EEOC: Proof of Psychological Harm Should Not be Required to Show Workplace Harassment

One baffling aspect of the Healthy Workplace Bill (HWB), a model state  law proposed by the Workplace Bullying Institute (WBI), is that it continues to require bullying victims to establish a higher degree of harm than is required under U.S. law.

The HWB was drafted by Suffolk University Law Professor David Yamada and proposed by the WBI  a decade ago for adoption by individual states.  It would address status-blind workplace bullying and cover targets whether or not they are protected under federal discrimination laws. Though no state has yet adopted it, the bill has been considered by more than two dozen states.

Last week, it was again shown that the HWB is oddly out of step with respect to the degree of proof that it requires bullying victims to provide to establish employer liability.

The EEOC released a proposed enforcement guidance addressing unlawful workplace harassment under federal anti-discrimination laws enforced by the agency. The EEOC essentially rejects the HWB requirement that targets of workplace bullying establish “proof of health harm by licensed health or mental health professionals.”

The EEOC’s proposed guidance states that “actionable harassment can be established in the absence of psychological injury, though evidence of psychological harm from the harassment may be relevant to demonstrating a hostile work environment.”  Furthermore, the proposed guidance states the harassing conduct “need not harm the complainant’s work performance” provided the evidence establishes that the harassment was sufficiently severe or pervasive to create a hostile work environment. The EEOC standard reflects long-standing U.S. law established in decisions by the U.S. Supreme Court and federal appeals courts. [Read more…]

CONUNDRUM: No Evidence, No Hearing; No Hearing, No Evidence

How does a discrimination victim get evidence of discrimination when his or her case is summarily dismissed without a hearing?

This was the issue in a case before the EEOC where a Maintenance Mechanic filed a complaint against the U.S. Postal Service in Pontiac, Michigan that alleged race (white), sex (male) and age discrimination (age 59).  The EEOC upheld the dismissal of the case by an Administrative Law Judge (ALJ) without a hearing.

The mechanic said he was rated ineligible for promotion following a pair of interviews by two three-member panels on July 18, 2012.  (At least two panelists served on both panels.)

According to the EEOC:

“When asked by the investigator why he believed that the panels took his race, sex, and age into account when interviewing him, Complainant responded with generalized assertions, such as “I was told that all white males were passed over,” “most of the women passed but none of the men,” and “all employees that passed were younger than me.”

The EEOC ruled the mechanic failed to provide evidence “of any of the indicators of pretext described above. He has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by the four panelists or which call their veracity into question.”

The EEOC’s decision points up the conundrum facing many workers who are victims of discrimination – how do you get evidence when your case is summarily dismissed? [Read more…]

Fox News: The Cost of Sexual Harassment

Fox News has gone from being the stolid and leading voice of conservatism in the United States to a network wracked with turmoil.

This week, it was announced that Fox  is losing it’s leading on-air female personality, Megyn Kelly, 46, who is moving to NBC. Her 9 p.m. show, “Kelly File,” was the second-highest rated in cable news. Kelly reportedly eschewed an offer from Fox for more than $20 million per year to extend her contract and stay.

Fox’s turmoil began last Fall when its parent company, 21st Century Fox, paid $20 million to former Fox News anchor Gretchen Carlson to settle a sexual harassment suit filed against Roger Ailes, 76, who led the Fox News network for 20 years. Since then, more than 20 former and current female employees at Fox News, including Kelly, came forward to complain about sexual harassment by Ailes dating back to the 1960s.

Whether or not sexual harassment spurred Kelly’s departure, it played a role in destabilizing the network and made Fox appear vulnerable to other networks in search of top talent.

Clearly, 21st Century Fox was the major loser in this debacle.

At the end of the day, 21st Century Fox’s losses will be staggering.

Ailes left the network with a $40 million golden parachute.  The company lost Kelly and the revenue from her popular cable news show. Fox paid $20 million to Carlson to settle her lawsuit (even though it technically was not even a defendant) and Fox has paid an untold amount to other alleged sexual harassment victims. Perhaps the worst loss suffered by Fox involves it’s most valuable asset – its reputation as a company aligned with traditional American values of decency, civility and respect.

And all that is as it should be. An employer is legally responsible for providing workers with a safe workplace free from bullying and harassment. This blog has long argued that employers that ignore or tolerate a climate of workplace bullying invite, among other things, unnecessary turnover and costly lawsuits. At its core, sexual harassment is a form of workplace bullying. Fox appears to have put anti-harassment policies in place but failed to insure these policies were actually implemented.

Meanwhile, like most abusers,Ailes insists upon his innocence and has not even apologized to Fox.  And, despite wreaking havoc at Fox, Ailes reportedly serves as an adviser to President-Elect Donald Trump, himself a former owner of the Miss Universe Organization who has treated women in a manner that can be charitably described as boorish. (What could go wrong with this scenario?)

Bloomberg Articles on Age Discrimination in Employment

I am excited to be quoted in a series of excellent articles addressing the problem of age discrimination in employment published today by Bloomberg’s Daily Labor Report.

The main article, by Patrick Dorrian, J.D., is Talkin’ ‘Bout All Generations: Workplace Age Diversity Lacking. It touches upon themes that I have explored  in my book, Betrayed: The Legalization of Age Discrimination in the Workplace,  and in this blog and my other blog devoted exclusively to age discrimination. These themes include actions by the Obama administration and Secretary of Labor Thomas Perez that have encouraged age discrimination in hiring, both in the federal government (our nations largest employer) and nationwide.

A second article, Many Wrinkles in Age Diversity, addresses how age discrimination uniquely and negatively effects women both when they are in the workplace and later, when they are living in poverty or near poverty on Social Security.

It is encouraging to see a national media outlook address these real problems that have affected millions of older Americans for years – problems that have been unaddressed even by supposed advocates for this population group.

Ultimately, nothing will or can change until Americans become aware of the prevalence and consequences of irrational and harmful age discrimination in employment which, by the way, they subsidize through their tax dollars in higher social welfare costs.

Thumbs up to Bloomberg!