Melisa George was a nursing mother. Her supervisor didn’t seem to like that.
“I wish I was breast-feeding so I could go on break anytime I wanted,” he said, according to a complaint George made to an employee hotline in August 2004.
George was in her mid-20s. Her supervisor was a man more than twice her age. After the supervisor said and did more that George thought constituted discrimination and retaliation, including recruiting a man to replace her, she complained to the state agency assigned to investigate such claims: the Utah Antidiscrimination and Labor Division.
But staff there didn’t find evidence to support George’s complaint, according to public records.
“They thought I was just a young kid complaining,” George said in a recent interview. “That’s the way it made me feel.”
Lots of other employees have felt like George. A legislative audit released in January found that over five years, the division, referred to as “UALD” in employment law circles, ruled in favor of the employee 0.7 percent of the time — far less than the averages in surrounding states and less than the nationwide federal rate.
The audit said UALD investigations were inadequate, the investigators weren’t well trained and they didn’t have the means to obtain all the necessary evidence.
The audit confirmed a belief among many Utah employment attorneys about what complainants who believe they were discriminated against can expect from the UALD.
“I tell my clients, ‘It doesn’t matter what you say. They will take the employer’s position,’ ” said April Hollingsworth, a lawyer who frequently represents workers.
Attorneys such as Lincoln Hobbs do not send their client’s cases to the UALD. Instead, he refers cases to a federal agency.
“It’s probably a matter of understaffing or too many cases,” Hobbs said of UALD, “but cases tend to not be processed in a timely manner there.”
Employees who feel they were discriminated against have a considerable burden of proof wherever they seek help. The U.S. Equal Employment Opportunity Commission, known as the EEOC, ruled in favor of employees 3.6 percent of the time over five fiscal years, Utah auditors said. In that same span, anti-discrimination agencies in surrounding states ruled in favor of employees as little as 3 percent of the time (Colorado) and as much as 8 percent (New Mexico.)
David Jensen, the case manager at the UALD, said lawyers who refuse to send it cases are making unfair characterizations about the agency. If any party receives a benefit of the doubt, he said, it’s the employees early in the process. Investigators always hear them out before seeking evidence and a rebuttal from the employer, Jensen said.
In the most recent fiscal year, the UALD awarded $1 million to people who said they were discriminated against, according to the agency’s annual report.
“A lot of times, we come across cases where we agonize about what happened,” Jensen said. “We can’t find the smoking gun, but … we suspect something happened.”
And despite the “#MeToo” movement that continues across the country — with women coming forward with their sexual harassment stories and encouraging the public to believe them — Jensen said the law doesn’t allow his investigators to view complainants more favorably.
“The ‘Me Too’ movement doesn’t have an impact on what we do,” Jensen said.
He added: “They still have the burden to show by the preponderance of evidence that the harassment did occur.”
On the rise
Early evidence shows Utahns are starting to air their stories of harassment and discrimination, just like employers elsewhere.
The UALD received 605 inquiries in November — more than what it received in the previous two months combined. In November 2016, the agency received 228 inquiries.
There’s no breakdown of how many of those 605 inquiries were related to sexual harassment or discrimination. The UALD will investigate complaints based on race, color, religion, sex, age, national origin, disability, sexual orientation, gender identity, and pregnancy or childbirth. It does not publish statistics of how many of each kind of complaint it receives.
The UALD is meant as way to address a discrimination claim without having to go to court. However, those wanting to file a federal discrimination lawsuit against an employer need to first file their complaint with either the division or the the EEOC.
The employee can file a lawsuit regardless of what the state or federal agency rules. But for complainants who don’t want to sue or cannot afford a lawyer, the two agencies have ways to order the discrimination to stop and for the employee to receive back pay or compensation. The UALD also can order the employer to implement training to prevent discrimination.
The process, Jensen said, is meant for anyone to be able to navigate, though he estimated that a third to a half of all complainants have attorneys.
DISCRIMINATION COMPLAINTS AND TRAINING<br>• To file a complaint with the UALD or read more about whether what you’ve experienced constitutes job discrimination, visit the agency’s website at: http://bit.ly/2ohfULQ<br>• The UALD also will send a trainer to your workplace to educate managers and employees on what constitutes discrimination or harassment. Contact Michael Barrett at firstname.lastname@example.org or 801-675-8341.
Hobbs assumes that most of the complaints the UALD receives come from people representing themselves and who searched the internet for instructions on what to do when an employer has discriminated against them.
“The ones who are most aggrieved, in my experience, are the ones who can least afford to hire a lawyer and sue,” Hobbs said.
Lauren Scholnick, another attorney who frequently represents employees, said complainants representing themselves may be able to explain any hostility they experienced at work, but the hard part is showing how what they experienced meets the standard of unlawful harassment or discrimination.
“The employee doesn’t really know what to do to make their case,” Scholnick said, “and the [state] investigator is not ferreting out what the employer is telling them.”
Hollingsworth describes what is sometimes necessary to get to the bottom of a discrimination case by pointing to a client who alleged he was discriminated against for suffering from chronic back pain. The employer fired the client in 2005.
The UALD ruled in favor of the employer, where administrators had accused Hollingsworth’s client of working while under the influence of pain medication. Then, seven years after the firing, a federal court jury found the employer not only discriminated against the client but also retaliated against him after he complained about harassment. A jury awarded him $500,000 in emotional distress damages. A judge awarded him about another $100,000 in actual damages and attorney fees.
