San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 Filing charges of EEOC complaints has reached an all-time high.  Though just a small increase over 2010, the filings reflect the state of the economy.  Filings generally rise when the economy worsens.  That is due, I believe, to employers taking advantage of the economic "cover" to get rid of employees and more terminations simply cause more complaints.  See MSNBC report.  

The EEOC said it received 99,947 complaints in Fiscal Year 2011.  35% of these complaints were based on race; 29% alleged gender discrimination; and 24% of the complaints were based on age discrimination.  26% of those complaints were based on disability discrimination.  The EEOC says 18% of those complaints received a "merit resolution," which means they achieved some sort of settlement. 

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All too often, someone who filed an EEOC charge comes to see me with their right-to-sue letter in hand seeking representation for a lawsuit.  Unable to accept their case, i discus the alternatives.  I review the deadline with the potential client: 90 days for federal court and 2 years for state court.  Looking more closely, I realize that the EEOC did not notarize the charge.  Oh, oh.  The EEOC famously, perhaps infamously, does not notarize changes of discrimination.  Without a notarized signature, the client cannot file suit in state court. 

The EEOC Notice of Dismissal (aka "right-to-sue" letter) form used by the EEOC has two signature blocks, one in which the affiant swears under penalty of perjury that the above complaint is correct and a second block which requires notary certification.  The EEOC uses the first block in which the affiant signs under penalty of perjury.  That first signature suffices for federal court, but not for state court.  The EEOC never asks the charging party to sign before a notary.  Stetson College of Law has posted a sample EEOC charge.  

Just about every private practice lawyer who represents employees asks the charging party to sign both signature blocks.  The notary certification is necessary for state court.  It only takes an extra minute or two to sign a second time before a notary.  I am told that way back when, the EEOC used to have charging parties sign both block.  But, they have long since discontinued that practice.  

So, now, in my office, I have to explain to a charging party why s/he cannot or should not file in state court.  It is way too late to file a new charge of discrimination.  As often happens, they came to see me about Day 88 of a 90 day deadline to file in federal court.  It is hard to find lawyers who represent employees in employment matters.  

So, once again, a client sees me well past the six month deadline for filing a charge of discrimination.  The 90 days to file in federal court is almost gone.  Since the charging party did not sign before a notary, s/he cannot now file in state court.  It is a maze which traps many well-meaning victims of discrimination.  All because the EEOC would not take an extra couple of minutes to have the charging party sign twice.......

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What happens when the fired employee is elected to the board of trustees?  That situation is unfolding at the Southside Independent School District, a San Antonio area district.  Alma Rosa Guzman was fired by Southside ISD as maintenance manager in November, 2010.  See San Antonio Express News report.  Ms. Guzman was fired after working for Southside ISD for 30 years.  She then filed a complaint with the EEOC alleging gender based discrimination. 

She was elected to the board last May.  Since then, she abstains from votes concerning her EEOC charge and does not join her board colleagues when they go into closed session about her case.  The board has voted twice to reject her settlement demands, once for $850,000 and again for $600,000.  She has received her right-to-sue letter.  It was issued at her request.  So, she will surely be filing suit very soon.  There are sure to be many more such executive session votes.......

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The San Antonio regional office of the EEOC has filed two discrimination lawsuits here in the Alamo City.  One suit is against AA Foundries, Inc. alleging racial discrimination.  The lawsuit claims that a AA Foundries supervisor routinely used the "n" word and that a hangman's noose was displayed.  The breakroom also displayed racially offensive materials.  

According to the EEOC, when asked about the noose, an AA manager simply laughed it off.  When asked about the breakroom materials, the same supervisor simply responded that no one was required to read the materials.  The AA Foundries defense now lawyer suggests that the noose was a one-time incident by an "idiot."  AA Foundries employs some 20 persons.  The lawsuit is filed on behalf of four former employees. 

