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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Tribunal Fees: Will It Deter Discrimination By Employers?

Posted in General Employment Discrimination, Uncategorized

The number of employment discrimination charges is plunging in the UK, we noted the other day: new Ministry of Justice second quarter 2014 statistics for employment tribunals “show an overall drop in claims of 71% compared with the same period last year.   The attorneys at Just Employment Law say that “Tribunal fees are likely to remain the main reason for the reduction in claims compared with the same quarter last year. …”

fees : Conceptual view of high cost legal fees  Stock Photo

What are the fees, anyway? 

And could the imposition of tribunal fees result not only in a substantial drop in claims, but also in a greater degree of compliance by employers, who do not want to be embroiled in costly litigation?   

Marina Frankel, an attorney in Preston, Lancashire, UK, asked the latter question:

“With employment litigation costs increasing for the claimants, litigants in person are also on the increase.  This makes the job of employment tribunals and employers’ legal advisers much more difficult and time consuming. Also, the costs for employers are much higher.

Could it be that costly litigation is a deterrent and employers are more careful not to discriminate and train their staff better?”

David Sorenson, an attorney in Leeds, UK, responded in the negative:

“Whilst I’d hope that the cost of litigation and threat of losing in an ET acts as a deterrent to employers (and means employers take more care not to discriminate and also to train their employees), our recent experience (as lawyers for Claimants – union members and private clients) is that ET fees have had a massive effect on employees and that the drop in ET claims is having an opposite effect on many employers – it is much less of a deterrent as it is seen as much less of a risk.

It seems those employers are becoming less concerned about ET claims, taking the opportunity to cut corners and treat their employees with less concern. I fear that this poor attitude is becoming more prevalent – meaning less equality and equity in the workplace. If right, this will harm society as a whole.”

As to what the fees actually are, Marina and Barry Fisher, a Toronto employment arbitrator and mediator, engaged in a helpful dialogue. 

Marina, when asked by Barry about the fees, replied:

“Barry, the fees leaflet can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/254326/T435_1113.pdf

For discrimination claims (Type B) the fees are:
£250 issue fee
£950 hearing fee

Employers may pay the following:
Employer’s contract claim £160
Application to set aside a default judgement £100
Application to dismiss following settlement £60
Fee for judicial mediation £600

… plus £350 if the party wishes their claim reconsidered after the hearing.”

Barry:  “Those are very high fees. I can see why they would dissuade people from filing complaints. These fees are comparable for what you would pay to issue a claim and set an action down for a trial in the Ontario Superior Court of Justice. To file an administrative complaint with the Ontario Human Rights Tribunal costs nothing. Furthermore complainants in human rights cases have access to government funded lawyers.”

Marina:  “I agree, Barry. Also, victims of discrimination do not have access to Legal Aid (government funded lawyers).  So, Solicitors’ and Barristers’ fees are additional and could end up being several thousand GBP for either party. With a statistically based common employment tribunal award being about £5000 to £10000 – no wonder there is a reduction in the issued cases.”

 

New “Bullying” Decision: No Protected Class, No Case

Posted in Uncategorized

A new decision from the New York federal court nicely illustrates some points that we recently made about the issue of “bullying” in the US, and its interplay, if any, with the employment anti-discrimination laws.

The pro se plaintiff was a college lecturer who regularly complained “regarding the bullying and harassment by [his Department’s] current Chair.”  He took his case to Court after the EEOC found no violation of Title VII, but told the Court “that he was not alleging that his Chair’s hostility was motivated by his race, sex, age, or national origin.”

On July 31st we posted that “If you take out the racial, sexual, age or other protected class aspect of workplace harassment and hostile work environment, you get, simply, bullying. There are no state or federal laws defining or regulating workplace bullying, and the civil rights laws do not cover it, since, as Justice Scalia stated in Oncale, Title VII is not ‘a general civility code for the American workplace.’”

bully : Business under pressure

The federal court similarly held that:

“Bullying and harassment have no place in the workplace, but unless they are motivated by the victim’s membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”), and any complaint to the Equal Employment Opportunity Commission (“EEOC”) based on them does not constitute “protected activity” under Title VII. “

The Court continued:   “Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”

Do We Need/Want Anti-Bullying Laws?

