Law Doesn’t Protect Workers from ‘Unfair Employers’

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As the holiday season approaches, the U.S.  Court of Appeals for the 7th Circuit in Chicago has released a decision that harkens back to the working conditions of Victorian England which inspired Charles Dickens.

George Widmar, 51, was a plant manager for 16 years who was fired in 2009 by Sun Chemical’s National Manufacturing Manager, Keith Roberts. Widmar was denied severance pay and publicly accused  by a Sun official of  having “screwed up” the plant.  Widmar claims he was blamed for failures that were not within his control. For example, he cited problems stemming from a flawed chemical formula and Sun’s decision to use cheap, faulty materials.  Sun Chemical argued that plant managers must accept responsibility over all aspects of a plant – even those outside the manager’s control.

Here are some of the highlights from the 7th Circuit’s decision in the case of Widmar v. Sun Chemical Corp, No. 13-2313 (November 19, 2014):

  •  “Title VII does not protect employees from poor managers or unpleasant and unfair employers.”
  • “I]t is not the court’s concern that an employer may be wrong about its employee’s performance, or be too hard on its employee.”
  • “An employer can micro-manage and require as much petty communication as it wishes.”
  • “An employer’s poor management decisions could, in fact, be a cover for discriminatory action, but poor decisions can just as easily be the result of deficient management and lackluster business acumen.”
  • “Even if Roberts blamed Widmar for problems that he knew were not Widmar’s fault, this makes Roberts a bad manager, not a perpetrator of illegal discrimination.”
  • “The problem for Widmar, however, is that even if … we were to attribute a nefarious motive to Roberts’ conduct in each incident, we have no way of knowing whether Roberts acted this way because of Widmar’s age. Each and every one of these issues could arise just as easily if Roberts simply did not like Widmar’s personality or his style or, for that matter, his cologne.”
  • “We cannot say whether it was a reasonable expectation for Sun Chemical to require Widmar to be responsible for particular functions and actions in the plant in this way. This court has repeatedly stated that it is not a super-personnel department that second-guesses employer policies that are facially legitimate.”
  • “The question is not whether Sun Chemical’s assessment of Widmar’s performance was correct, only that it was an honest belief and not a pretext for age discrimination.”
  • Widmar “was not placed on a performance improvement plan even though it was company policy to do so if the problems were remediable, but again he offers not one shred of evidence that younger similarly situated employees were given such an opportunity where he was not.”

Widmar had sued for age discrimination and defamation. His lawsuit was dismissed pursuant to Sun’s pre-trial motion for summary judgment long before it could ever reach a jury. And the 7th Circuit upheld the dismissal.

 “The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.” Charles Dickens, Bleak House.

 

EEOC Snubs Age Discrimination – Again

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Yet again, the EEOC in 2014 devoted a disproportionately small percentage of its resources toward litigating age discrimination complaints.

The EEOC filed 133 merits lawsuits during FY 2014, compared to 131 in 2013 and 378 a decade ago. Merits lawsuits include direct suits and interventions by the EEOC alleging violations of the substantive provisions of federal discrimination laws as well as suits to enforce administrative settlements.  Of the merits lawsuits filed by the EEOC in 2014:

  • 76 contained Title VII claims
  • 49 contained Americans with Disabilities Act (ADA) claims;
  • 12 contained Age Discrimination in Employment Act (ADEA) claims;
  • two contained Equal Pay Act (EPA) claims;
  • two contained Genetic Information Non-Discrimination Act (GINA) claims.

* Note – some suits have multiple claims.

So about eight percent of  the claims in merit lawsuits filed by the  EEOC in 2014 involved age discrimination. Typically, age discrimination complaints represent at least 20 percent of all EEOC complaints. If this holds true in 2014 – the EEOC has not released these statistics yet – the EEOC will have  devoted a disproportionately small share of its resources to litigating age discrimination claims. The EEOC filed seven merits lawsuits with age discrimination claims in 2013.

In my new book Betrayed: The Legalization of Age Discrimination in the Workplace, I show that the odds are heavily stacked against employment discrimination victims in federal courts, and particularly age discrimination victims, who start out with a higher burden of proof. The vast majority of age discrimination claims are summarily dismissed by judges. I also argue that age discrimination is epidemic in American society because Age Discrimination in Employment Act of 1967 fails to protect older workers and the EEOC has virtually ignored the problem.

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EEOC Discrimination Complaints Down But Why?

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The U.S. Equal Employment Opportunity Commission logged approximately five percent fewer discrimination complaints in Fiscal Year 2014 than the year earlier.

The EEOC received 88,778 private sector charges in FY 2014, compared to 93,727 in 2013 and 99,412 in 2012.

Does this reflect an improving economy or is it a sign of difficulties within the federal agency that is charged with insuring compliance with federal civil rights laws? Or maybe both.

Clearly, 2014 was a difficult year internally for the EEOC.  According to the EEOC’s annual report, the agency resolved  87,442 charges in 2014 which is 9,810 less than it  resolved in 2013.  Meanwhile, the EEOC’s backlog grew and now totals 76,000 cases. The EEOC also suffered withering criticism in federal courts in 2014 – some of it patently unfair –  and it was forced to pay millions of dollars in attorneys fees to the opposing side in ten lawsuits.

