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Archive for the ‘EEOC’ Category

Suggestions to the EEOC for Charge Intake and Processing

Tuesday, May 26th, 2015

Richard Seymour[Editor’s Note: The following is taken from Rick Seymour’s April 23, 2015 Comments to the EEOC on Charge Processing. It lists suggestions for improving EEOC practices in intake of charges. Changes to Mr. Seymour’s original article have been made to improve blog formatting and ease of access.]

Suggestions for Charge Intake and Processing

1. Make it easy for people to file timely charges of discrimination. Put a fillable form on the EEOC website, allow people to sign and file charges electronically and immediately, and serve the charges upon employers immediately. They can always be amended later, and the amendments promptly served. The IRS does it for taxes, and the NLRB does it for unfair labor practice charges. The Commission can do it too.

2. You can lead charging parties to preserve their rights by asking questions, the same way tax preparation software does, and filling out the charge based on answers. Insert the State and local FEPAs automatically, and allow for more than one because coverage remedies differ.

3. Insert a place where the charging party can identify counsel, and have the software ensure that counsel are always notified of events.

4. In any re-writings of charges, train staff so that they stop dropping claims by mistake, neglect, and inadvertence.

5. Put facts into the charges, and end the practice of replacing facts with uninformative boilerplate.

6. Allow charging parties to submit changes of address and changes of counsel online.

7. Do not hurt the agency’s credibility.

  • Stop taking the respondent’s words as golden and incense in front of it. This tells employers and employees alike that the Commission does not care about their facts. Only a real, questioning, examination of facts will restore credibility.
  • Train the Commission’s staff in critical thinking, give them performance standards, and eliminate those who cannot perform.
  • Stop premature kick-outs of charges shortly after they are received. Same-day kick-outs should be barred.

8. Help the agency do more with fewer resources. The agency cannot do it all, and trying to do so just wastes time and resources.

  • Use the information available, instead of turning up the agency’s nose at the available help. The greatest source of information with which to evaluate the position statement is the charging party and her or his counsel.
  • Charging parties and their counsel need to be given copies of respondents’ position statements and all their attachments, and invited to submit responses.
  • The position statements need to be served on the charging party and counsel as soon as they are received, ending the absurd practice in some offices of providing them only after the commission receives a file-stamped copy of the court Complaint.
  • The Commission should end the absurd practice in some offices of having staff members paraphrase the position statements, or re-write them. It burns up staff time and is not nearly as useful as providing the actual documents.
  • Those responses should be a great help to the Commission in focusing its investigation. Its offices should be required to follow up on the responses, instead of ignoring them and accepting the employer’s word as golden.
  • The responses should be provided to the employer for its comments.
  • More than one cycle may be needed. The important point is the Commission [uses] the parties to inform itself as to a lot of the facts, and the responses will allow a narrowing of the dispute.

9. The Commission should again become a national agency, instead of the present system of 50-odd principalities making up their own standards and procedures. The Commission’s pendulum of control tends to get stuck at the extremes, and the present system of letting every office do what it wants has not worked very well.

10. The commission should make it easy to contact every staff member. It should have an online directory of names, titles, locations, mailing addresses, telephone numbers, and e-mail addresses. Agencies like the State Department do this as a matter of routine. I went to www.state.gov and searched for “Telephone Directory” and this led me to [a PDF “Organizational Directory” which lists telephone numbers for many of the staff].

11. Whatever the outcome of Mach Mining, the Commission has major problems in its conciliation efforts. Those need to be tackled seriously. Again, agency credibility is at stake. Think about creating an internal appeal procedure to the Commission whenever a respondent thinks conciliation staff have done it wrong. That will take the commission time, but provide an invaluable insight and, in the event the Commission loses Mach Mining, will reduce the number of matters to be reviewed by the courts. [Ed. Note: The Seventh Circuit’s Mach Mining decision from April 29, 2015 can be found here.]

Reprinted with permission.

About the author: The author’s name is Rick Seymour. Richard Seymour graduated from Harvard Law School in 1968, and has worked in civil rights and employee rights ever since. In the 36 years since leaving the U.S. Commission on Civil Rights in 1969, he has spent more than 90% of his time representing plaintiffs in class actions.

Why Does the EEOC Make Mistakes (Part I)

Monday, March 16th, 2015

Over the years, the U.S. Equal Employment Opportunity Commission has been routinely criticized by charging parties, plaintiffs’ attorneys, respondents, and attorneys for respondents, as to virtually every aspect of the Commission’s activities including the filing,Richard Seymour investigation, and conciliation of charges, and the Commission’s litigation.

