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Is the MEOD’s process fair to employers?

Former private sector and current nonprofit executive calls for process improvements in city’s process for hearing job discrimination complaints.

(page 2 of 2)

The role of MEOD’s initial investigators often is to get some of the information, including records, from the employer that might not be available to the employee. “For example, if somebody says, ‘I was terminated for being tardy, and I think that I’m being treated more harshly with regard to employment because I’m a woman or because of my race,’ what we need to know is how other employees have been treated — whether or not other employees have been tardy and treated the same way, with the same degree of harshness,” Fox explains. “That is information that is in possession of the employer.”

Regarding an independent, third party review for probable cause, Fox believes it would be difficult and expensive. Once you involve third parties, you need oversight and you have to train them on the standards for probable cause. “You have to train them within the system, and if you start out with the premise that you don’t want to do things that create a further burden on the system, that would seem to be counterproductive,” he states.

What’s more, if defendants were able to appeal probable cause, “that could be used to bring the system to a halt,” he adds. Defendants appealing probable cause may sound reasonable on its face, but you have to look at why the system was set up the way it is.

“If employers were able to appeal probable cause determinations, I would always advise an employer, regardless of how they felt, to appeal that because it would be in their interests most often to increase the time and financial pressure on an employee,” Fox explained. “It would make the employee’s litigation harder regardless of the merit of that litigation.”

Byron Bishop added the city is neutral and doesn’t take sides. It is not an advocate for the complainant, and it’s not an advocate for the respondent. “We don’t see the real value in that,” he states. “To be honest, a lot of times the attorneys have been trying to control and take over our process, so a lot of what I do is try to make sure that does not happen. A lot of them don’t understand our process and how things are done, and a lot of times I have to intervene and let them know this is the city’s process, it is the Equal Opportunity Commission’s process, and it’s governed by the ordinance. We follow those guidelines and stay in that lane.”

Justice delayed

Amato was also critical of the length of time it took to resolve each case. The first was filed in 2011 and the third was resolved earlier this year, a six-year span that he claims calls out for the following reform: Following a formal hearing before the MEOD, a ruling should be made within 30 to 45 days. If it’s not, the case is dismissed and the complaint is thrown out.

Amato cited his experience in the 1980s, when he was appointed to head up the old MEOC by then Mayor Joel Skornicka. Some cases were taking two or three years to resolve and Amato and others were brought in to streamline the process to the point where a final determination was typically made within one calendar year. As he recalls, about 50% of the cases that were filed were eventually dismissed. “As president, I was engaged in the process, and we cleaned up the process,” he states. “We did continuous process improvement we thought we could get done, and we had checks and balances. A member of the commission, if it was appealed, had to read the whole file from top to bottom and serve as the expert on that case. They don’t even do that anymore.”

“There are no checks or
balances in the ordinance,
and there is an inherent bias
toward the complainant.”
— Nino Amato,
president and CEO,
Coalition of Wisconsin
Aging Groups

The problem, he continues, is the old process was never formalized as part of the ordinance, and when staff members left or retired, their institutional knowledge left with them. Now, he argues, a long, laborious process incentivizes employers to settle even if they think the facts exonerate them.

In Fox’s view, a time limit on the post-hearing ruling is a rather bizarre suggestion. No other type of legal claim has that kind of a time limit, or such consequences to a faultless litigant, imposed on them, and so that would neither be feasible nor fair, he reasoned.

“The litigant cannot control how quickly a governmental body makes a decision, and so to throw the complaint out if the decision isn’t made within particular a time frame that short, or within any time frame, is something pretty much unknown to the law and would offend any notion of due process that I’m familiar with.”

Bishop thinks Amato’s recommendation is a reasonable request, but it’s missing one step. Once the hearing is completed, “we have to allow time for both sides, the complainant and the respondent, to submit briefs to the hearing examiner,” he notes. “So the judge has to have time to review their legal briefs of the hearing, of the summation of the case. Then the judge has to look at those briefs and then render a decision based on those briefs. We usually allow 30 to 45 days for those briefs to be submitted and another 30 to 45 days for that decision to be rendered.”

In yet another reform, Amato says if a defendant can demonstrate a plaintiff to be dishonest in the filing of a complaint, that the filing was not done in good faith according to the whistle-blower law, the defendant should have some type of retribution or payment for attorney fees over a 10-year period. Amato says that one plaintiff had filed a false whistle-blower report claiming fraudulent billing on his part — he was later exonerated in a state Department of Health Services review — but CWAG was unable to recover damages for the time and money spent on its legal defense. “Somehow, they [plaintiffs] have to understand they are at risk,” Amato says.

To Fox, this is another strange recommendation, one with unintended consequences. He notes that these claims are proven through circumstantial evidence; it’s rare for a person to have direct evidence of discrimination. “It is understood by the bodies that are charged with adjudicating these claims that the claims will likely be proven by circumstantial evidence, if proven at all,” Fox says. “So therefore, one person’s point of view may look to the other person as deceptive or a lie. Once again, if an employer has this tool to slap the plaintiff by saying, ‘If we litigate, we will go after you and say you lied,’ regardless of whether the person was actually lying, that’s a rather big stick to hand to one side.”

Nature of Madison

Some employers don’t understand why the city needs a civil rights department when the state and the federal governments already have such agencies. It’s uncommon for a municipal body, even one of the nation’s largest cities, to have a civil rights department, but what is common is that most cities have an affirmative action officer or an equal opportunities compliance officer; if someone submits a complaint, it often goes to the state agency.

Norman Davis notes that cities have the discretion to organize how they see fit within the confines of state or federal law, and Madison’s decision to have a legal forum to hear charges of employment discrimination and, more recently, a civil rights department, is simply the nature of a progressive city. “The city of Madison does have a very progressive history,” he says, “and our leaders in particular, when looking at cities at the national level, are concerned if Madison if not keeping pace with progress in the rest of the country.”

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