CEO Robin Wittenstein Must Address Denver Health’s Own Systemic Racism Problem Before “Admitting Failure” on Racial Equality

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We must cultivate our own garden.

Voltaire, Candide (1759)

Earlier this week, the Colorado Sun published an Op-Ed written by Denver Health CEO Robin Wittenstein entitled,

It’s time to admit failure on equality. Let’s use that as our starting point.

CEO Wittenstein then showcased her ostensible commitment to racial equality and equal employment opportunity (EEO) by announcing the formation of a new CEO group called “Colorado Inclusive Economy“, which is allegedly “committed to doing the work personally and through our organizations to provide opportunities to those who have been without for too long.” 

Bullsh*t.

Since October 2019, Denver Health has defended a systemic pattern and practice race discrimination lawsuit in U.S. District Court (Colorado) brought by its former Employee Relations Investigator, Carol Nichols, Nichols et al. v. Denver Health and Hospital Authority, 1:19-cv-02818.

Carol Nichols, former Employee Relations Investigator at Denver Health, is now pursuing a systemic race and disability discrimination matter in U.S. District Court-Colorado.

Ms. Nichols, a 35-year equal employment opportunity (EEO) investigator, alleges that Denver Health maintains a pattern and practice of subjective, racist decision-making in disciplinary and termination decisions that cause “astronomical” adverse impact against African American employees. Ms. Nichols’s lawsuit is based not only on testimony from former officials in Denver Health’s HR department, but also detailed statistical analyses from Biddle Consulting Group in Folsom, California, leading experts in adverse impact testing and affirmative action compliance.

In June 2020, Ms. Nichols gave Denver Health’s attorneys Biddle’s analysis of disciplinary and/or termination outcomes under Denver Health’s Accountability-Based Performance (ABP) policy and practices. In 2019, Denver Health changed its ABP process from a progressive disciplinary ladder aimed at employee self-correction to a subjective system vesting complete discretion in HR leaders and line managers. Using well-accepted federal EEO statistical modeling, Biddle’s adverse impact analysis revealed that this subjective process yielded worsening severity bias against African Americans with corresponding leniency bias against Caucasian/White ones, effectively echoing the Black Lives Matter studies of severity and leniency bias by police and by courts: mistakes and/or missteps by African Americans are somehow allegedly more “egregious” and deserving of more severe, harsher treatment.

In response, Denver Health hired its own statistical expert who admitted that he was unfamiliar with 30 years of federal adverse impact statistical modeling and so, he constructed his own novel model. Despite his non-conforming approach, Denver Health’s own expert STILL found statistically significant adverse impact by race in some of Denver Health’s most populated job categories. Of course, like Denver Health, its expert minimized this monumental finding, as though Title VII tolerates “just a little” race discrimination. On the contrary, Title VII and pattern and practice litigation like Carol Nichols’s case exist to remove these system-wide racial barriers to equal employment opportunity.

If an employer’s undisciplined system of subjective decision-making has precisely the same effects as a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII’s proscription against discriminatory actions should not apply.

Watson v. fort worth bank & trust, 487 U.S. 977, 990-91 (1988).

In November 2020, Denver Health Workers United (DHWU), through national advocacy group Towards Justice, filed a whistleblowing lawsuit alleging systematic retaliation against doctors and workers who have complained about systemic racism at Denver Health. The fight for racial justice at Denver Health lies at the heart of DHWU’s organizing campaign.

We shared Biddle’s statistical findings, as well as Denver Health’s expert rebuttal reports, with DHWU last year. On an individual basis, racist disparate treatment can be difficult to prove. It comes into sharp focus, however, in aggregate statistical analyses of decisional outcomes: Denver Health has consistently treated mistakes by African American employees far more severely, as “egregious” and worthy of summary termination, while extending Caucasian/White ones the benefit of the doubt–e.g., numerous second chances, less severe discipline, if any at all. Again, that kind of disparate treatment is exactly what Title VII was intended to prevent and correct.

Racist disparate treatment comes into sharp focus in aggregate statistical analyses of decisional outcomes.

DHWU has cited these findings and raised employee concerns of racial injustice and disparate treatment to Denver Health’s C-Suite, its Board of Directors, Denver Mayor Hancock’s office, and the Denver City Council. What does it take to effectuate change at Denver Health, for the benefit of the 7,500 workers serving our community there today? What does it take for our local leaders to hear the voices of Denver Health’s workforce, as well as those of civil rights attorneys, union leaders, local activists and organizers, etc. striving to make Denver Health the kind of employer its workforce and our community deserve?

But also ask yourself: does it make sense that CEO Wittenstein would be unaware of active systemic discrimination litigation alleging astronomical statistically significant racial bias in disciplinary and termination decisions pending in U.S. District Court today? If so, is she similarly uninformed about other matters that directly impact Denver Health’s bottom line, treatment of employees, and community reputation?

