FSU: Speedy Trials and Cutting Your Losses

FSUIn response to very public investigations by the Office of Civil Rights at the Department of Education, colleges and universities have been reviewing and revising their Title IX policies and protocols.  Title IX compliance, in the context of allegations of student sexual misconduct, is tough.

Just how tough it is to get right is exemplified by the current standoff at Harvard between its law professors and administration.

In response to Harvard’s issuance of a new sexual misconduct policy, 28 law professors signed a letter claiming Harvard’s new “procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”  The letter was published in The Boston Globe on Wednesday.

A little further south, another Title IX drama is playing out real time at FSU as FSU struggles through how to handle the sexual assault allegations that have been made against star football player Jameis Winston.

Here today to share her insights and commentary about the FSU matter is guest blogger Jennifer Keaton, Esq.

FSU: Speedy Trials and Cutting Your Losses

by Guest Blogger Jennifer Keaton, Esq.

Is Jameis Winston (and, frankly, the victim) entitled to a speedy trial as it relates to the charges of sexual assault?

Under the U.S. Constitution, individuals charged with crimes do have a right to a speedy trial. Of interest in Winston’s case is that it is FSU (and not Tallahassee law enforcement) that is getting grilled about how fast it is moving on these allegations as it pertains to Student Winston (as opposed to Citizen Winston).

Here’s the rub: Colleges and Universities (and even with some employers in a different context) have internal procedures and systems in place that help them properly and fairly monitor their population’s interactions. Such systems are often less formal that the judicial systems….and they’re supposed to be faster than the judicial system.

Here, FSU has arguably set itself up for harsh scrutiny and, if they get this wrong, they may face liability and create a catalyst for the federal government to prescribe a system for them (and everyone else). The obvious pot-shot is that FSU is not moving fast enough (and perhaps hasn’t moved fast enough) because of an underlying desire to keep Winston through to the end of the football season (or until it is clear that FSU’s Football team is not going to be a real contender for a title of some sort).

At this point, the lawyers have taken over the school’s process and, because the system was created by well-intentioned people and not people thinking about how the system could be played like a fiddle by lawyers, FSU is basically assured that Winston will complete the Season. Indeed, despite the upcoming student judiciary hearing, ESPN is reporting that Winston is expected to play for No. 2 Seminoles in Saturday’s games against No. 5 Notre Dame.  ESPN is also reporting that Winston will proceed with the disciplinary hearing although Winston’s attorney continues to criticize the process FSU has put in place.

Suddenly the legitimacy of FSU’s system is in the hands of a hearing officer who is likely to be a retired Florida supreme court judge. Sounds impressive, doesn’t it?

But the reality is that no one has stopped to consider whether a retired appellate court judge really has what it takes to preside over this proceeding, much less make fast decisions (anyone got the average response time on Florida supreme court decisions?), or manage (over)zealous attorneys who have their own agendas?

Sadly, what is more likely to happen here is that Winston is going to engage in a new incident of misconduct that will get him expelled outright and solve this problem in a decidedly different way. All of this gnashing of teeth will be for naught (at least among the lawyers).

And, then, Winston will only be concerned with a speedy criminal trial, for which Florida taxpayers will still be on the hook for the costs. FSU: It’s Time to Cut Your Losses.

About the Author:  Jennifer Keaton is Vice-President of Workplace Investigations Group. She has represented large and small employers in both state and federal forums for over a decade following a teaching career. Jennifer has conducted over a hundred investigations. Her ability establish trust and confidence in the integrity of the investigative process has led to the successful resolution of many situations and assisted in avoiding costly litigation.  She used her combined experience as a teacher and experienced employment attorney to develop Workplace Investigations Group’s training programs, including Title IX training for employees responsible for Title IX compliance and investigations.

 

 

Halloween at the Employment Law Carnival

halloween employment law blogThere is some great stuff in this month’s edition of the Employment Law Blog Carnival.  It’s hosted by Mark Toth over at ManpowerGroup.

