Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

As officers charged with preventing sexual assaults have been charged with sex crimes themselves, the scandal in the US military is mounting.  In an editorial, The Virginian-Pilot, citing a new Pentagon report, noted that “an average of 70 sexual assaults involving military personnel occur every day. … as many as 26,000 military members were sexually assaulted last year but fewer than 3,400 reported the incident.” 

Reuters reported that the Chairman of the Joint Chiefs of Staff said that the military is losing the confidence of women members, and the Defense Secretary directed that a plan for training and credentialing those personnel who interact with recruits and sexual assault victims be formulated. 

 

Does the history of the military's response to sexual assaults give us any reason for optimism?

 

 

The 1991 Tailhook Sexual Assault Scandal

 

The Virginian-Pilot reports that a year ago, eight Air Force members, or former members, who were victims of rape or assault sued claiming that they suffered retaliation when they reported it to their superiors. They alleged that the military has a "high tolerance for sexual predators in their ranks" and discourages victims from coming forward.  Robin Abcarian, Los Angeles Times columnist, who writes “another day, another military sexual assault scandal,” recalls the 1991 Tailhook sexual assault scandal, where at least 83 military women and seven men were assaulted.

 

One female pilot testified that "I got attacked by a bunch of men [fellow pilots] that tried to pull my clothes off. I fell down to the floor and tried to get out of the hallway, and they wouldn't let me out. They were trying to pull my underwear off from between my legs."  She pleaded for help from a passing pilot, who joined in the assault.

 

She reported this assault to her superior, Rear Adm. Jack Snyder, who said, "Well, that's what you get for going down a hallway of a bunch of drunken aviators."  Rear Adm. Duvall Williams Jr. stated that, given the language used by one female victim, "Any woman that would use the F word on a regular basis would welcome this type of activity."

 

The Navy Secretary resigned, and Rear Adm. Williams took an early retirement.

 

As Abcarian says, “The Pentagon sternly vowed it had ‘zero tolerance’ for sexual harassment and assault.”   Sound familiar?

 

 

Is Education and Training Enough?  What Is To Be Done?

 

Reuters reports that despite years of training, role playing, a video game called "Team-Bound," and the "I Am Strong" sexual assault prevention campaign, all designed to educate about sexual harassment, there was a 37% increase in sexual assault cases in 2012. The Virginian-Pilot says that “Anecdotal evidence is substantial, and it spans years, showing that training, tracking and enforcement efforts aren't working.”

 

As the Reuters story says, “critics say training may never be enough to do away with the problem.”  It quotes former Marine Captain Anu Bhagwati, executive director of the Service Women's Action Network, who helped implement sexual assault prevention training way back in 2004:  "The military cannot train its way out of this problem.”

 

Then story says that Captain Bhagwati “urges the military to take prosecution of sexual assault cases away from the chain of command, making it easier for victims to seek justice, an idea echoed in a Senate bill last week.”

 

 

Let’s give Robin Abcarian the last word in this post:

 

“Tailhook represented the sort of lawless, alcohol-fueled behavior that was never supposed to happen again in an age where increasing numbers of women were in the military. Things have changed since Tailhook, that's for sure. Military sexual assaults no longer occur in raucous hotel corridors. Instead, they're taking place in more private settings, and in record numbers.

 

Good work, Pentagon.”

 

 

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In our effort to be fair and present all sides of an issue, and to encourage discussion, we print here a comment from a reader, Anthony Vieira, an attorney from LA:

“Mr. Cohen, there are more than 2.2 million personnel serving in our US armed forces. That today we have "Another" sexual assault is an issue for the people and the command involved. Your trying to go further and loop it into some embedded pattern of conduct is lawyer talk and nothing more. This is particularly evident where you make the further claim, as a lawyer, that the issue is the chain of command structure and that it has to go. There are layers of complexity here that you'll never understand because you evidently haven't tried to. Talking without making some minimal effort to comprehend the issues doesn't become us as a profession. We all need to do the hard work of understanding what's set before us before we can begin to talk credibly (and persuasively) on anything.”

Any thoughts or comments on this issue? Please let us know.

 

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“Harrowing,” “appalling” and “extreme abuse” were words used by EEOC lawyers regarding a series of lawsuits targeting sexual harassment, particularly of farmworkers who are subject to an "appalling abuse of power."

One example was an EEOC suit against National Food Corporation, a major egg supplier in Washington.  It was alleged that the company allowed a supervisor to physically grab a female worker who worked alone in a henhouse where the harasser was the only management person on site. He made sexual demands upon her several times a week from 2003 to 2010.

She said that "For almost seven years, I tried to just survive these demands from my boss, because I needed to support my mother and my daughter.” 

 

Now the company has settled this action for $650,000.

 

The EEOC General Counsel stated what we have been repeating for years: "It is one of the EEOC's national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse."

 

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Don’t say that the EEOC did not warn you – it included GINA as one of its priorities in its Strategic Enforcement Plan ("SEP").  So now, hot on the heels of its first GINA lawsuit (and settlement), the EEOC announced thatit has filed a GINA class action against The Founders Pavilion, Inc., a Corning, N.Y. nursing and rehabilitation center.  Under GINA, employers cannot, in the hiring process, request genetic information and family medical history.

The EEOC alleges that the company conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history.

 

Elizabeth Grossman, the NY EEOC’s regional attorney said that "GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law.  Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women."

 

That last statement should resonate with health care facilities, who we have repeatedly warned that the EEOC is targeting under the ADA for disability discrimination.  Now, it seems, it is targeting them under GINA too.

 

 

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Once again, despite the express feeling of being "ashamed" about sexual assault in the military by the President, there is a new story tonight about a military arrest - it has been reported that a Lt. Col. at Ft. Campbell who is a sexual harassment prevention officer has been arrested for a sexually-related crime.

This case is distinguishable from our previous posts because his issue was with an ex-wife with mutual restraining orders, not with subordinates.  He was removed fom his position by the Army while his domestic dispute is beign resolved.     

In any event, the US military has a clear institutional resistance to any change.  The "chain of command" model must be changed.  Without a change of the culture of the military, these episodes will continue.

This is no joke - it is a serious situation of criminal behavior.

 

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In a military where, last year, there were a whopping 26 convictions out of 26,000 charges of sexual assault (and only 3,000 reported charges), the news tonight is that the sexual harassment prevention officer at Fort Hood has been arrested for sexual assault and for forcing a subordinate into prostitution.  This is the second such officer arrested in a week. 

Seems that the chain of command structure, where it behooves a superior officer to cover up such charges, may be a factor, as well as the entire, engrained culture of the military.  This scares victims into keeping silent about such assaults.

Law enforcement is failing in the US military.

More as it comes to light.  

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Although the UK Equality Act, like the US ADA, prohibits disability discrimination, a Macmillan Cancer Support/YouGov online survey says that 37% of employees who undergo cancer treatment report discrimination, an increase from 23% in 2010.  It also found that 9% felt harassed enough to quit, and 13% reported lack of reasonable accommodations. 

