Header graphic for print

Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

What Is “Disparate Impact” Discrimination?

Posted in Gender Discrimination, Title VII

A new federal lawsuit filed in Pennsylvania prompted us to re-visit the concept of “disparate impact” discrimination, which many employers are unfamiliar with.

What is “Disparate Impact” Discrimination?

Discrimination comes in two sizes – intentional discriminatory treatment, and “disparate impact” discrimination. Intentional discriminatory treatment probably needs little explanation or examples at this point since it is the basis of most employment discrimination claims (and, in any event, is the subject of most of our blog reports).  But exactly what is “disparate impact” discrimination?

While courts have often held that although a standardized test may be neutral and non-discriminatory on its face, and therefore demonstrate no discriminatory intent, nonetheless the impact of such a test may disproportionately fall upon members of a protected class, and therefore be found to be discriminatory.

Jacksonville and the Jacksonville Firefighters Local

A good example of “disparate impact” discrimination can be found in two companion lawsuits filed in Florida by the EEOC against the City of Jacksonville, and the Jacksonville Firefighters Local 122 of the International Association of Fire Fighters.

The EEOC contended in the first case that the City put in place written examinations for the promotion of firefighters to four ranks which had a disproportionately adverse impact on black test takers; that is, they had a “disparate impact” on African-American candidates, and were not job-related or consistent with business necessity.

firefighters : Fireman standing outdoors wearing helmet

The NCAA Lawsuit

On February 15, 2013 we wrote about a new Title VII lawsuit which alleged that the NCAA’s 2011 rule which permanently barred, among other things, convicted felons from coaching in NCAA-certified tournaments, discriminated against African-Americans. The complaint alleged that “Policies that categorically exclude individuals with felony convictions are known to have a disparate impact on African-Americans. … African-Americans are arrested, charged and convicted of drug crimes at greater rates than whites, even though usage rates are similar.”

basketball coaches : Basketball coach

The New Lawsuit 

The Justice Department has just sued the PA state police alleging that it uses physical fitness tests to screen and select applicants for entry-level state police trooper positions which discriminate against women entry-level applicants.

From 2003 to 2008, as part of its entry-level selection process, the state police used five events to test for physical fitness: (1) a 300-meter run; (2) sit-ups; (3) push-ups; (4) a vertical jump; and (5) a 1.5-mile run.  Although the test on its face was neutral, nonetheless approximately 94% of male applicants passed while only approximately 71% of female applicants passed.   This difference between the pass rates of female and male applicants, it is alleged, is statistically significant.

fitness tests : Closeup portrait, beautiful, pretty young model woman flexing muscles showing displaying her gun show, isolated white background. Positive emotion facial expression feelings, attitude, perception

In 2009, the state police changed the test to included new elements, but the results were the same:  from 2009 to 2012 approximately 98% of male applicants passed, while only approximately 72% of female applicants passed.  Again, this is significantly significant, it is alleged.

The Justice Department’s suit claims that the use of the two tests “in the screening and selection of applicants for entry-level trooper positions … has resulted in a disparate impact upon female applicants for those positions. [The] use of both the 2003 and the 2009 [test] is not job-related for the entry-level trooper position, is not consistent with business necessity.”

 

 

Brouhaha In Wales Over Workplace “Banter”

Posted in Sexual Harassment

There’s apparently a bit of a brouhaha in Wales — the former City Manager of Cardiff was caught sending racist text messages.

Why is this worthy of a post?

cardiff : Exterior of Cardiff Castle � Wales, United Kingdom Because an article in WalesOnline has reported on this story, and asked a local Cardiff attorney “when [does] banter go[] too far and become[] discrimination?”    “Banter” in the workplace was the subject of a recent post of ours, albeit sexual banter:  ”We just read an article which began ‘Unwelcome groping, or a promise of a better job in return for a kiss, clearly amount to sexual harassment. But what about comments like ‘Oh wow, you look so pretty, I can’t even concentrate,” or ‘You look sexy today?’”

Our query was:  “Is this sexual harassment?   Harmless banter?   The answer is important to HR people, employers and employees.”   And HR people, employers, employees and attorneys wrote in to comment.

This latest incident in Wales seems qualitatively different — a racist comment is a racist comment.   Can it even be considered “banter,” the equivalent to “You look so pretty?”