According to Mark, ‘[i]t’s truly terrifying out there from an employment law perspective. Everybody’s suing everyone for everything. Class actions are exploding. The EEOC, NLRB, OFCCP, OSHA and a host of other acronym-ious agencies are coming after more and more (and more) employers. And new laws are popping up everywhere — California alone just passed twenty-one new statutes that are giving employers heart palpitations.”

But never fear.  Mark has designed this month’s edition is to “reduce your terror level by offering helpful hints from some of the brightest stars in the employment law universe.”

So head on over to read Mark’s Halloween Edition of the Employment Law Blog Carnival.

 

Everyone’s Known About Rape Allegations Against FSU’s Winston, But Only “Now” Does FSU Investigate?

Florida State University Title IXYesterday, FSU posted an “An open letter to the Florida State University community” on its website in response to what it called “misinformation.”  In its Open Letter, FSU acknowledges that FSU Campus Police knew of the sexual assault allegations against FSU student and football player Jameis Winston (although they don’t mention Winston by name) in December 2012.  FSU also acknowledges that the FSU Athletics Department was notified of the allegations in January 13, 2013.  Amazingly, FSU then attempts to defend its failure for 11+ months to initiate a Title IX investigation by stating that no one told its Title IX officials until November 2013 of the allegations.

Perhaps, not coincidentally, in January 2014, Jameis Winston led the Seminoles to a victory in the 2014 BCS National Championship Game and an undefeated 14–0 football season and the Seminoles coach got a $550,000 bonus.

FSU is, I guess, hoping that readers of its Open Letter will somehow think that FSU had no duty to conduct an independent Title XI investigation until November 2013 when its Title XI Officials learned of the allegations.

Wrong.

Title XI Obligation to Conduct Prompt Investigations into Allegations of Sexual Violence by Students

Although Title IX of the Education Amendments of 1972 (Title IX) is best known for requiring gender equity in collegiate athletics, it also requires a school to take immediate and appropriate steps to investigate all allegations of sexual violence involving students.  Most significantly, that duty to investigation exists separate and apart from any criminal investigation conducted by local police.  Guidance issued by the Department of Education clearly states, “a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct.”

When is a Duty to Investigate Triggered Under Title XI?

Under guidance issued by the Department of Education’s Office of Civil Rights, a school’s obligation to conduct a prompt investigation is triggered when a “responsible employee” of the school knew or reasonably should have known about allegations of student sexual violence.

Who is a “responsible employee” under Title IX?

In April 2014, the Department of Education Office of Civil Rights provided guidance to schools on this very question.  In reading the guidance, it seems pretty clear that the Office of Civil Rights would view employees in the Athletic Department and Campus Police Department as “responsible employees.”

Here is relevant excerpt from April 2014 Office of Civil Rights guidance:

“According to OCR’s 2001 Guidance, a responsible employee includes any employee: who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.

A school must make clear to all of its employees and students which staff members are responsible employees so that students can make informed decisions about whether to disclose information to those employees. A school must also inform all employees of their own reporting responsibilities and the importance of informing complainants of: the reporting obligations of responsible employees; complainants’ option to request confidentiality and available confidential advocacy, counseling, or other support services; and complainants’ right to file a Title IX complaint with the school and to report a crime to campus or local law enforcement.

Whether an employee is a responsible employee will vary depending on factors such as the age and education level of the student, the type of position held by the employee, and consideration of both formal and informal school practices and procedures. For example, while it may be reasonable for an elementary school student to believe that a custodial staff member or cafeteria worker has the authority or responsibility to address student misconduct, it is less reasonable for a college student to believe that a custodial staff member or dining hall employee has this same authority.”

