EEOC Has Lowest Level of Pending Charges in 13 YearsThe sometimes agonizingly slow Equal Employment Opportunity Commission is trying to be more efficient. According to the latest Agency Financial Report, in fiscal year 2019 the EEOC reduced the level of pending private sector charges to its lowest number in 13 years. Specifically, the number of pending private sector charges in fiscal year 2019 decreased by 12.1 percent, to 43,580.

Fiscal year 2019 continued a recent trend of declining numbers of pending charges. As recently as 2014 and 2015, there were more than 75,000 charges pending in each of those years. 2016 saw a small decline, but that decline accelerated in the years to follow. The number of charges dropped to 61,621 in 2017, then to 49,607 in 2018, and now to 43,580 in 2019.

According to EEOC Chair Janet Dhillon, the decrease was the result of the EEOC’s focus on “inventory reduction strategies,” “priority charge handling procedures,” technological enhancements, and “hiring of front-line staff.” The good economy in recent years has also likely contributed to the decline in the charge numbers.

Some other fiscal year 2019 highlights from the report included:

  • The EEOC collected more than $486 million for “victims of discrimination.” Of the $486 million, the EEOC collected $346.6 million through mediation, conciliation, and settlements from employers in the private sector and state and local governments, $39.1 million through litigation, and $100.6 million for federal employees and applicants.
  • In the mediation program, the EEOC successfully mediated 6,394 charges. The private sector mediation program garnered a satisfaction rate of 96.8%, representing the percent of participants who would use the process again.
  • Interestingly, the rate employers chose to participate in the EEOC’s mediation program increased to 30.7% (from 27.6% in fiscal year 2018).
  • The EEOC filed 144 lawsuits. Of those 144 lawsuits, 100 suits were on behalf of individuals, 27 were non-systemic suits with multiple victims, and 17 were systemic suits involving multiple victims or discriminatory policies.

The NLRA, Protected Activity, and the F-BombWhen, if ever, is swearing at your supervisor or coworkers a federally protected activity? The National Labor Relations Board (Board) currently is reconsidering what constitutes protected activity under the National Labor Relations Act (NLRA). Specifically, the board is trying to clarify when workers can be protected from discipline for using profanity or engaging in harassing behavior toward supervisors or coworkers.

The Concept of Protected Activity

The NLRA is a somewhat unique employment law in the sense that it does not set forth easily recognizable employment standards – such as a minimum wage or a prohibition against racial discrimination – but rather is intended to allow and to encourage employees to join together to address issues in the workplace. When employees act together, or engage in “concerted activity,” then they engage in protected activity under the NLRA and cannot be disciplined for that activity. So, the question under the NLRA often becomes, what is protected concerted activity and what is just outright insubordination or harassment? In other words, to what extent does the NLRA protect the use of the f-bomb (or the n-word)?

The Existing Standard — Atlantic Steel

The current standard for evaluating whether otherwise inappropriate workplace behavior is protected under the NLRA is called the Atlantic Steel test. The four factors under Atlantic Steel are (1) location of the activity or discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s conduct or outburst, and (4) whether the outburst was provoked as a result of the employer violating the NLRA. Under this test, many instances of vulgar or profane comments, including racially and sexually offensive language, have been found to be protected by the NLRA. Sometimes the justification provided is that the NLRA would be meaningless if it did not take into account “the realities of industrial life.”

The Board’s Invitation

The board is considering a case, General Motors, in which the employee said (paraphrasing), “I don’t give a f_____” and “shove it up your f____ a____.” The Administrative Law Judge found that the employee engaged in protected activity. Based upon this behavior and the desire to re-examine the standards applicable to this behavior, the board invited extensive briefing by not only the parties to the case but others as well. For example, the EEOC now has filed a brief. Interestingly the EEOC notes that Title VII’s prohibition on harassing conduct contains no “blue collar” exception or any exception for workplaces “rife … with vulgar conduct.” After this comprehensive briefing is concluded, the board likely will issue a new standard for when vulgar or offensive workplace conduct is protected and when it is not.