The EEOC also filed suit against Universal Toyota for age discrimination.  Universal Toyota is owned by Red McCombs.  The suit claims Univeral Toyota would not allow older salesman to sell the Scion.  The Scion is marketed to a younger customer.  According to the suit, several salesmen were told flatly they were too old to sell the Scion. One salesman was terminated after he complained about the discrimination. 

The San Antonio office includes a wide geographic area extending into New Mexico.  Only rarely do they file suits here in San Antonio.  I would expect they have good evidence before filing these two lawsuits.  

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The EEOC has filed suit against Bass Pro Shops.  The suit claims that Bass Pro discriminates against Hispanic and black applicants.  The suit appears to be built on testimony from various managers and assistant managers.  See San Antonio Express News report.  The lawsuit started with a complaint by a fomer Houston manager who says she was fired when she complained about how black employees and applicants were treated.  

The EEOC eventually found the discrimination to be nation wide.  Jim Sacher, the EEOC Regional Attorney in Houston said managers routinely used racial slurs, told managers not to hire Hispanic and black applicants, and told employees to follow black and Hispanic customers through the store.  The suit alleges that in 2005, the manager at the Houston store told the human resources manager that it was "getting dark in here" and that the store needed to hire more white employees. 

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The EEOC has been hit with another sanction of attorney's fees.  A court assessed $2.6 million in attorney's fees against the EEOC due to a lawsuit they filed which they lost.  See Workplace Prof blog post.  The EEOC had sought class action status in EEOC v. Cintas and lost.  Because the EEOC did not attempt conciliation prior to suit, the federal court dismissed the action.  See the court decision.  The court found that conciliation was required as part of the requirement to exhaust administrative remedies.  

Title VII of the Civil Rights Act of 1964 has requires that when the EEOC finds "reasonable cause" to believe that discrimination has occurred, then the EEOC must attempt conciliation or settlement.  This requirement was an early attempt at lawsuit reform.  It requires that individuals bringing suit first attempt all non-lawsuit remedies first.  

In EEOC v. Cintas, the EEOC had been denied class action status.  It then sought a "pattern and practice" type allegation on behalf of thirteen individual women and was again re-buffed.  Responding to the employer's claim that it had not attempted conciliation, the EEOC argued that it did attempt conciliation against Cintas previously as part of its class action suit - which later failed. But, that conciliation apparently did not include these thirteen individual women.  So, yes, the EEOC attempted conciliation on behalf of a class of women, but apparently did not attempt conciliation on behalf of these thirteen ultimate plaintiffs.  This is an important distinction.  But, does this distinction make a difference?  Would Cintas have been any more receptive to conciliation if the plaintiffs were thirteen individual women, instead of a class of women?

As Workplace Prof points out, this decision and others like it are tying the EEOC's hands in regard to pursuing class actions or multiple plaintiff lawsuits.  The EEOC lacks the resources to represent individual plaintiffs.  They simply do not have enough lawyers.  So, they have been trying to focus on larger lawsuits, such as class action lawsuits and "pattern and practice" lawsuits.  This federal court decision will make it more difficult for the EEOC to focus on systemic cases.  We taxpayers will get less bang for our buck from this important federal agency.  And, Cintas skates after having been found reasonably likely to have discriminated against some women. 

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Russ Cawyer posts about the coming demise of the so-called "no fault" leave policy, better described as fixed leave policies.  He notes that the EEOC has been aggressively pursuing companies who implement such policies.  Under these policies, once an employee has been out on leave for a certain length of time, the employee is terminated no matter the cause of the leave.  The problem with such policies is that they violate the requirement of the Americans with Disabilities Act for an individualized assessment of an employee's need for leave.  I discussed these automatic leave policies previously here.  An employer maintains such policies at considerable risk.  They might work for Family Medical Leave Act or worker's compensation reprisal cases, but they will not work for ADA claims.  

