Is the EEOC Finally Noticing Age Discrimination?

The U.S. Equal Employment Opportunity Commission  filed its second lawsuit this month alleging age discrimination, indicating a possible uptick in EEOC efforts in this long-neglected area.

The lawsuit touches upon the widespread problem of discriminatory hiring practices in the legal profession, which vies with higher education as the most egregious in terms age discrimination.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the EEOC has essentially ignored a record increase in age discrimination complaints filed with the agency during and since the Great Recession.  For example, the EEOC received more than 21,000 age discrimination complaints in 2013 but filed only seven lawsuits with age discrimination claims that year.  Meanwhile, older workers are mired in the ranks of the chronically unemployed and under-employed until they are forced into a penurious early “retirement.”

The EEOC charges that Strategic Legal Resources, Inc., a  staffing firm that does business as Strategic Legal Solutions, rescinded an offer of hire made to attorney Claudia Zacks after she complied with a company request to provide her date of birth. Zacks was 70 years of age at the time.

The Executive Director of the company’s Real Estates Services Division in New York City emailed Zacks in August 2012 and offered her a position to work on a document review project that was to begin the next day in Novi, Michigan. After Zacks accepted, the company asked Zacks to provide additional information, including her date of birth.

The lawsuit alleges that a Recruitment Coordinator for the company called Zacks and insisted that Zacks “could not possibly arrive at the job site in time on the next day.”  Zacks finally expressed concern the company was rescinding its job offer because of her age. The Recruitment Coordinator “responded that not only would Zacks not work on this assignment but she would be placed on the ‘do not use’ list and she need not apply for future job opportunities” with the company.

The EEOC charges that Strategic Legal Solutions also denied Zack future employment. In Spring 2013, Zack answered an anonymous Craigslist posting for individuals interested in working on a document review project. Zacks was hired by a different Strategic Legal Solutions office  to work on a document review project in Novi, Michigan. After three days on the project, she was summarily terminated.

The lawsuit asks the court to order Strategic Legal Solutions to pay Zachs appropriate back wages, liquidated damages and interest.

Under the Age Discrimination in Employment Act of 1967, it is illegal  “for an employment agency to fail or refuse to refer for employment, or other­wise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.”  However, a glance at internet employment sites will show that this provision is widely ignored by employers, employment agencies and even the federal government, all of whom seek applicants who are  “recent” college graduates.

Settlement is Mother’s Day Gift to Working Mothers

On the heels of Mother’s Day,  a Texas woman has won an important victory for all nursing mothers in the workplace.

Donnicia Vetters  accepted an out of court settlement of $15,000  on the eve of a trial in her lawsuit alleging pregnancy discrimination by her former employer, Houston Funding II, LLC, a Houston, TX,  debt collection agency.  After giving birth in 2012, Vetters inquired whether  she would be able to pump breast milk when she returned to her job.  Her boss allegedly responded by telling her that her position had been “filled.”

If that wasn’t outrageous enough,  U.S.  District Judge Lynn N. Hughes of Houston summarily  dismissed Vetters’ lawsuit against Houston Funding on the grounds that “lactation is not pregnancy, childbirth, or a related medical condition.” He said that “firing someone because of lactation or breast-pumping is not sex discrimination.” Judge Hughes, who is male, suggested that “pregnancy-related conditions” end on the day that a mother gives birth.

Fortunately, Judge Hughes’ opinion was unanimously reversed by the U.S. Court of Appeals for the Fifth Circuit, which held that firing a woman because she is expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  Congress passed the Pregnancy Discrimination Act to protect working women against discrimination on the basis of pregnancy, childbirth or a related medical condition.

Ms. Vetters was represented in the case by the U.S. Equal Employment Opportunity Commission.

In  EEOC v. Houston Funding II, LLC, the Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, the court said, firing a woman because she is expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits.

Instead of showing some decency, acknowledging fault and apologizing to Ms. Vetters, an attorney for Houston Funding was quoted as blaming the EEOC for forcing it to pay up.

The monetary settlement won’t put Ms. Vetters’ baby through college, and won’t compensate for the loss of a job in a difficult economy, but it is a great victory for all working mothers to know that they can’t be fired simply because they choose to nurture their infants with breast milk.

Employment Discrimination Lawsuits Down

Are hostile  judges and institutional barriers that limit access to justice for the poor and middle class suppressing the number of  employment discrimination lawsuits filed in our nation’s courts?

According to the 2014 issue of the Annual Workplace Class Action Litigation Report, class action employment discrimination filings declined by about 14 percent in 2013. There were a total of 12,311 lawsuits in 2013, compared to 14,260 in 2012.