Possible for FSU to be in Violation of Title IX but Not Liable in Private Lawsuit

It’s also worth noting that the Office of Civil Rights distinguished between when a school may be liable for money damages in a private lawsuit vs. when its duty to conduct a prompt investigation is triggered.  Here’s what they said in the footnote:

“The Supreme Court held that a school will only be liable for money damages in a private lawsuit where there is actual notice to a school official with the authority to address the alleged discrimination and take corrective action.  Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 290 (1998), and Davis, 524 U.S. at 642. The concept of a “responsible employee” under OCR’s guidance for administrative enforcement of Title IX is broader.”

Given that the alleged sexual assault victim has hired an attorney it seems likely that FSU may have found itself in the unenviable position of serving as a test case of exactly that point.  It seems clear that the Department of Education will find FSU’s failure begin an internal investigation for 11+ months after being on notice of the allegations was a violation of Title IX.  It remains to be seen though whether that failure will also subject FSU to civil liability in a private lawsuit.

About the Author:  Lorene F. Schaefer, Esq. specializes in conducting prompt,impartial and thorough investigations. As President of Workplace Investigations Group, she also regularly delivers investigation training to employees responsible for Title IX compliance and investigation.   She is also the author of Corporate Counsel’s Guide to Internal Investigations of Harassment, Discrimination & Retaliation, which will be published in 2015 by the ABA.

Workplace Investigations: Ravens Ray Rice Termination Demonstrates Importance of Considering Video Camera Surveillance

Win-Win HRJust 12 hours after a video tape of Ravens Ray Rice beating his now wife on February 15, 2014 in a hotel in Atlantic City was published by TMZ, the Ravens had terminated his contract and the NFL had indefinitely suspended him from playing for any NFL team. The video is taken from the surveillance camera that appears to have been mounted inside the elevator in which Rice and his now wife were riding.

The NFL had previously suspended Rice for two regular season games based on the incident, which had been widely publicized. The only new development since the NFL’s decision to suspend him for two games appears to be the existence of video. The NFL claims it did not have the video in its possession at the time it made the decision to suspend him for two days, but some commentators are questioning how that could be.

Implications for Employers

Given the rapid rate of growth of video monitoring of activities in public areas, businesses and commercial buildings, employers faced with the need to conduct an impartial, prompt and thorough internal investigation into an allegations of harassment or other workplace misconduct need to always consider the possibility of a relevant video tape existing somewhere. According to a recent report from Transparency Market Research, the video surveillance market is expected to reach $42.81 billion by 2019.

And, that’s not even counting the number of people walking around with video cameras on their cell phones.

__________________________

workplace investigations groupWorkplace Investigation Group trains in-house counsel, risk managers, and human resources professionals on all aspects of workplace investigations into alleged bullying, discrimination, harassment and retaliation.  Click here for information on upcoming training that is available in the coming months in Atlanta, GA, Washington, D.C., Metro-New York City, Hartford, CT, Scottsdale, AZ, Las Vegas, NV, Denver, CO, Cincinnati, OH, and Chicago, IL.

 

 

Millennials Increasingly Using Social Media to Challenge Harassment and Discrimination

The Times They are a-changin Fifty-five percent of millennials — today’s 80 million-strong generation of 18 to 34 year olds — say a prospective employer’s online reputation matters as much as the job it offers, according to a survey by Spherion Staffing.

As someone who wrote her first law school paper on an electric typewriter, I continue to be struck by the magnitude of change that social media has brought to the business world. In the not too distant past, employees who weren’t satisfied with how their employer responded to a complaint of harassment or discrimination had few options. They could go down to their local office of the Equal Employment Opportunity Commission and file a charge, hire a lawyer to bring a claim, or try to find a journalist to write an article about their plight.

Oh how times have changed.

A post this week on Gawker.com brought yet another example of just how much times have changed. For those who don’t know what Gawker is, it is a blog founded in 2003 and the flagship blog for Gawker Media. According to the Washington Post, Gawker Media has more readers than the top-circulation U.S. magazines

The blog post was authored by “Jane Doe” and is titled “Twenty Days of Harassments and Racism as an American Apparel Employee.” It was filed under “shitty jobs” on the blog. As I write this blog, the post has been shared on Facebook 8.2K times and has had 754 comments.

