Thoughts About the EEOC’s New Direction

For an employee advocate, there is something vaguely troubling about the EEOC’s 2015 performance report.

For one thing, the agency touts as an achievement that it provided 3,700 “no-cost” educational training and outreach events to business. But why are taxpayers offering free training to business?  Employers have a legal obligation to follow U.S. law. Isn’t this the cost of doing business?

As an attorney, I have to pay each year to take legal education programs so that I can keep abreast of the law and renew my law license. Can’t Walmart and Microsoft afford a few bucks to learn how to conform to the nation’s discrimination laws.

More importantly, the EEOC brags that it secured a record $356.6 million for victims of discrimination in private, state and local government, and federal workplaces through mediation, conciliation and settlements.  This compares to $65.3 million recovered through litigation.  It’s pretty clear where the EEOC’s focus is these days –  conciliation and mediation. (It’s hard to know what the EEOC’s $356.6 million in conciliation and mediation settlements really signifies without knowing how many cases were settled, the details of the complaints and the settlements.)

It’s fair to ask what is the cost of  this new focus on settlements?

For an employer, a settlement can be more like a pat on the hand than a visit to the woodshed.  The worst case scenario is that employers are permitted to  partnershipworm their way out of serious discrimination liability through free EEOC-sponsored dispute resolution, by paying modest recompense to their victims and agreeing to follow the law for the life of the settlement agreement.  Best of all they can avoid paying court costs and attorney fees associated with litigation. Is this  the best way  to deter discrimination in employment?

It’s not hard to understand the EEOC’s focus on settlements, given the hostility of federal courts to discrimination claims  (and the EEOC) and the drum beat of criticism by federal legislators who are beholden to big business for campaign contributions. But is it a good thing?

The EEOC is required by law to engage in conciliation or to “permit” employers to voluntarily comply with discrimination laws before the EEOC files a lawsuit. A unanimous U.S. Supreme Court earlier this year held that federal courts may conduct a “narrow” review of whether the EEOC met its statutory obligation with respect to conciliation.  The Court in the case of Mach Mining v. EEOC overturned a ruling by the U.S. Court of Appeals for the 7th Circuit that held courts lack  the authority to second-guess the EEOC’s conciliation efforts. This ruling may have emboldened employers to demand more acquiesence from the EEOC.

It’s not hard to understand why the victim would buy into a settlement. Poor and middle-class Americans cannot afford legal counsel and federal discrimination law is a hopeless morass as a result of federal court decisions. One retired federal judge says the courts have essentially “gutted” Title VII of the Civil Rights Act.  Moreover, federal courts dismiss employment discrimination cases at a far higher rate than other business cases. A discrimination victim cannot be blamed for taking a pittance rather than spending years  before hostile federal court judges, at great personal and financial expense, only to end up with the same pittance or nothing.

You might say, “Well at least the victim got something.”  But this kind of thinking makes us all complicit in our broken system of workplace justice

The EEOC states that it achieved “record success” in its conciliation of private-sector charges, with 44 percent of conciliations successfully resolved and 64 percent of systemic investigations resulting in voluntary resolutions. The agency states these “achievements” led to a 6 percent increase in charge resolutions by the EEOC.

Approximately 4,000 fewer charges were filed with the EEOC in FY 2015 compared to FY 2013 (93,727 charges) and there were  10,000 fewer charges compared to FY 2011 (99,947 charges). The economy has certainly improved but are workplaces becoming any fairer?   Or have Americans lost faith that our system of justice will do anything about unfairness in the workplace?

The EEOC resolved 92,641 charges and received 89,385 charges in fiscal year 2015.

In FY 2015, the agency filed  142 lawsuits, which is a  slight increase from the 133 lawsuits filed in FY 2014 and FY 2012 (122 merits lawsuits) but a sharp decline compared to the number of suits filed in past years (250 or more).

Mediation involves a disinterested third-party who guides the parties to a voluntary resolution.

AARP Profits While Older Workers Struggle

If only business was as good to America’s struggling older workers as it is for the AARP.

In 2010, the AARP had assets totaled $2,546,636,000. According to its 2013 Financial Report, the AARP’s assets had grown to $3,026,971,000 in 2012 and $3,393,94,000 in 2013.  By 2014,  the AARP’s  assets totaled $3,585,853,000.

That’s an 40.8 percent rise since 2010.

Meanwhile, a recent AARP survey showed that half of the people ages 45 to 70 who experienced unemployment during the past five years are not currently working. Fifty percent of survey respondents reported they were either unemployed or had dropped out of the labor force. Among those who had become reemployed, nearly half said they were earning less than in their previous jobs.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show indisputably that older workers are suffering from unaddressed and epidemic age discrimination. The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court. Older workers have far less protection than their counterparts under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin.  My attempts to interest the AARP in working to ensure that older workers obtain equal justice under the law have met a solid wall of disinterest. This, despite the fact that age discrimination in the workplace denies millions of older Americans the right to work and dooms them to poverty or near poverty in their old age.

