EEOC Seeks Assurance of Protections in Intersectional Sex–Age Discrimination Claim

Source: EEOC

July 25, 2019

On Tuesday, June 11, 2019, the Equal Employment Opportunity Commission (EEOC) filed an amicus curiae brief in Frappied et al. v. Affinity Gaming Black Hawk, LLC (No. 19-1063; 10th Cir.)—a case involving older casino workers who allege they were illegally terminated due to age under the Age Discrimination in Employment Act of 1967 (ADEA). Of particular note, female plaintiffs in the case additionally claimed they were unlawfully terminated due to the combination of their age (under ADEA) and gender under Title VII of the Civil Rights Act of 1964 (Title VII). In its brief, the EEOC argued that the district court erred in dismissing the older women’s Title VII claim earlier this year. The case is noteworthy in that it represents a rare instance of a cross-statute complaint invoking both the ADEA and Title VII.

Claims of discrimination that involve the combination of two or more protected classes (such as age and gender as in Frappied) have been referred to as “intersectional discrimination” by the EEOC. According to the Section 15: Race and Color Discrimination of the EEOC’s Compliance Manual:

“Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men. Likewise, Title VII protects Asian American women from discrimination based on stereotypes and assumptions about them ‘even in the absence of discrimination against Asian American men or White women.’ The law also prohibits individuals from being subjected to discrimination because of the intersection of their race and a trait covered by another EEO statute – e.g., race and disability, or race and age.”

The courts have historically referred to such intersectional discrimination claims as “sex-plus” claims (e.g., sex-plus-race), and their interpretation of Title VII as it relates to these claims is complicated and has continued to evolve over the past several decades.

In Frappied, the district court took issue with the age aspect of the sex-plus-age claim, holding that “the scope of liability under the ADEA is narrower than that under Title VII.” However, in its amicus brief, the EEOC points out that in prior cases the “plus” factor in sex-plus claims has included characteristics not protected from discrimination by Title VII or other independent federal statutes (e.g., marital status). The EEOC views the ADEA’s more limited scope as immaterial to whether a sex-plus-age claim should stand and is looking to the Court of Appeals for the Tenth Circuit to reverse the district court’s ruling.

With this filing, the EEOC has signaled its commitment to ensuring that federal courts recognize intersectional discrimination claims under both Title VII and the ADEA. Indeed, in its ADEA @ 50: State of Age Discrimination Report, the EEOC stated that it “has long recognized the theory of ‘intersectional discrimination’ under both Title VII and the ADEA” (see also the 2006 EEOC Compliance Manual). This action also comes on the heels of the Office of Federal Contract Compliance Programs (OFCCP) stating last August in Directive (DIR) 2018-05 that they “may explore the interaction of sex and race” in their regression analyses of contractor compensation data.

Employers may want to watch the outcome of Frappied closely as it could underscore a need to expand the scope of proactive EEO analyses conducted (e.g., on hiring, pay, terminations) to include various combinations of protected classes of individuals that include age. Because intersectional claims of discrimination by definition involve smaller groups of individuals, having sufficiently large samples to conduct relevant statistical analyses may pose an obstacle to both plaintiffs attempting to establish evidence of discrimination and employers looking to conduct proactive analyses. As always, we recommend that employers reach out to their legal counsel to discuss these complex issues.

By Don Lustenberger, Ph.D., Senior Consultant, and Sarah Layman, M.S., Senior Consultant at DCI Consulting Group

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Avoiding Discrimination in Layoffs or Reductions in Force (RIF)

U.S. Equal Employment Opportunity Commission


Making an Employment Decision?

Before implementing a layoff or reduction in force (RIF), review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws.

  • List the employees who would be laid off or terminated based on your layoff/RIF criteria.
  • Determine whether certain groups of employees are affected more than other groups.
    • For example, to determine whether female employees may be affected more than male employees, compare the percentage of female employees scheduled for layoff/RIF to the percentage of female employees in your workforce.
  • If certain groups of employees are affected more than other groups, determine if you can adjust your layoff/RIF selection criteria to limit the impact on those groups, while still meeting your business’s needs.
    • For example, you decide to lay off the most recently hired employees due to budget constraints. Female employees account for 30% of your workforce and 85% of the employees scheduled for layoff. Determine whether you can adjust your layoff criteria in a way that allows you to meet your financial goals while also reducing the impact on female employees. For example, you might determine whether alternative layoff criteria, such as employees’ profitability, productivity or expertise, would enable you to reach the desired financial outcome and result in the layoff of fewer female employees.

This process can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

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Federal Employees – Discrimination

 

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

2. What if I miss the 45-day deadline?

3. Once I initiate the EEO process at my agency, what happens next?

4. Can I resolve my case during the counseling period?

5. What happens if I am unable to resolve my case within the counseling period?

6. What happens once I have filed a formal complaint?

7. Will my complaint be investigated?

8. Will I have a chance to respond to the Agency’s information?

9. How long will the investigation take?

10. Will discovery be allowed?

11. How do I prove my case during the investigation?

12. What happens once discovery ends?

13. What happens at the EEO hearing?

14. What happens after the hearing is over?

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

16. Should I get a lawyer?

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

Yes. When a federal employee believes she has been the subject of discrimination or retaliation, she must go through an administrative process in an attempt to resolve the situation. The first thing a federal employee must do to start this process is to contact an EEO counselor at the Agency where he or she is employed. This step is called “initiating the EEO process.” You must initiate the EEO process within 45 days of the last discriminatory or retaliatory incident.

2. What if I miss the 45-day deadline?

The law provides that the time limit is extended if you show that:

  • You were not notified of the time limits and were not otherwise aware of them;
  • You did not and reasonably should not have known that the discriminatory matter occurred; or
  • Despite due diligence you were prevented by circumstances beyond your control from contacting the counselor within the time limits.

However, you should assume that you only have 45 days, as it may be difficult to prove that these exceptions should apply to your situation.

3. Once I initiate the EEO process at my agency, what happens next?

The counselor will discuss the claims with you and may have you fill out pre-complaint paperwork. The counselor will advise you about the EEO process, but the counselor should not give legal advice, as the counselor works for the Agency.

EEO counseling generally lasts 30 days, unless you agree to extend the counseling period. During the counseling period, the counselor should advise management of your concerns and attempt to resolve them.

4. Can I resolve my case during the counseling period?

While it is possible to gain resolution informally through the counselor in the counseling stage, it does not occur very often. However, you and the Agency may agree to early Alternative Dispute Resolution (ADR) or mediation during the counseling period, which will extend the counseling period, usually to 60 or 90 days instead of 30 days.

Some cases are suitable for early ADR. Early ADR is an opportunity to resolve a complaint early on in the process, saving time, money, and resources, for all parties involved. Early ADR may also preserve the working relationship, allowing both parties to interact amicably in the future. However, both parties need to agree to ADR as it is voluntary. Early ADR is best for cases where the facts are relatively straightforward and little further investigation or discovery is necessary.