The blog post purports to be based on a diary of a recent college graduate who took a job at American Apparel because she “was drawn to the company” because she tries “to make ethical consumer decisions” and she “appreciated that American Apparel pays their garment workers well and doesn’t use sweatshops.” In the blog post she does note that although she was “very wary of the sexual harassment allegations against the company’s former CEO, Dov Charney” she felt that “[b]ecause he had recently been asked to step down from his position, it seemed like the company was making progress.”

The author writes that “[i]n retrospect, I should’ve been more wary of a company with a history of outrageous unprofessionalism. What I hoped would be a low-stress, part-time job turned out to be a major source of anxiety and a cesspool of harassment. The incompetent, appallingly racist management and belittling of employees were commonplace, and created a hostile work environment.”

Click here to read the full blog post.

Implications for Business Leaders

The magnitude of the changes underway means that a fundamental rethink of how employers respond to internal complaints of workplace misconduct like harassment and discrimination is needed. The question for business leaders in this brave new world is – do your employees trust your internal complaint process? Do they trust that their manager and HR professionals will conduct an impartial and fair investigation into their complaints?

Studies show that employee trust is key to getting your employees to raise their complaints internally vs. going public on social media and becoming a whistleblower.

In this era of increasing regulation and whistleblower protections, almost all business leaders recognize the need to have robust complaint mechanisms in place for employee concerns.  Business leaders though who want to most effectively compete for and retain millennial talent are taking it a step further and working to ensure they have a well-developed process in place that is trusted by employees for resolving the employee concerns received.

______________________________

workplace investigations groupWorkplace Investigation Group trains in-house counsel, risk managers, and human resources professionals on all aspects of workplace investigations into alleged bullying, discrimination, harassment and retaliation.  Click here for information on upcoming training that is available in the coming months in Atlanta, GA, Washington, D.C., Metro-New York City, Hartford, CT, Scottsdale, AZ, Las Vegas, NV, Denver, CO, Cincinnati, OH, and Chicago, IL.

 

Harassment Investigations: New NLRB Decision Complicates Them Even More

NLRB is Watching Non-Union EmployersA recent decision by the National Labor Relations Board (“NLRB”)  has complicated even further the already challenging world of conducting investigations into allegations of workplace harassment.  In light of this new ruling, it’s ever more important employers use well-trained investigators and give careful consideration to how an investigation is structured and witnesses are interviewed.

NOTE:  This NLRB decision affects non-union employers too!  

As I’ve reminded readers of this blog before, the National Labor Relations Act (NLRA) prohibition against engaging in any actions that would chill employees’ rights to engage in “concerted activity” applies to ALL EMPLOYERS – not just unionized employers.  “Concerted activity” is defined as two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment.

The Decision

In Fresh & Easy Neighborhood Market, Inc., the NLRB held an employee was engaged in “concerted activity” for the purpose of “mutual aid and protection” when she solicited statements from fellow employees to support her sexual harassment claim against another employee.

The female employee complained of sexual harassment after one of the words she had written on a whiteboard at the request of her supervisor was subsequently changed to an inappropriate term for the workplace, and a drawing of a peanut or worm urinating on the employee’s name was added.   Because a workplace policy prohibited using cameras in the workplace, the complaining employee drew a picture of the offensive material and asked three coworkers to verify that her drawing was an accurate rendition of what was on the whiteboard. When she made the request that they sign her drawing, she told her coworkers that she intended to file a sexual harassment claim with the employer.

One of the co-workers who signed the drawing later complained to the employer that she was “bullied” into signing. Another co-worker who signed later testified that she signed only to avoid making a scene in front of customers. Significantly, none of the co-workers who signed the paper intended to take group action.

