In this episode of The Legal Way Podcast, we are joined by Friedman Schuman employment law attorney Harold Goldner as we delve into the pressing topic of workplace discrimination. Join us as we dissect the complexities surrounding discrimination in professional settings, delve into real-world scenarios, and explore the legal safeguards in place to protect employees from various forms of bias. Whether you’re an employer striving for an equitable workplace or an employee keen to understand your rights, this episode provides invaluable insights into the critical realm of workplace discrimination within the framework of employment law.
EPISODE TRANSCRIPT:
Alyson: Hi everyone and welcome back to The Legal Way podcast by Friedman Schuman. My name is Alyson Layser, the Director of Marketing here at Friedman Schuman. And today I am joined by guest, Harold Goldner. He is the head of our employment law department here at Friedman Schuman. And today we are going to dive into the topic of discrimination in the workplace. So, Harold, I’m going to let you quickly introduce yourself and then we can dive right in.
Harold: Thank you. I’m Harold Goldner. I’m an employment lawyer. People deal with the workplace from just before hire to just after termination. And if there are contractual relationships, they have that extend beyond the employment relationship by help enforce those or try and liberate people from those agreements. I’ve been practicing law a little more than 40 years. And I have also served as the chair of the Lower Merion Township Human Relations Commission and participated in writing their regulations. So, I’ve dealt with discrimination, both as an advocate and as part of an adjudicatory body, which is a different perspective.
Alyson: Absolutely, that’s really interesting. How did you get into that role?
Harold: I shared office space with one of my township commissioners who knew I was involved in employment law. So, he would bounce ideas off me when they were preparing the ordinance. I helped edit the ordinance and then once the ordinance passed, they said, well, you should apply for the commission spot. So, I did and the board of commissioners decided I was worthy and I was on the commission for about 12 years. I served as its chair twice during that period.
Alyson: That’s amazing. I feel like that has happened with some of the other organizations that you’re a part of too, like your astronomy club. You’re like, oh, I’ll just go for it and try it out.
Harold: I kept my head. I could sit in the back, but that’s not my style. I tend to get involved. And even now, even though I’m off the commission, there’s a network of human relations commissions for a variety of townships, the city of Philadelphia, the state, also the New Jersey Attorney General’s Office and even Delaware. And we have this informal coalition called the Tri-States Human Relations Coalition. And I’ve been its facilitator for the last year and a half, which means every six weeks we all get together and share horror stories or figure out how we can help each other be better at being human relations organizations.
Alyson: Well, that’s amazing. I love that you’re so involved in so many different organizations. It’s a wonderful way to network and just get to know a lot of people within the community and in a similar field. So, I think that’s awesome. Thank you so much for sharing. So, let’s dive into discrimination. What are some examples of discrimination in the workplace?
Harold: So, let’s talk about what discrimination is and what discrimination isn’t. When I picked this tie, I discriminated against all the other ties in my closet. There’s nothing illegal about that. Discrimination is only illegal if it’s based upon what we call a protected classification. Now the standard protected classifications are age over 40, race, color, national origin, sex, religion, or disability. Now that’s by federal law, and it’s an interesting story when they were talking about passing the Civil Rights Act. It’s really only related to race or color. And a southern coalition attempted to kill the bill by adding sex to the Civil Rights Act.
Alyson: Interesting.
Harold: It didn’t kill it. So, it passed with sex. It passed with religion. It has since been, they’ve added to it the Age Discrimination and Employment Act for workers 40 or older and disabilities, which are individuals, and I think disability is almost a dated word now, but we’re stuck with that statutory language, but it’s somebody who is able to perform the essential functions of their job with or without an accommodation. So, despite having a physical or mental disability. And when we talk disabilities, we also talk about an actual disability or being perceived as disabled or a record of a disability. Everyone in the workplace thinks you’re nuts. You are perceived as disabled. If you spent a year in a mental institute, but you’re fine now, you have a record of a disability. And if you are currently crazy as a loon, whether people think you are or not, you are actually disabled. But if you can still do your job, you are a qualified individual with a disability, you’re entitled to be and you’re able to perform the essential functions with or without an accommodation. You’re protected. You’re protected from discrimination because of your race, because of your sex, because of your religion, and again because of your age or nationality.