The courts have added their voices to the criticisms by charging parties and their counsel, with numerous courts coming to the rescue of charging parties by holding that the EEOC’s interim charge-processing steps are not jurisdictional prerequisites to a private suit and echoing the early words of the Fifth Circuit:

“Significantly, under EEOC regulations, a right to demand and receive such a notice accrues sixty days after the charge is filed regardless of any act or omission by the EEOC. Were this regulation not written, we would read it into the Act lest a claimant’s statutory right to sue in federal court become subject to such fortuitous variables as workload, mistakes, or possible lack of diligence of EEOC personnel.”

Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1140 (5th Cir. 1971) (footnotes omitted). The period for requesting a notice of right to sue was later expanded, of course, to 180 days. 29 C.F.R. § 1628(a).

The courts have also echoed some of the concerns raised by respondents and their counsel, and have sometimes added teeth to the criticisms by sanctioning the EEOC for perceived failures in investigation, conciliation, and litigation. E.g., E.E.O.C. v. CRST Van Expedited, Inc., 2013 WL 3984478, 119 Fair Empl.Prac.Cas. (BNA) 739 (N.D.Iowa Aug. 1, 2013) (No. 07-CV-95-LRR), awarding $4,694,442.14 in defendant’s attorneys’ fees and costs against the EEOC for perceived failures of conciliation and for litigation missteps.

Some employers are using the courts’ criticisms in an effort to tie up the Commission’s enforcement efforts in red-tape preliminaries that could require more effort than the litigation they are trying to stave off. The Courts of Appeals are split as to whether respondents have an affirmative defense for the EEOC’s failure to conciliate reasonably, and the issue is now before the U.S. Supreme Court in Mach Mining, LLC, v. E.E.O.C., No. 13-1019 (scheduled for conference on June 19, 2014). Both sides have agreed that the Supreme Court should take the case and resolve this question, and we will shortly find out whether the Court will grant review. The Seventh Circuit had decided that courts could not enquire into the reasonableness of the EEOC’s conciliation efforts. E.E.O.C. v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013). The Commission’s response to the petition for certiorari, however, shows at pp. 3-4 the degree to which allowing such inquiries will stymie the EEOC’s enforcement efforts:

2. In 2008, a woman who had unsuccessfully applied for a mining position with petitioner filed a charge of unlawful employment discrimination with the Commission. . . . She contended that petitioner, which had never hired a woman for a mining position, refused to hire her based on her gender. . . . The Commission investigated the charge, found reasonable cause to believe petitioner had discriminated against a class of women who applied for mining-related jobs, and invited petitioner to conciliate. . . . From late 2010 to late 2011, the Commission attempted conciliation with petitioner, but no agreement was reached. . . .

The Commission then filed this lawsuit, contending that petitioner engaged in a pattern or practice of unlawful employment discrimination and used employment practices that had a disparate impact on female applicants. . . . In its answer, petitioner asserted a failure-to-conciliate affirmative defense, contending that the complaint should be dismissed because the Commission had failed to expend sufficient efforts on conciliation. . . . The Commission responded that Title VII includes no such failure-to-conciliate affirmative defense, and it moved for partial summary judgment on that basis. . . . In the meantime, petitioner submitted “extensive discovery requests”—including more than 600 requests for admissions of fact—that “s(ought) information about the EEOC’s investigation and conciliation efforts.” . . . . Petitioner also “slowed discovery on the merits” by objecting to the Commission’s merits-related discovery requests on “failure to conciliate” grounds. . . .

(Emphasis supplied.)  The petition, response, and reply can all be downloaded fromhttp://www.scotusblog.com/case-files/cases/mach-mining-v-equal-employment-opportunity-commission/. (ScotusBlog, www.scotusblog.com, is an extraordinarily useful website.) The text of the response makes a compelling case why there is no judicially-enforceable duty to conciliate; a later blog posting will address that question.

In the face of all these criticisms, fair-minded persons need to pause and consider how all these perceived problems came to exist.

First, expectations for the EEOC have always been very high. The Fourth Circuit’s view of the “public avenger” role of the EEOC after the 1972 amendments to Title VII giving it the power to sue in its own name were echoed by many courts in more prosaic opinions. Here is how the Fourth Circuit put it:

“But, unlike the individual charging party, the EEOC, when it sued, did so ‘to vindicate the public interest’ as expressed in the Congressional purpose of eliminating employment discrimination as a national evil rather than for the redress of the strictly private interests of the complaining party. Because of this significant difference, the EEOC’s suit was ‘broader (in scope) than the interests of the charging parties. It follows that the standing of the EEOC to sue under Title VII cannot be controlled or determined by the standing of the charging party to sue, limited as he is in rights to the vindication of his own individual rights. To hold otherwise, as did the District Court, would be to continue treating the sole purpose of the Title to be the correction of individual wrongs rather than of public or ‘societal’ wrongs as well as to deny to the EEOC the right to be any more than a mere proxy for the charging party rather than what Congress by the Amendments of 1972 intended, i.e., the public avenger by civil suit of any discrimination uncovered in a valid investigation and subjected to conciliation under the Act. We find no warrant whatsoever for placing such limitation on the right or standing of the EEOC to bring suit; indeed, were such limitation to be imposed, it would be in our opinion a clear nullification of the legislative intent in enacting the Amendments of 1972. . . . “

Equal Employment Opportunity Commission v. General Electric Co., 532 F.2d 359, 373 (4th Cir. 1976) (footnotes omitted; emphasis supplied).

