Judicial Conference: To Whom it May Concern

The evidence has been building for years that federal courts are hostile to discrimination plaintiffs, and that corporate plaintiffs fare much better than individual plaintiffs.

The U.S. Courts were created under Article III of the Constitution to administer justice fairly and impartially.  So  it doesn’t seem right that federal judges appear to be biased, either consciously or unconsciously, against the discrimination victims and the individual plaintiffs who appear before them.

Individual federal judges are working to improve the operation of federal courts but this obviously is a systemic problem that deserves a systemic solution. Shouldn’t the entity that runs our nation’s federal court system be working to insure that our courts are independent and unbiased forums for all.

It seems the Judicial Conference of the United States runs our federal court system. The Conference describes itself as the “national policy making body” for U.S. courts and it is charged with “studying the operation and effect of the general rules of practice and procedure in the federal courts.”  The conference appears to be a 16-member body (with two observers) that is run by Chief Justice John G. Roberts. It includes the Chief Judge of the Court of International Trade and a district judge from each regional judicial circuit. There are no citizen representatives.

How do you contact the Judicial Conference? The web site of the Judicial Conference lacks  contact information, stating: “Requests for consideration of items by the Judicial Conference of the United States or one of its committees should be directed to the Director of the Administrative Office of the United States Courts.” There is no contact information or link to the Administrative Office of the U.S. Courts but I did a web search and found it here.

Nothing on the AOC landing page indicates how to contact the director of the AOC or what other individual(s) might receive a complaint about apparent systemic discrimination in federal courts. At the bottom of the page there is a “contact us” tab that leads to the AOC’s Washington D.C. address, the phone number of the “Public Information Officer” and a “Send us a Message” form. The “Send us a Message” form states: “Have a comment about uscourts.gov? Find a broken link? Need help finding a publication or statistics? Send us a message by filling out the form below. If you’d like a response, be sure to include your email address.”

I don’t have a comment, didn’t find a broken link and I’m not trying to find a publication. My problem deals with the nationwide apparent systemic unfairness of our federal courts toward discrimination victims and the apparent preferential treatment accorded to corporations. I want to know what, if anything, the leadership of our nation’s federal courts is doing to insure that these courts are independent and unbiased forums for all. Still, I left the following message on the AOC’s web site;

To Whom it May Concern:

I don’t have a comment, haven’t found a broken link, and don’t need a publication or statistics. I am contacting your because I think there is a major systemic problem in our federal court system that has existed for years. There is significant research showing that federal judges dismiss employment discrimination cases at a far higher rate than other types of cases, and that they accord preferential treatment to corporate plaintiffs. This doesn’t seem fair. What, if anything, are you doing to address this? Oh, I guess I do want a statistic after-all. What is the racial composition of the conference?  Thanks! Patricia G. Barnes

I might have directed them to my book, Betrayed: The Legalization of Age Discrimination in the Workplace, which contains several suggestions for improving federal courts, but I don’t want to seem impudent.

AOC Public  Information Officer, Karen Redmond said the Judicial Conference ordinarily addresses issues that are brought to its attention by the various federal circuits.  She said American citizens who have a problem normally go to the federal circuit court in their geographical area to seek redress.

Frankly, I won’t hold my breath waiting for the  answer from the Judicial Conference.  I get the feeling from its web site that the Judicial Conference isn’t keen on citizen input. But if I do get a response, I’ll be sure to tell you.

Donald Sterling, Racism & Federal Courts

The life-time suspension from the National Basketball League of  Los Angeles Clippers owner Donald Sterling for making racist comments to his girlfriend raises questions about how such conduct is treated in the workplace.

Although Sterling received the equivalent of a death sentence from the NBA, it is  unlikely that a federal court would consider Sterling’s conduct to be severe enough to violate the nation’s leading civil rights law, Title VII of the Civil Rights Act of 1994.

It what may be a sad commentary about the federal courts, racist, ageist and sexist comments often are relegated to the category of ordinary workplace incivility.

