Can You Trust Your Company's HR Department?

A fellow blogger has a post out this week titled "Who Do You Report Harassment To If the Harasser Is the CEO?".  It is a thoughtful article and it makes the excellent point that HR for every company needs to bake into their policies a method by which an employee can internally report sexual harassment being committed by the CEO or owner of a company without risk of retaliation. I think that is an excellent goal to strive for and I hope that all HR departments set that as a goal.  There is only one problem with the premise of the article. 

The effort will almost certainly fail. 

Michael Corleone: "C'mon Frankie... my father did business with HR, he respected HR."
Frank Pentangeli: "Your father did business with HR, he respected HR... but he never trusted HR!"

 

 

HR is, in my opinion, possibly the most challenging role for any manager to do and do well. It is arguably designed to fail. The problem is obvious: HR serves two masters. On the one hand, HR is designed to serve as a helpful ombudsman to employees. To assist employees who are being mistreated. To conduct thorough investigations and correct inappropriate behavior against employees. On the other hand, HR is required to defend management against accusations of unlawful employment practices. HR is usually directly involved in the termination decisions that lead to EEOC filings. HR is then in charge of or at least heavily involved in drafting the company's defensive statement of position filings, arguing that the company is blameless. Thus, the very department that an employee is supposed to trust with his or her career and feel comfortable making a complaint to is the same department that will be spearheading the fight against the employee when it all goes south. 

What this means in most companies is that, no, you cannot trust HR to help you. While many HR officers have their hearts in the right place when they start working in the field, they can't help but know who is responsible for signing their paychecks. Hint: it's not the employee bringing a complaint against a member of management.  

So, should you bring complaints to HR? Yes, you should. In fact, in many cases you are legally required to do so or you risk waiving any claims you may have against the company for the discrimination or harassment you are reporting. Just don't assume that HR's only role is to help you. Because it isn't. While HR may be trying to assist you they are also assessing corporate risk, documenting your complaint in a way that will assist the company in defending against your complaint, and looking for ways to satisfy the demands of management. 

Here are a couple of quick tips: 

  1. Make all reports in writing. When push comes to shove down the road, HR is liable to either not "remember" you made a complaint or to remember it substantially differently than you do. Putting your report in writing is the only way to prove you made a complaint, when you made it, and to whom the complaint was made.  
  2. You know that written report from number 1, above?  KEEP A COPY. A written complaint does you know good if you send the only copy to HR. It might...you know...get lost. 
  3. Consider going outside the organization to the EEOC. If your complaint involves EEO-based (age, sex, race, religion disability, color) discrimination or harassment then consider making a complaint to the EEOC sooner rather than later. There will be little question that a report to the EEOC is protected activity under the law. This gives you a somewhat higher level of protection from retaliation than if you merely report internally. 
  4.  Consult with an employment lawyer. If you are in a situation in which you feel you need to make a complaint against management then, make no mistake, you job IS at risk. Start looking for a qualified employment attorney who represents employees. Be warned, in many parts of the country there aren't that many who lawyers who specialize in representing employees. So start looking before you need one. And don't expect such a lawyer to visit with you for free. This is not a simple car accident case and you aren't looking for a PI lawyer who can take your case on a contingent fee basis. Employment law is very specialized and contingency fees are generally not available for consulting services. If you find a qualified lawyer to advise you, however, it is money well spent. 

Bottom line: Yes, you should report harassment or discrimination internally to your company's HR department. But that doesn't mean you should blindly trust the HR department. Understand that they serve two masters and protect yourself accordingly.  

File a Charge With the EEOC Immediately Or Risk Losing Your Case

Some prospective clients are surprised to learn that most of wrongful termination or sexual harassment matters than an employment lawyer handles cannot be taken straight to court. This is, unfortunately, true.

Most cases having to do with discrimination or wrongful termination relating to an EEO category (age, race, sex, disability, etc) must go through a required administrative process before a lawsuit can be filed. Even more confusing is the fact that you may have more than one administrative agency to choose from when deciding where to file. Does it matter where you file? Sometimes yes. This administrative process and the choices that must be made early on in your case is one of the best reasons to consider hiring a lawyer earlier rather than later. More on why that is later. Short of that, here are some answers to some of the more basic questions regarding administrative filings:

What Types Of Cases Must Be Filed Administratively?

