Coronavirus: 10 Steps US Employers Should Take to Maintain a Safe Workplace in the Face of a Public Health Emergency

Authors

  • Andrew S. Rosenman
  • Ruth Zadikany
  • Roxanne M. Wilson

The coronavirus, also known as COVID-19, is spreading rapidly across the globe and throughout the United States. Accordingly, employers should keep track of rapidly emerging developments and consider taking the 10 steps discussed below in order to maintain a safe workplace and to reassure their employees that management is appropriately monitoring and responding to the situation. Having a carefully coordinated and well-thought-out approach to the coronavirus should help mitigate risks for employers while reducing many employee concerns.

1. Educate Your Workforce and Communicate Regularly with Employees

Employers should communicate openly and often with the workforce so that employees have information they need to help keep themselves educated and updated about the coronavirus. As we discuss throughout this Legal Update, communicating regularly with your employees regarding company policies and procedures related to good hygiene, business travel, quarantines, working remotely, safety precautions and screening visitors is an effective method to demonstrate to your workforce that you are monitoring the situation and working to keep everyone healthy and safe. Soliciting direct input and suggestions from your employees, particularly on hygiene issues in your specific workplace, may help further reduce the risks of transmission of the virus.

As part of those communications, we recommend that employers provide employees with additional resources so that they may learn more about the situation as it develops. For example, the Centers for Disease Control (“CDC”) has a detailed website, presently available in English, Spanish and simplified Chinese, that provides up-to-date information about the coronavirus. The CDC’s website includes details about, among other things, coronavirus symptoms, prevention and treatment, geographic updates, and frequently asked questions. The CDC’s website also includes links to posters that employers can download and place in restrooms and other areas of the workplace where they are likely to be seen. The World Health Organization (“WHO”) similarly has developed a website with useful materials for employers and employees.

In addition, the Occupational Safety and Health Administration (“OSHA”), which is tasked with ensuring safe working conditions for employees by setting and enforcing workplace standards and providing training and education, has provided guidance and information about the coronavirus on its website.

Regular communication helps not only to educate employees on best practices in the workplace but also to dispel myths and unfounded rumors, about the coronavirus itself and its potential impact on the workplace. In addition, employers that do not communicate with their employees may be perceived, rightly or wrongly, as ill-prepared to handle the outbreak and uncaring about the well-being of their employees. Such employers may also experience a greater number of potentially unnecessary employee absences.

In addition to providing regular communications and reminders to employees, employers should develop mechanisms that will allow them to communicate with all employees on an emergency basis (e.g., in the event of an unanticipated office or building shutdown). Employers should communicate in as many ways as possible, depending on their technical proficiency (e.g., global email, voicemail, text, phone tree, etc.).

2. Monitor Developments on a Daily Basis

The coronavirus situation is highly fluid. Both the CDC and WHO frequently update the information on coronavirus on their websites. Accordingly, employers should check these websites often as the outbreak continues to evolve. The CDC has a “latest updates” link on its website for the coronavirus. Similarly, the WHO has a “rolling updates” section on its website. For the benefit of US employers, the CDC also has developed interim guidance for businesses and employers to plan for and respond to issues related to the coronavirus. The CDC’s interim guidance provides a series of recommended strategies for employers to implement now, many of which we discuss below.

In addition to the websites and frequent updates from the CDC, WHO and OSHA, additional information may be available from state and local departments of health, as well as from the US Food and Drug Administration.

3. Appoint a Cross-Functional Coronavirus Emergency Management Team

Unlike weather-related crises, which often permit businesses to engage in some level of advance preparation, the coronavirus has the power to disrupt business operations significantly and without any warning. Employers need to be prepared to act quickly if the coronavirus enters their specific workplace. Accordingly, employers should appoint a central point of contact and cross-functional emergency management team (“EMT”) to address all of the issues arising from the coronavirus outbreak in the workplace, including employee health and safety; internal and external messaging; medical and sick leaves; workers’ compensation; short-term disability; the interactive process and potential accommodations under the ADA; confidentiality and privacy protections; technology support; and legal compliance. Where feasible, the EMT likely should include, at minimum, representatives of the HR, communications, IT, and legal departments.

It is critical that the EMT be given sufficient authority (or access to authority) to act nimbly and decisively in the face of quickly changing information and circumstances, while possessing the flexibility to make adjustments as time goes on and business needs may require.

In addition to operational planning and emergency preparedness, the EMT should be tasked with responsibility for monitoring the news and key websites on a daily basis for reliable information in this highly fluid situation.

4. Reinforce Good Hygiene Practices and Take Related Safety Precautions

The “General Duty” clause of the Occupational Safety and Health Act generally requires employers to provide employees with a safe and healthy workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm, and to comply with occupational safety and health standards and rules. Accordingly, employers should remind employees to take basic preventive measures and safety precautions that may help to reduce the risk of contracting the coronavirus or spreading it in the workplace, including:

  • frequently washing their hands thoroughly with soap and water for at least 20 seconds or an alcohol-based hand sanitizer that contains at least 60 percent alcohol;
  • avoiding touching their eyes, nose and mouth;
  • covering sneezes or coughs with tissues, if possible, or else with a sleeve or shoulder;
  • avoiding close contact with people who are sick;
  • staying home when sick; and
  • cleaning and disinfecting frequently touched surfaces and objects.

To facilitate these practices, employers should ensure that they maintain adequate supplies in the workplace, including tissues, soap, alcohol-based hand sanitizer that contains at least 60 percent alcohol, and hand wipes. The CDC has also recommended that employers provide no-touch disposal receptacles for use by employees, place no-touch sanitizer dispensers in multiple locations or in conference rooms to encourage good hand hygiene, and provide employees with disposable wipes so that they can wipe down commonly used surfaces before each use.

Encouraging good hygiene practices extends beyond employees themselves. Employers that rely on staffing services for contingent or temporary employees should ensure that those services are taking appropriate precautions for workers sent to the employers’ premises.

Employers should also review their cleaning operations to ensure that frequently touched surfaces, such as door handles, elevator buttons, phones, keyboards, workstations and countertops are routinely disinfected. Depending on the work environment, employers may need to coordinate this effort with their landlords or tenants. Employers should review their leases to understand their duties and obligations in this regard. It also is important to ensure that cleaning personnel are properly trained and equipped to disinfect frequently touched areas and that they have appropriate personal protective equipment to avoid contracting the coronavirus while cleaning. If the employer learns that an infected employee or other person has been in the workplace, the employer should also consider contracting with specialists for additional deep-cleaning and sanitizing services to prevent the spread of the virus.

5. Actively Encourage Sick Employees to Stay Home and Immediately Send Sick Employees Home

Consistent with CDC guidance, employers should actively encourage employees to stay home if they are sick or have been exposed to someone who is sick, and to remain home until they are free of a fever, signs of a fever or other symptoms for at least 24 hours. This is especially important for employees who have symptoms of acute respiratory illness. In fact, CDC guidance specifically recommends that employers send home immediately any employees who appear to have symptoms of an acute respiratory illness.

As a practical matter, employers who show flexibility with sick leave and attendance policies may facilitate more transparency by employees about their health. This, in turn, can help reduce the risk of exposure among the broader workforce. For example, employees who have exhausted their sick leave may be reluctant to disclose symptoms of coronavirus and/or miss work for fear that missing additional time will jeopardize their employment. Further, because medical providers may be busier than usual as a result of the coronavirus, employers may desire to be more flexible with employees about when employees must provide certification of a medical condition that renders them unable to work.

Employers should understand that implementing precautionary steps in the workplace has its limits. For example, some employers may wish to take the temperatures of employees because an elevated temperature is one common indicator of the coronavirus. The Americans with Disabilities Act (“ADA”), which regulates employer disability-related inquiries and medical examinations, generally prohibits covered employers from requiring medical examinations of employees unless they are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that (i) an employee’s ability to perform essential job functions will be impaired by the medical condition or (ii) an employee will pose a direct threat to others due to the medical condition.

In 2009, in conjunction with the H1N1 flu pandemic, the Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document on how employers should handle the workplace implications of that pandemic in conjunction with the requirements of the ADA. The EEOC emphasized that whether a pandemic influenza rises to the level of a “direct threat” (such that it cannot be eliminated or reduced by a reasonable accommodation) depends on the severity of the illness. At the time, the EEOC added that if the CDC or state or local public health authorities determine that a pandemic influenza is significantly severe, it could rise to the level of a direct threat.

To date, the CDC has made no such determination of a pandemic with respect to the coronavirus. Even if the CDC ultimately makes such a determination, we strongly recommend that employers discuss any contemplated mandatory medical tests or examinations of employees, including temperature-taking, with their counsel before adopting or implementing them.

Importantly, if exposure to the coronavirus occurs in the course and scope of the employee’s work, it may constitute an occupational hazard under the federal Occupational Safety and Health Act. OSHA regulations may also be implicated if the employer uses enhanced sanitation techniques with stronger chemical products during the outbreak.

6. Suspend or Limit Business Travel

Employers should consider prohibiting or strictly limiting business travel to countries and regions that pose a high risk of transmission of the coronavirus. In that regard, the CDC has established geographic risk stratification criteria in order to issue travel health notices and guidance for public health management decisions about potential travel-related exposure to the coronavirus. The CDC’s three stratification levels are based on a number of factors such as the size, geographic distribution and epidemiology of the outbreak.

Countries designated by the CDC as “Level 3” involve widespread sustained transmission, and currently include China, Iran, Italy and South Korea. The CDC recommends that non-essential travel to Level 3 countries should be avoided, and the US government has imposed entry restrictions from certain Level 3 countries. Accordingly, employers should immediately suspend non-essential business travel to Level 3 countries and should also require anyone who travels to a Level 3 country to remain out of the office for a period of at least 14 days following their return, even if an employee has no symptoms of the virus.

The CDC designates as “Level 2” those countries in which there is sustained community transmission of the coronavirus; Japan is presently the only Level 2 country. The CDC has recommended that older adults and those who have chronic medical conditions should consider postponing travel to Level 2 countries. Employers should bear these points in mind when determining whether to restrict business travel to Level 2 countries.1 The CDC’s list of countries within its risk stratification is likely to grow as the coronavirus continues to spread globally.

