Change Offers Clarity: EEO in Trump’s America

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

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

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

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

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

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

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

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

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

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

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

(303) 248-3769 (office)

archerm@eeolegalsolutions.com

 

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

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

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

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

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

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

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