There are indications that employment discrimination victims are losing confidence that the federal government will actually do anything about employment discrimination.  The number of employment discrimination claims filed in federal courts also have declined in recent years.  Many attorney refuse to file these cases in federal courts because they are disproportionately dismissed by federal judges.

The EEOC blames its difficulties in 2014 on the government shut-down and a hiring freeze that, coupled with normal attribution, particularly affected its investigatory staff. There were also indications of management woes.  President Obama in September appointed EEOC Vice-Chair Jenny R. Yang to the position of EEOC Chair, replacing Jacqueline Berrien whom Obama appointed in 2009.

Germaine P. Roseboro, the EEOC’s Chief Financial Officer, said the financial outlook is brighter for the EEOC in the year ahead. She states that the EEOC’s FY 2014 appropriation was $20 million more than FY 2013 and the infusion of funds allowed the EEOC to lift a two-year hiring freeze and hire more than 200 external candidates for front-line and support positions. “The agency is on track for restoring its capacity to more effectively meet the EEOC’s mission,” she writes.

However, there are  indicators of yet more trouble ahead for the EEOC in the new Republican-led  Senate and Congress.

GOP  Senators Rand Paul and Lamar Alexander recently blasted the EEOC for investigating companies for engaging in systemic discrimination without first  requiring employees to file formal complaints. Paul, who seems to have virtually no understanding of the dynamics of employment discrimination, was particularly incensed. He asked EEOC General Counsel P. David Lopez., “How can you show up to work with a straight face? I don’t understand how you wouldn’t resign immediately, and say, ‘This is abhorrent.’” He also accused Lopez of using the “bully nature” of his agency to “punish business.”  Do Rand and Alexander think the EEOC should ignore employers who refuse to hire workers unless they sign unconscionable contracts that are especially designed to thwart employment discrimination laws? Sadly, it seems so.

Senator Wants to Turn Back Clock at EEOC

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Not only has Congress failed to  help victims of age discrimination for more than a  decade, now the ranking member of the Senate Committee on Health, Education, Labor and Pensions  wants to stop the EEOC from helping.

U.S. Sen. Lamar Alexander (R-Tenn)  called upon the EEOC  at a hearing last week to change its strategy of litigating big, high profile lawsuits and, urged it instead to resolve its backlog of almost 71,000 discrimination charges. The EEOC adopted a new strategic plan last year that, among other things, year calls for making better use of the EEOC’s limited resources by focusing upon large-scale and systemic discriminatory practices.

Ironically, Alexander, 74, focuses criticism upon EEOC efforts to insure that major law and accounting firms abide by a provision of the Age Discrimination in Employment Act of 1967 (ADEA) that prohibits mandatory retirement. Alexander complains that the EEOC has pursued cases without complaints in which “partners” voluntarily adopted a mandatory retirement age. Two law firms — Sidley Austin LLP and Kelley Drye & Warren LLP — faced EEOC claims over mandatory retirement in recent years.  Sidley settled in 2007 and Kelley Drye settled in 2012.

Alexander ignores the fact that the title of “partner” is conferred by some employers for the specific purpose of avoiding compliance with the ADEA, and that the supposed “partner” has none of the duties or responsibilities of an actual partner.  He also fails to acknowledge that “voluntary” agreements can be coercive,  one-sided and illegal.

Alexander effectively regurgitates the mantra of the U.S. Chamber of Commerce that the EEOC needs to be reigned in. He notes that “[n]umerous federal courts have criticized EEOC’s litigation practices, failure to attempt to resolve cases and avoid court, misuse of authority and reliance on faculty expert analysis, among other complaints.” He said the EEOC’s lawsuits have been so unfounded or mismanaged that it has been required to pay attorney’s fees in ten different cases since 2011. However, Alexander fails to consider whether this criticism is merited or even valid.

A federal judge in Iowa in 2013, for example, assessed millions in attorney fees against the EEOC for bringing a sex discrimination class action lawsuit against the national trucking company,  CRST Van Expedited, Inc. The judge dismissed dozens of class members who had suffered egregious sexual harassment – arguably even sexual assault – on the grounds that the EEOC had not tried hard enough to reach a settlement with the company. The so-called “failure to conciliate” defense at issue in the trucking case was flatly rejected  in another case by the 7th Circuit Court of Appeals in Chicago, which called it a legal tactic used by employers to tie up the EEOC in useless litigation to avoid the consequences of discrimination. The  Chicago court found the defense has no basis in law and, in fact, contradicts a provision of Title VII.

Alexander made his comments at a hearing last week on the nominations of P. David Lopez and Charlotte Burrows to serve as general counsel and member of the EEOC.

It is not likely that Alexander is seriously interested in reducing the backlog at the EEOC. However, if he is, Congress might consider providing additional resources to the EEOC to address the legacy of the past while moving forward with efforts to combat discrimination  today.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I criticize the U.S. Congress for ignoring the plight of older workers. I argue that the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court, leaving older workers with little or no real protection against age discrimination.  I note that Congress has failed for more than five years to pass the Protecting Older Workers Against Discrimination Act, which would reverse a 2009 Court decision that raised the level of proof in age discrimination cases far beyond that of race or sex discrimination cases.

 

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