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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

You Cannot Discriminate Against A Pregnant Employee Because Of “Outdated Myths Or Stereotypes Or Couched In The Language Of Safety And Health”

Posted in Pregnancy Discrimination

The EEOC just announced two settlements of cases involving pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (“PDA”).   One involves a simple failure to hire, but the other is more nuanced and has more to teach us about pregnancy discrimination.  

On March 13, 2013 we cautioned that “The EEOC is serious about pursuing discrimination cases filed under the Pregnancy Discrimination Act (PDA) – very serious especially if you fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health. That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child. We have repeatedly issued this warning, and have cited new case filings or settlements to support our concerns. Take this 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.”

In fiscal year 2013, of the lawsuits filed in the last year by the EEOC, two areas stand out:  more than a third of the EEOC’s filed lawsuits related to the ADA, and a third came from sex and pregnancy discrimination claims.   Got that employers? The vast majority of recent EEOC lawsuits have dealt with ADA, sex and pregnancy discrimination claims

That is the bullseye in their target.

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You Cannot Refuse To Hire An Otherwise Qualified Pregnant Applicant

In the first settlement just announced, the EEOC alleged that a store in Manhattan, after multiple interviews of the applicant who was extended an offer, refused to hire her after being informed that she was pregnant.  The company settled for $90,000.  

Takeaway (as noted by an EEOC attorney):   ”Employers have a duty to respect the ability of pregnant women to participate in the workforce. The EEOC is committed to enforcing the law when employers fall short of this duty.”

You Cannot Place A Pregnant Employee On Leave Because “The Baby Is Taking Its Toll On You”  Or Because Of  Potential Harm To The Baby

The second case merits more attetion. 

In that case a trucking company agreed to a $27,000 settlement in which it was alleged that an employee who was 7 1/2 months pregnant told the manager that her doctor had excused her from work for a few days due to an arrested case of premature labor.  The manager, however, refused to permit her to come back to work until after the birth.  When she complained and said that she was going to file an EEOC charge she was fired.   

Why would he refuse to allow her back to work?

In the March 13, 2013 post referenced above, we wrote about “an employer who ‘could not allow [the pregnant employee] to continue to work as a housekeeper because of the potential harm to the development of her baby.’   We also wrote that the EEOC had announced the settlement of a pregnancy discrimination case in Mississippi where a pregnant female employee at a bar was fired without warning and without prior disciplinary action because, as it was told to her, ‘The baby is taking its toll on you.’   And in J’s Seafood Restaurant of Panama City, Florida two servers were fired because ‘their pregnancies caused them to be a liability to the company.’  The EEOC just today announced that it has chalked up another such settlement with the owner of a Michigan Comfort Inn, who has agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages after it fired a pregnant employee because, as the EEOC said, “it could not allow the employee to continue to work as a housekeeper because of the potential harm to the development of her baby.”

Takeaway 

As we noted above, ”you [cannot] fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health. That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child (emphassis added).”   

It seems that this was the reason why the manager in this latest case refused to allow the woman back to work in her last 1 1/2 months of pregnancy.  

An EEOC lawyer seemed to say as much:   “The law ensures that a woman cannot be forced to leave her employment because of her pregnancy or because of her employer’s paternalistic notions regarding pregnancy. The EEOC will continue to actively pursue cases where an employee is subjected to discriminatory treatment because she is pregnant (emphasis added).”

 

 

“‘Sexual Harassment Is Part Of The Culture Of Westminster”

Posted in Sexual Harassment

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Westminster – august seat of the British government.  Can it really be the “Palace of Sexminster?”

Survey Finds Rampant Sexual Harassment

Recent allegations of sexual harassment reaching into the highest levels of government prompted a local London TV channel to interview 70 people who work at Westminster, and the results were a bit of a shock – at least on this side of the pond. 

Apparently one third of the interviewees had “personally experienced sexual harassment which they saw as an abuse of power,” while less than half “had no first or second-hand knowledge of such behaviour.​”   One woman said:  “When I was there, older men would explore their sexuality and be predatory to younger men.” 

