PRIDE UPDATE: Denver Health LGBT Discrimination Litigation


The Denver Health LGBT litigation gathers momentum, with several key developments over the past eight weeks

The Status: Waiting to See if the Colorado Supreme Court Will Review

On April 4, 2019 (coincidentally, the 51st anniversary of Dr. Martin Luther King’s assassination), the Colorado Court of Appeals dealt another blow to the advancement of civil rights with the publication of its opinion in Houchin v. Denver Health, linked HERE. In a 2-1 split decision, the majority held that public entities like municipalities, county governments, and “special districts” (e.g. for school, fire, police, water, sanitation, parks/recreation, cultural events and facilities, health care . . .) enjoy complete governmental immunity from compensatory damages in litigation under the Colorado Anti-Discrimination Act (CADA). Unfortunately, LGBT workers only enjoy protection from discrimination under CADA. As a result, LGBT public servants working for one of these numerous spun-off special districts have only very limited rights and remedies when, as occurred in Houchin v. Denver Health, their employers intentionally and blatantly discriminate against them. For an interesting discussion about how state governments have systematically spun-off traditional state functions into “special districts,” check out John Oliver’s brilliant piece HERE.  

In any case, under the Court of Appeal’s unequal scheme, LGBT employees working for the State of Colorado or a private Colorado employer can recover CADA’s full panoply of remedies, which our legislature enhanced in 2013 to provide greater relief to LGBT employees suffering workplace discrimination. That kind of irrational differentiation, we argued, violates the Equal Protection clauses of the United States and Colorado Constitutions, provisions designed to guarantee equal treatment under the law of similarly situated people.

Much to our surprise, on May 13, 2019, Denver Health appealed the Court of Appeals order to the Colorado Supreme Court. Read Denver Health’s brief HERE. Denver Health’s grouse? The Court of Appeals did not buy its argument that governmental immunity completely bars employees from suing under CADA . . . Denver Health argued that effective January 1, 2015, its workforce no longer enjoys CADA’s protections. Unfortunately, only CADA protects LGBT employees, given that Title VII does not YET cover LGBT status. Worse, Denver Health provided no notice to its employees of this fundamental change in their workplace rights, even though General Counsel Scott Hoye agreed that the absence of anti-discrimination protections would be “relevant” to “some” of them.

Nevertheless, the Court of Appeals order would permit Houchin to litigate his LGBT discrimination allegations in Denver District Court and obtain the “equitable” relief of backpay, frontpay, and attorneys’ fees. And that’s the LAST thing Denver Health wants. After all, General Counsel Scott Hoye, who controls the flow of information to Denver Health’s Board of Directors and the payment of legal fees, participated in the discriminatory decision to fire Houchin abruptly; in fact, his co-defendant has even fingered him as the “actual” discriminatory decision-maker.  Thus, Denver Health’s legal claim of absolute legal immunity is ultimately designed to cover up General Counsel Scott Hoye’s wrongdoing. 

On May 27, 2019, we cross-petitioned for Supreme Court review on three grounds. The Court of Appeals order: (1) overlooked the fundamental anti-discrimination mandate in Supreme Court precedent, namely the 2000 Conners decision that exposed all public entities to CADA discrimination claims; (2) betrayed the legislature’s intent when amending CADA in 2013 to stamp out discrimination in public and private employment throughout Colorado; and (3) violates the equal protection clauses of both the U.S. and Colorado Constitutions.  Then, on June 4, 2019, the Plaintiff Employment Lawyers Association (PELA) and the Colorado LGBT Bar Association filed a brief in support of our cross petition as amicus curiae.  We are so grateful for PELA’s and the LGBT bar’s on-going advocacy on behalf of Colorado’s employees. 

The Stakes: The Rights of LGBT Public Servants Hang in the Balance

Two outcomes are possible: either the Colorado Supreme Court decides to review the Court of Appeals decision or it decides to let it stand. Indeed, the Colorado Supreme Court reviews very few cases–I’ve read varying statistics ranging from an 8% to 11% re how often the Colorado Supreme Court grants review. And so, it’s a long-shot. 

