Tag Archives: eeoc

EEOC May Get Cozier with Conciliation Under Gustafson

I appreciate contributing to the below article posted to Bloomberg Law  written by Jacquie Lee and Jay-Anne B. Casuga.

Sharon Fast Gustafson, the general counsel nominee for the EEOC, hopes to focus more energy on mediation than litigation, which she described as “necessary” but also an “expensive, imperfect tool.”

“Resolution of disputes without litigation is an important part of the lawyer’s job, just as it is an important part of the EEOC’s function,” she said before the Senate Health, Education, Labor and Pensions Committee April 10. As general counsel of the Equal Employment Opportunity Commission, Gustafson would manage the agency’s litigation program.

Gustafson’s emphasis on conciliatory measures mirrors sentiments expressed by Janet Dhillon, the nominee to chair the EEOC. That could signal that the agency might become less aggressive in filing lawsuits against employers and more prone to mediation and conciliation. Dhillon, who also awaits Senate confirmation, said “litigation truly is a last resort” in testimony before the same committee Sept. 19.

A Bloomberg Law analysis of Gustafson’s track record appears to support her stance on avoiding potentially lengthy litigation. Since becoming a solo practitioner in 1995, Gustafson has negotiated settlements or voluntary joint dismissals in more than 80 percent of the employment discrimination cases in which she represented workers in federal court.

The high number of Gustafson’s settlements doesn’t surprise Jonathan Segal, a partner at Duane Morris LLP in Philadelphia. The vast majority of cases don’t make it to court, he said. Her settlement rate is what he’d expect from a litigator, he said. It shows she’s “pragmatic and she resolves cases where she can.”

Gustafson’s Litigation Stats

Gustafson has been viewed as a somewhat unusual choice by President Donald Trump to be the EEOC’s top litigator. Republican administrations typically choose agency general counsels with more management-side experience, while Democrats usually appoint attorneys with a background representing workers.

Gusfason represented workers in nearly all of the federal labor and employment cases—42 out of 43—in which she appeared as an attorney.

Of those cases, 19 involved workplace discrimination claims brought by employees against companies, including United Parcel Service, Marriott International, and the District of Columbia. She represented an employer in one federal discrimination case. The claims in those cases are based on many of the same laws that the EEOC enforces. Gustafson also has represented workers in federal wage and hour litigation under the Fair Labor Standards Act, as well as in employee benefits lawsuits under the Employee Retirement Income Security Act.

Gustafon’s clients agreed to dismiss their claims after reaching settlement in 16 of the 20 discrimination cases. One of the cases settled at the appeals court level following the employee’s jury trial win. Another case settled after the worker scored a victory before the U.S. Supreme Court.

Fewer Class Actions?

Employees nationwide filed more than 84,000 discrimination charges with the Equal Employment Opportunity Commission in the 2017 fiscal year. The agency filed 201 lawsuits, 30 of which were systemic cases. It has averaged a “favorable outcome” in more than 90 percent of its suits since fiscal year 2010, according to agency annual reports. The commission, however, doesn’t specify how many of those outcomes are court decisions or settlements.

The agency has made it a priority in the past few years to root out systemic discrimination, which involves a broad pattern of bias within a certain industry or company.

Gustafson emphasized the importance of individual discrimination lawsuits in her Senate HELP Committee hearing April 10.

“One of the best ways to attack discrimination and to get higher compliance is to keep going against those small individual claims and never let up,” Gustafson said. “I feel strongly that the EEOC should be doing both.”

Most of the agency’s lawsuits are on behalf of individuals. Of the 182 discrimination lawsuits the agency filed in fiscal year 2017, 124 were on behalf of individuals. The proportion of such lawsuits might rise under Gustafson’s leadership, given her statement and considering her federal track record shows no discrimination class actions, at least after 2005.

Consequently, some expect Gustafson might be inclined to address systemic discrimination through individual cases rather than class actions, Segal told Bloomberg Law.

A discrimination case against UPS, in which Gustafson represented a pregnant employee, is a good example, Segal said. That pregnancy accommodation case made its way to the Supreme Court, where a majority of justices in 2015 sided with the worker.

“It was an individual claim, but it had class implications,” Segal said. “It doesn’t mean she won’t look at systemic issues, she just may not bring them by class.”

That might be a winning strategy if the agency wants to combat sexual harassment in the courtroom, an issue the EEOC has been tackling for years but has put renewed emphasis on since the #MeToo movement began.

The nature of sexual harassment cases makes them difficult to litigate as a class because the circumstances can vary greatly between victims, Carolyn Wheeler, a former assistant general counsel for the agency, told Bloomberg Law.

“It’s not that it can’t be done, but you need to do a really exhaustive investigation before you file a case like that,” Wheeler said. That sucks up EEOC resources and time, both of which are already stretched thin at the agency.

