Absinthe
Living my life as an exclamation, not an explanation...
It should be noted by readers that Absinthe is not a lawyer,
and anything posted in this blog should not be used as a
substitute for professional advice from a lawyer
After writing the last post, I realized it was time to check the date on the letter that had been sent to me last Fall by the Department of Justice Office of Civil Rights; I had contacted the DoJ OCR because supposedly they are the go-to people if you have a complaint about Title IX in federally funded research programs. After a long time mulling my complaint over, they sent me a letter last Fall saying that they had forwarded the complaint on to the Department of Energy Office of Civil Rights, and that I would be hearing from them "soon".
Under Title IX, the DoE OCR has 180 days in which to respond to my complaint. I checked today and their 180 days is up. So I phoned them today (this isn't the first time I phoned their office regarding my problems with Fermilab's non-compliance with Title IX, and I wasn't expecting much...dealing with their office always gives me a headache).
What subsequently ensued was one of the most exasperating discussions I have had with anyone in this whole freaking saga; the man I was talking to not only claimed to know nothing about my complaint, he had no idea what Title IX was. And he wasn't joking or pretending. He really didn't know.
So I explained to him that I had complained to the Fermilab Equity Office way back in 2006 about gender inequities in the allocation of career advancement perks by the lab administrators. I told him that I had gotten into a long back and forth discussion with the lab and their co-counsel regarding whether or not they were beholden to investigate my complaint under Title IX. I told him I eventually won that argument and got an admission from them in writing that they had to comply with Title IX, but then they ignored my complaint. And so after the 180 day time period was up for them to investigate the complaint I contacted the Department of Justice, who subsequenty forwarded my complaint on to the DoE OCR.
Long pause...
Then he said "are you sure you aren't thinking of Title VI?", and I said no, Title VI pertained to discrimination in things like medicare, not federally funded research and education. Then he said "you must mean Title VII", and I said no, that law pertains to employment discrimination...the discrimination that is occuring at Fermilab is happening to both employees and visiting research scientists at the lab. Only Title IX protects those people from the type of endemic discrimination I uncovered in my study.
So then he said "Oh wait, isn't this the law that girls' sports teams used?", and I said yes, that's the one, but it isn't a law that is specific to athletics...it applies to any educational or research program that receives federal funding. So then he said "But Fermilab isn't a university". At this point I offered to forward him the relevent sections of Title IX that would make it clear to him that Title IX applied to our national labs if he would give me his e-mail address.
Long pause...
Me; "you have an e-mail address don't you?". Him; "Yes".
Long pause...
Me; "well, can I have it?" (and then he gives it to me, clearly reluctant that he is about to be enlightened about Title IX).
So then I asked him how it was possible he had never heard of Title IX when the Government Accountability Office had come out with a report in 2004 (GAO report GAO-04-639) that specifically pointed to the Department of Energy national laboratories (specifically naming Fermilab among the laboratories) as a federally funded research endeavour that had to do more to ensure compliance with Title IX. And that his office had written a letter to the GAO (which is included in the report...see page 42) to assure the GAO that the DoE was doing everything it could to ensure compliance with Title IX. I quote:
Over the past several years, the Department of Energy (DoE) has acted aggressively to ensure that applicants and recipients of Federal financial assistance are in compliance with Title IX, as well as other civil rights statutes and regulations that prohibit discrimination by recipients of Federal financial assistance. DoE's Office of Civil Rights and Diversity (OCRD) has developed a comprehensive compliance monitoring and oversight program consisiting, among other things, of issuing a DoE policy [sic], providing policy guidance, training, pre-award reviews, and outreach and publication.
blah blah blah and a bunch of other stuff going into great detail about how all their field offices work hard to ensure Title IX compliance in all their federally funded research programs, etc etc. Read page 42 of the report if you want the full statement....
He said he had never heard of that report. I asked if there was anyone at his office who had, because someone had to have written it. He said he would "ask around" on Monday and get back to me.
So then, trying to get him back on topic, I asked what exactly was going to be done about my complaint regarding Fermilab. Because that was the whole point of my phone call.
Long pause...
He asked "how many people are involved here?", and I said my study involved around 60 people, but did it really matter? Fermilab was totally not in compliance with even the simplest aspects of Title IX. There were two issues at play here, one being the fact that my original complaint was never addressed, and the other being that Fermilab has showed no intention of addressing any complaint brought under Title IX.
He said he would "ask around" about what should be done and "get back to me".
I'm waiting with bated breath.
7:33:14 PM
This is a post about the Fermilab Equity Office. It is intended mainly as a resource for people who either work for the lab, or work at the lab as visiting research scientists (but are employed by another institution). But much of what I say here is applicable to any workplace (so listen up).
