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Bosses behaving badly – does it matter if they are women or men?

When it comes to the whirlwind surrounding New York Times Executive Editor Jill Abramson’s abrupt firing, it seems to some that the answer is “yes.”  Times Publisher Arthur Sulzberger Jr. has come out defending his position and vehemently denying claims of sexism.  He stated her termination had nothing to do with her gender but was instead based on her management style.  This may well be true.  Maybe, as he has stated, he gave her ample warning and plenty of time to improve the management style issues that were troubling him.  I’m not in any position to judge this, and I won’t try.  But one aspect of the media frenzy surrounding Abramson’s termination that I find worthy of comment is the notion that she was, well, a bitch.

Forgive my language, but isn’t that the sense we get?  I’ve heard Abramson called “pushy” and “mean.”  I can’t help wonder why those terms seem only to be applied to female leaders.  When’s the last time you heard a male leader called “pushy”?  It’s not that there aren’t any; that’s a given, right?  But it seems that society accepts (and maybe even expects) these traits in male leaders, while women are still expected to be warm and fuzzy.  I’m not saying this is the case.  I’m saying it’s interesting food for thought, and the Abramson situation provides an opportunity to consider the issue.

abramson, jill

 

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Is permitting employee theft ever a reasonable accommodation under the ADA?

While it seems like the answer to this question should be a resounding “no,” a recent case against Walgreens shows that sometimes, permitting employee theft may actually be a reasonable accommodation.  But wait – the facts of the the case make this outcome seem more reasonable than it would, at first, appear.

Josephina Hernandez was a long-term Walgreens employee.  She had diabetes and was permitted to carry around candy while she worked, in case of a precipitous blood sugar drop.  One day, however, she did not have any candy nearby when she began to shake and sweat.  Recognizing the symptoms of her diabetes acting up, she knew she need to ingest some sugars, and fast.  So she grabbed a bag of potato chips (valued at just over $1) and dug in.  She tried to pay for them, but no one was at the register.  When the half-eaten bag of chips was discovered, Josephina explained the situation to her supervisor and again tried to pay.  But it was too late.  Pursuant to Walgreens no-exceptions policy against employee theft of any amount, she was terminated.

The EEOC is now taking the case to trial (they just survived a motion for summary judgment filed on behalf of Walgreens).  According to the court, it is for the jury to decide whether permitting the “theft” would be a reasonable accommodation of Josephina’s disability.

Takeaways: this is a case where the facts very much determined the outcome.  I would not suggest that a blanket rule of “permitting employee theft can be a reasonable accommodation.”  But what this case shows very clearly is that reasonable accommodation issues are intensely fact-specific.  Uniform application of company policy is not a surefire way to beat an ADA claim.  Employers should proceed with caution and analyze disability issues carefully and deliberately (and ideally, with counsel).

potato-chip-taste-test_612

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ADA trap for the unwary: Don’t label employees’ problems

When employees exhibit behavior problems, it can be tempting to label them with psychiatric terms (e.g. bipolar, narcissistic, OCD, schizophrenic).  This can be extremely dangerous from an ADA perspective, so put away that armchair psychology degree.  The ADA not only covers “disabilities,” but also individuals who are “regarded as” having disabilities. Thus, an employee who is perceived as being disabled and subjected to an adverse action based on this perception can have a solid claim under the statute.

So what should employers do?  Focus on the behavior, not the cause.  Instead of “It seems like James’ OCD is interfering with his ability to focus on his long-term assignment” say something like “James has consistently failed to focus on and make progress with respect to his long-term assignment.”

It’s a simple solution, but an easy mistake to make.  Make sure your supervisors understand this “regarded as” prong of the ADA.

dsm-grows

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Do you know: An employer’s obligation when a customer harasses an employee

If a customer harasses an employee, the employer’s obligation is essentially the same as it would be if another employee were the harasser: take action to stop the harassment.  Fred Meyer, a subsidiary of The Kroger Company, recently learned this lesson to the tune of half a million dollars.  The facts of the case are a perfect example of what NOT to do if an employee complains of harassment at the hands of (in this case, literally) a customer.

