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Tipping the scales of justice

Proving bias on the job isn't easy

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Today, 49-year-old Jurgen Carter is back in school, studying to get a job in medical office administration. But a little less than two years ago, he was an unemployed materials clerk, dead certain he'd been fired for all the wrong reasons.

Carter, who experienced a work-related accident that he says left him unable to stand for long stretches, decided to do something about it. He visited a half-dozen attorneys, submitted reams of paperwork and listened dejectedly to naysayers -- friends, family and lawyers -- who told him his quest was a sure-fire loser:

• "The law's not on your side."

• "North Carolina is a right-to-work state."

• "What happened to you isn't illegal."

Still, Carter wasn't deterred. He consulted the agency charged with enforcing federal laws against employment discrimination -- the Equal Employment Opportunity Commission -- which didn't find evidence he'd been treated illegally because of a disability. Then he found an attorney who took his case. And Carter ultimately settled with his employer.

A confidentiality agreement prevents him and his employer from disclosing the terms of the settlement or discussing many aspects of the case. But it doesn't prevent him from stating that his journey from fired worker to settled plaintiff -- the same path most workers must navigate to remedy discrimination -- wasn't an easy one. "If you haven't had much schooling," he says, "it's hard to do."

In the year preceding Sept. 30, 2007, tens of thousands of people filed claims with the EEOC.

The majority of claims -- nearly 31,000 -- alleged racial discrimination, while gender-based discrimination followed second. The remainder of bias charges included those based on disability, age and national origin. Of those, the EEOC resolved 364 lawsuits, resulting in awards of nearly $55 million. Federal court records indicate the agency currently has at least 11 cases pending in the U.S. District Court for the Western District of N.C. Others were settled out of court; still more were dropped with no evidence of discrimination found -- leaving plaintiffs to seek remedy in the courts by representing themselves or through private attorneys.

Those cases likely don't represent the true extent of discrimination at work. They may well include only a small portion of people who have been illegally discriminated against at work. More likely, still, they include an even smaller portion of people who suspect they may have been the victims of discrimination. Employment lawyers and court observers say that quantifying discrimination is nearly impossible.

The EEOC, which mediates between employer and employee in discrimination claims, receives complaints from workers, who in most instances must file with the agency before filing a lawsuit. Lynette A. Barnes, regional attorney for the agency's Charlotte district, believes discrimination is more common than people suspect or report.

"[When] we do an investigation, very often we find multiple other victims who didn't come forward," says Barnes, whose oversees EEOC litigation in North Carolina as well as most of Virginia and South Carolina. "So I think it is a common occurrence, but I could not in any way quantify it."

That is particularly true, she says, in cases involving racial or sex discrimination. "We rarely have race or sex harassment cases in which the charging party is the only victim," Barnes says. "In my 13 years here, I've seen lots of harassment cases. And I've probably seen only maybe 5 percent of the time where there's no other victim."

Often, Barnes says, people are unaware they've been discriminated against. She once handled a case in which a woman claimed she wasn't hired for a telemarketing job because she was a woman. The telemarketing firm raised money for firefighters associations and only hired men. The woman had applied for a job there, and an employee she knew told her the firm never hired women. The EEOC found 94 other women who hadn't been hired. "Because they didn't have the inside track ... they had no idea that they had been denied hire because of their gender," Barnes says.

Consider this: If you've ever been discriminated against, or known someone who has, what are the chances either of you have talked to the EEOC, much less seen the inside of a courtroom? When the rent's due, the kids need to be fed or the electricity bill must be paid, expediency is often the only visible solution: Get another job, get the bills paid, and get over it. For the layperson, navigating the intricacies of employment law may seem daunting.

"It is typically a David-versus-Goliath battle, every single time," says Jenny Sharpe, a prominent Charlotte attorney. Sharpe represented Patrick Martin in one of the most recent high-profile local discrimination cases. Martin was a Mecklenburg County Department Youth and Family Services director who the county claimed was fired because he lied about conversations he had with the attorney of a woman who'd sued another employee for harassment; Martin said his dismissal stemmed from being a whistleblower. An appeals court sided with Martin.

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