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Why suing over employee discrimination is a hell of a lot harder than it should be
Victims of sexual harassment, sexual assault and sexual abuse protest with their supporters during a #MeToo march in the Hollywood neighborhood of Los Angeles on Nov. 12. Mark Ralston/Getty Images

2018 has been a big year for decisions related to employment discrimination. The U.S. Court of Appeals for the Sixth Circuit found on March 7 that employment discrimination against transgender people is a violation of Title VII of the Civil Rights Act. The case was based on a suit filed by funeral home worker Aimee Stephens, who was fired two weeks after telling her boss she would soon begin living as a woman. And in February, in response to a case brought by skydiver Donald Zarda, who was fired from his job after his employer found out he is gay, the U.S. Court of Appeals for the 2nd Circuit found that Title VII also covers gay employees.

Title VII is the provision in the 1964 Civil Rights Act that prohibits employers from discriminating against employees on the basis race, color, religion, sex or national origin. If an employer does discriminate on those grounds, the targeted employee has the right to sue. The recent Title VII rulings expand the protections offered under this act, which is meant to prevent Americans from experiencing discrimination at work.

Yet, across the U.S., employers can, and do, discriminate for these reasons. And those who attempt to sue their employers on these grounds often find themselves facing myriad and unexpected obstacles. High costs, complicated procedural deadlines, contractual agreements, lax labor laws and the fact that these lawsuits can often take years to resolve can make it difficult for many to actually see justice.

Federally, Title VII actually only applies to businesses with 15 or more employees. While many states do go further than that, 14 states (Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia) do not — with a few exceptions in some for disability discrimination and sexual harassment. In those states, discrimination by an employer who has fewer than 15 employees leaves staffers pretty much out of luck.

While Title VII is supposed to protect employees from being fired for discriminatory reasons, in practice, there are plenty of ways for employers to get around this. The simplest way is by not directly saying that an employee is being fired for discriminatory reasons. In 49 states — Montana being the lone exception — all nonunion employees are presumed to be “at-will” employees. This means that their employer can fire them for no reason, or any reason other than the exceptions made in Title VII or their state’s discrimination laws.

In most cases, employers cannot legally prevent the filing of a complaint with the Equal Employment Opportunity Commission, or the providing of testimony in an EEOC investigation. However, they are, in most cases, legally allowed to require employees to sign away their right to sue for employment discrimination in exchange for receiving a severance package. For those who are fired and don’t have a ton of money in the bank, the choice is to either have some money now, while unemployed, or go through a lawsuit process that could take years to resolve.

Many companies in the U.S. also require employees to sign contracts agreeing to private arbitration in the event of an employment-related dispute — meaning that if they are discriminated against or harassed, they can’t bring their case to public court. This has been the case in the ongoing class-action suit against Sterling Jewelers, the company that owns Jared and Kay Jewelers, in which over 250 current and former employees of the company allege sexual impropriety, harassment and wage discrimination.

Although this lawsuit was initially filed in 2008, it took until 2017 for any of the employee statements to become public knowledge. Many of the statements include allegations that managers and other higher-ups pressured employees into sex in exchange for advancing their careers, and incidents in which male managers from the company’s headquarters sent out “scouting parties” to find female employees they might want to have sex with.

Many of the statements are still secret. But if they had been made public earlier on, perhaps the company would have been pressured to make changes faster, or perhaps women would have reconsidered applying to work for the company.

Even if an employee doesn’t sign any contracts, the process for suing an employer for discrimination is incredibly difficult.

In most states, before an employee can even approach a lawyer with their case, they must file a complaint with the Equal Opportunity Employment Commission. Their employer, regardless of whether or not the employee is still on staff, will be informed of the complaint within two weeks. While the staffer can’t be fired for filing the complaint, they can be fired for literally any other reason, so long as their employer doesn’t explicitly say, “I am firing you in retaliation for having filed this complaint.”

Filing a complaint is not as simple as calling up the EEOC and saying, for example, “Hey, my employer fired me because I got pregnant.” It’s a long, multistep process, full of deadlines, and the average processing time for a federal complaint is almost an entire year.

If a lawyer will take a case on contingency, a client doesn’t have to pay until, and unless, the case is won — lawyers fees are often included in settlements. Otherwise, a retainer could cost thousands of dollars right off the bat, and then up to 40% of the settlement money afterwards, if lawyer’s fees are not covered. Many people simply can’t afford that — particularly if they just lost their job.

An analysis conducted by legal research firm Lex Machina in 2017 found that when discrimination lawsuits actually go to federal court, its highly unlikely that workers will win. Out of 54,810 EEOC cases filed and closed between January 2009 and July 2017, employees won just 584, or 1%, of lawsuits at trial. Employers won 7,518 cases, and 3,883 cases were settled on procedural grounds (mostly by dismissing the employee’s entirely). The rest were settled out of court. There is no available data on what those settlements resulted in, or whether or not they actually benefited the employee all that much.

As was learned from the Harvey Weinstein scandals, when companies do agree to settlements, they often require victims to sign nondisclosure agreements prohibiting them from telling anyone they were discriminated against or harassed. One woman, who spoke to Mic and asked to remain anonymous, received a settlement following sexual misconduct by her boss and said that discussing the matter would ruin her.

“I would be fined into bankruptcy if I talked, basically,” she said. “I can’t say anything that would in any way lead people to believe that I had been wronged by the company, or received a settlement.”

Why might someone sign an NDA knowing that? For many, it feels like the only way to bring something good out of the situation.

“I needed what justice I could get, and it was a $40,000 settlement, a third of which my lawyer took and on which I was taxed. I signed the NDA because I had no other option left, and I was about to be evicted from my apartment,” she said.

Signing that agreement, she explained, “meant that I had options. I was able to get a part-time job, a hospital helped me get enrolled in Medicaid and I was able to pay co-pays at a low-income behavioral health clinic.”

In addition to providing NDAs, some companies continue to enforce noncompete contracts with those who leave after facing discrimination or sexual harassment. This can make it difficult to find employment afterwards.

Attorney and former Fox News contributor Tamara Holder has a lot of experience with these kinds of cases. After coming forward in 2017 with allegations of sexual assault against a Fox executive and later settling with the company, she is now taking on discrimination and sexual harassment lawsuits herself. She said in an interview that her agreement with Fox means that she will be fined $500,000 per breach of her nondisclosure agreement, and is not allowed to apply for a job with the company or any of its subsidiaries ever again.

Between expenses, the time and effort the legal process takes and the settlement agreements, Holder says, “The process seems so daunting and prohibitive that many women understandably turn the other cheek and walk away, rather than fight back.”

Does any of this mean that if someone feels they are discriminated against at work, they shouldn’t even bother? No, Holder says: “If you feel like you’ve been abused at work, most likely you have.”

“You owe it to yourself to seek justice, no matter how small,” she said. “Call an employment lawyer and ask questions. Google the EEOC. The worst thing you can do is bury your pain. So many people are out there to help you.”

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