In any event, in the Welsh article, attorney Darwin Gray discusses this issue, and it is interesting that his counsel could be given in the US unedited.   His advice as reported is printed below.

“There is no hard and fast rule, and it’s a very fine line between “banter” and discriminatory/potentially unlawful comments.  However, generally, if the comments are likely to offend someone, especially where they are linked to a ‘protected characteristic’ (defined in the Equality Act 2010 as things like race, sex, age, disability, religion, sexual orientation, gender reassignment) then they have probably crossed the line.

So basically, the advice is to pause and think about how comments could be perceived by others, especially when putting comments in writing (e.g., emails, texts).    Remember that emails, for example are permanent and can always be recovered.

It’s important that an employer doesn’t just ignore things as said employer does not want to be seen to be tolerating / encouraging such comments.

water cooler : People laughing next to the water dispenser against white background

It is advisable for an employer to have an internal policy on equal opportunities and diversity – setting out what is acceptable and unacceptable conduct. That policy should be communicated clearly to all staff so that they are clear of the conduct / behaviour expected of them.

An effective way of communicating a policy is to hold staff training on diversity and equal opportunities (at least once a year).

This has two main benefits – it educates staff and will hopefully improve behaviour, and also, if things end up in an employment tribunal it will help the employer’s defence if they can show that they held such training with staff.

In other words, that the employer ‘did as much as they could’ to eradicate banter that had gone too far.”

 

 

ALERT! Listen To The EEOC Apologize Live at 3 Today! Call-In Number Below

Posted in Equal Employment Opportunity Commission

On June 5th of this year we discussed the case of a group of Hawaiian farms and a labor contractor sued by the EEOC for allegedly harassing and mistreating Thai farmworkers.

On June 9th we published a post entitled “EEOC Touts Settlement — Court Says ‘Not So Fast.’”   Apparently our first post about the settlement was premature because the EEOC  had jumped the gun in announcing the settlement and was dealt a blow by the Court, which denied the EEOC’s consent decrees — at least temporarily, apparently because the EEOC failed to comply with the Court’s procedural rules and oral instructions given to its counsel.

Court Blasts EEOC

And last week the Court issued a blistering decision in which it held that “The EEOC’s filing of the Consent Decrees with the unsigned orders on June 3, 2014 violated both Local Rule 100.9.1 and this Court’s oral instructions to counsel’s staff member. … apparently so that EEOC officials could announce, during a previously scheduled press conference, that consent decrees had been “filed” in this case.”  Read the Order here.

Among other things, the Court held that:  “To redress the EEOC’s premature press announcement, the Court ordered that ‘it will not consider [the EEOC’s] request to approve the four Consent Decrees unless the EEOC holds a press conference retracting its statements at the June press conference regarding the improperly filed Consent Decrees.’”

EEOC Press Release:   Call-In EEOC Press Conference Today

apologize : office workers, apologize

The EEOC issued a press release yesterday:  “The U.S. Equal Employment Opportunity Commission (EEOC) is correcting the previously issued press release dated June 3, 2014 regarding settlements in EEOC suits involving four farms in Hawaii, and will do so at a press conference to be held Friday. …

Today’s announcement and subsequent press conference are intended to retract any misstatement regarding the finality of the consent decrees. At present, the four proposed consent decrees have not been approved by the court and are still pending approval.  … A press conference regarding the above matter will be held on Friday, August 29, 2014, at 3:00 p.m. HAST at 300 Ala Moana Blvd, Room 8-140, in Honolulu, Hawaii. The dial-in number to join the press conference via telephone for media representatives in the U.S. (outside the Honolulu area) is 1-866-619-5058. The passcode is 4449658.”

Customer/Stalker Causes EEOC Lawsuit Against Employer

Posted in Harassment, Sexual Harassment

We just wrote about “third-party harassment” and cited to our many blog posts in which we have written that a hostile work environment can be created in any way, by anybody, or by any means, if the employer does not address an employee complaint that the workplace has been made hostile by, say, sexually harassing behavior of an employee.  

Sexual harassment by someone other than an officer or employee of the company at which the victim works, is actionable harassment. A hostile workplace based upon allegations of sexual harassment is not a function of the status of the harasser but the fact that a hostile work place has been created (by the harasser) which the employer has done nothing to remedy.