If the Colorado Supreme Court grants review, then it will issue a DECISIVE opinion that will frame the rights of Colorado’s LGBT workforce for years to come, absent legislative override. If the Colorado Supreme Court does NOT exercise its jurisdiction to review this case, then the Court of Appeals decision effectively divests every LGBT public servant working for a municipality, county government, or “special district” of the remedies that the legislature intended when modifying CADA in 2013. LGBT employees will continue to experience disparate treatment based solely on where they work, an outcome even the Court of Appeals called “anomalous.” Worse, these LGBT public servants working for municipalities, county governments, and special districts represent the BEST among us–our firefighters, law enforcement officers, paramedics, public health nurses, teachers, sanitation workers, coaches at recreational districts . . . namely, the good people who SERVE our community. 

While everyone celebrates Pride, this monumental legal dispute affecting the rights of thousands of Colorado LGBT public servants simmers under the surface. Indeed, Denver Health has long promoted itself in the LGBT community as particularly LGBT-friendly and will likely assert a strong presence at this year’s Pride festivities. In court, however, Denver Health claims that its LGBT employees enjoy no protection from workplace discrimination, harassment, and retaliation. In effect, therefore, Denver Health has systematically mislead the LGBT community to lure people onto its payroll where, General Counsel Scott Hoye asserts, LGBT workers have no protection against intentional, overt discrimination. In fact, Denver Health is leading the charge to ensure that public entities like municipalities, county governments, and special districts can continue to discriminate against LGBT workers without fear of employee legal claims. 

If you think that’s as wrong as we do, then share this post and spread awareness. Because of the support of PELA, the  LGBT bar association, and the ACLU, we’re optimistic that the Colorado Supreme Court will review this matter. We’ll keep you posted.

With pride and faith, Merrily

Merrily Archer, Esq., M.S.W. 

June 7, 2019

Denver Health LGBT Discrimination Case Referred to Colorado Supreme Court

“This matter is one of substantial public importance,” writes the Colorado Court of Appeals. 

Last week, the Colorado Court of Appeals referred Houchin v. Denver Health and Hospital Authority and Tim Hansen to the Colorado Supreme Court. A referral to the Colorado Supreme Court is rare, but can happen if (1) the ultimate decision involves a prior Supreme Court ruling (only the Supreme Court can overrule itself) and (2) the case involves an issue of “substantial public importance.” We are deeply gratified and relieved that the Court of Appeals appreciates the broader impact of this case. You can read the Court of Appeals referral HERE.

Here, Denver Health argues that because of 2015 changes to the Colorado Anti-discrimination Act (CADA) designed to provide equal remedies to LGBT employees, CADA no longer applies to its workforce. These 2015 amendments, Denver Health argues, transformed CADA into a tort (i.e. personal injury) for which it enjoys absolute governmental immunity under the Colorado Governmental Immunity Act (CGIA). Never mind, Denver Health says, that in adopting these changes, the Colorado legislature expressly waived CGIA immunity for governmental entities, thereby subjecting public entities to discrimination and harassment lawsuits under the CADA. According to Denver Health’s General Counsel, Scott Hoye, however, this express waiver does not apply to Denver Health either and since January 1, 2015, he has considered Denver Health absolutely immune from CADA lawsuits. Because only CADA protects LGBT employees from workplace discrimination and harassment (whereas race, gender, national origin, religion, age, disability are protected under federal law), Denver Health’s LGBT employees have effectively worked without legal protections since January 1, 2015.

If Denver Health is right (and we firmly believe that Denver Health is WRONG), then the LGBT employees working at every statutorily created Colorado public entity enjoy NO protection or remedy under the CADA for unlawful workplace discrimination, harassment, and retaliation based on who they are and whom they love. What ARE other statutorily created public entities, you ask?

  • County governments;
  • Local governments like municipalities;
  • School districts;
  • Any “special district” for
    • Water
    • Sanitation
    • Parks and Recreation
    • Culture and Science like the SCFD;
    • Health Care
    • Fire Protection

In effect, according to Denver Health, the General Assembly only intended to protect a narrow swath of LGBT employees technically employed by the State of Colorado, as opposed to all publicly-employed Coloradans working for its various subdivisions. This interpretation, we submit, would undermine one of the central purposes of the 2015 amendments: to provide LGBT employees throughout Colorado the same rights and remedies against workplace discrimination, harassment, and retaliation that other protected categories of employees (e.g. race, gender, national origin, religion, age, disability) enjoy under federal law.

Perceptions of absolute immunity foment unlawful conduct. After all, if the General Counsel believes that Denver Health is absolutely immune from CADA lawsuits, what steps would Denver Health’s top leadership take to ensure compliance with anti-discrimination laws in their decision-making processes?