5. What happens if I am unable to resolve my case within the counseling period?

After the counseling period concludes, if resolution has not been reached, the counselor issues the employee a Notice of Right to File a Formal Complaint, along with a complaint form. The employee has 15 days from receipt of the Notice to file a formal complaint.

The complaint should not be long and detailed. The complaint should simply state the bases of discrimination (for example, sex (male), disability (asthma), and retaliation (prior EEO activity)). The complaint should also state the incidents, or issues, which you believe show discrimination or retaliation, including dates. The complaint should name the individuals alleged to be responsible for the discrimination or retaliation, also called the Responsible Management Officials (RMOs).

The complaint may also ask for the remedy requested. While the employee need not list every remedy specifically, she should state that she desires compensatory damages (up to $300,000, although an amount need not be specified), attorney fees and costs, and any other relief that would make her whole. Punitive damages are not available against the U.S. government in EEO cases.

6. What happens once I have filed a formal complaint?

After filing the formal complaint, the Agency may issue an acceptance letter, an acceptance and partial dismissal letter, or a dismissal letter, accepting or denying the claims in the formal complaint. It is important that you, as the Complainant, review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allotted, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but the issue will be preserved for appeal or trial. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.

7. Will my complaint be investigated?

Yes. Once the complaint has been accepted, the complaint is forwarded on to an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The investigator will interview witnesses and gather documentation regarding the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written affidavits. The investigator often begins his or her investigation with your testimony as the Complainant. You will either meet with the investigator and sign off on a written affidavit or submit written responses, under oath, to the investigator’s questions. It is very important that you give a full and complete version of the facts during the investigation. However, you must also be concise and responsive to the investigator’s questions. You can also provide the investigator with relevant documentation.

Perhaps most importantly, you should tell the investigator, in writing, as part of your affidavit, what supportive witnesses the investigator should interview and to what those witnesses can testify. Finally, you should make sure you tell the investigator, in writing, through your affidavit, why you think the Agency subjected you to discrimination or retaliation, including if others outside of your protected category were treated more favorably, how, by whom, and when.

8. Will I have a chance to respond to the Agency’s information?

Maybe. After the investigator gathers information from witnesses and management, the investigator often gives you a chance to rebut management affidavits. When doing so, you should rebut each affidavit point-by-point in a clear and concise manner. You should always keep in mind that the investigation is the only thing the Administrative Judge (AJ) will have regarding your case for the majority of the case processing, until hearing. You should also keep in mind that the Agency will review the Report of Investigation (ROI) and determine its position on resolution based, in part, on the ROI. Thus, it is very important for you to tell the whole story in the ROI and list all relevant supportive witnesses and facts in a clear and concise manner.

9. How long will the investigation take?

The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the receipt or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, setting forth many important deadlines, with which the parties must comply or risk prejudicing their case.

10. Will discovery be allowed?

Yes. The AJ will give the parties the opportunity to conduct discovery, in order for each side to obtain relevant information from the other to aid the preparation of each party’s case. The discovery process includes asking the opposing party for additional information through written questions, written requests for production of documents, written requests for admissions, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyer asking the witness questions about the case. Transcripts from depositions can be used at a hearing to show a witness’s inconsistent testimony or, in certain situations, in lieu of in-person testimony by that witness. It is very important that you as the Complainant prepare for your deposition adequately, reviewing the record and making sure your answers are consistent.

In general, discovery is a very important process because it allows the parties to gain more information to assess their case and to hopefully support their arguments. Based on discovery, the parties can often better assess whether their case meets the legal burdens it will need to meet to be successful at hearing. Discovery usually lasts approximately 90 days.

11. How do I prove my case during the investigation?

It is the employee’s burden to prove by a preponderance (over 50%) of the evidence that a motivating factor of the decision maker was based on the employee’s protected classification such as race, age or disability or, in retaliation cases, because the employee participated in his/her or another employee’s EEO case. This means that after you allege in your EEO complaint that an adverse action was taken against you because of race, for example, the agency has the burden to explain why it took the action and that those reasons are legitimate, nondiscriminatory and nonretaliatory reasons. The burden then switches to the employee to prove there is direct evidence of discriminatory or retaliatory motive (such as the rare statement by the decision maker indicating bias or intent) or indirect evidence (that the reasons offered are not true, but are pretexts for discrimination or retaliation). If you cannot prove that the reasons given for the action are not true or are not credible, you cannot win your EEO claim.

12. What happens once discovery ends?

After the discovery period ends, the parties prepare for the hearing, a session with the administrative judge where both sides present evidence. The parties may also make additional attempts at resolving the case, based on what was uncovered in discovery and their resulting assessment of the case. The AJ may pressure the parties to resolve the complaint. In doing so, the AJ may discuss the merits of settlement with one party or both. The pre-hearing period may consist of motions to decide the case without a hearing (usually brought by the Agency), pre-hearing submissions (listing witnesses, expected testimony, issues to be tried, and exhibits), a pre-hearing conference with the opposing party and the judge, and perhaps a settlement conference or ADR session.

13. What happens at the EEO hearing?

The EEO hearing is conducted by the AJ, either at the EEOC field or regional office, the Agency office, or at a location designated by the AJ. At the EEO hearing both parties are given an opportunity to do a short (often five to ten minutes) opening statement.

In EEO complaints, the Complainant bears the burden of proof at all times, although the burden of persuasion shifts. Therefore you will present your witnesses first, after the opening statements. Your witnesses should probably include:

  • you, as the Complainant;
  • any co-workers who witnessed the treatment alleged and ideally who support your claims of discrimination and/or retaliation;
  • your doctors (especially important in disability cases, but also important as to damages in other cases); and,
  • your family members (to most often testify to damages, such as pain and suffering).

Hearsay is allowed in administrative proceedings.

After you call all of your witnesses, the Agency will call witnesses, likely including the named RMOs. You have a right to properly cross-examine all Agency witnesses, as the Agency has with you and your witnesses. After the Agency witnesses testify, you are given an opportunity for rebuttal. During rebuttal, you should clear up any discrepancies raised in the Agency’s testimony, either through your testimony or the testimony of witnesses.

Both parties may use physical documents or things at the hearing, as long as the parties comply with the AJ’s rules in notifying the AJ of the evidence and getting the AJ’s approval. Each party is given an opportunity to do short closing arguments or written briefs instead of oral closing arguments.

14. What happens after the hearing is over?

After the hearing, the AJ may make a bench decision, which is an oral decision on the record. Otherwise, the AJ will issue a written decision. The written decision must then be accepted or rejected by the Agency in a Final Agency Decision (FAD). After the FAD is issued, you as the Complainant have the opportunity to appeal the decision to the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations. Instructions for such appeals should be contained in the FAD. For more information, please see the EEOC’s Federal EEO Complaint Processing Procedures.