The Chief Executive at Macmillan Cancer Support noted that: 

“As our population grows and ages, and the retirement age rises, cancer will become an increasingly common issue for employees and their managers. It’s vital they are equipped to help people with cancer stay in work. It isn’t difficult and it is likely to be cheaper and easier than recruiting a replacement or defending a discrimination claim.”

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My faithful assistant Chrissie has been working hard to come up with a good Friday 5-Minute Laugh Session for this week's installment.  She decided to try to come up with one related to training, since I had two training sessions this week with a client covering employee relations for managers.

 

I am pleased to report that my training sessions went much better than this, but this Duck Dynasty clip is priceless in demonstrating how quickly a session can get out of hand with unruly employees.

http://www.youtube.com/watch?v=KC4BRcRr5Z4

Happy Friday!

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Our post the other day about an employer in Australia found liable under workers comp for an employee's injuries suffered from wild sex and a falling chandelier drew more comments than any single previous post.  Can't figure out why?

The best comment (so far) is from Laurie Butler, an HR person, who wrote on a LinkedIn group page the following:

"Aussies -- you've gotta hand it to them! It's an interesting thought. The employer had to pay compensation because it had caused her to be in the room. So if she had sex on the desk in her cubicle, and the desk collapsed and injured her, the employer would still be liable? The employee has a desk for the purpose of taking care of the employer's business. I know that a certain amount of joking around and horseplay is to be expected, but wild and crazy sex? I guess employers are going to have to have people sign waivers before they travel on business: I hereby agree that I will not engage in any sexual activity other than the missionary position while traveling for work purposes.  Ah -- life in Oz! G'day, mate!"

 

A partner of ours asked whether this waiver would give employers license to inquire about the sex lives of employees.  Oy vey!

 

 

 

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Last night's post was confirmed in a short article in today's NYT -- Lt. Col. Jeffrey Krusinski, the Air Force officer in charge of sexual assault prevention and response program for the last two months was arrested for sexually assaulting a woman in a parking lot.  

ABC News reported similarly that Col. Krusinski was arrested in Arlington upon a report that  "a drunken male subject approached a female victim in a parking lot and grabbed her breasts and buttocks."  She apparently fought him off vigorously.

"Defense Secretary Chuck Hagel was said to have expressed 'outrage and disgust' over the arrest, which comes as the Pentagon prepares to release a report Tuesday showing the number of sexual assaults in the military increased in 2012."

Unsurprisingly, or perhaps surprisingly, the Air Force removed him from his job. 

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Chris Hayes has just reported on MSNBC that Air Force Lt. Col. J. Krusinski, head of the Air Force sexual assault and prevention program, has been arrested -- for sexual assault.  

 

More tomorrow.

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"The line between sexual banter and harassment can sometimes be indistinct, even blurred. But crossing it is costly.”  We posted this comment last week. 

How about when the comment does not rise to even mere banter but is only a casual remark or even simply a workplace compliment?  Are these comments safe or taboo?

Leanne Italie, writing for the Associated Press and published in Rocky Mount Telegram, asked “Are workplace compliments focused on looks or other personal details like dress ever OK? Is the alternative a more sterile professional life? When do such remarks rise to actionable harassment, or become worthy of a friendly rebuff or a trip to human resources?”

She cites to experts who suggest that “tone, context and a pattern of behavior are everything when it comes to unwanted remarks.”  No doubt this is true.  However, as we noted a few times, as recently as yesterday, the specter of male power differential still is ever present: one labor lawyer said that  “Whenever you’re in some kind of a male-dominated world, there are always many sides to a compliment. They’re about power and so using a compliment is a way to change the power dynamic between two individuals, and there’s some tension there. That happens very frequently.”

So can a compliment be considerd harassment?  This same lawyer said that “When you’re thinking about the legal landscape, compliments alone don’t typically constitute unlawful sexual harassment.”   But its all about context -- and whether a compliment is simply a starting point for banter, or something else.

 

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Groping, insulting, and threatening female employees has just resulted in an award by a federal jury in Tampa of $20.2 million in damages in an action which alleged a hostile work environment.  The accused company officers did not appear at the trial (presumably because they tanked the company).

One 66-year old former employee said that "it made me physically ill. And I felt ashamed that I was there. One of the managers actually carried around a picture of his manhood on his cellphone, and he would stick it in one of the employee's faces.  And he sexually assaulted, violently, the back of my chair telling me 'I'm going to show you what a dog is.' And he physically almost knocked me off my chair."  

The attorney for plaintiffs expressed it quite accurately:  "Sexual harassment against women is really an issue of power.  It's an issue of men in the workplace trying to exert their power over these women."

 

 

We wrote previously about a German government report which affirmed what we have always believed, that “[i]n most cases, there is a big discrepancy in power between the perpetrator and the victim, and the former often abuse the latter’s dependence."  

 

In our blog of December 27, 2012, we wrote that low status in the workplace has been found be a cause of harassment, according to a study by Illinois State professors Kimberly Schneider and Patricia Jarvis (and reported by Business News Daily).  They found that adolescents employed as sales clerks or flipping burgers are more likely to be sexually harassed by older co-workers than adult employees, and more likely to be harassed than adolescents in jobs that provided more meaningful work and autonomy.

 

It should therefore 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.” 

 

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An employee, not otherwise disabled, is fired because he takes time off to care for a disabled son.  Is the ADA violated?  An employee is fired because of the disability of her spouse, who is also an employee at the same company. Is the ADA violated? 

There are two related concepts here: (1) “Associational discrimination,” where the Supreme Court held that, for example, the anti-retaliation provision of Title VII protects employees from retaliatory termination where that employee was the fiancé of another employee who exercised her rights under the statute to file a discrimination complaint; and (2) “Family responsibilities discrimination,” where it has been held that the ADA makes it unlawful to deny equal jobs or benefits to a qualified individual “because of the known disability of an individual with whom the qualified individual is known to have a relationship.”

While one court stated that "punishing someone because of who he or she associates with doesn’t pass the smell test,” nonetheless “[a]ssociational discrimination claims are unlike those otherwise falling under the ADA because employers are not required to provide reasonable accommodations to non-disabled workers.”

An interesting decision has been handed down by an Employment Tribunal in the UK, in which the plaintiff employee was disabled with a degenerative disc disease, and her husband, also an employee, was similarly disabled, with leukemia. Plaintiff was required to take time off because of back pain, and for high blood pressure which she suffered when her husband required chemotherapy.

She was fired, and her manager stated that "if I had known about your husband's illness I wouldn't, no might not, have taken you on."

Under the Equality Act 2010, the Tribunal upheld her claims of both direct disability discrimination and discrimination by virtue of her association with her disabled husband.  The Tribunal held that that when the manager found out about the disabilities of both plaintiff and her husband he made a “stereotypical assumption” that plaintiff would be an unreliable and underperforming employee because of the disability of both parties, and plaintiff’s firing was therefore based upon plaintiff’s disability and by association with her husband’s disability.

One UK commentator called this “’double trouble’ for the employer as the dismissal was direct discrimination because of P[laintiff’s] own disability and her husband’s disability (associative discrimination).”

