Link Between Bullying & Discrimination

One of the most common types of lawsuits facing American employers is a discrimination lawsuit.

Workplace bullying and discrimination are closely intertwined and one might even say that bullying precipitates many discrimination lawsuits

Discrimination involves unfair treatment of an individual or group of individuals because of a distinguishing characteristic that is protected under state or federal law, such as sex, race, national origin, disability, religion, etc.   But it also frequently also involves workplace bullying, which is the systematic and repeated harassment of an employee over a period of time..  One employee  – often  a supervisor – attempts to exercise improper power and control over another, often a subordinate.

Even people who despise women or minorities probably would tolerate them if they silently accept whatever abuse the bully chooses to inflict upon them, never outshine or demonstrate competence that threatens the bully and act with complete subservience at all times. Of course, that doesn’t always happens. Targets of discrimination often complain and demand to be treated with fairness. That’s when the workplace bullying begins in earnest. A bully cannot tolerate a target who refuses to aknowledge the bully’s “right” to exercise complete power and control over the target.

Employers never win when they are sued by workers. Among other things, employers have to spend money to defend themselves. It is estimated that it costs an employer $100,000 to defend even the weakest and least meritorious lawsuit, nevermind a strong case that may ultimately result in a settlement or a judgment for the plaintiff.

Last March, a physician’s assistant at a Sacramento hospital won a jury award of $168 million after alleging she was harassed by cardiac surgeons at the hospital.  She filed 18 complaints with the Human Resources Department, which not only ignored her complaints but actually fired her! She speculates the hospital’s failure to address her complaints was because the cardiac surgeons are the highest revenue producers in the hospital. The jury award included $128 million in punitive damages.

Many industrialized countries have adopted health and safety laws and other kinds of legislation to protect workers from bullying and harassment, and to require employers to provide all employees with a workplace free from bullying and psychological harassment.  But America has resisted efforts to protect workers here from bullying for more than a decade. Why?

Some unscrupulous employers use bullying  strategically to get rid of good employees and to avoid legal obligations, such as paying worker’s compensation or unemployment benefits.  Some unscrupulous employers use bullying to thwart unions and  drive out workers who demand their rights under the law. In some cases, the worker actually has a technical right  under some law to sue the employer but the reality is that few workers today can afford the legal process. And it’s biased in favor of employers anyway.

Finally, it is not inconceivable that there’s a lot of ignorance out there  about how much workplace bullying costs American employers – literally billions of dollars a year- in unnecessary turnover, lost work and needless litigation.

The unscrupulous employers are probably a small minority of American employers. Most employers want to follow the law and be good citizens. 

There is an easy and relatively inexpensive way for good employers to mimize the risk of a  potentially catastrophic discrmination lawsuit . They should adopt and rigorously enforce a general anti-harassment anti-bullying policy that makes it clear that bullying will not be tolerated by anyone in the organization, including cardiac surgeons and the Chief Executive Officer.  By the way, that’s also the right thing to do. Doesn’t every employee deserve to be treated with dignity and respect?

Those who are interested in reading more about this topic should read my new book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

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.

Older Workers Vulnerable to Age Discrimination

daggerThe U.S. Supreme Court stuck a dagger in the heart of the Age Discrimination in Employment Act a few years ago in its decision, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

Prior to Gross, the same standard of proof applied equally to all workers who faced illegal discrimination on the job. The Court in Gross established a far higher standard of proof for plaintiffs in age discrimination cases than exists for plaintiffs in cases alleging discrimination based on race, sex, national origin and religion.  This has left older workers more vulnerable to age discrimination.

A bi-partisan bill was introduced in the U.S. Senate in March to rectify this wrong. Under the Protecting Older Workers Against Discrimination Act , if a victim can show that age discrimination was a “motivating factor” behind a decision, the burden shifts to the employer to show it complied with the law. The bill is co-sponsored by Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Vermont Senator Patrick Leahy (D-VT).

After Gross, older workers who filed age discrimination cases were required to prove that age discrimination was the “but for” cause of their termination (i.e., “but for” age discrimination, they would not have been demoted or fired.)

Alternatively, employers could point to any other “legitimate non-discriminatory” reason for firing the Plaintiff to avoid liability.  (“Sure we thought the old fogey was an over-paid dinosaur but he failed to follow company procedure when he called in sick one day so he’s gotta go!”)

Under the proposed bill, it wouldn’t matter if the employer had more than one motivating factor – if one of those motivating factors was age discrimination, the employer could be held liable.

The  Court reasoned backwards in Gross.  The Court said that Congress amended Title VII of the Civil Rights Act of 1964 to permit mixed-motive claims in discrimination claims involving race, color, religion, sex and national origin. So the fact that Congress failed to amend the ADEA to permit mixed-motive claims meant that Congress intended to disallow mixed -motive claims.  The Court threw out decades of precedent that treated age discrimination like every other invidious form of discrimination and left countless older workers without real protection against age discrimination.

The Gross decision has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

Harkin is Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

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.