The EEOC held hearings on leave as an accommodation, a couple of weeks ago.  Public comments regarding leave as an accommodation may be sent to:  Commissionmeetingcomments@eeoc.gov.  I typically only hear about the issue when some employee faces an issue with his/her employer.  But, sure, many employees are getting short shrift from too many employers when the employee is out on prottracted leave.  There is strong caselaw saying that too many absences render an employee unable to perform a key function of every job: attendance.  This is a misleading characterization, but the point remains, employees need to attend work in some way to perform the job.  

There is a middle ground, somewhere before the employee is out for a year or two but not before the employee has had an opportunity to recover from an ADA type illness.  The EEOC will attempt to find that middle ground when they issue new regulations regarding leave as an accommodation. 

Most cases currently find that absences of 1 year, 1,5 years are too long.  Once an employee has been out that long, many judges have found that he/she is not capable of performing a key function of every job, attendance.  If the employee cannot perform the function of attendance, then that employee is not entitled to accommodation.  But, how long is too long for an employee to be out?  Send your comments to: Commissionmeetingcomments@eeoc.gov.  The EEOC is working on regulations to provide needed guidance.  Government regs always work better when they have some grounding in real life. 

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A federal judge in Iowa has ordered a company based in Texas to pay $1.76 million to former mentally disabled workers at a turkey plant.  The US Department of Labor was granted a partial summary judgment against Hill Country Farms doing business as Henry's Turkey Service.  Henry's housed the mentally disabled men in a dilapidated bunkhouse - which was eventually closed by the Fire Marshall. 

The judge's decision says the employer failed to pay the men in accordance with the Fair Labor Standards Act.  See San Antonio Express-News report.  The company violated the minimum wage and overtime provisions of the FLSA.  The mentally ill men, in their 50's and 60's lived in the bunkhouse with boarded up windows and space heaters for heat.  Henry's charged for room and board - the amount went up each year, while the wages remained the same.  The employer paid no more than $65 per week for each worker for some 20 years.  The amount was apparently based on the maximum amount allowed under Social Security regulations that would not trigger a decrease in benefits.  Yet, the men worked 40 hours per week and more.  See second San Antonio Express-News report. 

The judge ordered the employer to pay $881,000 in back wages and an equal amount in liquidated damages for a total of $1.76 million. 

in a separate action, the EEOC has also filed suit alleging discrimination and harassment against the 31 men. 

It takes a cold employer to abuse the most vulnerable in our society. 

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 The EEOC has filed suit against an oil rig construction company doing business in Texas and Mississippi.  The EEOC filed suit against Signal International LLC in Gulfport, Mississippi on behalf of indian workers recruited for US work on an H-2B visa.  The workers were recruited to come here to work as welders and pipefitters in Pascagoula, Mississippi and Orange, Texas.  Signal says they needed the workers in the aftermath of Hurricane Katrina when workers were scarce.  See San Antonio Express News report.  The workers came here from 2006 through 2007.  The suit seeks class certification. 

The suit claims discrimination based on ethnic origin and retaliation.  Some of the workers began seeing lawyers in 2007 regarding their conditions.  They were subjected to harsh language, unsanitary living conditions.  Their living area was surrounded by a fence and the immigrants were sometimes searched before entering.  In response to the workers seeing lawyers, Signal rounded up five workers and sent them home to India.  

I presume the "harsh" language refers to racial epithets.  Otherwise, such language would not be relevant to a lawsuit based on discrimination and retaliation. 

Some workers filed suit in 2008 alleging human trafficking and racketeering.  Assisted by the Southern Povery Law Center, that earlier suit is still pending. 

As always, discrimination lawsuits can be problematic.  But, retaliation suits are much easier for the worker to win.  Employers should not take reprisal for workers seeking their rights under Title VII.  That only makes the situation worse. 

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Two former employees of Dallas law firm Simon, Eddins & Greenstone have filed suit against the firm alleging sex based discriminatioon.  The women filed in federal court according to an April 11 report in Texas Lawyer.

In Franklin v. Simon, Eddins & Greenstone, Katherine Franklin alleges an associate lawyer, Ben Braly, sent her a link via email in November, 2009.  The link allegedly included a picture of partner Greenstone's penis.  Ms. Franklin contacted the EEOC.  She provided info to the EEOC in preparation for filing a charge.  She reported the pornography to Partner Simon, she alleges.  

