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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Happy Halloween!

Posted in 5 Minute Laugh

Regular readers of the blog know that my assistant, Chrissie, helps me select the videos for the Friday 5-Minute Laugh.  This is her dog, Riley, who is definitely not feeling the Halloween spirit.


Hopefully, you’re having a better Halloween.  If not, maybe this video of dog and cat Halloween costumes will cheer you up.  Enjoy!  http://www.youtube.com/watch?v=UYY6YmoHD5Q

EEOC Settles Case Of Fired Employee With Fibromyalgia

Posted in Americans with Disabilities Act, Equal Employment Opportunity Commission

In a post last March we stated: 

Takeaway: Train your managers and staff in the ins and outs of the ADA;  always engage in an interactive process re seeking a reasonable accommodation for employees with disabilities; and do not rely upon stereotypical assumptions about people with disabilities.

This takeaway was occasioned by an EEOC announcement of a new lawsuit against a Minneapolis-area home health care provider for failing to provide a reasonable accommodation to a housekeeping employee who suffered from fibromyalgia and osteoarthritis — and then firing her.  

The EEOC alleged that two other employees – a registered nurse/supervisor and a community relations specialist – observed her walking with a cane and complained to the owner, who then fired her.

arthritis : female Senior has back pain due to heavy load

The employee’s disability substantially limited her walking and bending, but did not affect her job performance for the years that she worked at the home.

At the time, an EEOC lawyer said that “There does not seem to have been any interactive process here for the employer and employee to assess whether [the employee’s] use of a cane interfered with her ability to perform her job, or to consider some other reasonable accommodation for her disability.”

And another EEOC lawyer said: “Here’s a case where an absence of information and a reliance on stereotypes led to trouble for both employer and employee. When management heard [the employee] used a cane, it assumed that she could not do her job. So they put her on the street and the company is now in litigation – not a happy result for anyone. That’s what happens when employers fail to make analysis of job performance and available accommodations a high priority.”

arthritis woman : Old Lady with walking stick - My mother at 90 years old with arthritic hands Stock Photo

Health Care Companies Are Being Targeted By The EEOC For ADA Violations    

We wearily repeated at the time that it is “Getting a little boring repeating our “low hanging fruit” mantra about the EEOC targeting health care facilities for ADA violations — but it happened yet again. In fact, this new case is remarkably similar to one we discussed on December 11, 2013.”

Lawsuit Is Settled:  The Company Is Now Under The Watchful Eye Of The EEOC For Three Years   

The EEOC has now reported a consent decree settling this suit for $30,000.

The consent decree also sets forth that the company must:  “train its management personnel and employees involved in hiring on the ADA, including reasonable accommodation, and the interactive process.  … revise its performance evaluation criteria to hold managers and supervisors accountable for failing to report, take appropriate action, or engage in the interactive process with respect to disability discrimination complaints or requests for accommodation.  … and [that it] must report complaints of disability discrimination to the EEOC during the decree’s three-year term.”

As a practical matter, the EEOC will now require the company to comply with the ADA through its three-year vigilance — something that the company should have been doing all along.

Latest Takeaway:   Pay now for failing to comply with the ADA, through ignorance or willfulness, or pay later – a heckuva lot more!


Creationist Amusement Park Religious Hiring Requirement: Discrimination? Ministerial Exception? Or What?

Posted in Religious Discrimination, Religious organization exemption

Slate reports that the creator of “a Noah’s Ark–themed creationist amusement park” in Kentucky – an “Ark park” — (the same person who created the Creation Museum) has instituted a hiring policy which requires applicants to sign three documents before being hired: a “Salvation testimony,” “Creation belief statement,” and a “Confirmation of your agreement with the AiG statement of faith.”  Slate notes that “AiG is Answers in Genesis, Ham’s ministry and Ark Encounter’s parent company.”

Noah's ark : Noah s Ark cartoon

As Slate puts it, “The park is quite openly instructing all applicants to pledge that they personally believe in creationist Christianity. If an applicant has other beliefs, her application to Ark Encounter isn’t welcome. … AiG’s statement of faith is no mere loyalty oath: It’s a four-part theological declaration mandating that all signatories accept dozens of fundamentalist Christian principles.”

Does this discriminate on the basis of religion, in violation of Title VII?  I mean, a very religious pre-req for hiring which excludes all non-believers?