On September 7, 2016, Denver Health summarily fired its Employee Relations Manager, Brent Houchin, without warning, ending years of distinguished service based on his annual performance evaluations. What happened to Brent is every LGBT employee’s worst [workplace] nightmare: you love your job, your direct supervisor, your mission, your duties, and your team. And then, a new boss who makes his dislike of LGBT people known enters the picture, and less than eight weeks later, you’re summarily and unceremoniously canned (without your direct supervisor’s knowledge and consent, while she was on vacation) for trumped up “violations” that are not violations at all. No doubt, in firing him, Denver Health circumvented its own published workplace policies regarding progressive discipline, patient privacy (HIPAA) violations, employee rehabilitation, and worse, the prevention, investigation, and remediation of employee drug diversion.

Indeed, Denver Health ostensibly fired Brent for recommending “investigative leave” in two suspected (and later substantiated) cases of employee drug diversion, a recommendation that strictly followed Denver Health’s own legally mandated Drug and Alcohol-Free Workplace Policy. This recommendation, says Denver Health, violated the employee’s patient privacy rights, a justification that conflicts directly with Drug Enforcement Agency (DEA) regulations, federal grant requirements, and its own policies. Likely for these reasons, Denver Health has never defended against our discrimination, retaliation, and whistle-blowing allegations on the merits; rather, Denver Health has instead claimed that the laws we seek to enforce do not apply to its operations given its status as an “exotic legal animal.” Notably, Denver Health also argues that laws protecting whistle-blowers do not apply to its operations either.

We should know soon whether the Colorado Supreme Court will agree to decide this important issue, which affects thousands of LGBT employees throughout Colorado. We will keep you posted, and we hope that you will share this information within the LGBT advocacy community. Denver Health has long enjoyed a reputation for being LGBT-friendly based on the services that several of its PROVIDERS have offered to LGBT patients. This work is important and no doubt, we’re grateful for Denver Health’s work with LGBT patients.

But like every human-powered organization, Denver Health IS its employees. Denver Health could not operate without the dedicated and talented humans who come to work every day. Many LGBT employees choose to work at Denver Health because of its LGBT-friendly reputation. Unfortunately, unless and until the Colorado Supreme Court and/or the Colorado Court of Appeal’s dispenses with Denver Health’s claim of an exalted legal status immune from CADA lawsuits, LGBT employees working at Denver Health today enjoy no legal or practical protection against workplace discrimination, harassment, and retaliation because of who they are and whom they love.

We (including and especially many decent people at Denver Health) deserve better. We can do better and so, we must. Join us.

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



The Myth of Gladiators: How Trial Lawyers Duped Civil Rights Advocates and Democrats

The Civil Rights Act of 1991 (CRA 1991) spawned a new breed of trial lawyer–i.e., “gladiators” who, in the most Machiavellian sense, exploit the language of civil rights and equal employment opportunity (EEO) for personal profit. Unfortunately, Democrats and social advocates advancing the rights of female, African-American, Latino, and even GLBT workers still do not realize they’ve been tricked and used.


The Gladiator Spiel

The Colorado House Judiciary hearing for HB-1136 on February 14, 2013 started late, and proponents and opponents alike had camped out all day waiting to testify. Lobbyists lined the hallways and the hearing room itself was packed with civilian civil rights advocates, union representatives, business groups, and defense lawyers. Everyone was exhausted, hungry, and weary . . . on purpose: HB-1136’s House sponsors saved this bill for last, allowed unlimited testimony on other bills earlier in the day, and then confined testimony on HB-1136 to three (3) minutes, allegedly for everyone’s personal comfort.

HB-1136’s chief proponents and public cheerleaders were Representative Joe Salazar (D) in the House and Morgan Carroll (D) in the Senate.  Both Salazar and Carroll are trial lawyers who represent EMPLOYEES in litigation against EMPLOYERS, and thereby stood to profit personally from their legislation. In Salazar’s lengthy firm biography, he underscores his “roots in civil rights” and emphasizes his employee-focused litigation practice. Likewise, within months of HB-1136’s passage, Morgan Carroll’s law firm–i.e., late night TV-hawking trial lawyer firm, Bachus & Schanker–unabashedly announced the addition of a longtime plaintiff-side employment lawyer, commenting in the local business journal:

The firm has a top-notch personal injury practice and expanding into this area of employee rights is logical,” Schanker said.

To trial lawyers, personal injury and “employee rights” go together.