See Price v Action-Tec Services Ltd t/a Associated Telecom Solutions, ET 1304312/2011

 

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We don’t mean to keep flogging the oft-cited vulgar (and annoying) parrot case but it makes a point. A parrot was kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended female nurse. The nurse complained, nothing was done to remedy the situation, and the nurse sued for sexual harassment. 

She won, because as we repeatedly remind readers, there is a concept known as “third-party harassment” where, as the EEOC stated recently, “courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.” The parrot may have been a harasser, but the hospital was liable.

A new decision from a federal appeals court makes the same point. Plaintiff was employed as a detention officer by a private firm, MVM, that provided security services to, among others, the Bureau of Immigration and Customs Enforcement (“ICE”).  Plaintiff worked with ICE agents, but was supervised by her company. She reported to her supervisor that an ICE agent was "bothering" her with phone calls, and asked the supervisor to remove her number from the list – which he could not do because that was contrary to policy.  

She later reported that the same ICE agent “grabbed her and started kissing her against her will. He touched her all over. She tried to push him off her but could not. He stopped when [another employee] got back.” She sued the company for, among other things, sexual harassment.

The Court rejected her claim because there was no evidence that the company was on notice of the phone calls being sexually harassing, only bothersome, and so the later physical assault could not be attributed to the company.

But for our purposes, the Court re-affirmed the concept of third-party harassment:  “the  accused harasser … was not an MVM employee like [Plaintiff]. But because, as we have just said, employers must provide their personnel with a harassment-free workplace, they may be on the hook for a nonemployee's sexually-harassing behavior under certain conditions – one of which being that they knew or should have known about the harassment and yet failed to take prompt steps to stop it (emphasis added).”

 

Take-away:  Even though the parrot and the ICE agent were not employees, the fact that they were both  harassers could render the employer liable just as if they had been employees.

 

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 This headline sure sounds lurid and outrageous: a teacher who takes a student to a dance, gets her totally drunk and takes her home at 3 am. And his firing was reversed by the court!   Let’s add some more facts from the case and ask at the end of this article if the results should have been different.

 

The case arose in the UK, and the teacher had the parents’ consent to take her to the concert (but not to get her drunk or return her at 3 am – by which time the police had been called).   At his disciplinary hearing he testified (and produced medical evidence) that he had hypomania caused by bipolar affective disorder (which had not yet been diagnosed) and/or the effects of depression. He claimed that his judgment was thus impaired by his disability.   Nonetheless, he was fired for gross misconduct, and sued for disability discrimination under the Equality Act of 2010..

 

The Manchester Employment Tribunal reinstated him, holding that his conduct was “substantially affected by his mood change and hypomania as a result of bipolar affective disorder exacerbated by his medication at the time, to the extent that the Tribunal finds that the predominant reason for the behaviour was the disability.” While noting that  the school’s discipline of the teacher was in furtherance of safeguarding children and of protecting the school’s reputation, the tribunal held that dismissal was disproportionate in achieving the safety aims.

 

The tribunal stated that the school “failed to carry out any kind of exercise of assessing or evaluating the risk of repetition. … [which] is fatal to any justification argument based around the risk to children,” and that the teacher’s firing was not “proportionate to address any perceived threat to reputation”.

 

The takeaway from this British case is that under the UK Equality Act of 2010, the punishment must fit the crime when it comes to disability discrimination. Put another way, when there is a disability, the employer can discriminate if the result is proportionate to the challenged actions.

 

Is this a just result? Would this be the result in the US?   

 

See Jamieson v Governing Body of Chorlton High School, [2013] EqLR 429 (Manchester Employment Tribunal, February 21, 2013)

 

 

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In a significant decision dealing with the New York City Human Rights Law (“NYCHRL”), a federal appeals court held that this law is far broader in its protections of employees than either Title VII or state law and must be considered independently by the courts.    

 

This was a case of gender discrimination and retaliation, where a female employee alleged that her supervisor ran the office like a "boys' club," solicited her sexually, and fired her for rebuffing his advances.  The lower court granted summary judgment to the employer, and, the appeals court found, erroneously relied upon the traditional federal standards for discrimination and retaliation –  which was held to be inapplicable under the NYCHRL.   

 

Although some commentators have given the case only a superficial reading when they observe that given the substantial evidence of the employee’s poor performance the ruling is that “even mediocre employees” are protected from sexual harassment, the real takeaway is the Court’s holding that when NYC passed the Local Civil Rights Restoration Act of 2005, it intended to abandon federal standards and create an independent analysis of NYCHRL claims.  The Court’s 39-page discussion was clearly meant as a guide to bench and bar as to how discrimination claims must be analyzed under the various laws.    

 

Significantly, the Court noted that federal district courts have misapplied the NYCHRL since 2005 and relied still upon the federal analysis.  Indeed, the Court held that the City law was intended (1) to be “broadly construed” to provide broad remedies for discrimination, and that (2) a “one-way ratchet” was created by which federal and state standards were only to be a floor below which the City law cannot fall.   

 

The result of the decision – discrimination claims that fail under federal and state law must be considered separately under the NYCHRL.

 

So you can throw out the “severe or pervasive” element for sexual harassment – and substitute “liability simply by the existence of differential treatment.”  That is, gender discrimination can be established if the employee shows that she has been treated “less well” than other employees because of gender.  Severity or pervasiveness is relevant only as to damages.  “Even a single comment that objectifies women” may be actionable given the totality of the relevant circumstances.

 

As an employer, you can also forget about pinning your hopes on summary judgment – the Court pretty much said that, although summary judgment is a federal procedural rule that the NYC law cannot abrogate, a jury is a better position to assess NYCHRL claims.

 

This decision, which is reader friendly, is one of the few that we recommend that employers, general counsel and HR people read.  

 

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A reader of this blog who is a San Francisco attorney, Karyne T. Ghantous, recently addressed our post “Can a chef who is severely allergic to food be accommodated in a restaurant? Is a nut allergy a "disability?  Her incisive comment below is worth reading:

 

“This is sure to be a hot topic in the future, if it is not already. A UCLA study recently found that "the occurrence of allergic disease is skyrocketing, and some estimates are that as many as one-in-five Americans have an allergic condition."

I believe persons with nut allergies could qualify their medical symptoms as a "disability" under FEHA which defines a physical disability as "any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech, organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult."

Physical disability also includes any other health impairment that requires special education or related services; having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment which is known to the employer; and being perceived or treated by the employer as having any of the aforementioned conditions. Assuming a documented nut allergy is known to the employer, a restaurant owner would then be required to provide a reasonable accommodation unless they can prove an undue hardship to the business operation.

The question thus becomes fact dependent. For example, whether it is reasonable to require that particular restaurant to provide some type of reasonable accommodations, like providing the chef with an assistant to handle allergy producing foods. However, if the chef has a severe allergy and cannot be around nuts without risking an allergic response, the restaurant owner could establish that a reasonable accommodation is not possible or would produce a liability to the restaurant, resulting in a cost to the restaurant that outweighs the chef's accommodation needs.

