Have you conducted harassment training for your workforce? And guess what. If the answer is “no”, the EEOC will order you to do it. On their timeline and in their way. This is exactly what happened to the L.A. Fire Department recently. The EEOC just settled a case with them based on one employee’s complaint of sexual and religious harassment and retaliation. In addition to paying the employee just under $500,000, the Department must train its whole workforce. Wouldn’t it be better to determine the timing, content, and audience of harassment training, without the EEOC dictating every step of the way?
About Sindy Warren
USERRA protections expanded to include hostile work environment
In November 2011 President Obama signed into law the VOW to Hire Heroes Act. One of the law’s provisions provides for expanded coverage of USERRA. In particular, it expressly allows for hostile work environment claims under the Act, an issue the courts were previously divided on. This will likely translate into an uptick in USERRA claims. Employers should take care to ensure USERRA protections are included in their policies and procedures, and should make sure supervisory employees are trained on the law’s requirements.
Is obesity a disability under the ADA?
We know that morbid obesity is on the rise across the U.S. It follows that lawsuits alleging disability discrimination based on morbid obesity are also on the rise. Other than in Michigan, though, being obese is not a protected category. But a recent federal court decision held that severe obesity (defined as body weight 100% over normal weight) is covered by the ADA. The EEOC takes the same view. As case law continues to develop under the ADA Amendments Act, expect to see more agreement on this, as more and more physical conditions qualify for protection under the Act. So play it safe and tread carefully when dealing with severely obese employees.
EEOC Statistics for 2011: discrimination charges hit all-time high
According to the EEOC it received just short of 100,000 charges of discrimination in 2011, the most ever. It also collected over $455 million from private employers. And, the Commission resolved more charges than it took in, demonstrating the productivity of its increased staff. The most popular variety of charges? Retaliation, followed closely by race discrimination. Disability and age discrimination claims were on the rise, with alleged ADA violations resulting in the most monetary relief for claimants. The EEOC also saw a fair share of cases under the Genetic Information Nondiscrimination Act (“GINA”) — 245, to be precise — though none of these charges have yet proceeded to litigation.
So what does all this mean for employers? Now is not the time to let up on your legal compliance efforts. If anything, double down on training your workforce (particularly supervisory level employees). A couple of comprehensive sessions on preventing workplace discrimination and harassment are a great place to start.
When there’s a big organizational change, make your employees feel part of the team
Change is difficult. Whether your organization is dealing with a major shift in players or even a new “change management” initiative, chances are anxiety levels are on the rise. Employees understandably want to know “what does this mean for me?” So how can a savvy employer make lemonade out of perceived lemons? Make everyone feel that they are an important member of the team. A simple “we value and need you” can go a long way. Enlist employee support. Keep them apprised of the process. And don’t forget to communicate, regularly.
An example of gender-based stereotyping
We know gender-based stereotypes persist, right? At least that’s what statistics suggest. A mere 3.6% of Fortune 500 CEOs are women. When it comes to Fortune 501-1000 companies, women represent 3.5% of the CEOs. And, women continue to earn $0.81 for every dollar a man makes. These numbers do not necessarily translate into discrimination. It could be, for example, that women typically don’t negotiate their starting salaries, while men do. But something seems to be going on, and claims of gender discrimination in the workplace certainly show no signs of abatement.
A friend of mine traveled to Chicago last weekend. There was a major winter storm going on and the plane actually turned back to Cleveland three times before eventually landing safely at O’Hare. Passengers were understandably anxious. The normally 45 minute flight took about five hours in total, including a couple of de-icing episodes. My friend relayed that the pilot happened to be a woman. She overheard a few male passengers loudly complain to the flight attendants (also female) about the pilot’s gender. ”Why is a woman flying this plane?” one demanded to know. One flight attendant in particular defended her sistren, claiming she was one of the airline’s top pilots. Sure enough, when it came time to land, the pilot maneuvered the plane so expertly that my friend did not even realize they had touched down. As the passengers exited the plane, many stopped to thank the pilot for her good work, including the obstreperous male passenger, who apologized for his remarks.
What do I make of this anecdote? Stereotypes persist, whether subtle or overt. The best way to deal with them is head on. In other words, train: respect in the workplace training is a great investment, as it raises awareness in an engaging, non-threatening way.
