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.
"North Carolina has a history of carefully following the employment-at-will doctrine," Sharpe says. "Unfortunately, I think for employees, it makes it very difficult to prove your case. You have to have some really compelling evidence in order to prevail."
That doesn't mean, of course, that frivolous cases don't bedevil employers. Attorneys who represent business owners have their own war stories -- say, for instance, the manager, fired for downloading porn on his office computer, who claimed the dismissal failed to make reasonable accommodations under the Americans With Disabilities Act for his obsessive-compulsive disorder. "My [client] had to spend good money to defend that," says Ken Carlson Jr., a Winston-Salem attorney who represents employers. Carlson, who mediates claims, also teaches law at Wake Forest University.
But it does mean that just as the burden is on the state in criminal court, in employment law the burden is on individuals who often have no legal background. They typically must take action within a short time after the alleged discrimination occurred -- 180 days. And even that 180-day requirement can be tricky.
Last May, the U.S. Supreme Court found an Alabama tire plant supervisor didn't have a valid pay discrimination claim because she hadn't filed an EEOC complaint within 180 days of the time her pay was originally set. If they're not aware until long after that the pay rate is discriminatory, well, tough luck ... even if the disparity continues for years.
The supervisor, Lilly Ledbetter, was a northeast Alabama woman who learned, after nearly two decades on the job, that she was paid less than male colleagues with less seniority. By the end of 1997, Ledbetter, the only woman working as an area manager at Goodyear's Gadsden plant, was paid $3,727 a month, according to court documents. The lowest-paid of her 15 male counterparts received $4,286.
The EEOC, which argued the case on Ledbetter's behalf, said each paycheck was a separate act of discrimination. But the 5-4 court majority ruled against Ledbetter.
"Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter's claim is untimely," Justice Samuel Alito Jr., wrote in an opinion joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. " ... Current effects alone cannot breathe life into prior, unchanged discrimination." Thomas was once head of the EEOC.
Justice Ruth Bader Ginsburg's dissent, joined by Justices Breyer, Souter and Stevens, argued that most workplace salaries are cloaked in secrecy, meaning it's unlikely employees would know within 180 days if their given pay was discriminatory.
"A worker knows immediately if she is denied promotion or transfer, if she is fired or refused employment," Ginsburg wrote. " ... When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext ... The problem of concealed pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise but because male counterparts are given larger raises. Having received a pay increase, the female employee is unlikely to discern at once that she has experienced an adverse employment decision."
Ginsburg urged Congress to take action. Last summer, the House of Representatives passed the Lilly Ledbetter Fair Pay Act. The Senate has yet to vote.
Such court decisions, appearing to favor employers over workers, can have a trickle-down effect on local employment attorneys, who watch the high court and the Fourth Circuit Court of Appeals to see which way the wind blows.
"You have got to be able to satisfy yourself -- and your client -- that you have a chance at prevailing on a motion for summary judgment and then at trial," says Geraldine Sumter, a Charlotte attorney.
Says Sharpe: "Certainly there are cases that come in through the office that you know something wrong has happened in the workplace, but the bigger question is: Is that a case in which we can succeed on the merits?"
Several lawyers -- both those who represent employers and employees -- say the Fourth Circuit Court of Appeals, which handles appeals from North Carolina's federal District Courts, interprets that law more conservatively than other appeals courts. "In general, its rather conservative approach is more favorable to employers than employees," says Stephen Dellinger, a Charlotte attorney who represents businesses against employee claims.
"In the Fourth Circuit," says Sumter, "the plaintiff's burden is high and it seems to get higher every year."
Barnes, of the EEOC, says her agency must consider the Fourth Court's record when deciding to take a case to court. In a case with open legal questions, she doesn't want the court to issue an opinion that would make what the agency considers "bad law." The agency might push a claimant to resolve the case outside the courts.
But such considerations shouldn't make aggrieved workers pessimistic, Barnes says. Most claims are resolved before they make it to trial, much less to an appeals court. Plaintiffs should be more worried about a trial judge's reputation related to civil rights cases.
Some signs indicate a shift on the high court may be afoot, says Dellinger.
In a ruling last month, the Supreme Court ruled that 14 former and current Federal Express employees could be allowed to sue even though the EEOC failed to notify the company of the workers' complaint, as the law requires. The employees had contacted the agency, alleging that some FedEx productivity initiatives were veiled attempts to force out older workers before they could collect retirement benefits. But the court found the plaintiffs shouldn't suffer because of the agency's error. Only two justices, Thomas and Scalia, dissented.
The court in February also found that workers in certain cases corroborate claims through the testimony of other workers' discrimination allegations. Ellen Mendelsohn, then 51, had been let go from her job at Sprint during company-wide cutbacks. To bolster her age discrimination claim, she wanted other employees over age 40 to testify that they'd also been fired because of their age. Though the ruling didn't definitively agree that such testimony was admissible, the ruling by Justice Thomas found that such a request should be analyzed on a case-by-case basis.
