Federal Courts Criticized for Dismissive Treatment of Employment Discrimination Victims

There is overwhelming evidence that federal courts for years have ignored and marginalized plaintiffs in employment discrimination cases.

Judge Richard A. Posner, one of the nation’s leading appellate judges, recently resigned from the 7th Circuit U.S. Court of Appeals citing his disgust for the dismissive treatment that his fellow jurists accorded to pro se litigants. The vast majority of pro se litigants are victims of a justice system that is too expensive for all but a privileged few. Most Americans cannot afford to hire an attorney and either must proceed on their own or passively suffer gross injustice. Posner told abovethelaw.com that pro se litigants “deserve a better shake.”

Posner says judges divert the cases of pro se litigants to staff attorneys and then routinely dismiss the case after the employer files a motion for summary judgment.

In addition to Posner, attorneys for the Center for the Study of Law and Religion at Emory University School of Law are questioning the high rate of dismissals in lawsuits involving employment discrimination. They filed an amicus brief last month that points to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.

The win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

[Read more…]

Sexual Harassment Victims Forgotten in U.S. Supreme Court Appeal

CRSTOne of the most outrageous court rulings in modern history may be the dismissal of a sex discrimination lawsuit filed by hundreds of female truck driver trainees against CRST Van Expedited Inc., which was then awarded  $4.7 million in attorneys’ fees.

On appeal, the U.S. Court of Appeals for the Eighth Circuit in Missouri upheld the lower court’s dismissal of all but two of the plaintiffs but vacated the attorneys’ fee award. One  of the surviving plaintiffs dropped out of the litigation and the other secured an out of court settlement of $50,000.

This week, CRST asked the U.S. Supreme Court to reinstate the attorneys’ fee award.

The case was a complete train wreck for the EEOC, which initially represented a class of 270 women. Some of the plaintiffs were subject to shocking and violent incidents of  sexual harassment during training runs with CRST male drivers. When they called CRST to complain about the harassment, they were told they had to remain on the truck overnight with the harasser.

After almost six years of litigation, Iowa Chief Judge Linda R. Reade abruptly dismissed the case in its entirety and awarded $4.7 million in attorney fees to CRST.

The 67 alleged sexual harassment victims were denied justice because the EEOC or the U.S. District Court of Iowa (or both) screwed up. Will taxpayers now be forced to pay CRST’s legal bills?

[Read more…]

The Big Short in the Federal Courts

I recently saw an unsettling movie, The Big Short, about the blatant fraud and corruption on Wall Street  that led to the  global economic collapse and the.Great Recession.

Like many film goers, I felt deeply troubled about the Titanic-sized failure of the American government to protect ordinary Americans from predatory behavior and  criminality by Wall Street bankers and brokers.  But later my thoughts turned to another failure that  is currently being ignored by American government and the press, one that I see as an attorney who writes about  the law and workers who are victims of abuse and discrimination in employment.

There has been undisputed and powerful evidence for years that the federal court system, like America’s  financial system, operates to benefit powerful moneyed interests at the expense of ordinary American workers.  A major indicator of this trend is that federal courts routinely dismiss employment discrimination lawsuits at a far higher rate than other types of business lawsuits.

My book, Betrayed: The Legalization of Age Discrimination in the Workplace, painstakingly documents how the U.S. Congress and  Supreme Court have made it inordinately difficult for workers to prevail in an age discrimination lawsuit.  The Age Discrimination in Employment Act of 1967 ia weak and riddled with loopholes compared to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, national origin and color. The U.S. Supreme Court issued a completely unnecessary ruling in 2009 requiring that age discrimination victims  prove a far higher level of causation than is required under Title VII.  A proposed federal law that would fix the Court’s disastrous ruling has languished in a Congressional committee for six years.  Congress and the Court have legalized discrimination in employment based on age that would be illegal if the victim wore a hijab or hailed from Zimbabwe or Yemen.

At one point last spring, I attempted to contact the Judicial Conference of the United States, a 16-member body (with no citizen representative) that ostensibly runs the federal court system. I wanted to point out that discriminating against employment discrimination victims is tantamount to actual discrimination. I found the Conference’s web site but it contained no contact information. A spokesperson for the Administrative Office of the U.S. Courts (AOC)  suggested that I send my correspondence to the federal circuit court in my jurisdiction, which has a seat on the Conference body.  In exasperation, I submitted  an “open letter” to whom it might concern requesting legal reform via a web form on the AOC web site. I have concluded, rightly or wrongly, that the “leadership” of our federal court system is unapproachable.

In the movie, The Big Short, some savvy observers figured out the housing market was about to collapse and they found a way to make money on the collapse.  It seems likely to me that one day the “bubble” surrounding the federal court system will burst.  Just as there was almost universal faith in the housing market, Americans historically  have shown a high degree of trust in the courts.  That trust is eroded every time the court permits  unscrupulous employers to use the legal system to deny workers respect, dignity and fundamental fairness.

Trust is lost when courts permit employers to use the legal system as a weapon against American workers.

Meanwhile,  President Barack Obama  encouraged age discrimination in hiring when he signed an executive order in 2010 that permits federal agencies to bypass older workers and hire “recent” graduates and  U.S. Labor Secretary Thomas Perez earlier this year endorsed a private initiative by America’s largest corporations that openly discriminates against older workers. The federal government is the nation’s largest employer.

All of this  is happening in plain sight but it has gone largely unreported by the tattered shreds of what remains of America’s once vigorous media.  (I may sound a bit cynical on this score because the 18th richest man in the world, Sheldon Adelson,  a casino operator and major Republican donor who owns a free newspaper in Israel, recently secretly purchased  Nevada’s largest newspaper and immediately began testing the limits of journalism ethics.)

Like the housing market bubble, the bubble in the federal court system is attributable in large part to inattention, neglect and failure of accountability. [Read more…]

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.