Tag Archives: eeoc

1456
author_image
Jonathan A. Segal
Partner
Share

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.”

About Jonathan A. Segal
1456
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
1218
author_image
Jonathan A. Segal
Partner
Share

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.

About Jonathan A. Segal
1218
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .

| Education that empowers your leadership.