The Fermilab Diversity Council and Equity Office are both headed by Diane Engram. If a person is a victim of discrimination or harassment at Fermilab, they should file a complaint with the Fermilab Equity Office. Ideally, the complaint should be handled in a timely fashion and the matter settled to the satisfaction of both parties. That is how a human resources department should work.
Be aware that the primary reason for the existence of the Fermilab Equity Office is to avoid lawsuits against the laboratory. This is true of any human resources department at any workplace, and I have mentioned in past posts that anyone who is a victim of discrimination or harassment should be aware that HR departments are there to protect the employer, not you. No matter how nicely they may speak to you, it is critical that you understand that.
Oftentimes "avoiding lawsuits" doesn't mean "fixing the problem", but "getting rid of the complainant". This is unfortunately true of far too many companies; employers know that it costs an awful lot of money for a complainant to file a lawsuit, so many employers will take the "easy" route and either essentially ignore complaints, or (even worse) get rid of the complainant through a variety of means.
If you are a victim of discrimination or harassment at Fermilab (or any other work place), I hope that your dealings with the Equity Office are fruitful and satisfactory. Even if your compaint appears to be well received however, you should be very careful to ensure that you have created a paper trail of evidence. This is pretty easy to do in quite benign ways...for instance, if you have conversations with someone regarding the harassment/discrimination, e-mail them your summary of the conversation. Ask in the e-mail if they have anything to add. If they phone you up or come to your office to discuss it some more, send them another e-mail with a summary of that conversation too. Never let discussions of the problem happen only verbally. Print out at least two copies of the e-mail(s) and save them in two separate places (at least one of the places should be some private place like your home). If one of your colleagues witnesses one of the incidents of discrimination or harassement, send them an e-mail (maybe even on another subject) and try to work the fact that they witnessed something into the text. If harassment or discrimination continues, e-mail the perpetrator(s) and tell them to cease and desist. And make sure to use the words "I am being harassed" or "I am being discriminated against" in your e-mail, and also in your complaint to the Equity Office (more on why this is important below). Again, always print out copies and save them. E-mail is a wonderful, wonderful way to create paper trails. I cannot stress enough the importance of a paper trail...creating one doesn't mean you have any intention of suing; it just really helps to protect your best interests if things ultimately have to go that far.
The simple act of creating a paper trail (and stating, in writing, the magic words "I am being harassed" or "I am being discriminated against") can make your life a lot easier should things go south in the complaint procedure process.
When you complain, make sure you do so in writing (e-mail or actual letter). Specifically state in the letter that (with the letter) you are filing a formal complaint of discrimination/harassment. Say you are complaining under Title VII (if you are an employee) or Title IX (if you are a visiting research scientist). I can assure you that using the names of those laws in your complaint will make it clear you are more savvy than the average complainant. Ask the Equity Office in the letter for a detailed description of their procedures for investigating such complaints, and how long it will take for them to investigate your discrimination/harassment complaint. If they don't get back to you within a few days with answers, ask again, and keep asking until you get answers. I cannot stress enough that you need to keep using those words "discrimination" (or "harassment") in your complaint letter to make it unequivocably clear that is what you are complaining about, and that you are formally complaining about it. Paper trail, paper trail, paper trail...
There are a number of ways the complaint procedure process can go badly, and I have seen them all at Fermilab. The first is that they may tell you that nothing can be done to address the problem. This is especially true if it is a visiting scientist (ie; not an employee of the laboratory) who is complaining about discriminatory procedures at their experiment, or compaining about another visiting scientist harassing them. If you are a visiting scientist who has been harassed or discriminated against at a federally funded national laboratory, you should know that there is a law called Title IX which specifically says that all federally funded research activities must be free of discrimination or harassment. You should thus state in your complaint to the Equity Office that you are aware that you are protected under this law, and you know that the Equity Office is obligated to investigate and resolve your complaint under this law. If they get back to you and say they aren't obligated to comply with this law, send me an e-mail (absinthes_blog REMOVE_THIS_PART at hotmail.com); I have it in writing from the Equity Office that they know they have to comply with Title IX because I hashed this issue out with them and their lawyers in 2006.
Another way the complaint process might go badly is if you are retaliated against after you complain. This is all too common but can be insidious, and extremely difficult to prove in court sometimes. Here is where a paper trail is crucial; if you had glowing recommendations before the complaint, but suddenly after the complaint your work comes under increased scrutiny, you are being retaliated against. Even if you didn't get glowing recommendations before, but suddenly your work comes under increased scrutiny (especially relative to the scrutiny given to that of your co-workers), then you are being retaliated against. Do not delay in complaining again to the equity office about retaliation, and make sure you use the magic words (in writing) "I believe I am being retaliated against because of my original complaint". At least three women I know of at Fermilab were demoted upon complaining. At least two of them had their work suddenly come under increased scrutiny, and both were ultimately fired. There may very well be more women at Fermilab who had this problem...the only reason I know about the three women I mention is because I worked with one of them, and the other two filed lawsuits against the laboratory.