Thus, drafted by trial lawyers for the benefit of trial lawyers, HB-1136 sought to import the damages and remedies available under federal employment discrimination law–e.g., CRA 1991’s remedial scheme of capped compensatory and punitive damages, and more importantly, automatic attorneys’ fees to plaintiffs–into Colorado’s analogous anti-discrimination statute, which had far more limited remedies. Because of the limited remedies under Colorado law, aggrieved employees and their trial lawyers were forced to “resort” to the federal enforcement system–namely, the EEOC and federal courts that, as litigators on both sides of the bar would agree, are far more likely to throw out non-meritorious claims before trial. HB-1136, therefore, sought to replicate CRA 1991’s remedies in a friendlier litigation forum. Ostensibly, however, HB-1136 was intended to “bridge the gap” between federal and state remedies, and provide greater “relief” to “victims” of discrimination and harassment perpetrated by employers covered under Colorado, but not federal law–i.e., employers with less than 15 employees.

In their brief testimony, attorneys from the Colorado Trial Lawyers Association (CTLA) and Plaintiff Employment Lawyers Association (PELA) used precious seconds to talk about their “commitment” to representing victims. They also complained about the high summary judgment dismissal rates in federal court. Civil rights advocates testified that discrimination is bad and must be abolished. Even though non-profit organizations have experienced an appreciable uptick in employment litigation, the Colorado Non-profit Association (CNPA) offered the least substantive testimony of all, supporting the bill on the grounds that their member organizations stand against discrimination–of course they do! Several union-funded lobbying groups testified that employers must be punished for discriminatory behavior, and HB-1136 would do the trick . . . obviously ignorant of the range of remedies already in place for the majority of Colorado’s employees.

And then Rachel Martinez, HB-1136’s poster child, testified about the sexual harassment she allegedly endured at the hands of a small employer. She stated that despite this allegedly egregious workplace abuse, she could not find a CTLA or PELA attorney to champion her case because of the limited remedies available under existing Colorado law. Unflinchingly, she stated that attorney after attorney declined to take her case, explaining that had she worked for a larger employer (i.e., 15+ employees), her case would be far more attractive to them because it would be worth more MONEY. Like those who testified before her, she urged Colorado lawmakers to “sweeten the pot” by increasing the damages available against all employers under state law, including employers already covered under Title VII and CRA 1991.

By the time HB-1136’s opponents were up, the Chair of the Democrat-controlled committee again stressed the importance of brevity.  And so, with cartoon-like speed, HB-1136’s opponents (e.g., Chambers, NFIB, defense lawyers associations and tort reform advocates) prattled off the standard arguments: bad for small business, reduced regional competitiveness, stifled job creation. When my turn came, I hurriedly spoke of my EEOC and social work background, commitment to EEO, and my litigation career representing employers. I tried to explain that schemes like HB-1136 had been around since CRA 1991 and had simply not worked.  But, a committee member, a fellow Democrat, interrupted.  Because I represented employers, he stated (paraphrased), I must stand against employee and civil rights.  Despite my background, I’d been branded and dismissed.

In that instant, I realized how brilliantly trial lawyers had duped Democrats and civil rights advocates into buying the thrust of HB-1136 and its predecessor, CRA 1991: namely, that as a matter of public policy, providing incentives for trial lawyers to prosecute employers for discrimination and harassment allegations would help solve the problem of inequitable workplace opportunity.  Stated another way, trial lawyers convinced otherwise well-meaning civil rights advocates that what’s good for trial lawyers is also good for THEM.  In reality, however, twenty-five years of data paint a diametrically different picture.

CRA 1991: The Genesis of the Gladiator Myth

CRA 1991 passed quickly and quietly in November of 1991 with surprisingly little legislative history.  In fact, after the major provisions of the bill had already been agreed to, legislators haggled to recreate the legislative history of the bill in the public record, ostensibly to guide judicial interpretation. Given HB-1136’s legislative history, however, I have little doubt that CRA 1991 was the byproduct of closed-door negotiations between lobbyists for the Chambers, the National Federation for Independent Business (NFIB), and the National Trial Lawyers Association (NTLA), some of the most powerful lobbies in Washington, D.C.  After all, when I arrived to testify against HB-1136 in February of 2013, an attractive lobbyist from the Colorado chamber pulled me aside to tell me that “they” had already agreed to HB-1136’s amendments . . . the hearing itself, she made clear, was simple theater.