Ultimately, the analysis of these cases is likely going to have to be factual specific and will depend on the restaurants' ability to demonstrate the feasibility of the accommodation in relation to its cost which may or may not be found to be a "reasonable accommodation" under the law.”

 

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A Nevada engineering company, which the EEOC accused of requiring a pregnant employee to be certified to carry live ammunition and explosives, has -- surprise! -- just settled this case of pregnancy and disability discrimination for $70,000. 

 

  The employee was a pregnant and disabled technical assistant who was employed, along with her husband, at the Hawthorne Army Depot.  The EEOC alleged that:

 

1.  A manager made derogatory remarks to her and denied her request for an accommodation -- to move her office closer to the restroom because of her severe nausea and vomiting.  

 

2.  The company changed her job description while she was out on pregnancy leave, to require that she be certified to carry live ammunition and explosives, and then fired her.

 

3.  The company demoted her husband, and fired him for complaining of his wife's treatment and participating in the EEOC investigation of his wife's case.

 

The EEOC reiterated in its press release that ADA and pregnancy-related limitations comprise one of the six national priorities identified in its Strategic Enforcement Plan (SEP).

 

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This Utah company must be the poster child for the “worst practices” award: a company supervisor repeatedly called a class of African-American employees racial slurs such as the “N-word;” the company had an anti-harassment policy which directed employees to report harassment to their harassing supervisor; and the company fired one of the employees for complaining.

 

Can you pick out all of the acts which violated Title VII?  They cost the company $230,000 in a settlement just reached with the EEOC.

 

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Is "Zero Tolerance" an ambiguous term, we asked recently?  We did not anticipate the reactions which we received -- some were hostile to the very notion of "zero tolerance," some found it lacked due process elements, and others found that it could cause unanticipated problems in the workplace.    Here is a sample of four reader reactions:      1.  Zero Tolerance is A Synonym for Non-thinking   "Zero Tolerance is not ambiguous at all - it is a synonym for non-thinking. Zero Tolerance replaces thoughtful weighing of the facts and circumstances with knee-jerk reaction. It replaces fitting the punishment to the crime with draconian penalty. It assumes a crime where there may be none. It is, in short, a miserable excuse for policy."

 

2.  Zero Tolerance Introduces Opportunities for Bias and Provides No Due Process

"Among some social justice advocates, zero tolerance policies are in disfavor. This is because when they are used in schools in regard to alleged violence, for example, they almost inevitably work against African-American students. Although such policies seem objective, when implemented they are subjective, and introduce opportunities for bias. They also provide no due process, no opportunity for introduction of evidence or rebuttal, and no progressivity in discipline. They take away thought and consideration, and can lead to absurd results, like the small boy who got kicked out of school because he pointed his finger at someone and said "bang."

"This statement you are considering, ""organizations in which employees believe that (1) their company takes the issue [of harassment] seriously; (2) it is safe to complain; and (3) there are meaningful sanctions for offending, have many fewer problems with sexual harassment. The belief among employees that their organizations 'tolerate' harassment is the most powerful predictor of whether it will occur and will be damaging if it does," is okay, but leaves out nondiscrimination policies and the important neutral, objective, and prompt investigative step."

 

 

3.  Zero Tolerance Should Be Reserved For Serious Violations

 

"That people are unaware of what "Zero Tolerance" means, that there is ambiguity at all, is concerning. In some organizations it means that the maximum penalty is applied (most seriously is termination and/or prosecution under the law if applicable) regardless of circumstances if it is confirmed that the particular policy is violated. In other organizations it actually means that some form of disciplinary action will occur (but not necessarily the maximum penalty) and what exactly will happen will depend on the circumstances. Of course, the actual application of this term, depending on the organization, as been everywhere in between these two ends.

And that, perhaps, is why the term has such ambiguity. Does it need a legal definition? Does it need some sort of policy definition that is uniquely different from organization to organization? Does it need to go away altogether in favor of clearly defined consequences for the actions that currently have "Zero Tolerance"? What is best for each organization may depend on the corporate and ethical cultures of the organization. In either case, Zero Tolerance should be reserved for serious violations (and usually is) and should be anything BUT ambiguous.

There should always be nondiscrimination policies as well as neutral, objective, and prompt investigative steps followed to ensure that the truth is discovered and that the punishment fits the crime."

 

4.  One Size Does Not Fit All -- The Punishment Should Fit The Crime

 

"I don't think the issue is so much about the "zero tolerance" as it is with the one size fits all discipline practice where some organizations apply the same harsh discipline to all violations regardless of how minor. There should be an investigation and then the punishment should fit the crime. That punishment could be as simple as telling someone what they just said or did is not acceptable and don't do it again or it could be as serious as termination."

 

Keep those cards and letters coming in!

 

 

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It's no joke to those who suffer from allergies to peanuts and other nuts. But is such an allergy a disability for which a restaurant chef can allege discrimination?

In a strange case arising in the UK, it appears that a chef in an historic 14th century inn developed an allergy to nuts so severe that “he nearly died after being rushed to hospital after coming in contact with peanuts. ... the smell and touch of all types of nuts made him ill and caused a skin disorder.” 

 

The news report was a little incomplete and confusing, but it seems that the chef apparently developed the allergy after he became employed (he was employed for 10 years), and that he must have been terminated since (we speculate) he could not be accommodated by the restaurant.

 

The Employment Tribunal apparently ruled that the allergy to nuts was, in fact, a disability which affected the chef’s major life activities – his diet has had to be changed, he also has to be careful when shopping for food and preparing it, and his social life has been restricted.  The Court ruled that the chef could seek compensation for disability discrimination at a full hearing later this year.

 

We do not doubt the reality of this poor chef's medical condition, but we are forced to ask:  can a chef who is allergic to food be accommodated in a restaurant? 

 

 

 

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This astounding figure was just reported by The Institute for Women's Policy Research using 2011 government census data.  

Other organizations have similarly reported on the gender wage gap -- the difference in pay between men and women.  The National Women's Law Center has just published a fact sheet entitled "Closing The Wage Gap Crucial For Women Of Color And Their Familes." 

Additionally, click here to link to the map compiled and published by the "National Partnership for Women & Families," which shows the gender wage gap in all 50 states and in the top 50 metropolitan areas. Seattle had the widest pay gap, followed by Pittsburgh, Buffalo, and Detroit.  Los Angeles had the narrowest gender wage gap, followed by Las Vegas, Miami, and San Antonio. 

 

Check out the map to see how your city and state are doing! 

 

 

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"Zero tolerance" as to workplace harassment is a mantra we preach often, and have never thought that it could be considered controversial in any way.  However, one reader made us think, stating that although he agrees with the "the concept of zero tolerance in theory," nonetheless he "never knows exactly what it means. I'm afraid it's an unworkable concept, misleading because of its ambiguity, and thus may lead to cynicism on the part of employees. I wish the term would just sort of 'go away.'"

 

The idea of employee cynicism troubled us; among many other evils it is bad for company morale.  

Does anyone have any thoughts on the matter?    

