The Madison Equal Opportunities Commission may exist to fight discrimination, but it is viewed in some business circles as an example of bureaucratic overkill, not to mention a plaintiff-friendly agency for vindictive people to harass their former employers.
But is that reputation fair?
Not according to the women in charge of the MEOC, which is the Equal Opportunities Division of the city’s Department of Civil Rights. They believe those perceptions are inaccurate and changing.
Lucia Nunez, director of the Department of Civil Rights, and Ariel Ford, manager of the department’s EOD, defended the commission’s treatment of employers and the need for its expanded civil rights protections in the city — even with similar agencies already in existence (and funded) at the state and federal level.
Perception vs. Reality
The perception among some in the business community, especially those that have been on the wrong end of a discrimination complaint, is that the deck is stacked against them.
As one of about 50 area lawyers on the MEOC’s attorney referral list, Meg Vergeront, business law team leader for the Stafford Rosenbaum law firm, represents mostly employers before the commission. Although she characterized the MEOC’s process as “not significantly different” to that of the Equal Rights Division of the state government, Vergeront said employers have a sense of frustration about having to answer to three different agencies: the MEOC; the Wisconsin’s Equal Rights Division, located within the Department of Workforce Development; and the federal Equal Employment Opportunity Commission.
Of the three, a commonly held belief is that the MEOC is the most unfair to employers. “What I hear from my clients is they do have a sense of frustration at having to potentially be hauled up before three different agencies,”‘ Vergeront said. “I think they have a perception, right or wrong, and I’m just reflecting on what I’m hearing from people, that they don’t get as fair of a shake with the city.”
That perception does not square with reality, according to Nunez and Ford. Based on the Commission’s annual review of cases, they contend that on average between 60% and 70% of the roughly 200 complaints filed annually — in housing, employment, and public accommodations combined — result in a finding of no probable cause for discrimination, which means no evidence of discrimination was found by Hearing Examiner Clifford E. Blackwell III. Less than 10% of no probable cause determinations are appealed, Nunez indicated.
In other situations, would-be complainants are turned away because their concern is centered on poor relationships with substandard managers, not cases of actual discrimination.
“That [anti-business reputation] is a dated belief,” stated Nunez, who noted that the EOD is advised by a 30-member Equal Opportunities Employment Committee, which consists of members from both the public and private sectors.
Nunez and Ford noted that EOD will send representatives to local businesses, free of charge, to educate and train their workforces in the anti-discrimination laws that impact their business, or to address a particular discrimination-related issue within the business. Ford said the EOC is happy to customize such training to the employer’s needs.
“It could be a team of individuals or it might be one individual that might come in,” Ford explained. “We believe that education is the key to anything we do, and we’d much rather educate than regulate.”
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Madison’s Unique Turf
Like the state, the city prohibits discrimination in the areas of employment, housing, public accommodations, and credit. The federal EEOC primarily focuses on employment discrimination; due in part to budget cuts, EEOC has limited its focus to class-action suits against large corporations while it provides funding to local agencies to enforce employment discrimination law in smaller, individual cases. The Madison EOD has a contract with the federal EEOC to handle those kinds of cases here, and it is reimbursed on a per-case basis.
The primary reason the City of Madison has established a municipal equal rights body is the community’s interest in expanding protections. In addition to common protections for race, gender, age, and disability, the City of Madison’s general and equal opportunity ordinances prohibit employment discrimination on the basis of political beliefs and student status, whereas state and federal law do not. The ordinance also prohibits discrimination on the basis of physical appearance such as weight, height, tattoos, hairstyle and hair color, and piercing.
“Clearly, where Madison’s ordinance is broader than state or federal law in either the protected classifications that it covers, or potential remedies, or in how a particular issue of discrimination is handled, then you do need the MEOC to be addressing those issues because they can’t be raised, they can’t be brought in the [state] Equal Rights Division or in federal court or the EEOC,” Vergeront said.
There are some exceptions, such as companies that require uniforms and occupations where choices like piercing could impact health and safety and might require removal of jewelry or some type of covering.
Most of these key distinctions between Madison and other jurisdictions relate to the status of university students, which Madison has in abundance. “One of the protected classes we have locally is student status, and that’s totally in relation and in response to the UW student population,” Nunez said. “We have a large student population that engages in housing, different employment, et cetera, which may be related to student status.”