Fifth Circuit reinstates jury verdict in same-sex harassment case
In Cherry v. Shaw Coastal, Inc., a jury awarded a victim of same-sex harassment $500,000. The trial court vacated the award based on its finding that the harassment was neither “severe” or “pervasive.” Not so fast, held the Fifth Circuit in reinstating the award. Cherry worked on a survey crew with two male supervisors. One of them engaged in ongoing sexual conduct towards Cherry. For example, he repeatedly requested Cherry take his clothes off; he brushed against him and touched his hair and behind; and he sent explicit sexual text messages (including one saying, subtly, “I want cock”). Cherry complained about the conduct, but the employer did not investigate or take corrective action. Instead, the alleged harasser’s supervisor opined he was simply “horsing around,” rather than reporting up the chain of command to HR.
A number of facts in this case are troubling: the conduct itself and the employer’s non-existent response, for starters. The half million dollar verdict could have easily been avoided with a few key best practices: train employees on appropriate behavior in the workplace; train supervisors on dealing with harassment issues; and investigate and respond to allegations, including those less common male-on-male harassment claims. Easy-peasy.
Not all harassment trainings are created equal
The Seventh Circuit Court of Appeals decided a sexual harassment case last week that provides employers with a lot to put on their “don’t do”) lists. Jon Hyman of the Ohio Employer’s Law Blog posted about the case earlier this week, focusing on its lessons for anti-harassment policies. I’d like to focus on another important lesson from the case (EEOC v. Management Hospitality of Racine Inc.), namely its conclusions about the employer’s harassment training.
The defendant owned an IHOP franchise in Racine, Wisconsin. It implemented a “zero tolerance” harassment policy and provided training for all its employees. The training consisted of showing all new hires a video on sexual harassment, handing them a copy of the harassment policy, and asking them to read and sign it. In denying the employer’s claim that it did all it could have done to maintain a harassment-free workplace, the court noted “although management was required to take sexual harassment training, the evidence at trial suggested that the training was inadequate.”
So what does this mean for you? It’s absolutely essential for employers to train managers on harassment prevention. Regularly. But not every attempt to “train” will pass judicial muster (or that of a jury). A videotape will not always be insufficient, but it’s certainly not a best practice. Get a qualified trainer (such as myself) and invest in some live, interactive, customized sessions. Not only will you have a defense if you get sued, your chances of ending up in court go down dramatically, since your managers will know what they need to do to prevent or stop harassment in the workplace. Nuff said.
New county government shifts to a centralized HR function
Yesterday I blogged about some of the benefits of centralizing HR-related decision-making. According to the Plain Dealer, Cuyahoga County’s incoming charter government is doing just that. The paper reported that “for the first time, the county government — minus the prosecutor’s office and the courts — has one human resources department governed by one set of rules.” That’s definitely a step in the right direction. So too is the fact that supervisors are required to attend training covering management essentials such as discipline, performance evaluation, and leaves of absence. County government may just end of being the model for employers everywhere! (The article doesn’t specify, but hopefully the training includes harassment, discrimination and retaliation as well). Time will tell.
Centralizing decision-making when it comes to employee relations
Everyone in the world of HR knows that consistency is key. Consistency in how documentation is maintained, how discipline and termination decisions are made, and in responding to employee complaints, to name just a few. Another biggie: addressing requests for reasonable accommodations. None of these decisions should be made solely at the front-line manager level — that is, simply put, a recipe for inconsistent treatment that leaves plaintiffs and their lawyers salivating. The antidote is easy: centralize decision-making. Make sure supervisors and managers know that when issues A-J arise, they need to get HR (or some designated person) involved.
U.S. Supreme Court shuts down discrimination case against religious school
Yesterday, the United States Supreme Court invoked Title VII’s “ministerial exception” to toss a lawsuit filed by a teacher at a parochial school. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC , the Court unanimously held that elementary school teacher Cheryl Perich could not sue her employer for terminating her after she threatened to sue for discrimination. The Sixth Circuit had ruled that Perich’s suit could proceed, noting her primary functions were secular. The fact that she was a commissioned minister, though, was dispositive for the Court. Relying on the First Amendment, the Court explained a religious institution should not have to retain the services of a minister it no longer wishes to rule over its congregation, regardless of any potential discriminatory intent. The fact that Perich was primarily a secular teacher was of no import, according to the Court, as she was technically a “minister.” The Court explained:
“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”
What is the impact of this case on most employers? Nil. But for religious institutions, a zone of protection against discrimination claims has been fortified.