Alyson: That’s super interesting. I think that a lot of people, you know, when you hear the word discrimination, they have a certain, you know, picture in their mind of what that looks like. But it’s very interesting that it can, at least in the workplace, you know, it can involve all of those different things.
Harold: It can. And in fact, that’s under federal law. If you look at state law, so the federal law we have is the Civil Rights Act, which works in tandem with the Age Discrimination and Employment Act and the ADA, Americans with Disabilities Act. I often refer to all of this as the alphabet soup of employment laws. In addition, we have the Pennsylvania Human Relations Act, which adds things like family status. If somebody’s being treated differently because they have children than other workers with the same position who don’t have children, that’s discrimination based on family status. We also have townships and cities that have anti-discrimination ordinances, such as the city of Philadelphia, the city of Allentown, and those include discrimination based on gender identity or gender affinity. So, while the LGBTQ plus community is not necessarily protected expressly by state law or federal law, they are by local law. Now there is case law that suggests at least in employment, discriminating against somebody because of their status, LGBTQ, is still, quote, “because of sex,” close quote, and therefore violates the sex part of the anti-discrimination laws.
Alyson: That makes sense.
Harold: And there’s also no discrimination based on somebody being on active duty in the military service. We have a law called USERA, or being a veteran, veteran status. You can’t be discriminated against. Can’t be discriminated against because you use a guide dog. And in some areas, if you’re not the slightest bit disabled, but you train guide dogs, because somebody has to train them who doesn’t, you can’t be discriminated against because you train guide animals.
Alyson: Wow, that’s so interesting.
Harold: So, there’s some really obscure holes, pieces of all this, which is why when I typically, when somebody comes to me and says, I’m being discriminated against, I have to go through a long list. Well, tell me about the composition of the rest of your coworkers. What’s your job? I am a maintenance man. How many other maintenance men are there? There are six. Okay. Give me their names. How old are they? What’s their race? What’s their sex? Go through the whole thing. And that way I can determine if there’s real discrimination as opposed to what I call is a boss hole, which is just a boss who doesn’t like you. And it’s a personality conflict. You just can’t get involved in personality conflicts. Courts don’t get involved in that and there isn’t anything I can do for them.
Alyson: Yeah, I don’t blame the courts for not getting involved.
Harold: I mean, I often have to tell people, look, a lot of times what I hear is, that’s not fair. That is not fair. And I go, yeah, right, it’s not fair. But I’m not a referee. I’m a lawyer. And it may not be fair, but unless it violates the law, there’s nothing I can do about it.
Alyson: Makes sense. So, in your experience working in employment law for over 40 years, what would you say is the most common type of discrimination case that you have worked on?
Harold: I have seen all kinds of discrimination. I’ve seen sexual harassment, which is not uncommon. I’ve represented a number of engineers, women engineers. There are not many women engineers.
Alyson: No, there really aren’t.
Harold: And the male engineers are sometimes have their personalities extracted while they’re in engineering school. So, dealing with women engineers is particularly difficult for them. So, I’ve dealt with a number of gender discrimination cases involving female engineers, project managers, and so forth. I have seen racial discrimination on the docks, among stevedores. I had one case where somebody hung a noose over the workstation of a black employee. That’s clearly racial discrimination. I have seen sex discrimination where one senior manager at an employer used to send out an email every Friday with the subject line, porn Friday. And the emails were dirty jokes and just incredibly stupid stuff. I’ve seen age discrimination. There was a big box computer store that is no longer in business. The regional sales manager showed up at a store and saw three individuals who were over the age of 40, they’re actually over the age of 50, and turned to somebody there and said, what’s with all the gray hairs here? Get rid of them. And so, I represented three employees in an age discrimination case. And there were people who heard the man make the comments. So, the employer, I remember talking to the employer’s counsel and he was like, yeah, we know we’re going to pay on this. It was not good. I saw a company, a big company, an international company in fact, with presence in this country, their senior management met and they had a slide deck from overseas and the slide deck said, we want to promote, we want more people promoted who are in their 30s. And my client said, you can’t do that, that’s age discrimination, you have to promote anybody who’s that was a case. So, I’ve seen all kinds of discrimination.