After receiving the employee claim of sexual harassment and the signed drawing, the employer instructed her to refrain from soliciting any further statements while it conducted the investigation into her complaint.

The employer’s investigation identified the employee who had altered the whiteboard message and the employer disciplined him. The employer did not discipline the female employee who complained of sexual harassment for the alleged bullying or take any other adverse actions against any other employees.

The majority of the NLRB concluded that when she asked her co-workers to sign her drawing, the complaining employee was engaged in “concerted” activity for the “purpose of mutual aid or protection.”  They reached this conclusion even though her

  • co-workers didn’t agree with her complaint of sexual harassment;
  • two of the co-workers who signed the drawing were uncomfortable with her request and only signed to keep her from annoying them and to avoid making a scene in front of a customer; and
  • the complaining employee was  the only immediate beneficiary of the solicitation to sign the drawing.

Despite finding a violation of the National Labor Relations Act, the NLRB ultimately ruled in the employer’s favor.  It did so for two reasons specific to the facts of this case.

First, the NLRB found that the employer’s “narrowly tailored” instruction to the complaining to refrain from obtaining additional statements from co-workers was a legitimate business justification to safeguard the integrity of an impartial and thorough investigation. In reaching this conclusion, however, it is important to know that the NLRB was also careful to remind employers that a blanket prohibition of discussing ongoing investigations of employee misconduct would violate Section 8(a)(1) of the NLRA. Second, the NLRB concluded the complaining employee inappropriately altered the statements of her co-workers.

Implications for ALL Employers

Given that this NLRB decision appears to expand the workplace activity that is protected by the National Labor Relations Act, employers can anticipate years of litigation to thrash out the particulars of what exactly is protected activity and what is not.

In the midst of this uncertainty, here are two suggested steps prudent employers should consider taking to mitigate the risks of becoming embroiled in NLRB actions or challenges of improper internal investigations by plaintiff’s counsel.

First Suggestion:

Review your policy manuals and investigation protocols o make sure the language complies with the NLRB’s “narrowly tailored” directive.  Click here to read my earlier blog and the Advice Memorandum issued by the NLRB that provides additional clarification on its position on confidentiality in workplace investigations.

Second Suggestion:

Make sure you use well-trained individuals who are aware of this decision to investigate complaints of harassment and other workplace misconduct.  If your internal resources need additional training, click here for information on upcoming training that is available in the coming months in Atlanta, GA, Washington, D.C., Metro-New York City, Hartford, CT, Scottsdale, AZ, Las Vegas, NV, Denver, CO, Cincinnati, OH, and Chicago, IL.

 

President Obama Signs Executive Order Significantly Limiting When Employers with Federal Contracts of $1M+ Can Mandate Arbitration

Predispute ArbitrationEffective immediately, companies who want to bid on federal contracts valued at $1M+ can no longer require their employees or independent contractors to waive their right to a jury trial for discrimination, harassment or sexual assault claims.

On July 31, 2014, President Obama signed an Executive Order that, among other things, prohibits employers with federal contracts in excess of $1 million (except for contracts for commercially available off-the-shelf items) from requiring their employees or independent contractors to waive their right to a jury trial and agree to arbitrate a dispute before it arises if it involves a claim arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment.  Under the President’s Executive Order, agreements to arbitrate those types of claim are only enforceable if the employee or independent contractor agrees to waive his or her right to a jury trial and go to arbitration if the agreement is made after the dispute arises.

The Executive Order also applies to employers who are federal subcontractors if the estimated value of the supplies acquired and services provided by the subcontractor exceeds $1 million.

There are two limited exceptions to the pre-dispute arbitration prohibition:

  1. It does not apply to employees employed pursuant to collective bargaining agreements.
  2. It does not to any employees or independent contractors “who entered into a valid contract to arbitrate prior to the contractor or subcontractor bidding on a contract covered by this order,” unless the contractor is permitted to change the terms of the mandatory arbitration agreement or the agreement is later renegotiated or replaced.