Organizational culture: embracing mistakes
Have you heard the motivational quote “act as if you could not fail”? The idea behind it — namely that when we let go of our fear of failure, we can accomplish more than we imagined — has HR implications for most employers. It is typical for employees to be afraid of making mistakes – especially in a down economy when job retention is more important than ever. This mentality, though, is extremely limiting to creativity and in many cases ends up thwarting, not enhancing, productivity. Studies have shown that organizations that embrace mistakes, and even encourage employees to mess up now and then in the name of the creative process, can be far more innovative and successful than their scared counterparts. Of course, safety sensitive positions, or those where even small mistakes could have devastating results (think brain surgeons and airplane pilots), should not welcome mistake-making willy nilly. But if you determine your organization could withstand some small mistakes, think about taking on a “mistake mentality.” Who knows what creative genius might result?
“But it’s unfair to other employees” not an excuse when it comes to reasonable accommodations
Unlike most of the other employment discrimination laws, the ADAA (and its state counterparts) requires what some might consider preferential treatment for covered employees. While many employers find this concept counterintuitive, a 2010 case (that I blogged about here) makes it clear. The plaintiff in Colwell v. Rite Aid Corp. asked for a shift change as a reasonable accommodation. The employer denied the request, claiming the change would be unfair to other employees. Too bad, said the Third Circuit Court of Appeals in reversing a grant of summary judgment on the ADA failure to accommodate claim.
So what should an employer do when faced with a cry of “it’s not fair”? First, remember to respect the privacy of the individual. Not everyone needs to know why Susie needs an accommodation. Second, make sure managers understand their obligations, so they can politely tell the inquirers that it’s none of their business. Finally, keep your eye on the reasonable accommodations ball – the EEOC and the courts are doing just that.
Wage and hour laws apply to the rich and famous, too
Lady Gaga’s former personal assistant is claiming the megastar owes her hundreds of thousands of dollars in unpaid overtime. She’s probably right. In a lawsuit filed in New York last month, Jennifer O’Neill alleged she worked around the clock for Lady Gaga, but was never paid overtime. The legal question is whether Ms. O’Neill was an exempt employee under the FLSA. Unless she was able to exercise significant discretion and independent judgment in the performance of her duties, and was paid on a salary basis, she won’t fit into the administrative exemption under the law. My bets are on Ms. O’Neill, as I’m guessing that working for a diva offers little in the way of independent judgment.
NLRB back in action
Yesterday President Obama made three recess appointments to the NLRB: Sharon Block (Democrat), Terence Flynn (Republican) and Richard Griffin (Democrat). Prior Board member Craig Becker’s appointment ended at the end of last month, leaving the Board without the necessary five person quorum to continue operating. Labor supporters lauded the move, which empowers the NLRB to continue its efforts to advance workers’ rights. Republicans decried it, claiming it’s just another example of an out-of-control bureaucracy.
What does this mean for employers? The appointments may well be the subject of extensive legal battles. For now, though, Obama’s move enables the NLRB to keep on keepin’ on. So employers should proceed as they have been in terms of all things labor. As one example, expect to hear more from the Board on when and under what circumstances employers can take action against employees for their use of social media outlets to criticize their jobs.
The EEOC’s wish list for reasonable accommodations
In the new year employers can definitely expect to see more EEOC activity with respect to the ADA Amendments. In particular, the agency will be scrutinizing employers’ efforts to provide reasonable accommodations to qualified individuals with disabilities. So what exactly is the EEOC looking for? For one thing, an interactive process that is individualized, not rote. In other words, employers should not have a “one size fits all” approach to determining what constitutes a reasonable accommodation. When it comes to offering additional time off as a reasonable accommodation — one of the EEOC’s all-time favorites — do not have a fixed time in mind. Policies that limit time off to, say, 12 months, are sure to be shot down. The agency seems to always want to know, “if you were going to give twelve, why not offer fourteen?” So be flexible, and always err on the side of offering more, not less, time off as an accommodation (unpaid, of course). Finally, be sure to ask the employee in question what s/he thinks would enable him or her to perform the job effectively. While employers so not always have to defer to the employee’s request, asking the question demonstrates a good faith effort to find a solution.
