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Despite changing culture, employer discrimination remains hard to prove

As high-profile men in the worlds of entertainment, media and politics continue to be ousted from their jobs and shunned after allegations of sexual harassment, a University of North Dakota School of Law professor who has fought for victims in the workplace has been shocked.

"For people to get fired just based on allegations is very much stunning to me," said Margaret Moore Jackson, who has been practicing and teaching employment, housing and civil rights law for more than 20 years.

"It's just a difficult area for the plaintiff-employee to prevail in, and that's one reason that what we've been hearing in the news lately has been so astonishing as someone who's been a plaintiff's employment lawyer," Jackson said.

Many of the women stepping forward to tell their stories of being victims of harassment and wrongdoing in the workplace have been high-profile themselves, typically in white-collar jobs. She worries that women in blue-collar industries won't see much improvement in their working conditions in the wake of recent developments.

For Americans without the resources to hire attorneys to file charges of harassment or discrimination, the common route is to go through the Equal Opportunity Employment Commission.

In the past five years, Americans have annually filed about 90,000 charges of workplace discrimination and employer retaliation under Title VII of the 1964 Civil Rights Act. There were 91,503 discrimination charges filed in fiscal year 2016 nationwide, of which 892 came from Minnesota and 81 originated in North Dakota. Both states saw fewer charges in 2016.

People who charge discrimination often levy the charge under multiple categories. Federal law prohibits workplace discrimination based on race, sex, national origin, religion, color, age, disability status, the Equal Pay Act and employer retaliation. The law applies only to companies with more than 15 employees.

All charges are recorded by the EEOC, which can investigate the charges on its own or delegate the work to a state fair employment practices agency. In North Dakota, that's the Department of Labor and Human Rights, while Minnesota uses the Department of Human Rights. Employees can file directly with the EEOC or with state agencies. State agencies also handle all complaints from employees of small companies.

But the administrative process differs from a legal route, Jackson said. There's no right to discovery, meaning claimants don't know exactly how the administrators are investigating their claims as they would in a civil action process.

"It's just an agency doing an investigation to the best that it can, which, in my experience, they don't have the resources to do that good of a job," Jackson said. "They simply don't. They can't go to the workplace and interview a lot of people."

That problem goes beyond North Dakota.

"The EEOC doesn't have the resources to do this job," she said. "It's a big job to investigate these claims."

A high bar

Of 326 charges reviewed by the North Dakota Department of Labor and Human Rights in the 2013-15 biennium, 211 were found to have no probable cause.

Findings of probable cause mean the department believes there is reasonable evidence that discrimination occurred. When probable cause is found, claimants are issued a notice of their "right to sue" and have 90 days to file a federal civil action against the employer.

"It's not a final finding in terms of the person's rights, because they still have the right to sue in court if they do so within 90 days of the administrative finding, and they can sue in court regardless of whether the agency found probable cause to believe discrimination occurred," Jackson said

The lack of success for claimants is not surprising, because many do not have lawyers, she added.

If the right forms and relevant facts are not brought before the agency, the chances of filing a successful charge plummet. But even for those with their paperwork in line, the bar of proof is set high.

"There's lots of case law all over the country that is not good for employees and that can support a finding that conduct in the workplace that is sexual and demeaning, and even involves some touching, doesn't rise to the standard," Jackson said.

The North Dakota Department of Labor and Human rights tries to solve issues using informal mediation between sides.

"They're trying to offer this as a first step, even before an investigation, that saves resources and, depending on the situation, in theory it could help the employee stay employed and the employer understand its obligations under these laws," Jackson said. "That's really a best case scenario, and it doesn't always work out that way."

Jackson said filing charges of discrimination is a tool for employees who might not have the resources to hire their own attorney and who want to assert their rights through the administrative route.

"If you want to assert your right to a workplace free of sexual harassment based on federal law, you have to file; it's a mandatory first step toward, eventually, a lawsuit," Jackson said.

But the number of people who report sexual harassment is much lower than the number of people who experience it. Jackson said 70 to 90 percent of employees who have suffered harassment do not file anything.

"It's easy to find examples of cases with really vulgar, inappropriate conduct in the workplace that were found to not be sexual harassment or racial harassment," she said.

Types of charges

In fiscal year 2016, which ran from October 2016 through September 2017, national charges of discrimination were 35 percent for racial discrimination, 31 percent for disabilities, 29 percent for gender-based discrimination, 23 percent for age, 11 percent for national origin and 4 percent for religious discrimination. Nationwide, employer retaliation accounted for 46 percent of charges.

North Dakota's low population causes statistics to vary widely, but the overall number of charges filed in the state has seen a noticeable jump since 2012, when workers packed into western oil fields. In fiscal year 2009, just 22 discrimination charges were filed in North Dakota. By 2015, the state had 101 charges filed, before dropping to 81 in 2016.

In 2016, 28 percent of North Dakota charges were based on race, 36 percent on gender, 6 percent on national origin, 16 percent on age and about 46 percent alleged disability discrimination.

"One of the reasons for this small amount of people who are willing to stand up and assert their rights is because there is an awful lot of retaliation," Jackson said.

Employer retaliation accounted for 52 percent of North Dakota charges in 2016.

Retaliation is also protected against under the federal law, and it's the most likely element to be proven by claimants because there is more likely to be a paper trail. If someone complains about an issue in March and gets fewer shifts in April, it can make retaliation more clear.

Minnesota charges have decreased slightly in recent years, from 1,263 in 2009 to 892 in 2016. This year, about 43 percent of Minnesota charges were filed for racial discrimination, its highest percentage since 2009. Gender discrimination accounted for about 26 percent of charges and national origin was cited 20 percent of the time. Discrimination over religion made the most notable change, rising from 5 percent of charges in 2015 to 11 percent in 2016. Minnesotans cited age discrimination in 22 percent of charges and disability in nearly 36 percent of charges.

"I think the upswing has been in disability-related discrimination claims," Jackson said.

Nationwide, disability charges have gone from making up around 20 percent of charges in 2000, to more than 31 percent today.

In North Dakota, nearly 46 percent of charges filed cited disability discrimination, up from about 27 percent of charges in 2013.