U.S. Secretary of Labor Sleeping on the Job?

With America’s workplace anti-bully movement seemingly stuck in the trenches, perhaps it is time to follow the example of  America’s neighbor to the North.

The Canadian province of Quebec amended its Labour Standards Act in 2002 to ban non-discriminatory workplace harassment and bullying. The law, which went into effect on June 1, 2004, also imposes a duty on employers to prevent and stop bullying.

According to one observer, the law was the result of  a sustained campaign by Quebec unions, as well as by a non-profit advocacy and resource group for non-unionized workers, “Au bas l’echelle” (in English, “Rank and File”).

This effort resulted in the establishment  in 1999 by then Minister of Labor, Diane Lemieux, of an Interdepartmental Committee on Psychological Harassment at Work.  The committee in 2001 recommended the government take legislative steps to prohibit psychological harassment.

It is time for unions and workplace anti-bully advocates to call upon the U.S. Secretary of Labor  to empanel a commission to study the problem of workplace bulling in the United States and recommend new legislation to Congress.

There is overwhelming research that the problem of workplace bullying is epidemic in the United States, affecting at least one in four workers, and that workplace bullying destroys lives and costs American employers billions every year.

Efforts began in the United States almost a decade ago to pass a so-called Healthy Workplace Bill on a state-by-state basis.  Thus far, no state has adopted the bill, which is much weaker than Quebec’s legislation.

Meanwhile, the worsening economy has left more and more workers vulnerable to bullying. Not only are there fewer jobs, but the nature of the workforce is changing. More workers today are categorized as “independent contractors” who receive no benefits and low pay. These include  home-workers, tele-workers, piece-workers.

Even if one state does step up and adopt a workplace anti-bully bill, it will take decades, if ever, before all of the states do.

*** See Debra L. Parkes, “Targeting Workplace Harassment in Quebec: On Exporting a New Legislative Agenda” (2004) 8 Empl. Rts. & Employ. Pol’y J. 423.

Where is America’s Age Discrimination Commissioner?

Australia, a world leader in combating workplace bullying, recently announced the appointment of Australia’s first Age Discrimination Commissioner.

Despite the fact that age discrimination is epidemic in the United States, it appears the problem is being  ignored by the federal government and non-profit advocacy agencies like the American Association for Retired Persons (one of the country’s leading medical insurers).

Australia announced tn July 2011 the appointment of an Age Discrimination Commissioner  to combat age discrimination in Australian workplaces and the wider community.

Where is America’s age discrimination commissioner?

The current economic climate in the United States is like a “perfect storm” for older workers. There is record unemployment for workers aged 55 and above and there is record age discrimination.

The impact of unemployment on older workers is dire as they face potentially decades of retirement, and health issues, without the ability to prepare financially.  Older workers do not have the time and may never recover from the adverse impact of age discrimination.

Age discrimination complaints to the U.S. Equal Opportunity Commission  are at an all-time high.  In five years, the number of age discrimination complaints has increased FORTY PERCENT.  There were 23,264 age discrimination complaints filed with the EEOC in 2010.

Meanwhile, the  Bureau of Justice Statistics(BJS) reports that unemployment for persons aged 55 and above has increased sharply since the beginning of the recession in December 2007. The jobless rate among older workers was 7.1 percent (seasonally adjusted) in February 2010, just shy of the record-high level of 7.2 percent in December 2009.

In addition, the BJS says that older workers remain unemployed longer than younger workers. The BJS states that nearly half (49.1 percent) of older jobseekers had been unemployed for 27 weeks or longer in February 2010, compared with 28.5 percent of workers aged 16 to 24 years and 41.3 percent of workers aged 25 to 54 years.

(According to a 2011  CareerBuilder survey on workplace bullying,  women aged 55 and above are more likely than any other demographic group to  report feeling bullied in the workplace, another problem America ignores.)

Australia’s new age commissioner, the Hon. Susan Ryan, will operate under he auspices of the Australia Age Discrimination Act, and will tackle issues such as discrimination in getting job or applying for a promotion, enrolling at a university, applying to rent a house, or using services such as at a bank. The government provided $4 million in funding over four years to the Australian Human Rights Commission to support the new position.

