What is Ford Motor Company Doing About Harassment of Women and African-Americans?

/

When a workplace turns hostile, it is often not just one employee who suffers. Even when only a handful of employees come forward to the Equal Employment Opportunity Commission (EEOC), it is often a sign that relief will take company-wide changes. At Ford harassment of women and African-Americans has been going on for decades. Find out what Ford Motor Company is doing to combat harassment in its Chicago plants. In this blog post I will discuss the recent Ford Motor Company settlement with the EEOC. I will explain when sexual harassment and racial discrimination can result in class action lawsuits. I will also explain how the EEOC’s conciliation process can sometimes be used to avoid public embarrassment, and lengthy litigation.

Title VII Protects Classes of Protected Employees

Title VII of the Civil Rights Act makes it illegal for employers to engage in or allow harassment or discrimination based on race, color, or national origin, as well as sex or gender. Employers are not allowed to make hiring or other employment decisions with these traits in mind. They are also required to take reasonable steps to stop discrimination or harassment from creating a hostile work environment for their employees.

When a Title VII complaint includes larger employers like Ford Motor Company, it often includes harassment against more than a handful of employees. In these cases, the EEOC or private workplace discrimination attorneys often pursue class action lawsuits for the benefit of all employees in the protected class.

EEOC Conciliation Settlement Advantages

Class action lawsuits can become large and complicated, including extensive testimony from affected employees, witnesses, and experts. They are also attractive to journalists, and can turn into bad press for the employer. What that happens, it puts the representative plaintiffs in the uncomfortable position of becoming the public face of a highly publicized lawsuit.

This can make a settlement attractive for everyone involved. EEOC investigations include a request that the parties voluntarily engage in conciliation, an informal mediation process, to resolve complaints. Many larger companies are willing to use conciliation, especially when there is a chance the complaints will lend themselves to a class action lawsuit. In those cases, employees may want to take advantage of the mediation process to resolve their cases more quickly and privately, while still getting the relief they need.

If employees do decide to use the EEOC conciliation process, it is a good idea discuss the matter with an independent employment attorney first. The EEOC often has the big picture in mind — looking for ways to make the workplace less hostile for the largest number of employees. If an individual claimant’s damages or concerns are different or more severe than the average class member, those needs can sometimes be overlooked in the settlement process.

Ford Motor Company’s Conciliation Settlement

In August 2017, Ford Motor Company decided to take advantage of the EEOC’s conciliation settlement to resolve complaints of workplace harassment of women and African-Americans. The charges claimed that personnel at the Chicago Assembly Plant and Chicago Stamping plant had subjected female and African-American employees to sexual and racial harassment. The EEOC’s investigation also revealed evidence that Ford had retaliated against employees who complained about the treatment.

According to announcements by the EEOC and Ford Motor Company, the settlement included:

  • Up to $10.125 million in cash damages
  • Regular training at the Chicago facilities over 5 years
  • Distribution of the company’s anti-harassment and anti-discrimination policies to employees and new hires
  • Reporting to the EEOC on all harassment and related discrimination complaints
  • Workplace monitoring

By entering into the settlement, Ford was able to avoid admitting liability for the harassment allegations.

Neither Ford nor the EEOC commented on how many employees were involved in the original charges. But the financial part of the settlement could apply to any of the company’s 5,500 employees at the two plants who are women or African-American men working at the plant after January 1, 2010. To receive their portion of the settlement, employees will need to establish their eligibility through a process set out in the agreement.

A conciliation settlement can often resolve claims of workplace harassment of women, African-Americans, and other protected employees sooner and more discreetly than extensive litigation. But it isn’t right for every case. If you are facing harassment at work, our experienced workplace harassment attorneys at Eisenberg & Baum, LLP, can help you consider your situation, and your options through the EEOC and in court. Contact us today to schedule a free initial consultation and get your case started.

U.S. Supreme Court to Decide Whether Employment Arbitration Agreements Can Block Class Actions

/

Sometimes problems in the workplace are so widespread that they affect hundreds or even thousands of employees. That’s when lawyers and government enforcement agencies use class action lawsuits to protect employee rights. But if the U.S. Supreme Court decides that employment arbitration agreements apply to employment disputes, it could put the solutions out of reach.

In this blog post, I will review Epic Systems v. Lewis, 16-285; Ernst & Young v. Morris, 16-300; and National Labor Relations Board v. Murphy Oil, 16-307, three lawsuits consolidated for the U.S. Supreme Court’s consideration this term. I will explain how employment arbitration agreements work and how they could affect future of workplace discrimination law.

What Are Employment Arbitration Agreements?