While the Court was sympathetic to plaintiff’s plight, it nonetheless said that he “must look outside Title VII to secure what may be their fair due.”   But what is outside Title VII that can help plaintiff?

Although no anti-bullying law exist in the US, more and more countries have taken up the issue — at least 25 have enacted such laws (see our post about Australia), and experts and pundits are increasingly raising the issue.

On February 25th we posted a comment from Prof. David Yamada of Suffolk University Law School, and Director of the New Workplace Institute, the author of template legislation that serves as the basis of most of the workplace anti-bullying bills introduced across the country. He told us that “I can attest that the need for such legislation is underscored by the terrible inadequacy of existing law, including tort claims (IIED) and other causes of action. … the template bill, a/k/a The Healthy Workplace Bill, sets a relatively high threshold for recovery, higher in fact than hostile work environment standards for sexual harassment. In other words, it’s about creating a cause of action for abuse, not incivility.”

So:   Should there be anti-bullying laws in the US?

 

Ten “Reasonable Accommodations” For Employees With Disabilities

Posted in Uncategorized

The UK’s “Personnel Today” has a good article setting out ten “reasonable adjustments” that an employer can make to accommodate an employee who is disabled.  The article cites pertinent cases to support its recommendations.

US readers can peruse this short article and substitute “reasonable accommodation” for “reasonable adjustment” and get some good ideas.

Disabilities : Attractive businesswoman in a wheelchair during a meeting  Stock Photo

Here’s a couple of suggestions found in the article:

–  allow for regular breaks to allow for the employee to cope with the disability;

–  provide a disabled employee with a mentor;

–  amend the employer’s policy on companions at certain meetings;

–  swap roles with another employee.

 

EEOC Suit: Seventh-Day Adventist Denied Job Because He Could Not Work On Sabbath

Posted in Religious Discrimination

The EEOC has just sued a North Carolina fast food franchisee for revoking a job offer to a Seventh-day Adventist because he could not work on Sabbath. 

The plaintiff, whose religious beliefs forbid him to work on the Sabbath – from sunset on Friday until sunset on Saturday – claimed that he was offered a position as a donut maker, but when he was informed that he would begin work on that  Friday at 3 pm, he told the manager that his religious faith forbid that.  The job offer was revoked.   The franchise has now been sued.

religious faith : Faith concept with bright electric lamp against dark black background Stock Photo

Recently we published a post entitled “Accommodate Religious Beliefs: The EEOC Is Watching,” and referred readers to a post of ours from  October 26, 2013, in which 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.”

On October 2, 2013 we posted about a California car dealership which had just settled an EEOC religious discrimination lawsuit for $158,000, a case based upon the claim of a Nigerian employee, a Seventh-day Adventist, who was refused the accommodation of not working from sundown Friday to sundown Saturday, his Sabbath.  When he took such leave he was harassed and then fired.    

An EEOC attorney said then that “Employers must recognize the value of diversity in their workforce, including religious diversity, and not harass or discriminate against those of different faiths or religious practices.”

Another 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.”

 

Tribunal Fees Likely Have Caused 71% Drop In Claims

Posted in General Employment Discrimination

The number of employment discrimination charges is plunging in the UK, and we previously noted that that the UK Ministry of Justice released employment tribunal stats for the first quarter of 2014 which showed a “huge fall in employment tribunal claims as a result of the introduction of fees to bring a case and have it heard.” (according to Michael Rubinstein Publishing).

entrance fee : Movie ticket stub with silver comedy and tragedy masks symbol represented by two theatrical expressions with one face smiling and happy and another feeling sad and unhappy as a symbol of theater and cinema entrance admission fee.

On August 5th we wrote that “The UK Law Society Gazette has cited an employment law firm’s research that the number of sex discrimination claims going to employment tribunals has reached the highest level in four years — up from 38% two years ago.”   However, “The overall number of claims has fallen by 80% since the introduction of employment tribunal fees in July 2013, but this appears to have mostly affected lower-value claims, the firm found.”