Alyson: Oh my gosh. I mean, I obviously knew that cases like that were out there, but hearing you actually share it, some of it just like blows my mind that employers can do some of these things.
Harold: It’s really oftentimes when these cases litigate, the best part is when I get to take the deposition, the sworn statement of the HR manager. Because typically, if I represent the employee, HR did something wrong that got him in trouble. And it’s typically the HR manager who sometimes is a deer in the headlights and doesn’t understand what they did wrong. I had a case involving one of the casinos where my client claimed he was being discriminated against because of his race. He was punished. He was terminated for something that other white coworkers had not been punished for. And I took the deposition of the HR manager and I asked her, did she investigate the claim? And she said, yes, I talked to so and so, so and so, so and so, so and so. Well, everybody she talked to was white. She didn’t talk to anybody who was black. She didn’t interview anybody who was black. This is a race discrimination case and she didn’t talk to anyone who was black. So, when the case came back and it went all the way to an arbitration, I called her as my first witness. I put her on the stand and I asked one question. I said, tell the panel how many black people you talked to when you conducted your investigation. And she started to fum-fit and I said, it was none, wasn’t it? Case was over. I mean, it was just stupid.
Alyson: That is just so crazy.
Harold: It was stupid. I mean, having a slide deck that says we only want to promote people in our thirties. It’s stupid. A lot of times, discrimination happens largely out of ignorance. It shouldn’t surprise anyone that the people who are ignorant tend not to be that bright. That’s what you deal with when you prosecute this type of stuff. The flip side is on the employer side, and I do represent employers, is my clients want to be very, very careful not to respond to something because of somebody’s membership in a protected class. I have a client I’m very fond of that had at the time, they had about 30 to 40 employees at the time and only one African American working there. They caught her on video stealing products. And they were, I remember the owner was heart sick over this. And he said, look, I know I could fire her, but I don’t, I really don’t want to. So instead, he announced to the entire staff, this has been stolen. We know it’s been stolen. We know who stole it. Come to us and admit it. Tell us what you’ve done. All is forgiven. We’ll get to the bottom of why you felt you needed to do this. We will not fire you. And the person did not come forward and was terminated. And he felt horrible about having to do that. And he asked no claim. No lawsuit, no claim, nothing at all. It was done correctly.
Alyson: Yes. Yeah, absolutely. And I think a lot, like you said, a lot of employers don’t necessarily handle it in a similar fashion. Either they are ignorant or they just don’t know how to in the proper way.
Harold: My favorite employee or employer clients are the ones who have me on speed dial. So, they call me before they make a mistake and I make sure they don’t make a mistake and they don’t get sued.
Alyson: That’s smart. Anybody listening to this podcast that has a business or is a top executive, get Harold on your speed dial.
Harold: Works for me.
Alyson: I love it. So, to kind of switch gears a little bit, going more from an employee standpoint, what can employees do to protect themselves against potential discrimination?