CRA 1991’s passage quickly followed a critical juncture in America’s civil rights history: the Clarence Thomas-Anita Hill scandal. As depicted surprisingly well in the HBO drama, Confirmationthe hearing (and the hearing process itself) inspired feminist rage all over the nation, especially considering that Clarence Thomas perpetuated much of his boorish, harassing conduct while Chair of the EEOC–i.e., the agency charged with “protecting” women from such harassment.  The hearing was a national outrage, and Congress realized that it must to SOMETHING, and trial lawyers had “something” up their sleeve.

Trial lawyers correctly pointed out how little progress we’d made in the March toward EEO, as evidenced by the Thomas-Hill hearings themselves and department of labor reports. The problem, they argued, is that an under-funded EEOC simply could not handle the volume of discrimination issues infecting our workplaces. In short, the EEOC needed help. Of course, they wanted to help, but the limited remedies then-available under Title VII (e.g., backpay, reinstatement, bench trials) hardly made taking discrimination cases “worth it” for them under their standard contingency fee arrangement. If, however, Congress modified Title VII to allow the recovery of compensatory (e.g., pain, suffering) and punitive damages, jury trials and attorneys’ fees, they could act as mini “Attorneys General” to help an under-funded EEOC stamp out discrimination once and for all.  Congress bought it and passed CRA 1991 quickly, effectively PRIVATIZING the enforcement of Title VII.

The “gladiator myth”–i.e., trial lawyers masquerading as civil rights proponents–was born.  And unfortunately over the past 25 years, the “gladiator myth” grew and spread into other social legislation designed to help PEOPLE, namely, the Affordable Care Act (ACA).  In passing this historic legislation, trial lawyers lobbied hard to ensure that tort reform protections would not apply to the ACA’s new species of health care provider–i.e., the “Accountable Care Organization” (ACO). Health care attorneys have already commented that the lawsuits under the ACA will metastasize, as more trial lawyers figure out how to make money under this new legislation.

Confessions of a Recovering Gladiator

People Thomas Hill

Like most other feminists, I spent October of 1991 glued to the television watching the Thomas-Hill hearings unfold . . . and when I was not watching the hearings, I was working as a domestic violence counselor at one of Chicago’s biggest shelters. During this period, feminist rage and righteous indignation coursed through my veins and arteries like glucose, and hardened my resolve to dedicate my career to striving for EEO, especially for women like me (i.e., youthful tribalism).

Shortly thereafter, I applied to Washington University’s prestigious Brown School of Social Work, and based on a scholarship essay about the interplay between societal devaluation and violence (observations that still ring true today), I received the substantial Roger Baldwin fellowship for civil rights. To enhance my “toolbelt,” I gained admission to Washington University’s law school a few months later, and again, found myself focusing on classes in labor and employment law, criminal justice, and civil rights.  The course in Employment Discrimination, however, literally changed my life: perhaps because I completely “geeked out” over her class, the professor opened several doors within the St. Louis office of the U.S. Equal Employment Opportunity Commission (EEOC) and the St. Louis plaintiff’s bar.  And upon completing my JD/MSW in 1997, those open doors guided me to my first law job as a Trial Attorney with the EEOC in Denver, Colorado.

Make no mistake: as a freshly-minted EEOC Trial Attorney, I considered myself a GLADIATOR in the war on discrimination and more pointedly, those bastard employers who perpetuated it.  After all, I’d been well-indoctrinated into the gladiator rhetoric through studying CRA 1991 and working with the EEOC and St. Louis plaintiff’s employment bar in law school. Thus, I believed in the power of litigation to change hearts and minds about civil rights and equal opportunity. I believed in their Victim/Villain paradigm in which employees are “victims” and employers are “villains.” I believed that attacking discrimination through litigation would yield more employment opportunities for Title VII’s intended beneficiaries.  And, I projected my own passion about EEO issues onto my colleagues at the EEOC and the Denver plaintiff’s bar, assuming that they fundamentally cared about these issues as much as I did. (They do not).  Indeed, at the outset of my fledgling legal career as an EEOC Trial Attorney, I also believed that the plaintiff-side employment lawyers fulfilled a useful social purpose by prosecuting the numerous cases for which an underfunded EEOC simply had no resources–i.e., the crux of the gladiator myth.

Experience and evidence, however, would prove otherwise . . .