Take the large number of women who sued Carrols Corp., a Burger King franchisee, because they allegedly faced sexual harassment and retaliation from managers, she said. The company eventually settled with the 89 women for $2.5 million, but a judge said the EEOC couldn’t pursue a class claim for that case because the agency failed to show a “pattern or practice” of sexual harassment.

“That’s how courts have looked at a lot of these cases,” Wheeler said. “Agree with that or not that’s the state of the law.”

17 Tips for Anti-Harassment Training

I am pleased to share my latest SHRM post reflecting on the EEOC’s report regarding harassment in the workplace.

The recent release of the Equal Employment Opportunity Commission (EEOC) report on sexual harassment shouldn’t be cause for a collective yawn. Rather, the report contains the seeds for great ideas to fight harassment of all stripes, including that based on race, gender, national origin and religion.

EEOC Chair Jenny Yang first announced the creation of a Select Task Force on the Study of Harassment in the Workplace early last year, and her message then was simple: We have made a lot of progress, but the problem persists.

Fast-forward to June, which was the 30th anniversary of the Supreme Court’s recognition that sexual harassment is a form of sex discrimination. After more than a year of study, including numerous public hearings, EEOC commissioners Chai Feldblum and Victoria Lipnic issued their report.

One key aspect of the study is the importance of training supervisors and management. Let’s focus on the following 17 tips for upgrading your training that are based not only on specific recommendations from EEOC commissioners but also on my own advice. (Note: While I served on the task force, I speak for neither the EEOC nor the task force.)

1. Ensure that the training is interactive and facilitated by a qualified trainer. If your employees are passive participants, the training will not achieve its full potential. Ideally, the training should be live. If that is not feasible for cost reasons or because employees are geographically dispersed, you can consider an online alternative, but it should have an interactive component.

2. Confirm that support comes from the highest levels.Without the endorsement of senior leaders, the training likely will be seen as a mere “check-the-box” exercise. Executives should attend the event and ideally provide opening or closing comments. Leaders must make it clear that everyone will be held accountable for complying with the requirements covered in the training.

3. Clarify that the training should be taken seriously. The purpose of this exercise is not simply to sensitize supervisors; it is to help them keep their jobs. Make it clear that the employer, like the courts, holds supervisors to a higher standard than other employees.

4. Emphasize the business risks of engaging in or tolerating harassing behaviors. Such risks include lost productivity, lower employee retention and the employer’s tarnished reputation. Simply put, harassment is bad for business.

5. Provide specific examples of unacceptable behaviors as opposed to making general statements. Examples must be customized so that they resonate in your workplace. Canned training is a waste of everyone’s time.

6. Focus on risk factors that increase the likelihood that harassment will be tolerated. These include a homogenous workforce and workers who are dependent on customers’ tips and may be afraid to speak up. Supervisor training must focus on how these risk factors may increase the potential for harassment so that managers can address problems before they occur.

7. Emphasize what is unacceptable vs. what is illegal.Employers don’t want to suggest that behavior is unlawful when it might not be. For example, in most cases, one comment is not actionable. You also don’t want to imply that unacceptable behavior is OK simply because it is not significant or pervasive enough to violate the law.

8. Describe both severe and subtle examples of harassment. If employers don’t include the less obvious examples, supervisors may define harassing behavior too narrowly. On the other hand, if blatant behaviors are excluded, managers may fail to address what they cannot imagine anyone doing even when it does indeed take place.

9. Address unlawful harassment in all its forms.Harassment can be based on a person’s race, ethnicity or religion. And don’t forget that gender-based harassment, even if it is not sexual in nature, is also against the law.

10. Provide supervisors with guidance on how to respond in the moment. If supervisors aren’t taught what to say from the very moment an employee reports harassment to them, they may say something unwise such as, “That doesn’t sound like Mark.” Make it simple: Supervisors should say, “Thank you for bringing your concerns to my attention. We take them very seriously.”

11. Emphasize that supervisors cannot promise absolute confidentiality. Managers should report all complaints to HR as a matter of course. However, if they aren’t informed of this step in advance, and they agree to an employee’s request to keep a complaint confidential, then they cannot tell anyone, despite the legal and business risks that go with having notice and doing nothing.

12. Train supervisors to respond proactively to unacceptable conduct. Managers who see, hear or otherwise become aware of harassing behavior should follow up, even in the absence of a complaint. To be silent is to condone. This is why the EEOC recommends that so-called bystander training be incorporated into supervisory education efforts. This type of training is based on the premise that witnesses or others who become aware of harassing behavior (bystanders) play a key role in stamping out harassment.