A survey by the American Bar Foundation in 2012 found that 75 percent of complainants feel the federal court’s handling of their discrimination lawsuit is profoundly unfair. Complainants said that either the whole legal system or specific aspects of it are biased against victims. They complained  about institutional barriers, such as the difficulty in securing a competent attorney.  See Berrey, Ellen C., et al., Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation,” 46 Law & Society Review 1,  pp. 1-36)(2012).

The class action litigation report, produced by the corporate law firm, Seyfarth Shaw, states the ten largest employment discrimination class action cases in 2013 resulted in a total of $234.1 million in damages.  If one particularly large settlement of $160 million  was factored out, the 2013 total would be the second lowest since 2006. The   $160 million  settlement came in the case of McReynolds, et al. v. Merrill Lynch & Co., Case No. 05-CV-6583 (N.D. Ill. Dec. 6, 2013), a class action lawsuit brought  by African American employees alleging unfair pay and promotions.

The biggest settlements in 2013 involved nationwide classes and included six gender, two race, and one disability related discrimination class action.

The total amount of damages in employment discrimination cases for each year are as follows:

  • 2012 – $48.6 million;
  • 2011 – $123.2 million;
  •  2010 – $346.4 million;
  • 2009 – $86.2 million;
  •  2008 – $118.36 million;
  •  2007 – $282.1 million; and
  •  2006 – $91 million.

The report states there may be a significant jump in employment discrimination cases in 2014 because the number of complaints filed with the U.S. Equal Employment Opportunity Commission in 2011 and 2012 were the highest in the 48-year history of the Commission.  These complaints are now ripe for litigation.

 

EEOC to Examine National Origin Discrimination

EEOCAn aspect of discrimination law that is gaining increasing attention is, not surprisingly, national origin discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC)will meet on Nov. 13 in Washington, DC, to examine issues and hear testimony related to the problem of national origin discrimination.

The backdrop of the EEOC’s meeting is impending immigration reform and the rise in the percentage of foreign-born workers in the U.S. workforce.

The Bureau of Labor Statistics (BLS) reported in May that there are 25 million foreign-born persons in the U.S. labor force, making up 16.1 percent of the total workforce. Hispanics accounted for 48.3 percent of the foreign-born labor force in 2012 and Asians accounted for 23.7 percent. The BLS reports that  the proportion of the foreign-born labor force made up of 25 – 54 year olds (75.6 percent) is now higher than for the native-born labor force (63.4 percent).

Under Title VII of the Civil Rights Act of 1964  and EEOC rules “national origin” discrimination includes the denial of equal employment opportunity because of an individual’s place of origin, their ancestor’s place of origin,  or because of the physical, cultural or linguistic characteristics of a national origin group.

Counsel for employers, in written testimony submitted to the EEOC, describe the enormous challenges faced by employers in tackling discrimination issues involving foreign-born workers.

Douglas J. Farmer, of Ogletree, Deakins, Nash, Smoak & Stewart, writes that  many foreign-born workers have little or no understanding of basic legal prohibitions on discrimination or harassment, have never seen an anti-harassment policy, and have never participated in anti-harassment training.  In one workplace, he states, an employer was confronted with a workforce in which workers spoke 60 different languages and dialects.

“Several of our employer clients have expressed concern that employer cost and lack of technical expertise present significant obstacles to the translation and effective implementation of policies and training programs,” Farmer writes.

He urged the EEOC to make anti-discrimination and harassment policies and educational programs available in multiple languages  to help employers convey these concepts to foreign-born employees in a cost-effective manner.

Rebecca  Smith, Deputy Director of the National Employment Law Project (NELP), urges the EEOC to address  “second-generation discrimination” practices that involve cultural attributes (language, accent) as well as stereotypes associated with a particular national origin or ethnic group. She said this form of discrimination can be seen in discriminatory recruitment practices and occupational segregation by ethnicity or national origin   For example, a restaurant may employ an Hispanic worker as a dishwasher but not as a server because of his or her accent.

Smith also said some unscrupulous American employers are using labor recruiters from the source country that are notorious for discrimination to handle the hiring of foreign-born workers, while arguing that they are not responsible for labor violations committed by their recruiters. In this way, Smith writes, the employer can shift labor costs and liabilities to the smaller entity, which is often an undercapitalized firm that cannot satisfy potential judgments against it

Smith also writes that harassment and threats of deportation are “almost standard operating procedure” in some guestworker-dominated work sites

NELP estimates that eight million undocumented workers form 5.2 percent of the U.S. labor force.

Perhaps it is a sign of the times but no union representative is slated to testify before the EEOC at the hearing.