Happy New Year!
I blogged about the NLRB poster too early! (Read on)
I actually wrote this morning’s blog about the NLRB poster requirement yesterday. I just this second learned (thanks to Jon Hyman’s awesome blog) that the employee rights posting requirement has been delayed until April 30, 2012. Turns out the Board heeded the D.C. judge’s advice (see today’s earlier post). So kick back and wait to see how this one plays out.
Happy Holidays!
NLRB new posting requirement deadline approaching, but will it stick?
The NLRB’s rule that private sector employers post in conspicuous place the Notification of Employee Rights Under the National Labor Relations Act is set to go into effect on January 31, 2012. Employers who do not comply will be penalized in two ways. First, the NLRB will extend the six month statute of limitations for employees who file unfair labor charges. Second, the failure to post can be considered evidence of “anti-union animus” by the Board when considering charges. The rule applies to employers regardless of whether they have unions or are federal contractors.
At a hearing earlier this week, a D.C. district court judge urged the Board to postpone the implementation of the rule, given the legal battles surrounding the legality of the Board’s promulgation of the rule in the first instance. Will Board lawyers take heed of this judicial advice? Stay tuned. But in the meantime, be prepared to post on January 31, 2012. Happy New Year, NLRB-style.
Don’t underestimate the damage a jury can do
A federal jury in California recently ordered soft drink giant Dr. Pepper to pay $18.3 million in damages to six (!) plaintiffs who claimed they were subjected to age discrimination in a Los Angeles bottling subsidiary. Seems like a lot, right? According to the company, it’s enough to affect stock prices.
What’s an employer to do when faced with such news? Don’t just put your head in your hands and hope it doesn’t happen to you. It can take just one rogue manager to get you into hot water, legally speaking. Be proactive. Make sure you train all your managers — especially those in remote facilities — on the anti-discrimination rules. And make sure employees know where to turn if there is a problem, so that you will have every opportunity to redress any wrongs perpetrated by any such rogue managers.
A GINA tip
The Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibits employers from requesting genetic information from employees or their families. There are times when employers have the right to — and indeed should — request medical information from employees, such as when ascertaining the right to leave under the FMLA or assessing reasonable accommodations under the ADA. When you do, make sure to include a GINA notice. The notice should state that in order to comply with GINA, you are not requesting any genetic information in your request for medical information. Short and sweet. The good news? In the event an issue later arises under GINA, you’ve got yourself an affirmative defense.
Why updating job descriptions is so important (hint: it’s the ADA Amendments)
Updating job descriptions tends to be one of those tasks that always seems to sit on HR’s back burner. But it’s more important now than ever, in light of the Amendments to the ADA. The Amendments, and the ensuing EEOC regulations interpreting them, significantly broadened the definition of what constitutes a disability under the ADA. Thus, the focus is now on whether the employer reasonably accommodated the individual with a disability (whereas before, the focus was on whether the individual was covered by the Act in the first place). A litmus test of this determination is whether the individual can perform the “essential job functions,” with or without a reasonable accommodation. So how do courts decide what constitutes an essential job function? You guessed it – job descriptions. Courts give a tremendous amount of deference to employer’s job descriptions, and this can either work for you or against you, depending on how accurate your job descriptions are.
The task of updating job descriptions or even creating them from scratch can seem daunting. Here are a few tips. Talk to supervisors and employees, and observe the job in question, when drafting descriptions. Also, be sure to include physical requirements (e.g., lifting, walking, standing, etc) and mental requirements (e.g., the ability to work productively in a loud factory environment). List attendance requirements, including weekend and/or overtime work. Still can’t imagine how you will get it done? Call me – I can help.
“All-American Muslim” and Lowe’s: an HR perspective
The TLC reality t.v. show “All-American Muslim” follows the lives of five Muslim families in Dearborn, Michigan. One of the show’s themes is the lingering discrimination American Muslims confront in the post 9/11 world. Home improvement retail giant Lowe’s demonstrated just how spot on this theme is last week when it pulled its advertising from the show in response to pressure from Florida Family Association, a conservative Christian group that lobbies companies to promote “traditional, biblical values.” The Christian group apparently objects to the show because it portrays Muslims too positively, making them look like normal Americans. Lowe’s caved to the group’s pressure and pulled its ads, claiming the show has become a “lightning rod.”