Our last post linked to a number of prior lawsuits and court decisions which were examples of who could be a “third-party harasser,” and reported that a lawsuit had just been filed against a large store by a former employee who claimed that she suffered sexual assault and sexual harassment from customers, with the company doing nothing about it — and even worse, mocked her, with a security guard calling her a “stupid bitch.”

 And now a new EEOC suit alleges a similar fact pattern.   A Chicago big-box store is alleged to have discriminated against a female employee when “it failed to take steps to protect [her] from unwelcome advances of one of its warehouse member-customers.”   Seems that the customer stalked the employee:  he “pursued, approached, and confronted” her repeatedly.   The employee repeatedly complained to her managers about the stalker, and even obtained an order of protection against the stalker.

stalking : Pretty Young Teen Girl Calling on Cell Phone with Mysterious Strange Man Lurking Behind Her. Stock Photo

An EEOC attorney explained that ”One of her managers apparently told the young woman that he agreed the man was ‘not right’ and that [the employer] would monitor the situation. But what actually happened was that when the situation persisted and the employee complained to the police, [] management allegedly yelled at her and told her to be friendly to the customer.”

Another EEOC attorney got it right when he said:  ”All employers have a duty to protect employees from sexual harassment whatever form that harassment may take – whether it’s lewd remarks, groping, propositioning or stalking. No employer gets a pass because it is a customer targeting its employee, rather than a manager or fellow employee.”

stalking : Hyena

 

Good Article About Workplace Blunders

Posted in General Employment Discrimination

Just a quick plug for a column written by Aaron Taube in Business Insider entitled “8 Inappropriate Things You Might Be Doing At Work.”

mistakes : Closeup portrait, rude, angry,senior mature business man gesturing with finger against temple, are you crazy? Isolated white background. Negative human emotions, facial expression, feeling, attitude

We’ll just highlight one of his “inappropriate things” – “Asking someone to speak for the people of their race/ethnicity/gender/sexuality.”  He writes: 

“Perhaps there’s a hot-button social issue in the news and you’d like to know what your black/Latino/gay/female coworker thinks about it. This is fine, but don’t make your query about their status as a minority. Whatever you do, don’t start your sentence with the phrase: ‘As a [black/Latino/gay] person ….’”

mistakes : Illustration depicting a roadsign with a my bad  concept. Blue sky background.

 Go read the others.

 

Pregnant Waitress Fired Because “Baby Was At Risk”: Another EEOC Suit Has Followed

Posted in Pregnancy Discrimination

A Texas restaurant and bar was just sued by the EEOC.  Reason?   It fired a waitress because she was pregnant, allegedly telling her that “her baby’s health was at risk” because the bar is a smoking establishment.  (In this case, as in so many others, the expressed “concern” may have been simply a cover for outright discriminatory animus since the owner complained that “she was starting to show”).

She was forced to take early maternity leave, “and never assigned her another shift thereafter, effectively discharging her.”

On July 8th we prefaced a post with the following boldly lettered warning:  You Cannot Fire Or Place A Pregnant Employee On Leave Because “The Baby Is Taking Its Toll On You” Or Because Of Potential Harm To The Baby Or Because “Pregnant Women Should Not Work.”

pregnant worker : Pregnantcouple in workers jumpsuit isolated in white Stock PhotoApparently the Texas bar did not know this, or disregarded it.

On March 13, 2013 we cautioned that the EEOC is very serious about pursuing discrimination cases filed under the Pregnancy Discrimination Act (PDA), especially if you fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health.    You cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child.    See our post of April 18th

Our recent post of June 25th related to a new suit in which the EEOC claimed that a spa franchise in Charlotte, NC fired a just-hired employee (a front desk associate) because she had just notified it that she was pregnant. According to the EEOC, the clinic manager told her that “pregnant women should not be working.”

Christina wrote last month about the EEOC’s newly-issued Enforcement Guidance on Pregnancy Discrimination and Related Issues. “The Guidance largely sets forth well-established interpretations of the Pregnancy Discrimination Act (“PDA”) and the interplay with the Americans with Disabilities Act, the Family and Medical Leave Act, and Title VII.”   As evidence of the EEOC’s seriousness about this issue: it has just reported that since the start of fiscal year 2011, it has filed over 45 lawsuits involving pregnancy discrimination.