A man in his early 80s came in to Fred Meyer’s Milwaukee store almost daily.  According to the lawsuit filed by the EEOC, he would fondle employee’s breasts and buttocks, make lewd comments, and rub up against them.  He would even sit by their time clock so they would have to be near him when they punched in.  Several employees complained, but managers dismissed the complaints as “hearsay,” even though there was a video of a harassing incident.  The harassment stopped only when the employees went to the police; the customer was convicted of sexual assault.

Takeaways: If a customer harasses an employee, an employer must take action.  The duty os to provide a harassment-free workplace, regardless of who is doing the harassing.  Also, the age of the harasser is irrelevant.  Don’t get trapped by stereotypes of “he’s harmless” and the like.  Finally, include these lessons in your harassment training.

fred-meyer

 

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EEOC to employers: be careful your ADA forms don’t violate the ADA

The EEOC recently released an informal discussion letter to an employer who inquired about the legality of its ADA forms.  While the letter is not binding, it is noteworthy in that it reveals the EEOC’s position on this issue.  What are ADA forms anyway?  The employer in question apparently got a sample ADA policy and reasonable accommodation request form from a state agency’s website.  These forms delineated employee’s rights under the ADA, but also outlines circumstances where the employer would NOT provide an accommodation.  For example, the form stated that unscheduled or excessive absences would not be considered a reasonable accommodation.  The EEOC took issue with this provision.  While that may sometimes be the case, the point of the reasonable accommodation process is to engage in a case-by-case, individual-specific, interactive process.  Barring some accommodations from the get go was at odds, per the EEOC, with the reasonable accommodation obligation itself.

The other aspect of the form that the agency commented on was its request for information related to the alleged disability.  Remember, the ADA limits employers’ ability to request medical information.  Thus, questions such as “describe your treatment plan” cannot be asked across the board.  Employers can ask for disability-related information if necessary to determine whether the employee has a disability and/or needs a reasonable accommodation, such questions must be individually tailored to the situation at hand.

Takeaway: It’s great to have an ADA policy.  But it should be a general statement about the employer’s participation in the reasonable accommodation process where appropriate.  It should not delineate specific instances of accommodations that will not be granted, nor should it accompany a form requesting medical information.  ADA issues should be handled on a case-by-case basis.

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FMLA protection may extend to travel with an ill relative

An employee tells you she’s taking a trip to Vegas with her terminally ill mother.  The purpose of the trip is to fulfill her mom’s “bucket list.”  Is the leave covered by the FMLA?  Absolutely, according to a recent Seventh Circuit case.  But the facts were somewhat unique – the employee was the primary caretaker of her mother: she lived with her, bathed and dressed her, and administered her medication.  She continued to do all these things in Vegas, a place her mother had always wanted to visit.  Displeased with her 6-day absence, her employer terminated her, taking the position the trip was not covered by the FMLA because it was not related to ongoing medical treatment.  The court disagreed, as the employee continued to “care for” her mother in Vegas, even though there was no medical treatment there.

A couple of lessons here: Be careful when denying FMLA leave.  The employer may have considered this a boondoggle, but the court took a different view.  Also, remember the FMLA is a floor.  An employer can always do more.  For an employee who single-handedly takes care of her dying mother, pulling the termination trigger seems a little heartless.

(The case is Ballard v. Chicago Park District)

las-vegas-nv2

 

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Maintaining the balance in I-9 compliance

Employers often get tripped up with I-9 issues by not ensuring the employment eligibility of each and every employee is documented.  These issues can typically be corrected easily enough with an I-9 audit.  But the case of the overzealous employer can be equally problematic.

Last week the Department of Justice assessed civil penalties against two companies who overreached in their compliance efforts by insisting on certain types of documentation from non-citizens to ensure their eligibility to work in the U.S.  Employers must treat citizens and non-citizens alike in seeking I-9 documentation.  Otherwise, they can be hit with charges of discrimination.

 

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If only I were making this up

There’s a lot of legal action surrounding NFL cheerleaders these days.  In three separate lawsuits filed against the Oakland Raiders, Buffalo Bills and Cincinnati Bengals, cheerleaders are claiming they are owed wages.  The teams misclassified them as independent contractors and thus skirted paying them anywhere close to minimum wage, according to the suits.  If I were betting, my money would be on the cheerleaders.

