Attorney General Eric Holder’s emphatic public comments on racial equality have prompted several plaintiffs to ask the Justice Department to get involved in their employment discrimination cases, according to a recent story in the Washington Post.
Holder, who is this country’s first African-American Attorney General, said the U.S. remains a “nation of cowards” when it comes to race relations and that we’re “voluntarily socially segregated.”
Perhaps as a result, litigants are looking for more active civil rights involvement from the Justice Department. One of the cases involves Donald Rochon, who made headlines 20 years ago in a whistleblowing case against the FBI. Rochon is now involved in a dispute with the FBI involving his retirement benefits and has written to Holder for help after reading Holder’s race remarks, “We're hopeful that with a new administration, a new attorney general who in our view made a very courageous speech about race relations, that things will change for both Don and more broadly," Rochon’s attorney Michael Rubin told the Post.
In another case, lawyers for a defense contractor have asked the Justice Department to intervene and support them in an appellate case. They want to overturn a lower-court ruling that they say could make it harder for plaintiffs to proceed with race-discrimination allegations.
The Justice department has not commented on the Rochon case and decided not to weigh in on the contracting case, which is still pending. Civil rights advocates say they are disappointed that the Obama administration did not lend its voice to the effort.
"This is what I thought the civil rights division was supposed to do," one advocate told the Post. "It is important that these matters, which mean so much to individuals, not get lost amid all the other pressing issues before the administration."
Regardless of whether the Justice Department actually intervenes in any employment claims, the fact that claimants are noting and responding to the department’s public stance evidences a heightened public sensitivity to discrimination issues that could have significant impact on the workplace. In a different era, many people could probably not have told you who the Attorney General was, let alone his positions on workplace issues, but the current administration has caught the attention and focus of the public in an unprecedented way. Remarks from this administration regarding workplace issues will put those issues in the spotlight and may cause some workers to reexamine their own situations for overlooked signs of harassment, or to take action in situations where they may previously have been uncertain. Employers would be wise to take this opportunity to highlight their zero tolerance for discrimination policies through heightened compliance and training efforts.
In the 1960s, the civil rights movement spawned a number of new employment laws aimed at formalizing the massive societal changes brought forth during this era. Again in the 1970s, women entered the workforce in increasing numbers and brought with them legislation responding to equal pay issues, pregnancy discrimination and harassment issues. The downturn and resulting upheaval of the late 1980s and early 1990s saw a new wave of employment laws and regulations that evolved to reflect new social values and protect employees from the fall-out of a failing economy.
Twenty years later, we’re in a similar situation. With two working-parent households, increased awareness and appreciation for minority employee populations and the shift toward the knowledge-based economy, our society has seen a tremendous evolution from the homogenous and industrial workforce of the 1980s.
Meanwhile, employees are experiencing the harsh effects of an economic crisis – a crisis not of their making, beyond their control, and for which they’re suffering disproportionate consequences considering their numbers on the layoff lists when compared with those in senior management.
These issues, combined with a democratic administration and majority in the legislature, are sufficient catalysts to generate a flurry of new employment laws as soon as the economy stabilizes, probably later this year.
When this happens, several significant pieces of pending legislation will move to the forefront, including the following proposed bills:
The Working Families Flexibility Act reflects the change in households where many now have two working parents. This Act would allow employees to negotiate with the manager (1) the number of hours worked per week; (2) when they are worked; and (3) where they are worked (presumably at home or in the office) through an imposed interactive process similar to the ADA. However, many managers and employers still struggle to understand ADA and FMLA requirements, and this would add yet another administrative layer for employers.
Significantly, the EEOC recently published “Employer Best Practices for Workers with Caregiving Responsibilities,” (www.eeoc.gov/policy/docs/caregiver-best-practices.html) which reflects the growing awareness of this social change and this administration’s priority of protecting the rights and flexibility of family care-givers.
The FMLA Expansion would augment the existing Family Medical Leave Act to apply to employers with 25 employees or more (instead of the current 50) and allow employees to take up to 12 weeks of unpaid leave per year to respond to family or medical issues. Again, reflecting the change in households and in deference to employees who must care for children and parents, the proposed bill would also allow employees to take up to 24 unpaid hours per year to attend children’s school activities.
The Employee Free Choice Act would pave the way for the expansion of unions among knowledge workers. Pushed hard by labor unions as a way to increase dues-paying members, this bill has three main components: (1) a public card check instead of private elections that would automatically unionize a workforce if 51% of the cards request it; (2) mandatory arbitration in lieu of collective bargaining whereby a federal arbitrator would be appointed to make the labor decisions when the union and management cannot agree on terms; and (3) new penalties for employers who violate the rules.
In addition to the stack of possible new laws, there is also a strong likelihood of new regulations and enforcement procedures considering that Secretary of Labor Hilda Solis is the daughter of two union workers and a life-long advocate of union and employee rights.
The Workplace Bullying Institute (WBI) releases annual statistics which show bullying to be a growing problem. Most, but not all, bullies are managers whose victims are subordinate employees. Bullies come in both genders; in fact forty percent of all bullies are women, according to WBI. They also come in all ages, races and sizes. Chronic bullying can cause severe emotional and psychological damage.
States are taking note of the issue. This year, statehouses in New York, Connecticut, New Jersey Massachusetts, Illinois, Vermont, Oklahoma, Utah, Oregon, Nevada, Montana and Washington are considering legislation to protect workers from severe psychological harassment from bullying bosses. The long term prospects of these bills are not yet clear but the sheer number of them indicates that the issue may be close to the critical mass it needs to begin to be taken seriously on a legislative level.
In addition, award-winning documentary filmmaker Beverly Peterson is lending her voice to the anti-bullying movement. Peterson is filming vignettes of bullying victims and has created an online campaign called “There Oughta Be A Law” and the website www.nojobisworththis.com to expose this problem. Visitors to the site can view Peterson’s film clips about bullying and can read blog posts from Peterson and others and post their own comments. "I stumbled onto the vicious little secret of the American workplace the hard way," says Peterson on the site. "In little more than two years, my boss bullied her way through 6 or more employees in the same position before me. The better I was at my job, the better she got at being a bully and the more outrageous her behavior became." Peterson’s documentary film clips showcase bullying victims from a variety of geographic regions and different kinds of jobs, talking about their experiences. Many were advised to quit their jobs by health professionals because of the psychological stress.
For more information on the movement to pass anti-bullying laws visit the Workplace Bullying Institute’s page on the issue, www.workplacebullyinglaw.org .