Judge Keenan is the first woman jurist from Virginia to serve on the Fourth Circuit

Walmart has been the defendant in a number of other cases ranging from disability and race discrimination to wide ranging allegations that its managers required workers to work off the clock.  But it has moved past the boycott days, when the systematic refusal to pay benefits and keep hours low put many of its workers on state medical assistance and food stamps.

The EEOC’s website notes that it is hiring more investigators, and it appears to be going after bigger fish, making bigger waves in the fight against discrimination.  Its settlements are not secret, and require the employer to be under scrutiny for a period of time, and to make up for past discriminatory actions.  In the warehouse case, Walmart will fill the first 50 open positions with women, then give every other position to a woman, and then every third.  After those first 150 positions, it is hoped, management at the facility will be used to women working in the warehouse, and will apply neutral standards.

One in four workers translates into more than a quarter of American families affected, since so many families have two wage-earners. The administration intends to scrutinize the procurement process, and favor companies with good records on labor and the environment, and those with good wage structures. Naturally this potential executive order has drawn fire. Critics contend that the cost of government contracts will increase, that union shops will be favored, and that many companies will drop out of contention. The article points out a Maryland study, however, that shows the opposite. When Maryland required contractors to pay a living wage (higher than minimum wage), more contractors placed bids. “Some higher-wage companies said they began seeking government bids because the new policy leveled the playing field.” In addition, the drain on government resources by the working poor would decrease. Moreover, some evidence indicates that the lowest paying contractors do not produce the same quality work as the companies that pay higher wages and provide employee benefits. No executive order has issued yet, and critics questioned whether legislation would be necessary to change the procurement process. The ramifications could be significant, however, in reversing the rising gap between the most and least affluent in this country.

But neighbor Washington sits at 35.  Its median household income is $57,936, but its home values are much higher.  So while District residents are wealthier on paper, we all know how having a high home value is not particularly helpful when the gas bill is due, and even harmful when the mortgage bill is due.

This study, though, was not looking at the risk of foreclosure, or even unemployment rates, but how much wealth a city can boast, in the aggregate.  Washington’s higher salaries, and probably more stable federal government jobs, boost its ranking.

I’m not going to want to look at these figures next month, because who knows how the snow afflicting the Eastern seaboard will mess with the trend.  We already know that retail sales were lower (when malls are closed it’s hard to shop), and lots of people worked from home or not at all.  But when this glitch is FINALLY over, we can hope that unemployment rates will continue to fall.

One study found that in sexual harassment cases, plaintiffs were twice as likely to win if the judge was female.  The other study focused on judges of different races, and learned that plaintiffs lost just over half the time if the judge was African-American, but lost 81% of their cases heard before a white judge.

The ABA discussed the studies in a program called about “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?”  Although Justice Sotomayor took heat for her comment, it rang true for many.  These studies concluded that the judges applied the law correctly.  The facts, though, are viewed differently depending on whose glasses are used.  We have all seen this phenomenon at work; a remark that seems innocuous to one person is perceived as a grievous insult by another.  A series of job assignments looks neutral to the white male, while the women easily interpret the pattern of discrimination.

We all bring the experiences of ourselves and our friends to the task of judging what happened in a stranger’s case, and was it motivated by discrimination.  Employment discrimination plaintiffs often choose to have juries decide their cases, since the accumulation of experience helps cut through bogus defenses.  Also, since many judges have excelled their entire lives, they have never felt held back by discrimination.  I believe some have grown to believe that discrimination does not truly exist, unless it is so blatant that there can be no alternative interpretation.  (And those cases settle.)

The problem arises with these blinders because federal courts  decide so many cases on summary judgment.  The judges look at the facts as presented by the lawyers, affidavits, and depositions, and frequently decide that there are not enough facts to warrant a trial.  And this is where the accumulation of experience, the perspective of the gatekeeper, does not let in the possibility that subtle actions whisper discrimination.

Congress made some helpful changes last year, specifically legislating around one Supreme Court decision.  Yet it remains a difficult law, in part because of the often cited principle that “attendance is an essential function” of nearly every job.  So people who are disabled and need a period of recuperation or hospitalization are especially vulnerable when strict attendance policies lead to termination.  Often they are told that light duty is not an option (though they report that other people do get light duty), or that they cannot have more leave time.

The EEOC has been pursuing Sears Roebuck for just such a discriminatory policy since 2004.  Last week, it reached a large settlement, $6,200,000 with the retailer, which will benefit 235 of its former employees.  All complained that they were damaged by Sears’ inflexible policy requiring an employee to return to work within one year after an injury, and failed to accommodate their disabilities to enable their return.  In addition, Sears is ordered by the Court not to discriminate in the future, must post a notice in its stores for three years explaining the consent decree, and is required to report regularly to the EEOC on the progress of its accommodations of injured employees.  The consent decree also alters Sears’ policies of communicating with its disabled employees, and requires a centralized leave management team to oversee the requests for and grants of accommodations.

The success of this litigation may swing the pendulum away from shutting the doors to injured or ill employees.  Whether the motivation is fear that the “damaged goods” will never do the job efficiently, that health insurance premiums will rise, or simply to punish the person who has taken “too much” of the sick leave benefits offered, employers will have to watch their policies and practices in light of the Sears decision.

These are the stories of ordinary people squeezed by daily expenses, but making it until they were brought down by a prolonged period of unemployment.  They lose their houses, their credit is smashed, and when they finally get a new job, they remain insecure.  A recent New York Times article details only three such examples, but they are surely worth pondering as we see whether the American mindset will permanently change.  Our grandparents (or parents or great-grandparents) who lived through the Great Depression were more likely to believe in saving to the point of miserliness, buying nothing on credit, and putting by for retirement.  Yet, as the thirties turned into the forties and fifties, the post-war economy soared, social security was available, good private pensions abounded, and people took more risks.  Easier, perhaps, when a lifetime at one company was commonplace.

Now many well-educated, well-trained, hard-working people have lived the reality of employment at will.  They may not be able to afford a house again, or be able to handle the commitment required.  They know that loyalty to an employer is a one-way relationship.  Will their experiences change our priorities and choices, or will our native optimism prevent us from redefining the American dream?

This sets the stage for the classic clash of interests in Annapolis.  Some business interests are asking for a reduction of benefits, while others are urging higher weekly benefits and more weeks.  An emergency bill is pending this session, and has made it past the first stage.  According to the bill, some of the changes to the law are necessary to qualify for the federal stimulus funds.

One of the more employee friendly provisions changes the formula for calculating the weekly unemployment benefit, by looking at the most recent four quarters of pay rates.  This provision would help workers who had been earning increased amounts in their fields before becoming unemployed.

In addition, the law provides for extended benefits and training for unemployed workers who have been unemployed for an extended period, and are in a declining occupation, or were laid off in a permanent reduction in force.  Employers’s rating experience is not charged for unemployed individuals receiving the additional training benefits.

In the inspirational department, the President said this:

“Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.  We must continually renew this promise. My Administration has a Civil Rights Division that is once again prosecuting civil rights violations and employment discrimination.”

Again, nicely stated.  But there are plenty of indications that the enforcement has been ratcheted up at the federal level, by both the EEOC and the Department of Justice.