13. Emphasize nonretaliation. Fear of retaliation is the primary reason employees do not raise concerns when they should. Employers must define retaliation as broadly as the law in terms of who is protected (not just complainants) and what is prohibited (not just discipline and discharge). Examples of other prohibited retaliatory actions include changing the amount of work given to employees, shifting the nature of assigned tasks and excluding workers from key meetings. Emphasize that retaliation of any kind against a person who reports or witnesses harassment will be met with immediate and proportionate corrective action.

14. Provide civility training. Even though rude or uncivil behavior is not unlawful unless it relates to a protected group, incivility is the gateway to harassing behavior. Therefore, the EEOC recommends that employers conduct civility training. True, civility training can create problems with the National Labor Relations Board. But for supervisors who are not covered under the National Labor Relations Act (NLRA), such training can be infused not only into anti-harassment training but also performance management training without risk of violating the NLRA, if structured properly.

15. Use humor carefully. Appropriate humor can sometimes ease tension so that participants are more open to the training, but it is very important not to minimize the seriousness of the issue. In my experience, humor is best used to poke fun at those who defend inappropriate behavior: “He really thought that if he called her at home off the clock to share his lustful feelings for her, it was not harassment. Perhaps he should be fired for both harassment and stupidity.”

16. Evaluate and re-evaluate. Elicit specific feedback about what resonated with employees and what they want to know more about. Discuss which behaviors do not qualify as harassment, such as a nondiscriminatory but tough management style.

17. Convey that the solution is not to avoid those who are different from us. Trying to avoid harassment claims by avoiding certain groups of employees altogether may constitute unlawful discrimination. Provide specific examples on how supervisors can engage in mentoring and promote social inclusion within a diverse workforce.

EEOC Commissioners Feldblum’s and Lipnic’s Clarion Call to Prevent and Stop Harassment

I am pleased to share my latest post to the SHRM blog regarding the EEOC’s report on the prevention of workplace harassment.

Today marks the 30th Anniversary of the Supreme Court’s holding that sexual harassment is a form of sex discrimination. It seems obvious to all of us today, but it was not at the time the EEOC took the position. It was not until SCOTUS said the EEOC was right that the EEOC’s enforcement position became the law of the land.

Today, SHRM had the honor of having EEOC Commissioners Chai Feldblum and Victoria Lipnic present, to an overflowing crowd, “Agency Update: EEOC’s Task Force on Harassment in the Workplace.”  After receiving a warm introduction from Lisa Horn, SHRM’s Director of Congressional Affairs, who acknowledged the strong relationship between SHRM and the two EEOC Commissioners, the two EEOC Commissioners talked about the reason for the Select Task Force, the study it conducted and the report it is releasing today (Check out www.eeoc.gov).

The Task Force was announced in January of 2015 by the EEOC’s Chair, Jenny R. Yang. Her message: We have made a lot of progress, but the problem is persistent. She named Commissioners Feldblum and Lipnic as Co-Chairs of the Task Force.

Commissioners Feldblum and Lipnic made clear the purpose of the Select Task Force was to prevent harassment before it becomes actionable. This includes not only sexual harassment claims but also harassment claims based on other protected groups, such as race, color, age and religion.

Last year alone, the EEOC collected $164.5 million for workers in cases alleging harassment. That does not include recoveries by plaintiffs’ lawyers.

For employers, however, harassment is not only an economic risk, but also a business risk. First, there is the reputational cost. There also is decreased productivity and higher turnover.

The Commissioners emphasized that having policies and procedures is not enough.  According to the Commissioners, the importance of leadership is key.

Leaders must make clear that harassment will not be tolerated.  But a commitment (even from the C-Suite) is not enough.   Like all other employees, leaders must be held accountable for what they do—and what they don’t do.

There must be a “proportionate” response to harassing behavior.  To use an expression familiar to all of us in the HR community, “one size does not fit all.”

But, it is more than holding all employees accountable for unacceptable conduct, even “superstars” who bring in the money.  The Commissioners emphasized we must hold accountable those whose job it is to prevent and correct harassment.

Although these were not the precise words used, the message for supervisors and above was clear: to see or hear harassing behavior and do nothing is to condone it.

Throughout the discussion, the Commissioners made clear that, when talking about harassment, they were talking about inappropriate behavior with regard to a protected group (such as sex, race or ethnicity), even if it does not rise to the level of severity or pervasiveness to be actionable.  The goal: to stop it before it becomes actionable.

That led to a critical discussion about training. The Commissioners made clear that, while training is necessary, it alone is not enough.  Rather, it must be part of a “holistic culture of non-harassment that starts from the top.”

Further, to be effective, the training ideally should be “live, in person and customized to your workplace.”  Moreover, the training should be developed with “risk factors” in mind.

The EEOC report that will be released tomorrow includes “risk factors” that make harassment more likely.  Younger workers, workers who work in remote locations and those who are dependent on tips, for example, are at particular risk.