She met with a lawyer outside the firm who said he was related to Simon and could not represent her.  The firm then fired her the next day in December, 2009. 

The firm claims Ms. Franklin was fired after she received a poor review.  Franklin says she had received good reviews before that and had received a $500 bonus.  Ms. Franklin says Mr. Greenstone showed her the email and told her she did not have to open it - apparently suggesting it was her choice to click on the link. 

In an interview, Mr. Greenstone says in November, 2009, he changed the screen saver on the associate's phone to something "inappropriate."  Ben Braly, the associate lawyer, then tried to respond by sending a mock Human Resources complaint about Greenstone to another lawyer.  But, Mr. Braly inadvertently sent the prank email to Franklin.  The prank email contained a link to a video of two men.  Mr. Greenstone says Mr. Braly apologized immediately to Franklin.  He says no one saw the inappropriate image other than Mr. Braly.  

Mr. Greenstone emphasizes that he never intended to offend anyone.  There are things they do in the office for fun.  And, they want everyone to be treated with respect, he added.  

The firm denies the picture of the penis was Mr. Greenstone's.  The Plaintiffs' lawyer says he does not know if is or is not, because he has never seen Mr. Greenstone's penis.  In a Title VII analysis, I think it matters little to whom the penis belonged....  

The firm may have some good facts with which to minimize the sex harassment portion of the case.  But, retaliation is always the stronger claim.  The retaliation claim plus the "frat boy" atmosphere puts the law firm in a bad position. 

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The EEOC has published the final regulations to support the new Americans with Disabilities Act.  See regulations.  The ADA was amended in 2008, which amendments then went into effect in 2009.  

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An employee went to the EEOC.  She was being sexually harassed in a pretty blatant manner by the owner of a small company somewhere in the USA.  She meets with an investigator who tells her that she has no case, because she has no evidence.  EEOC investigators should not give legal advice, but  it happens sometimes.  They are investigators, after all.  Investigation sometimes involves discussions about evidence.   

The complainant then responds that she has witnesses.  Investigator tells her to call her Human Resources person to make a report.  The employee calls HR from the investigator's office.  She reports the sexual harassment. 

Within ten minutes, the owner calls the employe, still at the investigator's office.  She puts him on speaker phone.  The owner says, "I understand you complained about me.  You don't need to return to the office."  The owner fired the employee over the EEOC's own phone within ten minutes of her complaint.  The investigator heard it all. 

One might think, great, what great evidence!  The silly owner called and fired the employee for pursuing her rights with the EEOC - right where the EEOC could observe the whole chain of events.

Wrong.  The invstigator still insisted she had no case and refused to allow her to file a claim for discrimination or for retaliation.  He tells the employee she should just go collect her last paycheck and move on with her life.

This is the organization that on its own website says:

"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 of the person's . . .  sex . . . . It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit."

 As I have mentioned before, do not expect much from the EEOC.  Most investigators mean well. They have far too many cases to perform an adequate investigation in any one case.  Of course, this situation goes beyond mere investigation.  The investigator already has all the necessary facts on which to start and conclude an investigation.  I can only conclude that the culture at some EEOC offices is indifferent and blind to the realities of the workplace.  

Is there room for doubt that the employer just retaliated against the woman because she opposed discrimination?  The investigator saw and hard it all.  He already has enough evidence to find in her favor on the issue of retaliation for opposing discrimination. 

The EEOC does have some teeth.  They do file lawsuits on behalf of employees.  But, situations like this one suggest that sometimes they will not see discrimination even if it is in front of their nose......

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The EEOC has held public hearings on an employer's use of credit reports as a tool with which to screen applicants.  Jon Hyman at Ohio Employment Blog discussed one such hearing.  See Jon's blog post.  Employers say credit histories help them screen clients and protect against fraud. Employees, especially in this economy, are concerned that poor credti history may unfairly keep them from a job.  The representative from the US Chamber of Commrece says employers take individual situations into account and do not abuse the practice.   