Implications for Employers

Employers with plans to bid on federal contracts of $1M+ should evaluate any existing or contemplated arbitration agreements to determine whether they are in compliance with this Executive Order.

As it relates to the prohibition against pre-dispute mandatory arbitration, this Executive Order is, for all intents and purposes, effective immediately.  I say this because although the Executive Order calls for the Federal Acquisition Regulation (“FAR”) Council and Secretary of Labor to provide further guidance on the new obligations set forth in the Executive Order, it is unlikely that the prohibition against pre-dispute arbitration agreements will be materially impacted.

For readers interested in learning more, I’ve provided below the relevant excerpts from the Executive Order and accompanying Fact Sheet issued by the White House as well as links to the full documents.

Relevant Excerpts from the Executive Order and Accompanying Fact Sheet Issued by the White House

     Executive Order

Here is the excerpt from the Executive Order relative to the prohibition against pre-dispute arbitration agreements.  The full Executive Order can be read by clicking here.

Sec. 6.  Complaint and Dispute Transparency.  (a)  Agencies shall ensure that for all contracts where the estimated value of the supplies acquired and services required exceeds $1 million, provisions in solicitations and clauses in contracts shall provide that contractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise.  Agencies shall also require that contractors incorporate this  same requirement into subcontracts where the estimated value of the supplies acquired and services required exceeds $1 million.

(b) Subsection (a) of this section shall not apply to contracts or subcontracts for the acquisition of commercial items or commercially available off-the-shelf items.

(c) A contractor’s or subcontractor’s agreement under subsection (a) of this section to arbitrate certain claims only with the voluntary post-dispute consent of employees or independent contractors shall not apply with respect to:

(i) employees who are covered by any type of collective bargaining agreement negotiated between the contractor and a labor organization representing them; or

(ii) employees or independent contractors who entered into a valid contract to arbitrate prior to the contractor or subcontractor bidding on a contract covered by this order, except that a contractor’s or subcontractor’s agreement under subsection (a) of this section to arbitrate certain claims only with the voluntary post-dispute consent of employees or independent contractors shall apply if the contractor or subcontractor is permitted to change the terms of the contract with the employee or independent contractor, or when the contract is renegotiated or replaced.

      Fact Sheet

Here is the excerpt from the Fact Sheet issued by the White House relative to the prohibition against pre-dispute arbitration agreements.  The full Fact Sheet can be read by clicking here.

Give Employees a Day in Court: The Executive Order directs companies with federal contracts of $1 million or more not to require their employees to enter into predispute arbitration agreements for disputes arising out of Title VII of the Civil Rights Act or from torts related to sexual assault or harassment (except when valid contracts already exist). This builds on a policy already passed by Congress and successfully implemented at the Department of Defense, the largest federal contracting agency, and will help improve contractors’ compliance with labor laws.

Part of the basic American bargain is that if you take responsibility, work hard and play by the rules, workers can count on fair wages, freedom from discrimination on the job, and safe and equitable workplaces. Taxpayer dollars shouldn’t be used by unscrupulous employers to drive down living standards for our families, neighbors, and communities. By creating incentives for better compliance and a process for helping contractors come into compliance with basic workplace protection laws, the Executive Order is basic good government that will increase efficiency in federal contracting and will help strengthen our workforce and our economy.

Ohio State “Victim” of Harassment Calls Investigation “Deeply Flawed”

ohio stateThe social media fallout from the discharge last week of Jonathan Waters, the Director of the Ohio State University Marching Band, has been extensive.  The University discharged Waters following issuance of an investigation report that concluded:

1) The Marching Band’s culture facilitated acts of sexual harassment, creating a hostile environment for students.

 
2) Jonathan Waters, the Marching Band’s Director, knew or reasonably should have known about this culture but failed to eliminate the sexual harassment, prevent its recurrence, and address its effects.

