Sunday, April 5, 2009

How can I retaliate? Let me count the ways!

As I indicated in my previous post, I've heard personal stories about many retaliatory actions against employees who dared to complain about discrimination. Most of them were less severe than "ultimate adverse employment actions," but nevertheless, extremely effective! The employer/supervisor writes negative evaluations, initiates surveillance on an employee, transfers employee to an undesirable job site, works with the union behind the employee's back, installs time clocks, threatens to counter sue, refuses leave requests, refuses to follow contractual grievance procedures, assigns permanent night-shift, ignores negotiated seniority rights, reassigns work space, cuts budget allocations, harasses or embarrasses employee in front of peers, refuses to return calls or emails in a timely manner, skips customary annual bonus, writes or gives negative recommendations to potential employers, withholds support of initiatives - the list is endless. It's limited only by the employer's imagination. Of course, any of the actions listed above may or may not be retaliatory in the legal, actionable sense of the term. It depends on the particular circumstances and how other comparable employees were treated. But the point is - beware! Retaliatory actions are most often subtle, covert, and insidious - which also makes them very difficult to prove - and very effective!

Chilling, isn't it?

Retaliation's Chilling Effects

Since publishing Plaintiff Blues: Job Discrimination and the Chilling Effects of Retaliation in 2007 and posting this blog, I've received numerous phone calls and emails from folks about discrimination and retaliation.The majority of these communications involve personal stories of discrimination and retaliation. These stories contained disturbing, common patterns.

"I didn't file a complaint because I'm afraid of retaliation," was the most frequent comment I received. This fear is the single most chilling effect of retaliation. It also answers the most common question asked about discrimination/retaliation in the workplace, "How can they get away with it?"

The EEOC manual on Retaliation reads, "Effective enforcement of the anti-discrimination statutes depends in large part on the initiative of individuals to oppose employment practices that they reasonably believe to be unlawful and to file charges of discrimination. If retaliation for such activities were permitted to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination."

So our state and federal governments have passed laws against job discrimination. But enforcement of these laws requires individuals to step up and file charges against their employer. To do so, employees risk retaliation. Any doubt why retaliation reigns as the number one defensive strategy of employers accused of discrimination?

Although protections against retaliation are included in most of the anti-discrimination statues and have been strengthened by recent Supreme Court decisions, for years most lower courts used very restrictive definitions of retaliation. These definitions or standards insisted that the challenged, retaliatory employer action qualify as an ultimate, adverse employment action such as hiring, firing, promoting, and compensating.

In the 2006 Burlington Northern v White decision, the Supreme Court broadened the protections to include less severe retaliatory actions. In this case the Court said that retaliation included employment actions that would have, "dissuaded a reasonable worker from making or supporting a charge of discrimination."

Yes, this is not a very precise standard or definition of what constitutes retaliation. However, any challenged act of retaliation depends on the particular circumstances. Context matters. For example, a simple schedule change may not matter to most workers, but may make a huge difference to a mother with school age children. A supervisor's excluding an employee from lunch may be just a trivial, nonactionable, and petty slight. But if that were a weekly training lunch that contributes to the employee's professional advancement, it may be an action that would deter a reasonable employee from complaining or supporting a complaint of discrimination.

Another pattern emerged from the contacts I've had. Several said they had filed the initial complaint but dropped it because they found themselves standing alone. Their co-workers were unwilling to support them or testify on their behalf because they were also afraid of retaliation. Another said, "I could have handled it myself, but I didn't want to put others - peers, co-workers, friends - in the bull's eye." Many said they knew what to expect if they complained about discrimination or retaliation because they had seen the treatment others got and wanted no part of it.

It's important to note that the same protections from retaliation that apply to the original complaining party also apply to anyone to participates in the investigation. However, those participants would have to stand up one additional time to initiate their own complaint if they experienced retaliatory actions.

Chilling, isn't it?

Friday, February 20, 2009

NCLB leaves kids, schools, and democracy BEHIND

How does NCLB leave kids behind? Let's be honest. We've always known intuitively that the goals of NCLB, while admirable, were impossible. Public schools simply cannot overcome the inequalities (from nature and/or nurture) that kids bring with them to school everyday, no matter how hard they teach or test. We've always known that every kid cannot become an Einstein and all the kids cannot go to school in Lake Woebegon (where all the kids are above average!) But the NCLB tests and standards mandates mean that every kid with a nature/nurture handicap will be labeled a failure (behind) every year. Wonder how that regular slap-in-the-face affects the drop-out rate?

Why does NCLB leave schools behind?
Because that was the hidden agenda all along! Don't take my work for it, read what a former Bush official said. Claudia Wallis quoted Assistant Secretary of Elementary and Secondary Education Susan Neuman in the June 8, 2008, Time magazine. Folks in the Bush Department of Education, "saw NCLB as a Trojan horse for the choice agenda - a way to expose the failure of public education and 'blow it up a bit.' There were a number of people pushing hard for market forces and privatization."