More likely than not, CEO Wittenstein knows about the struggle of Denver Health’s own workforce to achieve racial equity at work, but chooses to throw up her hands in failure, ruminate with other CEO’s, and publish self-congratulatory Op-Ed’s rather than strive to fix her own workplace. After all, most compliance-conscious employers mete out discipline CONSISTENTLY in a progressive process aimed at employee self-correction to avoid actual or the appearance of disparate treatment. Not Denver Health.

Unfortunately, CEO Wittenstein and Denver Health’s PR machine have an established history of taking diametrically divergent positions in policies and press releases versus in court where employee rights are at stake.

For example, where was CEO Wittenstein when Denver Health’s General Counsel and outside litigators argued that the Colorado Antidiscrimination Act (CADA)–the only law outlawing discrimination against Colorado’s LGBTQ+ workers until June 2020–stopped protecting its LGBTQ+ workforce in Houchin v. Denver Health? For several years, Denver Health has held itself out as a particularly LGBTQ+-friendly employer, while claiming in court absolute governmental immunity from the only law protecting LGBTQ+ employees.

Denver Health attorney Brent Johnson (top center) argues on October 13, 2020 before the Colorado Supreme Court that because of governmental immunity, Colorado’s antidiscrimination act stopped protecting Denver Health’s workers on January 1, 2015.

On December 21, 2020, the Colorado Supreme Court rejected Denver Health’s argument that it enjoys absolute governmental immunity from CADA discrimination claims and remanded the case back to Denver District Court. We estimate that Denver Health has spent $1.2 million in non-recoverable legal fees to argue that its LGBTQ+ employees enjoyed no legal protection against discrimination, harassment, and retaliation.

How can CEO Wittenstein plead ignorance? Legitimately, she cannot.

“We must cultivate our own garden,” Voltaire wrote in 1759. The FIX must begin in your own garden, Ms. Wittenstein, starting with Denver Health’s own policies, practices, and Employee Relations leaders which have collectively created barriers to racial equality at Denver Health. Perhaps, Ms. Wittenstein, you could take a greater interest in the legal positions that Denver Health’s outside counsel assert in court, positions that directly conflict with Denver Health’s published policies, press releases, and public pronouncements like your recent Op-Ed. Respectfully, Ms. Wittenstein, until you begin to address the systemic discrimination against Denver Health’s own employees, participation in a group like “Colorado Inclusive Economy” is just more ineffective window-dressing. If you truly care about racial equality, Ms. Wittenstein, start in your own garden.

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

Three Short Stories about “Harassment”

Whenever I’m facilitating one of WorkplaceTrainingHub.com‘s management courses on “harassment,” I like to ask participants

Have any of you ever been accused of harassment?

Most folks immediately avert their gaze before I even finish the question–i.e., to check for an important email, Facebook post, or nearby Pokemon, right?  It looks like this:

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It’s a tough question to answer publicly.  And so, after making clear that I’m just teasing them, I share my personal stories about “harassment,” from all the lenses through which I’ve seen and experienced “IT.”  At that moment, eye contact returns and the thick fog of tension in the room dissipates.

#1:  Accused at the EEOC

I launched my legal career at the EEOC’s Denver District Office, a freshly-minted attorney with an MSW in civil rights. I was insufferable. In any case, I quickly learned to despise the weekly attorney meetings at the EEOC: as more of a “directing-guiding” personality, the chit-chat and lack of clear goals, objectives, and action items drove me bonkers.

And so, one Monday morning, as my attorney teammates shuffled into the law library for our weekly meeting, I spoke these words to my African-American colleague, “Elston”:

Elston, it looks like you’re also having a tough time dragging your sorry ass in here today for the attorney meeting!

In a perfect world like the movies, a disembodied Morgan Freeman voice-over would have alerted everyone of the situation’s critical subtext:

PIMorganFreeman-590x295

What Elston does not know is that Merrily grew up in St. Louis and had used this phrase–“dragging your sorry ass”–regularly with both African-American and white friends. 

But, life does not come with explanatory Morgan Freeman voice-overs, leaving us to our own interpretive biases and faulty attributions.  See, Elston occupied the office next to mine, but kept to himself . . . I reasoned that Elston’s aloofness accounted for his longevity at the EEOC: he’d outlasted several generations of attorneys in the EEOC’s Denver legal department.  I knew very little about him (except that he listened to “I Believe I Can Fly” every morning as one of his rituals), but I respected his seniority and wanted him to mentor me.  After all, the learning curve is STEEP for young government lawyers.

I do not specifically recall Elston’s reaction to my comment, but I remember hearing some chuckles from colleagues who still found my distaste for meetings somewhat charming.  Nevertheless, about four hours later, these words appeared across my computer screen in the subject line of an email from Elston to my bosses and me:

Potential Hostile Work Environment

I read the rest of Elston’s email and then puked.  Elston interpreted my comment as racist because, according to him, “dragging your sorry ass” is a phrase created by African-Americans for the use of African-Americans.  Because I am not African-American, Elston reasoned, I must have used the phrase pejoratively, to make fun of him.

I was devastated.  I cared (and still do) deeply about equal employment opportunity (EEO), especially about advancing the March for African-Americans: caring about EEO forms a big part of my “self-concept,” and so, the accusation hit me really hard, like it does every other human I’ve encountered thus far.  But more importantly to me, I never meant to hurt Elston’s feelings; on the contrary, I was trying to connect with him . . .