In addition to a broader class of potential claims, there was more opportunity here to claim damages related to discrimination. “It’s not necessarily that they [lawyers] think they are going to get a different shake under the law, but that traditionally under the state law you could not get compensatory and punitive damages in a claim brought under the Fair Employment Act, where you could get those things under the Madison equal opportunities ordinance,” said attorney Bonnie Wendorff, who practices employment and litigation law with the law firm Neider & Boucher.
In many cases, Wendorff said attorneys would take the MEOC route in order to use that threat against employers to facilitate a settlement.
[Editor’s note: The Wisconsin Legislature recently passed, and Gov. Jim Doyle has signed, a bill making compensatory and punitive damages available under state law for discrimination claims.]
Nunez and Ford point out that Madison has company when it comes to having an equal opportunities agency. They said most major cities — including New York, Chicago, Milwaukee, St. Paul, and St. Louis — have their own equal opportunity agency, which (in their view) provides more flexibility to respond faster than the federal or state governments.
Madison established its equal opportunities ordinance in 1963, a year before the federal government passed the Civil Rights Act of 1964, which prohibited racial discrimination in public places and mandated equal employment opportunities. The city’s Department of Civil Rights has 17 employees, and its annual budget of $1.3 million is split between the EOD, which Ford manages, and the Affirmative Action Division.
Both Vergeront and Wendorff said the MEOC’s legal process is fair to all parties. It begins with attempts to mediate the dispute and, if necessary, moves on to an investigative stage. If further mediation fails to resolve the case, it goes to the hearing examiner. Determinations made by the hearing examiner can be appealed to the Equal Opportunities Commission, a 13-member panel of volunteers that reviews such cases and renders a final judgment. (Attempts to mediate are made throughout the process). Nunez indicated that most employers hire an attorney to represent them before the EOC, incurring a cost, while most complainants represent themselves.
No case is examined by all the commissioners, but Commission chair Nia Enemuoh Trammell, who serves as an administrative law judge in the Worker’s Compensation Division of the Wisconsin Department of Workforce Development, said commissioners are conscientious in applying the law.
Before the Commission, whose members are appointed by the Mayor of Madison, Enemuoh Trammell has seen cases go both ways. “They [commissioners] want to do what’s right and enforce the law appropriately,” she said. “I don’t think the commissioners rubber stamp the decisions that are handed down by the hearing examiner.”
Swinging Pendulum
In the past, Wendorff believes attorneys were more likely to seek the MEOC forum because, in some ways, it’s less daunting to them than state or federal agencies. “I think there is a perception at least that it’s more friendly on a substantive level, too, so that they are more likely to get a hearing there with regard to the other agencies,” Wendorff said. “In other words, I think there is a perception that it’s more liberal there.”
Perceptions aside, Wendorff believes that in the past several years, the pendulum has swung more toward bringing cases before the state Equal Rights Division. She noted that MEOC may have been the favored agency during the 16-year reign of former Governors Tommy Thompson and Scott McCallum, years when Republican administration of the state Equal Rights Division was thought to be more business friendly. That changed in 2003 with the administration of Jim Doyle, a Democrat.
“I’ve noticed a difference at the state level in the last few years, and I haven’t had a lot of involvement at the Madison Equal Opportunities Commission in the last couple of years,” Wendorff said. “As a matter of fact, I think that’s interesting because I don’t see as many claims filed there as I used to.”
That also might be a function of employer reactions. Wendorff started working in employment law 22 years ago, when the attitude of employers was “pretty much dig your heels in the sand, and resist everything,” she said. That’s not the way it is anymore, she noted, and that parallels with an increase in human resource professionals that educate their employers about the benefits of compliance.
“The employers now are more pro-active in complying upfront,” Wendorff said. “You don’t have so much of a cavalier attitude that perhaps you used to have.”
Civil Action
Whatever perceptions still linger, look for the Department of Civil Rights to remain active. According to Nunez, its next undertaking is to help injured military veterans through its disability services and rights program. “We are trying to take more proactive role in Civil Rights,” Nunez said, “and we’re thinking about how we should work with veterans coming back from the war that have severe injuries and that will have to be retrained. We’re thinking about ways for them to work with the city and other places.”