Second, the EEOC has always been starved for resources, and the starvation has become endemic:.

President EEOC Authorized Staff When He Took the Oath of Office EEOC Authorized Staff When He Left Office Reduction from January 1981: No. Reduction from January 1981: %
Ronald Reagan January 1981:  3,696 January 1989:  3,198 498 14.1%
George H.W. Bush January 1989:  3,198 January 1993:  3,071 625 17.7%
Bill Clinton January 1993:  3,071 January 2001:  3,055 641 18.2%
George W. Bush January 2001:  3,055 January 2009:  2,556 1,140 32.3%
Barack Obama January 2009:  2,556 N.A.   Currently 2,347 1,349 38.2%

Source, EEOC Budget figures, http://www.eeoc.gov/eeoc/plan/budgetandstaffing.cfm, last visited June 8, 2014, with my calculations in the last two columns.

During this same time period, the EEOC has been given very substantial new responsibilities, including the Older Workers Benefit Protection Act of 1990, the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008.

Similarly, the EEOC’s web site shows that 93,727 charges were filed in FY 2013, compared with 72,302 in FY 1992, the earliest year with reported data. That is a 22.9% increase.

Moreover, during this period Congress has required the EEOC to devote a substantial part of its budget to help fund State and local fair employment practice agencies.

Third, the recent difficulties in financing government operations make realistic planning very difficult. Not only do agencies know whether the Office of Management and Budget will recommend budget figures for the next year comparable to those of the current year, the present dysfunction in Congress makes it impossible to tell what will be appropriated. There may be government-wide hiring freezes lasting for years. When those are lifted, agencies hire as many as possible, because they do not know when they will be able to hire again. Meanwhile, salaries and rents increase with inflation, and the training budget is among the first to be cut. The lack of professional training for attorneys, investigators, and others harms many aspects of the Commission’s operations.

Fourth, while many EEOC staff members are extremely well-skilled and dedicated, not all meet those criteria. The EEOC has never taken seriously the idea in the Civil Service Reform Act of 1978 that it should adopt truly objective and fair performance standards, train staff to meet those objective standards, and terminate staff who either cannot or will not come up to objective and fair performance standards. It has routinely refused to take action against unwilling or incompetent employees, and incoming Chairs have sometimes withdrawn pending disciplinary charges against large numbers of employees in a misguided effort to build good will, and an understandable but still mistaken effort to avoid the large amounts of management time that would have to be devoted to cleaning house.

Now consider: What private firm would have a chance of meeting its goals under these conditions: heavily increased workload, almost a 40% reduction in staff, little technology to make up the slack, no money for training, an inadequate effort to identify and get rid of poor performers, and the need to give a lot of discretion to untrained staff regardless of their performance?

It is close to a miracle that the EEOC can accomplish anything at all. Yet it has provided very useful guidance to employers, unions, and employees, and has recovered substantial amounts in resolutions of charges and in litigation.

When we criticize the agency, we need to be mindful of the difficulties under which it labors.

About the Author: Richard Seymour graduated from Harvard Law School in 1968, and has worked in civil rights and employee rights ever since. In the 36 years since leaving the U.S. Commission on Civil Rights in 1969, he have spent more than 90% of my time representing plaintiffs in class actions.

Unemployed Can’t Get Jobs Because They Are…Unemployed

Thursday, February 24th, 2011

Image: James ParksAs if finding a job isn’t hard enough, unemployed workers now face the added hurdle of being discriminated against because they don’t have a job. Speaking today before the U.S. Equal Employment Opportunity Commission (EEOC), Christine Owens, executive director of the National Employment Law Project (NELP),  said that practices barring the unemployed from job availabilities have been growing around the country—and place a disproportionate burden on older workers, African Americans and other workers facing high levels of long-term unemployment.

“There is a disturbing and growing trend among employers and staffing firms to refuse to even consider the unemployed for available job openings, regardless of their qualifications,” said Owens.

Excluding unemployed workers from employment opportunities is unfair to workers, bad for the economy and potentially violates basic civil rights protections because of the disparate impact on older workers, workers of color, women and others. At a time when we should be doing whatever we can to open up job opportunities, it is profoundly disturbing to see deliberate exclusion of the jobless from work opportunities.