Australia was one of the first countries to recognize the problem of workplace bullying, which causes potentially severe  injury to a target’s mental and physical health, destroys families and costs the United States billions each year in needless turnover, lost work, higher health costs, absenteeism, etc.  In fact, in Victoria, Australia, workplace bullying is considered a criminal offense under some circumstances.

At this point, it may go without saying that America has yet to offer workers any protection against workplace bullying.

Then the “Law is a Ass”

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot.” –  Charles Dickens, Oliver Twist.

A federal judge in New York earlier this week threw out a pregnancy discrimination case against Bloomberg, L.P.,  holding that it is not the court’s job to “tell businesses what attributes they must value in their employees as they make pay and promotion decisions.”

Chief U.S. District Judge Loretta A. Preska, of the U.S. District Court for the Southern District of New York, essentially says pregnant women who take maternity leave are making a choice which may leave them in a  disadvantageous position at the workplace. She says it’s not against the law  because … hey, it was their choice wasn’t it?

The EEOC alleged that 49 of the 78 claimants in the lawsuit were demoted once they announced their pregnancy and/or returned from maternity leave in terms of a diminished title and the number of employees directly reporting to them. Not only were their responsibilities diminished but their responsibilities were handed off to junior male employees.  Also, the EEOC alleged, 77 of 78 of the claimants had their total compensation decreased after becoming pregnant or returning from maternity leave.

Bloomberg is an international financial services and media company based in New York City that provides news, information, and analysis. New York City Mayor Michael Bloomberg owns the majority of the company, which he founded in 1981

Judge Preska writes:

“ … women who take maternity leave, work fewer hours, and demand more scheduling flexibility likely are at a disadvantage in a demanding culture like Bloomberg’s … The law does not require companies to ignore or stop valuing ultimate dedication, however unhealthy that may be for family life.”

She goes on to write:

“The law does not mandate “work-life balance.” It does not require companies to ignore employees’ work-family tradeoffs — and they are tradeoffs — when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be “forward thinking.” But they are not required by law.”

Judge Preska granted Bloomberg’s request for a summary judgment to dismiss the EEOC’s complaint, finding that a  reasonable jury could not conclude that Bloomberg engaged in a pattern and practice of discrimination against pregnant women who took maternity leave. Judge Preska said the “anecdotal” evidence provided by the EEOC was insufficient in light of  evidence produced by Bloomberg.  Judge Preska’s decision means the case cannot proceed to a jury.

Judge Preska acknowledged that compensation “growth” for workers who took maternity leave was less than for those who took no leave but she said it is legal to discriminate “between those employees who take off long periods of time in order to raise children and those who either do not have children or are able to raise them without an appreciable career interruption.”

The EEOC also presented examples of alleged bias. One class member, for example, “reported to the CEO in 2003 that the head of the News division made some negative comments about women taking paid maternity leave but then not returning to the company, the CEO said, “Well, is every fucking woman in the company having a baby or going to have a baby?”

According to Judge Preska: “Isolated remarks by a handful of executives — or one specific executive, the head of News, which EEOC focuses on heavily here — do not show that Bloomberg’s standard operating procedure was to discriminate against pregnant women and mothers.”

Finally, here’s what Judge Preska has to say about the fact that only women bear children:

“To be sure, women need to take leave to bear a child. And, perhaps unfortunately, women tend to choose to attend to family obligations over work obligations thereafter more often than men in our society. Work-related consequences follow. Likewise, men tend to choose work obligations over family obligations, and family consequences follow. Whether one thinks those consequences are intrinsically fair, whether one agrees with the roles traditionally assumed by the different genders in raising children in the United States, or whether one agrees with the monetary value society places on working versus childrearing is not at issue here. Neither is whether Bloomberg is the most “family-friendly” company. The fact remains that the law requires only equal treatment in the workplace. Employment consequences for making choices that elevate non-work activities (for whatever reason) over work activities are not illegal.”

Judge Preska was nominated by President George H. W. Bush on March 31, 1992.