Before you jump to conclusions, consider whether the job involves religious doctrine, such as teaching creationism or being a religious guide to the various amusements and events.   If so, your conclusion might be different if you then considered the “ministerial exception.”

The Ministerial Exception

The “ministerial exception” is written into Title VII, and states that:

“This subchapter shall not apply to an employer with respect to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

Put simply, a religious insitution can avoid the anti-discrimination employment laws with respect to employees performing religious-related, or ministerial, functions.

Read the Supreme Court’s key decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which held that the First Amendment bars the government from interfering with the decision of a religious group to fire one of its ministers.  What this means is that the so-called “ministerial exception” exempts an employer from the application of the anti-discrimination laws, and an employee deemed a minister has no recourse to Title VII, the ADA, the ADEA, etc.   See our earlier discussion of this case.

Is this amusement park a religious insitution? Is it required to be to be entitled to the “ministerial exception?”

But What If Public Money Is Involved?

But consider this wrinkle:  The Ark could not obtain all the necessary financing so he turned to public funding.  Slate notes that “Kentucky’s Tourism Development Finance Authority gave preliminary support for $18.25 million in tax credits for Ark Encounter, citing [the creator's] promise that the project would create 600 to 700 jobs.  … ultimately, the state could grant Ark Encounter up to $73 million in tax breaks.”

So, is using taxpayer money and discriminating in hiring on the basis of religion legal?   

The Kentucky agency which oversees tax incentives stopped funding the project because of the discriminatory hiring issues:  “the Commonwealth does not provide incentives to any company that discriminates on the basis of religion and we will not make any exception for Ark Encounter, LLC.”

In response, Ark Encounter’s executive director said that the state was “requiring us to give up our religious freedom and our religious rights.”

Any comments?



Taking the Trick out of Halloween

Posted in General Employment Discrimination, General Employment Matters, Harassment, Race Discrimination, Sexual Harassment

For some, Halloweeen is about cute children in adorable costumes.  For others, Halloween conjures up images of witches, ghost, and goblins who, in the words of Shakespeare “Double, double toil and trouble; fire burn and cauldron bubble.”

30992649_sFor others, Halloween is simply about getting the best candy and treats.  For employers, Halloween can be a minefield.

Every year there is no shortage of offensive Halloween costumes.  This year, one of the most offensive ones I saw on Facebook was a child wearing black face dressed as Ray Rice dragging an African American doll by the hair.  Costumes not only take aim at ethnic groups, a lot of them are downright indecent.  If you do not think that is the case, just Google “sexy Halloween costumes.”  I just did and in .35 seconds Google came back with approximately 26,100,000 results.

Halloween can be a fun a holiday and an opportunity for employers to boost employee morale with costume contests.  For example, our office is having a Halloween social where employees’ costumed children and leashed pets are welcome to attend.  But, before allowing employees to dress up or decorate their cubicles, employers should set ground rules regarding permissible costumes and decorations.  Employers should also not hesitate to send home employees who violate those basic ground rules.




“Everything Your Mother Told You Growing Up Is A Lie: The Pretty People Always Win”

Posted in Uncategorized

The title above is from an article some time ago in Time entitled “People Who Were Pretty In High School Make More Money Because Life Isn’t Fair.

The article began: “A new research paper confirms that everything that your mother told you growing up is a lie because the pretty people always win.”

The article linked to a report from the Council for Contemporary Families which claimed, as Time put it: “Women with above average looks reportedly made 8% more while below-average looking women had a 4% penalization. While an attractive man earned just 4% more, men who fell below average on the looks scale were docked 13%.”  (Thanks to James Brashear, General Counsel of Zix Corporation in Texas, who brought this article to our attention).

beautiful painting : illustration depicting a figure of a young and beautiful woman Stock Photo

Height Bias

Yesterday, we cited a new study from China that found, among many other things, that height is important in hiring and the taller you are, the more you get paid.

Also — women suffer more from this bias than men.

Weight Bias

We turn now to weight.   A new Vanderbilt University study cited in Business News Daily notes that “Being overweight in the workplace is tougher on women than on men … Overweight women are more likely to make less money, work in more physically demanding jobs, and have less interaction with customers than average-size women and all men, including those who are also overweight.”

overweight : Illustration depicting a road traffic sign with an obesity concept. Blue sky background.