The EEOC, which is responsible for handling complaints of employment discrimination, began to receive reports of systematic and often blatant exclusion of unemployed workers from consideration for jobs early last summer. Many ads for jobs often specify that only currently employed candidates will be considered, or that no unemployed candidates will be considered, regardless of the reason for unemployment, or that no candidate unemployed for more than a certain period will be considered.

The job market is tough because the economy is not creating enough jobs. There are still roughly five officially unemployed job seekers for every new job opening.  The economy would need to add roughly 11 million jobs just to return to employment levels at the start of the recession.

Refusal to consider candidates simply because they are unemployed imposes an especially harsh burden on people of color, especially African Americans.  In January 2011, when the official unemployment rate overall was 9.0 percent, the unemployment rate for African Americans was 15.7 percent, compared with only 8.0 percent for white workers.

Similarly, long-term unemployment is far more severe among older Americans than younger workers, which means the impact of excluding unemployed workers from job consideration is greater for older workers.

Owens told the commission:

The dire job market has made it essential that Congress and the administration maintain the most robust program of unemployment insurance benefits in the nation’s history. But what’s needed most—and what all unemployed workers most want—is jobs.

Click here to see Owens’ full testimony before the Equal Employment Opportunity Commission.

This post originally appeared in AFL-CIO blog on February 16, 2011. Reprinted with permission.

About the Author: James Parks-My first encounter with unions was at Gannett’s newspaper in Cincinnati when my colleagues in the newsroom tried to organize a unit of The Newspaper Guild. I saw firsthand how companies pull out all the stops to prevent workers from forming a union. I am a journalist by trade, and I worked for newspapers in five different states before joining the AFL-CIO staff in 1990. I also have been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. My proudest career moment, though, was when I served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections.

Employee Rights Short Takes: Scalia's Impartiality Questioned, Two Punitive Damage Awards, Disability Discrimination And More

Wednesday, January 19th, 2011

Here are a few employee rights Short Takes worth noting:

Scalia Says Due Process Clause Does Not Prohibit Sex Discrimination

For those who may have missed it, Justice Antonin Scalia recently expressed his view that neither women nor gays are protected against discrimination under the 14th amendment of the Constitution. The statement was made in an interview this month published in the California Lawyer.

While it’s newsworthy because of the shock value alone, Scalia has expressed this view before. All one has to do is read the 1996 decision of  United States v. Virginia, in which Scalia was the only justice to dissent from the Supreme Court’s decision to end the Virginia Military Institute’s 157 year old state supported practice of only accepting male students.

Not surprisingly, Scalia’s recent remarks angered liberals and was criticized by many legal scholars. Marcia Greenberger, founder and co-President of the Women’s Law Center, as reported in the Huffington Post, called  Scalia’s comments “shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Scalia’s comments stem from his view that the 14th amendment , when written, was not intended to ban sex discrimination. As to Scalia’s originalist view, Eric Segall, a professor at Georgia State College of Law, had this to say in his letter to the editor published in the New York Times:

On issues of affirmative action, gender rights, gun control and campaign finance reform, among most other controversial constitutional law questions, Justice Scalia does not truly use an originalist methodology. Much more of his judicial style can be gleaned from looking at the Republican Party Platform than at the drafters of either the original Constitution or the 14th amendment.

For Justice Scalia, it is about results, not process, no matter how much he protests otherwise.

In the same vein, Scalia also also made news with the announcement of his role as a featured speaker at  Michele Bachmann’s tea party / “Constitutional Conservative Caucus” later this month. For more about questions raised regarding Justice Scalia’s impartiality, read Nan Aaron here.

EEOC Settles Disability Discrimination Case For 3.2 Million

Jewel –Osco’s parent company Supervalu  Inc. has agreed to pay $3.2 million to settle a federal lawsuit claiming that the company discriminated against its disabled employees.

The suit, filed by the EEOC, alleged that Jewel-Osco fired employees with disabilities at the end of their leaves rather than bringing them back to work with reasonable accommodations.

According to the EEOC, roughly 1000 employees at Jewel-Osco stores were fired under this policy. One employee who will benefit from the settlement is Rosemary Bednarek who is representative of the class.

Bednarek injured her back lifting boxes of chicken at a Jewel-Osco store in 2004. When she was able to return to work, her doctor advised that she should not lift more than 20 pounds but the company would not accommodate the restriction. Bednarek re-injured her back and was fired a year later.

This is a great settlement that will not only benefit the plaintiffs in the case, but also serve to remind employers of their obligations under the Americans with Disabilities Act (ADA) to accommodate employees with disabilities — including those who are injured on the job.

Two New Decisions On Punitive Damages

We do not often see employment law decisions in which punitive damages are addressed, so to see two in the last few weeks is worth talking about.

Generally speaking, punitive damages are available in some cases in which the defendant engaged in a deliberate or reckless disregard of the rights of others.