Harold: If an employee believes they’re being discriminated against because of protected classification, they should absolutely make a point of complaining to HR or whomever HR is. And they should do that in writing. And in writing would include an email. They shouldn’t do it verbally. They should recognize that HR is not, no matter how much they say they are, they are not the employee’s friends. In fact, I was just talking to somebody who said that they call the HR department the employee advocate department. It’s not. That’s a sales job. It’s not true. So, the employer’s HR department job is to avoid getting sued. So, they’re immediately going to go into defensive mode. But the fact of the matter is, under the law, once an employer is told of a good faith belief of discrimination, they have a duty to engage in what we call prompt remedial measures, meaning they have to immediately isolate the source of the discrimination from the victim before they know anything. They have to isolate, they should isolate. They have to investigate. They have to conduct a fair and impartial investigation. And they have to make a conclusion as to what has to be done. And that’s important because there’s something called a Faragher and Ellerth defense, which is if there is a mechanism for resolving discrimination complaints. And the employee does not participate in that process. The employer is allowed to say if they get sued, we didn’t know. We didn’t know, how can we be liable? Nobody told us. And that will be in absolute defense. On the other hand, if there is a procedure and the employee tells the employer, and there’s a record of the employee telling you. And the employer does nothing. The employer has no defense. None at all. So, it’s really important to notify. And what I find a lot of employees go is when they’re talking to me, they say, well, it was clearly age discrimination. I said, fine. Did you say that when you talked to HR? Well, no, but they knew it was age discrimination. Did you say, I feel I’m being treated differently because of my age? If they didn’t, then they really haven’t rung the bell, as it were.
Alyson: Have you found in your experience that a lot of times people who maybe, for example, they feel like they’re being discriminated against because of their age, they don’t really state that typically to HR or their employers? Is there something that you think makes them maybe hold back from saying what they actually think the discrimination is from or of?
Harold: I think it’s really important to make it clear what the basis of your discrimination claim is. If again, your boss hole is just treating you differently, too bad. But if you feel you’re being treated differently because of your sex, your age, your race, religion, or anything like that, you’ve got to say what it is. And that’s hard for some people to do. Some people say, well, I don’t want to play the race card. Okay, I get that. If you don’t invoke that, then the employer is not obligated to be a mind reader. What are they supposed to investigate if they don’t know why you think you’re being discriminated against? I have a client who found he was diagnosed with Parkinson’s disease, and he kept going to the employer and saying, I need you to accommodate me. I need you to accommodate me. He never told them he had Parkinson’s, and they had no idea why they were having performance problems with him. He has to ring the bell, has to say, I, because if you have a disability as an employee and you need an accommodation, you have to start what’s known as the constructive dialogue or also known as the interactive process. You have to go to your employer and go, hey, I got a bad leg. My doc says I need to be able to sit down from time to time. Can you get me a chair? And let me sit down for five minutes every hour. And the employer has to reasonably accommodate. Now if they can’t give somebody a chair for five minutes because of the nature of their job, then they have to suggest something else. But there has to be a discussion. We can’t have a discussion if the employee doesn’t initiate it. And the employer doesn’t have to read minds. An employer may sense, hey, we heard Joe had a heart attack. And then Joe comes back and he looks a little haggard. The employer can say, hey, Joe, are you going to need an accommodation? Are you going to need, you know, do you need to work in different shifts? They have to engage in the process. They don’t have to wait. They don’t get to wait until the employee uses magic words like, I need an accommodation under the Americans with Disabilities Act. No need to use magic words. Only in Hogwarts do you use magic words.
Alyson: Gotcha. That’s really great information to know. So, like you talked about definitely you know talking to HR and being very clear about you know what the issue is. After doing a little bit of research to get ready for this episode, I noticed in some blogs and articles and things that it is sometimes recommended that an employee who feels like maybe they are being discriminated against should keep a document or document a log of you know different instances, the people, you know maybe what they were wearing like that type of stuff. Is that something that you would also suggest?
Harold: Absolutely. Chronology is a great idea. I love it when my clients provide me with a chronology that goes all the way back. I love a paper trail because a paper trail gives me all these points. I can go back and talk to people at the employer as I conduct my litigation and sort of test did this meet the law, did this meet the law. I have a case where the employee said, I feel like I’m being, my boss is treating me differently because I’m a woman. He does not treat the men in my office the same way as he treats me.” And HR’s response was, I’m really sorry you said that you thought it was sex discrimination. That’s not the right answer.