In any case, my supervisors put me on investigative leave and I spent the next two days soul-sick in my apartment imprudently looking for shelter pets to adopt in atonement. On the third day, I met with my supervisors, both of whom were, coincidentally, middle aged African-American men like Elston. To this day, I’m grateful for their patience and empathy–I was a blubbering mess. During our meeting, they disclosed Elston’s admission that he had not been happy with previous retirement offers and wanted to add some tension to their negotiations . . . and a racial harassment charge would surely do the trick. I was a pawn in a larger plan.

With that admission, the matter was over as quickly as it started. Like the 95% of people accused of harassment each year, I’d been exonerated, but still damaged–e.g., uglier, crustier, less trusting. Elston and I continued to work “in proximity” for many months afterwards at the EEOC, although never together. My effort to draw Elston closer had only alienated him further,and sadly, further outreach seemed rationally unsafe. And so, I learned to deal with Elston like a “risk,” treating him with a level of formality that only deepened the divide between us . . . because that’s what happens when you’re accused of harassment–you learn to protect yourself.  And that’s a message managers must hear.

#2: Scrotum Jokes at the Christmas Party

Several years after I’d left the EEOC and switched sides to a defense practice, I found myself blessed to work among several of the best litigators in Colorado. Unfortunately, I was the only girl in my little ragtag clique of irreverent smart-asses who saw the sick humor in our work.  Employment law is often amusing, which explains why I write folk songs about it.

So, in the middle of the holiday season when the office was a Ghost Town, my little clique decided to treat ourselves to an early Happy Hour at lunchtime. As usual, I was THRILLED to be included: not only did I find these guys hilarious, but we also regularly consulted with each other when things got tricky in our cases.

At some point in the endless riffing (which included welcomed riffing on each other), my colleagues all started telling jokes about their scrotums (scroti?).  As I girl, I had very little to contribute to this part of the conversation, but I was enjoying the humorous dialog anyway.  And then, I realized I’d tuned them out to listen to my inner voice, which suddenly sounded like a resentful Jan Brady from The Brady Bunch:

Jan Brady

Scrotums are naughty boy parts, right? Why are they talking about them? 

Scrotums, Scrotums, Scrotums!

Is this harassment?

By the time I’d tuned back in to the conversation, the group had moved on to safer lunchtime topics, like the appropriate settlement value of a gnarly wrongful death case. But I quickly dismissed the notion that I’d been the “victim” of “harassment” because of my proximity to an NC-17 conversation; after all, I’m an adult.  At no time did my male colleagues seek to diminish me, to make me feel like less than a peer (despite my obvious handicap of not having a scrotum). It was like being the tomboy sister around a group of brothers who, at least in my mind, (a) thought of me as “one of the guys” or (b) feared verbal humiliation if the sex-talk ever got personal. And it never did.  I’ve since acted as their employment counsel when they formed their own firm, enjoying a friendly professional relationship that has almost spanned two decades.

I have, however, contemplated my inherent power in that situation to TAKE OFFENSE and more pointedly, to cause them trouble simply by interpreting their conduct differently and/or attributing nefarious motivations to it.  After all, ALL harassment lies in the eyes of the Accuser–namely, to satisfy the threshold legal element of “unwelcomeness.”  If I took offense or considered myself a “victim,” I wielded the power of attribution, even faulty attribution.

Indeed, fundamental attribution error (a/k/a “correspondence bias”) is one of the basic tenets of social psychology.  It holds that in explaining the behavior of other people, we have a tendency to overemphasize personal traits (i.e., disposition) and to de-emphasize situational factors . . . BUT when explaining our OWN behavior, we humans consistently focus on situational factors, not dispositional ones.

For example, how many times have you screamed “Asshole!” at another driver instead of thinking

  • Perhaps they’re rushing to the hospital to have a baby!
  • I’ll bet he’s just late for work today.
  • Maybe he did not see me.

And yet, social psychology studies confirm that when WE OURSELVES are the “Asshole” in traffic (and we all are occasionally), we will say to ourselves and others:

  • I did not see that car.
  • I’m late for work and could get written up.
  • Hurry! Faster! Screw the signals! We’re having a baby!

Check out this example:

Fundamental-Attribution-Error

Fundamental attribution error is pervasive in American thinking and it’s CULTURAL, meaning social psychologists have observed different attributional thinking patterns in other cultures.  Yet, when contemplated in conjunction with cognitive psychology principles like “cognitive dissonance,” “rationalization,” and a whole host of recognized “cognitive biases,” a central truth about sexual harassment emerges:

We seldom perceive our own conduct as harassing, but are often quick to assign those attributions (i.e., harassing pig) and motivations (i.e., harassment) to other people’s behavior.