What to Expect

Many anticipate that the board will further limit when otherwise dischargeable conduct will be protected under the NLRA. There also may be completely different standards that apply to simply vulgar behavior as opposed to behavior that rises to the level of actionable harassment under discrimination laws (remember “severe or pervasive”). Many agree that union activists should have no greater right to engage in this vulgar workplace behavior than anyone else. So, stay tuned.

Same Name, Different Blame: Sixth Circuit Finds Distinction Between Troopers in RaceOne of the essential factors for plaintiffs in discrimination cases can be showing that they were treated differently than a similarly situated co-worker — the inference being that they were treated differently because of their age, sex or race (or other legally protected status). In defending those allegations, companies often present facts as to how the workers’ situations are different. In  Johnson v. Ohio Department of Public Safety, two troopers had similar type allegations, and even shared the same last name. However, the Sixth Circuit found that their circumstances were different enough to prevent them from being proper comparators.

Officers Not Being Gentlemen?

Ohio State Trooper Morris Johnson was accused of several incidents where he either asked out or hit on women that he was arresting or pulling over (one without probable cause). The Ohio Department of Safety (ODPS) considered firing him, but instead put him under a last chance agreement that allowed him to remain employed if he followed the rules for two years. After signing the agreement, there was another incident where Morris Johnson arrested a woman for DUI, gave her a ride home from the police station, turned off his body-cam and went into her house for 30 minutes. ODPS terminated him for violating the agreement.

Morris Johnson, who is African-American, filed a case of racial discrimination. In support of his claim, he pointed to a fellow trooper, David Johnson, who also had some problems following the rules. David Johnson was alleged to have sent an off-duty Facebook friend request to a woman he had detained and ticketed. David Johnson, who was white, received a one-day suspension for his behavior. Morris Johnson alleged that the two of them were similarly situated and the only reason he was treated differently was because of his race.

Not Like the Other

ODPS moved for summary judgment arguing that it disciplined the two officers differently because their situations were different, not because of their races. The court found that the two sets of allegations were not of “comparable seriousness.” While both officers acted inappropriately (and happened to share the same last name), they were not similar enough to be comparators. The district court granted summary judgment in favor of ODPS.

The Sixth Circuit agreed with the district court’s analysis. The opinion stated that while “stitches and open-heart surgery are both medical procedures,” they are not of “comparable seriousness.” The court examined the details of the allegations and found that while he was on duty Morris Johnson harassed intoxicated women that he was detaining, propositioned women to go out with him, pulled a woman over without probable cause so he could ask her out, and went into a woman’s house. The court noted that David Johnson, the alleged comparator, did none of those things. The court also noted that Plaintiff Johnson was under a last chance agreement, and the comparator Johnson was not. The court agreed that ODPS terminated Morris Johnson for abusing his power and not for any discriminatory reason.

But There’s a Dissent!

Judge Moore wrote a dissenting opinion in which she noted that comparators do not have to be identical, but instead only have to be similarly situated “in all relevant respects.” Judge Moore criticized the majority for holding that the lack of a last chance agreement was a significant difference between the two officers — both officers were subject to the overall department conduct policies, and both violated them. She also felt that there was not much difference in what each officer did: Both abused their status as law enforcement officers to develop relationships with women. Both were charged under the same offense — conduct unbecoming an officer. There was no evidence that ODPS necessarily viewed any of the prohibited behaviors as qualitatively different. Finally, Judge Moore noted that the prima facie burden was not that onerous and that summary judgment was not proper.

What Have We Learned?

This case raises the question of proportionality of discipline. Here, the Sixth Circuit felt that the differences between the two Johnsons’ behaviors were stark enough to justify termination in one case and suspension in another. However, you can see how this might become more difficult the closer the two situations resemble each other. The most important thing is to be consistent. Employers get in trouble when they don’t apply the same discipline in similar circumstances.

Another lesson is on last chance agreements — while they can be good, they also need to be applied consistently. Here, the majority found it significant that plaintiff Johnson had violated his last chance agreement, while the dissent noted that there was no explanation for why the comparator Johnson was not on one as well. If you want to use last chance agreements, establish a policy and enforce it across the board.

The final lesson is that detained or arrested individuals should not be in any police officer’s dating pool. Peace officers need to pursue other avenues for meeting potential soulmates.