The jury, in determining the amount of the punitive damage award, is permitted to consider a number of factors, including a sum of money that would discourage the defendant from engaging in the conduct in the future as well as the income and assets of the defendant. Some large punitive damage awards are challenged on grounds that they violate the Due Process Clause of the Fourteenth Amendment of the Constitution.

Here’s a brief synopsis of the cases:

Hamlin v Hampton Lumbar Mills, Inc.:  Plaintiff Ken Hamlin was injured while working at the Hampton Lumbar Mills. When he was released to return to work, the defendant falsely asserting that he was a “safety risk” and refused to to reinstate him as required by Oregon law.

The case went to trial and the jury awarded lost wages of $6000 and punitive damages in the amount of $175, 000. On appeal, the Court of Appeals held that the punitive damage award was “grossly excessive” under the Due Process Clause of the United States Constitution and reduced it to a sum equivalent to four times the amount of the compensatory damages.

In an instructive review of the case law on punitive damages, the Oregon Supreme Court reversed holding that a punitive damage award may exceed a single digit multiplier of a compensatory damage award without violating due process or being “grossly excessive.”

The case is an excellent reference point for anyone briefing an argument for punitive damages in an employment case.

Claus v. Intrigue Hotel, LLC:  In this age discrimination case, the jury awarded $50,000 in actual damages and $150,000 in punitive damages in a bifurcated trial. The defendant appealed. The Court of Appeals affirmed the verdict in a decision issued late last month.

In brief, Glenda Claus worked for Intrigue Hotels (including its predecessor) since 1984. Her last position was housekeeping supervisor. In 2007, Claus was fired and replaced by a 31 year old employee.

Claus, 63 at the time, testified that she was completely blindsided by the news of her termination. With a record of positive job performance evaluations, a failure to admonish Claus regarding job deficiencies, and replacement with a 31 year old employee with performance issues, the Court of Appeals held that the jury could have rejected Intrigue’s after the fact rationale that Claus was fired for poor performance.

In addition, there was evidence that her new supervisor (Galaviz ) stated he wanted employees who would be at the hotel for the “long haul” and that Claus was “resistant to change.” The Court held that the jury could have reasonably taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing.

The evidence also showed that Galaviz had been engaged as a human resources consultant and had an extensive knowledge of employment law at the time he made these comments and fired Galaviz.

Worth noting is the Court’s statement that the same evidence which supported Claus’s substantive claim for age discrimination also supported her claim for punitive damages  As the Court pointed out,  both Copidas (the owner of the hotel) and Galaviz:

  • knew it was against the law to fire an employee because of age
  • fired a 63 year old employee with a spotless record
  • replaced her with a 31 year old with documented performance problems
  • promoted several younger employees with performance issues
  • altered its rationale for firing Claus several times and created pretextual reasons for firing her

In sum, the Court concluded that the jury’s award of punitive damages was supported by the evidence. The case was remanded to the trial court for an award of reasonable attorney’s fees and costs — a great victory for Claus and her lawyer.

This case is a good example of the kind of evidence which supports a claim for age discrimination as well as a claim for punitive damages. As stated above, since we don’t often see decisions affirming a punitive damage award, these cases are worth noting.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Employee Rights Short Takes: Race Discrimination, 5.8 Milllion Dollar Verdict, Breach of Contract Damages And More

Friday, December 24th, 2010

ellen simonHere are a few short takes about some employment cases worth noting this month:

EEOC Files Lawsuit Against Kaplan Higher Education Corp. Claiming Race Discrimination

The EEOC announced last week that it filed a class action race discrimination case against Kaplan Higher Education Corp. The suit alleges that since at least 2008, Kaplan rejected applicants based on their credit history and that this practice has an unlawful discriminatory impact because of race. The EEOC further claims that the practice is neither job-related nor justified by business necessity and therefore violates Title VII of the Civil Rights Act of 1964.

These kinds of discrimination lawsuits are known as “disparate impact” cases and are often the legal foundation upon which class action discrimination cases are premised. The claim arises when an employer’s practice or policy, though neutral on its face, has a disparate impact on a group which is protected under one or more of  the civil rights statutes. For more about disparate impact cases, see here.

There has been much discussion about the use of credit history as a prerequisite for hiring and its disparate impact on minorities though we haven’t seen many lawsuits challenging the practice.

It will be interesting to follow this litigation and see how Kaplan justifies its policy to check credit history as a job related business necessity. The outcome of this litigation could have a significant impact on future higher practices nationwide. For more about the case, read the NY Times article here.

El Paso Employee Wins 5.8 Million Dollar Discrimination Verdict

An El Paso, Texas jury awarded Mark Duncan, a white benefits supervisor, 5.8 million dollars in a discrimination case against his former employer, El Paso Electric.