Employers should also consider whether to change their travel policies regarding places that are not on the CDC’s list and how any such changes may impact the efficacy of their business operations. There is no “one-size-fits-all” approach, as every employer has different operational needs. But as the coronavirus continues to spread within the United States, some employers may decide to suspend all non-essential business travel both outside and within the United States, at least for a limited period of time, or permit employees to opt out of non-essential business travel. Employers should also give serious consideration to cancelling, postponing or rescheduling company meetings or group events (e.g., retreats, sales meetings, trade shows, etc.) to minimize the risk of large numbers of employees coming into contact with the virus at one time. In some instances, videoconferencing may be a reasonable alternative to in-person meetings.

In the event employees refuse to travel for work, employers should consult with counsel before taking any steps, particularly if a group of employees jointly makes such a request, as the employer’s response should be tailored to the specific circumstances.

Importantly, employers cannot prohibit employees from personal travel, even to areas known to be affected by the coronavirus. However, employers should communicate with employees regarding their travel plans before they depart and should advise them of the implications of such travel. For example, it is reasonable for employers to ask employees where they plan to travel and to advise employees whether, based on the currently available information, they will need to self-quarantine for 14 days upon returning. Employers should also advise employees to check the CDC’s Travelers’ Health Notices for the latest guidance and recommendations for travel to each country. . Further, employers should ensure that employees understand that if they become sick while traveling or upon their return, they should contact their healthcare provider and their supervisor immediately. Employers should apply their travel policies (and all other policies) uniformly and in a non-discriminatory manner so that there is no disparate treatment of employees in any particular protected classes. For example, employers cannot single out employees of a particular national origin or race. Employers should also closely monitor any reports of alleged disparate treatment of their employees.

7. Quarantine Potentially Exposed Employees, Even if They Do Not Exhibit Symptoms

Both the federal government and some state and local governments have placed restrictions on entry to the United States from certain countries. Specifically, for individuals returning from certain countries designated by the CDC as Level 3, employees must be quarantined for a period of 14 days, the incubation period for the coronavirus. Employers may want to consider following this practice with respect to Level 2 countries as well, in order to slow the potential spread of the virus. Employers should require that if any employees become ill during a quarantine period, they should seek medical care and may return to work only after they have received appropriate clearance from their medical provider.

When deciding whether to quarantine any employees and when dealing with employees required by governmental authorities to be quarantined, employers may need to address how to compensate such employees, particularly those who cannot work remotely during the quarantine period. Generally, subject to any contractual obligations that an employer may have, employers are permitted to require employees to use paid time off, provided that they do not work during that time.

However, if the employer is dealing with unionized employees, there may be an obligation to negotiate with the union regarding quarantine policies because they may alter the terms and conditions of employment, which include wages and hours of work. Depending on the terms of the collective bargaining agreement, the employer may have the right to send an employee home but may still have to pay the employee based on the union-rights clause.

If the employer is dealing with overseas employees, the employer will need to comply with the laws of that country. If employees are quarantined abroad, the employer should explore the possibility of permitting them to work remotely. If the employer has foreign national employees quarantined outside the country, it will not impact their obligation to maintain lawful immigration status but may trigger other immigration issues.

As the coronavirus spreads, employers may also encounter an increasing number of employees who wish to self-quarantine or self-isolate to protect themselves from workplace exposure to the virus. To the extent employers have the flexibility to allow employees who wish to self-quarantine to do so, that may go a long way to show support for employees in an obviously stressful and evolving situation; however, not all employers have this flexibility, and they also have to focus on keeping their businesses operating. Notably, employees generally are not entitled to FMLA, sick leave, or other reasonable accommodation leave under the ADA if they wish to stay at home to avoid getting sick if there is no indication of any imminent danger of being exposed to the virus.

8. Consider Having Non-Essential Employees Work Remotely

In the digital age, it may be possible for employers to encourage many employees whose presence in the workplace is not essential to work remotely. Employers should consider the security risks of allowing employees to work remotely and should also take steps to provide IT support and equipment for employees who may be able to work remotely but have not historically done so. Employers should also ensure that they have a mechanism in place to ensure that such employees are paid for all hours worked, particularly with respect to nonexempt employees, and that they are provided or reimbursed for all necessary work-related expenses in accordance with applicable laws.

Employers may well see increases in absenteeism in certain locations, particularly if schools remain closed for periods of time and employees have young children. Employers should consider whether cross-training essential job functions among employees may help to alleviate the effects of increased absenteeism.

Importantly, employers may not base work-from-home and/or quarantine decisions on an employee’s national origin. Decisions should be applicable to all similarly situated employees based on their potential exposure to the coronavirus.

9. Be Mindful of the Interplay Between Sick Leave Laws and Policies, the FMLA, ADA, HIPAA and Workers’ Compensation

When dealing with the coronavirus, as with any instance of employee illness, employers should keep in mind that many different laws and policies may be implicated. If an employee communicates that he or she or an immediate family member has been diagnosed with the coronavirus, the employer generally should follow its existing sick leave, medical and other leave and workers’ compensation policies. For example, the Family and Medical Leave Act (“FMLA”) and state counterparts may be triggered if the virus becomes a serious health condition. Under many state and local sick leave laws, such employees must be permitted to use accrued paid sick leave. In addition, if the illness arises out of or in the course of employment, workers’ compensation benefits may be triggered.

A potentially thorny issue arises with regard to employees who may not have been diagnosed with the coronavirus but who either are exhibiting symptoms that could also be associated with a cold or the flu, or who are asymptomatic but under self-quarantine due to travel to a Level 3 country or exposure to someone with the virus. In those circumstances, particularly where no public health emergency has been declared, the employee is likely not entitled to unpaid leave under the FMLA or paid sick leave. Employers can require employees to use vacation or accrued paid time off for the absences. Importantly, to the extent employers require employees to take time off, they must ensure that employees are not working. This can be challenging, particularly with exempt employees, who often have access to their work emails and may respond to emails, answer calls, or perform other work during the workweek, as they are then entitled to their salary for the week. Accordingly, employers should clearly state their policies regarding work-from-home in these situations. As discussed above, in order to facilitate transparency by employees about their health conditions, employers should consider whether they nonetheless want to pay employees for mandated time off without requiring employees to use their accrued time off.

Employers also should be mindful of their obligations under the ADA and related state law counterparts. While the coronavirus is, for many infected individuals, a temporary and mild condition that may not progress to the level of a disability, the ADA prohibits employers from discriminating against employees whom the employer perceives as disabled. It also is possible that employees infected with the coronavirus may develop more serious problems that constitute actual disabilities. If so, employers will need to consider the required “interactive process” under the ADA and whether reasonable accommodations, such as an additional leave of absence, might enable the employees to return to work or otherwise perform the essential functions of their jobs, as well as any corresponding undue hardships.

If an employee misses work for his or her own illness due to the coronavirus, employers may (and arguably should) require a medical certification from the employee’s physician before permitting the employee to return to work.

Further, confidentiality should be maintained with respect to employees who have or may have the coronavirus, consistent with the privacy protections of the Health Insurance Portability and Accountability Act (“HIPAA”). Employers should not disclose the name of any infected employee(s) to their co-workers or any information regarding their medical condition.

10. Screen Visitors to the Workplace

Employers have a duty to protect visitors to the workplace from hazards that are not open and obvious. If an employer is aware of known cases of coronavirus infection among its employees, the employer may have an obligation to notify visitors. If the employer is also a landlord, the employer may have additional obligations to notify tenants of known infection events.

By the same token, visitors to the workplace, including vendors and delivery persons, should be screened for exposure to or symptoms of coronavirus and should be excluded from the workplace if they exhibit symptoms consistent with the coronavirus.

Summary

The coronavirus continues to expand globally and rapidly, with new developments and outbreaks happening almost daily. Accordingly, it is imperative for employers to communicate with the workforce, take health and safety precautions, monitor information about the virus, and plan and prepare for emergencies.

For employers who do not already have one, we recommend that they adopt a sickness prevention and communicable diseases policy, as the coronavirus is but one of a long list of communicable diseases, such as measles, Severe Acute Respiratory Syndrome (“SARS”), and tuberculosis. The policy should include notification to employees of the types of communicable diseases covered by the policy, a statement that the employer will not discriminate against any job applicant or employee based on the individual having a communicable disease, and a statement that the employer will comply with statutes and regulations relating to the employee’s privacy. Mayer Brown has worked with a number of clients in developing such policies.

We also recommend that all employers consult with their labor and employment counsel about any legal issues that relate to the coronavirus and its impact on the workplace.


1 The CDC has not explicitly suggested travel restrictions related to Level 1, its lowest level of risk stratification. Hong Kong is the only location presently designated as Level 1.

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Do Employees Have Any Protections From Being Laid Off?

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

While employers are generally free to conduct layoffs at any time, even at-will employees have some protections.

In the United States, employers have a great deal of leeway in conducting layoffs. This doesn’t mean every layoff is legal, however. Employers may not discriminate based on certain protected characteristics in deciding who loses their jobs, for example. Employers also may not lay off an employee if it would violate an employment contract. And, larger employers may have to give employees notice of a layoff in advance.

Employers Must Not Discriminate in Layoffs

Most employees in this country work at will, which means they can quit or be fired at any time, with or without cause, as long as the employer doesn’t fire them for an illegal reason. One illegal reason is discrimination based on a characteristic protected under federal or state law, such as race, national origin, or gender. Employers that use the layoff process to discriminate against employees based on a protected trait can be sued.

For example, if an employer uses a layoff as a pretext to get rid of most of its female employees, that would be illegal. Whether the job action is called a termination or a layoff, it is illegal to make job decisions based on protected characteristics.

Employment Contracts May Offer Protections

Some employees have written employment agreements that guarantee continued employment for a period of time, such as one year. If you have a contract like this and you are laid off for reasons that aren’t stated in the contract, you might have a legal claim for breach of contract.

Even if you don’t have an individual employment contract, you might have other contractual protection against layoffs. If you are a union member, your collective bargaining agreement might spell out the circumstances in which you can be laid off, or the process that your employer must follow in deciding which employees lose their jobs. Talk to your union representative to find out.

In addition to the right to notice under the WARN Act and similar state laws, you have the right to any severance promised in your employer’s policies, your employee handbook, or your employment contract.