Particularly in that regard, the foundation of sexual harassment jurisprudence has been built on logical and psychological distortions. FAE#3: My Sweet, Sexy Voice

Years later (and actually not that long ago), I picked up a new “wrongful discharge” and “whistle-blowing” case against a rural Colorado non-profit organization and each member of its volunteer Board of Directors in their individual/personal capacities. As an old social worker, I harbor strong negative opinions about trial lawyers who go after volunteer non-profit Board members. Indeed, decent attorneys on both sides of the bar would likely agree that naming un-paid volunteers as individual defendants is a SCUM-BAG maneuver, absent truly “willful and wanton conduct” like child sex abuse. In my new case, the naming of individual volunteers as Defendants particularly pissed me off because the Complaint stated that each member acted within the scope of their authority at all times.

Nevertheless, as was my practice (and as actually required by rule), I picked up the phone to contact plaintiff’s counsel to introduce myself, to talk about points of agreement and contention, and to discuss case scheduling.  I knew nothing about my new opponent because he lacked a website and online presence, but I correctly surmised that he was an older gentlemen based upon his low attorney registration number.

The conversation started off normally, at least from my perspective.  And at some point, I directly asked,

“Help me understand why you’re going after these volunteers in their individual capacities? I can get them dismissed, but not before they’ll have to bear the expense of preparing the proper pleadings.  What’s your thinking?” 

Instead of a response, my opponent stated

How old are you? You sound so young.  I cannot get over the sound of your sweet sexy voice.

This event marks one of the very few occasions in which I’ve been knocked speechless. In fact, I was not “young;” on the contrary, 15 years of litigation had hardened me into an old crusty Battleaxe.  But I was knocked speechless simply because I had no idea what to do or say next–I had no “event schema” for this kind of treatment by another attorney.

And so, I asked him to repeat himself.  He obliged. I’m not entirely sure what happened next, except that I could see my colleagues coming out of their offices to look at me through the glass in my door while I raged into the phone.  My voice, I imagine, probably sounded very much like Elizabeth Warren responding to a Donald Trump attack, like below.

Elizabeth-Warren

I do, however, remember hanging up on him.  He called back immediately and I sent the call immediately to voicemail.  I needed to calm down and reclaim my wits for a few moments because I was reeling inside: instead of treating me like peer intent on kicking his ass, he treated me like a hooker, deliberately sexualizing a business conversation to make me feel small, like a piece of meat.  His comments meant, “I will define you sexually, not professionally, and I have the power to do that.”

After I pulled myself together, I noticed the voicemail light blinking on my phone. And much to my utter horror and amusement, he left a rather lengthy voicemail message . . . again making reference to my “sweet sexy voice,” a few times, actually.  And so, I did what any decent litigator would have done: I had the recording transcribed and I cited that transcript liberally in every motion in which he sought to have me sanctioned for not giving in to him (which is most of them).

Throughout the litigation, my septuagenarian opponent insulted me, even encouraging his client and her spouse to do so as well. He called me “bitch” several times to my face and often within earshot when talking about me to others.  He contacted my old white guy bosses at Biglaw to tell them that I was “uncivil” and “taking irrational positions” in my case so that they would put internal pressure on me. He grieved me to Colorado’s disciplinary counsel for truly silly reasons. And during a deposition attended by several witnesses, stated that he would “knock me out” if he thought he could get away with it.  Thereafter, we put the local sheriff on alert whenever I came to town for depositions.

. . . because that’s what happens in a true “harassment” situation: the party that perceives itself as more powerful will use insult, innuendo, and even internal politicking to make others feel “lesser,” like trespassers on the old white guy establishment in their quest for INCLUSION and RESPECT. The insults and innuendo are designed to convey one simple message: you do not belong here and I’m going to make your life suck for trying.

In the end, I trounced this asshole about as completely as a defense litigator can by getting 90% of the case dismissed on summary judgment before trial and winning at the “chicken game” of trial practice. Because we were loaded with evidence to overcome the one remaining claim reserved for a jury trial, the plaintiff’s lawyer fully capitulated and settled the case for nuisance value on the courthouse steps after nearly three years of litigation and six figures in attorneys’ fees . . . to me. (Don’t worry, those attorneys’ fees were paid by an insurance company, not the volunteers or non-profit).  As many women know, WINNING is the best (and often only) revenge.

shutterstock_350563409

“Harassment” is a complicated issue, driven by a constellation of factors that have little to do with LAW.  To address workplace “harassment,” therefore, we must turn to other disciplines for wisdom, especially the worlds of cognitive and social psychology.  These disciplines can help us better understand the “microcosm of the workplace” and how we interact with it and each other.  Instead, our workplace policy on harassment focuses on the reptilian mindset cultivated by trial lawyers: namely, that we must identify, weed out, and punish the HARASSERS and EVIL CORPORATIONS through large settlement payouts . . . of which trial lawyers take 33% to 45%.  Accordingly, it comes as no surprise that our efforts to eradicate “harassment” from our workplaces have failed so miserably.