 

Our friend also wrote very wisely that "organizations in which employees believe that (1) their company takes the issue [of harassment] seriously; (2) it is safe to complain; and (3) there are meaningful sanctions for offending, have many fewer problems with sexual harassment. The belief among employees that their organizations 'tolerate' harassment is the most powerful predictor of whether it will occur and will be damaging if it does."

 

We are considering whether to substitute this latter statement for the "ambiguous" term "zero tolerance."

Any advice?

 

 

 

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A year ago we reported that up to 30 female employees were preparing to sue the BBC alleging sexism and age discrimination. We quoted the BBC director-general as conceding that there were “manifestly too few older women broadcasting on the BBC.” 

We have now learned that more than 850 BBC employees have come forward alleging bullying and sexual harassment at the BBC, and that a senior BBC executive has been accused of bullying by more than 20 employees.

After last year’s allegations and other claims lodged by employees of “routine groping,” a review by a human rights lawyer was ordered in which BBC employees were assured anonymity if they reported incidents of harassment.

 

The BBC’s director of human resources said that some of the testimony is “uncomfortable to hear,” and a spokesman said that ‘We have recognised the need to take a serious and thorough look at the issues of sexual harassment and bullying.”

 

 

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My assistant, Chrissie, (take a bow, Chrissie)  just showed me a hilarious Saturday Night Live clip of an old musical Christmas skit whose song inexplicably popped in her head today. 

 

Chrissie said we should do this every Friday, have a little 5 minute laugh session.  I immediately said that's a great idea.  As I then went back to my desk, I ruined my own little bit of happiness by doing what lawyers do best -- over thinking things. 

 

What do you think was my first thought as an employment lawyer? It was: "If we did this, I would have to pre-screen them to make sure they were appropriate."  My second thought as I was pulling up the video to watch it again was "Oh, I didn't really listen to the words the first time, I hope this one was appropriate." 

 

I have since watched it again and confirmed there was nothing off-color.  Some of you may be thinking I am over-reacting, but I have spent the afternoon walking a client through a harassment investigation.  Like in a lot of cases, in that case, what started as a joke has now snowballed into a pretty nightmarish situation.  The last thing I need is to be at the center of one of those investigations.

 

In the meantime, I bring you a little silly cheer on this Friday afternoon in New Jersey:  Here it is from the Late Night with Jimmy Fallon Blog. 

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Could this signal the high water mark for the EEOC’s targeting sexual harassment of workers in the agricultural industry?

 

Our readers know by now that under its Strategic Enforcement Plan (“SEP”) the EEOC is targeting harassment against “vulnerable workers,” such as migrant workers.  See our blog of March 18, 2013. 

 

In a recent settlement, the EEOC announced that “The Spud Seller,” a potato wholesaler in Colorado, had agreed to pay $255,000 in a sexual harassment lawsuit where the warehouse supervisor repeatedly harassed at least 10 female hourly employees who worked as potato sorters. Over a six-year period, he repeatedly made sexual comments, groped and touched them, exposed himself to them, and solicited sexual acts. An EEOC attorney said “The EEOC considers protecting immigrant, migrant and other vulnerable workers from discrimination and harassment a priority under the Strategic Enforcement Plan."

 

We have now learned that a jury in federal court in Yakima, Washington has found in favor of a large apple grower against 14 women who claim to have been subjected to ongoing sexual comments, unwanted propositioning and physical groping. The court heard testimony that a supervisor told one woman whose 16-year-old daughter also worked at the company, that she should give her to him for sex.  It was testified that he harassed the younger woman repeatedly, telling her he wanted her sexually, pressed up against her body and touched her breasts.

 

The company contended that none of the plaintiffs complained of harassment, and that a “disgruntled cousin” of the supervisor was the source of the complaints.

 

Said an attorney for the company: "We can only hope this verdict changes the confrontational manner in which the EEOC approaches its claims against members of the agriculture industry."

 

Said an EEOC attorney: "We believe (sexual harassment) is still a problem in the industry," and that in sexual harassment trials one the issues will always be he said-she said.  

 

It will be interesting to see how this adverse verdict impacts the EEOC’s Strategic Enforcement Plan or its zeal to implement it.

 

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Don't let your employees make more than four sexually harassing comments, although telling an employee repeatedly that “she had to clean the trailer while wearing a French maid’s costume” may be OK.

 

In a Nevada case, a co-worker of a woman employee told her that “a large-breasted woman, whom he called 'Double D,' would attend a company event, and asked her 'whether the size of the woman’s breasts intimidated her.'  He later spoke to her about tampons and "asked whether women ‘got off’ when they used a particular kind.” He also told her that “women were lucky because [they] got to have multiple orgasms.”  

 

Additionally, whenever she saw the co-worker or answered his phone, he told her that “she had to clean the trailer while wearing a French maid’s costume.” 

 

Plaintiff demanded each time that these comments stop, and reported each incident to the company president, but the comments continued.

 

 

At this point, if we had been counsel to the company, we would have been alarmed at these comments and the behavior of the co-worker (and the plaintiff’s supervisor, who apparently witnessed most of these comments and plaintiff’s protests). We have always advised a zero-tolerance policy towards sexual harassment, and appropriate training for managers and employees, and would have looked at these comments as a cause for concern.

 

 

But a federal appeals court felt differently and was not as concerned.  It preliminarily noted, correctly, that a hostile work environment is caused by offensive sexual conduct which is so severe or pervasive that it alters the conditions of the plaintiff’s employment and creates a work environment that a reasonable person would consider hostile or abusive.  Nonetheless it found that the plaintiff “did not make out a prima facie case of sexual harassment because the evidence will not support a finding that the offensive sexual conduct was so severe or pervasive that it altered the conditions of her employment and created a work environment that a reasonable person would consider hostile or abusive.”

 

 

The Court held that “[a]lthough we certainly do not condone [the] crude and offensive remarks, we note that … [o]ther than his references to the French maid’s costume, [the co-worker] reportedly made offensive sexual remarks to [plaintiff on only about four occasions.”

 

 

With due respect to the court, we still advise employers to adopt a zero-tolerance policy and appropriate training, and do not think it is wise for employers to accept a “four times is OK” policy for acts of sexual harassment.  Nor do we advise employers that it is OK to tell a female employee that she has to wear "a French maid’s costume" -- repeatedly, or even once or twice. 

 

 

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“When women began bringing class actions against large institutions in various industries, businesses and professions, the ‘ol boys club, which excluded women, harassed them, and paid them at a lower rate than men. began to crumble.”   We said this on March 11^th  and said further that “[i]t seems now that the venture capital industry is next on the block, having recently been targeted by women, who are not well-represented in what has been called the ‘clubby world’ of Silicon Valley.”

 

Then, last week, there was “a major victory for employers, [in which] a New York federal circuit court decided that an employer with a mandatory arbitration agreement with Goldman Sachs can require an employee to go to arbitration on a Title VII class action because Title VII contains no substantive right to pursue a pattern-or-practice sex-bias claim.” Most commentators agreed that this was a big victory for employers because it makes it easier for companies to force employees seeking class-action status to instead go individually into arbitration.

