Have you been harassed or discriminated against at work? If you have, don’t expect the state to help.
A January audit of the Utah Antidiscrimination and Labor Division revealed that, compared to similar agencies in other states, the office responsible for protecting employees in Utah has a dismal track record of actually protecting employees.
Over five years, on claims brought by employees alleging discrimination by employers, the UALD ruled in favor of the employee 0.7 percent of the time. Salt Lake Tribune reporter Nate Carlisle wrote that during that same period, “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.)”
The audit found that “UALD’s investigative process is inadequate to justify case outcomes,” “UALD lacks a sufficient training program to equip investigators with the necessary skills” and the UALD is deficient in its mediation services and its subpoena power.
The UALD is working to implement the audit’s suggested improvements. But a 2010 audit recommended that the agency complete cases within 180 days of receiving the complaint, and seven years later average completion time is 250 days.
Employees who file discrimination claims bear the burden to prove that discrimination took place by a preponderance of the evidence. A preponderance of the evidence is “based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony.”
David Jensen, the UALD case manager, admitted that “A lot of times, we come across cases where we agonize about what happened. We can’t find the smoking gun, but … we suspect something happened.”
Admittedly, the preponderance standard is subjective. But it requires less than the reasonable doubt standard required in criminal trials. And, to the surprise of most lay people, especially those who watch legal dramas on television, and perhaps non-lawyers who work at state agencies, circumstantial evidence is still evidence.
In one case, the supervisor of a nursing mother told her, “I wish I was breast-feeding so I could go on break anytime I wanted.” He also recruited a male to replace her, and gave male employees more day shifts. The UALD ruled against her claim, but an administrative law judge and the Utah Labor Commission appeals board later ruled in her favor. It took six years.
There’s no question that the actual rate of employer discrimination in Utah is much higher than 0.7 percent of employee claims. The UADL needs a revamp.