AARP Official Calls Out EEOC on Age Discrimination

An AARP official has called upon the EEOC to “significantly ramp up” its minimal efforts to combat age discrimination in employment in the United States.

Daniel B. Kohrman, a senior attorney with AARP Foundation Litigation, told a select EEOC panel studying workplace  harassment earlier this month that complaints of age-based workplace harassment grew by about ten percent in the past two years –  from 3,700 in 2012 to 4,157 in 2014 –  which was faster than race and sex-based harassment complaints. However, he said, older workers face unique difficulties in combating harassment and other forms of age discrimination in employment.

Ageism is not treated “as seriously” as other forms of bias, he said.

“First,” he said, “courts, and often our culture, do not treat ageism as seriously as other forms of bias. As a result, age harassment cases often founder because they don’t appear sufficiently severe, even if pervasive, to meet the hostile environment standards.”

Kohrman said some courts demand a level of “animus” to sustain an age-based harassment claim that is not required in the law. He also noted the Age Discrimination in Employment Act does not provide for compensatory (i.e. emotional distress) or punitive damages. An older worker who is not actually fired may not have any legally recognized damages,  he said.

Pot Calling Kettle Black?

This blog has been highly critical of both the AARP and the EEOC for virtually abdicating their responsibility to protect older workers from age discrimination in employment, especially given the epidemic nature of the problem since the Great Recession. In my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show indisputably that older workers literally have been second-class citizens under the law for almost fifty years.

Kohrman indicated that  AARP Foundation Litigation lacks the resources to do more (which is somewhat hard to believe given the fact the Foundation’s parent organization is hauling in billions in profit through sales of Medi-Gap health insurance to seniors).

Groups like AARP Foundation Litigation “may engage in some cases as warranted … [but] capacity for such action generally is limited,” he said. 

Kohrman urged the EEOC to prioritize age discrimination cases, because older workers are essentially  prevented from exercising their rights under employment discrimination statutes.  He cited  three age discrimination lawsuits brought by the EEOC since 2009, adding, “That said, we could only find a few more age-based harassment cases discussed in news releases going back to 2009.”

Kohrman said  research shows that 64 percent of older workers (ages 45-74) say they have seen or experienced age discrimination in the workplace.

Appeals Ct Says OK for Supervisor to Throw Things

shoeA federal appeals court panel  has ruled that a supervisor did not violate the rights of a subordinate when he allegedly yelled at her in front of coworkers and violently threw a heavy notebook at her.

A panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit ruled the above conduct may be  “unprofessional, uncivil and somewhat boorish” but it does not rise to the level of malevolence necessary to constitute a “hostile work environment” under Title VII of the Civil Rights Act o f 1964.

Instead, the appellate panel compared the behavior to the “ordinary tribulations of the workplace,” which include petty insults, vindictive behavior and angry recriminations.

The  decision, written by Justice Janet Rogers Brown, comes in a case that is also unusual because it involves the Merit Systems Protection Board, an independent agency charged with addressing the grievances of federal workers who challenge discriminatory employment practices.

Patricia A. Brooks, who is an African-American, filed a race discrimination complaint alleging that she was a victim of a “hostile workplace environment” at the Office of Information Resources Management of the MSPB.

Brooks, who had worked at the MSPB since 1998, said her supervisor in 2005 insulted and demeaned her in front of coworkers when he yelled at her and threw a heavy notebook in her direction.  The supervisor admitted slamming the book with his hand. Brooks said she was subsequently given poor performance ratings and became subject to selective enforcement of workplace rules.

After filing several equal employment opportunity complaints, Brooks filed a lawsuit alleging  race discrimination and retaliation in violation of Title VII.  A federal judge dismissed Brooks’ complaint on a pre-trial motion for summary judgment, which means the judge ruled that no reasonable jury could find that the supervisor’s “conduct was so severe and pervasive as to alter the conditions of Brooks employment.”  The three-judge panel for the D.C. Circuit court upheld the dismissal of  Brooks’ complaint.

Justice Brown writes in an April 15 decision that Brooks failed to show that she was subjected to “discriminatory intimidation, ridicule and insult” that was “sufficiently severe or pervasive to alter the conditions of [her] employment.”  Justice Brown said the panel evaluated the “totality of the circumstances, including the frequently of the discriminatory conduct, its severity, its offensiveness and whether it interferes with an employee’s work performance.”

Even if the supervisor did violently throw a book at Brooks, the appellate panel said, the incident involved “unprofessional conduct” but was isolated and not sufficiently malevolent to constitute actionable abuse.

A retaliation complaint and other other claims were rejected on technical grounds.

See Patricia Brooks v. Susan Tsui Grundmann, chairman, Merit Systems Protection Board, No. 12-5171.

 

SEXUAL HARASSMENT, DINE EQUITY & PEANUTS

peanutsThe EEOC has been settling lawsuits at a frenzied pace of late, some for the monetary equivalent of peanuts.

This week, the EEOC settled for $1 million a sexual harassment case filed against IHOP restaurants in New Mexico that are owned and operated by Fahim Adi.  The EEOC says the case is the second-largest litigation settlement ever reached by the EEOC’s Albuquerque Area Office.  An EEOC press release says:  “At least 22 women are expected to receive relief through the decree.”