 

 

That this is so is confirmed in a post on Fierce Finance. The author writes that when the case was filed against Goldman Sachs, “it seemed to suggest that the old boom-boom-room culture on Wall Street had yet to truly be banished.”  Now, with the new court decision, a Bloomberg columnist was quoted as saying that "[the employee] ‘can kiss her chances of victory goodbye. Arbitration is where plaintiffs' dreams go to die, which is probably why it was in her Goldman Sachs employment contract.’” 

 

 

The Bloomberg columnist further noted that the employee is "not likely to win in arbitration, and what they are asking for on the culture side may come about only when the dominant culture becomes female. As for pay, there's more hope. We can't outlaw corporate parties at strip clubs. But we can at least make it illegal to pay the women less than men for comparable work. The women forced to attend these parties shouldn't make less money than the horndogs who organize them."

 

 

Strong sentiments from a columnist who clearly does not approve of the court ruling.  

 

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An African American delivery driver was the victim of racial name-calling, and was exposed to a noose hanging in the workplace which the manager refused to remove.  The EEOC issued a Letter of Determination finding probable cause of racial harassment in violation of Title VII. 

After what the Court called “failed conciliation attempts,” the EEOC filed a lawsuit, which the company sought to have dismissed, arguing that the EEOC had not fulfilled its statutory duty to conduct conciliation proceedings in good faith.

 

 

What does the EEOC’s duty to “conciliate” mean?

 

The EEOC is required under Title VII to “endeavor to eliminate” any unlawful employment practice as alleged by the charging party, “by informal methods of conference, conciliation, and persuasion.”  See section 5(b).   But before it files a lawsuit, how much must the EEOC do to be said to have attempted to conciliate? And can an employer get a lawsuit dismissed if the EEOC did not try to conciliate “in good faith?”     

In the lawsuit discussed in this blog, the Court held that although the conciliation requirement is not “jurisdictional” (that is, it is not a pre-requisite for the Court to even hear the case), nonetheless the EEOC's conciliation requirement must still be complied with “in good faith” or else the case may be subject to dismissal.  

 

 

 

But what constitutes good faith?

 

Is any colorable attempt at conciliation sufficient to be called "good faith"?  The EEOC does not act in good faith by simply “making a take-it-or-leave-it demand” settlement offer, but this case was different: it was “Defendant’s refusal to make any counteroffer that resulted in the EEOC’s termination of conciliation attempts as futile. If Defendant was unsatisfied with the EEOC’s offer based upon the evidence, it could have made a counteroffer for a token sum. If the EEOC had refused to budge, perhaps the Court could then determine that there was no good faith conciliation attempt. But Defendant refused to make any counteroffer at all.”

 

The Court concluded that “Defendant’s continued refusal to make any counteroffer when repeatedly solicited for one makes it impossible for the Court to determine that the EEOC was not prepared to conciliate in good faith.”

 

The Court therefore declined to dismiss the case.

 

 

Takeaway

 

Unless the employer bargains in good faith in the conciliation process, even by making a “token” offer or counter-offer, a court is unlikely to dismiss a lawsuit by concluding that the EEOC breached its duty to conciliate in good faith.  

 

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What’s that, you say?  A corporation alleging hostile work environment on the basis of race and gender?

 

Yes. It seems that two white women who own a pressure-washing service corporation known as Allstate Sweeping sued the Denver government which gave them a contract (and terminated it) as well as the African-American man who was assigned to monitor it.  

 

 

They contended the individual defendant “was unpleasant to work for; was ‘rude all the time’ … ‘pushy,’ and ‘bossy’ to … employees … ‘babys[at]’ … and ‘nitpick[ed]’ whatever tasks they were doing. … According to [company] witnesses, on several occasions [defendant] screamed at … employees and called them “stupid” …  he told some … employees, who were white women, that because they were ‘a little overweight’ they probably ‘couldn’t move as fast as a man could” … and he spoke to [the company’s] owners in a ‘demeaning” way, as if they were ‘child[ren]’ rather than ‘equal adults’ … even acting at meetings as if [they] were not in the room.”

 

 

The Court characterized their claim as a “making-the-owners-miserable claim” couched as a hostile work environment claim.

 

 

What interests us about this case is the Court’s rejection of the argument that there is a hostile work environment claim based on gender or race for “allegedly making Allstate’s owners miserable.”  The Court assumed for the sake of argument (but without deciding) that a hostile-work environment claim is properly raised under the Equal Protection Clause of the US Constitution, or section 1981 of the old post-Civil War civil rights laws, which forbids all intentional racial discrimination in the making and enforcement of private or public contracts (plaintiff did not allege a Title VII claim). 

 

 

However, the Court stated that as to whether hostile work environment can be raised by a corporation:   

 

 “Allstate cites to no cases, nor can we find any, holding that the “harassment endured by the principals of an artificial entity can give rise to a racial- or gender-discrimination claim on behalf of the entity itself, absent independent injury to the entity. Indeed, it is not clear to us that an artificial entity could ever prevail on a hostile-work-environment claim. Such a claim has a subjective, as well as an objective, component; there must be proof that “the plaintiff was offended by the work environment”. … Being offended presupposes feelings or thoughts that an artificial entity (as opposed to its employees or owners) cannot experience.”

 

 

An interesting case – especially since the appeals court remanded the case back to the lower court on Allstate’s claim that the individual defendant discriminated against it by taking actions (motivated by racial and gender animus) that caused it to lose money under the contract.

 

 

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We recommend an excellent discrimination law blog out of the UK by Michael Rubinstein Publishing which discusses equality, diversity and discrimination issues.  The link is: 

 http://blog.rubensteinpublishing.com/

 

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This may seem like an obscure topic for our blog, but we are an international report, and we like to compare and contrast employment discrimination laws around the globe, and acquaint people with the relevant laws in every continent.

 

Therefore, we recommend a new report:  “Who Can I Tell? What Should I Do? Sexual Harassment In The Media” by the FAMWZ - Federation of African Media Women and Zimbabwe Union of Journalists.

 

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This headline is a little misleading – yes, it’s true that the entire Legislature, plus the former Senate President and several legislative employees, are being sued by a legislative aide.  But the alleged harasser is a single co-worker, who the aide alleges repeatedly sexually harassed her over the course of several years.

 

According to The St. Thomas Source, despite being told by the aide that his behavior was unwanted, the co-worker allegedly propositioned her many time, left inappropriate and demeaning phone messages, told her "you look sexy when you vex," and "leaned in inappropriately close."

 

 

The aide claims in her suit that "Because defendant Legislature allowed the hostile work environment to exist unchecked, it created an intolerable working environment," and also retaliated against her by "poorly drafting bills assigned to Sen. Malone [for whom she was an aide]."

 

 

Takeaway?  None, really.  Just thought that the word "vex" merited a post. 

 

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The San Francisco Business Times reported yesterday that SendGrid, an email technology company, fired a female employee who complained on Twitter of sexual jokes made by a male employee of a San Francisco company at a recent conference.

