Tuesday, September 13, 2016

Our employment discrimination laws are not a pretense

Last week, the 6th Circuit decided Richardson v. Wal-Mart Stores [pdf], a fairly run of the mill age discrimination lawsuit. The court decided that Richardson had failed to establish that Wal-Mart’s reason for firing her—a two-year history of disciplinary warnings—was pretext for age discrimination.

What caught my interest was not the decision itself, but instead the following statement made by the plaintiff’s attorney to Employment Law 360 about the decision:
The unfortunate reality is that anti-employment discrimination laws have largely become a pretense in the U.S. These laws remain on the books; but many courts rarely enforce them.
I had an entire post written in my mind about what is inherently wrong about this statement, and then I read Dan Schwartz’s post yesterday on his always excellent Connecticut Employment Law Blog, entitled Maybe That Discrimination Lawsuit Against Your Employer is Ill-Advised. And damn if Dan didn’t take the thoughts right out of my head (not that I haven’t done the same to him):
But in the overwhelming majority of employers I’ve dealt with, I just don’t see it happening. And, when I’ve been asked to provide advice on an employment situation that just feels off, I typically advise the employer to rethink its plans. Most businesses I’ve dealt with just want to have solid employees and minimize issues in the workplace. If your employer had legal counsel review the termination decision, it means the employer is trying to comply with the law — not find some legal loophole to get around it.… 
In litigation, however, I’ve seen too many instances of employees who were simply oblivious to how their actions were perceived by others. They simply lacked the self-awareness of their own actions, or if they were self-aware, they denied it vigorously as if by telling themselves a lie enough times, it could become reality. Before accusing your employer of discrimination, ask yourself — If I told my neighbor the story of my firing, whose side would he or she be on?
So well said, and so true.

The fact that plaintiffs win far fewer discrimination cases than they lose is much more a function of employers making well reasoned, non-discriminatory decisions than judges ignoring the employment discrimination laws. We are now 52 years after the passage of Title VII. The number of employers that are ignorant of their non-discrimination obligations is small, as is the number of those that intentionally discriminate. Do bad decisions fall through the cracks? Absolutely. Yet, my experience tells me that most employers are trying to do right by their employees. When discrimination occurs, it must be stopped. I just do not believe that it happens as often as do some who sit across the aisle, nor do I believe that judges are ignoring it when it does.