But that’s not what caught my attention yesterday as I was perusing HR-related news.  According to this article, the Buffalo Jills (cheerleaders for the Bills) receive handbooks.  [Employer tip: independent contractors should not receive handbooks; that's something for employees]  In the handbooks they are told how to groom (“hair must be worn in a glamorous style”), how to speak (“use ‘oh my goodness’ rather than ‘oh my God’”), and – you might want to sit down for this one – how to keep certain private parts fresh, including what tampons to use and how to use them.  Really.

Not much surprises me in the world of HR.  This one did.  I can’t even offer a takeaway on this one – it’s far too obvious.

buffalo jills

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Swift reaction to Clippers’ owner’s racist rant – a lesson for employers

If you’ve been anywhere near any kind of media source this weekend, you’ve heard about the audio recording of the LA Clippers’ owner Donald Sterling’s racist rant to his girlfriend.  He decried his girlfriend’s association with black people, notably Magic Johnson, with whom she posted a picture on Instagram.  Sterling went on to suggest she should not bring black people to his games.  (To read more of Sterling’s unbelievably racist comments,  see here).

While all eyes are on whether and how the NBA will officially respond to the incident, the team took matters into its own hands yesterday as they took to the court to play the Golden State Warriors.  The players turned their warmup uniforms inside out so the Clippers logo wasn’t visible, in a sign of protest against Sterling’s comments.  And during the game, they wore black armbands.

The team’s stand against its owner contains a powerful message for employers: if racism or some other illegal “ism” comes to light in the workplace, act quickly and send a strong message that such conduct is inexcusable and won’t be tolerated.  While the players have to deal with the situation in reverse, their collective action sent a powerful message.

clippers-shirts-racist-remarks

 

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Sixth Circuit holds telecommuting may be a reasonable accommodation

Yesterday the Sixth Circuit decided EEOC v. Ford Motor Co., holding that the EEOC is entitled to a trial on the issue of whether telecommuting could be a reasonable accommodation for an employee suffering from irritable bowel syndrome (IBS).  It also permitted the employee’s retaliation claim to proceed to trial.

Jane Harris was a resale steel buyer for Ford.  Due to her condition of IBS, she sometimes had trouble getting to work and even standing up.  Thus, Ford allowed her to work from home occasionally, when she suffered severe symptoms.  When Harris requested a more formal telecommuting arrangement that would allow her to work from home 4 days/week, Ford said no, concluding that face-to-face contact with co-workers and suppliers was an essential job function.  Harris then filed an ADA claim with the EEOC.  Shortly thereafter her boss gave her a poor review, placed her on a PIP, and eventually fired her (according to her boss, she was always kind of a problem employee).  Not surprisingly, the EEOC filed an ADA reasonable accommodation and retaliation case on Harris’s behalf.

In sending the case to trial, the court made a striking pronouncement with respect to regular attendance being an essential function of the job: the court opined that the advancement of technology has changed what “attendance” means in the modern workplace.  For many jobs, it is really anyplace the employee can do the job, which is not necessarily at the employer’s place of business.

A few quick takeaways from the Sixth Circuit’s ruling:

  • Don’t be quick to dismiss claims by so-called problem employees,
  • Take an expansive look at the “workplace” if doing so fits the position in question,
  • In the wake of “protected activity” such as the filing of an EEOC charge, take care to avoid even the appearance of retaliation.
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The NLRB continues to take a stand in non-union workplaces

It’s no secret that the NLRB is doing its best to stay relevant in a world of union decline.  So far, it’s doing a pretty good job of it, successfully attacking a whole host of seemingly neutral employment policies that it believes impinge on employees’ Section 7 rights, the right to engage in protected concerted activity that exists in all workplaces, union or not.  One of its most recent ruling holds that an employer’s handbook policy prohibiting “negative comments” about co-workers and “negative gossip” violates Section 7 of the NLRA.

According to the Board, the provision could be interpreted as stifling employees’ rights to complain about terms and conditions of employment, the linchpin of Section 7.  No matter that the employer never applied the policy to do so; the specter of such an unlawful application was enough to invalidate the provision, per the Board.