Retaliation, when it can be proven, is taken very seriously by the courts. In fact the courts take it more seriously than discrimination or harassment. There is extensive case law that has supported plaintiff retaliation claims, even when their original claims of discrimination were proven to be unfounded (!). Retaliation claims often carry much larger cash damages than discrimination or harassment claims.
If things go badly for you after you complain, you can file a complaint with the Equal Employment Opportunity Commission (EEOC). Note that only employees of the laboratory can do this (ie; not visiting research scientists who aren't paid by the laboratory). You can get a lawyer to help you with filing an EEOC complaint, but be warned that it will cost you around $10k to $25K to retain a lawyer. You can write your own EEOC complaint for free if you like, following my tips here. It isn't hard.
An EEOC complaint is a necessary precursor to filing a federal discrimination lawsuit under Title VII (as I mentioned before Title VII protects employees, Title IX protects visiting scientists...if you are a visiting scientist, I will describe below how to file a discrimination lawsuit under Title IX). Be aware that the EEOC is particularly careful to investigate complaints coming from women who are in professions where females are historically very under-represented (like physics for instance). So, if you take the time to write a well composed complaint, chances are good the EEOC will take a serious look at it. Make sure you mention in your complaint estimates of the fraction of women at the laboratory, and estimates of the fraction of women in the top echelons of the laboratory administration. Also, if you took my advice above, and put in writing to your supervisor and/or the Equity office that you felt you were being harassed or discriminated against (or retaliated against) be sure to state that clearly in the EEOC complaint (and attach a copy of that e-mail to the EEOC complaint for good measure). I was asked by the EEOC and numerous lawyers whether or not I had ever stated in writing that I was being discriminated against when I started the first steps towards my own lawsuit.
Be aware that there are very strict time limits for filing an EEOC complaint. In most states you only have 180 days after the discrimination occured. If you feel things aren't going well with the way the Equity Office is dealing with your complaint, don't let them dwadle until your statute of limitations expires. You can file your EEOC complaint while the Equity Office is still investigating if you feel they are not addressing your concerns adequately. In fact, if you file an EEOC claim, and then you are retaliated against, your employer is very likely to find themselves in hotter legal water than they would be if you had complained to them, were retaliated against, and then you filed the EEOC claim.
As I mentioned above, visiting scientists at the laboratory cannot file an EEOC claim, because EEOC only considers claims that fall under the Title VII federal anti-discrimination law. Title IX is the federal anti-discrimination law that protects visiting scientists at the lab (even foreign ones). In order to file a complaint under Title IX, you need to contact the Department of Energy Office of Civil Rights. Unfortunately, I can only wish you good luck with that, because they ignored my complaint about the laboratory not being in Title IX compliance. My complaint was about my old experiment, Dzero, allocating three times more conference presentations to male postdocs vs female postdocs; so my complaint was on behalf of a lot of people, not just me. Under Tite IX the laboratory is supposed to post boilerplate on its website that says it is Title IX compliant, and give instructions on how to complain under Title IX if you have been discriminated against or harassed. It is also supposed to have similar postings around site. Fermilab doesn't do any of these things. In fact, if you Google Fermilab and Title IX you will come up with my blog, not anything on a Fermilab web site.
Luckily, filing a complaint with the DoE OCR is not a necessary precursor to filing a federal discrimination lawsuit under Title IX. Under Title IX you are thus likely better off to just go straight to a federal lawsuit rather than complaining to the DoE OCR. The statute of limitations for filing a Title IX lawsuit in Illinois is two years (in other states the Title IX statute of limitations matches that of the statute of limitations for civil torts). In addition to the much longer statute of limitations compared to Title VII, Title IX also has no cap on damages you can be awarded (Title VII caps at $300,000 for compensatory damages).
Because of the culture of silence at the lab, women there don't know if their female co-workers have compained to the Equity Office; there are very real risks of career repercussions if you are too vocal about complaining. I know that I kept my head down while I was at the lab and didn't talk much to anyone about the discrimination I was having to deal with at the hands of my employer and at the hands of the administrative practices of my old experiment. Unfortunately, while I was there I never talked with other scientists about my statistical study that showed the gross gender inequities in how conference presentations are allocated at the lab. This is a shame, because now none of my former colleagues are aware of it. And yet those administrative practices are still in place. Thus many women are being discriminated against by those same practices and they likely think it is "just them", and not a widespread phenomenon.