Alyson: No, absolutely not.
Harold: But in her chronology, she has HR director said to me, I wish you wouldn’t say this was sex discrimination. That’s not good. And that gives me the opportunity when I take the deposition to the HR managers, what were you thinking?
Alyson: Yeah, well that’s good to know for sure. Are there any other ways that you would encourage somebody to maybe document discrimination, or would you stick with a log?
Harold: I would say this, if somebody has a particular disease where there are support organizations, I would say it’s a really good idea to be familiar with your support organizations. I helped a client who had HEP-B and there is a support organization for people who have HEP-B. I was helping an employer do a reasonable accommodation for someone who is neurodivergent on the spectrum. There are support organizations for people who are neurodivergent. I would encourage people who have, I would encourage if somebody thinks a race is an ongoing problem, contact the NAACP. So, contact or support organizations, they can help you also frame the environment in the right way so that if the employer doesn’t respond by the time you come to me, you tried this, you tried this, you tried this, and the employer just blew you off. Okay, let’s go get him.
Alyson: Gotcha, gotcha, that’s really great information. Now, along the lines of proving discrimination, are there ways in which employees have some issues proving this?
Harold: So, proving employment discrimination is very different than a lot of other types of legal cases. For example, proving automobile negligence is a relatively simple process. You show that the defendant was negligent. You show that as a result of the negligence there was a collision as a result of the collision there were physical injuries as a result of physical injuries there were damages it’s A, B, C, D, it’s a very easy what we call prima facie case employment law is more like a tennis game and the way I’ll put it is as follows, you need to prove your prima facie case if you’re an employee first and that means you have to serve the ball in the court tennis or pickleball if you’re not playing tennis anymore. That means, one, you’re in a protected classification, so based on age, race, color, national origin, etc. Two, you suffered an adverse employment action. You were fired. You were demoted. You were put on a shift that you’re not comfortable with. You were transferred to a store that’s four hours away instead of the one you used to work at, which is five minutes away. An adverse employment action, and you don’t necessarily have to prove three, but those not in your protected classification did not suffer the same adverse employment action. Okay, so if you say that and the law says that you’re almost supposed to pull the net down so it’s easier to serve the ball in the court and state the premium face your case. You do that, now the employer gets to hit the ball back. And the employer, all the employer has to state is a, quote, “legitimate, non-discriminatory reason for the action they took.” And so, for example, they go, well, yeah, I mean, sure, they’re African-American and yeah, we did fire them, but they did steal $10,000 out of the cash register. That’s a legitimate non-discriminatory reason to fire somebody. Or, yeah, they beat up one of their coworkers. Yeah, that’s good reason to terminate somebody. It doesn’t have to be the best reason in the world. It just has to be a legitimate, non-discriminatory reason. And if they state a legitimate, non-discriminatory reason, they have smacked the ball back across the net and it’s now back in the employee’s court. Now, the employee can hit it, and I’m gonna extend this backhand, this tennis and pickleball analogy just a little bit further. You can hit the ball back with a forehand or you can hit it back with a backhand. A forehand is direct evidence of discriminatory intent. Example, the regional sales manager walking in and saying, get rid of all these gray hairs. That’s an ageist comment. A noose over a workstation. That is direct evidence of racism. Yes. Okay, so, if you can show direct evidence of discriminatory intent, you’ve hit the ball back with a forehand and you win. And by the way, this is known as the McDonnell Douglas Burden Shifting Analysis, and you don’t have to know that. It will not be on the final unless you’re in law school. The backhand is showing indirect evidence that would suggest that the employer’s explanation is pretextual. That’s evidence that would show that the employer’s explanation is incoherent, not worthy of belief, doesn’t make sense. And if you can show that, if you can cast doubt on the employer’s stated reason, then the courts will permit your case to go to a jury to make a decision. So, there’s a classic case that the United States Supreme Court decided, Reeves versus Sanderson Plumbing, where Sanderson Plumbing fired Mr. Reeves when he was about in his 60s. And they said it was because his sales numbers were off. Reeves had a separate set of his sales numbers and said, “no, you falsified my numbers. You made them look bad. I was the top salesman in the department.” And the court said the fact that the employer tinkered with the records to make Reeves look bad was sufficient evidence to infer that Anderson Plumbing intended to discriminate against him because of his age. So, there’s a third circuit case about that called Fuentes. But frequently in employment disputes, we end up getting into this back and forth, this tennis match. And it’s best when we have direct evidence. I much prefer a forehand slam to a backhand slam. But I’ve had many cases where we have been able to show pretext on the part of the employer, show that the employer’s proffered reason for why they terminated or why they did whatever they did to our client was probably not a real reason.