Thanks to the attorneys at Just Employment Law (located — for now — in the UK, but maybe next week in England and Scotland) for an “update” noting that new Ministry of Justice second quarter 2014 statistics for employment tribunals “show an overall drop in claims of 71% compared with the same period last year, and that the number of single claims has dropped by a third since the previous quarter.”

They also say that this decrease “may be partly due to the introduction of Early Conciliation by ACAS on 6 April 2014. Under that scheme, anyone wishing to make a tribunal claim must first notify ACAS and be offered the chance to settle their dispute before going to tribunal.”

But they also say that “Tribunal fees are likely to remain the main reason for the reduction in claims compared with the same quarter last year. … The union continues to argue that the fees deny access to justice for some workers and discriminate against particular groups such as women. … Labour has recently announced that it intends to abolish employment tribunal fees should it form a government at the next general election. The present government has undertaken to review the level of fees levied once their effect can be properly analysed.”

fee : Close up of poor student broke - high fees isolated on white background

 

“Diabetes on the Rise: What Employers Need To Know To Avoid Claims”

Posted in Americans with Disabilities Act

Given the “skyrocketing” incidence of diabetes, all employers should know as much as possible about diabetes and its effect on the workplace, and the basics of the Americans With Disabilities Act (the “ADA”).   

We just read a great article printed in Law.com written by Monique C.M. Leahy and the editors at Medical Law Perspectives entitled “Diabetes on the Rise: What Employers Need To Know To Avoid Claims.”   A must read, at least for HR professionals and business owners.

See also our posts about diabetes and disability law of July 5, 2014March 20, 2014; and May 16, 2013

The article states that:   “The Centers for Disease Control and Prevention recently released a report finding that more than 29 million people in the United States have diabetes, up from the previous estimate of 26 million in 2010. … 9.3% of the population have diabetes … and [i]n 2012, diabetes and its related complications accounted for $245 billion in total medical costs and lost work and wages.”

Moreover, “approximately 79 million adults are at risk of developing diabetes. … [and] 15 to 30% of people with pre-diabetes will develop type 2 diabetes within five years. People with diabetes are at increased risk of serious health complications including vision loss; heart disease; stroke; kidney failure; amputation of toes, feet or legs; and premature death.”

diabetes : Diabetes in focus with the description in radial blur.

This is catastrophic medical problem and one that seemingly will only get worse as the population ages unless people develop better dietary and exercise habits, and decrease their consumption of junk food.   Easier said than done.

But getting back to the article:  It discusses diabetes as a disability (see our post of February 8, 2012 – it has not always been considered a disability for purposes of employer accommodation), disability discrimination claims, workers comp, and other related issues in a very comprehensive way.

Use this article as a starting point to develop an understanding of the ADA, as well as a comprehensive set of employment and training policies – which are always recommended.

 

Nursing Home Settles For $35,000 — Fired Cook With Arm Limitation

Posted in Americans with Disabilities Act

This may sound like our post of two days ago in which we recounted a settlement by a care facility which refused to hire an applicant who was deaf to be a cook/dietary aide.  But it is not.

Another care facility, a NC nursing home, just agreed to pay $35,000 to settle an EEOC lawsuit which accused it of firing a cook/dietary aide whose physical impairment limits her use of the left side of her body.   According to the EEOC, her supervisor asked her soon after she began working what was wrong with her left arm, and although she explained her limitation she nonetheless said that she was still able to perform her job duties.  The supervisor fired her, saying that she did not believe she could perform her job duties without the full use of both arms.

To repeat what we said before:  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, because the EEOC does — how do you suppose the public reacts to doctors and clinics, there to treat the sick and injured, being sued for allegedly discriminating against their own employees or applicants who are sick or injured? 

This is easy stuff for the EEOC.

easy target : We make it easy

The EEOC indeed targets heath care providers for disability discrimination claims under the Americans With Disabilities Act (“ADA”),” and we have remarked many times that the EEOC targets these facilities for disability discrimination claims likely because they are fairly easy marks, and it make good PR. 