According to the El Paso Times, Duncan worked for El Paso Electric for six years and had a good employment history with no record of discipline. He was fired in December of 2007 after his life was threatened during an altercation with a company human resources manager.

Even though Duncan was cleared of any wrongdoing the company fired him along with the human resource manager.

Duncan claimed he was fired because the company feared a lawsuit from the Hispanic human resource manager and that it got rid of him (“the white guy”) to create a defense.

The jury agreed with Duncan and awarded him $129,913 in past lost wages; $699,196 in future lost earnings; $5000 in compensatory damages; and 5 million in punitive damages. El Paso Electric plans to file motions to set aside and reduce the verdict according to newspaper reports.

It certainly looks like whoever made the decision to fire Duncan either forgot or didn’t know that white employees can be victims of race discrimination too.

Two Decisions Worth Noting

In Helpin v.Trustees of the University of Pennsylvania, the Supreme Court of Pennsylvania addressed an issue of damages which can be very helpful to other employees down the road.

Mark Helpin, a dentist and professor, won a lawsuit for breach of contract against the University of Pennsylvania and an award of over four million dollars.

Helpin claimed that he was constructively discharged without “just cause” in violation of his contract and that Penn had improperly failed to continue to pay him 50% of the Children’s Hospital of Philadelphia dental clinic profits to which he was entitled. In a great discussion of future earnings, lost business profits, and the propriety of the “total offset approach” to the calculation of those damages, the Supreme Court of Pennsylvania affirmed the award.

Under the total offset approach, it is assumed that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating the need to discount an award to present value. It has been adopted by some, but not most courts, but I expect so see more of its application in opinions to come.

For anyone involved in a case with a large future damages component, this opinion is both interesting and important and one worth sharing with any expert economists prior to his or her testimony.

In Quinlan v. Curtisss-Wright Corp. the New Jersey Supreme Court issued an extremely important and helpful decision which addresses the situation in which an employee takes company documents which bolster his or her  discrimination claim.

Joyce Quinlan was the Executive Director of Human Resources for Curtiss-Wright. She filed a lawsuit claiming that she was passed over for a promotion because of gender discrimination.

Quinlan copied files — over 1800 documents — which supported her claim and gave them to her lawyers.

The company found out during discovery in her pending case  that she copied the documents and and fired her (although it did not fire her right away). It claimed that she stole company property in violation of the company’s code of conduct and therefore the discharge was justified.

Quinlian amended her lawsuit to add a retaliation claim. The case was tried and the jury awarded her more that 5.4 million dollars in compensatory damages and over 4.5 million dollars in punitive damages.

The case went to New Jersey Supreme Court which ruled in her favor this month. It upheld the trial court’s determination that Quinlan’s copying and retaining the company’s documents was not “protected conduct” and affirmed the jury’s finding that her firing was retaliatory.

In line with several federal court decisions, it adopted a “flexible totality of the circumstances approach” which sets forth seven factors to be considered in determining whether an employee is permitted to take and use documents belonging to his or her employer.

While this is a very good decision for employees, those who feel their employment rights may have been violated still need to be very cautious about taking company documents in violation of a company policy, even if the documents bolster their claims.  The law is tricky and changing, and it’s  best to seek counsel and get advice before it’s too late.

Both of these cases represent significant victories for the the plaintiffs and their lawyers.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Defense Attorneys Make Excuses, But the Outcome is the Same

Wednesday, October 1st, 2008

When attending the American Constitution Society’s panel following the release of Schwab and Clermont’s seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.

Cyrus Mehri’s excellent testimony before the Senate Judiciary Committee (Part I, Part II) lays out the new report’s three basic premises:

  • When employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. When employees win at trial, they are reversed 41.10% of the time.
  • There has been an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007.
  • Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53% of the time.

Rather than dealing with why federal district court and appeals court judges might be biased, I guess it’s easier to try to explain away the absolute drop in cases.  And if you’re a defense lawyer, you might try to explain in a way that doesn’t implicate the other two findings, as if the fact that plaintiffs have difficulty winning before trial court judges, and hanging onto even the successes upon appeal, doesn’t have anything to do with it.

Instead, we’re expected to believe some of the following excuses, according to Eric Dreiband, former general counsel of the EEOC, who is now back to representing defendants at Jones Day.  (Listen to Dreiband’s presentation; Windows Media Player required). And another defense-oriented article responding to the study repeats some of the same excuses.

1.  Plaintiff’s attorneys are taking more wage and hour cases under the FLSA.

There has admittedly been a rise in the number of wage and hour cases, especially class actions, brought under the Fair Labor Standards Act in recent years.  Depending on who you ask, there are varying reasons for that, whether it’s because employers are trying to cut corners by misclassifying employees, there’s an increased awareness of the FLSA among workers, making it more likely they’ll ask questions about their classification, or if, as plaintiffs’ attorneys will acknowledge, it’s an act of self-preservation because of the three points detailed above.  Bringing a case under a statute that doesn’t require evidence of intent can be a lot easier than bringing a discrimination case:  either an employer violated the FLSA or it didn’t, and it doesn’t matter what it intended to do as it does in discrimination cases.