As a result of its conclusion, the Board not only ordered the employer to rewrite the policy (not such a big deal), but also to post an employee rights notice in the workplace, informing employees of their rights under the NLRA and to unionize (a pretty big deal).

What’s the takeaway here?  Review all policies to make sure they can’t be construed as restricting employees’ rights to engage in protected concerted activity.

(The case is Hills and Dales General Hospital, here).

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Reasonable accommodation does not necessarily mean the accommodation the employee wants

The recent case of Hamedl v. Verizon Commc’ns, Inc. affirms this principle of the law of reasonable accommodations under the ADA.  Hamedl, an employee who suffered from back pain, asked to work the night shift, from midnight until 8 a.m.  He claimed this shift would afford him a  shorter commute time, as he would not be sitting in traffic, which aggravated his back.  The night shift was a coveted slot, as workers were paid a premium for their time.  Workers were assigned to shifts based on their seniority; Hamedl’s seniority did not afford him the night shift.  Rather than override its seniority rules, the employer kept Hamedl on the 8 a.m. to 5 p.m. shift, but let him come in (and leave) two hours early, at 6 a.m., when the traffic would be minimal.

According to the court in the subsequent lawsuit, the employer did its duty under ADA in providing this accommodation.  The fact that Hamedl asked for something else did not change this fact.

Takeaway: In assessing requests for reasonable accommodations, employers do not have to ignore their own operational rules and business needs.  They simply have to engage in the interactive process and work to find an accommodation that addresses the employee’s problem.

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Is your workplace investigation protected by the attorney-client privilege? Are you sure?

In my practice as a workplace investigator, I am often brought in by an employer’s regular outside counsel.  The idea is that as a neutral third party, I bring an independence to the investigation that might not exist (or be perceived as existing) if the employer’s own lawyer were to conduct the investigation.  An added benefit of having outside counsel retain someone like me is that the investigation can be protected by the attorney-client privilege, meaning the employer does not have to disclose evidence relating to the investigation in later litigation.  The benefit of the attorney-client privilege can be paramount.  In cases where an investigation uncovers potential liability issues, for example, the employer can, with advice from its regular counsel, take the necessary steps to remediate the issue without worrying that its efforts will later be used against it in court.

That’s why the recent case of Koss v. Palmer Water Department should be on the radar of workplace investigators and the attorneys who retain them.  In Koss, the federal Massachusets court held that the employer waived the attorney-client privilege because its outside counsel was heavily involved in an investigation conducted by a third party attorney.  The facts warrant review.

Koss complained that she had been sexually harassed.  In response, the employer retained the services of an independent workplace investigator.  The employer’s regular outside counsel, who functioned in a sort of general counsel role for the employer, had significant input into the investigation, including communicating with the investigator during the investigation.  In Koss’s subsequent lawsuit for harassment, the employer relied on its investigation to support its claim that it did everything it could to address the situation.  When Koss sought access to the investigation documents, the employer claimed they were privileged.  Not so fast, held the court.

In ruling that the employer had to disclose the investigation materials to Koss, the court noted that regular counsel was “intimately connected to, if not controlling of, the investigation.”  Thus, the employer could not simultaneously rely on the investigation as part of its defense while trying to shield it under the attorney-client privilege.

What’s the takeaway for employers?  Before you commence a workplace investigation, be very clear on the contours of the privilege.  Do you want the investigation to be privileged?  If so, make sure outside counsel sits on the sidelines during the investigation process.  Such counsel should be very involved in providing legal advice after the fact, but their involvement with the investigator could prove fatal to a later claim of privilege.

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Retaliation woes: once an employee engages in protected activity, is she bulletproof?

Simply put, the answer is no.  While employers should tread carefully when meting out disciplinary actions to an employee who recently engaged in protected activity, this does not mean they should feel hamstrung if the circumstances call for such disciplinary measures.  The recent case of Pearlman v. Pritzker makes this point nicely.