Alyson: Gotcha. So, on the flip side of that for employers, are there challenges that employers then also face in proving that they did not conduct this investigation?
Harold: Absolutely. Document, document, document. Conduct a full investigation, a fair investigation. Great example, I represented a company that had a call center. And like many companies with call centers, everything’s plugged into computers. So, you can tell how long someone’s on the phone how many calls they make, how long each call is, and you can tie that to sales, and you can rank your sales reps on the phone. You know which one’s making the most sales and which one’s making the fewest sales. They had an employee who was basically screwing off, wasn’t getting the job done, and was spending a lot of time not on the phone, inexplicably. They terminated the person and the person turned around and claimed, “oh no, you fired me because I was Hispanic. And we went into court with the computer records showing that the guy wasn’t making phone calls.” It was the bottom of the heap. And it was, you know, we obviously defeated the discrimination claim. Even I remember the judge saying, you know, these are computer records. They show whether this guy’s doing his job or not. How are you going to argue with that?
Alyson: Absolutely, and I would think now, especially that we live in a very digital age, that being able to prove discrimination in that same type of situation would be a lot simpler than even just a couple years ago, because now we do have a lot of records and a lot of things are online where you can pull that data and these analytics and things.
Harold: Discrimination, it’s a very hard case to prove. These are very difficult cases. One reason is juries don’t want to call people ageist, sexist, racist, whatever. I prefer when there’s a retaliation component, and this is why I said to you earlier, make sure you put the complaint in writing. Because if the employer’s response is to go, well, we don’t think it’s discrimination, but since you raised that complaint, you’re fired, that’s retaliation. And if you retaliated against because you engaged in protected activity, and that’s really important. A lot of people call me and say, “I was retaliated against.” Why were you retaliated against? “Well, I told somebody they were an idiot, and they fired me.” That’s not retaliation. Retaliation is unlawful when it is in response to protected activity, which is raising a good faith complaint of discrimination. Juries don’t like that. They find that’s fundamentally unfair.
Alyson: Interesting, I can see how that would. That would happen.
Harold: Yeah. So, I like retaliation cases even better than discrimination cases.
Alyson: Gotcha. Well, before we wrap up this episode, is there anything else that you would like to share about discrimination in the workplace or anything that people should be aware of, employers should be aware of, employees should be, really anything else?
Harold: I wish there weren’t discrimination. I started doing employment work because it made me feel like my law degree meant something and I could make a difference. I really, really enjoy and get satisfaction from working with employers, making sure that their workplace is free of discrimination. And I’m extremely frustrated when I get employee clients who are treated unlawfully because of their membership and a protected classification. And it violates my sense of justice and it actually makes me angry and I don’t like to be angry.
Alyson: Well, I can certainly tell that you’re very passionate about this subject. I know that you work with these types of cases a lot and through those, you’ve been able to help a lot of people and I think that’s really amazing. Thank you so much for sharing all of your insight and just some tips and everything with our listeners. I know that they’re going to find a lot of value from it. Thank you again so much for your time and for joining us on this episode.
Harold: Thank you for the opportunity.
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