To sway the jury, Hollingsworth had to do a lot of her own investigating and hire a toxicologist to show how the employer’s drug tests were faulty.
“It’s a lot of work to take apart an employers’ reasons that they give, and I think [UALD investigators] probably don’t have the resources or the training,” Hollingsworth said.
Emboldening the employer
Jensen said the benefit of coming to his investigators at a state office building on 300 South in downtown Salt Lake City is the promise of a thorough investigation and a written explanation of the findings. On the other hand, the EEOC more frequently issues a notice of a right to sue the employer 180 days after it received a complaint and before an investigation is finished, which is not helpful to employees who just want a finding and who are not interested in suing, Jensen and other attorneys say.
Jensen said the UALD takes particular pride in issuing detailed findings. He said he wants to make the written findings even more explanatory so all the parties know how the conclusions were reached.
But Hollingsworth said those detailed explanations are one reason she rarely sends a client’s complaint to the UALD. Why expose the client to an investigation that — 99.3 percent of the time, according to the audit — will result in an exposition saying the discrimination didn’t happen?
“If they don’t have a good case, and sometimes even if they do have a good case, I don’t want the UALD finding against them and demoralizing them and emboldening the employer,” Hollingsworth said.
George says UALD’s ruling against her prolonged her case and aggravated the damage done. She was a pharmacy technician at an Albertsons store in Murray when her supervisor made the breast-feeding comment. According to public records, the supervisor reprimanded George for what he said was unprofessionalism during a phone call and gave the male technicians more day shifts than George received. She opted to quit.
Rather than the UALD seeking remedies on her behalf, George and her attorney had to appeal to an administrative law judge. Meanwhile, potential employers were calling George’s old supervisor to verify her work history and ask about her performance, she said.
The administrative judge was more favorable to George, finding Albertsons retaliated against her after she complained to the company, according to records. In 2010 — six years after the breast-feeding comment — she received another favorable ruling from a Utah Labor Commission appeals board.
George said she eventually settled the case with Albertsons for a sum she can’t disclose but which was less than she believes she deserved. She argues her negotiating position would have been improved had the UALD ruled in her favor at the start.
“It was frustrating,” George said, “because I knew that I had been discriminated against.”
The January audit was the second audit of the UALD ordered by the Utah Legislature in seven years. A 2010 audit recommended the agency set a goal of completing cases within 180 days of receiving a complaint. But the newest audit reported the average completion time remains 250 days.
The delays have created backlogs that the UALD has been working through and impacted the number of new cases it is able to open. In fact, UALD investigators have been so slow in finishing cases, they have had to reduce the number of new ones they open, according to auditors.
As for the cases that are closed, the most-recent audit said the UALD investigations were “inadequate to justify case outcomes.” Investigators did not have enough training, auditors said, did not keep all the documents they should and the UALD did not have the subpoena power it needs to obtain records from employers.
Auditors, however, wrote that they did not find information that would have reversed the outcome of any cases. UALD spokesman Darrell Kirby said that during the time examined in the latest audit, no outcomes were overturned on appeal or by the courts.
UALD administrators agreed with the findings of the January audit. Earlier this month, they provided The Salt Lake Tribune with a written status report on the implementation of all changes the audit recommended. Some changes, like the creation of a manual, have been made. Other recommendations, like digitizing all the records, are still in the works.
The Legislature is considering changes, too. A group of lawmakers has been studying the audit and how to improve the UALD. Rep. Jim Dunnigan, R-Taylorsville, has filed a bill that would help implement recommendations from the audit, including giving the agency more power to subpoena records.
Dunnigan said his goal is to improve processes at the UALD and that doing so would produce more outcomes favoring employees.
Yet Dunnigan doesn’t think investigators at the UALD harbor any biases in favor of employers.
“As I talk to the senior management at the division,” he said, “it seems to me they make an effort to be fair.”
TOUGH CASES<br>Attorneys say it can be difficult to prove discrimination. The U.S. Equal Employment Opportunity Commission ruled in favor of employees 3.6 percent of the time over five fiscal years, Utah auditors said. Here are the comparable rates auditors found for surrounding states’ agencies in those years.<br>• Utah: 0.7 percent of rulings in favor of employees.<br>• Arizona: 5 percent to 6 percent.<br>• Colorado: 3 percent.<br>• New Mexico: 7 percent to 8 percent.<br>• Wyoming: 6 percent.<br>Source: “A Performance Audit of the Utah Antidiscrimination and Labor Division’s Employment Discrimination Unit”
Where evidence goes
Scholnick sees the workload at the UALD as creating a bias in favor of employers. It’s easier for the agency to find in favor of the employer, she said, since the burden is on the employee, anyway.
“When you’re in a bureaucracy and you’re overwhelmed, you push paper,” Scholnick said. “The way you push paper the quickest is just” find for the employer.
Jensen, while not disputing the recommendations in the audit, in an interview did not offer an explanation for why there have been so few findings in favor of the employee. Nor did Jensen know if there is necessarily a need to repair the UALD’s image with the attorneys who mistrust it.
Investigations and findings go where the evidence takes the investigators, he said. If the Legislature pays for more investigators, cases could be closed quicker, he said, but the inquiries wouldn’t be any more thorough.
“I don’t think that we’re missing anything,” Jensen said.
Jensen, an attorney, oversees four investigators whom he described as seasoned fact finders. One is a former police officer, another a former parole officer, and the third is a former fraud investigator. A fourth investigator, who is another former police officer, starts next month.