Workplace discrimination is illegal, yet it persists. Here's why
Estimated reading time: 16 minutes
Thousands of people report job discrimination to the government each year. Employers are rarely held accountable.
Ron Law walked into the break room at work one morning and found a noose hanging from the ceiling.
It was one of eight nooses that black employees reported discovering at the Austal USA shipyard, according to court filings. They were part of a chilling pattern, the workers alleged: Racist graffiti regularly appeared in the men’s restrooms — the workers described images of hanging men, threats against specific employees, and Ku Klux Klan references scribbled inside stalls and on mirrors and walls.
Sometimes, workers said, slurs were etched into the ships Law and others helped build for the US Navy. Law also said he heard a white supervisor refer to black employees as “monkeys” over his walkie-talkie. Austal, which denied in court filings that its employees experienced any illegal treatment, did not respond to multiple interview requests.
In late 2006, Law and 18 of his fellow black coworkers sought relief through the US Equal Employment Opportunity Commission, the agency created to investigate workers’ complaints of job discrimination. A year later, their case still not resolved, they gave up waiting on the EEOC for help.
That’s how it often goes. Each year, the EEOC and its state and local partner agencies close more than 100,000 cases — but workers receive some form of assistance, such as money or a change in work conditions, only 18 percent of the time. Employees seeking help are even less likely to get it now than when Law went to the agency.
No group of workers alleging discrimination — age, gender, disability, or otherwise — fares well. Race claims, however, are among the most commonly filed and have the lowest rate of success, with just 15 percent receiving some form of relief, often compensation.
John Hendrickson, who spent 36 years as an EEOC attorney in Chicago before retiring in 2017, said too many cases are falling through the cracks. “In some offices it was really amazing how little discrimination they found,” said Hendrickson, who was head of litigation for a six-state region. “Many of [the cases] weren’t professionally investigated.”
To understand how well the nation protects victims of employment discrimination, the Center for Public Integrity, a nonprofit investigative newsroom in Washington, DC, analyzed eight years of complaint data from the EEOC as well as its state and local counterparts. It reviewed hundreds of court cases and interviewed dozens of people who filed EEOC claims, which are made under penalty of perjury.
What emerged is a picture of a system that routinely fails workers.
Complaint data obtained from the EEOC for fiscal years 2010 through 2017 — a rare window into a largely obscured problem in America’s workplaces — shows that the agency closes most cases without concluding whether discrimination occurred. Sometimes, workers’ lawyers say, an EEOC investigation involves no more than asking the employer for a response.
A key part of the issue, according to experts and former EEOC employees, is that the agency doesn’t have the resources for its mammoth task. It has a smaller budget today than it did in 1980, adjusted for inflation, and 42 percent less staff. At the same time, the country’s labor force increased about 50 percent, to 160 million.
If the agency had additional staff, former EEOC Chair Jenny Yang said, it would likely confirm more workers’ allegations of discrimination. It generally takes more time for investigators to make a finding of discrimination than to close a case based on insufficient evidence, she said.
The system’s weaknesses disproportionately hurt black workers. Just over a quarter of all EEOC complaints came from black employees alleging racial discrimination.
EEOC Commissioner Charlotte Burrows, appointed by President Barack Obama in 2014, defended the agency’s efforts while acknowledging that it is stretched thin. She said it tries to widen its impact through strategic lawsuits and public outreach. Last year, the EEOC filed 199 lawsuits against employers and won $505 million for workers.
The agency isn’t even seeing the full picture, Burrows said. “The people who come and report to us,” she said, “are sort of a tip of the iceberg of what the problems are.”
The EEOC, in short, can’t come close to fulfilling the mission Congress gave it more than 50 years ago. The agency was the Civil Rights Act’s attempt to eradicate job discrimination from a nation plagued with it, but it’s never had the money and support to do it.
Discrimination at work is a problem. It’s not being properly addressed.
The problem of workplace discrimination in the US — treating people unequally because of their race, gender, religion, or other fundamental part of who they are — isn’t usually expressed through slurs or physical threats of the sort alleged by the Austal workers. Complaint data shows that it can often manifest in more subtle ways, such as the assignments workers are given, the pay or benefits they receive, and the ways their performance is judged and rewarded.
It can also happen in the hiring process, before an applicant even begins a job. A groundbreaking study published in 2003 found that employers were more likely to consider white candidates with criminal records than black candidates with no such history.
