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Employment Discrimination is Everywhere: and Chances are, Workers Will Lose their Suit

Sometimes the law is on the side of workers in cases of employment discrimination. But often it isn’t.  If you happen to be a person of color, a woman, older or disabled, the chances are high that if you fought the law, the law won.

The recent bombshell news of decades-long sexual harassment by Hollywood mogul Harvey Weinstein got him fired from his role as co-chair of the Weinstein Company. As the board explained in a press release: “It is essential to our Company’s culture that all women who work for it or have any dealings with it or any of our executives are treated with respect and have no experience of harassment or discrimination.”

But such swift and decisive action is not the norm (and of course, considering that this went on for DECADES, “swift action” may not be the right term). The silence around persistent behavior like those involving Weinstein is common in every industry

The authors of the new book, Rights on Trial: How Workplace Discrimination Perpetuates Inequality, studies more than 2,000 cases filed between 1988 and 2003. The three authors also interviewed hundreds of plaintiffs, defendants, lawyers and others involved in these suits to find that the workplace is typically not fair in cases of discrimination.

In fact, it might be more accurate to characterize the success rate for cases of discrimination as “dismal,” since a mere 2% of plaintiffs go on to win at trial. And that’s after 19% of the cases are dismissed. Nearly half involve early settlements, and then 18% of the cases are lost on summary judgment. The remaining 8% conclude with a late settlement.

But each one of those cases is a story. And in each one of those cases, voice is a metaphor for civil justice.

“Voice is important in legal disputes,” says Laura Beth Nielsen, a co-author of the book, that literally gives voice to those involved with audio clips of the interviews on its website.

In these “‘workplace wars,’ the stories are heartbreaking,” says Nielsen, research professor at the American Bar Foundation, and Professor of Sociology at Northwestern University.

Consider the case of Kristen Baker, whose case is highlighted in the book: Baker was a 33-year-old assistant buyer in a small, family-owned manufacturing company. One of the salesmen on her team “began bringing pornographic magazines and movies to work” and also charging for admission to viewing parties he hosted in the conference room during lunch hours. He showed Baker pictures of bestiality. She filed multiple complaints to HR, until the final straw came with the salesman’s physical act of sexual harassment.

At that point, Baker filed a discrimination case. Her employer offered her $10,000 to leave the company. Baker eventually settled for $1, a public apology and the option to keep her job.

Authors Nielsen, Robert L. Nelson and Ellen Berrey write in the book:

For over five decades, employment civil rights litigation has been seen as an instrument to achieve greater workplace opportunity—first for people of color and women, and more recently for the aged and those with disabilities. We continue to see attacks on employment civil rights litigation from critics who decry such litigation as a frivolous, costly excuse factory.

It can be hard for some to understand that discrimination so blatant and offensive still goes on in American workplaces. But it does – every day.

In her new book, Reset: My Fight for Inclusion and Lasting Change, Ellen Pao, who lost her $16 million gender discrimination lawsuit against the venture capital firm Kleiner Perkins Caufield & Byers in 2015, affirmed that the efforts were still worth it, since it gave her a platform to tell her story and ultimately “started a conversation about systemic bias in Silicon Valley, giving others the courage to report their own experiences” (see the full store on Recode.)

“The sad thing is we tend to reject people who make rights claims,” says Nelson, a co-author and Director Emeritus of the American Bar Foundation, and Professor of Sociology and Law at Northwestern.  “We have a process where prominent stereotypes about persons of color, women, the aged and disabled” are very much at work.

A gender discrimination suit was filed recently against Winston & Strawn, adding to gender discrimination suits by former attorneys against legacy law firms Steptoe & Johnson LLPChadbourne & ParkeProskauer RoseLeClairRyan and Sedgwick, according to Above The Law.

In the most recent case brought by Constance Ramos, “as reported by Law.com, the complaint alleges Ramos was never treated as a lawyer and partner in her own right, but as ‘an appendage of a male superior’ that the firm sought to be rid of when the equity partners that Ramos joined the firm with, ultimately left Winston.”

Ramos’ experience of being excluded from meetings is similar to the experiences of Pao, who told PBS News Hour:

I was getting blocked. I wasn’t being invited to meetings. One of the women at the firm also actually mapped out investments for the women and investments for the men, and showed that the women’s investments were doing significantly better … we have more experience, we have more education, on average, and, we’re not getting promoted. And, as a group, most of the men got promoted.

But high-profile lawsuits like these are extremely rare. Fewer than 1% of employees who experience  discrimination actually file a charge with the Equal Employment Opportunity Commission. Then, only 15% of EEOC charges lead to a lawsuit filed, and only 6% of those cases  ultimately make it to trial.

“We see a symbolic valorization of rights in the abstract,” says co-author Ellen Berrey, an Assistant Professor of Sociology at the University of Toronto and an affiliated scholar of the American Bar Foundation. But in practice, there is widespread structural inequality.

While the book covers cases in the American workplace, discrimination on the job is a global problem.

“According to a 2017 report by the International Labor Organization (ILO), there is no universally accepted definition of ‘harassment’ or ‘violence’ with regard to the world of work,” according to the Council on Foreign Relations.

Gayle Tzemach Lemmon writes:

The absence of a global regulatory framework to address sexual violence and harassment in the workplace has left companies to define for themselves what constitutes appropriate behavior. Likewise, workplaces are left to curtail inappropriate behavior — often with women saying not enough is being done. In South Africa, an overwhelming 77 percent of women report experiencing sexual harassment in the workplace, as do 40 to 50 percent of women in the European Union. In national surveys conducted in Austria and Luxembourg, that number reaches as high as 80 percent.

 

Yet there are ways to make changes, and the authors put forth several suggestions. These include more access to legal representation; more EEOC resources and state fair employment agencies; better forms of communication between the EEOC and charging parties; access to employee information for employees on demographics and compensation; and addressing racial disparities in legal representation.

Employees telling their stories of discrimination and reporting are initial steps. The more voices, the louder the call for equity.

Pao told PBS News Hour:

And I think that this year, with all these people coming out and with the press and the public being so much more receptive to their stories and being able to take them at face value, [the kind of criticism] I went through has kind of dissipated as people see, wow, this is a huge problem.

As Jennifer Siebel Newsom, founder and CEO of The Representation Project, filmmaker of “Miss Representation” and “The Mask You Live In,” writes on HuffPost:

Let this be the end of ‘open secrets.’ Let there be no more passive waiting for the victims to reach a certain number before we actually do something about this culture of sexual harassment and assault. We need more people in power ― particularly men in power ― to break the code of silence and stand up for what is right and what is just and challenge this culture of sexual harassment and assault against women.

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