As an EEOC attorney noted in the press release about this latest Texas PDA case:

“Employers should be well beyond archaic prejudices against women who are pregnant. Too many employers have continued to deny female workers equal opportunity to earn a living for their families and themselves, simply because they are pregnant or ‘showing.’   The EEOC continues to combat such prejudices and practices as part of its efforts to educate the public about the rights of women in the workplace – everyone should be free from this obvious form of sex discrimination.”

Pregnant sad woman is dismissed by her boss and invited to leave  out isolated on white background Stock Photo - 16063523

We printed a great comment recently by Jim Watson, an HR generalist in the Detroit area, who warned HR folks about this aspect of the PDA, and provided some good advice.  We reprint it here:

“Richard, great article. I think there are a lot of employers who erroneously make decisions to fire or remove pregnant employees from certain jobs out of misguided notions of protecting the employee/unborn child from certain work conditions or out of a general fear that the pregnant employee will get hurt and sue or drive up Workers Compensation costs.

I think it is vitally important that we HR professionals continue to help educate our employers that this type of thinking is no longer acceptable to the federal government and the agencies with activist agendas that get these types of complaints. Discussing such EEOC decisions helps to validate our message.

I have advised the management teams I have worked with in the past to make an individual assessment of each situation and to take appropriate action when necessary based upon the unique facts of that situation. Having good data and factual information to work with, not overreacting and talking with the employee are all suggested courses of action.”

Our Repeated Takeaway, Repeated Once More:    Take this issue seriously … because the EEOC has made obtaining not just monetary damages but also “targeted, equitable relief” – such as all sorts of injunctions — one of its top priorities. This means that you could be scrutinized closely by the EEOC and/or the Court for years.

 

 

Massachusetts Employers Must Grant Leave to Victims of Domestic Violence

Posted in General Employment Matters, Leave Laws

On August 8, 2014, Governor Deval Patrick signed into law An Act Relative to Domestic Violence.  In relevant part, Section 13 of the law requires employers with 50 or more employees to 622408_sprovide up to 15 days’ leave in any 12 month period if 1) the employee or family member of the employee is a victim of abusive behavior; and 2) the employee is using leave to seek medical attention, counseling, victim services or legal assistance, to secure housing, obtain a protective order, or appear in court as related to abusive behavior against the employee or a family member.

The leave is not available if the employee is the perpetrator and may either be paid or unpaid. Employees must provide advance notice if possible, and if not possible, within 3 working days after taking leave. Despite this provision, there is a provision that basically gives the employees 30 days after the fact to bring in documentation requested by the employer where there is an unscheduled absence. Employers can require that employees  exhaust PTO  first.

There is a requirement that employers notify employees of their rights and responsibilities, but there is no specific poster contemplated by the statute. Nor is there any indication that annual notice is required. Employers could satisfy the notice obligation either by creating a posting or by giving employees and new hires a copy of a notice of rights and responsibilities.

In any case, this part of the  law  is immediately effective so covered employers should take immediate steps to provide notice to employees and to insure that leave is provided when requested.

 

Gee Whiz! Sexual Harassment Claims Abound at Archie Comics – By Both Males and Females!

Posted in Sexual Harassment

Comic books were never this weird.    And certainly not Archies!

However, charges and countercharges of sexual harassment have been aired in the courts for more than 3 years.  Male execs who charged that the female CEO had harassed them were themselves just sued by female execs who claim that they were harassed by the men simply for having worked for the female CEO.  Got it?

You can’t make this stuff up — even if you were a comic writer!

Comics : Ironic Satirical Illustration of a Retro Classic Comics Woman Being a Drama Queen

Christina filed a post on July 12, 2011 which reported that Archie Comics had filed for an injunction barring its Co-CEO Nancy Silberkleit from entering the premises.  Archie accused Silberkleit of sexual harassment, including making numerous comments about male genitalia, and some rather offensive personal habits such as wearing the same clothes for several days and letting her dog defecate in the premises.

Pow!

On December 9, 2013, we reported that Silberkleit was accused in a (second?) lawsuit of gender discrimination against several male employees.  Plaintiffs, who included both the president and the editor-in-chief, claimed that she referred to them as “penis,” and yelled “Penis! Penis! Penis!” during a business meeting.   The Daily News reported that “the word ‘penis’ became somewhat of a campaign slogan and her preferred method of referring to employees in lieu of their names.”

Blam!

Comics : Scared man in old comic book style.