If your case involves potential claims for discrimination or termination based on an EEO category (age, race, sex, disability, religion, etc) then you probably need to file administratively. Claims for sexual harassment or retaliation for making a complaint or participating in an investigation of an EEO-related matter also must be filed administratively.

When Do I Need to File? Short Answer: IMMEDIATELY.

No really. The limitation periods for these types of claims vary depending on numerous factors but they are all short. In many states you will lose your right to pursue an action if you don’t file a Charge with the EEOC within 180 days of the event or occurrence you are complaining about. If you are a federal worker the deadline can be as little as 45 days. These are hard, fixed deadlines. There is no extending them because you had a good reason for delay. In many states, you only have 180 days to file a charge with the EEOC or lose your right to sue FOREVER, no matter how blatant the discrimination.

Where Do I Need to File

The default place to file your discrimination, sexual harassment or retaliation Charge is with the Equal Employment Opportunity Commission. They have offices in most metropolitan areas. Learn more here: http://eeoc.gov/employees/charge.cfm. You can also file a Charge by contacting them by phone at (800) 669–4000 (be prepared to wait an hour or more). However, depending on where you live, it might be better to file with a state or city agency that has a work-sharing agreement with the EEOC. Contact an employment lawyer near you to help you decide what is the best course of action in your area.

What Is the Process?

Filing a Charge is relatively easy once you arrive at the agency’s offices. You fill out a short form and then meet with an investigator who will complete the Charge documents for your signature. Each field office has its own procedures for appointments or walk-ins so check the website or call ahead for best results. It is always helpful if you bring with you to the meeting any information or papers that will help the investigator understand your case. For example, if you were fired because of your performance, you might bring with you the letter or notice telling you that you were fired and your performance evaluations. You might also bring with you the names of people who know about what happened and information about how to contact them.

Important: Keep in mind that the EEOC (and similar state agencies) can only investigate issues having to do with terminations and/or discrimination relating to EEO issues or retaliation for having made a complaint regarding EEO issues. They don’t investigate overtime or other pay issues and cannot help you if your termination is just because “my boss was mean.” Your issue must be EEO-related.

What Happens Next?

Once you have filed a Charge you may be invited to mediation. This is a topic for another article but the short version is that mediation is a voluntary process where the two sides of the dispute (you and your employer) sit down with an EEOC mediator for free to see if you can work out your differences and reach a pre-suit settlement. It is an excellent free service that the EEOC provides and I highly recommend it for most cases. Keep in mind, however, that you will benefit from having a lawyer with you at a mediation unless your case is so small that you wish to settle it for very little money (typically less than $15,000.00. If your case is worth more than this baseline amount, having a good lawyer will typically enhance the value of your case by more than you will end up paying your lawyer in fees up front or in a contingent fee on the back end.

How Do I Find A Good Lawyer?

This can be a difficult task but it is worth your time to find the right lawyer for your case. Geography plays a big role here. In some parts of the country there will be many qualified lawyers to choose from. In other areas there will be few. To get started, review my article on How to Hire an Employment Lawyer.

EEOC Releases 2014 Statistics

The Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014.

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

"Behind these numbers are individuals who turned to the EEOC because they believe that they have suffered unlawful discrimination," said EEOC Chair Jenny R. Yang. "The EEOC remains committed to meaningful resolution of charges and strategic enforcement to eliminate barriers to equal employment opportunity."

The updated data include the popular tables of Statutes by Issue and Bases by Issue. "Bases" refers to the protected characteristics giving rise to the discrimination, such as sex or age. In contrast "issue" is the discriminatory action, such as discharge or failure to promote.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.

  • Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
  • Race (including racial harassment): 31,073 (35 percent)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
  • Disability: 25,369 (28.6 percent)
  • Age: 20,588 (23.2 percent)
  • National Origin: 9,579 (10.8 percent)
  • Religion: 3,549 (4.0 percent)
  • Color: 2,756 (3.1 percent)
  • Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision
  • Genetic Information Non-Discrimination Act: 333 (0.4 percent)

These percentages add up to more than 100 because some charges allege multiple bases, such as discrimination on the bases of race and color, or sex and retaliation.