Mr. Pearlman was a deaf employee provided with interpreters as a reasonable accommodation.  He repeatedly complained about the quality of the interpreters, deeming 12 out of 14 of them to be substandard.  Throughout Pearlman’s employment, co-workers complained about his conduct in the workplace, describing it as intimidating and offensive.  Despite warnings and an opportunity to improve, Pearlman’s bad behavior continued and he was eventually terminated.

In his lawsuit claiming retaliation, Mr. Pearlman claimed his termination was based on his complaints about the interpreters (therefore implicating the retaliation provision of the ADA).  The court held (and the Fourth Circuit agreed) that the termination was based on Pearlman’s workplace conduct, not his complaints about the accommodation.  In so holding, the court relied heavily on the employer’s written documentation of the termination decision.  In particular, the employer had a detailed termination memorandum explaining the repeated complaints about Pearlman’s behavior, the warnings given to Pearlman, and his failure to improve despite being given the opportunity to do so.

Takeaway: when taking adverse action, especially (but not only) against an employee who recently engaged in protected activity, employers should take care to articulate and document the legitimate (read non-retaliatory) rationale for the action.

stack of colorful binders in a office

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Harassment training for the House?

Congresswoman Jackie Speier introduced a bill that would require harassment training for the House of Representatives earlier this week.  It makes sense.  After all, such training is already required for executive branch agencies.  It’s critical too in the private sector; some states require it by statute.  But even for those that don’t, it’s an essential part of a harassment prevention plan – something every employer has to have, per the courts.  Why should the House be held to a different standard?

In her press release announcing the bill, Speier referenced Congressman Bob Filner, the former mayor of San Diego who got hit hard with harassment allegations last year (from seventeen former aides).

Is training a panacea that will eliminate harassment in the workplace?  Um, no.  But, it will do several really important things: reduce workplace misconduct, make sure everyone knows where to go if a problem arises, educate the workforce on legal rights and responsibilities, and provide employers with a defense should litigation ensue.

 

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Paula Deen shows us, again, how not to treat employees

Last summer celebrity chef Paula Deen made headlines for being fired from the Food Network for using racial slurs in reference to employees.  (See my blog on the incident here).  The restaurant from which these allegations arose, Uncle Bubba’s Seafood and Oyster House, recently closed.  Instead of doing the typical ramping up to ramp down (i.e., telling patrons and employees about the impending closure), the restaurant announced its closure via Facebook.  Social media may be a good way to tell the general public about business happenings.  But what about the employees?  Shouldn’t they have been told in person?  Or at least in a venue just for them, and not the general public?

Firing employees over Facebook, or any other impersonal means, is an obvious HR “don’t.”  Terminations should be done in person when possible, with honesty and respect.

 

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For it to be harassment, it has to be based on a protected category

When I train managers and employees on harassment, a big part of my message always includes what does not constitute harassment.  Some examples: a boss you don’t like, a performance review you don’t agree with, and a co-worker you think is a jerk.  Unless, of course, any of those things are based on a protected category (e.g., sex, race, religion, etc).  A recent Eighth Circuit case makes this point nicely.

In Rester v. Stephens Media, reporter Loretta Rester had a heated exchange with her general manager.  The manager swore at her, slammed his hands on a desk, and refused to let her leave the meeting.  Thereafter, despite the manager’s apology and in light of the fact that the employer took no disciplinary action against the manager, Rester quit and sued for (among other things) sex-based harassment.  In throwing her claims out of court, the court noted that despite the unpleasant nature of the manager’s behavior, no evidence suggested it had anything to do with Rester’s gender.  (Lawyers like to call this the “equal opportunity jerk defense”).

Despite the court victory, the employer surely spent a lot of money on legal fees.  The equal opportunity jerk defense can be effective.  But is it really how you want to position your workplace?  Here is what the employer should have done, IMO: disciplined the offending manager; considered sending him to one-on-one sensitivity training; apologized to the employee and checked back with her to make sure no further incidents occurred.  Almost certainly, had the employer followed these simple steps,it would have avoided a lawsuit and kept an employee.

There is a lot of distance between illegality and best practices.  The more in line with best practices you position your workplace, the better the results will be, in terms of employee engagement and productivity.

