Discrimination Victims Deserve REAL Justice

The EEOC has asked for public input so here goes:

Why is the EEOC operating the equivalent of a “get out of jail free card” for employers that engage in employment discrimination and retaliation?

When the EEOC determines there is reasonable cause for a charge of discrimination, the agency offers the employer (and the victim) the opportunity to participate in its free mediation program, where a neutral mediator assists the parties in reaching an early and confidential  resolution to a charge of discrimination.

In its 2014 performance report, the EEOC contends the mediation program is a “win for both Employees and Employers” but in the final analysis it is a much bigger win for employers.

The EEOC says its mediation program for private sector complainants  achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination.  The effort yielded $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.

A payout of less than $20,000 per mediation is a bona fide windfall for employers, who might otherwise be forced to spend a hundred thousands dollars or more to defend a lawsuit, plus a potentially staggering damages award.

But $20,000 is a pittance at best for many – if not most – victims of employment discrimination – especially those who lost their jobs or who were not hired because of illegal discrimination.

There’s the rub

The EEOC is not supposed to be in the business of protecting discriminatory employers from the reasonable consequences of their harmful actions. [Read more…]

The Considerable Downside of Mediation for Discrimination Victims

Mediation is a really good deal for employers but what about workers? Not so much.

In its 2014 performance report,  the EEOC states that its mediation program for private sector complainants achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination. Mediation is a voluntary process where a neutral mediator assists the employer and employee in reaching an early and confidential resolution of the employment dispute raised in a charge of discrimination.  The  effort yielded  $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.

UPHere are some of the many ways that employers benefit from the EEOC’s mediation program:

  • Thanks to the generosity of the American taxpayer, it doesn’t cost employers anything to use this form of alternate dispute resolution. The EEOC doesn’t charge the complainant either but the complainant often has no money because s/he is the victim of illegal discrimination. There’s a difference.
  • The employer  usually has a major advantage because it is  represented by an experienced attorney while the complainant often can’t afford to hire an attorney and his or her only knowledge about  the legal process is derived from television shows like Law and Order.
    • A settlement costs the employer practically nothing compared to the cost of responding to an EEOC investigation and then litigating a lawsuit , which would likely exceed $100,000. If the employer loses the case,  add on damages and  the plaintiff’s attorney fees.
    •  No one has to know! It’s all secret.

What’s the down side of mediation for the employer? There aren’t any. Even if the employer fails to achieve a settlement, the employer gains valuable information about the complainant’s case, including his or her evidence, whether the complainant is or will be represented by counsel, and whether the complainant has been so emotionally damaged by discrimination that s/he would be a poor witness in front of a jury. [Read more…]

Mediation Goes Awry for Worker

After Outburst, He Won’t See Employer in Court

There is a new way for a worker to lose a lawsuit in federal court.

A three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago, IL, ruled recently that a worker could be fired for misbehaving during a mediation session called to resolve his complaint of sex discrimination.

Michael Benes had charged his Wisconsin employer, A.B. Data, Ltd. with sexgaveldiscrimination after working for the company for four months.

 The U.S. Equal Employment Opportunity Commission arranged for mediation in which, after an initial joint session, the parties separated into different rooms and a go-between relayed offers.

Upon receiving a settlement proposal that he thought too low, court papers say Benes “stormed” into the room used by A.B. Data Ltd. representatives, and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.”

The company accepted Benes’ counterproposal but then fired him.

Retaliation

Benes filed suit under the anti-retaliation provision of Title VII of the Civil Rights Act, 42 U.S.C. 2000e–3(a), which bans retaliation because a person “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” [Emphasis supplied].

A magistrate judge upheld Benes’ dismissal, finding that Benes was fired for misconduct during the mediation, not for making or supporting a charge of discrimination.

The appeals court agreed and upheld Benes termination.

In the past, Benes’ misbehavior might have resulted in a sanction by the court or his employer.

Ignores the Employer’s Behavior

An opinion written by Chief Judge Frank A. Easterbrook states – without explanation – that Benes “abandoned” his claim of sex discrimination upon filing the retaliation complaint. This is somewhat baffling in that the original complaint of sex discrimination obviously was the underlying basis for the retaliation complaint.  Benes would never have been engaged in mediation if he had not filed the discrimination complaint. And Benes would not have been fired if he had not engaged in mediation.