Federal Law Requires Advance Notice of Mass Layoffs

The federal Worker Adjustment and Retraining Notification (WARN) Act requires employers with 100 or more employees to give at least 60 days’ notice before conducting a mass layoff: a reduction in force in which at least 500 employees at a single job site will lose their jobs, or in which 50 to 499 employees lose their jobs if they make up at least one-third of the employer’s work force.

Employers must also give 60 days’ notice of plant closings: the shutdown of a single employment site, operating unit, or facility, in which at least 50 employees lose their jobs.

The WARN Act requires only that employers give notice; it doesn’t protect employees from layoffs, nor does it require employers to pay any severance. Some states have similar laws requiring notice, and a few require employers to pay a small amount of severance.

Your Rights in a Layoff

Even if you don’t have the right to keep your job, you might still have certain rights in a layoff. In addition to the right to notice under the WARN Act and similar state laws, you have the right to any severance promised in your employer’s policies, your employee handbook, or your employment contract. For example, if your employee handbook states that employees who are terminated will receive severance of one week’s pay for every year of employment, you are entitled to that severance pay when you are laid off.

In addition, you have the right to receive your final paycheck relatively quickly after you lose your job. Some states, such as California, require employers to provide the final paycheck immediately upon termination. Other states give employers more time: For example, Vermont requires payment within 72 hours, while New York requires payment by the next regularly scheduled payday.

You may also have the right to continue your group health insurance plan under the federal COBRA law.

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Bryan A. Chapman, Esquire

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“Can I Be Fired for Using Medical Marijuana?”

By Bryan A. Chapman, Esquire

Medical marijuana use is legal in approximately 33 states and the District of Columbia. In the District of Columbia, a licensed physician can recommend medical marijuana for conditions, such as: HIV, AIDS, cancer, glaucoma, conditions characterized by severe and persistent muscle spasms, such as multiple sclerosis; patients undergoing chemotherapy or radiotherapy, using azidothymidine or protease inhibitors, decompensated cirrhosis, Lou Gehrig’s disease, Cachexia or wasting syndrome, Alzheimer’s Disease, and seizure disorders.

ISSUE:

In a state or locality where medical marijuana use is legal, can a registered medical marijuana user, with a recommendation from a licensed physician, be fired from their job for using medical marijuana during off hours to treat a debilitating medical condition? The answer is complicated.

 CURRENT STATUS:

State and local laws concerning the protection of registered medical marijuana users are quickly evolving across the country.  The trend is to give registered medical marijuana users greater protection against being terminated by their employers.  A registered medical marijuana user who is using medical marijuana to treat a debilitating medical condition may be entitled to a reasonable accommodation under some state and local laws.

 WHAT EMPLOYEES NEED TO KNOW ABOUT D.C.’S MEDICAL MARIJUANA LAWS.

As of September 2019, the District of Columbia has a new law that protects District of Columbia government employees who are medical marijuana users.  Act Number A23-0114 is called The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act.

The Act states, “A public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying [medical cannabis] patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.”

The law does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.

Act Number A23-0114 specifically protects District of Columbia government employees but it does not protect District of Columbia private sector employees.  Nationally, state and local laws do not protect public or private sector employees who: 1) use or possess marijuana during hours of employment, and/or 2) are impaired by marijuana during hours of employment.

In the past, an employer could terminate an employee who tested positive for marijuana.  However, the current trend, in the law, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition.  This is particularly the case in localities and states where medical marijuana is legal and reasonable accommodation laws exist that specifically protect employees who are medical marijuana users. 

Currently, the District of Columbia’s laws do not protect private sector employees who are medical marijuana users.  Whitmere v. Wal-Mart Stores, Inc., 359 F.Supp. 3d 761, 778 (Dist. Court, D. Arizona 2019); Coles v. Harris Teeter, LLC, 217 F. Supp. 3d 185, 188 (Dist. Court. District of Columbia 2016) (“As the courts in those cases concluded, the District here can at most be said to maintain a public policy that decriminalizes and allows the consumption of marijuana for private medical reasons. That is a far cry from prohibiting employers from terminating such users.”) Furthermore, the Americans with Disability Act (ADA) does not protect medical marijuana users from termination by their employers either.

However, in light of Act Number A23-0114, which protects District of Columbia government employees who are medical marijuana users, one has to wonder whether the District of Columbia court, D.C. Superior Court, would determine that private sector District of Columbia employees, who are medical marijuana users, have similar protection. Filing a disability claim under the D.C. Human Rights Act may be the test.

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I will fight for you.

By Bryan A. Chapman, Esquire

I am a civil rights lawyer whose focus is employment discrimination. I have been fighting for workers against powerful employers since 1993. I practice before the EEOC and in the federal courts. I am a graduate of Dartmouth College and the University of Wisconsin-Madison law school.

If you are experiencing workplace discrimination, fighting back generally begins with filing a discrimination complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC complaint process does not require the presence of a lawyer. Today, much of the EEOC complaint process is conducted on-line or by telephone.

However, if you do not have an experienced lawyer advising you, the EEOC complaint process can be brutal. You will be going up against your employer’s highly experienced lawyers. Workplace anti-discrimination laws give employers a huge advantage over workers. The outcome is predictable, employers win 98% of the time at the EEOC.

For Help Call (202) 508-1499

Filing a discrimination complaint with the EEOC is just one of several options. In fact, filing a discrimination complaint with the EEOC may not be your best option. There are federal laws, such as Title VI, Title IX, 1983, and 1981, that do not require that you file a complaint with EEOC and that allow unlimited damages. There are also state and local agencies that offer advantages. I can provide you with effective advice no matter where you live.

Ideally, you should consult with me prior to filing a complaint with EEOC or its partner agencies. I will help you settle your case for as much as possible, quickly and at minimum expense. For instance, EEOC has a mediation program that facilitates settlements.

I will do the following: 1) analyse the facts of your case, 2) apply the relevant laws, 3) discuss your options with you, and 4) guide you through the complaint process. Again, I can provide you with effective advice no matter where you live.

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Bryan A. Chapman, Esquire

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EEOC Complaints: Everything You Need to Know

Source: UpCounsel

A company with more than 14 employees are subject to the EEOC stepping in. 

What Are EEOC Complaints?

EEOC complaints are handled by the Equal Employment Opportunity Commission (EEOC), the body responsible for investigating discrimination complaints based on religion, race, national origin, color, age, sex, and disability. A company with more than 14 employees is subject to the EEOC stepping in. Every employee has the right to file an EEOC complaint, not only those who feel like they have been discriminated against.

Inspection Procedure

The employer supplies documents and other information relevant to the case when a worker files a complaint. These items include copies of HR policies and any personnel files after the EEOC has followed up with a formal request. Although disruptive to the company and overall operations, the EEOC staff may also visit the office.

During the work day, the staff may ask the employer for employee interviews. The EEOC can still contact employees outside of work without the employer’s permission. Even if an EEOC complaint has numerous advantages, the employer is going to have to invest time, effort, and sometimes money to deal with it. The EEOC notifies the employer and then asks for a “statement of position,” granting an opportunity to hear the story from this perspective.

Typical EEOC Complaint Investigation Proceedings

The activities carried out are just for finding facts; information found by the EEOC is used to figure out if the complaint requires further action. From there, the process will turn into a formal investigation, which takes up more money and time. A typical EEOC investigation period lasts six months, but each case varies.

During this time, the employer may be prohibited from destroying documents of any kind without prior permission. Employers should hire a lawyer for counsel. 

Robin Shea, who is a partner in a law firm, says employers can influence an investigation, especially when not working with a lawyer. By unintentionally admitting a violation occurred or providing too many details, employers moving forward without a lawyer can turn even the most trivial complaint into a full-blown investigation.

How Does an EEOC Complaint Hurt an Employer?

Once the Equal Employment Opportunity Commission (EEOC) receives a complaint that an employer illegally discriminated against its workers, that employer may be in for a long period of legal issues.

During the ensuing months, time-consuming official requests are made to acquire more information in addition to or in the form of:

  • Intrusive investigations
  • Large legal bills
  • Negative publicity
  • Expensive damages (if the complaint is upheld)

EEOC Complaints and Costs of Litigation

Employers can avoid an EEOC investigation if they agree to attempt to mediate or settle the complaint. This will likely result in the employer having to change its procedures and policies. They may also be responsible for compensating anyone who complained. However, employers don’t have to admit any liability or guilt, and agreements remain private.

The EEOC may sue the employer if said employer will not mediate, or if the EEOC determines the case goes beyond what mediation could offer and is far more serious. The employees who filed the complaint can still sue even if the EEOC decides not to. Regardless of who sues, litigation proceedings are a considerable cost for the employer and can produce some bad publicity, as well.

Indemnifications and Penalties

This depends on the nature of the complaint, but may include paying back wages, reinstating their job, or giving them a promotion. In addition, employers will be required to pay the complainants’ court and legal fees. However, things definitely get more expensive if there’s a trial.

Damages will be awarded to any employees who filed complaints by the court. Damages are as follows:

  • 15 to 100 employees: $50,000 per person
  • 101 to 200 employees: $100,000 per person
  • 201 to 300 employees: $200,000 per person
  • More than 300 workers: $300,000 per person

For the Employee: How to File an EEOC Charge of Discrimination

When facing workplace harassment or discrimination, your first step should be complaining internally using the procedures detailed in your employee handbook or other policies outlined in the onboarding process. When your complaints aren’t met or you feel unsatisfied, you may file a discrimination complaint with the EEOC or a similar agency in your state to handle these proceedings.

The EEOC has a very well-defined process for handling complaints compared to most government agencies. It usually operates through a network of offices and places strict deadlines for complaint filing, usually ranging from around 90 days and up to almost a year. Employees are advised to pay close attention to the deadline when deciding to file against something they believe is illegal or discriminatory in the workplace.

If you think your rights have been violated, think about filing discrimination claims with the EEOC. They will reach out to both you and your employer within 10 days. Shortly after, they will begin the investigation of your claim. If they find that your employer violated anti-discrimination laws, the options are a settlement with the employer or taking the case to court.

You may also file a complaint as a U.S. citizen employed by a U.S.-based company that has operations abroad. Simply file your charge(s) with the EEOC district office in the city or state closest to your employer’s U.S.-based headquarters.