According to one credit agency, Experian, employers never see credit scores, just the histories.  See Jon's post for more info. 

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 According to the ABA Bar Journal, the EEOC settled a case against a temp agency in Ohio.  The agency used code words to describe the racial background of potential employees.  "Chocolate cupcake" referred to young female African Americans.  "Hockey players" described young white males. 

The case settled for $650,000.  The case was pretty egregious, said the EEOC Field Director.  

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 I wrote previously about a San Antonio law firm that refused to provide documents requested by the EEOC.   The EEOC even filed suit in federal court to get those documents.  Well, the Malaise law firm thought better about it and provided the requested documents, after all.  Russ Cawyer reports that the EEOC moved to dismiss its motion when the firm did later provide the documents.  

As I mentioned earlier, it is hard to understand how the law firm can claim privacy concerns when all information and documents acquired by the EEOC are treated as confidential. Indeed, it is likely now that the EEOC will view those documents with some suspicion.  The employer may have made their position worse with this resistance. 

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 The EEOC has found reasonable cause to believe there is overt racial discrimination at a plant in Paris, Texas.  Paris is in deep East Texas, more Southern than Western in its culture.  The EEOC is seeking to conciliate the matter.  See report.  The EEOC found that black workers were routinely subjected to racial slurs, comments and intimidation at a pipe fabrication plant owned by Turner Industries.  Black workers were passed over for promotion and subjected to discipline more harshly than white workers.  The workers provided photos of the notes, the nooses and the graffitti.  Turner Industries claims it cleaned up the graffiti as soon as possible.  Turner Industries has other locations in Texas.  See CNN story.  

If the employer claims it took remedial action, the  the case will likely turn on whether they took strong enough action quickly enough.  Conciliation, as practiced by the EEOC, can proceed quickly.  The last time I went through conciliation, the EEOC proposed settlement terms.  The employer refused and that was it.  Conciliation in my experience can go pretty quickly.  According to the CNN story, management retaliated against white workers who complained.  If that can be shown, then the employer will pay a steep price to conciliate.  

EEOC offices can vary a great deal from area to area, but in my experience, the EEOC is very careful about making direct public claims of discrimination.  If the EEOC makes public a claim of discrimination, they have pretty strong evidence in support. 

Yes, Dorothy, there is still overt discrimination in the world. 

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 It is not often that the EEOC even issues a subpoena to an employer for records.  It is more rare still for the employer to resist that subpoena.  But, local San Antonio law firm, The Malaise law firm is doing just that.  According to Russ Cawyer, an employer attorney who blogs on employment law, the EEOC sought records regarding all employees during a certain time frame.  They would need such information in order to interview witnesses.   Malaise agreed to produce the names of the employees.   But, the employer refused to provide contact information for each employee.  Eventually, the EEOC had to file suit in US district court to enforce its subpoena.  

I would expect this to be tough battle for the Malaise law firm.  EEOC investigative records are confidential.  So, arguing that producing records would violate an employee's right to privacy will have limited effect.  In reviewing the early letters, it appears that Todd Malaise initially represented his firm himself in resisting the EEOC's demands.  There are numerous letters going back and froth between the employer and the EEOC.  Later, the firm hired employment attorneys to resist the subpoena.  

The EEOC always has too many investigations for too few investigators.  If they must spend so much time on one case, that helps explain why they spend so little time on all their other files. 

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 In a recent settlement with the EEOC, Sears Roebuck agreed to pay $6.2 million to resolve claims made by persons with disabilities.  Sears also agreed to enter into a consent decree, which means Sears agreed to perform many other non-monetary tasks in settlement of the claims.  The EEOC represented persons with disabilities who had worked at Sears.  In the suit, Sears allegedly maintained an inflexible leave policy which did not look at each request for leave on a case-by-case basis.  This is the largest ADA settlement ever.  Some 235 Sears employees received an average of $26,300 each.  

