by Denise A. Romano, MA, EdM
Any discussion of Social Security Disability, unemployment, Medicare costs, or poverty needs to acknowledge that most employee complaints are mishandled, our EEO and ADA laws are failures because they have no teeth, and the burden of enforcement is on wronged employees – most of whom cannot afford to sue — which is their only recourse.
There is an epidemic of violations of EEO, public safety, fraud, and corruption laws that is directly related to labor law violations in government entities and US corporations. Despite this epidemic — Ethics Commissions, AGs, and IGs are unresponsive to labor violation complaints in workplaces and government, even when proof is submitted, tax dollars are misused, and there are rampant ethics, safety, and other compliance violations.
The EEOC, OSHA, and State Divisions of Human Rights are underfunded and understaffed, thus their responses to these complaints are almost always delayed and insufficient. Many complainants are retaliated against and/or fired before they’re even assigned a case number or investigator.
Given that most government employees are required to report legal and ethical noncompliance, mandatory imparital investigations should be(but are not) implemented without exception and accompanied by absolute prevention of unlawful retaliation against complaining employees. There should be (but isn’t) a freeze on any termination of any complaining employee while a sound, impartial, unbiased and thorough investigation is completed.
Even after the completion of such an investigation, retaliation against complainants should be (but isn’t) prevented. Violations of EEO, OSHA, public safety, ADA, retaliation protections, whistleblower protections, union protections and fraud/corruption prevention laws should be (but are not) classified as serious crimes that result in prosecution.
There is extremely insufficient protection for employees who use appropriate channels to report noncompliance in private, government, and non-profit workplaces. This lack of protection also applies to HR professionals — who often learn that those with authority over them may direct them to violate laws on a regular basis.
When HR professionals make these same complaints about non-compliance (even while armed with a systemic knowledge of rampant violations), they are often in the same boat as any other employee. They are met with ineffective help from EEOC, state divisions of human rights, AGs, IGs, and Ethics Commissions — and often find themselves unlawfully retaliated against and fired without sufficient recourse.
When the HR employee refuses to go along with ignoring labor and other laws — they can quietly look for another job and then quit and say nothing, quit and complain (and often get nowhere or be retaliated against for having done so), or try to influence their leadership.
It is a gamble as to whether even the most skilled HR employee can persuade leadership, managers, and their workplace General Counsel to actually comply with labor and other laws. If the leadership of a workplace is determined to continue to allow violations of labor and other laws to protect others who are violators or to continue their very own non-compliant behavior, the HR employee will get nowhere and will probably experience unlawful retaliation and/or be fired.
Currently, legal compliance with US labor laws is essentially optional for corporate and government workplaces because most of these laws have no teeth, and the process of resolution almost always results in confidential settlement negotiations, workplaces admitting no wrongdoing, complainants being fired from their jobs, violators keeping their jobs, and no official investigations (or workplace changes) whatsoever.
Only employees who can afford 5 or 6-figure lengthy legal battles have a chance of recourse — and employers know this (whether they are government, private, or non-profit). Most workplaces can outspend the average employee when it comes to legal fees, and most employers know this.
Most lawyers will not take cases on contingency, even if complaining employees can prove employer noncompliance with labor and other laws. When there is rare justice, it comes months — or more likely — years later — often after unlawful termination and great damage to health, families, and finances.
Most internal legitimate employee complaints are dismissed by noncompliant employers who unlawfully retaliate against these employees, terminate their employment and health coverage, and sometimes pay them a small sum for which they are desperate and on which they are taxed.
This money almost always comes with a gag order, the dismissal of the complaint with government authorities so there is never an official or public investigation, and the continued employment of those who perpetrate serial noncompliance and other violations of law, which remain unremediated.
Many General Counsel attorneys falsely believe their duty is to protect the corporation by any means instead of ensuring legal compliance and remediating noncompliance according to non-retaliation requirements in EEO and ADA laws.
GCs who knowingly cover up unlawful practices in corporations and government entities should be addressed by the criminal justice system and their state BAR associations given the enormous financial fraud perpetrated upon taxpayers and shareholders when significant funds are used to unlawfully retaliate against employees who exercise their rights to complain about noncompliance. When this occurs in government entities, it can amount to fraudulent misuse of taxpayer money.