The author of the study, Professor Jennifer Shinall, said that “A morbidly obese woman working in an occupation with an emphasis on personal interaction will earn almost 5 percent less than a normal-weight woman working in an occupation with exactly the same emphasis,” but that this is not true for men.

“No matter what the type of occupation, obese men seem to do just as well as average-size men. They make just as much as non-obese men and make just as much money in both personal interaction occupations and physical occupations.”

We have posted a lot about the ADA and obesity and morbid obesity.   See our previous posts on “Lookism,” appearance or beauty bias, and weight and height discrimination: October 16, 2013; July 9, 2012; February 11, 2011).

We did a post some time ago entitled “Weight Bias Is Alive And Well,” to which Maria Hanna Joseph, an attorney/mediator in the Boston area, wrote a very succinct and balanced statement of the very purposes of employment anti-discrimination laws, and concluded that “one’s natural-born features, alone, ought not be barriers to attaining or retaining employment.”

She commented:

“Employment law is generally based on safeguarding the right to earn a living, provide for and take care of oneself, balanced against employers’ rights to business viability. At the root of employment protections are things individuals can’t control yet pose barriers to being part of the workforce and a significant part of society.

Attractiveness seems to be one such quality, and I see weight bias falling under the umbrella of “attractiveness bias” or “appearance bias” (see, Unattractiveness – The Next Workplace Protected Class? at http://employmentdiscrimination.foxrothschild.com/2012/07/articles/another-category/unattractiveness-the-next-workplace-protected-class/).

I’m a firm believer that places of employment – be it from the viewpoint of the employee or patron – are at the forefront of determining social norms, positive and negative. This is because workplaces make up the hub of human interaction. Standards established at the level of the workforce, therefore, tend to radiate more quickly and pervasively than through any other portal I can think of.

To the extent a bias affects a large enough demographic (admittedly hard to qualify or quantify), I like to see protections extended, such as to features that go beyond what may be considered subjectively or stereotypically “attractive” and are immutable (available surgery not withstanding), though have no appearance-based relevance to work performance.

The qualities that are deemed attractive are not necessarily the same as qualities pertaining to hygiene, neatness, or even workplace-appropriate wardrobe/cosmetic choices, for example. For the most part these are not immutable and one can envision their potential for having a negative impact on work and market environments in terms of workforce interaction and productivity and/or customer attraction. I also think they’re things over which an employer could fairly render an employment-based decision and have a balanced right of protection.

In short, one’s natural-born features, alone, ought not be barriers to attaining or retaining employment.”


The Taller You Are, The More Your Income: We Re-Visit Appearance Bias

Posted in General Employment Discrimination

We just read an interesting article in The Economist which reported that in China there is a hiring bias in favor of taller people, as well as a “premium” for height reflected in salaries paid.

This article gives us a chance to look anew at a topic which we wrote a lot about — but not that recently.  We are talking about “Lookism,” appearance or beauty bias, and weight and height discrimination: see, for example, our posts of October 16, 2013; July 9, 2012; February 11, 2011).

tall person : salescall in retro style over white  Illustration

Taller People Wanted!

Apparently, in China job ads typically set forth height requirements, even for positions for which height is not job related.  For example, “to study tourism and hotel management at Huaqiao University in Fujian province, men topping 170cm are favoured, and women over 158cm.  A post as a female cleaner in Beijing is advertised to women of at least 162cm.”

Indeed, the practice is so ubiquitous, resumes frequently list height and weight.

height : little boy measuring growth

Women’s salaries are, unsurprisingly, most affected: the article cites a study from Huazhong University of Science and Technology which found that “each centimetre above the mean adds 1.5-2.2% to a woman’s salary, particularly among middle- and high-wage earners.”

People Are Taller Today

As in the US, people in China are living longer and growing taller:  the RAND Corporation notes that a 45-year-old man in China is around 5cm taller today than 30 years ago.

Why is this so?  “Richer people tend to eat more and live in cleaner, better homes. Meat consumption per person has increased more than fourfold since 1980. Infant mortality is less than a tenth of what it was 60 years ago. Household size has also helped. Historically people from big families have been shorter (not just in China) because food supplies must stretch further. In China the birth rate fell sharply from the 1970s nationwide.”