The appellate panel proceeded to completely ignore A.B. Data’s  behavior and to focus only upon Benes’ conduct. 

Judge Easterbrook said Benes’ actions constituted a “serious breach” of the mediation protocol, adding, “If A.B. Data would have fired a person who barged into his superior’s office in violation of instructions, and said what Benes did, then it was entitled to fire someone who did the same thing during a mediation.”

The appellate panel said that Title VII does not establish a “privilege to misbehave” in mediation.

Chief Judge Easterbrook writes that the prospect of being fired for an egregious violation of a mediator’s protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC’s investigation.

Impact of Harassment

The details of the alleged discrimination suffered by Benes were not included in the appellate decision, nor are the details of the offer submitted by A.B. Data to resolve Benes’ complaint.

Those of us who work in the area of workplace bullying and abuse are familiar with the well-documented mental and physical stress suffered by targets over time, which occasionally results in erratic or self-defeating behavior. For these and other reasons,  mediation is not ideal in these cases.

Benes clearly did himself no favors with his hotheaded behavior. Still, this decision appears to be yet another indicator of the lack of sympathy for the problem of workplace abuse in the federal courts, where, coincidentally,  judges have lifetime tenure.

Research shows that employment discrimination cases are dismissed at a far higher rate than other types of cases in federal courts before they ever reach a jury.

Workers beware – any breach of civility on your part at any point in the proceedings can have severe consequences. 

Dealing with High Conflict People

Bill Eddy, on his informative blog, Mediate.com, which is geared toward professional mediators, says High Conflict People (HCP) often act as a result of a life-long mistaken assessment of danger.  He gives the following sage advice for dealing with HCP:

1) Reduce their Mistaken Assessment of Danger:  Try not to be emotionally threatening.  Make an effort to reduce those fears by the way you interact with the person.

  • With a Borderline HCP, try to maintain a moderate, even-tempered manner that’s not too close and not too rejecting (avoid abandonment).
  • With a Narcissistic HCP, try to avoid insults and instead find things you can respect about the person (avoid treating them as inferior).
  • With an Antisocial HCP, be cautious about believing their many stories of being victimized by others, but avoid trying to dominate them in verbal interactions.
  • With Histrionic HCPs, try to pay brief attention to their dramatic stories, and then gently focus on a task or a topic you can be interested in, and then end the conversation by explaining you have to leave (rather than seeming to belittle them).
  • With Paranoid HCPs, don’t try to convince them of your trustworthiness – just be matter-of-fact and focus on what the rules are and why you have to follow them (avoid seeming suspicious of the person and avoid focusing on their fears).

2) Set Limits on Behavior that’s Aggressively Defensive:

Of course, bad behavior needs to be stopped. But the most effective way to do this is to show empathy and concern for the person … AND explain the rules or reasons the specific behavior needs to be stopped (try not to make it personal) AND what the consequences are if it continues. You can express regret that you have to address this behavior, but at the same time explain how you want to help the person and how other behaviors will be more effective at getting them what they want.

The key here is that you want to help the person accomplish the goal (being respected, not being ignored, etc.) that was underlying the bad behavior. You want to help them address the underlying concern. For example, if an employee sent out a nasty email to others in the department, you discuss the consequence for doing that. But also discuss what the employee was trying to accomplish and a better way to do that. It may be that the employee felt disrespected and therefore reacted with disrespect for others. You can explain that a better way would be to simply point out available ways to be treated with respect that don’t involved treating others with disrespect.

3) Avoid Giving Negative Feedback:

It is automatic for us to respond with negative feedback to bad behavior. With the ordinary co-worker, neighbor, or family member, negative feedback may be helpful or at least neutral. However, with HCPs, negative feedback is taken extremely personally and feeds their Mistaken Assessment of Danger – which triggers their bad behavior in an effort to defend themselves against the “danger” – which is more about personality-based fears than it is about anything in the present. Of course, you can’t point this out to the person or you will get even more bad behavior in their defensive response. Instead, focus on reducing emotional threats and on matter-of-factly setting limits on the behavior. Regardless of how severe the consequences may be for the “bad” behavior, communicate that you want to help the person. If you can demonstrate a desire to help through your own attitude and behavior, it often makes a huge, positive difference to an HCP.

(November 2010)