The public reaction has been pretty swift and severe, which in my opinion is a good thing. The Florida Family Association’s objection to the show is bigotry, plain and simple. Many consider Lowe’s decision to be swayed by the group’s lobbying efforts to be spineless, at best. As one Muslim community leader analogized, imagine the reaction if a company pulled its ads from “The Cosby Show” or “Seinfeld” based on objections that they portrayed African Americans or Jews as normal people. Society would be outraged.
It’s undeniable that stereotypes about Muslims are pervasive. How does this fact impact employers and HR? They must tread carefully when confronted with such prejudices and remember a couple of important rules. First, customer bias is not an excuse for discrimination. The courts are unanimous on this point. Second, they must be vigilant in preventing and responding to any potential harassment issues in the workplace. As in football, a good defense can be the best offense. If you see these issues brewing, act quickly to train your employees on your (hopefully impeccably written) anti-discrimination and harassment policies in particular, and on respect in the workplace in general.
ADA issues creep up in the unlikeliest of places
Many employers require applicants to have a high school diploma. Could this be an ADA issue? Yes, according to an informal discussion letter posted on the EEOC’s website earlier this month. If an individual has a learning disability which prevents him or her from earning a high school diploma, a uniform requirement for such a diploma could violate the ADA. As with all disabilities, according to the EEOC, a qualification standard that screens out certain individuals with disabilities must be “job related and consistent with business necessity.” This standard can only be met if the diploma requirement accurately measures the applicant’s ability to perform the job in question. Even if this standard is met, the employer has a second hurdle to jump, namely establishing that the individual could not perform the essential job functions even with an accommodation. In other words, if an applicant could perform the essential functions of the job with a reasonable accommodation, the employer cannot discard the candidacy based on the lack of a diploma.
While an informal discussion letter does not carry the weight of law or regulation, it is noteworthy insofar as it demonstrates the EEOC’s position on the issue. Do you have jobs that require a high school diploma? If so, give them a close look to see if the requirement is really necessary. If it is, be prepared to consider exceptions and accommodations based on the ADA.
Ohio’s minimum wage increases in 2012
Starting January 1, 2012 Ohio employers need to bump up the salary of minimum wage workers. The minimum wage will increase to $7.70 (from $7.40). Tipped employees must be paid at least $3.85/hour, up from $3.70.
Holiday wage and hour traps to avoid
In addition to cheer and holly, the holiday season is a time for the unwary employer to succumb to wage and hour pitfalls. Why? Simply because this is such a busy time of year for many employers. Retailers earn a huge chunk of annual revenue this time of year. Other employers need more hands on deck to deal with end-of-the-year administrative issues. Many employers hire seasonal workers, or simply have existing employees putting in more hours.
When it comes to seasonal hires, employers should not assume they can be classified as “independent contractors” instead of employees. Most likely, they are employees, plain and simple, despite the fact that they are hired for a short period of time. Thus, all the attendant minimum wage and overtime rules apply. To qualify as independent contractors, they would need to satisfy all of the requirements set forth by the Department of Labor.
As for existing(non-exempt) employees, employers need to take extra care to ensure hours are accurately recorded for purposes of overtime pay. Inaccurate time cards can pose a big problem, especially if the employer has a system that automatically clocks employees out. So add an extra layer of scrutiny to wage and hour practices this time of year – it’s well worth it.
Connect With Me!!!
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- The first question the EEOC asks:
- USERRA protections expanded to include hostile work environment
- Is obesity a disability under the ADA?
- EEOC Statistics for 2011: discrimination charges hit all-time high
- When there’s a big organizational change, make your employees feel part of the team
- Teen Work Rules
- Paid leave laws versus SHRM’s workplace flexibility principles
- Employers must be prepared for GINA claims
- Insufficient notice of need for FMLA leave proves fatal for insubordinate employee
- The Arizona shootings and your workplace
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Allison West: Once again you said it perfectly. Thanks, Sindy....
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Mark Fiala: Good points....I have found that people think that...
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Sindy Warren: Wow; that is stunning. Congrats on the blog award...
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Jon Hyman: I had a client (in a race harassment case, no less...
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Heiderose: Saved as a favorite, I really like your site! :)...