Income Inequality

Moreover, “Eighteen-year-olds from the richest cities are on average 7-8cm taller than those from the poorest ones. The height gap between prosperous and impoverished rural areas is similar. Southerners have long been shorter than northerners.”

Perhaps the explanation is that employers seek wealthier, healthier and better educated applicants.  No surprise there.

In any event, Chinese lawyers are attempting to draft a law “against employment discrimination for height and other physical characteristics.”

Good luck.  If the experience of the US is any guide, you will need it!

The US Experience

On March 6, 2013, we reported that the Utah Legislature was considering a bill which would have prohibited employment discriminating based on height and weight.  “Considering” is the operative word — contending that employers sometimes judge people by their height and weight, the bill’s sponsor was not discouraged when the bill was voted down by a margin of 10-4.  He said that “We start it with race, color, religion, age discrimination, those types of things. It’s a starting point. Weight and height is just a starting point that, eventually, we’ll get to that point when we have legislation that’ll address those issues.”

Opponents of the bill claimed that height and weight discrimination would be difficult to define and would be unfair to employers.

On July 9, 2012 we posted a piece entitled: Unattractiveness – The Next Workplace Protected Class? and said that “Obesity bias seems to be the most frequently observed manifestation of this.”  We directed everyone to the seminal work of law professor Deborah Rhode and economist Daniel Hamermesh, and encouraged everyone to read a great paper (with a useful bibliography), by Hofstra Professor Comila Shahani-Denning, entitled Physical Attractiveness Bias in Hiring: What Is Beautiful Is Good.”

Rhode reported that about 60 percent of overweight women and 40 percent of overweight men report experiences of employment discrimination, and that short males often get “the short end of the stick” when it comes to hiring, promotion and earnings.

Moreover, Newsweek Magazine reported that “handsome men earn, on average, 5 percent more than their less-attractive counterparts (good-looking women earn 4 percent more).”

We closed that post by stating that “If a state as conservative as Utah actually considered a height and weight law, employers should be aware of what’s coming down the pike.”

But not so soon.

Tomorrow we will do a new post on weight bias.



New Report On Sexual Abuse Of Migrant Workers In Korea

Posted in General Employment Discrimination, General Employment Matters, Harassment

We wrote last week that the EEOC recently sued on behalf of vulnerable farm workers – one of the EEOC’s priorities.   And we repeated what we had written before about the EEOC’s Strategic Enforcement Plan (“SEP”) intended to protect “vulnerable” workers, such as farm workers, migrant workers, workers in isolated areas, and mentally-challenged Henry’s Turkey workers.

It has now been reported by Veronica Huh in the Korea Bizwire that female migrant workers in Korea are similarly vulnerable to human rights violations and sexual abuse.   It is not clear from the article, but we gleaned that these vulnerable workers predominantly come from Vietnam, Thailand, China, Indonesia and Uzbekistan.

korea farmers   : South Korea beautiful Boseong Green Tea Field

A study by a human right group found that “35.5 percent of the workers reported sexual assault, 35.5 percent unwanted physical contact, 29.0 percent involuntary drinking and physical contact at company gatherings for dinner and 12.9 percent forced prostitution. The data showed that assailants were mostly bosses (88.9%) or managers (77.8%). Even 16.7 percent were other employees from the same country.”

What recourse do these workers have?

Not much — “Language barriers first stop them from reporting. Even though some manage to report their experiences, there is lack of well-organized systems or organizations to help them.  Some harassers even threaten them not to report by using their tenuous legal status in Korea.”

This is similar to what we have read from the EEOC about the ”the plight of … vulnerable workers, who are often reluctant or unable to exercise their rights under the equal employment laws.”

This is no doubt a worldwide problem – of human rights, gender rights, and labor rights.    


Fears And Stereotypes: Fired One-Armed Security Guard Wins EEOC Jury Verdict

Posted in Americans with Disabilities Act

Today we will do a “takeaway” before and after we discuss an important new jury verdict in a disability case.  

Takeaway:  Reliance on discriminatory customer preferences and stereotypes about what individuals with disabilities can and cannot do violates the ADA.

Now the case – a new jury verdict in a case brought by the EEOC in favor of a licensed security guard who lost his arm in a car accident, and was fired by his Florida security company because the customer –the  president of a community association – complained that “The company is a joke. You sent me a one-armed security guard.”

