On 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