 

Adria Richards, a “developer evangelist” at SendGrid, Twittered: “Not cool. Jokes about forking repo's in a sexual way and ‘big’ dongles.”

 

SendGrid's CEO was not amused, and wrote two blog posts in which he stated that he had fired Richards because she showed bad judgment by using Twitter for “shaming,” and in doing so “put our business in danger.”

 

 

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Joining the EEOC’s Denver and Detroit Field Offices (see our blog of December 3, 2012), and the New Orleans Field Office (see our blog of March 13, 2012), the EEOC's Cleveland Field Office has just announced that it has entered into a Memorandum of Understanding ("MOU") with the Mexican Consulate in Detroit, which provides services to preserve the rights of Mexican nationals residing in Michigan and Ohio in the area of employment discrimination.

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Our readers know by now that under its Strategic Enforcement Plan (“SEP”) the EEOC is targeting harassment against “vulnerable workers,” such as migrant workers; disability discrimination fueled by “myths, fears, and stereotypes;” and pregnancy discrimination.  Consider these latest announcements by the EEOC.

 

A federal jury awarded $24,000 in back pay, $20,000 for emotional distress, and $65,000 in punitive damages to an employee who suffered from epilepsy and was fired despite the fact that he was cleared by doctors to go back to work. The EEOC alleged that the employer failed to make reasonable accommodations, violating the Americans with Disabilities Act (“ADA”), with the EEOC General Counsel saying that "The ADA ensures that persons with epilepsy and other disabilities will have fair employment opportunities that are not impeded by 'myths, fears, and  stereotypes." 

 

In a new settlement, the EEOC announced that “The Spud Seller,” a potato wholesaler in Colorado, has agreed to pay $255,000 in a sexual harassment lawsuit where the warehouse supervisor repeatedly harassed at least 10 female hourly employees who worked as potato sorters. Over a six-year period, he repeatedly made sexual comments, groped and touched them, exposed himself to them, and solicited sexual acts.

An EEOC attorney said “The EEOC considers protecting immigrant, migrant and other vulnerable workers from discrimination and harassment a priority under the Strategic Enforcement Plan."

 

Finally, a Milwaukee school agreed to settle a pregnancy discrimination suit by paying $37,500, where a pregnant employee was fired by a supervisor in violation of the school's own written policies.

 

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At least three National Football League draft prospects were asked recently, in preparation for the upcoming football draft, about their sexual orientation, such as if they have a girlfriend, are married, or like girls.  

 

This did not sit well with NY Attorney General, Eric T. Schneiderman, who sent a letter yesterday to NFL Commissioner Roger Goodell reminding him of the state correlate of Title VII which bars discrimination based upon sexual, orientation.  See NY Executive Law § 296, et seq.).   The NFL is based in NYC. 

 

He also asked Goodell to “clarify” the position of the NFL by “issuing a public statement that any form of discrimination or harassment on the basis of sexual, orientation … will not be tolerated,” and to "memorialize this commitment in a written policy. ..." 

 

 

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Pakistan’s Daily Times reports that sexual harassment is increasing in Pakistan, especially among domestic workers, students and nurses. At a seminar held at the Lahore College for Women University, Punjab Assembly Member Amna Ulfat said “There is a need to start an awareness campaign against sexual harassment and the government should strictly implement laws that check and control discrimination.”  

 

One participant said that management as well as all employees were responsible to ensure the implementation of the “Protection Against Harassment of Women at Work Place, Act 2010.”   Another speaker said that to eliminate discrimination against women, the support structures in society should be strengthened.   

 

Another participant said employees must understand the legal process, and that “If the management of an organisation is not complying with the anti sexual harassment legislation, the employees have a right to take their organisation to court by filing a petition under section 11(3) of the Protection Against Harassment of Women at Work Place Act 2010 and ensure a dignified working environment for themselves and their fellow employees.”

 

This report seems to indicate that Pakistan is far behind other countries in eliminating harassment, given the general, non-specific nature of the suggestions made at the conference. The law is a first step, an “awareness campaign” is important, and understanding one’s rights is key. Now what faces that country is a long civil rights fight to change attitudes.  

 

 

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On January 24^th we blogged that the NYC Council had passed Intro 814-A, a bill which would prohibit an employer from using a person's employment status in hiring and from posting job advertisements that require applicants to be currently employed, and would also give such a rejected applicant a private right of action – i.e., they can sue employers.  As predicted, NYC's Mayor Bloomberg vetoed the bill, stating that the bill would “be devastating” to small businesses, which need to know such information and which will be threatened with costly litigation if they fail to hire an unemployed applicant.

At that time Bloomberg said that: "Faced with the prospect of being fined as much as $250,000 per violation by the Human Rights Commission, or perhaps much more at the whims of the courts, the practical effect of this law is that employers would simply choose to hire from within."

 

Now, the NYC Council has voted to override the Mayor’s veto by a whopping 43-4 vote, so that the new law will now take effect in three months.  

New Jersey, Oregon and the District of Columbia have similar laws, but NYC, as ABC says: “will be alone in letting applicants sue employers for damages over claims that they were rejected because of their joblessness.”*

 

-------------------------------
*Last February 24^th, we recapped our numerous blogs where we wrote that under existing anti-discrimination laws, there is no protected class known as “the unemployed,” and if you are not hired because of your unemployment status, you have no actionable claim of discrimination. Blogs of 9/14/11; 6/8/11; 2/22/11  However, more than a dozen states are following the lead of New Jersey in seeking to pass legislation that would include "the unemployed" within the class protected against employment discrimination. 

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Joining the EEOC’s Denver and Detroit Field Offices (see our blog of December 3, 2012), the New Orleans Field Office has just announced that it has entered into a Memorandum of Understanding ("MOU") with the Consulate of Mexico to assist Mexican workers in the US in the area of employment discrimination.

 

These “MOU’s” will establish a collaboration that will involve the EEOC providing the Consulate and Mexican nationals with Spanish-language materials explaining the federal anti-discrimination laws, information regarding workplace discrimination on Spanish-language radio stations, and information, guidance, and access to resources on the prevention of discrimination in the workplace regardless of immigration status.

 

"A Memorandum of Understanding promotes employment justice and allows us to continue current practices which are in place," said an EEOC attorney.  

 

Under the terms of the MOU, the EEOC will expand its cooperation with the Mexican Consulate, providing it with Spanish-language materials explaining the laws enforced by the EEOC.  The agency will also provide representatives to meet with Mexican nationals in Louisiana in order to disseminate information and conduct counseling regarding employment discrimination matters.

 

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The Mayor of Toronto is a controversial figure, according to a blog written by Todd Humber the managing editor of Canadian HR Reporter.  The Mayor has now exacerbated a controversy by ill chosen words.

 

 

Apparently last week, he attended a political party at which his former opponent also attended.  After they posed together for a photo op, the opponent, a woman, posted on Facebook that the Mayor had groped her and made suggestive comments.  Mr. Humber rightly questioned “the wisdom of laying such a charge via social media,” but the Mayor’s responsive statement is what caught the attention of the reporter: “I’ve always said I don’t know if she’s playing with a full deck.”