What to Do Before Filing Charges

Things you will be asked when filing:

  • Personal information, including name, telephone number, and address
  • The above information of your employer, plus the number of employees in regard to your employer/employment agency or any other alleged entity part of the discrimination
  • A short description of the alleged violation
  • Date(s) of when the discrimination/alleged violation(s) took place

If you are a federal employee, have a look at the agency’s Overview of Federal Sector EEO Complaint Process. Note that the EEOC does not process discrimination charges online. The EEOC’s online assessment tool is designed to assist in determining whether filing charges with the agency is the best course of action.

Where to File

Complaints can be filed at local equal employment opportunity agency offices. These are state and local agencies (not federal) that are official representatives of the EEOC. A state that has its own equal employment opportunity laws will be allowed 300 days after the act of discrimination occurred to file the complaint. A state that does not have its own equal employment opportunity laws only has 180 days to file.

Filing a Title VII Lawsuit

When you file your discrimination claim with the EEOC, be aware that the agency pursues only a small fraction of the charges it receives. If EEOC does not act on your complaint within 180 days, you are responsible for requesting a right-to-sue letter that authorizes you to file a lawsuit in federal court against the offending employer.

Upon receiving the right-to-sue letter, you have only a short period (90 days) to file a lawsuit, so be mindful of the deadlines for the Title VII process. The EEOC’s out-of-pocket expenses are limited by law to $5,000 per lawsuit—thousands of dollars less than it typically costs to take an employment discrimination case to court.

Time Limits for Filing Charges

Employees are advised to contact the EEOC immediately after you believe there is any discrimination on behalf of your employer. You’ll have less than a year (300 days) to file.

Tips for Dealing With the EEOC

Keep these things in mind to help get your claim through the EEOC bureaucracy in the most efficient manner:

  • Be vigilant and check in with the EEOC to learn more and discuss your case.
  • Be assertive and bring any additional EEOC issues to the attention of whoever is helping you with your case.
  • Read—and reread—any fine print to be sure to give a detailed look before signing anything.

Keep options open when filing for an EEOC complaint. Keep in mind that you still have the ability to try to solve the issue(s) at hand on your own or go through the complaint procedure suggested by the company.

Retaliation for Discrimination Complaints

Whether the file is with a state civil rights commission or the Equal Employment Opportunity Commission, many worry that their employer will seek retribution after, since they’re not above discriminating or allowing discrimination. The law prohibits this type of retaliation.

Grounds for discrimination complaints are strong when an employee was fired due to his or her race, or was denied an accommodation for his or her disability. Whether it’s believed you were denied a promotion due to your age, or were harassed because of your religion, you may win or lose your claim.

The EEOC, or other civil rights enforcement agencies, make protecting the process’s integrity a high priority. Any company can by prosecuted for seeking retribution. 

Any person that filed a discrimination complaint should be careful not to alter their behavior. A common fear is that their employer might now be “afraid of them” and can take this as an opportunity to let them go or fire them, for example. In the aftermath of a complaint, both sides will need to monitor behavior more closely and any and all actions will be more carefully documented during this time.

What to Do If Retaliated Against

Should you decide to exercise your rights under the anti-discrimination laws and your employer responds negatively toward you for doing so, you can take action in return. If the complaint was made internally within the company, first talk to the person who took your original complaint or speak directly with the company’s HR department.

When you file your charge of retaliation, you’ll need to review the incident, including when and who the person responsible was. Give as much detail as possible.

What Is Retaliation?

This simply means an employee has been discriminated against because they have filed a complaint.

Employees are protected from retaliation or from participating in an investigation when it comes to harassment or discrimination. For example, an employer may not fire an employee simply because the employee reaches out to an EEOC investigator or supports a colleague’s complaint against discrimination at the company.

EEOC Actions

Once the charge is filed, the EEOC can respond in a number of ways. It will most certainly ask your employer to respond to your allegations and might proceed to investigate your claims or send you and your employer to mediation. Mediation is an amicable step to try to resolve the dispute informally, as is trying to broker a settlement directly with your employer.

If the EEOC doesn’t resolve the problem with one of the above methods, it can choose to file a lawsuit against the employer for you.

Common Reasons for Not Filing Complaints

Here are a few frequently heard explanations:

  • “It takes too much time.” If a case is hard-fought and goes to federal trial, it can take years (even on appeal), though few cases run that course.
  • “I don’t want to be seen as a whiner.” An employee who doesn’t believe in the anti-discrimination laws will often have this perspective.
  • “Even after what I’ve been through, I don’t want to hurt my boss.” Often, employees tend to be scared to hurt their boss and never wants to file a complaint against their supervisors.
  • “I don’t want to be disloyal to my company.” Correcting unfairness ultimately will make an employer more effective by ending a bad corporate practice.
  • “I don’t have, or can’t afford, a lawyer.” Some employees simply might not have the funds to work with a lawyer.

People have been advised to come up and report illegal discrimination. However, some groups appear even more cautious than others, like immigrant groups or Asian Pacific Americans, who file discrimination complaints at a lower rate than other groups.

Schedule a Consultation With a Civil Rights Attorney

It’s difficult to take action for your civil liberties and civil rights violations on your own. When you begin to feel that either of these have been violated, then you should talk to an attorney to get a professional opinion. An experienced civil rights attorney knows the differences between these basic rights and can help you with a possible claim.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

EEOC COMPLAINTS: 5 TIPS TO HELP YOU WIN YOUR CASE

SEPTEMBER 2019

Matthew K. Fenton

EEOC

If you feel you have experienced discrimination at the hands of an employer, filing an EEOC complaint is the first step you can take to hold them accountable. However, that is just one step.

If you are wondering how to win an EEOC claim, the following tips will help. If you have filed an EEOC complaint and want to ensure the best possible outcome, keep them in mind.

HOW TO WIN AN EEOC COMPLAINT: WHAT YOU NEED TO KNOW

1. Hire a Qualified Attorney

hire an attorney to represent your EEOC complaint

EEOC complaints do not necessarily have to result in court cases. Although this can potentially happen, typically, you may be able to resolve the matter earlier through negotiations directly between your counsel and counsel for your employer or mediation. The EEOC offers mediation services. Private mediators may also be called on to assist. This process involves discussing the complaint with a third party mediator listening to both your side and your employer’s side of the story. Employers are sometimes willing to settle to avoid drawn-out court cases.

Even if your case does not go to court, it is likely the employer against whom you have made the complaint will be represented by counsel during mediation. Therefore, you should hire an employment law attorney to maximize your odds of securing an ideal outcome. You need someone on your side who understands employment law, and who has the expertise to match that of the employer’s counsel and can take steps to move your case forward which would not be available to you simply as a function of the EEOC conducting their investigation. Whether you resolve your case through mediation or take your case to court, it simply will not be a fair fight if the employer has assistance from counsel and you do not.

2. Maintain Composure

Mediators handle sensitive issues. Often, all parties involved may feel strong emotions about the situation and how it is being addressed, which is understandable.

If you feel as though you have been discriminated against, you want to ensure the outcome of your claim is just. However, do not make the mistake of letting your emotions impact your behavior during mediation. While you may want to contact the mediators prior to your mediation to ask how you should prepare, if you do so, maintain your composure and be respectful. It is important to make the right impression.

This is another good reason to hire a qualified EEOC mediation lawyer. They can let you know how to prepare, and let you know whether contacting the mediator ahead of time is even a wise idea. Your attorney will also represent your case calmly and professionally. Your counsel has a duty to represent YOUR interests and thus fills a role very different from the EEOC investigator. Doing so is key to avoiding the consequences that can arise when you let anger or other emotions determine your behavior both before and during mediation.

3. Prepare Relevant Documentation

provide documentation to help win your eeoc complaint

Ideally, your employer will be truthful during mediation. That said, do not make the mistake of assuming they will tell the truth at all times. They may omit facts, exaggerate, or simply lie. You need to be prepared to catch them in their dishonesty when this happens.

That is one of the main reasons it is essential to prepare all relevant documentation before your mediation begins. For instance, perhaps the employer makes a claim you could refute with emails. You want them to be immediately available to you during mediation to ensure a fair process. An employee rights attorney can assist you with such tasks. They will help you identify what types of documentation would be relevant to your complaint, making certain you do not overlook anything.

It is worth noting you also need to be entirely truthful yourself during mediation. Although mediators are supposed to be neutral, they are still people. Even slightly misrepresenting the circumstances that resulted in your initial complaint will negatively impact a mediator’s opinion of your credibility. Once more, this is a good reason to coordinate with an experienced legal professional who can help you avoid any missteps that may be interpreted as deceit.

4. Consider Reaching Out to Coworkers

Reaching out to coworkers can be a tricky subject. Speak with your attorney before taking any action on your own in this capacity.

That said, there are many potential instances when coworkers may be able to support your claims. If your complaint is related to disparate treatment, meaning you were treated differently than other employees for the same behavior (due to race, gender, age, etc.), you might also be able to identify examples of other employees who were not treated as you were. Coworkers may be able to confirm this as well.

Reaching out to coworkers to gather statements supporting your complaint might be a good idea if your attorney advises you to do so. If they recommend this step, coordinate with them closely to avoid making critical mistakes. For instance, even if you do have substantial comments from others supporting your claims, you may not want to reveal the identities of the people who made those comments during mediation. The employer may feel they could reach out to those employees and convince them to alter their account once they know who they are. An EEOC mediation lawyer will ensure that, if you would benefit from gathering coworker statements, you will not make any errors during the process of collecting and sharing them.

5. Be as Professional as Possible

be professional during your EEOC meditation to help win your complaint

You will make a good impression if you show up to mediation on time, dressed as if this were a court proceeding, and demonstrate professional and respectful behavior to all parties involved. Although this may be obvious to some, it is not always the case and is worth noting. The impressions you make can influence the outcome of the mediation. Additionally, it’s a good idea to get proper rest before mediation begins. The process can be somewhat lengthy, and you do not want fatigue to set in.

THE TAKEAWAYS

The most important point to take away from all these tips is a simple one – trust your attorney. There is a good chance this is your first experience filing an EEOC complaint. Even if it is not, you probably do not have the legal expertise necessary to guarantee an ideal outcome.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

How to Respond to Microaggressions

Should you let that comment slide, or address it head on? Is it more harm than it’s worth? We can help.

Credit…Derek Abella

By Hahna Yoon

March 3, 2020

For many of us, microaggressions are so commonplace that it seems impossible to tackle them one at a time. Psychologists often compare them to death by a thousand cuts.