Harassment As An Abuse Of Power

We recently blogged that “It should come as no surprise that victims of harassment are more often of relatively low status and power in the workplace. As with people victimized throughout society, they are more often the victims of this ‘power differential.’”

A UK gay rights activist Ben Summerskill said that “People are vulnerable as they’re often political obsessives and have never worked anywhere else.  For both sexes the MP can say that if they oblige them, it might help their career enormously.  There’s no HR [human resources], no structure for people management or supervision.”

An amazing 40% of men had been sexually harassed or knew someone who had been harassed, and Summerskill said: ‘Sexual harassment is part of the culture of Westminster.  In the last decade I’ve heard of dozens of cases from men and women.”

Grow A Pair

One Conservative MP was dismissive of ”victims” of unwanted sexual advances: he said that they should toughen up and “Grow a pair.”

Westminster Meet Washington

Good to know that lack of compliance by lawmakers with the laws that they make is not unique to Washington.

 

 

Pulmonary Technologist With Usher’s Syndrome Fired By Health Care Provider Settles EEOC Suit For $180,000

Posted in Americans with Disabilities Act

The EEOC filed a lawsuit last year which alleged that a leading health care provider in Maryland violated the Americans with Disabilities Act (“ADA”), by failing to provide a reasonable accommodation and then firing a pulmonary function technologist because she suffers from Usher’s Syndrome, a genetic disorder that impairs hearing and vision.

The EEOC alleged that the company perceived that the employee’s disability interfered with her safely performing her job duties — after she worked there for almost 19 years. She was removed from her responsibilities and then fired, even though there was “a suitable vacant position as a reasonable accommodation.”

It was just announced that the health care provider agreed to settle the action – for $180,000.  (We won’t bore you again with our “shooting fish in a barrel”  mantra). 

The EEOC stated that “Such alleged conduct violates the Americans with Disabilities Act (“ADA”), which requires an employer to provide a reasonable accommodation, including reassignment to a vacant position, unless the employer can prove it would be an undue hardship.” 

What Is Perception of Disability

Employers must be aware – but many are not – that the ADA prohibits making an adverse determination about an employee – such as termination — not only based upon a disability or record of disability, but also because the employer perceives the employee to be disabled.

As an EEOC trial attorney stated in another case: “[E]mployers should not make decisions based on perceptions about someone’s supposed impairment. … the ADA requires employers to make an individualized assessment about an applicant or employee’s ability to do the job instead of acting out of speculative fears or biases.” Another EEOC attorney said that “speculation and fears over … perceived disability … is exactly the type of discrimination the ADA was meant to address and stop.”

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Language Workaround: “Don’t Send Us Anyone From Detroit”

Posted in General Employment Discrimination, Race Discrimination

We like the term ”‘language workaround” as meaning coded or “dog whistle” language when used specifically to obscure references to age.  See our April 4th blog

Now a reader has provided us a new one for use when referring to race. 

Claudia D. Orr, an employment attorney in the Detroit area:

“A friend of mine worked for a temp agency and the agency honored illegal requests. First day on the job a client said “don’t send us anyone from Detroit.”  My friend asked her supervisor what that meant and the supervisor said “that is code for they only want white temps sent. You will get used to it. We try to keep our clients happy.”  

My friend became a whistleblower!  The EEOC’s press release indicated that this was an ‘equal employment opportunity discriminator … they honored requests based on sex, race, disability, religion …’”

Tired of That Unmotivated Employee? Pay Them to Quit

Posted in Employee Termination

What?  Did she just say that?

10862064_sIf that was your reaction, this is not my idea.  This is a new HR Strategy that Amazon has announced it is trying.  Amazon is trying to weed out employees who are not engaged.  In order to get rid of these unengaged, underachievers, Amazon will pay up to $5,000 for them to quit.  The Los Angeles Times has the full article for details, but this is a plan that has already been adopted by Zappos and Netflix.