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When delivering bad news to employees, clarity is key

It’s easy and tempting to put off difficult conversations with employees.  Most of us don’t particularly care for conflict and don’t relish the idea of hurting someone’s feelings.  But giving into this tendency can have disastrous results.  Resentments build, performance issues fester, and in the end no one wins.  So if you need to deliver an unpleasant message, bite the bullet and just do it.  When you do it, though, be clear in your message.  I’ve seen well-intentioned managers try to soft pedal bad news.  The result is generally that people walk away from the conversation with totally different ideas of what just took place.  The manager might be thinking “phew, I got that over with; now I don’t have to deal with that anymore.”  The employee could very well have perceived something along the lines of “overall they think I’m pretty good!  I’ll just keep on keeping on.”

These kinds of misunderstandings often build into real conflicts down the road (i.e., lawsuits).  To avoid them, and in fairness to the employees involved, be clear in your message.  Outline the points you need to make, and make them.

difficult conversations

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Calling an employee a “liability” can create liability

The employer in the recent Sixth Circuit case of Demyanovich v. Cadon Plating and Coatings just learned this, when the court sent the plaintiff’s case to a jury trial.  Pithiness aside, this FMLA/ADA case holds some important lessons for employers.  The employee in question suffered from congestive heart failure, necessitating numerous leaves of absence.  When he came back from his most recent leave, he requested light duty work and that he not be assigned overtime.  Denying both requests, the employer’s Vice President told the employee he was a “liability.”  When the employee sought an additional leave of absence, the VP stated he did not have to grant any FMLA leave, as the employer did not have enough employees to be subject to the Act’s requirements.  Thereafter, the employee was terminated for excessive absenteeism.

While the trial court granted summary judgment on the FMLA and ADA claims, the Sixth Circuit reversed on both.  With respect to the applicability of the FMLA, the court noted the employer was affiliated with a much larger company and therefore was a “joint employer” for purposes of the FMLA.  Regarding the ADA claim, the employer’s summary rejection of the requests for accommodations was enough to permit the plaintiff to proceed to trial.

Takeaways:  (1) even if you don’t think the FMLA applies to your workplace, check with counsel to be absolutely sure; (2) always engage in the interactive process when it comes to requests for reasonable accommodations.

 

 

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Jury verdict busts harassment myth

A Texas jury just awarded over $500,000 to a male employee who alleged he was sexually harassed by his female boss.  Not the stereotypical  scenario we imagine when we hear the term “harassment,” but harassment nonetheless.  James Gist claimed his supervisor embarrassed and humiliated him by, among other things, placing her shirt over his head and holding his face to her breasts, providing unwanted lap dances, and offering him oral sex at work.  In our media driven culture where the message sometimes seems to be the sexier the better, it can be easy to lose sight of the truism that sexual advances in the workplace, no matter the gender of the initiator, are a recipe for (a very expensive) disaster.

One of the most interesting facts about the verdict: the jury awarded the plaintiff $200,000 more than he even asked for.

 

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Discrimination 201: intent to discriminate not necessary

There are certainly cases where an employer intentionally discriminates based on some kind of animus: racism, sexism, bias against a particular religion, etc.  But there are also case where employers discriminate without any such intent.  Alas, the discrimination is just as illegal.  Take customer preference, as an example.  A customer or client tells an employer they do not want [insert protected category here - e.g., women, Hispanics, Muslims] working on their account.  Can the employer legally honor the customer request?  No.  Period.

I recently delivered discrimination training to a group of (mostly male) executives.  One asked a great question: his wife does not want him traveling with other women on business.  Is it ok if he only brings male employees on business trips?  I hope you can guess the answer (no!).  Simply put, spousal preference is not a legitimate reason to discriminate.  The fact that the executive bears no ill will towards female employees is of no consequence.  By honoring his wife’s preference, he would be denying women advancement opportunities.  And that would be just as illegal as refusing advancement opportunities to women based on his belief that they are inferior.

angry wife

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Prompt remedial action beats harassment claim

In Williams-Boldware v. Denton Cnty, the Fifth Circuit reversed a jury verdict on a race-based harassment claim.  The reversal was based on the employer’s prompt remedial action.