Until we give our managers a truly balanced and realistic view of the “harassment” landscape, organizations will continue to be blind-sided by harassment allegations. In reality, most “harassment” allegations arise in the context of (1) pre-termination performance rehabilitation efforts; and (2) terminations.  Because managers do not recognize their conduct as “harassing,” they are unlikely to seek HR’s guidance in those common scenarios in which allegations arise. For that reason, WorkplaceTrainingHub.com‘s approach to managerial anti-harassment training also focuses on RISK, basic leadership psychology, and evidence development to help organizations manage the increasing risk of harassment allegations.

We hope you will join us.

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

August 2, 2016

From Opportunity to Entitlement: How Private Litigation Distorted Our Dialog About Equal Employment Opportunity

Twenty-five years after the Civil Rights Act of 1991, the March toward Equal Employment Opportunity has stalled: trial lawyers’ pecuniary interests have shifted our focus toward TERMINATION decisions, instead of HIRING and PROMOTION practices that keep African-Americans, Latinos, and Women from competing on equal footing in the American economy.  

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Connecting the Dots

This November will mark the 25th anniversary of the Civil Rights Act of 1991 (CRA 1991), an important milestone in the march toward Equal Employment Opportunity (EEO). CRA 1991 fundamentally changed the enforcement scheme of Title VII of the Civil Rights Act of 1964 (Title VII), from initial informal administrative methods of “conference, conciliation, and persuasion” with employers to private litigation against employers. Today, private litigation (i.e., employee-initiated lawsuits) accounts for 99% of EEO enforcement in the workplace trenches.  The EEOC prosecutes less that .1% of its charge inventory and finds Reasonable Cause to believe discrimination occurred in only 3.5% of all charges. For the other nearly 90,000 charges in the EEOC’s annual intake, therefore, employers feel the effects of CRA 1991 through threatened and actual private litigation prosecuted by TRIAL LAWYERS.

Given the impact of CRA 1991, common sense invites us to ask: has CRA 1991 furthered the march toward EEO as its drafters had hoped (and as trial lawyers had promised?).  As the late great Steve Jobs sagely observed,

Indeed, an entire sub-discipline of social work and public policy analysis is devoted to determining whether our interventions (e.g., legislation, programming) have WORKED, to any degree.  For most non-profit organizations, grant funding depends on their ability to demonstrate, through carefully chosen metrics and reliable measurements, that their help is HELPING–namely, that (a) their methods and mission align; and (b) their methods are “moving the needle” toward positive outcomes. Thus, as a social intervention ostensibly designed to further the great March for Opportunity and Jobs that began in August, 1963, CRA 1991 merits attention and analysis.

Looking Back: A Brief History of EEO Enforcement

Most folks have long forgotten about the employment practices that prompted Title VII’s passage, especially the rampant discrimination in HIRING and PROMOTION that kept racial/ethnic minorities and women from participating fully in the American economy. Because paid employment forms the foundation of most people’s financial security, discrimination in HIRING and PROMOTION reinforced the separation of HAVES and HAVE-NOTS by race, ethnicity, and gender and prevented large swaths of the population from rising above the economic circumstances that trapped them in poverty and powerlessness for generations.

No Irish, no blacks no dogsonly native born americans need applyNo Italians, Blackswhites only

Men wanted

The great March of August, 1963 set out to secure basic equal rights in public accommodations, housing, education, and most importantly, EMPLOYMENT.  Without equal opportunity in employment, civil rights advocates realized, access to public accommodations, housing, and education would remain as ECONOMICALLY elusive as before. Thus, the leaders of the great March of 1963 emphasized equal access to EMPLOYMENT, equating JOBS (i.e., economic opportunity) with FREEDOM.

jobs-freedom

March_on_Washington_Button

This March set in motion a legislative blitz that ended with the passage of the Civil Rights Act of 1964 on July 2, 1964, including Title VII’s prohibition against discrimination in EMPLOYMENT.  History buffs will recall JFK’s assassination on November 22, 1963, as well as LBJ’s desire to fulfill JFK’s civil rights vision, notwithstanding his own Texan sensibilities on racial issues.

mlk-lbj-civil-rights-act

The next year, the U.S. Equal Employment Opportunity Commission (EEOC) opened for business. Seven years  later, in 1972, the EEOC lobbied Congress to modify Title VII to give it the authority to PROSECUTE private employers for violations, complaining that without the authority to prosecute, the EEOC was nothing more than a “toothless tiger.” After this statutory modification, EEOC Litigation Centers sprung up all over the nation to not only fulfill Title VII’s promises through administrative enforcement (EEOC), but also through civil prosecution of employers in our federal courts.

In its original form, Title VII stressed injunctive, non-monetary relief and the resolution of discrimination disputes through “informal methods of conference, conciliation, and persuasion.” Section 706(b), 42 U.S.C. 2000e-5(b). Indeed, the original version of Title VII did not allow for jury trials, nor the recovery of compensatory (e.g., pain/suffering, humiliation) or punitive damages. At the time, Title VII’s architects surmised (surely correctly) that juries would not effectively enforce the civil rights of groups they had historically marginalized or hated.  Accordingly, Title VII enforcement was initially entrusted to federal judges, adjudicators with lifetime tenure and little oversight.  And not surprisingly, the great March sputtered along.

Enter Trial Lawyers . . . 