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

Yes. You can file a federal court lawsuit if one of the following conditions are present:

 180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.

 You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.

 You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency. In either case, you will have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.

 If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.

If you file a federal court lawsuit, it is a “de novo” review by the court. This means that the case starts over, no matter what the decisions may have been by the EEOC AJ or the Agency. You will have the opportunity to conduct discovery and prove your case in a jury trial.

16. Should I get a lawyer?

Getting legal advice as early as possible when you believe you have been discriminated against or retaliated against is highly recommended. A legal consultation with an attorney experienced in federal employee claims will evaluate your facts under current laws and court decisions and give you the pros and cons of your case. There are many factors that go into a case evaluation. You may be going through this EEO process once or twice in your career, whereas the agency personnel and EEO representatives do this every day. If you are not informed on how the process works and what evidence is needed, the agency and management may create a record to defend against your case and you may not understand how to find and present evidence in your favor.

Getting a consultation does not mean the attorney must represent you throughout the process or in federal court. Knowing the strengths and weaknesses of your case as early as possible can save you money and effort and can assist you in documenting and finding the evidence you need to win your EEO case or to find reason to withdraw your EEO case. Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

 

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Bryan A. Chapman, Esquire

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This is not your father’s EEOC.

By Bryan A. Chapman, Esquire

The Equal Employment Opportunity Commission (EEOC) was created in 1965 as a result of the Civil Rights Act of 1964 becoming law.  The Civil Rights Act of 1964 marked the end of the 100 year old Jim Crow era in the United States.

Under Jim Crow, Southern states enacted laws that made segregation mandatory in the everyday lives of blacks and whites.  Jim Crow laws were designed to prevent blacks from advancing both socially and economically.  In the Northern states, blacks faced discrimination and segregation in hiring, housing, and education.

The EEOC’s purpose is to protect workers from workplace discrimination and its mandate is to investigate worker’s complaints.  In EEOC’s early years, discrimination and segregation in hiring were routine practices in both Southern and Northern states.  Workplace discrimination occurred in plain sight.  Workers could rely on EEOC to investigate their complaints.  And, these investigations could lead to out-of-court settlements.

Today, almost sixty years later, workers can no longer rely on EEOC to investigate their complaints.  For decades, EEOC has had a backlog of cases because Congress has not provided the funding it needs to investigate an ever increasing number of discrimination complaints.  In order to cope with its backlog, EEOC is prioritizing cases, which means an ever increasing number of cases are dismissed before they can be investigated.  This practice leaves many workers out in the cold.

Workplace discrimination is difficult to prove.  Workplace discrimination is no longer occurs in plain sight as it did in the 1960’s.  Employers take measures to avoid costly discrimination lawsuits.  Outside consultants and HR personnel train management on how to prevent workplace discrimination, as well as, how to cover up workplace discrimination when it occurs.

The employment laws strongly favors employers over workers.  For instance, the employment-at-will doctrine provides employers with a lot of protection against allegations of discrimination.  The doctrine says that an employer can termination (which includes denial of promotion, demotion, and undesirable reassignment) a worker at any time and for any reason, good or bad, provided it is not done for a discriminatory reason.  This means that a worker is burdened with proving that his termination was a direct result of discrimination.

When an employer decides to terminate a worker, it generally places the worker under heightened scrutiny for a period of time in order to generate a paper trail of deficient job performance.  The paper trail is a defense against allegations that the termination was discriminatory.  Furthermore, employers routinely deny all allegations of discrimination.  It means that in the absence of a “smoking gun” workplace discrimination is difficult to prove.

Most workers are aware that federal statutes prohibit workplace discrimination based on race, sex, national origin, religion, age, and disability.  Unfortunately, federal statutes give workers a false sense of security.  The outcome of an actual discrimination case depends on the applicable case law of a particular locality and relevant facts that may be in dispute.  Only, an experienced lawyer can gain access to and make effective use of this kind of information.  As a result, workers who files discrimination complaints with EEOC, without consulting an experienced lawyer, are generally out of their depth.

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Do Companies Try to Settle Harassment Claims Out of Court?

by Ruth Mayhew; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA; Updated March 11, 2019

Do Companies Try to Settle Harassment Claims Out of Court?

Harassment lawsuits are costly, so out-of-court settlements save employers the time and expense of defending their employment practices. The U.S. Equal Employment Opportunity Commission, the agency that enforces employment laws, reports 26,699 charges of workplace harassment during fiscal year 2018. Approximately 7 percent of those claims were settled, and the EEOC recovered more than $134 million in damages, much of it through out-of-court settlements on behalf of employees who filed harassment claims. Out-of-court settlements often are more attractive to employers than gambling with a potentially sympathetic jury.

Early Stage Settlement

When an employee files an initial complaint about workplace harassment, it’s rare that the company is thinking about settlement at this point, unless there have been similar incidents in which the company has been cited or sued for harassment claims found to have merit. At this point, in addition to considering settling claims, the company should also consider organizational changes and mandatory leadership and employee training to eliminate unlawful workplace behavior and unfair employment practices.

Workplace Harassment Investigations

A human resources department staffer, outside consultant or a lawyer typically investigates workplace harassment claims. The person assigned to the investigation must know what constitutes workplace harassment vis-à-vis a thorough understanding of employment laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the National Labor Relations Act and the Taft-Hartley Act. Throughout the fact-finding process, with correct application of statutory law and knowledge of past practices, settlement may be part of the discussion among decision makers in the company.

Investigative Process and Goals

The goal of every workplace investigation is to determine whether the harassment occurred, and if so, to what extent the employer is liable. During the course of an investigation, it might become clear that settling the harassment claim is a wise move – particularly if the investigator discovers evidence of egregious conduct that would make any jury decide in the employee’s favor. But if the investigation reveals that the company’s employment practices are defensible, the organization may decide that settlement is premature.

Impending Litigation Outside of EEOC Activity

Some harassment claims that the EEOC investigates are found to have merit, and even though an employee files a charge of discrimination with the EEOC, she can move forward with legal representation and seek redress through the courts. An employee has to file a charge of discrimination with the EEOC first, but she doesn’t have to wait until the agency completes its investigation to file a lawsuit – she can request a right-to-sue letter from the EEOC if she wants to move forward with litigation. In some instances, employees immediately retain legal counsel with the desire to press forward with litigation as quickly as possible.

The decision concerning whether to file a lawsuit before the EEOC has finished investigating the claim is up to the employee and her legal counsel, if any, and in some cases, whether the employer’s actions were especially egregious. Once a formal lawsuit is filed and the discovery process is underway to uncover details about the employee’s claim, the company’s investigative approach and past practices, the cost of litigation compels some employers to consider out-of-court settlement before the trial begins.