It’s an interesting strategy to say the least.  Yes, unengaged employees tend to be less productive and can also divert management resources away from more motivated employees.  Yes, an employee who quits is not eligible for unemployment.  Yes, unhappy employees breed other unhappy employees creating massive morale problems in the workplace.

However, as most people will tell you the cost of training new employees is not insignificant.  Studies about the true cost of employee turnover are a bit all over the map but according to a recent article published by Zane Benefits, a rough estimate of the cost of replacing one employee is 6-9 months of that employees’ salary.  The question is whether the cost/benefit analysis comes out in favor of a pay to quit program like Amazon’s.

As an employment attorney, I can’t help but think that a lot of these “unengaged” employees may very well believe their lack of motivation is not their own problem, but rather was caused by the company or some people at the company.  For employers considering similar pay to quit programs, thought should be put into obtaining a release of all claims in exchange for the payment.  There is nothing worse than paying a problem employee only to have that very same money used to partially fund a lawsuit against the former employer.

We’d love to hear your reactions to Amazon’s new policy.

Opticians Deny Request For Service Dog: Settle With EEOC For $53,000

Posted in Americans with Disabilities Act

The EEOC continues to tout its targeting of health care and medical providers under the  Americans With Disabilities Act (“ADA”).  The “low hanging fruit” today – an optical store in Michigan which agreed to settle a lawsuit for $53,000 and other relief. 

The claim?   It denied a request made by an optician with anxiety and panic disorder for the “reasonable accommodation” of bringing her service dog to work.   According to the EEOC’s press release: “The dog alerted her to oncoming panic attacks, helped alleviate symptoms during a panic attack, and could also do other tasks, such as retrieve small objects, retrieve her medical bag and guide her to an exit.”

“’Shooting fish in a barrel’ is also our way of describing the EEOC’s targeting of heath care providers for disability discrimination claims:  see our posts of  January 9, 2014 posts on December 13, 2013 ; and cases and commentary in our posts of August 3, 2013, September 6, 2013, and October 19, 2013.

We have suggested many times that the EEOC targets these facilities for disability discrimination claims likely because they are fairly easy marks. In fact, a good many, if not most of the ADA case filings we have seen recently are against medical or health care facilities. Think about it — how do you think the public reacts to doctors and clinics, who are there to treat the sick and injured, being sued for allegedly discriminating against their own employees who are sick or injured?

And the EEOC intends to go after the low hanging fruit first.

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Nova Scotia Store Manager: “Clear The Room Because ‘It’s Time For A Lynching’”

Posted in Harassment, Race Discrimination, Uncategorized

The Herald News out of Halifax has reported on a racial harassment case involving use of the term ”lynching” in the context of a performance review of a black salesperson.

The sales manager at a Nova Scotia furniture store called a black sales associate in front of customers “Condoleezza Rice,” and told her her hair felt “like wool.”   When he was about to give her a performance review, he told others managers present “to clear the room because ‘it’s time for a lynching.’”

8065531_sA Nova Scotia Human Rights Commission board of inquiry found race discrimination and ordered the store to pay the sales associate $8,000 in general damages and 18 months back pay.

The sales associate told the board that “When you research the act, or the word ‘lynching,’ you see my ancestors, African-Americans, that were beaten, whipped, burned alive and then left to die hanging from a tree while white racists gather around celebrating.”   The board, in turn, held that the lynching comment was no joke or ordinary reference to violence:  “Lynching represents the murder of African-Americans on the basis of their racial identity.  Lynching is widely known to be one of the means by which white southern slave owners exerted control over African-American slaves, who were treated as subhuman and as a commodity.”

In this regard, the board also noted “that the fact the comment arose in the context of a performance review underscores the economic and power differences between the managers and [the sales associate]  who was dependent upon them for her continued employment.”

We’ve reported often on racial harassment cases, which frequently involve use of the “N-word” or nooses.  These memes involving references to slavery and all of its racism and images of physical and social violence and control seem to permeate workplace racial harassment.  This is the first such case which we have reported on which took place in Canada.   Read some of the comments to the Herald article — very enlightening.

