A modest suggestion for the MEOC

Depending on your perspective, the Madison Equal Opportunities Commission is either a tormentor of the business community or a much-needed agency in which the aggrieved can pursue complaints of employment discrimination.

The purpose of this blog is not to argue either viewpoint. On one hand, any government agency can go overboard if it’s run in a maniacal fashion. On the other hand, I’ve come across so many examples of supervisory ignorance of employment law, I know such agencies are necessary. Whether they are necessary at the local, state, and federal levels is another argument.

But I do have a modest suggestion for a process improvement, and that is that complaints against employers – government, private, or nonprofit – not be made public until the complaint reaches the point where MEOC rules there is probable cause, when each side has had equal time to respond with the facts.

The case that prompts this plea first came to light two years ago, but its ripples are still advancing. In 2010, an employee of the Coalition of Wisconsin Aging Groups filed an age, religious, and disability discrimination complaint against CWAG.

This complaint generated front-page headlines, and it’s easy to understand why. Not only was an age-discrimination complaint filed by an elderly employee against a nonprofit organization that advocates for the elderly, but its president, Nino Amato, served for six years on the MEOC, one year as its president. Not only that, he is a past recipient of the Rev. James R. Wright Human Rights Award from the MEOC.

Up until the fall of 2010, Amato had never been named in any MEOC or EEOC complaint during his 35-year career as a senior executive in both the public and private sectors.

While the MEOC probable cause review process immediately dismissed the religious and disability discrimination complaint, the age discrimination charge was allowed to proceed to the formal hearing stage.

The finding of probable cause, however, is not the same as being found “guilty.” It means there is conflicting evidence between the parties. At that point, the MEOC reviews the evidence before an administrative hearing judge.

After additional evidence was presented, and after CWAG had agreed to a settlement for a relatively modest sum, the former employee withdrew her complaint. Unlike most settlements, where no one accepts wrongdoing, this settlement was unique. The former employee and her attorney agreed to sign a public statement clearing CWAG and Amato, in which she admitted they had not discriminated or retaliated against her.

CWAG insisted on the public statement and a court settlement because had the case gone the distance, it would have cost the organization an additional $25,000 – plus $35,000 in legal fees – to get the same public vindication. By settling, it avoided the additional legal cost, which brings me to my MEOC process improvement recommendation.

Had the complaint not been made public until probable cause was found, as is the case in ethical complaints filed against attorneys before the Wisconsin Supreme Court, CWAG likely would not have lost a five-year, $1 million grant. The morning of the newspaper story, the MEOC had not yet finished the probable cause process, and CWAG had not presented all the evidence in its defense.

(Full disclosure: In Business magazine publishes legal notices each month, identifying businesses that have been fined. That’s well into the process, and companies on the wrong end of a ruling are invited to explain any mitigating circumstances.)

Regarding CWAG: At a time when nonprofits are financially challenged, the lost grant money would have done some genuine good in this community.

The decision to settle is one CWAG now regrets, for Amato believes it has prompted subsequent complaints that also lack merit. That remains to be seen, but the point is that frivolous complaints are possible, and while they are likely to be dismissed, the news of the dismissal might not generate the same media splash of the original complaint.

In a community that has acquired an anti-business reputation – fairly or unfairly – any process improvement is helpful. This is not a knock on the MEOC’s overall process, which often includes having the parties work with an Equal Opportunities Division conciliator. The MEOC also deserves praise for taking an active role in educating local employers, free of charge, about anti-discrimination laws.

It’s about one simple but potentially significant process improvement.

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