In getting ready for my court date, I have been off my daily routine here. So if you check me every day, sorry.
As I mentioned in the earlier post, the attorney for IBM raised a slew of objections to my filing in February of this year. One that I am confident is meritless is [on] the main Civil Rights count (Title VII and ADEA). Actually all 11 objections are meritless, but they have their degree of explanation. I want to talk a bit more about the first one (which is repeated as the ninth one in those 11 from the other day): objecting to Title VII.
The shorthand for the workplace discrimination piece of the 1964 Civil Rights Act is “Title VII”.
As you should know if you’ve been following here, the American 1964 Civil Rights Act prohibits discrimination in the workplace, as long as the workplace fits the definition of the act. In general, this is an establishment with more than 15 people, and with certain other attributes. The 1964 act prohibits discrimination based on race, sex or national origin–these are the main three. [There is of course, ethnicity and religious affiliation covered by the act, but I’m not sure how much court action comes from these.] As a point of trivia, it does not prohibit based on sexual orientation, but a lot of state statutes do. There have been amendments to the act along the way, and the 1991 one is the one that I have been researching.
What I sent to the New York office of the Equal Employment Opportunity Commission (EEO) in November 2008 was an administrative charge based on Title VII, and something called the Age Discrimination in Employment Act (1967 ADEA act). Before I did this, though, I raised the concern with the Human Resources division within IBM itself! I did go to law school, I am interested in areas of justice and civil rights, but I am not keen on litigating. You only do it if you have to. My philosophy is that the other side basically decides if you are going to litigate. Unfortunately, with a big company and near-bottomless resources, the big company litigates every point.
So the history of this one part of the complaint is that the EEO worked with it for almost two years (22 months). During this time, IBM did nothing but delay and make excuses. This was the pattern from the original phone call to Human Resources through to when the EEO finally got someone within IBM to give a substantive response.
I say “substantive”, because the first response IBM gave was a jurisdictional objection: they said that Title VII did not apply to their affiliate’s operations in Japan. This apparently had been the law up until the 1964 Civil Rights Act was amended, in 1991, to include the extraterritoriality feature that I spoke about in my last post. So, for 20 years now, IBM Corporation in Westchester County, New York, has been subject to Title VII in its operations at IBM Japan. The key here is that IBM Corporation “controls”–as defined by the statute—IBM Japan.
IBM’s 2009 objection to the New York office of the EEO was that IBM Japan is not controlled by main parent IBM. But, if it were true that a big “globally integrated enterprise” as IBM claims to be, did not “control” IBM Japan, then practically the 1991 amendment would be dead letter. (What foreign branch of an American company would be controlled by the parent if IBM’s ones are not?)
The EEO agreed with me, but not after first doing their own research. I left it in their hands, because they are–as I’ve said–the ones with the experience to investigate. They know.
The rest of the time, from early 2009, was IBM delaying them [EEO] with excuse after excuse. Finally, EEO came back in November of last year with an “unable to determine” response. Not jurisdiction–unable to determine discrimination within its jurisdiction. If you’ve been following, the game became one of IBM suggesting that there were mistakes and misunderstandings, such that it would be impossible to prove discriminatory intent. You need that proof of intent (as preponderance of the evidence) in order to prevail on a Title VII claim[, where it’s disparate treatment. I know that disparate impact doesn’t require intent.]
So this failure to dialogue, since even before October 2008, has been a recurring theme. Stall and delay has been another theme. It’s like trying to deal with the contemporary Republicans in the U.S. Congress.
I am fairly confident that EEO had it right about jurisdiction, so I, then, of course had it right at the get-go. When IBM sends a lawyer in, in 2011, to argue jurisdiction (as a 12(b)(6) merits claim) again, what this is telling the world is that IBM refuses to honor one of the laws passed by Congress, with multinational companies like IBM expressly in mind. They are basically asking the U.S. District Judge to gut the 1991 amendment. Maybe the judge will do this. It would be quite a thing.
What is sad, though, is that we’re talking about a clarification of United States civil rights law that is 20 years old this year. Just because it’s not posted on the employee cafeterias of every foreign branch of American companies only means that many covered employees don’t know their rights. Just because a few do, however, doesn’t mean a company should still disrespect the law, especially when it is an issue.
[Update: Per TrebleKickerEsq.’s comment below, I want to point out that if you support civil rights, you have to talk about civil rights laws. The laws are living—they are not dead letters in cobweb-covered binders. When Congress reasserted extraterritoriality of the Civil Rights Act, this was meant for people to be able to have, use and, in 18th century language, “enjoy”. This is basic law that we should discuss.]