At the 25-year mile-marker, civil rights advocates called attention to our lack of progress on several EEO fronts (e.g., ending job segregation patterns, boosting diversity in top jobs, unemployment) and to a constellation of Supreme Court decisions that, advocates argued, unnecessarily limited Title VII’s broad remedial purposes.  They teamed up with trial lawyers, and fashioned a public policy argument that still echoes throughout state legislatures today: because of Title VII’s limited damages (and of course, lack of jury trials), trial lawyers had little incentive to take on employment discrimination cases. Accordingly, these self-proclaimed civil rights “gladiators” asked Congress to “sweeten the pot” by allowing recovery of compensatory damages, punitive damages, and attorneys’ fees and by guaranteeing civil jury trials. With these additional financial incentives to prosecute EEO matters, trial lawyers argued, they can help the EEOC, as deputized mini Attorneys General, stop discrimination and advance the march toward equal opportunity.

In 1991, these arguments still rang true. Due to chronic under-funding, the EEOC had developed an insurmountable backlog of pending EEO investigations, as well as a reputation for inertia.  But, according to trial lawyers and civil rights advocates, the threat of PRIVATE litigation would motivate offending, unenlightened employers to comply with Title VII’s mandates and “provide relief” for “victims” of their “unlawful employment practices.” Business groups offered anemic resistance to CRA 1991, except for insisting upon damage caps based on employer size. And by November of 1991, in backroom deals between lobbyists for advocacy groups, Chambers of Commerce, trial and civil rights lawyers, and small business, the Civil Rights Act of 1991 emerged, a significant change in federal enforcement backed up by surprisingly little legislative history.

Two Decades of Data and Dots to Connect

I joined the EEOC’s Denver District Office as a Trial Attorney six years later, in November of 1997, after finishing my JD/MSW at Washington University in St. Louis on a civil rights fellowship. I started out as a rabid “true believer” in the importance (and efficacy) of changing hearts and minds through rigorous litigation, a belief that dissipated through daily exposure to the EEOC’s methods, management, and much-distorted mission to maximize employer settlement payouts. But my own legal career grew up around CRA 1991, and because my interest equal opportunity has remained constant, I’ve paid careful attention to developments on the ground and in social science research.

Civil rights advocates and policy analysts too often forget a central tenet of natural law (Newton’s Third Law of Motion, actually): for every action, there is an equal and opposite reaction.  As a longtime attorney representing BUSINESSES, Newton’s Third Law roughly translates as the caption below.  How can we respond to or minimize the impact of CRA 1991’s costs and risks?

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In fact, after CRA 1991’s passage, the “market” responded in foreseeable ways that we have detailed in other articles:

  • EEOC’s Adoption of Priority Charge Handling Procedures (PCHP)

My tenure as an EEOC Trial Attorney in Denver from 1997-2000 let me observe firsthand how the EEOC grappled with the deluge of new EEOC charges following CRA 1991’s passage. In 1995, the EEOC adopted Priority Charge Handling Procedures (PCHP), triaging protocols that remain very much in use today. Although CRA 1991 effectively privatized EEO enforcement, its statutory scheme still required employees and their attorneys first to file a Charge of Discrimination within 300 days at the nearest EEOC office and to obtain a Notice of Right to Sue before proceeding to court . . . and not surprisingly, EEOC charge intake soared and its “handling” of charges became more superficial and perfunctory than ever before.  Of course, as indicated earlier, the EEOC acts on only a very small number of charges, issuing reasonable cause determinations in 3.5% of charges and prosecuting less than .1% of all discrimination allegations.

  • Proliferation of Employment Practices Liability Insurance (EPL)

In the 1990’s, few insurance carriers offered Employment Practices Liability coverage to defray the defense costs and risks of big damages under CRA 1991.  But where there is risk, the insurance industry offers a remedy, and without doubt, CRA 1991 exposed employers to greater risks (e.g., jury trials on sensitive issues) and costs than ever before. Nowadays, over the past 20 years, a majority of employers have purchased EPL coverage.

I became very familiar with EPL insurance after leaving the EEOC in 2000 to launch my defense practice.  In those early years, I considered EPL insurance a very poor fit for employment cases, given their typically emotional nature: whereas insurance carriers always favor settlement to minimize defense costs, most employers simply cannot not stomach the notion of paying out $30K on unfounded, nefarious, and brand-damaging allegations. Extortion, I’d often hear employers say, during spirited settlement conferences.

I also had difficulty reconciling a logical inconsistency about the insurability of EEO allegations, given that insurance is typically not available for INTENTIONAL acts and discrimination, harassment, or retaliation are theoretically intentional acts.  But over time, I realized that without EPL insurance, the non-recoverable defense costs of proving they did nothing wrong in the first place would force many small to mid-sized businesses into bankruptcy.