Apparently he failed to wear his prosthetic arm when he was driving around the community in a security vehicle.  The EEOC contended that the employee did not need his prosthetic arm to perform his job, and that his employer never directed him to wear it.

security guard : A security guard with a stop gesture, isolated on white

One of the EEOC trial lawyers said that the guard “was vindicated when the jury agreed with him that he could perform the job he is licensed to do. He hopes that other employers will get the message that they cannot rely on stereotypes and assumptions, and must treat people based on their actual abilities.”

Back on February 8, 2013 we wrote about this same lawsuit at the time that the EEOC filed it.  We said that ”We have been cautioning employers recently that the EEOC has been targeting ‘fears, myths and stereotypes’ in hiring and firing.”

As we shouted out on January 10, 2013:  

Employers beware! Do Not Refuse To Hire, and Don’t Fire Qualified Employees Based on Fears, Myths or Stereotypes!

There — our takeaway both at the beginning and at the end!



Sexually Harassed, Vulnerable Farm Workers Subject Of New EEOC Suit

Posted in Equal Employment Opportunity Commission, Harassment, Immigrant Status Discrimination, Race Discrimination, Sexual Harassment, Title VII, Uncategorized

We have written before about the EEOC’s announced intent, as per its Strategic Enforcement Plan (“SEP”), to protect “vulnerable” workers.  We said on June 5, 2014: “‘The most vulnerable workers’ — this is a part of the EEOC’s strategic plan for enforcement.  Protecting them, that is, as we noted before – think farm workers, migrant workers, workers in isolated areas, and mentally-challenged Henry’s Turkey workers.”

We wrote about such a case as recently as August 20th.

A new suit filed by the EEOC demonstrates this continued EEOC targeting.

The suit charges that a Maine farm and produce wholesaler maintained a sexually hostile work environment for female farmworkers for many years, with these workers being “groped, repeatedly propositioned for sex and subjected to lewd comments about their bodies by their supervisors and male co-workers.”

farm workers : Female farmer works with manure at field, holding agricultural tools Stock Photo

Despite repeated complaints by the workers, the employer took no action to address the hostile work environment – with one employee ultimately being forced to leave.

Takeaway:  Taken verbatim from the EEOC’s press announcement:

“The lawsuit, one of many similar suits filed by the agency in recent years on behalf of farmworkers, underscores the EEOC’s longstanding nationwide commitment to addressing the plight of these vulnerable workers, who are often reluctant or unable to exercise their rights under the equal employment laws.”


One Last Public Service Announcement On Sleep Apnea

Posted in Americans with Disabilities Act

Wow, did our recent sleep apnea post about the police officer who was fired strike a chord — don’t know how many folks wrote in, mostly about sleep apnea itself and not about the employment law aspect of the matter!

From the nature of the comments, it seems like this serious medical condition has been kept under wraps or hidden from view, with few people understanding the nature and severity of it, and that sufferers and their advocates seem eager to discuss it.  

Because of the flood of comments, and what appears to be a need for people to understand this condition, we publish one more comment — from one suffering reader who found relief:

CPAP : Man with sleeping apnea and CPAP machine, devise, asleep peacefully with wife in bedroom their house. Healthcare management patient with sleep apnea. Human respiratory, airway, system health issues.

Rosalind Strasser, a training project coordinator in the Orlando area:

“I can’t imagine life without my CPAP. I adjusted immediately and would say my quality of life improved 400% from before using it (seriously).  I love it when I have a cold because it pushes through the congestion allowing me to breathe. I don’t snore while using it – a benefit my husband really appreciates.  Carrying it around is a small price to pay for feeling as great as I do now.

I never understood why I would always get drowsy in the middle of the day and if riding in the car, I would be asleep within 10 minutes and if driving on a warm day, I had to fight to stay awake. I snored and had lots of anxious dreams.

It wasn’t until our secretary was diagnosed with sleep apnea that I understood what was happening to me. She was sitting at an intersection on moment and in a ditch the next. Turns out that she fell asleep at the intersection and drove into the ditch. She told me about her condition and then I heard a radio program about it. I decided to get checked and it turned out that I too, suffered.

Ironically, my dad had just got tested and had a very severe case. I wasn’t that bad, but it made me wonder how long it might have been before something bad could have happened to one of us – or someone else because of us!”