EEOC’s dubious statistics debunked in Burger King sexual harassment case
April 27, 2005The EEOC tries to get the most bang for its buck. That’s good, since it’s our buck.
This salutary principle makes large-scale class litigation very attractive to the agency (as if it’s not lucrative enough for private attorneys).
In both public and private sectors, attorneys pursuing class employment claims have a love affair with statistics. Of course, we know about lies and statistics.
Here’s a nice example.
The EEOC filed a pattern-and-practice claim against the owner of 350 Burger King restaurants in 13 states, relying on harassment allegations of 511 women who worked there over an eight-year period.
Let’s see, I’m feeling too lazy to use a calculator, so let’s just eyeball this one and use some grade-school math.
Looks like (very roughly) one-and-a-third (4/3) complaints per location (511/350). Divide by eight years (4/3 x 1/8 = 4/24 =1/6=roughly 17%) per store per year.
That’s a 17% chance of ONE incident at a given store in a given year.
[Update: I used a calculator -- and it's actually 18.25%]
The losing EEOC attorney’s position:
There’s a pattern and practice because “women reported harassing incidents at 206 of the 350 restaurants.” “If that’s not a pattern and practice, I don’t know what is,” she said.New York Law Journal (via law.com): “EEOC Charges Dismissed Against Burger King Owner” by Daniel Wise, reporting on Equal Employment Opportunity Commission v. Carrols Corp, 98-1772.
OK, so over eight years, between a half and two-thirds of the stores had at least one incident.
Call me jaded, sexist, or whatever, but I think there’s a “background radiation” level of sexual harassment claims that will occur no matter how hard management tries to train, monitor, etc.
Why? Because of human nature, hormones, misunderstandings, and yes — even the occasional false claim to get an unpopular boss fired.
This background level of unavoidable residual harassment will vary with the type of work, working conditions, degree of close supervision, turnover, and employee demographic.
Here’s the recipe in fast food. . . Take a minimum wage crew with high turnover (if you’re fired for harassment you can just move down the street to another fast food joint).
Add a high ratio of young singles (conduct that might be harassment if unwelcome might have a bang of a payoff if welcome).
Mix with close quarters in kitchen and counter-area, and supervision by green managers barely a notch above the rest. . .
Simmer and stir often.
What do you get? A bunch of sexual joking, flirtation, propositioning, and bumping (intentional and accidental).
Don’t believe me? Look where these kids are coming from (high school).
An American Association of University Women study, “Hostile Hallways: Bullying, Teasing, and Sexual Harassment in School (2001)” [.pdf] found that:
Eight in 10 students (81%) experience some form of sexual harassment during their school lives; six in 10 (59%) often or occasionally; and one-quarter (27%) often.
You think a harassment policy and training’s gonna drop 59% to absolute zero? Whatcha smokin’?
The bottom line is that after the above math exercise, not worthy of the term “statistical analysis,” I am unimpressed with the EEOC’s numbers, and suspect the 17% chance of having a harassment incident in a given year at a given fast food location is probably close to the unavoidable “background radiation” level for the population involved.
The judge obviously saw it as I do. He sliced and diced the numbers differently, though.
He compared the number of incidents to the 90,835 women who worked at the Burger Kings during the eight-year period, finding only about 1/2% of the workforce had issues, compared to about 25% in other cases where pattern and practice claims were allowed to proceed.
The EEOC had two other major problems: 1) almost 1/3 of the women had never complained to their supervisors; and 2) the employer investigated 159 harassment complaints, terminating 42 employees, suspending 18, demoting 2, and issuing 34 written warnings. . . not exactly a head-in-the-sand employer.
I went to do a little research on this Burger King case, and it sounded vaguely familiar. When I Googled the case name, this post of mine from last year came up third, after two listings of the current story cited above. Did someone say Google loves blogs? (Indeed, this guy did, and very eloquently indeed!)
I’m not saying don’t do everything in your power to “prevent and correct” harassment, in the Supreme Court’s famous words.
I am saying let’s all try to keep some perspective.
I’m also saying congrats to the winning lawyers for a job well done, and a big friendly, nonharassing pat on the back to the company for having the —-s [slang for male body parts that someone might claim would be sexual harassment if mentioned in the workplace] to hang in there and not roll over and pay millions just to get the EEOC off its back.
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Comment by InHumaneResources
Is the EEOC serious? Who is out there making sure they aren’t wasting my tax dollars? Obviously nobody. I agree - more companies need to stand up to those guys and not settle.
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