Based on my experience, I agree fully with the EEOC that the training must focus on what is inappropriate, even if it is not necessarily unlawful.  If you focus only on the legal, then individuals who engage in inappropriate conduct may feel more secure in their inappropriate conduct because it is neither severe nor pervasive enough to be illegal.

The EEOC Commissioners also talked about “bystander training” that is common on many school campuses.  They talked about adopting this kind of training so that co-workers feel empowered to intervene and have the tools to do so.

Recognizing that the law does not require civility, the EEOC Commissioners also called for civility training. Feldblum said that incivility and disrespect are “gateway drugs” for harassment. I agree.

Stated otherwise, if you tolerate incivility and disrespect, your culture will be fertile for harassment claims. I surely hope the NLRB was listening.

To minimize your NLRB risk, employers are well advised to give examples of civil and uncivil behavior. Providing specific examples, properly phrased, makes it less likely that the NLRB will believe a reasonable person will perceive the guidance as discouraging behavior protected by section 7 of the NLRA.  So there is no confusion, this is my take on how to mitigate (not eliminate) the risk.

An underlying theme is the importance of creating not only policies, but also a culture that brooks no retaliation. Fear of retaliation is the number one reason why employees suffer in silence.

According to studies cited by the Commissioners, approximately 70-percent of employees who feel harassed do not report it.  That is not good for them or their organizations.

The EEOC’s presentation was a clarion call for all of us to do more to prevent and stop harassment. It will not go away on its own. It’s on all of us, with HR playing a key role, to be part of the fight.

On a personal note, it was an honor to have been on the Task Force with co-SHRM member Patricia Wise.  I think I can speak for Patty and me in saying that we both learned  a great deal as a result of the study and dialogue, and we are ready to help do our part in helping companies do the right things for their employees and themselves by eliminating the persistent but conquerable problem: workplace harassment.

Finally, at a time when we see so much dysfunction in Washington, D.C., it was inspiring to see the bi-partisan collaboration of Commissioners Feldblum and Lipnic.  Bi-partisanship is not dead—at least not at the EEOC.

This blog is not legal advice.

Bye, Bye, Bad Precedent

I am please to share below my most recent blog for SHRM:

As we all know, in EEO termination claims, how we treat the “comparators” is critical. Two (2) key questions:

1. Did you let anyone else go for a same or similar reason?

2. Did you not let someone else go even though they had engaged in same or similar conduct?

What do you do if you have an inconsistent practice historically?

If you take a hard line, you may get an EEO claim. You are treated more harshly than X because of my [insert protected group or protected activity].

If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.

The beginning of a New Year is a great time to minimize the risk of bad precedent.

Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2016, you will do X consistently.  You may even want to communicate something to that effect to the workforce (but without directly stating that there may have been prior inconsistencies).

What is the benefit?  You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2016 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.

This does not eliminate the legal risk.  But it should minimize it materially. And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.

Almost all predict that 2016 is going to be a difficult year. To meet your business needs, you will need agility without being bogged down by bad precedent.

Of course, it is more complicated with unions. You may need to negotiate with the  union. At a minimum, you always should provide the union with notice.

Bad precedent is, well, bad. Now is an ideal time to start making good precedent. Happy New Year.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP

The 6th Circuit Decision on the ADA & Telecommuting: Important But Not Surprising

In the EEOC v. Ford Motor Company, the Sixth Circuit recently held that telecommuting could be a reasonable accommodation under the ADA for the employee at issue.  Commentators have described the decision as everything from “ground breaking” to opening up the “flood gates” to telecommuting accommodation requests.

I am not surprised by the Sixth Circuit’s decision.  I am a bit surprised by the reaction to it. Continue reading The 6th Circuit Decision on the ADA & Telecommuting: Important But Not Surprising

She’s Too Sexy For Her Job

The all-male Supreme Court of Iowa re-affirmed its holding that an employer did not engage in sexual harassment when an employee was fired by her boss because he found her sexually irresistible. He was afraid that, if she remained employed, he would not be able to control the temptation to have a sexual relationship with her in violation of his marital vows.

The Court held this was not because of her gender but because of his “feelings” specific to the employee.  But wouldn’t that same analysis apply to quid pro quo harassment?  Quid pro quo harassment occurs, among other circumstances, where an employer fires a particular employee because she or he refuses to submit to “sexual feelings” that a manager has for her or him. Continue reading She’s Too Sexy For Her Job

Wellness Programs: Gaps In Guidance

Last week, the federal DOL issued HIPAA regulations on wellness programs setting forth both restrictions and requirements.  The regulations were issued pursuant to the Affordable Care Act, aka as Obamacare.

But the Affordable Care Act is not the only law that employers must consider.  There are many other federal and state laws that may affect wellness programs, too. Continue reading Wellness Programs: Gaps In Guidance