Costs to Settle a Claim

The cost to settle a harassment claim out of court can be far lower than damages that a court might award. Small businesses that lose harassment lawsuits could be liable for upwards of $50,000 in damages – and larger organizations, up to $300,000. In addition, depending on how the employer postures its case, a jury could award much higher amounts for punitive damages – some headlines report jury awards in the millions of dollars. In addition, employers consider the intangible costs of fighting a harassment suit instead of settling it.

Settling harassment claims can save the organization from bad publicity, which can lead to business losses, plummeting employee morale and a sullied reputation in the business community.

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How Does an EEOC Complaint Hurt an Employer?

by Cam Merritt; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA

Updated March 1, 2019

When the federal Equal Employment Opportunity Commission (EEOC) receives a complaint that an employer illegally discriminated against its workers, that employer may be in for a rough ride. The ensuing months can bring time-consuming official requests for information, intrusive investigations, large legal bills, negative publicity and, if the complaint is upheld, expensive damages.

The EEOC Ground Work

The EEOC investigates complaints of discrimination based on race, color, national origin, religion, sex, age and disability. In general, only employers with 15 or more employees are subject to EEOC oversight. Any employee can file an EEOC complaint, not just those who have been victims of discrimination.

Inspection Procedure

Regardless of whether an EEOC complaint has merit, the employer is going to have to invest time, effort and sometimes money to deal with it. When a worker files a complaint, the EEOC notifies the employer and asks it for a “statement of position,” in which it offers its side of the story. The EEOC follows up with a formal request for the employer to supply documents and other information relevant to the case, such as copies of company human resources policies and personnel files.

EEOC staff may also visit the workplace, something that the agency itself acknowledges can be disruptive to company operations. While on site, the staff may ask the employer to make employees available for interviews. The employer can say no, but the EEOC can still contact them away from work – without the employer’s knowledge or permission.

A Typical Investigation Proceedings

All of this activity so far is simply fact-finding; the EEOC will use the information it turns up to determine whether the complaint merits further action. If so, it moves on to a formal investigation, which will chew up more time and money. The investigators have the authority to subpoena company documents, prohibit the employer from destroying any documents of any kind without permission and compel employees to provide statements.

The EEOC says the typical investigation lasts six months. If the employer doesn’t have an attorney involved in the case by now, it needs one to advise management of its rights and responsibilities. Robin Shea, a partner at the national employment law firm Constangy Brooks & Smith, says employers operating without a lawyer can turn even a seemingly trivial complaint into a major investigation by unintentionally admitting that a violation occurred or providing too much information.

Mediation or Costly Litigation

An employer may be able to avoid a formal EEOC investigation by agreeing to try to resolve the matter through mediation or by settling the complaint. Doing so will probably bind the employer to changing its policies and procedures, and the employer may have to compensate employees who complained. But the employer doesn’t have to admit any guilt or liability, and any agreements can remain confidential.

If the employer declines to mediate, or if the EEOC concludes that the case is too serious for mediation, the EEOC may sue the employer. Even if the EEOC decides not to sue – or take any action – the employees who filed the complaint reserve the right to sue. Regardless of whether the EEOC or the worker does the suing, litigation means not only considerable legal expense for the employer, but also bad publicity.

Penalties and Indemnifications

Penalties for an EEOC complaint – whether resolved through mediation, settlement or litigation – start with providing relief for workers who suffered discrimination. That includes paying workers’ back wages, reinstating them or even promoting them, depending on the nature of the complaint. Employers can be ordered to pay complainants’ legal and court costs. Things get worse if the case goes to trial and the employer loses.

The court can award compensatory and punitive damages to the employees who filed the complaint. Such damages are capped at $50,000 per person when the defendant is an employer with 15 to 100 employees; $100,000 for employers with 101 to 200 employees; $200,000 for 201 to 300 employees; and $300,000 for more than 300 workers. However, in cases of age discrimination and of sex discrimination in pay, the damages are limited to an amount equal to the complaining employees’ lost wages.

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Employment and Discrimination: Exploring the Climate of Workplace Discrimination from 1997 to 2018

HUMAN RESOURCES
ARTICLE
08/01/2019
Source: Paychex

Across the U.S., workplace discrimination on the basis of race, gender, religion, pregnancy, and disability is illegal. Of course, while all employers must follow federal laws regarding employment discrimination, specific state laws pertaining to hiring and employment prejudices can vary greatly from region to region.

As an example, 48 states have drafted equal pay laws. While Alabama and Mississippi have passed no such legislation, Georgia’s law only applies to businesses with 10 or more employees. Despite both state and federal laws addressing discrimination based on race, studies show hiring bias against black and Hispanic employees hasn’t improved at all in over two decades.

For a better understanding of employment discrimination in America today, we analyzed 21 years of data from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics.Read on as we break down the more than 1.8 million complaints filed with the EEOC since 1997.

Concerns in the workplace

From 1997 to 2018 (the last year data was available), there were 1,889,631 discrimination complaints filed with the EEOC. In 2017, a majority of these complaints were categorized as retaliation (49%), race (34%), disability (32%), or sex (over 30%).

Sixty-four percent were officially dismissed as having found no issue after investigation, and around 18% were closed for administrative reasons. According to the EEOC, cases closed for administrative reasons may include the charging party deciding not to pursue their case, lack of communication, or a withdrawal request from the charging party.

Discrimination rates, by state

A total of 916,623 discrimination cases were filed with the EEOC between 2009 and 2018. Of these cases, the highest rates of discrimination complaints occurred in Southern states. Complaints of discrimination and bias in the workplace were highest in Alabama (62.2 complaints per 100,000 residents), Mississippi (60.8), Arkansas (51.7), and Georgia (50.3).

While race claims are often the most commonly filed with the EEOC, they have the lowest percentage of success (15%) in terms of legal action or reaching a settlement.

Discrimination complaints between 2009 and 2018 were the lowest in Maine (2.5), Montana (2.6), New Hampshire (4.0), Idaho (4.3), and Nebraska (4.3).

Descriptions according to the EEOC

As we take a more detailed look at employment discrimination in America, it’s important to understand the different types of discrimination people encounter. For age discrimination, color and race discrimination, equal pay discrimination, national origin discrimination, religious discrimination, and sex discrimination, we’ve included descriptions according to the U.S. Equal Employment Opportunity Commission.

Now, we’ll explore each type of discrimination more closely, including which states have the highest percentage of complaints.

Statewide discrimination complaints

Alabama had the highest rate of employment discrimination complaints per capita, but it also had the most complaints regarding color and race (8.3), sex (9.7), and equal pay discrimination (1.1).

Even though pay discrimination based on sex has been illegal since the ’60s, critics argue it can be difficult to prove under normal circumstances. In Alabama, no state law protects women from pay inequity.