But this point is almost irrelevant if you’re one of the hapless plaintiffs with a discrimination case, not a wage and hour case.  Defense attorneys aren’t arguing that it’s impossible for plaintiffs with strong discrimination cases to get a lawyer, because all of the skilled plaintiffs employment lawyers no longer have time to take them, because that’s simply not true.  Bottom line:  the fact that there are now more FLSA cases doesn’t detract at all from the premise that employment discrimination plaintiffs have it bad.  They’re two completely different things that both happen to affect workers.

2. More cases are ending up in arbitration, instead of the courts.

Certainly, there are employers who believe that requiring all of their employees to submit their employment claims to arbitration benefits them, and they’re probably right. As Paul Bland’s excellent blog post reminds us,

“If you want to work here,” millions of employees are told, “you have to agree that any disputes you have with us–even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act–will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don’t like it, you can’t work here.”

Plenty of evidence suggests that just like what’s happening in federal court, employees forced into the arbitration process don’t fare very well. (See Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, Employee Rights and Employment Policy Journal, Vol. 11, No. 2 (2007). In fact, employees forced into arbitration may fare worse there than they do in court, according to Colvin’s piece, the leading academic study of thousands of publicly reported employment cases in arbitration. So again, the fact that more employees have cases in arbitration instead of federal court hardly contradicts the conclusions of the Schwab and Clermont study, when the evidence shows that plaintiffs forced into arbitration are even worse off there than in court.

3. More plaintiffs are going to state court instead of federal court.

In many states, plaintiffs in discrimination cases have the option of choosing between state and federal court, and attorneys must make the strategic decision about where the case is most likely to be successful. Admittedly, strategy sometimes dictates that a worker will fare better in state court, in states where there are no damage caps limiting the type and/or amount of damages that can be awarded, and where judges and juries may be more receptive to employment cases than those in federal court, making it more likely that a jury will hear a case rather than have it thrown out on summary judgment.

However, for every state where a plaintiff is likely to fare better in state court, we can name one where they will be worse off in state court, or not have the ability to make that choice at all. Some states don’t even have their own antidiscrimination statutes, or have what’s known as a “private right of action” which allows workers to enforce their rights in court. Others have more restrictive damage caps than those under federal law, which haven’t changed since 1991. (That’s longer than it’s taken to raise the minimum wage, and we know how long that took!) Some state judges are relatively unfamiliar with employment statutes compared to federal judges, and others, forced to rely on campaign contributions, tend to favor those who can contribute the most to their re-election campaigns, while federal judges are appointed for life. Unfortunately, we have a relatively small amount of evidence about outcomes in state courts, but what we do have makes this one a tossup at best.

4. More cases are being resolved by the EEOC pre-litigation.

Of all the excuses proffered, this one had the most potential to persuade us that plaintiffs were actually benefiting. The EEOC has invested heavily in its mediation program which works to resolve claims before they are investigated, or, in some cases, as part of the conciliation process between employer and employee. And Mr. Dreiband, as the EEOC’s former general counsel, was very knowledgeable about the EEOC’s program.

But, as the saying goes, where’s the beef? I asked Mr. Dreiband following his presentation whether the EEOC had studied whether mediation was actually beneficial for plaintiffs in terms of damages awarded. He was unaware of any such studies, and indeed, the studies on the EEOC’s website are limited to the parties’ satisfaction with the process, as well as participating mediators’ evaluation of the program.

Initially, it sounds good when you hear that cases are resolved quickly, and before there is any litigation. Most people just want to move on with their lives, rather than spend years fighting their employer in court. But several aspects of the push to resolve cases so early should give worker advocates pause. A case resolved before any discovery takes place may mean that key evidence that makes the case a valuable one never sees the light of day. A case resolved where the employee doesn’t have an attorney may mean that the employee is outmatched and overcome by the power imbalance on the other side, as rare is the case where an employer wades in to any case without representation. And a process where 13.5% of cases settle for non-monetary compensation makes you wonder just how many people out there are settling for an apology or a good reference, no matter how much they were damaged.

Admittedly, a certain percentage of these cases would have been lost anyway, but settling a case for a token amount of money and an apology may not be much better. Before the EEOC so heavily touts the benefits of mediation, they should study exactly who benefits. Is it the employer who benefits most when litigation goes away quickly and cheaply? We simply don’t know.