By design, EPL insurance took the sting out of CRA 1991’s enhanced remedies–i.e., the “stick” designed to scare employers into Title VII compliance.  Because EPL coverage pays defense and indemnity (e.g., judgments, settlements) costs, employers have minimal direct financial exposure in EEO disputes, except for their deductible and a potential increase in premiums.  And although EEO allegations inherently involve INTENTIONAL acts, many employers now treat EEOC charges as simply an UNAVOIDABLE COST of doing business, like a slip-n-fall or workers’ compensation accident. From a behavioral modification perspective, therefore, EPL neutralized CRA 1991, rendering it completely ineffective as a tool to effectuate workplace change. Instead, CRA 1991 spawned a wealth redistribution cycle between employers, EPL insurance carriers, and lawyers (on both sides) where nothing much changes except money changing hands . . . between themselves.

  • The Stalled March Toward Equal Employment Opportunity

Since 2013, in anticipation of Title VII’s 50th birthday on July 2, 2014, my friends at Biddle Consulting Group and I have, both individually and cooperatively, conducted on-going research about our progress toward EEO.  We started by asking, what kinds of measurements might indicate progress or lack thereof?  After all, the EEOC and OFCCP historically claimed that they were “enforcing the law more effectively” based on employer settlement payouts, a measurement that made little sense in light of their respective missions–namely, to end workplace discrimination against and to promote opportunity for women and minorities.

We analyzed the EEOC’s own EEO-1 data, examining the pace and trajectory of change in two specific areas: (1) historic job segregation patterns; and (2) minority advancement into the Official/Manager and Professional categories of jobs, the “top jobs” in EEOC-speak.  We dug further, analyzing quarterly data from the Department of Labor’s Bureau of Labor Statistics (BLS) on unemployment and its impact across racial/ethnic and gender groups. We tapped into the robust databases at Catalyst.org for international information on women’s corporate advancement, workforce participation, and governmental leadership. And, in March of 2014, we published our findings HERE and in EEO Insight, the nation’s leading periodical for the Affirmative Action and EEO industry.

Based upon our findings, we concluded that the great March for Jobs and Freedom of 1963 stalled out in the mid-1990’s, particularly for African-Americans, Latinos, and women. The next year, the EEOC released its 50th Anniversary Report on the American Workplace based upon the same EEO-1 data that Biddle’s Dan Kuang, PhD had analyzed and not surprisingly, the EEOC’s findings mirrored our earlier report (sans the helpful BLS and Catalyst.org data).

Why have African-Americans lost ground in their quest for Official/Manager jobs since 2008? Why have Women improved their participation rates in the Professional category, but not the Official/Manager category (i.e., the glass ceiling)?  Why are African-Americans, Latinos, and Women still concentrated in lower paying positions, whereas Whites and Asians dominate the highest echelons of the pay scale?

  • From Hiring and Promotion to FIRING Claims

On April 4, 2006, the EEOC announced another major shift in its administrative enforcement of Title VII, switching from a cohort discrimination model to a systemic model. The EEOC stated its intent to focus on “discriminatory hiring barriers” (e.g., criminal background and credit checks, pre-employment tests) that reinforce past “vestiges of discrimination.” In other words, under the EEOC’s systemic initiative, the EEOC planned to return its focus to HIRING and PROMOTION practices that have kept “economic minorities” (e.g., Women, African-Americans, Latinos) from breaking through historic job segregation barriers and glass ceilings.

The EEOC’s renewed focus on HIRING and PROMOTION came as a welcome surprise, until I remembered that the EEOC takes action on less than 3.5% of its charge inventory and prosecutes less than .1% of all allegations. Despite touting this initiative, the EEOC filed only 42 systemic prosecutions in FY2015, and its flagship prosecutions–e.g., EEOC v. Kaplan Higher Ed. Corp. (credit reports) and EEOC v. Freeman (criminal background)–did not survive summary judgment.

While the EEOC’s systemic initiative floundered (despite its laudable aims), however, employers continued to face an increasing number of EEOC charges and PRIVATE litigation from their own employees. These charges seldom involved HIRING and/or PROMOTION discrimination; on the contrary, increasingly over time, the bulk of the EEOC’s charge intake came to involve TERMINATION decisions.  By FY2015, the bulk of the EEOC’s charge intake challenged TERMINATION decisions, not HIRING or PROMOTION ones.

IntakeWHY?  Although data shows that discrimination in HIRING and PROMOTION likely remains rampant, trial lawyers disfavor hiring/promotion cases.  They require statistical experts and lots of work.  Because of the universal “duty to mitigate” damages, hiring and promotion cases typically yield small monetary recoveries; after all, in many cases, a rejected applicant (even one rejected for discriminatory reasons) will simply apply for and accept another job with comparable pay and benefits.

TERMINATION cases, by contrast, allow trial lawyers to pile on discrimination, harassment, and retaliation claims in a familiar “shotgun method” of pleading (i.e., spewing many pellets in hopes that one hits the target).  Termination cases yield bigger backpay awards, in light of most terminated employees’ inability to find comparable employment over long periods of time. Termination cases generate large frontpay awards. Termination cases engender greater emotional distress and juror sympathy–i.e., I was a loyal employee who planned to work here until retirement!  Termination cases, especially those involving retaliation allegations, are easier to spin into settlements, at least from a trial lawyers’ perspective.