These problems are epidemic and do require deterrence in the form of large fines, improved processes and actual assistance for complaining employees, and guaranteed sound impartial investigations into unlawful practices — even when there are settlements with complaining employees. Gag orders and “admitting to no wrongdoing” need to be made unlawful, regardless of settlements with employees.
Every one of us knows someone who has experienced a job from hell, a manager from hell, or a company from hell. Nearly every one of us has also experienced one of these personally.
What makes workplaces hellish? Harassment, discrimination, retaliation for making legitimate complaints, safety violations, retaliation for complaining about safety issues, a failure and/or refusal to conduct sound / unbiased investigations of employee complaints, cronyism, nepotism, inconsistent applicaiton of policies, union-busting, ethics violations, fraud, and many other unlawful things that should not happen in U.S. workplaces, but which do happen in epidemic proportions.
We need our laws to have teeth and to actually be enforced.
There are ways to complain about labor law violations, but there are no guarantees; you are very likely be unlawfully retaliated against and you may lose your job.
This is extremely frightening for most employees; it does result in employees not complaining and in there being no consequences for those who violate labor laws. The stress and fear resulting from employees experiencing violations of labor laws can extend to and adversely impact health, spouses, children, and other family members.
When managers and companies use intimidation and retaliation against employees to keep them too afraid to complain, it is technically considered unlawful retaliaion, but that is meaningless since our current system of recourse is ineffective and financially inaccessible to most employees.
Consider the many whistleblowers who tried to report wrongdoing using appropriate channels: Karen Silkwood, Frank Serpico, Jeff Wigand (the tobacco industry whistleblower), and many more. Most have had their lives ruined; only a few were better off after having blown the whistle.
For every headline about someone who has been awarded millions of dollars for violations of EEO laws, there are thousands of legitimate complaints that are never reported or that go nowhere.
This is not because those complaints are without merit, but because employees are afraid, most workplaces do not handle complaints properly, complainants are fired and/or miss deadlines, or they can’t afford lawyers. For most employee complaints that are reported and “handled” in workplaces, there are gag orders and small settlements. Companies (including government employers at any level) and executives are allowed to admit no wrongdoing.
The epidemic problem of the ADA & EEO being ignored results in more people living on SSDI (Social Security Disability Insurance), higher unemployment rates, higher raters of poverty, and more hostile work environments.
ADA non-compliance presents even more complex problems for employees with disabilities: when disabled people are hired and accommodated, they must fear new managers and new workplace leadership. Just because the person who hired a person with a disability is willing to accommodate those disabilities, does not mean the next boss will or that the same boss will continue to do so under new leadership. The stress of having a new manager or leadership who are ignorant about compliance and/or against disabled employees being accommodated — and — the stress of experiencing harassment, discrimination and hostile work environment can exacerbate many disabilities.
Many workplace leaders (including General Counsel who should know better) are ignorant about and/or hostile toward their ADA and EEO compliance responsibilities. When their HR executives try to educate them, they can become even more hostile to EEO and ADA compliance issues. I’ve had one executive say to me, “I don’t care if we get sued”. I’ve had a General Counsel insist that “We don’t have to comply with the ADA”.
I’ve had more than a few HR positions in which I had various disability accommodations in order to do my job. In one of these, leadership changed and did not want to accommodate me; this resulted in influencing other employees’ attitudes towards my disabilities.
This did result in harassment, discrimination, a hostile work environment, and unlawful retaliation when I used appropriate channels to complain. I am not alone in having this experience.
If our current system worked:
- Every workplace in the US would have near-total compliance with EEO, ADA, and other employment laws.
- All workplace leaders and General Counsel would want to comply with these laws, so they’d make sure they understood them by attending credible trainings.
- Workplace leaders and General Counsel would also make sure that all managers and employees received annual training to be sure they understood our employement laws.
- If HR personnel warned of possible non-compliance, it would be taken seriously and immediately remediated.
- If all of that failed, and employees made internal complaints, there would be impartial investigations, immediate remediation, no retaliation, and additional training as needed.
- Employees who were unable to stop harassing, discriminating, and retaliating — no matter what their talents, skills and rank — would be warned and terminated as appropriate, and employees who had legitimate complaints would remain employed and perhaps even rewarded for having helped the workplace be more in compliance.
