Who gets to sue when everyone's a minority?

You'd have to be completely out of touch to miss the reports popping up everywhere today such as here, here, here, here and here (naturally Fox news can't pass this one up) that U.S. Census figures from 2011 show minority births were more than half of births during the year from July of 2010 to July of 2011, extending a longstanding trend.

This trend raises an interesting question which has been on the back burner for years, but will slowly become more central to discussions of employment discrimination:  what happens to discrimination claims when there is no "majority?"

For purposes of Title VII the protected classifications continue to be race, religion, national origin and sex.  Other statutory schemes, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act add being over 40 and being disabled, or having a record of disability or being regarded as disabled to those protected classifications.  In addition, state and local laws have added other protected classifications such as family status and gender identity.

An overly simplistic analysis of discrimination claims focuses on the nature of the protected classification, e.g., "I was fired because I am an African American," or "I did not get the job because I am Hispanic," but this completely misses the point.  The census bureau's report hammers home that we are all in one or another protected classification.

What's unlawful is not discrimination based upon the protected classification itself, but rather letting those classifications play any factor in the employment decision process.  It is no more lawful to hire someone because that person is Caucasian than it is to discharge that person because she is Jewish.  It makes no more sense in the applicant intake process to require physicals for every applicant, regardless of whether a conditional offer of employment has been extended than it does to arbitrarily advertise a position with the warning "you must be able to stand for 8 hours without a break."

I am not advocating what a group of Italian researchers have advocating, that promotional systems may be better if promotions are purely random, discussed in the report Promotion Systems and Organizational Performance: A Contingency Model (Steven E. Phelan and Zhiang Lin), whose research paper may be downloaded here,   What I'm advocating, and what any good employment lawyer will advocate, is that any such decisions need to be made without any consideration whatsoever of such protected classifications.  

And that's whether we're all majority, or we're all minority.

As a postscript, many thanks to my good friends and colleagues Kelly Phillips Erb, better known as Taxgirl Ellen Freedman who blogs here, and Jennifer Ellis who blogs here, and who cornered me at a Penna. Bar Association meeting last week and got me off my butt to post an update here.  

Permission to Smack the Morons

The Philadelphia Inquirer is "reporting" today that pregnancy discrimination in the workplace still persists.

The absurdity of pregnancy discrimination is difficult to fathom when examined from a higher altitude.

The demands that are placed on mothers --- by us as children --- and by spouses, are the kinds of demands that would humble most men.  And lets not even talk about childbirth itself.   Many men behave as though they are dying and incapacitated when simply suffering from the common cold, while many women are still handling full-time childcare, familycare, and homecare demands (all while battling a 102 degree fever).

So it's difficult to understand in the abstract why an employer can have one attitude regarding his own mother or spouse, but an altogether different attitude about that employee who had the unmitigated gall to get pregnant.  It would make George Orwell smile.

There are instances when money damages may not be enough.  The Plaintiff should be permitted also to give the Defendant a smack upside the head.  Kudos to the Plaintiff's counsel here, and shame on the employer.

As I was just saying....

     Not a day after I commented upon the difference between talking diversity and doing diversity, I read in the Philadelphia Business Journal this article pointing out that the hiring of women at big law firms has declined, according to an annual survey by the National Association of Women Lawyers.

     But how is this possible?  How many big firms now have "diversity officers?"  How many profess to provide extensive diversity programs (so they can secure business from clients who insist upon hiring law firms with diversity programs)?  I called the National Bar Association, the US' oldest and largest association of African American lawyers and judges to find out whether they do a similar survey and was unable to find one.

     On the other hand, the American Bar Association has done such studies and found, among other things, that nearly 100% of women of color practicing law have left the practice within a decade after starting.  I am also personally aware of three bar associations with active "diversity committees," but whose membership continues to be a sea of white, male faces (notwithstanding the fact that as a whole, the United States is becoming a sea of considerably diverse faces, which means eventually a serious disconnect between lawyers and their clients).

     As I commented yesterday, it's the doppler shift ---- everyone sees things from their own point of view, but it's basically the same thing if everyone were looking at it at the same time ---- it's sexism and it's racism and it's other types of "isms" prohibited by law, but routinely practiced.

     So if you watch Sheryl Sandberg tonight on Charlie Rose, you can choose to believe the one speeding away on the train to success, or you can look at the numbers.

Diversity and the Doppler Shift

Facebook COO Sheryl Sandberg was recently interviewed by Charlie Rose in an interview to be broadcast Friday, November 11, 2011. She was interviewed jointly with Mark Zuckerberg in a wide-ranging discussion including Facebook's competitive stance, Google+, gaming, and Steve Jobs. The entire transcript is already available on TechCrunch here.

As an employment lawyer, of particular interest to me are Ms. Sandberg's comments near the end of the segment that she believes women aren't always "ambitious" enough to succeed. She made reference to a Harvard Business School case study by Kathleen McGlinn in which a highly successful woman's career path was outlined for study participants, and the individual was alternatively given a female name (Heidi) or a male name (Howard) and the participants were asked to give their impressions. Sandberg commented

[T]he point of that study is that success and likability are positively correlated for men and negatively for women. So as a man gets more powerful and more successful, everyone — men and women like him more. And as a woman gets more powerful and successful, everyone, including women like them less.

(To be fair, and not take her completely out of context, Ms. Sandberg elaborates on these issues in a TED Talk, "Why We Have Too Few Women Leaders.")