New Mexico nearly tied with Alabama for the most complaints centered on equal pay discrimination and led the country (along with Alabama) from 2009 to 2018 for age and national origin discrimination complaints. In 2016, there were 20,857 claims of age discrimination filed across the country, making it the ninth-consecutive year where employees alleged more than 20,000 cases of ageism in the U.S. workforce.

Making progress

While some states saw a decline in the number of discrimination complaints filed with the EEOC between 2009 and 2018, others saw dramatic increases. Despite a decrease in the number of color and race discrimination complaints in states like Minnesota (nearly 69%) and Oregon (57%), increases were much more substantial in states including Utah (almost 104%) and Connecticut (56%).

Similarly, the number of sex discrimination complaints between 2009 and 2018 more than doubled in Nebraska, followed by a nearly 109% increase in Massachusetts and 80% in Utah. Utah also ranked in the top five for the most complaints regarding age discrimination, color and race discrimination, national origin discrimination, and sex discrimination. Roughly 4 in 10 working women say they’ve experienced some form of discrimination at work due to their gender, including those who earn less than men for the same job, those who are treated as incompetent, and those who experience repeated slights in the workplace.

Changes in workplace discrimination

You might think with federal laws like the Equal Pay Act of 1963 or the Age Discrimination in Employment Act (ADEA), the rules surrounding workplace discrimination would be cut and dry. However, employees should be cognizant of how discrimination still exists in their industry. Shady hiring practices, unfair promotional structures, unequal pay, and retaliatory behavior are all signs of discrimination.

Between 1997 and 2018, there were over 710,500 discrimination complaints filed to the EEOC for one category: color and race. While the total number of cases dipped slightly from 2002 to 2005, there was an intense spike in color and race discrimination charges in 2006 that continued to climb into 2010. The total number of color and race discrimination charges remains higher than any other category of complaints.

Sex (570,360), age (422,866), and national origin discrimination complaints (198,689) also accounted for the highest number of discriminatory claims filed with the EEOC between 1997 and 2018.

Frequent cases of discrimination

Analysts suggest there are many reasons why the total number of discrimination claims continues to rise. From heightened awareness of what’s qualified as illegal behavior to increased coverage in the news of what discrimination looks like, more people may feel compelled to bring their concerns to the EEOC.

People reporting certain forms of workplace discrimination may experience similar issues. Among religious discrimination claims, reasonable accommodation was cited seven times more frequently than in any other claim. In 2019, a jury awarded one employee over $21 million in damages after determining that her employer, a Miami hotel, violated her religious rights by demanding she work on Sundays and firing her for noncompliance. After filing her complaint with the EEOC, the organization issued the employee a “right to sue” notice, thus supporting her legal claim against the company.

Discrimination based on an employee’s age can take many forms. Discrimination centered on age had the highest percentage of discriminatory firings according to the EEOC. Studies suggest 61% of employees over the age of 45 have either personally experienced or seen discrimination at work, and that can include the way they’re treated by existing employers, when looking for new work, and when terminated from existing employment.

Final resolutions

Discrimination in the workplace may not be uncommon, but it can be very difficult to prove. According to the AARP, nearly 2 in 3 employees between the ages of 55 and 65 cited age as a barrier to employment. Despite the high volume of complaints surrounding ageism, just 16% of cases focused on age discrimination merited a resolution for the charging party. At most, 22% of cases focused on equal pay led to a resolution, and fewer than 16% of cases that focused on color and race experienced similar results.

Between 1997 and 2018, the average case of discrimination related to equal pay compensated the charging party nearly $31,000. Combined, equal pay cases resulted in $157 million in monetary benefits. Both religion and color and race discrimination cases averaged the lowest overall monetary benefits — $13,000 and $14,900, respectively.

Protecting your employees

The U.S. Department of Labor enforces roughly 180 laws designed to safeguard workers from discrimination and bias, and the U.S. Equal Employment Opportunity Commission facilitates additional layers of protection for the same purpose. Still, despite federal and state laws geared toward illuminating discrimination in the workplace, more than 1.8 million cases have been filed with the EEOC in the last two decades. While a majority of charges brought to the EEOC were either unfounded or closed for administrative reasons, there’s been no major decrease in the total number of discrimination complaints reported to the EEOC since 1997.

At Paychex, we believe in helping businesses establish HR management services for where they are and where they want to go. With highly trained HR professionals, Paychex helps businesses just like yours streamline their HR services with powerful technology and expert support. With one platform, you’ll better understand your obligations as an employer, and your employees with have access to their payroll, benefits, and retirement directly from their mobile devices. Ready to learn more?Visit us at Paychex.com to get started.

Methodology

The data presented in this project are from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics. The most recent year of the data is 2018. It was accessed in July of 2019 for use in this project. The categories explored were age, color, race, equal pay, national origin, religion, and sex discrimination. Age discrimination reports fall under the Age Discrimination in Employment Act (ADEA) category in the original data. Equal pay discrimination falls under the Equal Pay Act (EPA) category in the original data.

The total number of cases was calculated using the “Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2018”data tables. The figure calculated only reflects the total number of individual complaints filed. It is possible for one individual to report multiple types of discrimination, and those multiple reports are not included in the total figure: 1,889,631.

For the graphic titled “Outcomes of Investigations,”the categories were altered for readability. These were the changes:

  • “Investigation found no issue” represents the EEOC’s “No Reasonable Cause”
  • “Closed for administrative reasons” represents the EEOC’s “Administrative Closures”
  • “Settlement” represents the EEOC’s “Settlements”
  • “Complaint withdrawn by charging party” represents the EEOC’s “Withdrawals w/Benefits”
  • “Considered for litigation” represents the EEOC’s “Unsuccessful Conciliations”
  • “Informal resolution reached between parties” represents the EEOC’s “Successful Conciliations”

Per-capita calculations per state were calculated using American census population data for 2018. The calculation is as follows: (Total number of discrimination reports per state/State population)*100,000.

Percentage change calculations for the graphic titled “Changes in Discrimination Complaints Over Time”are as follows: (Total number of complaints in 2018 – Total number of complaints in 2009)/Total number of complaints in 2009.

Average payout per charge calculations were done as follows: Total monetary benefits/Total number of merit resolutions per type of discrimination.

For graphics exploring the data by state, the available years were 2009 to 2018. For all other graphics, the data encompass 1997 to 2018.

The data were not statistically tested. Future research could also explore the current climate of disability, genetics, pregnancy, or retaliation discrimination complaints in the workplace — topics that were not explored in this analysis.

Sources

Fair use statement

For millions of people across the country, workplace discrimination is a real concern. The more people understand the laws, the more likely they are to report bias and discrimination. Help share the results of this study with your readers for any noncommercial use with the inclusion of a link back to this page.

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Is The EEOC Protecting Workers Or Discriminatory Employers?

Source: Forbes Magazine
 

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The Equal Employment Opportunity Commission (EEOC) is tasked by the U.S. Congress with enforcing federal laws that prohibit workplace discrimination but a recent analysis of EEOC complaints from 1997 to 2018 demonstrates how little the EEOC actually does with respect to enforcing those laws.