The EEOC also sued UPS in a class action lawsuit also for maintaining inflexible leave policies.  See report.  Delaware employment law blog reports that these leave policies concerned employers who terminate employees after six or twelve months, regardless of their individual situation.  These policies are fairly common, since they supposedly avoid claims of discrimination.  The theory is that every employee, regardless of whether their injuries stem from worker's compensation complaints, disabilities or just simple personal injuries, is treated the same: they are fired after so many months (six or twelve typically).  If all employees with health problems are treated the same, then there is no discrimination, correct? 

No.  Wrong, because the ADA requires an individualized assessment of a person's need.  Under the ADA, an employer must conduct a case-by-case evaluation regarding requests for accommodation.  For example, if an employee needs more time off as part of some treatment plan, the ADA would require an accommodation of more than six or twelve months of leave.  As Delaware employment law blog explains, employers with such leave policies are prime targets for lawsuits, now.  Many of us viewed such policies as unlawful.  Now, we know they are unlawful.  Employer should examine their polciies to make sure they allow for some sort of individualized evaluation whether extended leave is necessary as an accommodation. 

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 Yes, you too can be hit with an award of attorney's fees.  In federal court, the losing party is almost always ordered to pay the other side's court costs.   And, yes, if the plaintiff has a "frivolous" case, then the plaintiff (ie, the employee) can be ordered to pay the defendant's (employer's) attorney's fees.  See this report of a case in which the EEOC was ordered to pay $4.5 million in attorney's fees for the employer.  It us unusual, at least in the Western District Of Texas for a judge to find a plaintiff's case to be frivolous.  And, there is some unfairness in the whole process, since frequently, the employer's defense is very frivolous.  

But, a plaintiff should always have enough evidence to avoid charges of frivolousness.  Always.  Factors that help show frivolous include poor investigation prior to suit.  The EEOC would be held to a higher burden since they are supposed to conduct an actual investigation of all charges of discrimination long before filing suit.  Everyone knows they usually do not conduct an actual investigation.  Unlike the private plaintiff lawyers, the EEOC actually has the tools, subpoena power, etc. with which to conduct a real investigation.  Other factors indicating "frivolous" include having enough evidence to defeat summary judgment, or at least, make summary (ie, quick) judgment a close call.  if a plaintiff does not have enough evidence to get past the summary judgment hurdle, then they really should not be filing suit. 

This time, the EEOC is found to have filed a very large lawsuit without enough evidence to overcome summary judgment.  Many federal court judges are predisposed to find against employees.  But, still to award attorney's fees at all, much less this large, suggests there may have been issues with the quality of the EEOC's evidence.  

I try to always tell my employee clients that they too could be hit with an award of attorney's fees in federal court.  That is a real risk in every discrimination lawsuit.  And, as mentioned above, in every federal lawsuit, the losing side will almost always be ordered to pay the other side's court costs.  Court costs can amount to $5,000 or more.  Think before you leap. 

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 Many non-lawyers expect lawyers to follow the law.  Not always.  In one recent lawsuit, for example, a major law form was sued by the EEOC for age discrimination.  The employee claims in this lawsuit that his law firm, Kelley Drye, provides in its partnership agreement that if a partner wishes to continue working past age 70, he must give up any equity (ie, partnership) interest in the firm.  The employee also claims his pay was reduced by $25,000 in 2009 after he filed his charge with the EEOC.  If true, this would be a strong lawsuit.  Age distinctions in a partnership agreement are relatively easy to prove.  Taking reprisal after filing a charge is also relatively easy to prove.  Kelley Drye is a one of the largest law firms in the country.  One would expect them to follow the law better than others. 

In a separate lawsuit, a black lawyer at another national law firm, Howrey, a global law firm, encountered racism in the Bruissels office.  Howrey had recruited Ms. Menns from another firm.  They sent her to the Brussels office.  At the Brussels office, she was removed from favorable assignments and even moved to a different floor of the building.  When she complained, she was told by management that she was so impressive that the white employees felt uncomfortable around her.  The Manager also told her that because she was the first black lawyer, the staff was not used to being forced to be in a "subordinate position" to a black person.  