Though the law places the burden on employees to prove discriminatory intent or impact, when hard evidence of unequal treatment exists, it is often buried in personnel records only the employer can access. And even making an accusation can come at a price: Almost 40 percent of people who filed complaints with the EEOC and partner agencies from 2010 through 2017 reported retaliation.
“Over time, the way in which people discriminate, what they acknowledge and admit out loud, has changed,” said Chicago lawyer Linda Friedman, who represented 700 workers in a race discrimination lawsuit against Merrill Lynch that resulted in a $160 million settlement in 2013. “But the ultimate end, which is differential treatment — treating whites more favorably than African Americans — has not changed.”
Black workers are 13 percent of the US workforce, but racial discrimination against this group accounts for 26 percent of all claims filed with the EEOC and its partner agencies.
Some of those claims in recent years came from employees of UPS who went to court after getting nowhere through the EEOC. Their lawsuits alleged discriminatory actions including assignments, discipline, terminations, and promotions — ordinary business practices the workers said were warped to produce unjust results.
Frank Schirripa, a lawyer for one of the UPS workers, said he sees this all the time. “Management will create a fiction to try and make it look like the victim was doing something wrong,” he said.
When his client, Jason Jessup, was fired by UPS in 2015, the company pointed to a long list of alleged performance problems. None of them, on the surface, had anything to do with race.
Prior to his termination, Jessup, a black driver based in Uniondale, New York, was regularly disciplined, UPS records show. Among the alleged infractions: failure to take lunch, not wearing UPS socks, making an unsafe turn, absences, and tardiness. One time, he said, a manager called him in for breaking a driving rule that didn’t exist. “I would have to always look back and double-check and triple-check,” Jessup said. “I knew anything I did, if I did anything wrong, they were looking for it.”
Today, as he has all along, Jessup disputes each of the company’s allegations, saying they were either false or the result of misunderstandings. For example, he said, UPS would claim it hadn’t received his sick leave notices, even though he’d filed them. He began making copies and saving his fax machine receipts.
He also started keeping a voice-activated audio recorder in his pocket to have proof of what he and anyone else said. When his dolly was stolen, he said, he was accused of pilfering it himself to resell. According to a federal lawsuit Jessup filed against UPS in 2017, a supervisor told Jessup, “I’ve seen this before. People like you are hard up for cash.” Police later identified a nonemployee as the thief.
Four other black drivers who also worked at the Uniondale facility filed suit against UPS in 2016 and 2017, alleging race discrimination. They weren’t able to discuss their cases because of confidential settlement agreements or ongoing litigation.
In 2016, UPS settled a discrimination case — similar to Jessup’s — brought by a black driver based in Aiken, South Carolina. Brady Kemp, a shop steward and 37-year UPS employee, accused his supervisors of concocting reasons to discipline him and justify his firing after he complained of racial inequity at the company. He alleged, among other things, that they gave him a route so challenging he was virtually guaranteed to make late deliveries.
In an email to the Center for Public Integrity, a UPS spokesperson wrote that while the company couldn’t comment on these cases, the workers withheld relevant facts about their situations and the claims aren’t representative of UPS’s culture or leadership.
“Diversity and inclusion is a core UPS value,” the spokesperson wrote. “We do not tolerate hate, bigotry or prejudice. When an allegation of perceived discrimination is reported, UPS completes a thorough investigation and takes appropriate action.”
Jessup, however, said he had a different experience.
In 2012, he was appointed assistant union shop steward in Uniondale. One of his duties was to accompany other workers to meetings when they were accused of making mistakes. He and two other former shop stewards said they observed and documented a pattern of black drivers being punished for transgressions that white drivers got away with.
One former steward, Michael Costanza, has worked at three UPS facilities over 17 years. He overlapped with Jessup in Uniondale for seven. “I used to look at [Jessup] and say, ‘How does this guy get out of bed every day knowing what he’s going to have to deal with day in and day out?’”
Costanza, who is white, said he hopes to testify in court on Jessup’s behalf.
After submitting multiple complaints to the EEOC to no effect, Jessup filed his lawsuit in 2017. In June 2018, UPS asked the judge to dismiss the case, a request that is still pending in the Eastern District of New York.
The company denied Jessup’s allegations, saying that even if Jessup had been subjected to racist behavior, his allegations were insufficient to bring in front of a jury: Of “approximately 2,261 working days, plaintiff identifies less than 20 allegedly harassing incidents or statements — or less than .009 percent of the time,” the company said in the court filing. “Put another way, this amounts to approximately one incident every 113 working days — or about 2 to 3 instances per year. This is not even close to ‘pervasive,’ or the requisite ‘steady barrage’ necessary for a viable claim.”
