The Fourth Circuit held that once the company did get involved, its response was acceptable.  While the best outcome, of course, is for all of the harassment to stop, when an employer promptly investigates and takes steps designed to stop the racially charged behavior, it is insulated from a lawsuit.  Here, though, the company took too long to respond to the first complaints, and will have to go to trial.

While this reversal permitting a trial is a welcome departure from the Fourth Circuit’s usual affirming of summary judgment, there is some troublesome language in the decision.  Several racial epithets are referred to as “isolated” remarks, code for “we are not going to worry about a little bit of discrimination, just a lot.”  Yet another employee’s testimony was discounted for being too general.  The court faulted him for not having detail, context, examples, and time frames.

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.

The management positions at Outback were filled by men.  To be considered for management positions, the applicant had to have kitchen experience.  Outback, however, did not give women the kitchen jobs.  That pattern led to a $19 million settlement that will be shared by a number of women who worked at Outback for at least three years between 2002 and now.

A settlement of this magnitude alone sends a cautionary message, and in most cases should inspire an employer to institute reforms.  But the settlement agreement itself requires Outback to make substantive changes in its application procedures, hire a “Vice President for People,” and hire an outside consultant for two years to monitor progress.  The EEOC will also require semi-annual reports.

The EEOC obtained a large verdict against Outback in 2001, based on a single instance of sex discrimination in pay, and retaliation against the woman who complained about her male counterpart making nearly double her salary.

Is it possible for a company to reform its discriminatory ways?  In this case, the EEOC’s oversight measures are designed to force both change and awareness of the impact of policies that result in discriminatory decisions, even if not consciously made.  But cultures favoring one sex or race can be difficult to alter.  If the Outback upper management has fostered a corporate culture of men-in-charge, it may not change in any systemic way.  On the other hand, the oversight and the boon to the women working at Outback should keep the decisions scrutinized for some time.  Perhaps the transparency will require Outback’s culture to evolve.

Interpreting these statistics without more information involves making a lot of assumptions.  The economy tanked and layoffs were rampant.  So people who lost their jobs, and could not find another one, may be more likely to file a charge of discrimination.  Cash-strapped companies may have been less likely to offer good severance packages.  Severance agreements nearly always require the recipient to release discrimination claims.

But the existence of more unhappily unemployed people is only a part of the story.  Was there more discrimination as well?  When a company has to let go a portion of its workforce, what factors are used?  In my interviews with potential clients, I am getting the sense that age is often figured in, though perhaps subconsciously.  An employer trying to trim the workforce and decide which workers to retain may utilize biases in favor of the young, such as perceived energy level, ability to keep up with technology, youthful looks, and cheaper health insurance benefits.  These same sorts of biases can eliminate women (they won’t work hard if they have or want families), blacks (they don’t fit in here, and we need “team players”), the disabled (they can’t handle the job if it gets harder), and so forth.

The unfortunate part is that proving discrimination in reductions in force is hard, unless a decisionmaker is candid about the reasons for cutting someone.  Usually the proof is circumstantial, and the courts can be hostile to these claims.  I don’t think that judges can relate to age discrimination, especially, since they are well insulated personally from this kind of bias.

When claims are filed by complainants, the agency typically offers a mediator to allow the parties to work out their differences quickly.  If both parties fail to consent to this, or if mediation is unsuccessful, the case is given to an investigator.  There the case can languish, since the investigators are inundated with more claims than ever before, and their ranks had been dwindling.
Although it may seem counter-intuitive, the employers welcome quicker investigations, too.  According to the this article, employers are eager to have claims resolved more quickly, in part to weed out the weak claims.  For both sides, it is helpful when an investigator gets witness recollections in writing before those memories fade.

The EEOC is unlikely to feel that $23 million will solve all of the backlogs, but another 200 investigators is surely a good start.

Congress reversed this decision by amending the law in January; this was President Obama’s first enactment.  The Lilly Ledbetter Fair Pay Act applies to wage discrimination.   Specifically, it governs a “compensation decision or other practice.”  There have been some questions about how far the Lily Ledbetter law goes, but it cannot be stretched to protect the 6,000 unhappy applicants in Lewis v. Chicago.

That case will decide whether African-American applicants for firefighter positions should have filed claims of race discrimination within 300 days of the City announcing a discriminatory practice, or 300 days after the employer uses it.  In the Lewis case, Chicago used a test that had a disparate impact against the African-American applicants, putting many in the “qualified” category, while most people in the “well-qualified” category were white.  The applicants argued that the test did not accurately measure aptitude for firefighting, and therefore should not be used since it had the effect of weeding out African-Americans, not those who would fail at firefighting.

The applicants filed claims after the City hired from the well-qualified list; the Seventh Circuit held that they should have made claims within 300 days of the announcement of the lists.  The United States has filed a brief in favor of the firefighters.

Age claims in 2008 outstripped 2007 claims by 30%.  There is no reason to expect that 2009 will be much different.  The biggest difference will be the enhanced difficulty of proving the claims.  In the last weeks of its term, the Supreme Court issued several important decisions of interest to employment law practitioners.  One of them had less newsworthy facts than the white firefighters case, but will have a far greater impact.  In Gross v. FBL Services, the Supreme Court raised the level of proof needed by a discrimination claimant under the Age Discrimination in Employment Act.  The Court unaccountably decided that the burden of proof for age discrimination plaintiffs should be higher than that for victims of race, sex, national origin or religious discrimination.  These cases are difficult to make into headline news, but the reality is that most workplaces are free of open and hostile discrimination.  Every educated person knows better than to spout racist invective.  That does not mean that we are truly in a post-racial society, but rather that much of the bias has gone underground.  The difficulties of proving that, “but for” the age of the worker, he or she would not have been fired can be insurmountable.

Age discrimination is an odd kind of bias, since it’s not based so much on “otherness,” as racial discrimination might be, as on assumptions that older people are slower, less technologically oriented, or simply in the way of the progression of the young.  I have long thought that federal judges, especially, have trouble understanding the dynamic of age discrimination, since they are usually rewarded for their experience and seasoning.  No one makes a federal judge retire, and no one (except perhaps a peer) dares to suggest that he is losing any competency.  They are almost without supervisors, so they do not have the experience of having their territories restructured, their direct reports reassigned, or other sly methods of interfering with their performance.  When these changes are designed to interfere with performance, or have the effect of reducing an older person’s performance ratings, age discrimination may be the motivation.  But in these economic circumstances, when restructurings and reductions in force are commonplace, it is not going to be easy to prove bias.

In an earlier era, when the Supreme Court tipped the scales toward employers, Congress reacted with the Civil Rights Act of 1991.  Perhaps Congress will take the reins again.