Deconstructing the Gladiator Myth

The EEOC and The Gladiator Myth

The term “Gladiator” comes from a scholarly article written by respected law professors Margo Schlanger of University of Michigan Law School and Pauline Kim of Washington University in St. Louis School of Law, The Equal Employment Opportunity Commission (EEOC) and Structural Reform of the American WorkplaceIn their lengthy analysis, Schlanger and Kim searched for an analytic model to explain the EEOC’s prosecutorial conduct: did the EEOC behave like “gladiators” by prosecuting complicated cases in the public interest? Or, did the EEOC behave like “collaborators,” working within institutions to effectuate social change?

Neither, Schlanger and Kim found. EEOC prosecutions neither resembled hard-fought gladiator battles nor collaborative problem-solving; instead, EEOC enforcement boiled down to a bureaucratic, “managerialist” response that is largely “cosmetic in nature,” not substantive.

Given my experience at the EEOC, I could not have agreed more. We had arrived at the same conclusions through different routes.  Schlanger and Kim, however, offered little insight into HOW the EEOC’s enforcement devolved into a bureaucratic wasteland of rote, managerialist responses. But, through my lens–a lens also shaped by different disciplines and personal experience–the reason for the EEOC’s failure seemed obvious:

Complete Misalignment Between Mission and Methods

Each November, the EEOC releases its annual Performance and Accountability Report (PAR), which describes the agencies progress toward, inter alia, “Enforcing the Law More Effectively.”  For at least the past five years, the EEOC leadership has touted its historic monetary collections from employers as evidence of “Enforcing the Law More Effectively,”

This point merits repetition: to EEOC Commissioners and by extension, field personnel, the amount of MONEY collected from EMPLOYERS ostensibly shows that the EEOC is effectively enforcing Title VII.  Of course, Title VII’s architects codified the EEOC’s mission in statute itself: to ensure equal opportunity for all American workers and to eliminate workplace discrimination “through informal efforts of conference, conciliation and persuasion.” For social scientists experienced with statistics, research study design, and governmental reports, determining whether the EEOC was “enforcing the law more effectively” (i.e., promoting opportunity and reducing discrimination) could easily have taken into account historic job segregation and advancement patterns gleaned from the EEOC’s own EEO-1 data, Bureau of Labor Statistics (BLS) reports, EEOC charging data, Census data re wealth distribution, etc.

Instead, MONEY exacted from employers became the “metric that matters” at the EEOC after CRA 1991. By defining MONEY as the measure of its efficacy, the EEOC effectively recalibrated its entire enforcement machine to spit out monetary settlements, regardless of whether the allegations of discrimination or harassment have merit or not. In 2013, EEO Legal Solutions undertook a nation-wide survey of HR practitioners, employment lawyers, and EPL adjusters (“practitioners”) to find out what EEOC mediators SAY behind closed doors to make them PAY in the EEOC’s “successful” alternative dispute resolution program.  After all, the EEOC protects its personnel and processes under an iron veil of selectively-invoked confidentiality and “government deliberative process” privilege. Thus, this study marked the first effort to EXPOSE what employers experience in a law enforcement process literally shrouded in secrecy.

The results were alarming.  Over 80% of practitioners reported that the EEOC mediator stressed “cost-of-defense,” regardless of charge merit. The EEOC is well aware that employers settle EEOC charges not out of guilt or recognition of wrong-doing, but rather, to avoid the exorbitant cost of proving they did not thing wrong in the first place.  But it gets worse: the survey showed that after emphasizing their defense cost dilemma, EEOC mediators then brandished EEOC enforcement weaponry to scare employers into higher cost-of-defense settlements, routinely threatening reasonable cause determinations, expensive systemic investigations, and even prosecutions.  As we pointed out, these threats are outrageously disingenuous: EEOC mediators know (or should know) that if any of those outcomes were likely under the EEOC’s longstanding Priority Charge Handling Procedures (PCHP), the matter would not have been routed to mediation in the first place.  In effect, this study validated much of the bad behavior I’d witnessed among EEOC personnel during my tenure–namely, threatening the use of federal enforcement power to effectuate a private settlement over UNSUBSTANTIATED allegations. When MONEY is the metric that matters, the “successful” EEOC personnel churn big settlements and LIE, under the absolute protections of confidentiality and “deliberative process privilege,” to accomplish their objectives.