The metaphor is both the subtitle to a paper that Kevin Nadal, professor of psychology at John Jay College, wrote about the impact of microaggressions on L.G.B.T.Q. youth, and the title of another paper on the health implications of black respectability politics by Hedwig Lee, professor of sociology at Washington University in St. Louis, and Margaret Takako Hicken, research assistant professor at the University of Michigan. The phrase is commonly found in additional studies on the topic.

I felt my thousandth cut a few Novembers ago standing outside a bar as my friend’s boyfriend explained to me the concept of American Thanksgiving. From the time in fourth grade when my teacher made me read the part of “slanted-eyed child” in a play to every time a stranger in the online dating world told me he “loves Asian women,” I have been pressed with the dilemma of how I should react to these seemingly small lacerations. Should I respond? Is it worth it?

When I tell people that I am writing about microaggressions, most — even some of my closest friends who are women of color — ask me why. It’s tempting to ignore microaggressions, considering blatant, obvious discrimination is still a real problem, but the buildup of these “everyday slights” has consequences on a victim’s mental and physical health that cannot be overlooked. The normalization of microaggressions is antithetical to a well-rounded society with equal opportunities for marginalized individuals.

So many of us ask the same questions: Was that really a microaggression? Is this worth tackling? What should I say and how should I cope? Or worse, we’ve convinced ourselves that the questions are not even worth asking. Dancing in circles myself, I weigh in with experts who have witnessed microaggressive acts and had them share their insights based on years of research and data.

Originally coined in the 1970s by Chester M. Pierce, a Harvard psychiatrist, today’s definition of a microaggression can be credited to Derald Wing Sue, a professor of counseling psychology at Columbia University. Since 2007, he has written several books on microaggressions, including “Microaggressions in Everyday Life: Race, Gender, and Sexual Orientation.” In it, Dr. Sue writes that microaggressions are the everyday slights, indignities, put-downs and insults that members of marginalized groups experience in their day-to-day interactions with individuals who are often unaware that they have engaged in an offensive or demeaning way.

Microaggressions are often discussed in a racial context, but anyone in a marginalized group — be it as a result of their gender, sexual orientation, disability or religion — can experience one.

Microaggressions can be as overt as watching a person of color in a store for possible theft and as subtle as discriminatory comments disguised as compliments.

The first step to addressing a microaggression is to recognize that one has occurred and dissect what message it may be sending, Dr. Sue said. To question where someone is from, for instance, may seem fairly innocuous but implicitly delivers the message that you are an outsider in your own land: “You are not a true American.” Subtle actions, like a white person’s clutching a purse closer as a darker-skinned person approaches, are nonverbal assumptions of criminality and examples of microaggressions.

While there has been debate about the definition of microaggressions and how they should be addressed, Dr. Sue says their existence is impossible to dispute. “When I talk about the concept of microaggressions to a large audience of people of color and women, I’m not telling them anything new, but it provides them with a language to describe the experiences and the realization that they’re not crazy,” he said.‘You Don’t Want to Make It a Big Deal, but It Is’A play at Harvard explored microaggressions and their impact.VIDEOMicroaggressions: Comments That Sting

Discrimination — no matter how subtle — has consequences. In 2017, the Center for Health Journalism explained that racism and microaggressions lead to worse health, and pointed out that discrimination can negatively influence everything from a target person’s eating habits to his or her trust in their physician, and trigger symptoms of trauma. A 2014 study of 405 young adults of color even found that experiencing microaggressions can lead to suicidal thoughts.

For many members of marginalized groups, it is easy to believe that simply growing a thick skin will provide protection from these experiences. However, Dr. Nadal argues that the consequences of microaggressions are real, whether or not you believe yourself to be numb to them.

“Experiencing the spectrum of racism — from microaggressions to systemic oppression to hate violence, may negatively affect people whether someone is aware of it at all,” Dr. Nadal said. “If the person who committed the microaggression is in your life, it can always be worth bringing up. In the same way that a family member or friend may hurt you and it takes years to recover, the impact of a microaggression can be long-lasting too.”

When discussing microaggressions, people from privileged backgrounds often say marginalized individuals are simply overreacting. Dr. Alisia G.T.T. Tran, an associate professor of counseling and counseling psychology at Arizona State University, disagrees. She says that most people actually ignore and shake off a lot of microaggressions. “They have no choice, they’re so common, and you can’t fight every battle — but these things can stay with you or build up,” she said. She and many other psychologists say that responding to a microaggression can be empowering, but with so many battles, how do you decide which to fight?

To help, Dr. Nadal developed a tool kit called the Guide to Responding to Microaggressions. It lists five questions to ask yourself when weighing the consequences of responding to a microaggression.

  • If I respond, could my physical safety be in danger?
  • If I respond, will the person become defensive and will this lead to an argument?
  • If I respond, how will this affect my relationship with this person (e.g., co-worker, family member, etc.)
  • If I don’t respond, will I regret not saying something?
  • If I don’t respond, does that convey that I accept the behavior or statement?

Diane Goodman, a social justice and diversity consultant, says the process is unfair, but having to decide whether or not to take action is inevitable in today’s society. “The emotional labor should not have to fall on people from marginalized groups. In the real world, people are confronted with microaggressions and people need to decide what they want to do.”

Before moving forward with confronting the microaggression, she recommends you assess the goals of your response: Do you simply want to be heard? Or are you more interested in educating the other person and letting them know they did something wrong?

Even once you have decided that you can respond to a microaggression, knowing what to say or how to behave can be nerve-racking. In his research on disarming microaggressions, Dr. Sue uses the term “microintervention” to describe the process of confronting a microaggression. “Unless adequately armed with strategies, microaggressions may occur so quickly they are oftentimes over before a counteracting response can be made,” he said.

While your response will vary by situation, context and relationship, Dr. Goodman recommends memorizing these three tactics from her list of prepared statements.

Ask for more clarification: “Could you say more about what you mean by that?” “How have you come to think that?”

Separate intent from impact: “I know you didn’t realize this, but when you __________ (comment/behavior), it was hurtful/offensive because___________. Instead you could___________ (different language or behavior.)”

Share your own process: “I noticed that you ___________ (comment/behavior). I used to do/say that too, but then I learned____________.”

One principle underlying these statements is helping the aggressor understand she or he is not under attack for their comment. “If we want people to hear what we’re saying and potentially change their behavior, we have to think about things that will not immediately make them defensive,” Dr. Goodman said.

It happens all the time — a friend of yours likes a racist comment on Facebook or a co-worker shares a meme with misogynist undertones. How can you respond when communicating online seems so visible and permanent?

According to research by Robert Eschmann, an assistant professor at Boston University’s School of Social Work, the visibility of microaggressions also means you can have like-minded allies step in to respond with you. “When you experience a microaggression when you’re by yourself,” Dr. Eschmann said, “there is no one else that can validate that experience for you. When you’re online, you can have lots of eyes on it and more people that can call it out and say that’s wrong.”

Another tactic Dr. Nadal suggests is to send links to articles that identify the microaggression. “It can be exhausting to have to explain microaggressions each time you encounter them; however, copying and pasting a link may be a simple tactic to use.” After you send the link and call out the microaggression, it is also important to identify when the person you are speaking to is actually open to a conversation.

Dr. Sue reminds us that so much of what happens online are monologues and not dialogues. “To me, responding to microaggressions online are a waste of time, because I don’t think — unless I have time to interact with the person on a personal level — I will be able to effect any change,” he said. Knowing when to step away and shut off the screen, especially when you sense a dead end, is crucial to self-care, he adds.

Learning to draw boundaries and find support among allies is one of the most important steps in dealing with microaggressions.

For those looking for an immersive experience, one Psychology Today article suggests a process of radical healing — developing pride in your community, sharing stories with people from it and taking action to make changes on a local and political level, reflecting on the challenges of your ancestors and practicing self-care by staying healthy — physically and spiritually.

Self-care, however, can be as simple as having a few friends to discuss common experiences with. Shardé M. Davis, a professor of communication at the University of Connecticut, has studied supportive communication about microaggressions among groups of black women and finds that talking can facilitate the coping process. Although Dr. Davis’s study was limited to black women, she believes the spirit of what that represents could easily translate to other groups of people.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

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EEOC Mediations: “When Money Counts, EEOC Mediations Are Not Neutral”

By Fox Rothschild LLP 

May 14, 2014

POSTED IN U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

Our friend, Merrily S. Archer, Esq., has written an important piece on her website concerning a survey which she helped to conduct among lawyers and others who have appeared before the EEOC as part of its conciliation process (“ADR”).   Her takeaway:  with ADR being the EEOC’s “biggest cash cow,” to settle cases for as much as possible EEOC mediators capitalize on employer insecurity, fear of the costs of defense, and threat of EEOC enforcement actions.   While she agrees that the costs of litigation are enormous (who doesn’t!), she debunks the threat of EEOC enforcement as being illusory.

Complete with helpful graphs, her report states that over 80% of those who responded “reported that an EEOC mediator referenced the cost of defense when encouraging employers to settle.  The cost of defense undoubtedly now drives employers’ settlement deliberations more than any other factor.  Discrimination is, after all, difficult to prove but easy to allege, and the allegation itself exposes employers to an average cost of $70K in non-recoverable defense fees.”

She notes that “According to the EEOC’s 2013 Performance and Accountability Report (PAR), the EEOC collected another historic amount of money from employers ($372.1 million) last year,” and that “its ADR program is the EEOC’s biggest cash cow, accounting for nearly half of its collections.”

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As to employer insecurities, she says that “EEOC Mediators often ‘capitalize on employer insecurities about juries, such as ‘your summary judgment motion will fail’ … “juries dislike employers” … and “a jury won’t like/believe your witnesses or documents.”    In fact, “most EEOC mediators are former investigators, not attorneys, and have extremely limited experience divining the preferences of future jurors. Besides, juries don’t hate employers; rather, they hate liars and lawyers, often failing to distinguish between the two.”

Finally, when it comes to EEOC enforcement activity, the EEOC’s own enforcement statistics show that, for example, in FY2013 “the EEOC issued Reasonable Cause determinations in only 3.6% of charges, down from 3.8% in FY2012.   Likewise, the number of EEOC-initiated civil lawsuits has fallen dramatically in recent years, as the EEOC focuses more on larger, systemic investigations and prosecutions. Perhaps for this reason, the fact that over 60% of employers reported threats of an EEOC systemic investigation is particularly alarming.”