The analysis was conducted by Paychex, Inc., a Rochester, NY – based company that provides payroll, human resource, and benefit outsourcing services to small and medium sized businesses.

The Paychex data indicates the EEOC failed to failed to find discrimination in 87 percent of the almost 1.9 million cases filed by discrimination victims over the 21-year-period.

The EEOC found no reasonable cause for discrimination in 64.3 percent of cases, closed 18.3 percent for administrative reasons and 4.8 percent were withdrawn by the charging party.  The EEOC found reasonable cause for discrimination in only 4.6 percent of complaints and considered filing a lawsuit in only 3.2 percent of complaints.

Today In: Leadership

Annual statistics from the EEOC show that its percentage of reasonable cause determinations has declined considerably in recent years, from a high of 9.9 percent in 2001.  The EEOC found reasonable cause in only 3.5 percent of complaints in 2018; 2.9 percent in 2017, and; 3.2 percent in 2016.

Types of workplace discrimination complaints filed from 1997-2018

COURTESY OF PAYCHEX, INC.

Congress, in adopting federal anti-discrimination laws, required discrimination victims to file a complaint first with the EEOC before they could proceed to federal court.  Congress’ goal was to encourage employers’ voluntary compliance with discrimination laws, rather than forcing compliance on employers through litigation. However,  Paychex’ analysis, and others like it, raise troubling questions.

Does the formula devised by Congress fifty years ago, when it passed Title VII of the Civil Rights Act and the Age Discrimination in Employment Act,  actually work ?

How can the EEOC be seen to encourage employers to comply with federal discrimination laws when it imposes so few sanctions upon employers that violate the law?

But the problem goes deeper. Once the EEOC has determined there is no reasonable cause for discrimination, the EEOC sends complainants a “right to sue” letter.  By that time, many workers are  disillusioned by the EEOC’s dismissive handling of their complaint and considerable time has lapsed since the discriminatory event.  The EEOC’s administrative process  may actually discourage workers from taking discriminatory employers to court.

The 21-year-retrospective of EEOC complaint handling ultimately raises a question about whether the “system” is working to protect discrimination victims or is it, instead, helping to shield discriminatory employers from the consequences of violating federal civil rights laws?

Requests for comment on this article from the EEOC and EEOC Commissioner Janet Dhillon went unanswered.

It has been noted the EEOC has had the same budget, when adjusted for inflation,  since 1980. The EEOC received an additional $16 million from Congress last year due to an increase in sexual harassment complaints stemming from the “#Me Too” movement.  However, it is clear that Congress has failed to provide sufficient funding and oversight of the EEOC to promote fair and effective enforcement of America’s civil rights laws.

The Paychex analysis sheds light on other aspects of the EEOC complaint process. For example, Paychex found regional variations in complaint filings, with the South leading the way. Complaints of discrimination and bias in the workplace were highest in Alabama (62.2 complaints per 100,000 residents), Mississippi (60.8), Arkansas (51.7), and Georgia (50.3).  The states with the fewest discrimination complaints were Maine (2.5), Montana (2.6), New Hampshire (4) and Nebraska (4.3).

Average payouts over time.

COURTESY OF PAYCHEX, INC.

Among individual states, sex discrimination was the top charge for every state except Connecticut, Maine, Montana, Nebraska, New Hampshire, Ohio, Rhode Island and South Dakota, where age discrimination was the top charge.

Some types of discrimination complaints were more successful than others. According to Paychex, the percentage of successful resolutions per type of discrimination complaints over the 21-year-period was:

  • Equal pay, 22.1 percent;
  • Sex, 19.9 percent;
  • Religion, 18.2 percent;
  • National origin, 17.2 percent;
  • Age, 16.2 percent, and;
  • Color/race, 15.6 percent.

The highest per complaint payout in these categories went to the 5,138 equal pay cases, which yielded an average of $30,600. The lowest per complaint payout went to the 118,870 color/race- based complaints, which yielded an average of $14,900.

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MORE AND MORE WORKPLACE DISCRIMINATION CASES ARE CLOSED BEFORE THEY’RE EVEN INVESTIGATED.

INJUSTICE AT WORK

Published — June 14, 2019

Rep. Alexandria Ocasio-Cortez, D-N.Y., speaks at an event in support of the Paycheck Fairness Act. The legislation, which passed the House but has yet to come up for a vote in the Senate, aims to address unequal pay for women. (AP Photo/J. Scott Applewhite)

It’s a problem that starts with Congress.

This story was published in partnership with Vox.

INTRODUCTION

It’s a classic Washington catch-22: For years, Congress has chastised the agency that investigates workplace discrimination for its unwieldy backlog of unresolved cases while giving it little to no extra money to address the problem.

In turn, officials at the U.S. Equal Employment Opportunity Commission have found a workaround: Close more cases without investigating them.

Since 2008, the EEOC has more than doubled the share of complaints involving companies or local government agencies that it places on its lowest-priority track, effectively guaranteeing no probes, mediation or other substantive efforts on behalf of those workers. About 30 percent of cases were shunted to that category last year, according to internal data obtained by the Center for Public Integrity through a public-records request.

Only 13 percent of all complaints the EEOC closed last year ended with a settlement or other relief for the workers who filed them, down from 18 percent in 2008.

Source: U.S. Equal Employment Opportunity Commission

Chicago-based accountant Richard Nelson went to the EEOC’s office in March to file a complaint that said he needed help getting his employer to make a few accommodations for disorders including attention-deficit/hyperactivity, his right under the Americans with Disabilities Act. His case was shut before the appointment ended.

“I think they’re looking for slam dunks,” Nelson said. He was told that given the office’s small staff and the level of evidence he had in emails with his employer, the EEOC couldn’t proceed. Instead of trying to settle or mediate the matter, the agency mailed him a piece of paper telling him he could file a lawsuit, which he would have to do on his own dime.

“I don’t want to sue anybody. I just want to be treated fairly,” he said.

Since 1980, as the U.S. workforce has grown by 50 percent, Congress has kept the EEOC’s funding essentially flat — budget increases eaten away by inflation.  That’s meant more cases without the resources to handle them. Last year the EEOC took in more than twice as many complaints as it did nearly four decades earlier, with about half the staff.

Gabrielle Martin, a 30-year EEOC attorney and president of the National Council of EEOC Locals No. 216, said the agency’s decision to send more cases to the “killing fields” — closing them without investigation — is a problematic solution to budget and resources woes.

“If they don’t continue to dump cases, Congress will say, ‘Well, what did you do with the money we gave you?’” Martin said. But they can’t make the case for more funding, she said, if they appear to be succeeding without it.