Naturally, trial lawyers profit from this “alignment of interest” with the EEOC, reveling in watching EEOC personnel shake down employers for monetary settlements of which they will take 33% to 50% under a standard contingent fee arrangement. Of course, trial lawyers share the EEOC’s interest in maximizing MONEY for “victims” (i.e., accusers), and have found a kindred spirit in EEOC Chair Jenny Yang, a longtime employee-side employment lawyer from California.

The Gladiator Model and the Progress Toward EEO

The EEOC prosecutes less than .2% of its Charge intake, roughly 150 cases per year out of nearly 90,000 new charges. Each year, the EEOC finds “reasonable cause” to believe discrimination, harassment, and/or retaliation have occurred in around 3.5% of all charges, and “no reasonable cause” in over 66% of charges. Even when the EEOC finds “no reasonable cause” that discrimination occurred, however, “aggrieved employees” still have the right to hire a trial lawyer and sue their employer in federal court. Indeed, that was the whole point of CRA 1991: to help an under-funded EEOC deliver on Title VII’s promises through PRIVATE prosecution of alleged Title VII violations.

Twenty-five years later, over 99% of Title VII enforcement now takes the form of PRIVATE LITIGATION against employers, not GOVERNMENTAL REGULATION.  In the aftermath of CRA 1991, Employment Practices Liability Insurance (EPLI) mushroomed into a booming risk management product to help employers mitigate the costs and risks of discrimination disputes; whereas only a handful of carriers offered EPLI in the 1990’s, EPLI now forms part of every bundled business policy and covers the majority of employers’ defense costs and indemnity risks. Today, EPLI carriers stress early settlement to avoid defense costs, making discrimination disputes less about vindicating civil rights than they are about the simple transfer of funds between insurance carriers and trial lawyers.  And trial lawyers like it that way.

But the question civil rights and EEO advocates should be asking is this:

has this scheme of privatized EEO enforcement (i.e., CRA 1991) advanced the March to end discrimination and level the playing field?

Starting in 2013, in anticipation of Title VII’s 50th anniversary on July 2, 2014, EEO/AA experts at Biddle Consulting Group in California and I started asking this and even a more basic question: if CRA 1991 had proven effective, what outcomes could we expect to see? What are the measures of our progress toward EEO?  And so, we daydreamed about and then measured:

  • Historic Job Segregation Patterns. Biddle’s Dan Kuang, PhD analyzed the EEOC’s own EEO-1 data from 1996 [first available year] to 2012 to determine the racial and gender composition of several major job categories at opposite ends of the pay scale.  Dr. Kuang found that African-Americans, Latinos, and Women remain concentrated in the lowest paying positions, while Whites and Asian Americans still occupy the top rungs of the status and pay ladder.
  • Progress Toward Achieving Top Jobs.  Dr. Kuang also measured the pace and trajectory of progress toward achieving top “Official/Manager” jobs. He discovered that Asian Americans have made significant progress in this job category, whereas the progress of Women and Latinos depicts a long flat line. Unfortunately, African-Americans have lost ground in the march to the top since 2008.
  • Impact of Unemployment.  Quarterly BLS data continues to show that unemployment hits the African-American and Latino communities the hardest, whereas Asian Americans are less likely to become unemployed than Whites. BLS data also shows that Women, African-Americans, and Latinos spend more weeks on unemployment, thereby suggesting greater difficulty becoming reemployed.
  • International Leadership.  The United States ranks 69th behind many developing nations with respect to the number of female leaders in government.
  • Government Employment.  According to the EEOC’s own reports, African-Americans have not obtained FEDERAL employment in numbers commensurate with their overall workforce availability, thereby suggesting hiring discrimination in the federal sector.

Read the full analysis HERE.  Against these reasonable benchmarks, CRA 1991 has simply not increased opportunity for most of Title VII’s beneficiaries, nor has it reduced the number of workplace discrimination claims.  And according to a more recent Gallup poll, 60% of African-Americans feel like they still suffer discrimination in HIRING compared to other racial groups . . . and they’re right.

How the Gladiator Myth Distorted Our EEO Focus

Twenty-five years later, we have very little progress to show for CRA 1991. Contrary to trial lawyer promises in 1991, CRA 1991 has not improved OPPORTUNITY for Women, African-Americans, or Latinos, despite the fact that a substantial amount of money has changed hands among employers, insurance carriers, and lawyers. Likewise, CRA 1991 has not reduced discrimination allegations, nor improved the workplace climate.  As a matter of fact, CRA 1991 has likely provided incentives for businesses to invest in TECHNOLOGY to accomplish job functions rather than hire HUMANS. After all, a robot may break down, but it can never sue.  More HERE.