If it  is only  22 women and they split full amount of the award equally among themselves  – without any deductions by the EEOC for fees and costs – they will each get about $45,454.

I submit that this is not a large amount of money for women – some were teenage girls – whom the EEOC says were subjected to sexually offensive conduct by Lee Broadnax, then manager of the defendant’s IHOP restaurant. The EEOC doesn’t go into details but says Broadnax’ illegal conduct included sexual comments, innuendo and unwanted touching (i.e., otherwise known as battery).

Some of the women were forced to quit their jobs because IHOP did nothing when they complained.  People who work as servers at a pancake house generally are not well-to–do and this is not an economy where jobs are easy to find.  Some of the victims were pretty college girls en route to a better future but others were mature women (including several members of a minority group).

One wonders how many IHOP  employees were forced to tolerate abuse because they had children to feed at home and no other options?

The figure of $1 million particularly pales when one considers the IHOP brand is owned by Dine Equity, Inc., which is based in Glendale, California and also owns the Applebee’s Neighborhood Grill & Bar brand.

According to Nation’s Restaurant News  magazine, Dine Equity had $7.9 billion in food service sales in 2011, making it  the ninth rranked in the United States for  “systemwide foodservice sale.”  For the quarter ending Sept. 30, 2012, DineEquity’s net income almost quadrupled to $58.7 million.  DineEquity operates almost entirely through subsidiaries and over 400 franchisees, which operate 1,842 Applebee restaurants and 1,535 IHOPs  around the world.

Dine Equity  vigorously enforces any encroachment upon the the IHOP brand.   One wuld hope that Dine Equity also would vigorously enforce the human rights of employees in IHOP and Applebee restaurants.  What could Dine Equity do?  For one thing, Dine Equity could train franchisors to follow  discrimination laws and respond appropriately to complaints. Dine Equity also could get rid of franchisors that tolerate hostile work environments and fail to respond to discrimination complaints.  Now that would get their attention!

Don’t get me wrong. If the EEOC had not taken on this case, it is quite possible that some of these victims would not have gotten anything at all (except, possibly Post Traumatic Stress Syndrome).  Courts seem to be utterly unsympathetic to victims of employment-related discrimination these days, which is probably why it is so prevalent in society. Poor people can’t afford to hire lawyers and pay court costs.  But lets get real – $1 million is  not exactly a windfall for people who likely suffered emotional trauma and stress and whose lives were completley upended by an IHOP franchisor.

In addition to the monetary relief, the decree prohibits the defendants’ IHOP restaurants from further discriminating or retaliating against its employees and requires IHOP to implement policies and practices that will provide its employees a work environment free of sex discrimination and retaliation. The defendants must also provide its employees in Bernalillo and Sandoval County IHOPs with anti-discrimination training and notice of the settlement.

In this case, the IHOP franchisor ignored the women’s sexual harassment complaints. Training cannot solve an employer’s lack of motivation to protect its workers from sex discrimination.

Great Policy; No Follow-Through

The best policy in the world won’t protect you without follow-through.

That’s the lesson of a decision by the Seventh Circuit  Court of Appeals  in a Wisconsin sexual harassment case, Equal Employment Opportunity Commission v. Management Hospitality of Racine, Inc., et al., No. 10-3247 (Jan. 9, 2012,).

The defendant, a company owned by Salauddin Janmohammed  which operates 21 International House of Pancakes restaurants, had a “zero-tolerance”  anti-harassment policy in place, anti-harassment training, and a policy of investigations of complaints.

What it didn’t have was follow-through. Or, in the words of the Court, “the policy and complaint mechanism were not reasonably effective in practice.”

According to the Court:  “the presence of a sexual harassment policy is encouraged by Title VII [but] the mere creation of a sexual harassment policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace.”

The Court upheld an award of $105,000 to two teenage servers at an IHOP operated by the defendant in Racine.  Katrina Shisler and Michelle Powell said they were sexually harassed in 2004 and 2005 by an IHOP assistant manager in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

Normally, an employer can advance the so-called Faragher/Ellerth affirmative defense in a Title VII case sexual harassment claim involving a hostile work environment. This allows the employer to escape liability for damages if:

 (a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and

 (b) “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.”

The Court said the  Faragher/Ellerth affirmative defense was not available to the Management Hospitality because both teens had complained to managers about sexual harassment  and the managers did nothing.  The company did not begin investigating until a private investigator hired by an attorney for one of the teenager began asking questions.

The Court said a rational jury could have found that the sexual harassment occurred “every shift,”  was “highly offensive,” and included “physical touching.”

The Court said a rational jury also could conclude that the employer failed to follow its own policies by discouraging  employees from reporting complaints, providing inadequate anti-harassment training to supervisors, and failing to “promptly” investigate the complaints.

The EEOC filed suit on behalf of the two teenaged servers. A jury awarded one of the servers $1,000 in compensatory damages and the other $4,000 in compensatory damages and $100,000 in punitive damages.