Too often individuals of diverse background who have made it onto the "success train" appear more concerned about saving their seats on that train than allowing anyone else on the train. Time and again, I have encountered women who faced more difficulties with women supervisors, and minority candidates getting a harder time of it from supervisors of the same race or ethnicity. It is almost as if these supervisors are saying "I've made it; one is enough." it is like the sociological equivalent to the doppler shift, where the motion through time and space changes the frequency of sound and light to the viewer without doing so for the one who is moving or advancing.

Sales training courses teach us that people want to do business with people like them. That's taking the easy way out, and completely fails to realize that the world (and the USA in particular) is becoming increasingly diverse.

I have participated in any number of entities who have established "Diversity Committees" to attempt to attack these problems. More often than not, the committees make recommendations, sometimes actually change their by-laws, but not their underlying opinions (and biases). More importantly, actual results are even more rare. But the participants wring their hands and say "but we discussed diversity!"

Talk is cheap. It also doesn't accomplish a whole heck of a lot.

To put it another way, I believe Ms. Sandberg is mistaken when she suggests women aren't as ambitious. They just don't seem so to her. I don't believe she is looking at the situation from a genuine diversity perspective.

Therein lies the challenge of diversity --- diversity implies seeing things from diverse points of view, not just one. If everyone saw things from diverse perspectives, change would be inevitable.

Resources for TriCounty Community Network Attendees

Thanks for the opportunity to speak this morning at the TriCounty Community Network Meeting in conjunction with S.A.F.E.'s recognition of Domestic Violence Awareness Month.

I wanted to post a few resources I was not able to get to during our presentation this morning. Frankly, I enjoyed a broader panel experience (and abbreviated remarks) to provide a better variety of viewpoints on addressing the issue of domestic violence. I know that TCN will have contact information for the panel posted, so I won't repost that here.

However, here are some resources I mentioned (and a few which I did not):

1. This pamphlet, entitled "Be Safe Sensible Prepared" is a joint product of the American Bar Association Commission on Domestic Violence and the ABA Tort Trial & Insurance Practice Section. In addition, links to the two ABA groups are hyperlinked to their names above.

2. The Philadelphia Ordinance (Bill No. 090660-A) providing for leave for victims of domestic violence and/or sexual abuse may be found here. There's nothing in Federal or Pennsylvania law which would preclude individual municipalities from passing equivalent ordinances (except perhaps strident objections from local chambers of commerce.)

3. Information about two pieces of Federal legislation recently introduced can be found here ("Balancing Act of 2011") and here ("Healthy Families Act"). Since watching legislation made is like watching sausage being made (as Otto von Bismarck allegedly suggested), I cannot prognosticate the future for either bill.

4. In my research I also discovered this excellent piece called "Top 10 Things Employers Can Do About Domestic Violence" from the Crisis Connection, an organization located in Southern Indiana.

Finally, to restate my basic points:

1. Employers cannot ignore the problem of domestic violence, regardless of how "difficult" it is to address (as we heard this morning), liability is lurking around every corner;

2. Employers should have a policy and should plan for dealing with domestic violence (as more than one speaker suggested); and

3. There's lots of help available if you take the initiative.

A Little Press never Hurts

We were quoted in a recent article by Gabrielle Banks in the Pittsburgh Post-Gazette regarding lawyers' online conduct (and misconduct, as the case may be).

A thanks to Jennifer Ellis, Esquire, whose blog "Jennifer Ellis, JD" is a must read for any techno-lawyer.

I know I said something along the lines of "how much trouble can you get in 140 characters."

As many know, a heap of trouble is the answer ---- but not if you are careful (and have at least half a brain.)

I will return to my discussion of retaliation claims shortly, as well as be discussing how workplaces need to handle domestic violence, and a review of the U.S. Supreme Court's past and upcoming terms.

Five Things Every Employer Needs to Know About Retaliation Claims

1. Employers can be liable for retaliation even if ultimately there was no underlying discrimination.

Retaliation claims result from an employer taking an adverse action against an employee who has a ‘good faith’ belief that they have been discriminated against. That doesn’t require the employee to be right, only to have a good faith belief that he or she is right. If there is such a good faith belief, and if the employer punishes them for that belief, the employee can bring a retaliation claim and may even prevail.

2. Juries are much more likely to find in favor of the Plaintiff on a retaliation claim than the underlying discrimination claim.


Jurors do not like to use labels such as “bigot,” “sexist” or “liar.” On the other hand, jurors do have a deep sense of fair play, and even where they are unwilling to find discrimination, they will find retaliation if they believe that the employer has not played fair with the employee claiming discrimination.

3. Everyone connected with the investigation is protected from retaliation.

The U.S. Supreme Court has held that protection from retaliation even extends to employees who participate in internal investigations, even where those investigations don’t arise from the participant’s own complaints, and even where somebody other than the complainant is retaliated against!

4. An employer doesn't have to fire an employee to cause that employee to suffer an adverse employment action.


All kinds of consequences constitute “adverse employment actions” in the employment discrimination arena. Unpaid suspensions; demotions; discrimination in job assignments; shift changes; name-calling; use of certain discriminatory props (e.g. nooses) all can be interpreted as adverse employment actions, and thereby trigger retaliation claims. Any action which "may well dissuade" an individual from bringing a good faith claim of discrimination may constitute unlawful retaliation.

5. Employers can eliminate most claims with proper internal policies and procedures.

Where an employer has an internal procedure for addressing discrimination complaints and the employee does not utilize that procedure, the employer may be able to avoid liability altogether. In addition, prompt remedial measures and a competent investigation can reduce the likelihood of a retaliation claim.

I will explore further each of these points in upcoming posts.