Another case that's on the docket this year but isn't yet decided is one that deals with a little-used civil rights law originally intended to safeguard the rights of former slaves: the Civil Rights Act of 1866.
Hendrick Humphries, a former associate manager at a Cracker Barrel restaurant in Bradley, Ill., sued for racial discrimination after a supervisor fired him for allegedly leaving a safe unlocked overnight. Humphries claims he was retaliated against for complaining that a black employee was fired not showing up for a shift while a white worker was not.
The Supreme Court, which has heard arguments but has not yet ruled in the case, is being asked to decide whether the law, which safeguards the right to "make and enforce contracts" without racial bias, also protects against retaliation. A lower court ruled it does not; an appeals court disagreed.
Notably, the generally conservative U.S. Justice Department has weighed in on Humphries' behalf (www.usdoj.gov/osg/briefs/2007/3mer/1ami/2006-1431.mer.ami.html).
Dellinger says recent cases may hint at a shifting legal climate that favors employees, "... especially if there is a change in parties following the next election."
Carter is currently studying medical administration. He's had hip replacement surgery, so he hopes to find an office job that doesn't require standing for hours. He says the process of getting his discrimination claim resolved -- the forms, the paperwork, the wait -- was daunting. "If it's for 'We the People,' it's not written for 'We the People.'"
But he offers this advice for anyone thinking about pursuing a discrimination claim: "Don't be scared. People told me that you have no rights in North Carolina. It's not true."
Inside the EEOC
Some aggrieved workers may find the process of filing a discrimination claim daunting, but Lynette A. Barnes, the regional attorney for the Equal Employment Opportunity Commission's Charlotte district, says the biggest challenge isn't the system itself.
"I think it's just a lot of people don't know who we are," says Barnes. "Once people learn about us and come into our office, the system is extremely easy to navigate.
"If we believe there's absolutely no way to prove discrimination in your case, we're going to tell you that and give you the option of not filing a charge or still filing a charge," she says. "If we take the charge from someone in which it seems fairly obvious that there was no discrimination, we will process that charge immediately out of our system. We just took it so you could move further in federal court if you want to."
If the agency suspects discrimination may have occurred, it will begin an investigation, notifying the employer and seeking its side. That could put the matter to rest, or the agency could investigate further. The agency ultimately issues what's called a letter of determination, which will state whether the agency believes evidence supports the claim. "We're never really saying it did occur. We're saying that, based on the evidence that we have, it appears that there was [or was not] a violation of the law."
If evidence supports the claim, the agency will try to negotiate with the worker and employer. If it's not then resolved, the claim usually is turned over to agency attorneys, who decide whether to proceed to court.
That decision, Barnes says, is subject to several factors. How egregious is the discrimination? How much are the damages? If a worker was punished disparately and received one-day's suspension, the damages are only one-day's pay -- not worth the use of public funds needed to go to court.
"So sometimes, we don't litigate cases even though we might believe there was a violation," she says. "We are weighing the value to the public in every case that we take to litigation."
If a worker was fired while a similarly situated worker was merely reprimanded for discriminatory reasons, that might make the agency more likely to litigate.
Also, if the agency investigates and finds evidence of discrimination against other employees, that makes them more likely to litigate. "The public interest would be served by the EEOC being involved," Barnes says. "Because you've got a number of victims who have not filed charges and wouldn't be able to litigate on their own."
Location also makes a difference. The agency wants a public profile, so if a case arises in a city in which the EEOC hasn't litigated recently, that makes it a more likely choice for action. "If I have a case that can be filed in Charlotte, and I have a case that can be filed in Roanoke, Va., and I haven't filed [there] in the past three years, more than likely I'm going to file in Roanoke."
Another consideration is, can the agency make law? Will the case help the agency settle a question of law -- or interpretation -- that federal courts have disagreed with?
Barnes says she also strives not to act in ways inconsistent with what litigators in other EEOC districts are doing.
A change in agency leadership -- the presidential appointees in charge -- may result in institutional changes, such as the push of certain programs.
"With respect to things like litigation -- you know, are we going to be zealous in our litigation? Are we not going to litigate as many cases? Those things don't really change."
Most EEOC clients are one-time customers, but not all. "We have some charging parties who file so many charges ... every job, every person, they file 20 to 25 charges."
Major federal laws prohibiting job discrimination
• Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin;
• The Equal Pay Act of 1963, which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
• The Age Discrimination in Employment Act of 1967, which protects individuals who are 40 years of age or older;
• Title I and Title V of the Americans with Disabilities Act of 1990, which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
• Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and
• The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
Source: Equal Opportunity Employment Commission