The  U.S. Supreme Court has cautioned federal judges against changing  Title VII into a “civility code” for the American workplace. See Oncale v. Sundowner Offshore Services, 523 U.S. Reports 75 (1998). As a result, most federal judges require numerous instances of egregious racist or sexist conduct before they hold employers accountable.

Sterling told his girlfriend, in a telephone conversation, that he was bothered that she associated with blacks.

Racist & Sexist Comments

A federal appeals court upheld the dismissal of a Title VII lawsuit brought by  an African-American clerk for CSX Transportation Company, Inc.  who was allegedly subjected to a racially and sexually hostile work environment.  The  court ruled that “occasional offensive utterances” do not rise to the level required to create a hostile work environment.

When Stephanie Williams declined to watch the Republican National Convention on a television at the plant in 2004, she said a male supervisor  told her that  she was a Democrat “only because she was a black woman; that unmarried women cannot ‘have the love of God in their heart[s]’; and this country should “get rid of Jesse Jackson and Al Sharpton because without those two ‘monkeys’ the country would be a whole lot better.”  The following day, the supervisor allegedly told Williams that “if she returned to school, she would not have to pay for her education because she was a single black mother. He also allegedly said all blacks should go back to where they came from.

A federal judge granted a pre-trial motion to dismiss Williams’ claim that she was a victim of a sexually hostile environment on the grounds that  her supervisor’s conduct was “neither severe nor pervasive enough to constitute a sexually hostile environment.”  He rejected on technical grounds evidence that pornography was left on tables at the plant for all to see.

The judge permitted Williams to proceed to a trial on the claim that she was subjected  to a racially hostile environment but dismissed the case before it reached the jury after finding that Williams’ evidence of a racially hostile work environment was not sufficiently “severe or pervasive” as a matter of law.

Mere Offensive Utterance

In two different opinions, the  U.S. Court of Appeals for the Sixth Circuit, which covers Tennessee, Ohio, Michigan and Kentucky,  upheld the lower court’s dismissal of Williams’ claims.  See Williams v. CSX Transp. Co. Inc., 643 F.3d 502 (6th Cir. 2011) and Williams V. CSX Transp. Co., No. 12-6197 (6thCir. Sep. 19, 2013).

The appeals court agreed the supervisor’s conduct was “despicable” but said the incident was not sufficiently ‘severe’ or ‘pervasive’ standing alone. “The statements were isolated, not pervasive; all but two occurred over a two-day period,” held the court.

The court said the reference to Jackson and Sharpton and the statement that black people should go back where they came from  “are certainly insensitive, ignorant, and bigoted. But they more closely resemble a ‘mere offensive utterance’ than conduct that is ‘physically threatening or humiliating.”

NBA commissioner Adam Silver said he will try to force Sterling to sell his franchise. Sterling also was fined $2.5 million, the maximum amount allowed under the NBA constitution.  Silver has called upon the NBA’s Board of Governors to force Sterling to sell the Clippers.

Fed Cts Eschew Social Media

youtubeAre federal courts out of touch?

 The National Center for State Courts reported the results of a recent survey that would indicate that federal courts literally are out of touch. The survey shows federal courts have thus far largely eschewed the use of “social media,” including Facebook, Twitter and YouTube.

 Out of the 135 responding courts, only 21 (15.6%) said that they were using social media (split almost evenly between District and Bankruptcy Courts).

This blog, of course, is concerned that federal courts are pro-business  and that federal judges disproportionately dismiss employment cases.  But the bigger issue is the extent to which federal courts simply are out of touch with the American citizenry.

Why would the judicial branch of the federal government pass up the incredible opportunities  offered by social media to inform the public about the court system and to essentially make the case that federal courts are important and should received taxpayer dollars?

 One can look for clues at the U.S. Supreme Court, the leader of the federal judiciary. It still refuses to allow television cameras in its courtroom. Television is archaic technology that dates back to the 1920s.

