, garnering summary dismissals and stinging rebukes from federal judges on the threshold element of any systemic case—i.e., whether the challenged practice has statistically significant adverse impact on any protected group.  In fact, the arguments carrying the day in court are statistical, not “legal.”

In this lively webinar, Patrick Nooren, PhD of Biddle Consulting Group and Merrily Archer, Esq., M.S.W. of EEO Legal Solutions will

Provide insight into the OFCCP’s and EEOC’s focus on systemic discrimination;

Decrypt  theoretical terms like “systemic discrimination” and “disparate impact” and explain where these problems crop up in everyday HR practice;

Analyze two recent landmark EEOC prosecutions—EEOC v. Freeman and EEOC v. Kaplan, and showcase what went well, particularly the arguments that persuaded the court;

Offer practical suggestions about how to avoid landing in the EEOC’s systemic discrimination crosshairs, including how to use BCGi’s free, online adverse impact calculator.

We hope you can join us!

Register for this Webinar

Prevention Tips for Making 2014 an EPL Claim-Free Year!

When: 01-15-2014 | 12:00 p.m. (MST)


Workplace conflict is inevitable.  Nevertheless, Employment Practices Liability (EPL) insurance claims rank high on most employers’ lists of big hazards to avoid in 2014.  With a solid infrastructure to prevent and manage workplace disputes most ordinary “people problems” should never become legal ones that result in an EPL claim.

EEO Legal Solutions is delighted to team up with EPL guru Brit Weimer, Esq. of Jones Satre & Weimer PLLC in Minneapolis, MN to examine the most important facets of any EPL-claim prevention program.  We’ll offer cost-effective solutions for standard compliance activities (e.g., training, policy posting), introduce new techniques to avoid large-scale liability (e.g., FLSA, systemic discrimination), and explore the benefits of aggressive workplace performance management and dispute resolution programs.

An application is pending for one (1) General HRCI credit.

Register for this Webinar