This has been echoed by the EEOC itself.    On March 10th we found support for our speculation about the EEOC’s motives — from an EEOC official.   He said that:

“Sometimes it looks like organizations engaged in the health care field or in the performance of other ‘good works’ consider it impossible for them to have discriminated — or to be challenged for having discriminated — particularly when it comes to the ADA.   But our experience has been that all organizations, whatever their line of business and however they are organized, are vulnerable to falling into patterns or acts of discrimination if they do not consciously make compliance with federal anti-discrimination laws a priority.” 

So, once again, health care providers must be extra careful when it comes to the ADA — train, train, train your employees well!

 

Employee Handbooks: An Employer’s First Line Of Defense

Posted in Employee Training Programs, General Employment Discrimination, General Employment Matters

We have been touting the value of handbooks for years.    See our two-part “Top Ten Essential Components Of An Employee Handbook,” posted on July 15, 2010 and August 2, 2010.   We intend to write again soon on this topic.

handbook : employee manual book illustration design over white

“The reasons for employee handbooks are many,” says business consultant Jan L. Makela in The Frederick News-Post, “but primarily, they are an employer’s first line of defense in the event that a claim is filed against you by a current or former employee. If you don’t have written policies, you have no defense.”    We reprise publication of his remarks because they are important.

You will find that Jan’s short article supports our mantra: “You Need A Handbook!”    It describes the typical contents of a good employee handbook, such as, for example, anti-discrimination policies, standard of conduct, general employment procedures, employee benefits, and nondisclosure agreements, and the reasons for inserting these.

“Handbooks are an absolute necessity for a business,” says Jan, and the “intent is to spell out for the benefit of the employees and your company what can be provided and what the expectations are in working for your company.”

Care Facility To Pay Deaf Applicant For Failure To Hire

Posted in Americans with Disabilities Act

Last January, we posted about a newly-filed EEOC lawsuit which alleged that a  nursing care facility offered two part-time positions to an applicant who is deaf (dietary aide/assistant cook).  The claim was that when he was called in for a follow-up interview with different managers he was “grilled about his ability to communicate,” after which he was informed that the facility had “decided to pursue more experienced candidates.”

health care facility : Background concept wordcloud illustration of healthcare glowing light Stock Photo

Now the employer has agreed to pay the price — $75,000 in settlement — for failing to judge job applicants with disabilities “on their ability to do the job and [] not be rejected based on preconceived, unfounded notions about their limitations,” as an EEOC attorney put it.

It’s been awhile since we used our “shooting fish in a barrel” mantra as a way of describing the EEOC’s targeting of heath care providers for disability discrimination claims under the Americans With Disabilities Act (“ADA”).”   We zero in on all lawsuits filed by the EEOC against medical professionals and health care facilities for alleged violations of the ADA, and have suggested many times that the EEOC targets these facilities for disability discrimination claims likely because they are fairly easy marks, and make good PR.

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, because the EEOC does — how do you suppose the public reacts to doctors and clinics, there to treat the sick and injured, being sued for allegedly discriminating against their own employees or applicants who are sick or injured?

The EEOC has said many times that:  “Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).”

So, once again, health care providers must be extra careful when it comes to the ADA — train, train, train your employees well!

 

 

Is Your EEOC Regional Office The Fiercest?

Posted in Equal Employment Opportunity Commission

Recently, Law360 published a short article on what it called the “five most fearsome EEOC regional offices.”

fierce animal : Lioness displays dangerous teeth during light rainstorm  - Kruger National Park - South Africa Stock Photo

I guess by “fearsome” they meant aggressive, or possibly “the office employers should be most afraid of.”    No matter.

They included:

–  Chicago:  crusaders “on multiple fronts;”

–  Philadelphia:  criminal background check crusaders;

–  New York:  aggressive on pregnancy/sex bias issues;

–  Houston:  on the cutting edge novel issues;

–  Phoenix:  traditional Title VII warriors.

Does anyone have stories or comments about the fearsomeness of any of these offices?

Are there other offices which you feel deserve honorable mention?  Does yours? 

Please feel free to let us know.