 Courts do have web pages, of course, but this is a small concession to the universe of opportunity available through social media. Here are some of the many uses of social media that federal court system could benefit from:

  •   Courts are in the business of deciding legal issues. Facebook and Twitter are tailor-made for courts to notify the public and the media when an important legal decision is issued or when a jury verdict is in.
  •  Social media offers the potential for timely dissemination of  useful information to the general public (i.e., Snow day – Court closed; Jury trial postponed so jurors need not report for duty; Delays possible – Parking lot closed for re-paving, etc.).
  •  Imagine the increase in efficiencies that would occur if a court posted YouTube videos showing how the court operates. For example, what should a visitor expect with respect to security screening methods?  Where do pro-se litigants sit in a courtroom and how do they present their case to a judge? 
  • Social media offers tools that can be used to education the citizenry about civil and criminal justice issues. What are the rules of evidence? What is hearsay? This type of educational outreach would be especially useful to litigants who cannot afford an attorney, which includes most poor and middle class Americans.

 Perhaps most importantly, social media offers the federal court system the opportunity to  build trust in the institution and to counteract common negative stereotypes about federal courts –  remote, insular,  obtuse,  elitist, pro-business, inappropriately “activist,” influenced negatively by political considerations, out of touch, etc.. These negative stereotypes  affect the public’s understanding of the important issue of judicial independence.  Enhanced trust also could come in handy when the federal court asked  taxpayers for money to operate.

  One wonders what model of leadership, administration or management is being followed in the federal courts? What credible business school today recommends that an institution which serves the general public reject the very tools of communication that are  most in use by the general public?  And, the last time I looked,  Facebook, YouTube and Twitter were free. 

The EEOC’s New Gameplan

The situation in the United States is bleak, to say the least, for workers who are targets of employment discrimination and harassment.

 Federal courts are blatantly hostile to these types of cases –  dismissing most of them before they ever reach a jury – and our leaders in Washington, D.C., seem to be oblivious.

Part of the problem is that the U.S. Equal Employment Opportunity Commission, the federal agency that is supposed to be combating employment discrimination, is overwhelmed and underfunded.

 The EEOC says there has been  a 38 percent rise in the number of charges filed with the EEOC  against private employers and state and local government employers in the past 20 years.  But  the  EEOC’s staffing levels and funding dropped nearly 30 percent between 2000 and 2008. An infusion of resources in 2009 allowed for some rebuilding of capacity, but that was quickly stalled when funding was reduced and hiring freezes were implemented in FY 2011 and 2012.

The bottom line is that  many observers feel the EEOC has been about  as effective as a gnat battling an elephant in recent years.

 But  it seems that change is afoot. The EEOC is seeking public comment  (see below) on a proposed new strategic plan that it hopes will be more effective than the EEOC’s prior practice of  filing individual lawsuits against select employers. 

In its new plan, the EEOC says it will strategically attack  practices and issues that adversely affect large numbers of employees. The EEOC identifies five national priorities:

1.  Eliminate Systemic Barriers in Recruitment and Hiring. The EEOC will target class-based  hiring discrimination and facially neutral hiring practices that adversely impact particular groups. This includes, for example, steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law.

2. Protect immigrant, migrant and other vulnerable workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

3. Address Emerging Issues. The agency will address emerging issues with respect to:

-The Americans with Disability Act, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;

-Lesbian, gay, bisexual and transgender individuals coverage under Title VII sex discrimination provisions.

-Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

4. Preserve Access to the Legal System. The EEOC will target policies and practices intended to prevent  individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement effort, including retaliatory actions; overly broad waivers; and settlement provisions that prohibit filing charges with EEOC.

5. Combat Harassment. The EEOC will launch a national education and outreach campaign – aimed at both employees and employers – to prevent and appropriately respond to harassment in the workplace.

 Okay, some of this sounds like politically-correct gobbledygook that is incapable of measurement. At the same time, it is encouraging that the EEOC is rethinking its past practices. The  38 percent increase in charges filed with the EEOC  also represents an increase  the suffering of American workers and their families who are subjected to illegal discrimination by employers.  American workers need all the help they can get!

Comments and suggestions must be submitted to the EEOC about the plan by 5 p.m. ET on September 18, 2012 at strategic.plan@eeoc.gov or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. The Commission plans to vote on the draft plan at the end of this fiscal year.