Thus, why did CRA 1991 fail to move the needle toward better opportunity (e.g., more jobs, more promotions, equal pay) for Title VII’s intended beneficiaries?

Again, gladiator GREED helps answer that question:  while data suggests that discrimination in HIRING, PROMOTION, and PAY against African-Americans, Latinos, and Women remain rampant, trial lawyers disfavor such cases. They are complicated and difficult to prove; punitive and compensatory damages are harder to get; and most importantly, because of the legal “duty to mitigate,” hiring, promotion, and even pay cases yield much smaller jackpots.

TERMINATION cases, by contrast, allow trial lawyers to (a) pile on discrimination, harassment, and retaliation claims out of the same factual nucleus; (b) make big plays for pecuniary and compensatory (e.g., pain, suffering) damages; (c) recover “frontpay;” and (d) tell the familiar, tired tale of villain employers and victim employees. TERMINATION cases are easier and far more profitable, with far less WORK.

In partial recognition that TERMINATION matters (not charges alleging discrimination in HIRING, PROMOTION, and PAY) had overtaken its INTAKE of charges, EEOC commissioners voted on April 4, 2006 to switch the entire enforcement focus from “cohort discrimination” (i.e., individual instances) to “systemic discrimination,” namely, employer practices that broadly impact many employees, especially in HIRING.  The EEOC subsequently (and consistently) has announced that eliminating discriminatory barriers in HIRING and recruitment is its number one priority under its Strategic Enforcement Plan. These factors make me think that EEOC leaders themselves recognize the profound disconnect between data depicting discrimination in HIRING, PROMOTION, and PAY, and a charge docket raising primarily TERMINATION allegations.  Intake

Indeed, last year, TERMINATION matters (e.g., discharge, constructive discharge) accounted for over 75% of the EEOC’s intake docket, whereas charges alleging discrimination in HIRING and PROMOTION each made up approximately 7%. Do the math HERE. Worse, PAY discrimination, which is another EEOC National Enforcement Priority, was challenged in less than 6% of all charges, despite some credible evidence of discriminatory disparities by GENDER, RACE, and ETHNICITY.

CRA 1991 has failed its stakeholders, while heaping tremendous financial burdens on employers, for a relatively simple reason: instead of helping an underfunded EEOC prosecute real discrimination in HIRING, PROMOTION, and PAY, trial lawyers prefer to fashion discrimination cases from TERMINATION decisions that will yield THEM bigger paydays in settlement negotiations. Trial lawyers’ financial interests have dictated our dialog about equal employment opportunity, forcing employers to focus on justifying their termination decisions instead of expanding recruiting practices, investing in manager development, and helping working parents achieve better work-life balance–i.e., real EEO issues. Trial lawyers are not prosecuting the real discrimination afflicting the American workplace; on the contrary, they are simply prosecuting the cases that seem potentially profitable, leaving low wage earners (e.g., African-Americans, Latinos, and Women) to fend for themselves like poor Rachel Martinez, the sexual harassment victim whom no CTLA or PELA member would help.


Trial lawyers are not “gladiators” whose “passion is justice,” to quote Colorado Senator Morgan Carroll’s late-night, TV-peddling personal injury firm.  Trial lawyers claim moral high ground, while literally churning civil rights cases into insurance company settlements. Period. There is absolutely nothing noble, dramatic or enlightening about the process, given that most employers now settle for cost of defense. CRA 1991, however, enabled these trial lawyers to re-brand themselves as “gladiators” and their opponents as racist, sexist, or “ignorant” just for disagreeing with or defeating them. Despite clear pecuniary motives and/or conflicts of interest, these gladiators congratulate themselves for representing “Victims” against “Villain” employers who “violate the law,” while taking between 35% and 50% of the monetary recovery.

Gladiators have still convinced Democrats (and civil rights advocates) that they perform a useful social function as private prosecutors helping under-funded agencies enforce the law.  But CRA 1991 and its aftermath should teach us about what happens when policy-makers entrust complex social problems like inequitable economic opportunity to trial lawyers: they will find a way to make money on the problem without actually solving it.  Private litigation by GLADIATORS is simply not a viable substitute for responsible regulation by GOVERNMENT.

 Merrily Archer, Esq., M.S.W.

June 14, 2016