She then contacted firm leaders in washington, D.C.  The diversity committee and the firm CEO met with her in June, 2009.  The young associate, Ms. Menns was fired that day.   Ooops.  Can anyone say retaliation?  A bad day for a for a firm that ranked No. 13 out of the top 200 grossing firms for commitment to diversity.  

Ms. Menns seeks $30 million in damages. 

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 English only rules always bring controversy, even at a bookstore in New Haven, Connecticut, very near Yale university.  The EEOC generally frowns on such rules, but allows them for "business necessity."   In this case, the book store is essentially claiming the customers are uncomfortable with employees speaking Spanish.  Does the comfort of customers count as a business necessity?  Maybe, according to Workplace Prof.  It depends on whether there is evidence of discriminatory motivations.  That means an employer seeking to implement such a policy needs to show something more than mere perception of what makes a customer happy.  

It would also help to show some safety issue.  ....  Safety at a bookstore?  Those paper cuts can be viscious.....

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 Enforcement of civil rights laws fell significantly during the Bush administration, according to a GAO report, as reported in the NY Times.  The non-partisan Government Accountability Office reports, for example, that the DOJ Civil Rights Division had filed 11 cases of sex or race harassment per year during the Clinton years, but only 6 per year during the Bush years.  Political appointees rejected the recommendations of career CRD lawyers to proceed further with cases for no apparent reason, according to the report.  The GAO audit was based on records from 2001-2007.  

The reduction in suits filed is all the more remarkable since EEOC filings have been rising each year for the past 20 years or more.  And, of course, we now know that the Bush administration often hired DOJ lawyers more for their political correctness than for their competence in civil rights. 

The Civil Rights Division is responsible for enforcing the civil rights statutes against state and local governments.  Whereas, the EEOC enforces the employment discrimination statutes against private employers.  Charges against state and local governments are still filed with the EEOC.  When the EEOC investigates a charge against state and local governments and finds evidence of discrimination, the EEOC refers the charge to the CRD for review.  

So, it is very remarkable that that when staff lawyers wanted to investigate a report of voter intimidation by a state government, the supervisor told them they could not contact the state government.  Say what?  That makes no sense.  I cannot imagine investigating harassment by a state government without actually talking to the state government.  That would be like investigating a murder without actually speaking with any of the murder suspects. 

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 Sometimes, management lawyers like to scare potential clients and sometimes, they are simply concerned.  But, either way, they over-state the effect EEOC has.  The EEOC means well, but they simply have too many cases to perform an actual investigation.  Each investigator carries 75-80 cases per investigator.  Their budget was cut way back in the 1980's and has seen little relief since.  One local San Antonio management lawyer actually suggests business owners should be wary of the EEOC.  ("The EEOC Is On The Hunt. Are You The Prey?")  Is he kidding??

He must understand, as we all do who deal with the EEOC, that the EEOC very rarely finds in favor the employee.  Unfortunately, the EEOC is often a paper tiger.  

I was in federal court once when a federal judge chastised a government lawyer for suggesting that since the EEOC did not find in favor of the employee, there was something wrong with the employee's case.  The judge fussed at the lawyer and told him the EEOC does little or nothing in almost every case they get.  The EEOC means well.  They really do want to do right by the employee and the employer.  But, unfortunately, they accomplish very little in 99 out of 100 cases. 

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 The new regulations for the Americans with Disabilities Act have been proposed.  The EEOC promulgates those regs and seeks public comment before making them final.  You can view the new regs at this website.  These regs are based on the ADA Amendments Act which was passed last year.  Among other changes, they list new impairments that will be considered to be a disability.  Many of these new disabilities are impairments that might be in remission or episodic.  They make it clear that working is now a major life activity, which had been in doubt.  And, of course, as required by the amendment, the regs state that an impairment will be looked at in its non-treated form or without mitigation.  See the good folks at Workplace Prof for more discussion.  

