What do EEO-1 reports tell you about discrimination in a hiring case?

Probably not much.

EEO-1 reports from the EEOC provide a breakdown of how many people of different racial, gender, and age groupings are hired into different job positions within a company. The detailed reports, which most times the public will not have access to, provides a breakdown by employer. The more aggregated reports, which the public generally has access to, provides a breakdown at a higher level, such as at the zip code level or higher, by industry type. So ultimately the EEO-1 reports present the composition of the employer at a given point in time, usually a year.

In contrast, in a hiring case the plaintiffs are usually alleging that the defendant failed to hire
them because of their age, race, gender or other characteristics. In these types of cases, statistical analyses that compare the individual employer’s hiring numbers to EEO-1 data are common.

However, the EEO-1 report generally makes a poor comparison.

Instead of focusing only on the employer/defendant’s hiring decisions, a firm’s EEO-1 report reflects the composition of the workforce which is the result of hiring decisions over a much longer period than are issue in the typical hiring discrimination case. In short, the composition of an employer’s workforce is not necessarily representative of the composition of the hires in any given year, or the composition of the applicants available for hire for any given year.

For example, consider a hiring case where there are allegations of age discrimination. In this example, the employer starts with a workforce of 200 employees that are under the age of 40. and zero that are 40 years of age or older. For this firm, it’s workforce composition is 0% 40 or over.

If during the following year the firm hires 20 employees and they all 40 years of age or over, the firm’s composition of older worker hires is 100%. However, the overall composition of the workforce is now just 9.09% that is 40 years of age or older. That is 20 workers who are over the age of 40 out of a total of 220 employees.

The workforce composition of 9.09% of older workers does not adequately represent that the firm’s composition of hires of 100% older workers in that year. Therefore, in this setting, the composition of the workforce is not an appropriate measure to analyze the hiring decisions in any given year.

Undocumented work is illegal work in Mississippi

"The Mississippi bill, SB 2988, ...will make it a felony for an undocumented worker to hold a job.

Anyone caught "shall be subject to imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years, a fine of not less than one thousand dollars ($1000) nor more than ten thousand dollars ($10,000) or both." Anyone charged with the crime of working without papers will not be eligible for bail.

The law is set to become effective for large employers on July 1." David Bacon, Apr. 20, 2008.

What does this mean for damage claims (such as injury and wrongful death) brought by undocumented workers?

Undocmented workers only hurt other undocumented workers new research says

In "The Labor Market Experience and Impact of Undocumented Workers" by
JULIE L. HOTCHKISS and MYRIAM QUISPE-AGNOLI....

The authors find that a greater share of undocumented workers in an industry has a statistically significant negative impact on the wages of documented workers. In addition, undocumented workers have significantly lower labor supply elasticity, likely as a result of their limited employment and grievance opportunities. Furthermore, the inflow of undocumented workers does more to displace earlier hired undocumented workers than it does to displace documented workers.


This paper differs from of undocument worker studies, like Steward, Raub and Elliott (2007), that use survey data like the Mexican Migration Project (MMP), in the way in which
unauthorized individuals are identified. The paper uses State for GA administrative data to identify invalid social security numbers used by employers. The downside is that the their is little person level data so wage penalty equations are ran at the industry level.

See: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1109169

Calculating economic damages when death is imminent

Q: In a case where a person is diagnosed with a terminal condition, such as mesothelioma – and who has 12 to 24 months to live at the most. Would you treat this as a personal injury case or a wrongful death case?

[Note: The issue revolves around the fact that in personal injury cases, the economist would need to remove personal consumption from the damages. Personal consumption factors would make the final damages number anywhere from 10 to 40% lower in a PI case than a wrongful death case]

A: Here are some responses from a popular forensic economics list serv:

1. you don't have a choice. He is not dead. What you have is a 'lost years' case, assuming the defendant was the cause of his current condition.
2. Yes. Deduct consumption starting at when the docs say he is likely to die. Or give alternatives based on l. e. of both 12 and 24 months. ( Try to get a doc's opinion on how long he is likely to be able to work, perform household services, etc. If unable to get that, assume conservatively that he will be able to keep going until he dies
3. ....How one defines short is problematic, but the FE need not be concerned with this definition if GIVEN a probability of death within two years. As has been repeated on this list several times, one way to avoid a plaintiff bias in such a case is to run two separate but linked columns on your spreadsheet with a crossover to ascending and descending column for values during life and death in any given year....