In arbitration, the parties pay one to three individuals, usually with relevant legal or professional experience, to hear the arguments and make binding decisions about how the dispute will be resolved. In commercial litigation, arbitration can be used used to resolve collections issues, product defect problems, and a variety of other possible lawsuits. Employment arbitration agreements come into play in enforcing non-compete agreements, wage disputes, and even claims of sexual harassment and workplace discrimination.

Today, nearly every credit card contract, lease agreements, and other consumer contract includes a mandatory arbitration agreement. This contract language removes disputes from the courts and places them in front of private, professional arbitrators. Arbitration agreements are also part of many employment contracts across the country. From large corporations to small start-ups, many employers have included these provisions in their employee handbooks and other employment contracts in an effort to control the cost of litigation.

What’s Wrong With Employment Arbitration Agreements?

Consumer advocates and others say that the close financial relationship between arbitrators and the companies who use them regularly can sometimes make it harder for individuals to receive a fair outcome. They also say that mandatory arbitration agreements can sometimes keep people from the relief they deserve. The cost of arbitration is often so high that it doesn’t make sense to take many smaller disputes through the process.

In the court system, cases with small remedies are addressed through class actions. The law allows hundreds or thousands of employees facing the same illegal treatment by the same employer to be compensated for small-figure wage disputes or harassment claims in one large class action lawsuit. However, employment arbitration agreements have the ability to interfere with those class action lawsuits. This is because an arbitration clause requires each dispute to be arbitrated individually before (or often instead of) going to court.

The U.S. Supreme Court Weighs Arbitration Against Collective Litigation

Attorneys for employers have successfully argued that employment arbitration agreements prevent employees from joining together in collective litigation including class action lawsuits. Three recent lawsuits, Epic Systems v. Lewis, 16-285; Ernst & Young v. Morris, 16-300; and National Labor Relations Board v. Murphy Oil, 16-307, all of which have been granted certiorari by the U.S. Supreme Court, have addressed this issue. The three cases arose when employees who had entered into employment arbitration agreements tried to file class actions or collective litigation in federal courts:

  • In Murphy Oil, the lawsuit was for unpaid overtime compensation. However, the court dismissed the case because the employees had not taken their disputes to arbitration first. The representative plaintiff, Sheila Hobson, then took the issue to the National Labor Relations Board. The NLRB sued the gas company saying that requiring employees to waive their right to collective litigation was an unfair labor practice. The case was again dismissed for lack of arbitration.
  • In Epic Systems, Jacob Lewis also filed his class action lawsuit for denied overtime pay. But his lawsuit went forward after federal court judge rejected the software company employer’s argument that its arbitration agreement was enforceable.
  • In Ernst & Young, two employees sued for violations of the Fair Labor Standards Act and state laws. There the district court enforced the arbitration provision, but the Circuit court reversed and reinstated the employees’ case.

These three cases, and their different outcomes, showed how important the upcoming U.S. Supreme Court decision will be for employment litigation. The Justices heard oral arguments on October 2, 2017. During the arguments, and in the closed-door deliberations that will occur in the months to come, the Supreme Court Justices will weigh the Federal Arbitration Act’s (FAA) mandate that arbitration agreements “shall be valid, irrevocable, and enforceable” against the National Labor Relations Act (NLRA), which protects employees right to engage in “concerted activities” for “mutual aid or protection”.

The employees’ attorneys say that if the Justices enforce the employment arbitration agreements it will interfere with the NLRA’s purpose to correct the power imbalance between employers and employees. By prohibiting the employees from coming together to pursue collective litigation, the employers may be able to avoid proper compensation all together because the cost of arbitration would outweigh the potential remedy.

Arbitration Agreements and Workplace Discrimination

The Supreme Court cases center around wage issues. However, if the FAA is held to “unequivocally” protect an employer’s right to enforce arbitration agreements, it could also affect employees’ ability to advocate for changes in the workplace. Private employment discrimination attorneys and the Equal Employment Opportunity Commission (EEOC) often bring claims on behalf of classes of employees to enforce Title VII of the Civil Rights Act against sexual harassment and workplace discrimination.

Depending on the outcome of the FAA, these cases could be broken up into individual, single-plaintiff lawsuits. Particularly in sexual harassment cases, the strength of the plaintiffs’ claims is often in their similarities and the patterns within their stories. When arbitrated one by one, this could weaken employees’ abilities to get relief in hostile workplaces.

A great deal hangs on the U.S. Supreme Court’s resolution of employment arbitration agreements and collective litigation. From wage disputes to employment discrimination litigation, employee attorneys use class action lawsuits to great effect. Whether that tool will remain available in the future remains to be seen.

If you are facing fair pay concerns or workplace discrimination, the skilled employment discrimination attorneys at Eisenberg & Baum, LLP, can help. Contact us today to schedule a free initial consultation and get your case started.