In fiscal year 2014, 30 percent of the charges filed with EEOC alleged the issue of harassment on various bases, such as race harassment or harassment on the basis of disability. Preventing harassment through systemic enforcement and targeted outreach is a priority issue for the Commission. The January 14, 2015 Commission meeting focused on Workplace Harassment. The new table for All Harassment Charges includes sexual harassment as well as other forms of harassment. Sexual Harassment still remains as a separate table, joined by new tables showing charges of Race Harassment as well as Charges Alleging Harassment Other than Sexual Harassment.

Discharge continues to be the most common issue for all bases under Title VII, the ADEA and the ADA. Allegations of harassment for all bases were the next most frequently cited issue, with the exception of race. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue (9,332), with harassment being the third (9,023).

The updated tables also include Charges by State. The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363).

Texas Loses Its Suit Against The EEOC Over Agency’s Criminal Background Check Guidance

The fight rages on with regard to the EEOC’s position on hiring checks based on criminal backgrounds. In a very high profile cases addressing this issue filed against the EEOC by the State of Texas, Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas issued a decision in State of Texas v. EEOC, Case No.5:13-CV-255 (N.D. Tex. Aug. 20, 2014), granting the EEOC’s motion to dismiss the state’s lawsuit.

The state’s lawsuit was based on the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Under Title VII” and argued that the agency did not have the authority to issue the Guidance and that the EEOC’s position that Title VII trumps conflicting state laws violates Texas’ state sovereignty. Judge Cummings rejected the State’s arguments in this first-of-its-kind attack on the EEOC’s authority.

It should be noted that the state went to some lengths to file the case in such a way as to have it come before Judge Cummings, presumably because the state’s legal team believed he would be sympathetic to their argument. His dismissal of the action at a very early stage of the litigation should, therefore, send a strong signal as to how federal judges will likely view suits of this nature against the EEOC.

Source: Seyfarth Shaw’s EEOC Countdown Blog

Federal Judge: Anti-Discrimination Laws Have Been "Gutted"

As we prepare to celebrate the fiftieth anniversary of the March on Washington and the passage of the Civil Rights Act of 1964, that law has been gutted. This seems to be the growing consensus among academics, employment attorneys and judges. Harvard Law School professor and former federal judge Nancy Gertner writes about the sad state of affairs in this article. Judge Gertner now teaches law at Harvard and was for many years one of the most distinguished federal trial judges in the nation. Gertner writes about a study that was commissioned to review the 2011 and 2012 summary judgment orders in employment discrimination cases in the Northern District of Georgia. Of the 181 cases where the plaintiff had counsel, the Court dismissed 94 percent of them at least in part, and 81 percent in full. Racial hostile work environment claims were dismissed 100 percent of the time.

But don't go thinking that these results from Georgia are an aberration.  They aren't. As Judge Gertner points out, "[t]he Georgia results mirror the results nationwide. 60 percent of motions for summary judgment are granted in general, but in employment discrimination cases, the court dismisses from 70 to 95 percent of the cases."

The simple truth of the matter is that federal judges from trial courts to the Supreme Court have interpreted the Civil Rights Act virtually out of existence. This is so across judicial philosophies, across the political spectrum and even across presidential appointments. Gertner writes:

Women, minorities, people over forty and the disabled bring discrimination cases only to lose in overwhelming numbers. So little do the judges think of discrimination claims that they rarely allow them to get to a jury at all. Federal courts have legitimized practices that would have horrified the early supporters of the Act.

This is rapidly leading to a situation in which employees who have suffered discrimination can't even obtain qualified legal counsel to represent them. Fewer and fewer good lawyers will represent plaintiffs in these cases because the odds are stacked against them regardless of the strength of the case.