The Daily News has now reported that a new lawsuit was filed “earlier this year,” this time by three female execs who allege that they too were “subjected to gender discrimination and sexual harassment.”    However, they allege that “Archie Comics is a male dominated and male run workplace that disrespects females,” and that they were “targeted and retaliated against” by male bosses because they worked directly for Silberkleit.  These allegedly disrespecting bosses are alleged to include the very same male president and editor-in-chief who sued Silberkleit!

Kaboom!

Whew!  Can’t keep these story lines straight.   Think we will go back to Batman comics!

comic books : Comic Book Illustration

 

Accommodate Religious Beliefs: The EEOC Is Watching

Posted in Religious Discrimination

Discrimination based upon religion is in the news today after the EEOC just sued a Food Lion store in North Carolina for refusing to accommodate, and firing, an employee who is a Jehovah’s Witness.

religion : hands protecting the glowing flame of a candle in the darkness Stock Photo

When he was hired as a meat cutter, the employee told the store manager that his religious beliefs required him to attend church services Sundays and Thursday evenings.  The manager agreed to accommodate this request, but when he was transferred to another store, his new manager fired him noting that he didn’t know how the employee could not work on Sundays.

An EEOC attorney stated:  “Many decision makers seem to forget that unless providing a reasonable accommodation would impose an undue hardship on the company, the accommodation must be provided.  No person should ever be forced to choose between his religion and his job.”

On October 26, 2013, we recommended an article in the Wall Street Journal (page B1) about the increasing number of claims of religious discrimination:  ”Part of the surge comes from employees – Muslims, Christians, Seventh-Day Adventists and others – who were denied requests to avoid work on Sabbath days. Conflicts also have erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.”

We also reported last year that the EEOC announced that it had settled (for $70,000) a case of religious discrimination against an employee who was a Jehovah’s Witness because the employer failed to accommodate his request for a schedule change so he could attend an annual religious service.   Besides having his request denied, he was fired, and also placed on the company’s list of “do not rehire” employees.

An EEOC trial attorney said what we always advise employers:   “Businesses have a clear legal duty under federal law to handle requests for religious accommodations from their employees with due amounts of consideration.”

religion : Man pray for something over black background with space for text on right

We have blogged many times about religious accommodation issues, which though complicated, cannot simply be ignored or unilaterally denied without making some attempt to accommodate the employee.  Many such cases involve time off, as this latest one does, but many involve dress and grooming codes.

Two years ago, my partner Christina wrote about a workshop sponsored by the EEOC’s Training Institute and the agency’s Washington, D.C., field office, where a senior attorney noted that these types of cases are “low hanging fruit.”

“The reason is that these cases,” she wrote, “unlike a lot of employment cases, do not usually involve a lot of documents or witnesses.  Instead, it usually involves a low level manager who is strictly enforcing a dress code that is usually contained in one or two paragraphs of a handbook.  As the senior EEOC attorney stated, managers need to be trained that certain religious beliefs may mean that employees cannot comply with a dress code.   Managers also need to be trained that a dress code is not carved in stone and some flexibility may need to be applied.”

 

 

Tick Tock: Have You Filed Your EEO-1 Report Yet?

Posted in Equal Employment Opportunity Commission, OFCCP, Race Discrimination

17674277_sPrivate employers with 100 or more employees must file an EEO-1 Report each year.  This year’s deadline for filing is September 30, 2014.

The preferred method for completing the EEO-1 report is the web-based online filing system, which can be accessed at the EEOC’s website here.

The EEO-1 report requires covered employers to set forth for each job classification the numbers of employees in each of six ethnic groups.

If you are an employer who has had more than 100 employees for years and has never filed an EEO-1 report, don’t panic.  The remedy for failure to file is that a court may simply order you to file the required report.

That does not mean that you should continue to not file the required reports to try to stay off the EEOC’s radar.  Steps should immediately be taken to file for this year.  Filling out the report may take some time, especially if you have not been tracking the demographics of your employees all along, so don’t leave this for the last minute.

How do you know to which ethnic group an employee belongs?  The EEOC prefers that employers give employees an opportunity to self-identify and then if they decline to do so, the employer may put down the ethnic group that you believe the employee belongs to based on a visual inspection.  When sending out surveys to employees, employers should be careful to note that the survey is for reporting purposes, is voluntary, and will not be used in making any employment-related determinations.