 

 

Is Microaggression A Workplace Problem?

Posted in General Employment Discrimination

What Is Microaggression?

Our post on “Microaggression” sure brought in a lot of comments from those who never heard of it, to those who called it “PC nonsense” or simple lack of social grace, to those who have 12306043_sexperienced it or specialize in studying it.

A sample:

Nancy Germond, Owner, Insurance Writer:

“I offer a free White Paper on my website about this very issue, microinequities. Anyone who is interested can simply go to my website and download it free. This is an important topic and rarely discussed because we are often so unaware when we commit them.”

Shauna McGee Kinney:

“The back handed compliment (also known as the “complisult”) is a very common form of passive aggressive behaviour. Maybe the complisult is something that a narcissistic sociopath would use as a tool to stir up drama, and position ones self in the position of (false) authority?

Micro-aggression probably cannon happen without a regular grouping of people. I believe that those “drama queens” are a minority in our functioning social groups at work, church, teams, schools, and homes.

So what about the majority of people? What if we intuitively self-segregate? Could we be instinctually judging others because we are looking for familiarity and social inclusion? By drawing attention to how others do not fit in — the person doing the judging might be suggesting their fit in the larger group.

Maybe micro-agression might be coming from a deeper place in our subconscious?

Micro-agression is leading edge of crowd psychology. That leading indicator that warns us of potentially dysfunctional herd mentality, and exclusion. The group probably is not capable of including you, and it’s easier for the herd to annoy you to the point you leave on your own. While the crowd psychology won’t lead to a riot, it does lead to discrimination.

Here are two common examples of small, aggressive actions I can think of:   The boss who says that was a great presentation — for a junior staff member. You’re not old enough to fit into the position of power. (age discrimination)

The sports team member who says you play well for your age. The team consensus might be you are hurting the team, and you may be left out of future plays, or selected for powerless positions in the team. (age discrimination).”

Christopher’s Mom”:

“When I started practicing law, my older male peers referred to me as a “lady lawyer” – not to distinguish me from a rude breed of lawyers, but rather to highlight the fact that I was an aberration because of my gender. The presumption was turned on its head one day when my then 6 year old son visited the office. I introduced my son, Christopher, to one of the senior partners, explaining that George was also a lawyer. Without missing a beat, Christopher said, “Mom that is silly! Only girls can be lawyers!”

I don’t necessarily view presumptions as aggressive; sometimes they are merely a reflection of a person’s limited exposure to other cultures, races, lifestyles. Because I was my son’s only exposure to lawyers, he naturally thought all lawyers were women – and probably all of them moms, too.

Americans are particularly xenophobic and uneducated in geography, geopolitics and world history and so therefore not attuned, for example, to the huge variety of cultures that are blobbed together in their minds as all being stereotypically “Asian” or “Arab”etc. That is wrong, of course, but not necessarily aggression. Sometimes it is just the ignorance of a six-year-old like mind.”

Lyn Boxall, Singapore-based General Counsel:

“I hadn’t heard of the term micro-aggression before, but I have heard and experienced it. Indeed, it’s not an uncommon experience for a foreigner working in a multinational corporation, though I think it’s at least somewhat the same as the phrase used in the UK, namely ‘damning with faint praise’.

My Singaporean friends are certainly tired of getting comments in the US of ‘you speak such good English’. They’ve mostly not figured out how to reply politely that this is rather natural when they come from an English-speaking country.”

Kimberly Lowe, a business lawyer in Minneapolis-St. Paul:

“Is this really a form of discrimination or just a lack of social skill (or what my Auntie referred to as “social grace”)?  I have seen many relatively intelligent, well-minded and socially sophisticated lawyers stumble over these sort of things.

My own experience in this area has been extensive. Being a socially adjusted (while I have a dog and a cat I am not a cat lady or a crazy person), single white female with no children, no abusive ex-spouse(s) and no all-consuming desire to obtain the same, I am often asked to my face what went wrong or even more frustrating, pitied for my sad and lonely existence (this is typically by female professionals). Several of my married male peers have said to me: “You seem normal enough, why aren’t you married. I always thought there was something wrong with you but now that I know you better I see there isn’t.”