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From the employers’ perspective, however, termination decisions involve an employee’s SQUANDERING of opportunity, not any discriminatory failure to provide opportunity. Indeed, for every employee allegation of discrimination arising out of a termination, there are one or more equal and opposite explanations for the decision, typically poor performance and failure to rehabilitate.  According to the EEOC’s own statistics, employers’ legitimate, non-discriminatory and non-retaliatory reasons for terminating the employee persuade the EEOC in the majority of cases that no discrimination occurred whatsoever.  Discrimination is, after all, difficult to prove, but easy to allege.

From Opportunity to Entitlement: Refocusing Our Dialogue About EEO

The great March for Jobs and Freedom and the quest for inclusiveness at ALL levels of our workforce have sputtered to a crawl at the 50-year mile-marker, likely for a multitude of reasons. But here’s one reason no one seems to have noticed thus far: instead of focusing on boosting diversity/inclusiveness in HIRING and PROMOTION, employers are naturally more motivated to neutralize any risk posed by TERMINATIONS and to allocate internal resources accordingly. Thus, while statistics suggest that discrimination in HIRING and PROMOTION remains pervasive, it often goes completely undetected or unchallenged because (a) few trial lawyers have the patience, wherewithal, or social conscience necessary for successful private prosecution; and (b) savvy employers allocate resources based on risk exposure–i.e., TERMINATION decisions.

Our national EEO focus on termination decisions, however, has also caused a shift in how employees perceive EMPLOYMENT generally, shifting the workforce from an OPPORTUNITY mindset to one of ENTITLEMENT:  i.e., You can’t fire me!  You owe me a job no matter how incompetently I perform it.  Quarterly Gallup polls reveal that over 70% of the American workforce is “disengaged” (i.e., “checked out”) at work–e.g., disinterested, disloyal, disenchanted like Peter Gibbons from Office Space.

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HR practitioners and workplace analysts have known for decades that disengaged employees are most likely to commit “job abuse”–e.g., chronic absenteeism, missed deadlines, poor work product or output.  Disengaged employees do not treat work like an opportunity, but rather an entitlement. They could care less about advancing their employers’ business objectives or even being good at their jobs. Likewise, they could care less about the impact of half-assed performance on others, such as students, patients, customers or clients. On the contrary, chronically disengaged employees chronically under-perform, while demanding that employers tailor their positions to their unique personal circumstances on and off the job. Disengagement and entitlement, I am convinced, also form part of a constellation of behaviors that are predictive of who will sue if terminated.

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The numbers are difficult to reconcile: 70% of employees are “disengaged” at work, yet 75% of EEOC charges now involve termination decisions, not HIRING or PROMOTION ones. Worse, the pool of available jobs is SHRINKING, given that technology has steadily replaced jobs quicker than it has created them.  MIT professors Andrew McAfee and Erik Brynjolfsson observed in their revolutionary work, The Second Machine Age, “as technology races ahead, it may leave a lot of people, organizations and institutions behind.”  And no doubt, unless we figure out how to deliver on Title VII’s promise of equal employment opportunity, the people that technology will first leave behind are those concentrated in Administrative Support, Operatives and Laborers/Helpers–to wit, Women, African-Americans, and Latinos.

The Road Ahead

Over the past few years, members of the National Trial Lawyers Association (NTLA) and National Employment Lawyers Association (NELA)–i.e., the chief architects and beneficiaries of CRA 1991–have called me “racist,” “unenlightened” and even “immature” and “anti-Islamic” for questioning the efficacy of this statutory scheme. But their attacks reveal their underlying intent: if they truly cared about advancing EEO as much as the financial windfall that CRA 1991 generates for themselves, they would echo my concerns about whether this enforcement model has worked, to any degree.

NTLA and NELA have convinced advocacy groups and the EEOC, however, that LITIGATION promotes inclusion and diversity or stated another way, that the ability to sue employers somehow equates with greater opportunity and inclusiveness.  Yet, after 25 years of CRA 1991 “enforcement,” NTLA and NELA attorneys have demonstrated that rather than solve the social problem of inequitable economic opportunity, they have simply found a way to make money on it.

NTLA and NELA attorneys also commonly retort: this is the only enforcement model we have; only racists would seek to deconstruct it!  In truth, this enforcement model is all we have because of their powerful lobbying and disingenuous marketing (i.e., “we’ll fight for you!”). But, public policy choices ABOUND for advancing the march toward EEO, from tax incentives like the Work Opportunity Tax Credit (WOTC) to internal management development and resource integration programs. Read more HERE.

Further, research continues to reinforce the strong correlation between diverse/inclusive workplaces and decision-making AND higher profits, better access to top talent, enhanced community reputation, and improved group synergy/creativity. More HERE. As this BUSINESS CASE for diversity/inclusiveness comes into sharper focus, our efforts to advance EEO should concentrate on collaborating WITH employers, not declaring war AGAINST them. With rapid technological advancement, businesses are increasingly questioning the value of hiring HUMANS entirely; after all, technology may malfunction, but it cannot sue.

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

April 14, 2016

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.