The facts: an employee complained to her supervisor about racially inappropriate language by a co-worker.  Within 24 hours, the supervisor reported the complaint to HR, who initiated an investigation.  Shortly thereafter, the co-worker issued a written apology, was reprimanded, and was sent to diversity training.  The complainant was transferred, per her request, to ensure she had no further contact with the co-worker.  She never experienced racial comments again.

While a jury awarded the employee $400,000, the court of appeals reversed on the grounds that the employer’s actions barred the claim.  There is a critical lesson here:

  • Train all supervisors to immediately respond to harassment claims.  Here, that meant telling HR, who knew what to do and when to do it.

 

 

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Balancing consistency with doing the right thing

Being an HR professional, or even just a good employer, sometimes involves walking a proverbial tightrope.  We balance the needs of the organization with our commitment to creating and maintaining a happy and productive workplace.  Most of the time, these goals should align.  Sometimes, though, we need to make exceptions and deviate from practices and policies to ensure we don’t lose sight of the “human” in human resources.

By way of example, a client recently changed its pay practices to create more administrative ease.  While this worked out just fine for the majority of the workforce, a few employees were negatively impacted.  One, for example, did not receive a paycheck in over a month under the new system.  As you can imagine, this created all kinds of hardship for him.  After debating the competing ideals of consistency and doing the right thing for this particular employee, the client made an exception and now pays this employee in a manner that better suits his needs.

I was asked the following (very good) question: if we make an exception for this individual, what prevents everyone else from claiming some sort of special case and seeking exceptions?  I answered: nothing.  But policies and practices should be flexible enough (i.e., worded in way to give the employer discretion in their application when it’s needed) to allow the occasional exception.  We have to always remember that while consistency is a great goal and can be our rule 95% of the time, sometimes, you just have to do the right thing.  And when you do, document the reasons for the policy deviation so that if it is ever questioned later on, you’ve got your explanation in hand.

 

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The EEOC and religious “garb and grooming” in the workplace

Earlier this month the EEOC issued a publication entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.”  (See it here)   In it the agency addresses employer obligations to accommodate employee religious beliefs under Title VII when it comes to religious dress and the like.  The impetus for the publication was the rise in religious discrimination claims, particularly when it comes to the duty to make reasonable accommodations.

The EEOC provides useful examples, mainly of its expectation that employers will make exceptions to dress and grooming policies for employees’ religious beliefs.  This is the first one:

EXAMPLE 1
New Observance

Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli’s observance can be sincerely held even though it is recently adopted.

What should you do with this new guidance?  Make sure this topic is included in management training.

religious garb

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Selecting a workplace investigator: the appearance of independence can be as important as the independence itself

Employers know that when allegations of wrongdoing in the workplace arise (e.g., harassment, discrimination), they have a legal obligation to conduct an investigation.  Such an investigation is also necessary in the world of potential corporate wrongdoing, as the New York Times reported yesterday in an article about G.M.’s recent commission of an investigation into why the company failed to alert outsiders to a design defect responsible for accidents and deaths.  (See the article here).  The article questions G.M.’s decision to use its regular outside counsel to conduct the investigation.  CEO Mary Barra called upon law firms King & Spaulding and Jenner & Block to conduct an “unvarnished” investigation.  Both firms have represented G.M. in, among other things, product liability cases.  So they once (and perhaps will again) defended G.M. in litigation for the same or similar issues they are now charged with investigating.  Does this suggest a conflict of interest?

As the Times points out, law firms have become increasingly sophisticated in handling internal investigations.  For example, they could set up so-called “Chinese walls” between the individual attorneys who represented the company in litigation and those acting as independent investigators.  However, the perception of a conflict of interest is enough to render me wary.  Will the law firm who gets a significant portion of its revenue from G.M. really be willing to follow the facts wherever they lead, even if doing so could harm G.M.?  Some might be willing to; others would not.  Be the fact that the question even has to be asked suggests a conflict of interest: perceived, actual, or perhaps both.

The selection of the investigator is a critical first step in any kind of internal investigation.  My advice to employers is to select someone who is, and appears to be, completely independent.

mary barra

 

(Photo credit Reuters)

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