Her conclusion:  “When money counts as the measure of its effectiveness, EEOC mediations are not neutral; on the contrary, EEOC mediators are allied with Charging Parties and their attorneys, whose sole objective is to maximize settlement payouts.”

Recommended reading for EEOC practitioners and employers!

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Of Course EEOC Mediations Are (or Should Be) Different!

Posted on 

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In response Fox Rothschild’s republication of our EEOC Mediation Survey, a handful of practitioners weighed in: (a) one claimed that EEOC mediations are just like private ones;  (b) a contract EEOC mediator insisted he would never make the misrepresentations specifically identified in our survey; and (c) another practitioner reported he has had only positive experiences with his local EEOC mediators, here.

The first point—i.e., EEOC mediation are just like private mediations—merits a more substantive response, below.  As for the other two, the sheer volume of responses (780) and strength of the findings (e.g., over 70% of reporting threats of “reasonable cause” determinations and prosecutions) account for one-off, individual experiences.  That is, we designed a quick survey to elicit the feedback of numerous practitioners, not just the vocal ones, and to draw statistically supportable conclusions, not just report our opinions and personal experiences.  We’re delighted that some practitioners have reported good experiences, but the whole point of a survey is to develop an understanding broader than anecdotes.

Further, our survey did not intend to measure “satisfaction,” on the rationale that participants could simultaneously report satisfaction and evidence of mediator deception.  For that reason, we asked only whether EEOC mediators made a specific representation, and then juxtaposed those findings against published EEOC information.

Three Ways EEOC Mediations Are (or Should Be) Different from Other EEO Mediations

Unlike Private Mediators (or Magistrate Judges), EEOC Mediators Represent a Federal Agency that Wields Broad Enforcement Authority and Prosecutorial Discretion

Our survey revealed that EEOC mediators regularly threaten employers with “reasonable cause” determinations (73.7%), prosecutions (70%), and even systemic investigations (61%).  We then tested these representations against the EEOC’s own Priority Charge Handling Procedures (PCHP), and clarified that if any of these enforcement outcomes were LIKELY, the EEOC would not have routed the charge to the ADR program in the first place.  We also compared these representations to the EEOC’s own enforcement data, noting a considerable gap between their reported frequency and REALITY.

Unlike a private mediator (or even a judge), the EEOC was entrusted with numerous enforcement powers—e.g., to investigate, to issue subpoenas, to render determinations, and to prosecute employers.  Most of these activities occur below the surface, out of public view and under the heavy armor of “government deliberative process” privilege and statutory confidentiality, which the EEOC cites to resist judicial scrutiny of its administrative processes (e.g., mediation, investigation, conciliation).  These processes, however, possess tremendous power, by themselves, to inflict terrible financial pain and inconvenience on employers, even before actual PROOF of an EEO violation in court. Thus, our finding that EEOC mediators regularly brandish these powers (disingenuously, in reality) to encourage employer settlement payouts raises legitimate questions about (a) the objectivity of the process; and (b) the responsible use of governmental power.   The EEOC I served under Clinton would not have allowed Field personnel to get this close to the ethics fence.

Unlike Private Mediators (or even Magistrate Judges), EEOC Mediators Represent a Federal Agency that Measures Its “Efficacy” by Its Employer Collections

Different kinds of mediators come with different motivations.  Private mediators whom I have worked with over a long litigation career get paid by the hour and so, they seem motivated to help the parties get a deal done no matter how long it takes.  Magistrate judge mediators make their same government salary while they’re juggling five other matters in addition to your mediation, and so, they seem motivated to make your case (and you) go away as quickly as possible.  Our study ultimately asked this question: if (a) the EEOC equates efficacy with employer settlement payouts; and (b) the ADR program historically generates more settlement payouts than any other EEOC program, what would EEOC mediators say to make employers pay?

Our study suggests that EEOC mediators may be neutral toward the parties and the dispute, but certainly not toward OUTCOME, unlike any other mediation context.  On the contrary, if success is ultimately measured in dollars, EEOC mediators are inherently allied with Charging Party’s counsel, whose primary motivation is to maximize monetary payouts.   Perhaps for that reason, employers and practitioners who show up to EEOC mediations empty-handed or with small purses often encounter the barb that they are not negotiating in “good faith.”  In fact, EEOC mediations differ substantially than other kinds of mediation because at the outset, the mediator shares the underlying motivations of one of the parties.

Unlike Private Mediators (or even Magistrate Judges), MOST EEOC Mediators are Not Lawyers

Our study showed that EEOC mediators often forecast gloomy litigation outcomes and juror preferences.  Unlike private mediators or magistrate judges, most EEOC mediators are not lawyers; rather, most of them are longtime EEOC investigators who got promoted into their positions when the ADR program launched in the late 1990’s.  Thus, unlike the sage insights of battle-hardened judges and former litigators, most EEOC mediators mimic the “pro-wrestler speak” of trial lawyers.

Fancying itself an advocacy agency, the EEOC frequently forgets the important concomitant duties of balance and fairness that accompany prosecutorial discretion and governmental deliberative process privilege.  To suggest, therefore, that EEOC mediations are just like any other mediation (a) misses the point of our survey; and (b) ignores the public duties (e.g., fairness, balance) that temper governmental power.

Ultimately, given the EEOC’s focus on employer settlement payouts as the measure of its efficacy, we question whether the EEOC’s programs, processes, burdens and initiatives have WORKED to actually deliver equal employment opportunity based on far more meaningful measurements of progress.   We’re trying to further the march toward EEO by asking, What can we do differently (better) to improve access to top jobs, equalize the burdens of unemployment, become an international leader in the benefits of multiculturalism, level the playing field in the federal sector, etc.?  At this historic milestone (i.e., Title VII’s 50th on 7/2/14), it is not enough to say “We have much work to do,” a clear EEOC talking point.  Rather, responsible policy-making requires us to evaluate whether past interventions have proven effective and to develop positive approaches based on programs that have actually worked.

Please stay tuned for “Seven Sparks to Jumpstart the March Toward Equal Employment Opportunity”, which we plan to publish in the coming weeks.

Merrily S. Archer, Esq., M.S.W., May 26, 2014

Five Employer Takeaways from the EEOC Mediation Survey

What You Don’t Know Can Cost You

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In late 2013, EEO Legal Solutions released the then-available results of its EEOC Mediation Survey, which Bloomberg BNA republished in January, 2014.  Other media outlets also picked up our preliminary findings, and even tried to elicit a response from the EEOC.   After four months, the EEOC finally responded to other media inquiries.   It denied any knowledge of our findings, despite published documentary proof that EEOC Commissioner Chai Feldblum requested (and we provided) survey data charts in January, 2014.   Since then, the response rate increased to 779, bringing the overall picture about common EEOC mediator tactics into sharper focus.

We had hoped, however, for 1,000 responses from an evenly distributed cross-section of the United States to look for regional variations, if any, from national averages.  Nevertheless, because of widely varying response rates by state, we simply cannot differentiate between EEOC District Offices with any statistical firepower.   With recent revelations about the poor quality of EEOC statistical analyses undergirding systemic investigations and prosecutions, prudence and fairness dictate more conservative treatment of data.

In our earlier publication about the EEOC mediation process, we detailed the impetus for this survey, central research questions, survey methodology, question design, and response-gathering process, here.     In this Final Report, we get right to the point and post the pictures: what can employers learn from the mediation survey?

EEOC Mediators Exploit Employers’ Cost-of-Defense Conundrum

As reflected in Figure 1, over 80% reported that an EEOC mediator referenced the cost of defense when encouraging employers to settle.  The cost of defense undoubtedly now drives employers’ settlement deliberations more than any other factor.  Discrimination is, after all, difficult to prove but easy to allege, and the allegation itself exposes employers to an average cost of $70K in non-recoverable defense fees.  Without EPL Insurance, most employers can no longer afford to fight to prove themselves RIGHT, an unwelcome byproduct of an EEO enforcement scheme that benefits lawyers at the expense of employers. Employers are stuck, and our survey shows that EEOC mediators know it.

According to the EEOC’s 2013 Performance and Accountability Report (PAR), the EEOC collected another historic amount of money from employers ($372.1 million) last year, a feat it touts under the heading “Enforcing the Law More Effectively.”  The FY2013 PAR also makes clear that its ADR program is the EEOC’s biggest cash cow, accounting for nearly half of its collections.  Nowhere, however, does the EEOC mention the cost-of-defense conversation its personnel initiate with employers as soon as the allegation is made, regardless of merit.  Accordingly, the EEOC’s use of employer settlement money as ostensible evidence of “enforcing the law more effectively” seems like a poor proxy for progress toward equal opportunity.

Figure 1

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 EEOC Mediators Forecast Gloomy Litigation Outcomes

EEOC Mediators often mimic the standard settlement tripe of NTLA/NELA attorneys to capitalize on employer insecurities about juries, such as “your summary judgment motion will fail” (Figure 2), “juries dislike employers” (Figure 3), and “a jury won’t like/believe your witnesses or documents” (Figure 4).   In fact, most EEOC mediators are former investigators, not attorneys, and have extremely limited experience divining the preferences of future jurors.  Besides, juries don’t hate employers; rather, they hate liars and lawyers, often failing to distinguish between the two.

Figure 2

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Figure 3

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Figure 4

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EEOC Mediators Overstate the Risk of Reasonable Cause Determinations, Systemic Investigations, and Prosecutions

Given the suffocating cost of defense, the possibility of future EEOC enforcement activity would weigh heavily on any employer’s settlement deliberations.   Survey results show that EEOC mediators regularly threaten EEOC cause determinations (Figure 5), EEOC prosecutions (Figure 6), and even systemic investigations (Figure 7), which go on years and cost employers millions, more here.   When faced with these enforcement possibilities, most reasonable employers would pay more to settle, again, to avoid anticipated defense costs.

These mediator representations are, however, complete nonsense.  First, as EEOC mediators know, if any of those enforcement actions were likely under the EEOC’s 1995 Priority Charge Handling Procedures (PCHP), the EEOC would not have routed the charge to the ADR Unit in the first place; only charges designated as “B” (lower priority) are eligible for ADR.  In fact, at an EEOC hearing on March 20, 2013, EEOC Commissioner Victoria Lipnic suggested that the EEOC tell employers about the charge’s PCHP designation to take the “gamesmanship” out of EEOC enforcement.  EEOC field personnel immediately opposed her idea, citing the timeworn government deliberative process privilege:  if employers knew, they argued, that the EEOC classified the charge as a “B”, and that, by extension, the EEOC was unlikely to devote its limited resources to an actual “investigation,” employers would be less likely to settle. 