The EEOC defended its handling of complaints in a statement, saying it’s gathering more information early on so people with stronger evidence can get the assistance they need. Last year, the agency put more cases into its high-priority pool than it has since creating the ranking process in 1996, nearly 26,000 in all.

But the share of workers the EEOC helped get a settlement or other relief — that 13 percent — barely budged from the previous year. And the workers deemed low priority were almost all out of luck: Of about 27,000 cases, less than half a percent got relief.

Attorney Jaz Park assists low-wage workers with discrimination claims through Chicago-Kent College of Law’s employment clinic. She said she’s noticed an increase in cases closing within a few weeks without any apparent investigation from the EEOC.

In one case, a retail employee with 21 years on the job was fired shortly after being diagnosed with a heart condition. Her employer claimed she was fired for forgetting to give a customer a receipt. “If you take the time, you see it just doesn’t add up,” Park said.

Stacy Villalobos, an attorney for Legal Aid at Work, a nonprofit that provides legal services for low-income workers, said the EEOC’s categorization “oftentimes has nothing to do with the merits of the case.” Frequently, she said, information that would prove a worker’s allegation is in the hands of the employer.

“There may be merit,” she said, “but without an investigation, you may never know.”

Source: U.S. Equal Employment Opportunity Commission

‘EMOTIONALLY DRAINING’

The EEOC requires an interview with most workers before they can file a complaint. That filters out tens of thousands of potential cases from entering its system in the first place. More than 60 percent of people who inquired about filing last year ultimately didn’t — the highest dropout rate in at least 15 years — for reasons such as discrimination laws not covering their situation or the process daunting them.

Most of the complaints deemed low priority were filed by workers who continued past this weeding-out step.

To reduce its backlog, the EEOC must close more cases than it receives each year — and with fewer investigators. The agency employed about 500 last year, 140 fewer than a decade ago. It also handles a separate load of federal employees’ complaints; that too has a backlog.

This has been wearing on the agency’s workers. In 2018, almost half of EEOC staff said in a government survey that they didn’t have the resources to do their jobs, higher than average for federal agencies. The agency had the highest percentage of staff strongly disagreeing that their workload is reasonable, as well as the highest percentage strongly agreeing that the work they do is important.

“It’s really, really emotionally draining,” said former EEOC regional attorney Charles Guerrier, who was based in Birmingham, Alabama, before leaving in 2012. He said he advised staff to make peace with not being able to help every worker. The budget was so tight, he said, that sometimes his office would run out of paper because there wasn’t money to buy more.

At the agency’s San Diego office, former district director and mediator Tom McCammon said employees regularly went into work on weekends to spend unpaid hours finishing cases. Even so, he said, sometimes so much time passed before investigators got to a case that they couldn’t reach the complainant — the phone number was dead, the home address no longer valid.

“In the meantime, cases are stacking up by the hundreds with no investigation,” said McCammon, who left in 2013. “Each one of those files is a person who had a problem.”

‘FAILURE TO PAY ATTENTION’

For years, the EEOC’s standing with Congress has fallen into the same category as an increasing number of its cases: low priority.

The agency competes with 11 others in its appropriations subcommittee, including high-profile ones like NASA and the Department of Justice, for funding from a limited pool. Hearings focused on the EEOC’s performance and needs are scheduled only once every few years, and they’re often dominated by discussions of the backlog and lawsuits against employers that members of Congress object to the agency pursuing.

Congresswoman Eleanor Holmes Norton, who headed the agency from 1977 to 1981, is one of the few members of Congress who have consistently pushed to bolster protections for employment discrimination. But as the representative for Washington, D.C., she has no vote.

Her perspective: Most lawmakers have little interest in fighting discrimination.

“Failure to pay attention to the EEOC is to leave a lot of people out in the cold,” said Norton, a Democrat. “Nothing can overcome a backlog that grows from lack of funding.”

Rep. Eleanor Holmes Norton (D-D.C.) (AP Photo/Susan Walsh)

There are some signs of a shift. Last fiscal year, after eight years of flat funding that meant the agency’s budget was effectively shrinking because of inflation, the then-Republican-controlled Congress approved a $15 million increase for the EEOC. What it took was the #MeToo movement’s viral spotlight on sexual harassment. Fifteen senators and 71 representatives, all Democrats, asked the appropriations committees to give the agency more money.

But Congress approved no increase for this year, letting some of that boost evaporate as the cost of living rose. Eighty-four members of Congress, all Democrats, have requested a $20 million boost for next year. President Donald Trump is proposing a $23.7 million cut instead.

About 25,000 complaints last year involved sex discrimination, sexual harassment or both. Race and disability discrimination each accounted for virtually the same number, though neither issue has caught Congress’ attention.

The leaders of the House and Senate subcommittees that control the EEOC’s funding did not respond to interview requests. But these panels that play an outsize role in determining what the agency can do have twice as many men as women. Of their 28 members, only four identify as African American, Hispanic or Asian American. None identify as Native American.

Together they take in far more contributions from business interests than groups representing workers — at least 27 times the amount in the latest election cycle, according to data from the Center for Responsive Politics.

That creates a challenge for the EEOC. As Victoria Lipnic, then acting chair of the agency, pointed out in her latest budget justification to Congress, “our primary stakeholder” is “the American workforce.”

Martin Luther King Jr. (center left) and other civil rights activists take part in the March on Washington for Jobs and Freedom on Aug. 28, 1963.  The march pressured John F. Kennedy’s administration to propose strong civil rights legislation and built on previous organizing efforts that opposed discrimination against black workers. (AP Photo)

A HAMSTRUNG AGENCY

Some of the limits imposed on the EEOC by lawmakers have nothing to do with money.

In December, Sen. Mike Lee, R-Utah, held the Senate back from confirming three commissioners — a vote that required unanimous consent at that point — over his objection to another term for Chai Feldblum, an Obama appointee and the EEOC’s first openly lesbian commissioner.

“The federal government should never be used as a tool to stamp out religious liberty,” he said, alleging that Feldblum would use her position to do so in the name of LGBTQ rights. (Feldblum wrote last year that she believes this is not a “winner-take-all” game and that the government should look to accommodate religious beliefs while still achieving “the compelling purpose of the law.”)

Without those three commissioners, the bipartisan agency lacked a quorum, which by rule prevented it from filing higher-cost or higher-profile lawsuits against employers. In May, the Senate finally resolved that problem by confirming Chair Janet Dhillon — two years after she was nominated.

In the past two years, Lee has also introduced legislation that would strip most of the power from the National Labor Relations Board, which enforces workers’ right to organize; repeal the Davis-Bacon Act, which aims to guarantee prevailing wages for federally funded construction workers; and allow employers to give time off instead of paying overtime wages.

Reached for comment, Lee spokesman Conn Carroll said the senator was not the only elected official who had objections to Feldblum’s confirmation and that Democrats could have chosen to vote on the other nominees separately. (Commissioners are commonly approved as a group.) The spokesman said each of the employment-related bills Lee introduced, none of which passed, would “increase the freedom of workers to work.” Last election cycle, Lee received $4.5 million in contributions from business interests and $8,000 from labor groups.