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 Eric Holder, the US Attorney General, is pushing the Dept. of Justice back to enforcing higher impact civil rights.  So says the New York Times.  The DOJ will focus more on high impact litigation, instead of the former administration's preference for individual cases.  DOJ can prosecute employment discrimination cases against state or local governments.  They can also prosecute employment discrimination cases against federal contractors.  

What this means is that DOJ's Office of Civil Rights will focus on pattern and practice sort of cases involving many employees, not just one or two.  That makes sense.  DOJ's resources are limited, just as the EEOC's resources are limited.  It makes more sense to focus on cases ainvolving more potential victims of discrimination.  

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 I wish I had a dollar for everytime this has happened here in San Antonio or especially across the country.  A person came to see me who did *not* receive his "right-to-sue letter" from the EEOC.  It was sent four months ago, but he just now found out about it.  He contacted the EEOC to get a status report and learned of his RTS letter.  Across the country, this happens many times, perhaps dozens, each year.  It has been a problem ever since some time in the 1970's when the EEOC stopped sending right-to-sue letters certified.  

Invariably, the Charging Party (the employee filing the complaint) responds to this problem by going to the EEOC and asking them to rescind the first RTS letter and issue a new one.  Most regional offices refuse. They point to their log that says they mailed the letter.  They offer nothing else.  The employee is stuck.

A right-to-sue letter is the street term for the Dismissal and Notice of Rights.  The EEOC sends these out as a conclusion to its supposed investigation.  The Notice notifies the Charging Party that s/he must file their lawsuit within 90 days.  If you miss the 90 days, your rights to file suit are waived forever.  Just a few days ago, I talked about how hard it can be to hire a lawyer for these cases.  It is a heck of a lot harder if your rights have already expired.....     

There may be ways around this.  That is, there are one or two other causes of action one may be able to file for particular types of discrimination.  But, darn, discrimination cases are difficult enough without having statute of limitation (deadline to file suit) issues floating around.  

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Looking for a lawyer is never easy.  In the employment law business, many clients call me or other plaintiff employment lawyers at the last minute or close to the last minute.  Typically, potential plaintiffs do not start calling lawyers until they receive the "right-to-sue" letter from the Equal Employment Opportunity Commission (EEOC).  Most charging parties naively believe the EEOC will conduct a true investigation.  So, naturally, they do not start looking for lawyers until it is clear the EEOC will not resolve their issues.  

Unfortunately, in San Antonio, as in most jurisdictions, there are far more potential plaintiffs than there are lawyers.  It is hard to find a plaintiff employment lawyer.  Some potential plaintiffs get caught up in the referral from one personal injury lawyer to another, all of whom decline the case.  So, by the time the 90 deadline (statute of limitations) is about to expire, they still have not found a lawyer willing to accept their case.  By far, most potential plaintiffs need a lawyer willing to accept the case on contingency.  Not surprisingly, most potential plaintiffs have little money - they have lost their job quickly and unexpectedly.  

It is a system almost designed to frustrate lawsuits.  Indeed, that was the intent when the Civil Rights Act of 1964 was passed.  Many members of Congress hoped then that the EEOC would resolve most disputes.  In actuality, the EEOC resolves very little.  

I tell all potential clients, employment law or otherwise, they should speak to 2-3 lawyers before choosing one.  In the employment law area, I warn them they also need to see lawyers asap.  If I cannot accept their case, I provide three names of lawyers who might be able to help them.  Because the 90 days passes so quickly, I tell them they need to make appointments with all three right away.  otherwise, many potential clients make the mistake of seeing one lawyer before even making an appointment with the other two.  Making one appointment at a time takes too long.

It is a very significant challenge finding lawyers for an employment case, when you are an employee.  Do *not* waste your 90 days.  Heck, many clients do not even start looking until 30 days or so have passed.  They just do not realize how hard it can be to find a good plaintiff employment lawyer.  

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