Second, the EEOC’s own enforcement statistics completely belie EEOC mediator threats of enforcement activity.  In FY2013, the EEOC issued Reasonable Cause determinations in only 3.6% of charges, down from 3.8% in FY2012.  Likewise, the number of EEOC-initiated civil lawsuits has fallen dramatically in recent years, as the EEOC focuses more on larger, systemic investigations and prosecutions.  Perhaps for this reason, the fact that over 60% of employers reported threats of an EEOC systemic investigation is particularly alarming.

Figure 5

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Figure 6

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Figure 7

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HR is Under-utilized

Approximately one-third of survey participants had not participated in any EEOC mediation over the past two years, and nearly 50% were HR practitioners (Figure 8); by contrast, only 5% of attorneys in law firms and 7% of in-house reported not having any mediation over the past two years.  Our survey suggests, therefore, that most employers still treat EEOC mediations like serious legal problems that require lawyer “superpowers” and the corresponding expense.

Not so fast: as “B” charges, EEOC mediations are comparatively low risk.  Under PCHP, “B” charges are “handled,” not “investigated.”  In fact, the presence of counsel for the Charging Party is the single biggest determinant of whether an EEOC charge will advance beyond the EEOC administrative process or will languish, and then fizzle, just like the overwhelming majority of “B” charges heaped on the EEOC’s “Inventory” each year.   And to the EEOC, reducing its Inventory (by “handling” but not investigating “B” charges) shows that it is “serving the public more efficiently.”  Ironically, NTLA/NELA attorneys and I find common ground re the utter uselessness of this administrative process.

In some cases, it makes sense to pit lawyer against lawyer in an EEOC mediation, particularly if the EEOC administrative process seems like just a speed-bump en route to real litigation.  But for most EEOC mediations, employers can realize incredible cost savings by sending well-trained HR professionals instead.   Under this “coaching” mediation model, attorneys remain instantly available to advise and intervene, if necessary, using the wide variety of media that modern technology makes possible (e.g., cell phone, text messaging, and email).   Ultimately, this “coaching-from-the-sidelines” approach spares employers of the considerable unnecessary expense of non-productive attorney appearance time, particularly those long intervals when the mediator confers with the other party.

Further, today’s HR professionals often possess the interpersonal, emotional intelligence (EQ) skills that (a) attorneys often lack; and (b) work extremely well in informal mediation settings.  EQ skills, which are not taught or honed in law schools or law firms, quell the rancor that fuels workplace disputes and prevents cost-effective resolutions. For an angry, allegedly aggrieved employee, the presence of defense counsel often signifies warfare, sets a counterproductive tone, and interferes with resolution.  Smart attorneys—i.e., the skilled, not just the billed—know when to get out of the way.

Over this past year, in-house counsel and EPL adjusters have expressed a rational concern.  Attorneys are necessary to advise employers during EEOC mediations, they argue, just in case the EEOC mediator starts talking smack about reasonable cause determinations, systemic investigations, prosecutions, adverse summary judgment rulings and opinionated juries.  By calling attention to and then dispelling common mediator threats, however, this survey thereby seeks to diffuse them and help all practitioners make more informed mediation decisions.   In an era of high EPL deductibles and frequent EEO disputes, HR can fulfill an important, and necessary, cost-saving role.  To view our EEOC mediation training webinar, EEOC Mediations: Getting What You Want without a Big Legal Bill, click here.

Figure 8

HR and Mediations

When Money Matters, EEOC Mediations are NOT Neutral

Employer settlement payouts make a poor proxy for progress toward EEO, even though the EEOC counts their money as evidence of “enforcing the law more effectively.”  Our study aimed to answer this central question: If the EEOC equates efficacy with employer settlement payouts, what impact, if any, would this metric-that-matters have on the behavior of personnel operating its biggest settlement machine, the ADR program?

The results speak volumes.  Behind closed doors, EEOC mediators exaggerate the risk of poor litigation outcomes and EEOC enforcement activity to ratchet up employer cost-of-defense settlement offers, regardless of charge merit.  Immediately upon the mere accusation of discrimination, employers walk into a cost-of-defense conversation where the questions of wrongdoing and EEO compliance are irrelevant. In the EEOC’s “fabulously successful” ADR program, money (and lots of it: $372.1m) changes hands between employers, EPL carriers, defense attorneys, and plaintiff’s employment lawyers, with some leftovers for allegedly aggrieved employees. But does this wealth redistribution really advance the march toward equal employment opportunity (i.e., “enforcing the law more effectively”)?

Unfortunately, no.  When we measure what MATTERS, it becomes clear that under this adversarial litigation-based model of EEO enforcement, progress toward EEO has stalled for most of Title VII’s intended beneficiaries.   In Measuring What Matters at Title VII’s 50th Anniversary, we analyzed the EEOC’s own EEO-1 data to evaluate the progress of women and minorities toward attaining top jobs, across industries; we looked at unemployment rates among gender and racial groups; we researched federal sector EEO employment trends; we pulled up Gallup polls and EEOC intake data to assess whether workers perceive workplace opportunity as more equitably distributed; and we compared the United States to other developed nations (e.g., Sweden, Israel, South Africa) re the representation of women in business and governmental leadership.  These more meaningful measurements of our progress show that our methods for securing EEO—i.e., the STICKS of an adversarial EEOC and CRA 1991’s privatized litigation-based model—no longer WORK, by themselves or at an acceptable pace, to modify employers’ behavior and by extension, reform the workplace.

When money counts as the measure of its effectiveness, EEOC mediations are not neutral; on the contrary, EEOC mediators are allied with Charging Parties and their attorneys, whose sole objective is to maximize settlement payouts.  The EEOC claims, nevertheless, that 98% of employers are satisfied with their ADR experience; until this survey, however, most employers likely did not suspect that EEOC mediators were misleading them.

The EEOC will continue sell its “fabulously successful” ADR program to employers.  At the EEOC’s March, 2013 hearing, EEOC careerist Mary Jo O’Neill, Regional Attorney in the Phoenix District Office, called the ADR program “such a wonderful opportunity to settle” and urged employers to “take more advantage of [it] than they do.”  At last year’s EEOC Excel Conference, EEOC Chair Jacqueline Berrien heavily peddled the ADR program, and not coincidentally, at this year’s Excel Conference in San Diego (for which the EEOC charges employers over $1,300), the EEOC has again devoted an entire “track” to the merits of mediation.  As long as the EEOC counts employer money as EEO progress, employers and Title VII’s intended beneficiaries will remain STUCK in an ineffective wealth redistribution loop where nothing much changes except money changing hands.

We can do better.  Stay tuned for Part II of our two-part series on Title VII’s 50th anniversary, “Seven Sparks to Jumpstart Progress toward Equal Employment Opportunity.”  Part I, “Measuring What Matters on Title VII’s 50th Anniversary,” is available here.

Merrily S. Archer, Esq., M.S.W., May 13, 2014

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Battle for the Ballet: Black women a powerful force

LOCAL NEWS

MAR 2, 2020

PHOTO PROVIDED Ida B. Wells-Barnett, noted black journalist and newspaper editor, spoke out against the horrors of lynching and co-founded both the National Association of Colored Women and the National Association for the Advancement of Colored People NAACP). She also marched in the 1913 Suffrage Parade in Washington, D.C. with her white friends, refusing to march at the back in the segregated units.

Editor’s Note: This is another in a series of articles on women’s suffrage written by local writers. The articles will be published in The Express throughout the year, leading up to the 100th anniversary of women’s suffrage in the United States on August 26, 2020.

By TAMMY GARRISON

For The Express

The black women’s suffrage movement began before the famous 1848 Seneca Falls convention where a group of 200 women demanded full rights, publically, for the first time. It has its roots in the abolitionist movement, and was seen as a way to fight back against the systematic violence perpetrated on black people. Suffrage, for both black men and women, was meant to secure rights and protections under the law, and keep them. Sojourner Truth, Harriet Tubman and Fredrick Douglass and many others were essential in those early days to the cause.

The road was not always clear, and had plenty of obstacles, including other members of the suffrage movement. Fredrick Douglass himself spoke at the 1848 Seneca Falls convention, organized by Elizabeth Cady Stanton, declaring, “In this denial of the right to participate in government, not merely the degradation of woman and the perpetuation of a great injustice happens, but the maiming and repudiation of one-half of the moral and intellectual power of the government of the world.” Douglass had freed himself from bondage and was an eloquent orator and writer who spoke on the topic of abolition as well as women’s rights.

PHOTO PROVIDED Mary Church Terrell was one of the first black women to earn a college degree from Oberlin College. She was a member of the National American Women Suffrage Association (NAWSA) and served as the first president of the National Association of Colored Women (NACW). She focused her efforts on general human rights and the rights for all to vote, regardless of color.

Despite her regard for Douglass, Elizabeth Cady Stanton stood in opposition to the 15th Amendment giving black men, but not white women, the right to vote. She later stated that “we educated, virtuous white women are more worthy of the vote.” There were many others like her, and often black women were entirely shut out of white women’s meetings and gatherings, or were forced to form their own organizations and events.

Even though black women fought for the rights of all women and for black men to vote, their own needs were unique. Often they were treated as “breeding stock” by their owners. Black women would be forced into producing many children, often being raped by their owners. This is because it created more people in which to enslave, which meant they did not need to be bought. They were “free” labor.

Black women also lost their children to slavery. Families were routinely broken up. Children would be sold or rented out to other plantations and owners. It was not unusual to never see a child or spouse again. Black women needed rights in order to protect themselves and their children from grave harm and death, and the protection of family is a powerful motivator. This meant black women had all the incentive in the world to fight for justice, and they did so fiercely.

But before black women could obtain the vote, they had to be freed from American slavery. Even though he penned the Emancipation Proclamation, which was intended to give freedom to enslaved people throughout the north and the south during the Civil War, Lincoln did not originally intend for the Civil War to solve slavery. He was afraid of angering Border States and that it would make reunification impossible. This is because every state that left the union cited the need to maintain slavery as one of their reasons for separating.