Click here to read full report.

Now, one of the alleged victims of sexual harassment has taken to Facebook to “take issue with the report” that she calls “deeply flawed.”  In her post, she says “what angers me the most is that, in spite of my feelings, I along with several others on the list have been mischaracterized as victims of “sexual harassment” without being asked directly for our input.”

Click here to read her full Facebook post.

As I’ve written about before, social media has changed the game of workplace investigations.  The leverage social media provides employees can be more problematic and immediate than a traditional administrative charge or even a lawsuit.  A quick post can negatively impact employee morale, as well as damage recruitment and retention efforts.

Click here for a few communication strategies and practical “how to” recommendations organizations can use to increase the likelihood employees and other stakeholders will will accept the results of an organization’s internal investigation and refrain from raising the concern to third-parties on social media or to the government or adversarial counsel.

Hat tip to Bob Webner.

 

Hobby Lobby Decision Creates Costly Uncertainty

What happened to the Establishment Clause?

What happened to the Establishment Clause?

Much will be written in the coming days about the Supreme Court’s ruling in the Hobby Lobby case.

Here’s my two cents:  Justice Ginsburg got it right when she noted in her dissent that the Supreme Court has in this 5-4 decision “ventured into a minefield.”

Regardless of whether you agree with the ruling or not, I think we can all agree that this decision has created uncertainty for employers.  That uncertainty will increase the cost of doing business in the U.S. as it will inevitably result in increased litigation.

Before this ruling, religious exemptions to federal laws were limited to organizations formed for a religious purpose and engaged primarily in carrying out that religious purpose and were not engaged substantially in the exchange of goods or services for money beyond nominal amounts.

Following this decision, courts will now be engaged in the business of evaluating the relative merits of an employer’s differing religious claims or the sincerity with which an asserted religious belief is held.  It seems to me that this risk of the government endorsing any religious belief is exactly what the Establishment Clause was designed to preclude.

Consider the following hypothetical following the Hobby Lobby case:

Burger Joint is a privately held corporation 100% owned by a Jehovah Witness.  The corporation operates 30,000 restaurants across the U.S. and employs 10,000 people. Following the Hobby Lobby decision, Burger Joint decides to exempt from its insurance coverage payment for any blood transfusions.

In explaining this decision to its employees, Burger Joint explains that its sole shareholder is a Jehovah Witness and has a sincerely held belief that the Bible prohibits ingesting blood and, as such, prohibits blood transfusions.  Based on this sincerely held belief by the sole shareholder of Burger Joint the corporation will no longer be paying for blood transfusions under its health insurance coverage.

What do you think?  Will Burger Joint’s exclusion of blood transfusions from coverage under its health insurance plans be deemed legal post the Hobby Lobby decision?

________________________________

Win-Win Resolve, Solving Work ConflictWin-Win Resolve (www.WinWinResolve.com) is a law firm focused on helping employers and corporate counsel manage workplace conflict early and internally in a cost-effective manner.   It offers four primary alternative dispute resolution services to assist employers and corporate counsel: (1) Compliance Hotlines; (2) Internal Dispute Resolution Programs; (3) Impartial Workplace Investigations; and (4) Mediation.

U.S. Chamber Calls EEOC Enforcement “Abusive” During Obama Administration

EEOC AbusiveAfter acknowledging in recent testimony before the United States House of Representatives Committee on Education and the Workforce Subcommittee on Workforce Protections that “[c]ombating discrimination in the workplace is a worthy goal and one that the U.S. Chamber of Commerce supports,” the Chamber went on to call the EEOC’s enforcement tactics “abusive.”

The Chamber also accused the EEOC under the Obama Administration of having “misplaced priorities and overzealous litigation tactics.” The Chamber concluded its 17 pages of testimony by calling on the “EEOC to adopt institutional procedures to provide for internal accountability, more efficient use of resources and adherence to its own statutory conciliation and other obligations.”   If the EEOC fails to do so, the Chamber “encourage[d] Congress to use its oversight authority to install much needed safeguards within the EEOC.”