More than three years after he was fired, Jessup said he hasn’t recovered from his time at UPS. He can’t afford to see a therapist. “I’m still a wreck,” he said. “I’m still depressed. I’m still stressed.”
Research has shown that chronic stress caused by discrimination can contribute to mental and physical health problems. Dr. Monnica Williams, a clinical psychologist and an expert in race-based stress and trauma who counsels people grappling with the fallout from mistreatment at work, said the challenges of reporting such behavior often take an additional toll.
“People think that there’s a safety net for them, but there isn’t,” she said, “and that’s pretty difficult to understand and accept.”
The EEOC is weak by design
When the EEOC was created under Title VII of the Civil Rights Act of 1964, it was initially given few tools to enforce the law. It could investigate complaints, try to mediate between companies and employees, and recommend cases to the US attorney general for litigation, but it couldn’t sue or issue cease-and-desist orders. If an employer didn’t want to follow the law, there was little the agency could do about it.
”We’re out to kill an elephant with a fly gun,” then-EEOC Chair Stephen N. Shulman told the Wall Street Journal in 1967.
Its weakness was by design. Many members of Congress were opposed to instituting broad federal protections against workplace discrimination. More than 200 fair employment measures failed in the two decades before the Civil Rights Act passed.
One opponent of the act was Rep. Howard Smith (D-VA). Two days before the act passed, he inserted sex discrimination into the protections afforded by Title VII — but not for benevolent reasons. A supportive Democratic colleague, Rep. George Andrews of Alabama, explained the logic. “Unless this amendment is adopted,” Andrews said on the House floor, “the white women of this country would be drastically discriminated against in favor of a Negro woman.”
Another provision made it a criminal offense for the EEOC to reveal the identities of employers accused of discrimination. That restriction remains to this day.
In 1972, though, the EEOC won the power to litigate against employers. At the same time, schools and state and local governments lost their exemption from Title VII, giving coverage to 10 million more workers. Separate laws granted protections against discrimination based on age or disability.
While the EEOC’s responsibilities grew, its staffing dropped. Today, workers must wait two to three months for an appointment to file a complaint. The share of EEOC cases in which workers got relief fell from about 19 percent in 2007 to about 13 percent in 2017.
What happens to workers the agency doesn’t help is shrouded by a lack of data. But large numbers appear to give up. Many workers who sue — generally permitted only after they seek assistance from the EEOC or its partner agencies — file in federal court, where workplace discrimination cases number less than 15 percent of annual EEOC claims. An increasing share of workers are blocked from suing because their employers require private arbitration, and research suggests that flaws in that system have sharply limited the number of claims filed.
And now, to make matters worse, the EEOC’s leadership is in flux. Three of its five commissioner seats are vacant. The Senate has delayed confirming President Donald Trump’s nominees for more than a year — prompting one to withdraw — and didn’t reconfirm Democratic Commissioner Chai Feldblum when her term expired in December.
That’s left the bipartisan commission without the quorum the agency needs to file higher-cost or higher-profile lawsuits against employers. The agency’s general counsel nominee is also awaiting confirmation.
But even confirming these nominees may not solve much. Trump’s nominee for EEOC chair, lawyer Janet Dhillon, has spent much of her career as a general counsel for corporations. Litigation, she said in her testimony before a Senate committee in September 2017, should be a “last resort.”
Civil rights advocates fear that having Dhillon at the helm will further hurt employees’ chances at the agency. The NAACP said in a letter of opposition that her record “demonstrates that her priorities lay solely with employers, not with the workers.”
“The law was not written for us”
In 2005, the first year he worked at the Austal shipyard in Mobile, Ron Law had no intention of speaking up about the written threats he said he found in the bathrooms or the training opportunities he said he was denied.
Growing up, Law’s parents had taught him racism was a reality he would have to deal with. The job itself offered a living wage (though Law said he heard of white apprentices earning $17 per hour, while he initially made $15) and health insurance. He had been honing his craft — shipfitting — for a few years before he got to Austal and could read blueprints to piece together ships out of metal sheets. He wanted to stay.
But by 2006, Law, along with welder Tesha Hollis and a few other black workers at Austal, had had enough. They decided to find a lawyer and report their experiences to the EEOC. The risk of retaliation held back some of their colleagues. “It was so many people that didn’t want to get on the lawsuit when they had every right to get on it. They were just job-scared,” Hollis said.