So let’s review:  reducing the number of cases in federal court, no matter what the reason, doesn’t:

  • explain why plaintiffs fare so much worse in front of federal district court judges than juries;
  • explain why employment discrimination plaintiffs fare much worse than other plaintiffs on appeal;

And it doesn’t even explain that the reduction in federal court cases means plaintiffs are faring better in other forums. In fact, it may mean that, like the movie “Dumb and Dumber,” Schwab and Clermont’s next report should be called “Worse and Worser.”

Who You Gonna Call?

Friday, December 28th, 2007

When you think you’ve suffered from discrimination or harassment at work, the Equal Employment Opportunity Commission (EEOC) is supposed to be there to protect your rights as a worker. But your experience with the EEOC can be shaped by the very first phone call. Right now, the EEOC is scrambling to cover the phones which receive incoming calls from the public. Will this mean that cases with merit get lost in the shuffle, due to inadequate training and/or inexperienced staffers? Only time will tell, but it could be disastrous.

For the past three years, the EEOC has contracted with a private entity to run the National Call Center (NCC), which handled initial contacts to the agency’s 53 field offices nationwide. Vangent, Inc. (formerly Pearson Government Solutions) contracted with the EEOC to run the NCC, which received and handled approximately 65,000 calls and 3,000 e-mails each month. The outsourcing of the call center functions, handled in Lawrence, Kansas, was controversial from the outset. (See GovExec.com article.)

Employee unions complained about poorly trained employees who did not have the expertise in analyzing discrimination cases fielding calls, and lawmakers objected to privatizing the handling of civil rights complaints. The union representing EEOC employees called the call center launch “an oppressive day in the history of the 40 year old civil rights agency.” (See CCH article.)

The passage of time did little to alter the initial concerns about the NCC. The NCC contract was set to expire on September 20, 2007. Rather than continuing the initial pilot, Congressional appropriators eliminated funding for its continuation in the EEOC’s Fiscal Year 2008 budget. As a result, in August the EEOC voted to move back to an in-house phone answering team, and to allocate funds to hire a consultant to advise and assist the agency on transitioning to a decentralized configuration. (See EEOC Press Release of 8.13.07.) The vote extended the call center contract for three months to help ensure an orderly transition. (See Washington Post article.)

However, it appears the transition has been anything but orderly. With the expiration of the three-month extension rapidly approaching, the consultant advising the EEOC on the transition recommended another three-month extension. However, in November, two of the four EEOC commissioners voted against the extension, believing that the first extension had been squandered without an adequate transition plan developed. (See Washington Post article.)

The EEOC then issued a press release warning that service to the public could be disrupted due to the failure to extend the contract. EEOC Chair Naomi C. Earp, who supported the contract extension (and who has been a strong proponent for the NCC throughout its existence) remarked in apparent frustration,

Unfortunately, today’s Commission vote denying a reasonable extension of the National Contact Center will likely result in disrupted service to the public. Creating an in-house system and making a seamless transition is a complex and time-consuming process. We continue working as quickly as we can to put a new system in place. But we ask the public to be patient when contacting the EEOC during this transition period.

EEOC Press Release of 11.7.07.

Now the transition period is over, and even more chaos is apparent. The center’s closing date was December 19, but it was not until December 12 that the EEOC had a plan for handling the calls. On that date, the Commission voted to hire temporary employees to cover the phones, and to continue the contract with Vangent for its interactive voice-recognition answering system for three months, at a cost of $250,000. (See Workforce Management article.) The temp employees will be trained on customer service “soft skills” and on EEOC procedures, according to the EEOC’s director of field programs, Nicholas Inzeo.

EEOC Commissioner Stuart Ishimaru expressed frustration with the transition. “Here we are a week before the phones are turned off and we have a proposal for what to do next,” he said. “We established an atmosphere that this is not urgent.” Vice Chair Leslie Silverman disagreed, stating “What we’re trying to do here is provide the best customer service we can under the circumstances.” (See Workforce Management article.)

If temp workers are getting even less training than call center employees formerly received, as acknowledged by Inzeo, the public may be in trouble. According to Gabrielle Martin, president of the National Council of EEOC Locals No. 216, the union representing EEOC employees, hiring the right people to answer the phones is a major undertaking.

The public deserves more than expensive answering services. The Union always has advocated that skilled Investigative Support Assistants, or ISAs, should be hired to handle the phones. If the Commission does not invest in skilled workers to answer the phone and counsel the public, or chooses to have its extremely limited staff answer the phones, the Commission will have sabotaged the public again.

(See CCH article.)

It sounds like it will be a while before fully trained and knowledgeable employees will be hired to answer the phones, as a result of the Commission squabbling that has prevented adequate preparation for bringing the call center function back in-house. Given that all employees with potential discrimination claims must first contact the EEOC and file a charge in order to press ahead with a lawsuit against their employer, let’s hope there aren’t too many casualties before trained employees can give members of the public adequate guidance.

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