Even though I was a Human Resources executive, I experienced regular harassment and discrimination because of my disabilities. Because I could not afford to sue this employer; I had no recourse. This employer very stubbornly did not want to continue to accommodate me and did not want to comply with its obligations under ADA and EEO laws. My complaints to the state AG, state IG, and EEOC did not help me. I either got no response, late responses, or unhelpful responses.
For people w/ temporary or permanent disabilities, Job Accommodation Network (JAN) is the best resource to help doctors and employers understand limitations and what reasonable accommodation(s) may be needed. However, despite the brilliant solutions JAN offers at no cost, most employers will not cooperate with requested ADA accommodations.
Employees must be educated about how to write effective memos and create the necessary paper trail that is needed to show they’ve tried to diplomatically, professionally, and clearly address non-compliance with labor laws.
EEO and ADA laws need to be revised so there is real recourse. There need to be significant fines of both executives and workplaces for non-compliance with EEO, ADA, and other laws. OSHA sometimes fines employers, but these fines are often considered the cost of doing business and are not high or frequent enough. It would also help if criminal charges could be made against executives who refuse to comply with these laws.
When any elected official or candidate discusses unemployment numbers, poverty statistics, taxpayer or shareholder fraud, people collecting social security disability, and/or whistleblowers there needs to be an acknowledgement that most employee complaints are mishandled in the US and that our EEO and ADA laws have no teeth, and are thus, failures.
SOLUTIONS: The EEOC and State Human Rights Divisions should be staffed with labor lawyers sworn to uphold EEO and ADA laws who can’t be bought and who make determinations on every complaint so that these cases never go to juries. There needs to be total transparency to prevent corruption.
These decisions should be made by experts, not juries. The expense of investigation should be borne by the state, which should be reimbused by corporations and individuals who violate these laws, not by employees whose rights are violated and who cannot afford to sue.
Justice under EEO and ADA laws shouldn’t be a gamble or depend on who can afford an attorney.
EEO trainers should be required to use material that is approved by the EEOC and/or State Divisions of Human Rights. Why? Because once as an HR executive, I had to sit through a training in which a lawyer actually said, “There is no such thing as sexual harassment”. This was right after a high-ranking executive had spent months sexually harassing at least two employees.
Many HR executives have had experiences like this. Many of us have been silenced and threatened with job loss by those to whom we report as we advise them on EEO and ADA issues.
I’d like to see general counsel attorneys in workplaces sworn to comply with EEO, ADA, OSHA and other laws under penalty of being disbarred. I’d like to see stiff penalties that are more than the cost of doing business levied upon employers and executives who violate EEO and ADA laws and who protect harassers and retaliators, and who themselves harass and retaliate.
I’d like to see the EEOC and/or State Human Rights Divisons responsible for approving or denying all ADA accommodation requests. JAN should be integral to this process so all parties are aware of all possible accommodations.
Grants and tax breaks could perhaps be available for each disabled person accommodated. Thorough, impartial investigations are needed with reasonably rapid responses.
This will save SSDI (Social Security Disability Insurance) and Medicare money, as disabled persons who can still work will do so with reasonable accommodations. Persons with disabilities are often unemployed at rates of 18% higher than the general population. This is not because all disabled persons cannot work; it is because employers do not comply with the ADA.
Those not accommodated under the ADA for their temporary or permanent disabilities should get the very same LTD policies, as most high-paid executives have. All employees in the US should have same level of STD and LTD benefits. This will also save SSDI money when people truly are unable to work. It makes no sense that those who are paid the least and perform the most dangerous work generally do not have any STD or LTD policies at work.
This will save taxpayer money in that public assistance, housing subsidies, food stamps, and SSDI programs will be less utilized.
Executives and companies who have a record of violating the ADA should be fined — unless they were directed to violate these laws by their bosses (which happens to almost every Human Resoruces employee). There need to be hotlines for HR other personnel to call to report if they are being forced to violate these laws. Whistleblowers need solid protection. As of now, this protection does not exist.
Denise A Romano is the author of The HR Toolkit: An Indispensable Resource for Being a Credible Activist, (McGraw Hill), which provides sample memos for employees, HR personnel, and managers to use in stressful workplace situations. All of the memos in The HR Toolkit: An Indispensable Resource for Being a Credible Activist can be found for free on this blog. Denise A. Romano has an MA in Organizational Psychology and an EdM in Counseling Psychology both from Columbia University.
Copyright Denise A. Romano – All Rights Reserved 2008