It is not clear whether or not Judge Preska has any children.

Employment Discrimination: What’s with Indiana?

 

The number of  employment discrimination complaints to the Equal Employment Opportunities Commission  is at an all time high, and its expected to rise.

But there are indications that discrimination is more prevalent in certain states, which apparently have laws and a regulatory schemes that favor business. For example, Texas is an employment-at-will state, which means that employees can be terminated for any reason as long as it doesn’t violate the law (i.e. discrimination) or an important public policy.

Conversely, some high population states appear to have a lower incidence of employment discrimination, possibly indicating a more favorable climate for employer-employee relations.

Businessweek recently did an analysis based on the number of EEOC “merit resolutions” in 2010. These are cases resolved without litigation by the EEOC with private employers and state and local government employers (not federal government). The EEOC filed 250 lawsuits in 2010, resolved 285 lawsuits, and resolved 104,999 private sector charges.  Note: The EEOC “prosecutes” only a fraction of the complaints that are filed with the EEOC.

Businessweek’s analysis shows that Texas was the state with the highest number of merit resolutions in 2010. However, this is not particularly surprising given that Texas has the second highest population of any state, after California, which ranked 2nd.

But what’s with Indiana? It’s the 15th largest state but ranks 5th state in terms of EEOC merit resolutions. Indiana touts itself as America’s heartland, a family friendly place.  Apparently it is even friendlier to business.  If you’re looking for a job, you might want to take this into account. And if you have a job in states like Indiana, Alabama or Mississippi, well … good luck!

On the other hand, New York is the 3rd largest state but ranks 15th in merit resolutions. Go New York!

The U.S. Equal Employment Opportunity Commission (EEOC) says private sector workplace discrimination charge filings with the federal agency nationwide hit an unprecedented level of 99,922 during the fiscal year ending on Sept. 30, 2010. All major categories of charge filings in the private sector (which include charges filed against state and local governments) increased. These include charges alleging discrimination under Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and the Genetic Information Nondiscrimination Act (GINA).

For the first time ever, retaliation under all statutes (36,258) surpassed race (35,890) as the most frequently filed charge, while allegations based on religion (3,790), disability (25,165) and age (23,264) increased.

Here’s the Businessweek ranking of states with EEOC merit resolutions:

1. Texas, 2nd largest state, population 25,145,561; merit resolutions,  1,780.

2. California, largest state, pop. 37,253,956; merit resolutions, 1,600.

3. Florida, 4th largest state,pop.  18,801,310; merit resolutions, 1,409.

4. Georgia, 9th largest state, pop. 9,687,653; merit resolutions, 1,288.

5. Indiana, 15th largest state, pop. 6,483,802; merit resolutions, 1,063.

6. Illinois, 5th largest state,pop.  12,830,632; merit resolutions, 1,001.

7. Pennsylvania, 6th largest state, pop. 12,702,379; merit resolutions, 860,

8. North Carolina, 10th largest state, pop. 9,535,483; merit resolutions, 823.

9. Tennessee, 17th largest state, pop.  6,346,105; merit resolutions, 800.

10. Ohio, 7th largest state, pop. 11,536,504; merit resolutions, 680.

11. Alabama, 23rd largest state, pop.4,779,736; merit resolutions, 650.

12. New York, 3rd largest state, pop. 19,378,102′ merit resolutions, 609.

13. Michigan, 8th largest state,  pop. 9,883,640; merit resolutions, 559.

14. Colorado, 22nd largest state, pop. 5,029,196; merit resolutions, 509.

15. Virginia, 12th largest state, pop. 8,001,024; merit resolutions, 499.

16. Arizona, 16th largest state, pop.,  6,392,017; merit resolutions, 496.

17. Missouri, 18th largest state, pop., 5,988,927; merit resolutions, 463.

18. Mississippi, 31st largest state, pop., 2,967,297; merit resolutions, 392.

19.  Arkansas, 32nd largest state, pop. 2,915,918; merit resolutions, 376.

20. Washington, 13th largest state, pop. 6,724,540;  merit resolutions, 353.