While I have written and ranted about how I am discriminated against, is that really the case? No. I am just not typical and when people encounter me they do not have the social grace to know how to make conversation about something other than personal characteristics. When I encounter this sort of “micro-aggression” I simply respond with an equally inappropriate observation and then move on conversationally. If the microaggressor has any social sophistication, my response should spark a discussion.  Teaching moment.”

 

Is Stuttering A “Disability?”

Posted in Americans with Disabilities Act, Uncategorized

On March 24, 2013 we commented that “stammering” is  a  “speech disorder in which the flow of speech is disrupted by involuntary repetitions and prolongations of sounds, syllables, words or phrases as well as involuntary silent pauses or blocks in which the person who stutters is unable to produce sounds.” 

But is it a disability as understood under the Americans With Disabilities Act, and amendments?  Two readers have good comments.

Kailee Goold, an employment layer in Columbus, Ohio:

“In most cases, stuttering will be a disability.  A disability is an impairment that significantly impacts a major life activity. The ADA includes “speaking” and “communication” as a major life activities. So, if the stutter significantly affects one’s ability to communicate, it will be a disability.

I recently gave a presentation on the broadening scope of “disability” under the ADA Amendments and what it means for companies — i.e., more focus on the interactive process. To see the slides and my interactive process flowchart, visit my microsite: http://ow.ly/uXlog.”

Geoffrey Mort, a NYC employment lawyer:

“I don’t know of any cases on this issue, but agree that stuttering — as it does substantially limit the major life activity of speech — is in many cases a disability, particularly in view of the ADA Amendments’ more liberal view of “substantially limits.”  

With a substantial number of jobs, stuttering would not be an impediment to carrying out the position’s responsibilities. But, if a job requires, say, making verbal presentations to clients, it’s difficult to imagine what reasonable accommodation would allow one to effectively do that.”

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“Sometimes The Only Thing Worse Than Having An HR Department Is Not Having One”

Posted in Uncategorized

Today’s Wall Street Journal published an article entitled “Is It A Dream Or A Drag?  Companies Without HR.”   It discusses the pros and cons of having an HR department, and uses real life examples from start-ups to mega companies, and begins:  “Sometimes the only thing worse than having an HR department is not having one.”

This article is sure to generate a lively debate among our readers.

9628787_sSome quotes from the article:

“Startups usually launch without personnel teams, but SHRM advises that companies bring on a human-resources staffer once they reach 15 employees, the point at which personnel issues become complex enough to require specialized skills.”

“Managers often lack specialized knowledge that is crucial for keeping a company competitive and on the right side of the law …  If they don’t understand the latest rules under the Family and Medical Leave Act, for example, they can open their company up to lawsuits; if they don’t know where to find qualified engineers, they can end up behind in the battle for talent.”

One quote about Outback Steakhouse’s gamble struck us — we who said today in an earlier post that:   ”We have always preached preventive law, that is, using our knowledge of employment law and HR practices to counsel employers how to prevent claims, charges or lawsuits from ever happening. It’s far less expensive, time consuming and distracting to spend a little time and money now to comply with the law, than not to do so and gamble that you won’t get sued or be pursued by the EEOC.  It’s a bad bet — ask anyone who has been there.”

The Journal reporter wrote that  “Outback Steakhouse, a unit of Bloomin’ Brands Inc., had no HR department before 2008 but created one not long after the Equal Employment Opportunity Commission sued the restaurant chain for sex discrimination. In 2009, Outback paid $19 million to settle the case and agreed to add an executive-level HR position (emphasis added).”

One expert was quoted in the WSJ:   ”‘Whenever you consider eliminating portions of HR you have to think of the financial risk, the strategic risk.”

As we always say: its a bad bet to gamble that you will not be sued and therefore fail to prepare with “preventive HR.”