4:39:34 PM
Did you know that our Department of Energy funded national laboratories have a higher than average number of Equal Employment Opportunity Complaints (EEOC) filed against them each year? EEOC complaints are a necessary precursor to filing a discrimination or harassment lawsuit under the Title VII anti-discrimination law so a higher than average number of EEOC complaints pretty much means a higher than average number of discrimination lawsuits.
The government was concerned enough about the status of women and minorities at our national labs that they performed a special study, summarized in the Government Accountability Office report GAO-05-190, entitled Information on Personnel Actions,Employee Concerns,and Oversight at Six DOE Laboratories
The report details EEOC complaints filed against six national laboratories. Unfortunately, for reasons not explained, the report did not cover the largest DoE funded national laboratory, Fermilab. The report details all kinds of gender and racial inequities at the national laboratories they profiled.
Based on the demographics provided in the report, the national laboratories profiled employed roughly 35% of people who fell under the category of "EEO-1" employees (ie; people who fall into protected classes under federal anti-discrimination laws, like women, minorities, etc). The fraction of females at the 6 labs was around 28%.
Over a four year period, 187 internal complaints of discrimination and/or harassment were filed at five of the labs (Brookhaven didn't report the number of complaints filed against it), 48 of which became external EEOC complaints. This means that 1/4 of the people who filed internal complaints were pissed off enough to ultimately sue, which to me is a surprisingly large fraction given the cost of retaining an employment discrimination attorney (anywhere from $10k to $25k), and also give the fact that these people risk serious career repercussions for suing. Based on the report, there were a total of around 18,000 employees, roughly 6,300 of whom were EEO-1 employees. This means that the number of EEOC complaints per 1000 EEO-1 employees per year is around 2.
29 of the complaints were brought by women, which means that the labs produced 1.4 EEOC complaints per 1000 female employees per year.
Are these numbers high or low compared to other industries? Well, the EEOC has written reports on the worst-of-the-worst employers in the private sector for generating EEOC complaints per EEO-1 employee. One area of the private sector that generates a lot of complaints is the investment banking industry (as an aside, did you know that many particle physicists who leave the field go into investment banking? The skills used in particle physics are highly applicable to investment quantitative analysis). The EEOC wrote a report about this industry. During the year 2000, this industry employed 149,000 people, roughly 35% of whom were female. In 2000 there were 30 EEOC complaints lodged by females, which means that this industry produced 0.6 EEOC complaints per 1000 female employees per year.
So, our national laboratories produce more than twice the average number of EEOC complaints from females than the worst-of-the-worst employers in the private sector.
But wait, there's more. The GAO report says that over a 6 year period the six labs spent $10 million dollars litigating EEOC claims. By my calculations, that amounts to an average of $140,000 per EEOC claim. The average cost of defending an EEOC/discrimination lawsuit claim is reportedly between $50,000 to $100,000. See the report here for further details. The report was written by a human resources consulting firm, and thus you can bet that the "average cost of litigation" quoted there is an overestimate, because the point of the report is to scare companies into avoiding EEOC litigation. So our national labs spend far more than average litigating each EEOC claim and they generate a much higher than average number of EEOC claims. A bad combination.
Oh yeah, I forgot to mention that the GAO report states that the $10 million quote was likely a gross underestimate, because a number of the pending EEOC complaints had yet to go to trial. A prime reason for the caveat in the report was likely the horrific Brookhaven racial discrimination lawsuit that had yet to go to trial. The compaint detailed things like nooses being left in black employees' work areas, and a fellow employee taunting them by wearing Ku Klux Klan hood.
In fact, not only did Brookhaven have that lawsuit filed against it, it also had another federal lawsuit brought against it when one of the Brookhaven investigators of the original complaint was retaliated against for finding in his report that the original complaint had merit.
Via FOIA requests to the Department of Energy I've been trying for over a year now to determine how much Fermilab has spent litigating EEOC complaints (and subsequent discrimination/harassment lawsuits) over the past five years. So far they have steadfastly ignored my requests despite the fact that I had to complain to the Office of Civil Rights Ombudsman about their refusal to respond to my request. They told the Ombudsman that they would reply to my request, then never did. The only option I have left to obtain the information is to litigate. Which is fine by them, because they have a virtually infinite well of tax payers' dollars to draw upon should I choose to litigate the matter.
Quite frankly, when it comes to compliance with the laws of the land, be they Title VII or the FOIA, the Department of Energy simply doesn't give a damn. Because if people don't like the DoE attitude they can of course sue, but the DoE has infinitely deep litigation pockets to defend themselves. Why should they care?