To this day, Hollis can recite the racist jokes and slurs she said she heard and saw at Austal. At one point, a few workers said they saw a picture of Hollis drawn in the men’s restroom with a crude caption. She alleged that a supervisor, a white man, told her about it while pretending to masturbate.
“It just got to be too much,” Hollis said. “People were just getting up to go to work to make money to take care of their families, and they had to go and be subjected to that.”
Soon, 19 workers, including Law and Hollis, had filed EEOC complaints.
The company, in response, denied that it acted illegally in any way. Among its defenses: One-fourth of its workforce was black; the workers hadn’t reported the alleged behavior to supervisors; and the company had an equal employment policy, outlined in a handbook given to all employees. The workers who filed complaints had claimed that there were no black supervisors at Austal, but the company corrected them, saying eight of 111 were black.
About a year after they filed complaints with the EEOC, the initial group of employees asked the agency for permission to go to court. Four of their colleagues joined them in the lawsuit.
Austal asked a federal judge to dismiss the cases without going to trial. “When taken as a whole,” the company wrote in a filing about Law’s claim, the “allegations lack the frequency, severity, threatening nature, and impact required to maintain an action for hostile environment.”
US District Judge Kristi DuBose, nominated to the Southern District of Alabama by President George W. Bush in 2005, threw out 13 of the workers’ cases, including Law’s and Hollis’s. The judge said the cases weren’t strong enough to meet the legal standard. (The other 10 workers went to trial and lost.)
DuBose supported her decision by citing a 2005 lawsuit that didn’t survive the so-called summary judgment stage, when a judge can toss a complaint without a trial. In that older case, she wrote in the Austal ruling, threats to “kick plaintiff’s ‘black ass’” and the use of racial slurs, including the n-word and “boy,” reflected conduct that was “isolated,” “sporadic,” and “random.”
In Law’s case, DuBose wrote, the evidence did not show “the conduct — apart from the racially offensive graffiti — was frequent, severe, physically threatening (with the exception of the nooses), humiliating, demeaning and/or unreasonably interfered with his job.”
“I don’t know what else you have to do to make it hostile,” Law said in a recent interview. For him, the nooses at the shipyard posed a palpable threat: After all, one of the last documented lynchings in the United States took place in Mobile in 1981. “That was a kicker for me — like, you know this really could happen,” Law said.
When an appeals court reevaluated the 13 workers’ claims in June 2014, it agreed with DuBose’s judgment for six of them but decided that what the others said they had endured actually did meet that standard.
It didn’t make a difference, though. The jury sided with Austal when those seven remaining cases, including Law’s and Hollis’s, went to trial the following year. Not a single employee was compensated. Most were eventually laid off, workers said.
Workers face steep odds when employers in the Southern District of Alabama seek summary judgment like Austal did. In 2016 and 2017, 89 percent of employment discrimination cases in which employers requested summary judgment in that district were fully or partially dismissed, a Center analysis found.
Interpretations of hostile work environment standards can differ between courts and judges — in 2017, for example, a Third Circuit Court of Appeals judge in Philadelphia wrote that a supervisor calling a subordinate a slur even once could be sufficient.
Birmingham lawyer Heather Leonard, who has represented workers in discrimination cases in Alabama for 20 years, said it’s frustrating to compare notes with lawyers in other parts of the country. “Cases that they get tremendous verdicts on, we’re like, ‘We wouldn’t be able to even accept that here because we couldn’t get it through summary judgment,’” she said.
For Ron Law’s wife, Marsha, the Austal case’s outcome was disappointing but not surprising. “I’ve said it and I’ll say it probably till the day I die,” she said. “The law was not written for us.”
Their case has had damaging ripple effects for other employees. In 2017, for instance, Judge W. Keith Watkins of the Middle District of Alabama, who, like DuBose, was appointed by former President Bush, cited Austal as he dismissed seven of 12 workers’ claims in a hostile work environment case out of Enterprise, Alabama.
Black welders and painters testified to regularly hearing slurs, threats, and other derogatory comments over years of employment at a trailer manufacturing company. Watkins pointed to several Austal employees who had experienced “much worse” but were nonetheless unsuccessful in the appeals court.
What would qualify as hostile? To answer that, he quoted a 1971 appeals court decision: “environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.”
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See the original article here: https://www.vox.com/policy-and-politics/2019/2/28/18241973/workplace-discrimination-cpi-investigation-eeoc
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