New Wage and Hour litigation against Pilgrim's Pride

Michael Hassen, of Jeffer Mangels Butler & Marmaro LLP , a defense firm in California reports:

Arkansas court conditionally certifies, FLSA Class Action alleging failure to compensate workers for time spent donning, doffing and cleaning safety and sanitary gear ...

In re Pilgrim’s Pride Fair Labor Standards Act Litig., ___ F.Supp.2d ___ (W.D. Ark. March 13, 2008) [Slip Opn., at 1 and n.1]. The class action covered workers at 21 plants located in 10 states, and covered “tasks on the chicken processing line, such as slaughtering, cutting, deboning, cleaning, and packaging.”....

Best employment interrogatory questions

Economic damages in employment termination cases

Getting information on the jobs that the individual worked at and applied for after the defendant terminated them; helps the labor economist work up the damages and determine what types of jobs may have been available to the plaintiff. In addition, the information is used to assess the plaintiffs attempts to pursue available job opportunities i.e. mitigate their damages.

Here are some questions that are helpful in getting that information

INTERROGATORY NO.1

Identify each employer for whom you worked with since last employed by the defendant

INTERROGATORY NO.2

If you are no longer employer by an employer identified in response to interrogatory no.1, state when the employment ended and why

INTERROGATORY No.3

State the job duties, wages and responsibilities that you had at each employer identified in Interrogatory No.1

INTERROGATORY No. 4

Describe and state how much earned from any self-employment since leaving the defendant

INTERROGATORY No.5

Identify anyone with whom you have sought employment since you were last employed by the defendant

INTERROGATORY No.6

State whether you rejected or declined in accepting any offer of employment since last employed with the defendant.

Once the information is received, we should check (at deposition or by interview):

* If the list of jobs that the plaintiff provided includes all the jobs or is it just a representative job list? This is important because now the list can be used to determine how many jobs the person applied for and if the number of jobs searched for are consistent with the number of jobs a typical person will apply for when they are looking for a job)

* For any jobs that were turned down make sure that the plaintiff has listed that reason and the wage that would have been received by the person

* List and make sure that no other jobs have been received since the interrogatory answers

* Get the plaintiff to list out all programs, training, and capabilities that they possess. For example, if the plaintiff is a computer support person, get the full list of Microsoft certifications, list of software that the person can support (for example the windows products line), details on the networking capabilities they have (for example can they set networks up (if so, what type LINUX, Novell, etc.) or do they focus on making sure the computers talk to the network) also make sure that questions are ask to see what level or types of classes the person is currently pursuing.

Bayesian v. Frequenist analysis of employment discrimination

In the article 'Hierarchical Models for Employment Decisions', Joseph Kadane and George Woodworth (Journal of Business and Economic Statistics, April 2004, Vol 22. No.2) advocate the use of Bayesian analysis to assist the trier of facts in the determining if the employer had discriminated against the protected groups of workers.

Conceptually, the Bayesian statistical analysis approach turns the traditional approach to analyzing statistical evidence of discrimination upside down. The traditional approach, or what statisticians refer to as the frequentist approach, begins by assuming that no discrimination has occurred and the employment decisions were made in a age, race, or gender neutral manner. From that point, the data is used to determine the likelihood that a age, race, or gender neutral employment process would have generated the employment outcomes that are at issue in the lawsuit.

In short, the frequenist approach ask:

'Assuming that the defendant is utilizing a age, gender, or race neutral employment process, what is the probability that the unbiased employment process could have generated the observed employer's employment decisions?'


If there is a very small probability that a neutral employment process would have generated the outcome then it may be inferred that discrimination has occurred.

The Bayesian approach turns the approach around and upside down The Bayesian approach ask the question:

'Given that we observe the defendant's employment decision outcomes, what is the likelihood that the employment decision was age, race or gender neutral?'

If there is a small probability that the data is consistent with a neutral employment process, then it may be inferred that some type of discrimination has occurred.

What are the pros and cons of each approach? To be discussed....!

Wage and hour developments: 1 for the plaintiff - 1 for the defense

(As reported by Jackson Lewis employment section)

Treble Damages Now Mandated for Violation of Massachusetts Wage and Hour Laws
On April 14, 2008, the treble damages bill (Senate Bill 1059) became law. This new law makes awards of triple damages mandatory for prevailing plaintiffs in civil actions brought pursuant to the Massachusetts Wage and Hour laws. Full Story >

California Legislature Seeks to Ease Penalties for Meal and Rest Period Violations
In the year since the California Supreme Court decided Murphy v. Kenneth Cole Productions, employers have been hit with a surge of class actions for violations of California's meal and rest period laws. Full Story >

Majors and starting salaries

Wall Street Journal reports the average starting by major.

http://mungowitzend.blogspot.com/2008/04/4-with-bullet.html

Daubert watch: Admissible police practices testimony in a personal injury case

From: dauberttracker.com


4. Bates vs. King County
Date of Decision: 5/9/2007
Jurisdiction: Federal
Docket Numbers: C05-1348RSM
Court: Washington, Western District
Judge(s): RICARDO S. MARTINEZ, UNITED STATES DISTRICT JUDGE.


Case Summary:

Plaintiff, Byron S. Bates, filed an action for damages and municipal liability against defendants King County, et. al., The plaintiff alleged that he was shot and injured at the time of his arrest by a deputy and asserted that King County failed to sensitize its police personnel on best police practices. The plaintiff proffered the testimony of Lee Libby, as an expert witness in police practices.The defendants filed a motion to exclude the testimony of Mr. Libby.

The court found that Mr. Libby had applied reliable methods to collect and analyze information related to this case and had followed proper procedures for a police practices expert.The trial court held that Mr. Libby's testimony would help the trier of fact to assess the reasonableness of the deputies' actions and the internal investigation performed by King County. The trial court observed that the probative value of Mr. Libby's testimony as to proper police officer and police department conduct was not substantially outweighed by any unfair prejudice, potential for confusion of issues, or danger of misleading the jury. Motion to exclude denied.

Can economic damages from a commercial damage calculator be used in court?

According to Determining Economic Damages by Gerald Martin, probably not. See:


UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
47 F.3d 292; 1995 U.S. App. LEXIS 2321; 41 Fed. R. Evid. Serv. (Callaghan) 351
December 16, 1994, Submitted : February 9, 1995, Filed

Appellee was a seaman who served as a Second Mate aboard the S/S Pomerol, an oil tanker owned and operated by the appellant. She filed the underlying action under the Jones Act, 46 U.S.C. §668, and general admiralty and maritime law to recover damages for injuries sustained in separate incidents aboard the ship. During the course of a six-day jury trial, appellee offered into evidence a “Future Damage Calculator” marketed and distributed by the “Lawyers and Judges Publishing Co.”

This exhibit is a slide rule-type device which has life expectancy and work life expectancy tables on [**2] one side, and a “present value” table on the other. See addendum. The exhibit was offered without being identified or sponsored by any witness.

The [**4] issues on appeal are whether it was error for the district court to admit the Future Damage Calculator into evidence, and if so, whether the error was prejudicial to the appellant requiring reversal. The abuse of discretion standard governs our review of a district court’s decision regarding the admissibility of evidence.

The record reveals no foundation being laid for the exhibit itself or its method of calculation. No evidence was presented as to what would constitute a “fair rate of interest.” In short the jury was given this tool to do with as they would. The appellant was not given an opportunity to challenge the author’s expertise or methods of calculation. The exhibit is all the more troubling because [*296] the name of the publisher, “Lawyers and Judges Publishing Co.,” suggests that the judiciary has vouched for it. The submission of this exhibit into evidence as something resembling expert testimony without foundation, qualification or instruction was an abuse of discretion.

For the reasons stated herein, we reverse the district court and remand this case for a new trial on the issue of damages.