In a February 2009 survey of the principals of Minnesota's 1,920 public schools, 97% said that NCLB requirements were unattainable by 2014. FYI, the NCLB requirement is the by 2014, 100% of students must pass the test. That 97% of principals surveyed is not your average or typical NCLB opponent. That's a resounding rejection by the hands on, front-line professionals charged with implementing the unrealistic and unfunded mandates of NCLB. These principals are charged with directing more and more increasingly limited resources to the test, knowing all along that some students will never be able to pass the test and sooner or later, their school will also be labeled a failure.

How does NCLB leave democracy behind?
A democracy depends on educated citizens and educated citizens depend on public schools (all citizens with equal access to a free and equitable public education). NCLB is the "Trojan horse" sent in to deliberately undermine confidence in our public schools and open the door to further deregulation and privatization of schools. That scenario puts our democracy at risk!

Thursday, February 19, 2009

Fair Discrimination Timelines - Hurrah for Lilly Ledbetter!

Only when she prepared to retire in 1998, after 19 years as a supervisor for Goodyear Tire Company, did Lilly Ledbetter learn she had been paid much less than her male counterparts all those years. Even though a lower court found Goodyear guilty of pay discrimination, the Supreme Court threw out that decision by a 5 to 4 vote, ruling that she should have filed her suit within 180 days of the first offense - 19 years before she discovered what was going on. She couldn't know what she didn't know before she knew it!

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law. The law overturns the Supreme Court's illogical ruling and provides for the 180 day timeline to begin with the last offense, not the first. It's 11 years since Ledbetter retired and challenged the pay discrimination - and she won't receive a penny of backpay!

However, one more person stood up and one more legal loophole is plugged in the ongoing struggle for equal rights for all. Plaintiff Blues, published in 2007, is my story of 17 years of similar struggles with job discrimination and retaliation in NE Minnesota. In April 1991, a local newspaper reported that a man I had lost a Superintendent of Schools position to had gotten the job with mail-order PH. D.'s and forged letters of recommendation. At that time, the EEOC said I would have had to file the complaint within 180 days of the hiring decision in 1989. It was 18 months later that I first learned about his bogus credentials. You can't know what you don't know until you know it!

That's not logical and it's not fair. But thanks to Lilly - just one person, unwilling to accept discrimination - we have all moved one step closer to equal opportunity. Yes, it took an election that resulted in stronger majorities in the Congress and a President anxious to sign, not veto. But Lilly had to take the first step.

Civil rights is more than 'one person can make a difference.' One person must make the difference, because that's the only way the system works. Each person that challenges discrimination or retaliation has the potential to block one more avenue of oppression for everyone.

Saturday, January 17, 2009

Gay Rights? Gay Marriage? It's Time!

I am a 64-year old wife of 42 years (to the same great guy), a mother of two and a grandmother. I served in public education for 34 years, as high school teacher, principal and superintendent. I have never understood the depth of bitterness and hatred directed at folks who are gay. Over the years, my husband and I have had gay friends, worked with gay peers (including other teachers), and taught gay students. I never experienced or heard of any "threat" to anyone from a gay person. No unwanted "come-ons," assaults, or sexual harasment. Too bad I can't say the same for my fellow straight folks!

So what's the big deal? Where does the hatred come from? How does someone else's sexual orientation threaten me, my family, or my way of life? How does a gay couple getting married threaten or diminish my marriage? Why not make the legal process and protections of civil union available to everyone and leave the religious sacrament of marriage up to individual denominations - under the First Amendment's freedom of religion?

Have we forgotten America's Declaration, "We hold these truths to be self-evident, that all men are created equal?" How about the 14th Amendment to the Constitution, "...nor shall any state deprive any person of life, liberty, or prosperity, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws?"

Obviously, it's the "tryanny of the majority" again, the same tyranny that enforced slavery, denied women the right to vote, etc. I think back to a poster in my high school office, "What's popular is not always right; what's right if not always popular." Thankfully, courageous leaders and decades of protest have out-lawed most American "tyrannies of the majority." It's way past time to outlaw this current "tyranny of the majority" against gays!

Wednesday, January 14, 2009

School Choice - Charters, Competition & Deregulation?

Do we really want any further school initiatives that subject public education, our schools, our students, and ultimately the foundation of our democracy to the same market forces that produced our current economic crisis? What form will high risk speculation, mysterious financial instruments, derivatives, and credit swaps take in a deregulated public education sector? Or Ponzi schemes for that matter? Can there be any doubt that opening the huge K-12 education institution - and its tempting coffers - to the private sector will lead to the same kinds of abuses that got us into the mess we're in? If we study the history of deregulations gone bad - remember the S & L crisis, Enron, Worldcom, Merrill - perhaps we can keep the "greed is good" contagion from our children's education.