Unfortunately, if these trends don't change, the protections against discrimination envisioned by those who authored the Civil Rights Act may vanish forever. As the study cited by Judge Gertner points out, even cases with incredibly strong facts are statistically likely to be thrown out by a judicial system that has become hostile to even the most valid of discrimination claims.  Take the example case cited by Gertner's article - a racial harassment case in which the plaintiffs alleged that their employer had created a racially hostile environment:

Mr. Whorton used the N-word at manager meetings and went out of his way to use that term despite plaintiffs’ objections. Defendants used the N-word “on virtually every occasion” they were present at the club, and it “was not uncommon” for that term to be directed towards plaintiffs. On one occasion, Mr. Whorton called a staff meeting to address the issue of his use of the N-word. During that meeting, he stated that he was too old to change the way he spoke, and he invited anyone who did not like it to quit. On another occasion, Mr. Whorton stated, “What do your people want? When this was a white club, my customers used ashtrays. Ever since the n—–s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n—–s is that n—–s put their cigarettes out on the floor.” Plaintiffs allege four additional comments. First, Mr. Whorton once asked an unspecified person or persons whether “days like this [make] you wish you people had stayed in chains?” Another time, Mr. Whorton saw someone wearing a shirt with a monkey on it and asked, “Are the Obama shirts in?” Mrs. Whorton once said she realized she was using the classical form of the N-word when she should have been using the contemporary form. Lastly, Mr. Whorton complained to plaintiff that he could not trust African Americans, and said, “Dwayne . . . look at me! I know you don’t like this – n—–s don’t appreciate s–t.”
Here, viewed in the light most favorable to the plaintiffs, the facts simply show that the Whortons are racist, bigoted, and/or offensive people. However, “Title VII is not a civility code, and not all profane or [racist] language or conduct will constitute discrimination in the terms and conditions of employment."

That's right, the court granted summary judgment against the plaintiffs in this case. The court held that this case was not even strong enough to warrant a jury trial.

Surprised by the result? Unfortunately, I am not. Any plaintiff-side employment lawyer can rattle off a long list of strong discrimination cases that the courts have poured them out on. It has become so bad that few new lawyers are willing to join the thinning ranks of plaintiff-side employment lawyers. Sadly, I can't blame them.

I learned of Judge Gertner's article while reading U.S. District Judge Richard Kopf's excellent Hercules and the Umpire blog article "When it comes to employment cases, judges are killing the Civil Rights Act of 1964." He has done a study of his own cases similar to the Georgia study (see here and here). Turns out his own dismissal rate of employment discrimination cases was just as bad as those courts studied in the Georgia study.  He writes: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”

While I appreciate his candor, I do respectfully differ with Judge Kopf to the extent that he seems to imply that he feels his hands are tied with regard to this issue. The fact of the matter is that the letter of the law does not "favor the granting of summary judgment motions in a high percentage of [these] cases." Quite the opposite. The letter of the law states that summary judgment is a tool to be used sparingly and only to weed out the most meritless of cases. The default is always supposed to favor the resolution of factual disputes by a jury trial.

Unfortunately, many judges have, perhaps subconsciously, adopted a clear bias against victims of discrimination that has worked its way into the very fabric of how the judiciary approaches these cases. It has become the norm. It has become acceptable. But, it isn't in the letter of the law. It just isn't.

If there is a solution, it will have to start in the district courts. Summary judgment motions are primarily in the control of district court judges. Yes, courts of appeal weigh in but they generally support the district courts with regard to summary judgment rulings. Truly, the only way this situation can be remedied is if district court judges take a long hard look at their approach to discrimination cases and realize the degree to which bias has become a normal part of courts' analysis of summary judgment motions. The Supreme Court has never required that the idiotic McDonnell Douglas burden analysis be used in any case. In fact, a strong argument can be made that it violates F.R.C.P. 56 because of its rigidity. The only purpose McDonnell Douglas serves is as a way to make application of a bias appear to be application of a technicality. The lawyers and courts all know it isn't a legitimate test - that's why we don't ask juries to follow it in the few cases that make it to trial.

My modest proposal: dump the hyper-technical, bias-disguising tests. Get back to the basics. The letter of the law is actually quite simple - if there is a question of fact, the case must go to a jury. If there is any evidence that the decision at issue may have been motivated by illegal discriminatory bias then the case should not be summarily dismissed. It should be resolved by a jury trial. It really is just that simple.

As we approach the 50th anniversary of the passage of the Civil Rights Act of 1964, the question before us is whether we will we be celebrating a birthday or a funeral? The answer to that question is now in the hands of the district courts.