Many people pleaded with Lincoln to emancipate enslaved people, including Harriet Tubman. Like Douglass, Tubman was born into slavery. She also freed herself and returned to free her family and others, seventy people in total over 13 trips. Additionally, she was a scout and spy for the Union.

At the point where it became helpful to the Union cause, Lincoln signed the Emancipation Proclamation in 1862. Not all enslaved people were freed immediately, and word took years to reach some parts of the south. The 13th amendment, barring almost all slavery, save for imprisoned people, was not ratified until 1865, after Lincoln’s assassination by a southern sympathizer in the same year.

Despite freedom, the right to vote eluded both black men and women. There was even debate as to whether black people were citizens of the country. The 14th Amendment (1868) secured citizenship for those born in the country, but still did not promise the right to vote for all citizens. It was not until 1870 that the 15th Amendment granted the right to vote to all men, but not women.

The formerly enslaved people were promised “forty acres and a mule” by the government, and many were given land captured by the North during the Civil War. One person who fought for the land promised was Sojourner Truth. She escaped slavery and later took a white man to court in 1828 to win custody of her son. Like Douglass and Tubman, she was an exceptional public speaker who delivered her most famous speech at the Ohio Women’s Rights Convention extemporaneously. Unfortunately, her efforts to secure land for the black population were not successful. She continued with the black women’s suffrage and civil rights movements until her death in 1883.

By the end of the Civil War it became clear that women had differing points of view as to why their right to vote was essential. White women sought the vote to join their husbands, fathers, and brothers to vote equally on issues. Black women, especially those who lived in the South, sought the ballot for themselves and their men as a way to empower black communities being subjected to the racial backlash and terror that erupted after emancipation of the slaves and more so on the passage of the 15th Amendment which barred states from denying Negro men the right to vote. Frederick Douglass summarized the differences between the interests of black and white suffragists and the need for federal protection of black voters. He also stated the central fallacy of the white suffragist push, which was that black women could somehow miraculously separate their blackness from being a female.

The period directly after the Civil War is known as the Reconstruction Era. After Lincoln’s assasination, President Johnson supported states’ rights, and allowed states to form their own ways of handling the newfound freedom of 4 million formerly enslaved people and their integration into a previously white-only society. Johnson also saw to it that land seized by the Union and given to black people was returned to its previous owners.

This was all disastrous for the newly freed. It lead to states enacting a series of laws called “Black Codes,” which were designed to restrict freedoms of the black populace and ensure a continued labor force for the southern economy.

Fortunately, this enraged a lot of people, including congress. They attempted to pass a civil rights bill, and another that would benefit the Freedmen’s Bureau, which aided refugees and freed slaves, but they were both vetoed by Johnson. This created a large rift between him and congress that would later culminate in his impeachment.

After the vetoes, congress took a larger role in Reconstruction and enacted the Reconstruction Act of 1867. It outlined how universal male suffrage would work, and forced southern states to ratify the 14th amendment, which extended the definition of citizenship, before they could rejoin the Union. The 15th Amendment was passed in 1869, giving black men the right to vote.

After 1870, white supremacist groups, including the Ku Klux Klan, began in earnest to oppress black people in the south. In 1874, a recession took hold in the south and the more conservative Democrats won major elections throughout the region. This marked the end of the federal involvement in Reconstruction and opened the floodgate to Jim Crow laws and unbridled abuse of black people in the south, including the suppression of the black vote.

The Jim Crow laws were state and local laws that assured racial segregation in the late 19th and early 20th centuries. They were put into place by Democrat-held governments throughout the south. They set forth harsh penalties for so much as fraternizing across racial lines and absolutely forbade inter-racial marriages. Businesses likewise had to separate their black and white customers.

Despite these enormous social setbacks, freed black women continued to work with and sometimes parallel to white women to obtain the right to vote. Often, black women were torn between standing with their white sisters, who sometimes framed women’s place in society as a form of slavery, and black men, who were facing the burden of the violence and injustice that prevented them from experiencing a safe life, much less from voting.

To prevent voting, laws were made that restricted the rights of those who did not own land, those who could not read, and other challenges. To meet these obstacles head on, education became deeply important to the movement, and remained so through the revitalized civil rights movement in the 1960s and to today.

Charlotte Forten Grimk was one such proponent of education. She was born to free parents who were part of the Philadelphia black elite in 1837 and was educated by private tutors. She moved to Massachusetts where she joined the Salem Anti-Slavery Society. Later, she went to a normal school to become a teacher. She went on to teach in several schools and in 1896 formed the National Association of Colored Women, which still operates to this day.

Violence against those who chose to exercise the right to vote was also an issue. Lynching, which is a mob killing that takes place without legal authority, was used as a form of voter suppression, and to control black people, all the way through the 1960s. The last lynching in the United States was in 1981 and was not made a federal crime until 2018.

Ida B. Wells-Barnett, a well-renowned journalist and newspaper editor, engaged in a campaign against lynching in the late 19th century. She was led to this cause after three of her friends were lynched. In response, a white mob destroyed her offices and printing press. She moved from Memphis to New York due to threats on her life. Later landing in Chicago, she wrote a book detailing the horrors of lynching. Eventually, she cofounded both the National Association of Colored Women and the National Association for the Advancement of Colored People (NAACP).

Wells-Barnett marched in the 1913 suffrage march in Washington, D.C., but refused to march in the back. Starting with the segregated unit, she rushed to the front of the parade. Throughout her life, she remained an advocate for women’s political activism. She also worked to educate the black community on political issues.

The black female vote was seen as vital to living in a just society, and as a way to protect the black male vote. Unfortunately, it did not help that white women wanted the support of black suffragists, but also wanted to exclude them. The National Women’s Suffrage Association (NWSA) prevented black women from joining. Later on, when more frequent demonstrations began in the early 20th century, black women were not permitted to march with their white sisters and were often relegated to the back of parades.

Mary Church Terrell was the daughter of a former slave who rose to become a wealthy landowner. She earned a masters degree from Oberlin College and moved to the nation’s capital to teach. Terrell became deeply involved in civic life and became a member of the National American Woman Suffrage Association (NAWSA). Later, she would become the first president of the National Association of Colored Women (NACW). She founded what later became the National Association of University Women and was widely published, both in the black and white press. In the 1913 suffrage march, she marched with other black women, in the segregated end of the parade. She worked for civil rights even into her 80s, when she organized to integrate lunch counters.

Terrell and other reformers such as Francis Watkins Harper and Harriet Tubman saw that race and sex intersected and affected both black women’s rights and opportunities. They focused their efforts on general human rights and the right for the vote for all, regardless of color, instead of just suffrage for black women, or just women. This included other disenfranchised races, including the Chinese and Native Americans. They spent the late 1800s developing organizations that supported these causes and others that affected only them.

In 1919, the 19th Amendment giving all women the right to vote was passed, and ratified in 1920. While aimed at all women, the reality was that black women had not fully achieved the vote. Like there had been for black men, numerous tests were put in the way as roadblocks for black women, ranging from literacy tests to a test that made the taker interpret the constitution. Registration locations were limited, and lines for both registration and voting could be many hours long. Black women also faced the same violence as black men, if they chose to exercise their right to vote.

Headway was made, however. For example, in 1935, Mary McLeod Bethune, an educator and ardent supporter of gender and racial equality, was named a special advisor on minority affairs by President Franklin D. Roosevelt. She also founded and was the president of the National Council of Negro Women, Inc. (NCNW). Like so many others, she was a great orator and was considered a great humanitarian.

In addition to the racial terror supported by segregation, Jim Crow laws, and the constant threat of lynching, during World War II, male black units continued to be segregated and the armed forces did not have a policy of integration until 1948 when an executive order was signed by President Harry Truman. Despite the order, forms of segregation persisted through the Korean War.

This was another large step toward recognized equality between the races, but less so for black women in the military, who were still separated by race, but also by gender. Women in general were also relegated to support roles and were often not recognized for their achievements and sacrifices.

At home, racial inequality was also reinforced by black men’s inability to fully utilize the GI Bill, especially to purchase houses. A practice of “redlining” developed, which denied loans to people who lived in certain areas. This worked to reinforce segregation and keep black people from moving into the newly invented suburbs of the post-war era, thus keeping them confined to depressed areas. Redlining was not made illegal until the Fair Housing Act was passed in 1968.

Due to the continued violence and hardships faced by black people and the need for change, the number of civil rights organizations grew. The groups worked on rights for women and attempted to uplift the black community. In fact, the NACW’s motto was “Lifting as we climb.” They also fought for rights for black people, including the right to vote safely and without impediment or the threat of bodily harm. This particular push for civil rights lasted from the 1950s into the 1960s.

Legislation came from this movement. The Civil Rights Act of 1964 ended legal segregation and employment discrimination, but did not solve racism and protect the black vote.

Protesting, mostly peaceful, persisted throughout the 50s and 60s. Still, the KKK and other white supremacist groups were always at the ready to suppress the rights of black citizens. In addition to continued lynching by mobs of citizens, police violence was also prevalent. The right to vote without obstruction was not granted until the passing of the Voting Rights Act in 1965.

Other laws were passed, assuring protections under the law. For example, in 1967, the Supreme Court ruled that laws blocking interracial marriages, a major Jim Crow law in many places, was illegal. The systemic nature of racism was changing.

In 1968 another Civil Rights Act and the Fair Housing Act were passed, concerning the sale, rental, and financing of housing based on race, religion or national origin. It did not eliminate redlining, but it did make it largely illegal.

While none of these acts “solved” racism in America, they gave legal protections to black people, including black voters. These protections were hard-won, and took over a century after the end of slavery to be realized. Other laws protecting civil rights have been enacted since, and work continues to protect the civil and voting rights of black citizens.

None of these rights would be possible without the mobilization and dedication of black women, who fought for everything from bodily autonomy to housing fairness to the vote. They organized, standing with both their white sisters and black men to in obtaining freedoms that white males took for granted since the founding of the nation. Black women continue to organize to support education, promote civic involvement and push back against racism. They work to assure the right to vote continues to be upheld in the face of closing polling locations, gerrymandering, long waits at the polls and voter registration purging. Black women have always been a powerful force in the America, and their engagement in the civic sphere has taken them from battle to battle over the centuries, but they have never given up.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer