Cover Story

Suing the Good Samaritan

After all the high-minded and bipartisan talk heard during the April 27-29 Presidents' Summit for America's Future, it's time to think about some of the practical barriers that still stand in the way of moving welfare recipients into the workforce. Whether it's federal labor law, liability law, or civil-rights statutes, legal red tape puts corporate Good Samaritans in the crossfire. Welfare to work? Not if employers must always first stop in court.

Issue: "Welfare Reform on Trial," May 3, 1997

Teleplus, a small long distance firm in San Antonio, Texas, is exactly the type of conscientious employer President Clinton described in his State of the Union address and planned to discuss at the Philadelphia summit. The president has challenged business owners and nonprofit organizations to hire as many long-term welfare recipients as possible, and Teleplus already hires many low-skilled workers from diverse racial and ethnic backgrounds. According to Mary Gonzalez, the company's secretary and treasurer, Teleplus would happily hire welfare recipients who manifest a desire to work hard and abide by company policies.

Hard experience, though, may cause Teleplus and other businesses to think twice before accepting the president's challenge. Frivolous lawsuits and a maze of state and federal labor regulations will almost certainly discourage well-meaning employers from hiring those who need jobs the most.

Here is an example of one lawsuit that an employer believes to be groundless. Early last year, two black females filed employment discrimination claims against Teleplus with the Equal Employment Opportunity Commission. According to letters filed with the EEOC from a supervisor and a floor manager, one of the complaining workers arrived at work intoxicated, with her speech noticeably slurred. She allegedly addressed telephone customers as &quothoney" and &quotbaby," slapped her supervisor on the buttocks, and called him &quota dirty man." According to another letter also filed with the EEOC, the other employee screamed profanities at her supervisor and co-workers during a dispute over a customer's telephone number.

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Last month, the company participated in a discrimination hearing before a federal examiner. The intoxicated employee contended, among other things, that Teleplus had never penalized a white employee for drinking on the job. Although the commission has not informed Teleplus whether it will pursue the case further or allow the disgruntled employees to file suit individually, Mary Gonzalez estimates the company has already spent over $10,000 in legal fees and other expenses. Her primary concern at this point is whether Teleplus will have to waste considerably more money to defend itself in federal court.

The Clinton campaign to encourage private-sector employers to hire long-term welfare recipients fails to address the need to eliminate onerous labor regulations and groundless discrimination suits. The president has merely proposed allowing employers to claim up to $10,000 in tax credits for hiring long-term welfare recipients. He has also proposed a $3 billion welfare-to-work jobs initiative designed to assist states and local communities to move one million of the hardest-to-employ welfare recipients into jobs by the year 2000. Nevertheless, Mr. Clinton has assured AFL-CIO President John Sweeney that welfare workers will be covered by the Fair Labor Standards Act, the minimum wage, and other labor statutes.

Many legal professionals believe a legitimate fear of discrimination suits and adverse publicity may cause many businesses to refrain from hiring untested and inexperienced workers. &quotAn employer would be foolish to participate in Clinton's program given the prevalence of frivolous discrimination suits," argues Bill Worthy, a veteran trial attorney whose firm represents Teleplus. This is because a plaintiff in a typical civil-rights suit does not necessarily have to prove that an employer intended to discriminate. Using a method called &quotdisparate impact analysis," the employee need only show that the employer's hiring and firing practices have adversely affected members of a protected group. This is true even when the employer uses objective performance criteria to evaluate its workers.

Consider, for instance, the hypothetical case of a drilling company in Louisiana, where 83 percent of welfare recipients are black. The company voluntarily accepts the president's challenge and randomly hires 200 long-term recipients to man offshore rigs. If the company later determines that it must discharge half of the new hires because they lack certain skills or fail to perform according to expectations, the company may find itself defending a civil-rights lawsuit. Even if the plaintiffs unearth no evidence of deliberate discrimination, the law permits them to file suit simply because the layoff disproportionately affects black employees. The plaintiffs may not ultimately prevail, but the firm will still pay thousands, if not hundreds of thousands of dollars, to defend itself in court.

Similar concerns plague employers who hire persons with severe illnesses or addictions. The Rehabilitation Act and Americans with Disabilities Act both prohibit discrimination in employment against persons suffering from AIDS. The statutes also offer fairly broad protection to recovering alcoholics and drug users. Federal law also prohibits discrimination against unwed mothers, pregnant women, and women who obtain abortions.

Of even greater concern to most employers is the confusing array of state and local laws governing employment discrimination. Certain jurisdictions prohibit discrimination on grounds of obesity, educational background, marital status, homosexuality, emotional or mental illness, learning disabilities, and illiteracy. Many states even prohibit discrimination against persons with arrest or conviction records.


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