Two of Lee’s bills were co-sponsored by Sen. Lamar Alexander, R-Tenn., chairman of the Senate committee that reviews labor legislation and a member of the subcommittee that handles EEOC appropriations.

Alexander has been more attentive to the EEOC, and its backlog, than most lawmakers. When the agency proposed collecting wage data by sex, race and national origin from large employers as part of a cross-agency effort to curb pay discrimination in 2016, for example, he wrote to the White House’s Office of Management and Budget to request that it squelch the idea. Among his concerns was that collecting pay data from employers — which business associations including the U.S. Chamber of Commerce opposed — would further delay the resolution of EEOC cases.

U.S. Sen. Lamar Alexander (R-Tenn.) (AP Photo/Mark Humphrey)

“The proposal is likely to worsen that backlog as the EEOC will now be sifting through the billions of pieces of new data instead of focusing on its mission of investigating complaints of discrimination in the workplace,” he wrote.

However, Ron Edwards, a former EEOC official who led the initiative, said the agency actually planned to use the extra data — which would be collected and analyzed electronically — to resolve complaints more efficiently.

Alexander also introduced the EEOC Reform Act, which would have barred the agency from collecting pay data until it reduced its backlog by about 90 percent. Though the bill was unsuccessful, he had more luck with the OMB, which in 2017 stayed the EEOC’s collection of the data. That decision was reversed this March following a lawsuit by the National Women’s Law Center and the Labor Council for Latin American Advancement. The Department of Justice has filed an appeal.

Last election cycle, Alexander received more than $7 million in contributions from business interests — 130 times what he received from labor groups. Alexander, who has said he won’t seek reelection next year, did not respond to multiple requests for comment.

Edwards, who worked at the EEOC for nearly 40 years, knew the pay information would be a powerful tool to correct discrimination — and that employers didn’t want to turn it over.

“The real crux of employment is pay,” said Edwards, who retired in 2017. “If you collect the pay data, you get a better sense of how people are being treated.”

Chad Griffin, president of the Human Rights Campaign, spoke to advocates for LGBTQ rights before a House vote on the Equality Act of 2019. The bill, which passed the House in May but has yet to come up for a vote in the Senate, would prohibit discrimination based on sexual orientation or gender identity. (AP Photo/J. Scott Applewhite)

In recent months, Democrats have introduced bills, in some cases co-sponsored by a handful of Republicans, to strengthen discrimination law enforcement, including measures to address the gender pay gap, improve protections for LGBTQ workers and prohibit non-disclosure agreements in workplace harassment cases.

None has passed.

Labor economist William Spriggs isn’t surprised by that or the funding constraints that affect workers’ chances of help at the EEOC. Congress’ treatment of employment discrimination and workers’ rights, he said, is par for the course in the U.S.

“There is a tendency in society to think of labor law as littering or something,” he said. “They don’t think of it as an actual violation.”

 

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What Makes a Work Environment Hostile?

Legal Guidelines Exist That You Need to Know to Define a Hostile Workplace

BY  

What constitutes a hostile work environment? Some employees believe that a bad boss, an unpleasant work environment, a rude coworker, failure to qualify for a promotion, or the lack of perks, privileges, benefits, and recognition can create a hostile work environment.

And, yes, admittedly, many of these issues do contribute to an environment that may not be especially friendly or supportive of employees. The environment without employee friendly offerings can be awful. A bad boss contributes particularly to an environment that employees may see as hostile.

Traditionally, bad managers took the brunt of the blame when employees quit their job. (More recent thinking is that a lack of career development and opportunity is a larger contributor.) All of these factors can make an environment seem hostile to an employee’s wants and needs. And, they are.

A boss who verbally berates you about your age, your religion, your gender, or your race is guilty of creating a hostile work environment. Even if the comments are casual, said with a smile, or played as jokes, this does not excuse the situation.

This is especially true if you asked the individual to stop and the behavior continues. This, by the way, is always the first step in addressing inappropriate behavior at work—ask the inappropriately behaving boss or coworker to stop.

    • The actions or behavior must discriminate against a protected classification such as age, religion, disability, or race.
    • The behavior or communication must be pervasive, lasting over time, and not limited to an off-color remark or two that a coworker found annoying. These incidents should be reported to Human Resources for needed intervention.
    • The problem becomes significant and pervasive if it is all around a worker, continues over time,
    • and is not investigated and addressed effectively enough by the organization to make the behavior stop.
    • The hostile behavior, actions, or communication must be severe. Not only is it pervasive over time, but the hostility must seriously disrupt the employee’s work. The second form of severity occurs if the hostile work environment interferes with an employee’s career progress. For example, the employee failed to receive a promotion or a job rotation as a result of the hostile behavior.
    • It is reasonable to assume that the employer knew about the actions or behavior and did not sufficiently intervene. Consequently, the employer can be liable for the creation of a hostile work environment.

Dealing With a Hostile Work Environment

The first step an employee needs to take if he or she is experiencing a hostile work environment is to ask the offending employee to stop their behavior or communication. If an employee finds this difficult to do on his or her own, they should solicit help from a manager or Human Resources.

 

When inappropriate behavior is coming from another employee, they are your best in-house resources. They also serve as your witness to the fact that you asked the offending employee to stop the behavior.

 

You want to put the offending employee on notice that their behavior is offensive, discriminatory, inappropriate, and that you won’t tolerate the behavior. (In the majority of cases, the employee will stop the behavior. They may not have realized the degree to which you found the actions offensive.)

 

These resources will help you address a hostile work environment before the hostility escalates. You can pick between dealing with difficult peopledealing with a bully, holding a difficult conversation, and practicing conflict resolution skills.

 

They will all help you increase your skill in dealing with the coworker creating your hostile work environment. These skills and ideas may be all that you need since many bullies are spineless when confronted.

 

Especially in instances where you have reported the behavior of a manager or supervisor to the appropriate manager or HR staff member, the behavior must stop. Additionally, the reported individual may not retaliate against you as a payback for your reporting of his or her improper behavior.

 

An employee who experiences a hostile work environment, and has attempted to make the behavior stop without success, though, should go to his or her manager, employer, or Human Resources staff. The first step in getting help is to ask for help. Your employer must have the opportunity to investigate the complaint and eliminate the behavior.

 

A later hostile workplace lawsuit you institute will flounder if the employer was unaware of the situation and had not been given the opportunity to address the behavior and hostile environment. This is in your hands because, in most workplaces, hostile, offensive behavior is noticed and addressed when it is obvious or seen by many employees.

 

Employees rarely need to address the behavior on their own. When the behavior is not widely viewed or if it happens only in secret without witnesses, you must bring the hostile behavior to your employer’s attention.

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