The Chamber’s testimony was delivered by Camille A. Olson, a partner of Seyfarth Shaw LLP, Co-Chair of its National Complex Litigation Practice Group, and National Chairperson of its Complex Discrimination Litigation Practice Group.

The Chamber’s testimony highlighted three areas of concern:  EEOC Investigations, EEOC Conciliations and EEOC Private Party and Amicus Litigation.

EEOC’s Investigations Called “Dilatory, Inconsistent and of Questionable Quality”

Under applicable law, the EEOC has a statutory obligation to “make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge.” In its testimony, the Chamber said the EEOC is failing to meet this obligation and criticized the EEOC’s investigations as being “dilatory, inconsistent and of questionable quality.”

The Chamber also stated that plaintiff and management attorneys and courts hare its concerns.  In support of this statement, the Chamber cited the meeting transcripts from public hearings held by the EEOC, including the public hearing in which I submitted testimony and participated.

Based on my informal discussions with employers and their counsel across the country, I concur that the EEOC’s investigations are of uneven quality.  It is for this reason that in my 2013 EEOC testimony, I urged the EEOC to review and standardize its investigation process and to reinvigorate its training program for investigators.

EEOC’s Statutory Obligation to Conciliate Should be Subject to Judicial Review

Under applicable law, the EEOC has a statutory obligation to “endeavor to eliminate any… unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  The Chamber view this obligation as “serve[ing] all sides – employees, employers and courts” and states that “needless, expensive, protracted litigation should be avoided if compliance can be obtained through informal means.”

In its testimony, the Chamber highlights a number of cases in which courts have found that the EEOC did not meet its statutory obligation to use informal conference, conciliation and persuasion prior to commencing litigation.  It also points out, however, that there is a split among the circuits as to what exactly is required under the statute.  Hopefully, the U.S. Supreme Court will grant the petition for writ of certiorari currently pending before the United States Supreme Court in Mach Mining v. Equal Employment Opportunity Commission  and directly address the issue of whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.

I agree with the Chamber that the EEOC does not appear consistently across the country to exhaust informal methods of conference, conciliation and persuasion before it files a lawsuit against an employer.  In fact, it is for this reason that in my 2013 EEOC testimony I urged the EEOC to

  • implement a pilot program incorporating a structured ADR process into the EEOC’s post-cause conciliation process;

  • consider promptly the use of ADR methodologies beyond mediation and arbitration, and to consider early case assessment, med-arb, and other hybrid processes prior to tendering a Right to Sue Notice; and

  • set a time line within the Quality Control Plan for implementing a pilot program incorporating a structured ADR process into the post-cause conciliation process.

Chamber Cites $5.6+ Million in Sanctions in Support of Proposed  Requirement that Commissioners Approve Any Multi-Plaintiff Litigation

According to the Chamber, in “the last two years, the EEOC has been ordered to pay employers over $5.6 million dollars as a result of its improper litigation and conciliation efforts.”  It says the EEOC has been sanction for its:  “failure to follow appropriate procedures before instituting litigation, failure to appropriately litigate the case, and failure to reasonably assess the appropriateness of continuing its litigation once it became clear in discovery that its complaint’s theory had no basis in fact.”

As the Chamber rightly points out, these $5.6+ million in sanctions are in addition to the significant internal costs associated with these same lost cases.  These internal costs include tax payer dollars used to pay the EEOC attorneys and staff who worked on these cases plus the tax dollars used to pay the expert witnesses in the cases.

The Chamber proposes that the EEOC mitigate the risks of such future sanctions and waste of EEOC resources (i.e. tax dollars) by returning to the litigation approval process that was in place prior to 1995.  This change would require that the bipartisan EEOC Commission comprised of five presidentially appointed members approve all multi-plaintiff litigation.