The AARP calls itself the leading advocate for Americans aged 50 and older. But the AARP also sells the most popular “Medigap” plans in the United States, AARP Medicare Supplement Health Insurance Plans, as well as a huge array of travel services, high tech products and … you name it.

 The AARP’s for-profit enterprise, AARP Services, Inc., is  essentially marketing access generated by its non-profit entity, the AARP Foundation, to 37 million of America’s oldest consumers.

Is it really too much to ask the AARP to use some of its riches to do more than just take surveys  – to act to insure that older workers are treated equally under the law, and not subjected to bogus restructurings and downsizings, chronic unemployment and poverty in old age?  Fifty years of inequality is enough.

High Court Backs Religion

The U.S. Supreme Court ruled Monday that an employer may be engaging in illegal discrimination when it implements a neutral policy that fails to accommodate a job applicant’s religious practices, whether or not the applicant has requested a religious accommodation.

The ruling expands protection for religious minorities in the workplace.

Samantha Elauf, a Muslim woman, was denied a sales associate position at an Abercrombie store in Tulsa, Okla., in 2008 because she wore a black scarf or hijab during her interview. A hiring official rated Elauf as qualified but asked Abercrombie’s district manager if Elauf’s hijab violated Abercrombie’s “Look Policy,” which prohibited employees from wearing “caps.” She had not discussed the hijab with Elauf but told the manager that she thought it was being worn for religious reasons. Elauf was not hired after the manager said the policy prohibits all headwear, religious or otherwise.

The EEOC sued Abercrombie on Elauf’s behalf, arguing the store violated Title VII of the Civil Rights Act of 1964. Title VII requires employers to make exceptions to certain policies, such as dress code, where religion is concerned, provided the accommodation doesn’t incur an “undue hardship on the conduct of the employer’s business.”

The Supreme Court ruled 8 to 1 in Equal Employment Opportunity v. Abercrombie & Fitch Stores that Title VII “requires otherwise-neutral policies to give way to the need for accommodation.”

The Court said job applicants do not have to specifically ask for a religious accommodation or prove that an employer had actual knowledge of the applicant’s need for a religious accommodation. 

The Court said plaintiffs need only show that their need for an accommodation was a “motivating factor in the employer’s decision” not to hire them.

The decision represents a defeat for the U.S. Chamber of Commerce, which supported Abercrombie in the litigation, but it is not believed to be much of a departure for the Court, which has made religious freedom a priority. The Court last year ruled 5-4 that the government could not require the owners of private companies like Hobby Lobby to provide female workers with contraceptive coverage under the Affordable Care Act when it violated their religious beliefs.

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Appeals Court Puts Judge on Hot Seat in Trucking Case

The U.S. Court of Appeals for the 8th Circuit has rejected an order requiring the EEOC to pay $4.7 million in attorney fees and costs  to CRST Van Expedited, Inc., one of the nation’s leading transport companies, in an egregious sexual harassment case involving female truck driver trainees.

This lawsuit, perhaps more than any other in recent history, demonstrates the extent to which federal courts have moved away from the worthy goal of addressing serious employment discrimination to engaging in pro-business partisanship, sweeping generalizations and moronic procedural disputes.  It also raises questions about whether the EEOC, in the current environment, can actually carry out its goal of promoting  more strategic use of agency resources by emphasizing high stakes litigation involving multiple victims.

At various points, Chief Judge Linda R. Reade of the U.S. District Court of Iowa dismissed all of the 154 plaintiffs in the EEOC case and  ruled the agency  must pay CRST, one of the nation’s leading transport company, a whopping $4.7 million in attorneys’ fees and costs.

The 8th Circuit’s ruling constitutes a step in the right direction. The appeals court remanded the case back to the district court with instructions to reassess the attorney’s fee award. Among other things, the appeals court is asking Reade to explain why she dismissed dozens of sexual harassment claims as frivolous, unreasonable or ungrounded.  Moreover, the Court rejected Reade’s award of attorney fees with respect to 67 claimants whom Reade dismissed from the case under a controversial ‘failure to conciliate” theory.

Several federal circuits have ruled the EEOC must engage in individual conciliation or negotiations with an employer with respect to each and every claim in a class action lawsuit, even if the employer has indicated no willingness to settle.  This requirement allows guilty employers to delay adjudicting the issue of discrimination, constitutes a colossal waste of  EEOC resources, and ultimately severely limits the agency’s ability to file class action employment discrimination lawsuits.

Reade dismissed  67 potential class members from the CRST lawsuit on the grounds that the EEOC failed to engage in  “bona fide” conciliation efforts with CRST. She did not even consider the merits of the plaintiff’s claims, some of which involved shocking allegations of sexual harassment and abuse lodged by female truck driver trainees who were stranded in isolated conditions on the road.  These women alleged that CRST did little or nothing in response to their complaints.

The 8th Circuit ruled that the EEOC’s duty to conciliate does not constitute an element of a claim. Therefore, the appeals court said , the EEOC didn’t lose those 67 claims and the CRST was not a prevailing party with respect to those claims.  The appeals court concluded that CRST is not entitled to an award of attorneys’ fees for the claims dismissed under the “failure to conciliate” theory.

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