The Legal Process of Discrimmination

The Legal Process of Discrimination

Sylvia Goldstein

Employment Law/MGT434

July 30, 2012
Deborah Wilder

The Legal Process of Discrimination

According to a 2002 Rutgers University study, “forty-six percent of African American workers believe they have been treated unfairly by their employers, compared with 10 percent of whites and 28 percent of African Americans and 22 percent of Hispanics/Latinos have experienced workplace discrimination, compared with 6 percent of whites” (Massie for www.monster.com) For John a worker in the private sector these statistics are important if he should fall into one of these categories and is considering filing a discrimination charge based on race. Race is a protected class under Title VII for employers with 14 or more employees. Still John will need to consider all the factors related to pursuing a complaint or do nothing and subject himself to further stress. Discrimination in the workplace can take a toll, physically, mentally and emotionally. “The feelings of hopelessness, mistrust, despair and alienation are common among people facing bias, and they don 't stop at the end of the workday. Stress and depression don 't just affect employees at work but also at home among family, friends and loved ones” (Massie:www.monster.com). For John and all those who file complaints the burden of having to prove discrimination can be an agonizing toll. Still statistics from the Equal Employment Opportunity Commission (EEOC) reveal,” the highest number of employment discrimination charges in its 45 year history was filed in the fiscal year ending on September 30, 2010” ( www.eeoc.gov). If John should consider pursuing, he will have to first file a charge with the EEOC, “By law, the EEOC must in some way handle every claim it receives” (Bennett-Alexander and Hartman, 2007). The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because race, color, religion, sex ,national origin, age, disability and genetic information. A charge of employment discrimination can be done in person by appointment, by phone, or by mail. The EEOC office will send a notice to John’s employer within 10 days of the filing. This process can take several directions. The first can be remedied through mediation. A mediator can help both parties reach a voluntary settlement. There is also the possibility of a dismissal if the EEOC should deem that there is not enough evidence. A good outcome is that the EEOC agrees to conduct an investigation to the charge. This involves gathering information by ways of visiting John’s employer, holding interviews of key staff members including human resources and obtaining work records. In the event the employer is not cooperative a Subpoena can be administered to obtain documents, testimony or enter the facilities. An investigation can take an average of 6months. If the EEOC determines no law was broken, they can still than grant a letter of “right to sue”. This notice would give John the right to take his employer to court. If the EEOC determines there is a valid charge, they will make every effort to try to reach a settlement or be referred to their legal staff. Either way, John would be wise to seek legal counsel and if he should consider filing a law suit, it would have to be done within 90 days. “Upon going to court, the case is handled entirely new, as if there had not already been a finding by the EEOC” (Bennett-Alexander and Hartman, 2007). In other words the discrimination charge would have to be proved again at civil litigation. A challenging factor is the odds against winning discrimination cases are few and many lawyers are reluctant to try. From an article in the Wall Street Journal, “A battery of recent studies shows that employees who sue over discrimination lose at a higher rate in federal court than other types of plaintiffs. They also get less time in court with judges quicker to throw out their cases”(2009). It is more likely that when companies are faced with going to court, they choose the option of settling outside of court. In the same article by Nathan Koppel(2009), “A report last year by the Federal Judicial Center, the research arm of the federal courts, found that judges nationwide terminated 12.5% of employment-discrimination cases through summary judgments, before the suits reached trial”(2009). The chances for John winning if his case should even go to trial are dismal but the opportunity to reach a monetary settlement is much more plausible. For John’s employer escaping court is also not a winning battle. From an article in legal match.com by John Richards, Shanti Atkins, Esq., President and CEO of ELT, Inc., a company that specializes in ethics and compliance training, states “ settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization” (2010).These can be non-monetary costs such as; distraction and loss of time invested by staff,low employee morale while under the constant pressure of a lawsuit, and the potential loss of an employer’s business from a negative reputation. There are many factors for John to consider if he should pursue a discrimination charge against his employer. His job and means of supporting himself are at stake as well as his reputation and fear of retribution. Most importantly John’s mental and physical health during this stressful process are at risk. In the meantime, according to the article, The Stress of Workplace Discrimination, What Can Employers and Employees Do? By Michelle K. Massie; John can do the following” • Develop informal social support networks made up of people who can offer insight into workplace issues • Consider therapy or counseling like community-based employee assistance programs • Keep a detailed log of events in case he decides to file a complaint with his supervisors, human resources department, union, or lawyer” (www.monster.com).

References

U.S. Equal Employment Opportunity [e-mail]

Bennett-Alexander, D. D., & Hartman, L. P. (2007). Employment Law for Business (5th ed.). New York, N.Y.: McGraw- Hill Companies.

Job-Discrimination Cases Tend To Fare Poorly in Federal Court From The Wall Street Journal Online by NATHAN KOPPEL, February 19,2009

Most Employment Discrimination Lawsuits Don’t Net Much Money; www.legalmatch.com by John Richards, June 18, 2010

The Stress of Workplace Discrimination,What Can Employers and Employees Do? By Michelle K. Massie, Monster Contributing Writer for www.monster.com

References: U.S. Equal Employment Opportunity [e-mail] Bennett-Alexander, D. D., & Hartman, L. P. (2007). Employment Law for Business (5th ed.). New York, N.Y.: McGraw- Hill Companies. Job-Discrimination Cases Tend To Fare Poorly in Federal Court From The Wall Street Journal Online by NATHAN KOPPEL, February 19,2009 Most Employment Discrimination Lawsuits Don’t Net Much Money; www.legalmatch.com by John Richards, June 18, 2010 The Stress of Workplace Discrimination,What Can Employers and Employees Do? By Michelle K. Massie, Monster Contributing Writer for www.monster.com