 

 

Let Humber caution those accused of harassment:  

 

“Denying the accusation is one thing. At the moment, only two people really know what happened … and they’re telling different stories. It’s impossible to objectively know who is telling the truth. But, in a sexual harassment allegation, it’s never a smart move to try to sway opinion by questioning the accuser’s sanity. Politics is a different animal than corporate life, but that’s a tactic that could lead to a pretty expensive judgment if a CEO or business leader tried it out.”

 

 

Thomson, the opponent, replied to the Mayor:

 

“Decades ago, powerful men who sexually assaulted women would call them ‘hysterical’ or ‘crazy’ to debase their credibility. It pushed many assaulted women into silence. Today Mayor Ford stated he wondered if I was ‘playing with a full deck’ to try to discredit me. He will not push me in to silence and I hope his accusations do not reignite the old fears that once silenced women.”

 

 

What’s the take away from this story for employers?  While social media is not the place to make serious accusations that belong in court, or in an internal company investigation, Humber says that “[c]harges of sexual harassment should never be taken lightly. It requires a full investigation into the alleged wrongdoing, sometimes by third-party professionals. But the last reaction any leader should have is to try and discredit the accuser. There’s nothing wrong with strongly denying it happened, if that’s the case, or laying out a solid case in your defense. But name calling? That’s not even acceptable on the playground.”

 

 

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The “old boys’ club” which excluded women, harassed them, and paid them at a lower rate than men has been demonstrated in court to have been common for eons in the corporate world.  When women began bringing class actions against large institutions in various industries, businesses and professions, the ‘ol boys club began to crumble.

 

It seems now that the venture capital industry is next on the block, having recently been targeted by women, who are not well-represented in what has been called the “clubby world” of Silicon Valley.  As has been widely reported, on February 7^th three women sued venture capital firm CMEA and a former partner for sexual harassment and retaliation. They claim a hostile workplace based upon allegations of dozens of inappropriate sexual comments and acts, bullying and intimidation made by the then operating partner. They claim that this occurred frequently in front of other partners who took no steps to stop it.   In fact, they say, the firm founder warned one of the plaintiffs that the operating partner was a “predator.”  

 

Two other lawsuits have already been filed against Silicon Valley VC firms, but this one has hit the news probably because, as CCN Money and Fortune report, “Some of the examples [of harassment] are shockingly lurid, and far more explicit than what is normally found in a Silicon Valley harassment lawsuit.”  The complaint can be found at: http://finance.fortune.cnn.com/2013/03/08/vc-firm-sued-for-sexual-harassment/ 

 

The defendants “flatly” deny the allegations in the lawsuit.

 

We’ll see if suits like these “go viral” in Silicon Valley and the tech industry, as similar ones previously did against, for example, banks and other financial institutions.   

 

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Well known Chicago-school law professor Richard Epstein has taken on the employment discrimination laws and the EEOC in a newly published column by conservative think-tank the Hoover Institution.  “Antidiscrimination laws can wreak havoc on job creation,” says Epstein. “The Equal Opportunity Employment Commission, a federal agency tasked with enforcing antidiscrimination laws, has demonstrated just how destructive such laws can be. “

 

Epstein targets as “folly” the EEOC’s “Enforcement Guidance” of April 2012, dealing with criminal arrest and background checks.  He states that this “newest confection out of the EEOC orders most employers to do exactly what the law forbids. It introduces an explicit classification into the hiring equation by imposing a higher standard for refusing to hire minority workers than for others. The Enforcement Guidance also applies even when it is clear that the employer’s refusal to hire certain workers is not because of race but because of the evident risk that a criminal record could present to the employer, its other employees, and its customers.”

 

 

Excoriating the EEOC, Epstein says that “[n]othing is more dangerous in public or private affairs than power without responsibility. It is therefore a fair question to ask how the EEOC guidance took its final shape.”

 

 

After a long exegesis of the law and its enforcement, Epstein concludes that both employers and employees suffer because “by raising transaction costs, the EEOC will continue on its mindless job-killing path.  Once again, the EEOC seems utterly oblivious to the harm that it causes to the groups that it most wants to help—and indeed to everyone else.” 

 

 

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We have posted a number of times about what has been referred to variously as “beauty bias,” “weight discrimination,” “lookism,” "unattractiveness bias," and/or “appearance bias.”   

 

Yesterday, the Utah Legislature (Utah!) considered a bill which would have prohibited employment discriminating based on height and weight.  Contending that employers sometimes judge people by their height and weight, the bill’s sponsor was not discouraged when it 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 “A lot has been written lately (in legal blogs, at least) about what some call “beauty bias” – but which we have recently called “appearance bias” -- workplace bias based upon appearance. Obesity bias seems to be the most frequently observed manifestation of this.”   See our blog of February 11, 2011.

 

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).”

 

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.

 

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According to records obtained by the AP, New York State approved over $6 million over the last four years to settle sexual harassment claims made against state agencies or officials.  

 

One man and 13 women made claims cases against several agencies, including the Parks, Recreation and Historic Preservation Office; Downstate Medical Center; the Roosevelt Island Operating Corp.; the state courts system; the Division of Military and Naval Affairs; and SUNY Stony Brook; the Department of Corrections; SUNY and CUNY; the Office of Mental Health and a psychiatric hospital.   

 

 

The largest payout was for $650,000 in a case involving the state Office of Children and Family Services; last year, a $103,000 settlement was paid to women who accused Assemblyman Vito Lopez of sexual harassment; and a $300,000 settlement was to a prisoner for a guard’s improper "pat and frisk."

 

 

Clearly, it is better to avoid claims of sexual harassment than to encourage them by failing to take the precautions that we always recommend.  

 

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“A growing number of states [are] consider[ing] legislation that would let workers sue for harassment that causes physical or emotional harm." This, according to a recent AP news report.  These laws would not require any showing of discrimination.

 

The AP cited a 2011 SHRM study which found that half of all employers reported bullying in their workplace, and, shockingly, that approximately 1 in 4 HR professionals claimed to have been bullied. The employers said that most bullying consisted of shouting, cursing, name-calling, malicious gossip, rumors and lies.  20% of the bullying took place by way of social media. 

 

 

Notably, bullying by itself does not violate Title VII or any other anti-discrimination laws, because, as the Supreme Court recognized in the case of Oncale, the statute is violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and to create an abusive working environment.  

 

Justice Scalia famously declared that liability for same-sex harassment, at issue in that case, will not transform Title VII into a “general civility code for the American workplace,” since “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination . . . because of sex.’

 

 

It is because a victim of bullying must currently show that the bullying was based upon his/her membership in a protected class that anti-bullying advocates are pushing legislation to protect employees who are not in a protected class, i.e., based on race, gender or national origin. That is, they are pushing for a “general civility code for the American workplace.”   England, Ireland and Sweden already have such laws. 

 

 

A little more than half of the SHRM-surveyed employers already have some kind of anti-bullying policy or code of conduct, and more than a dozen states, including New York, have recently considered anti-bullying laws that in some way track Title VII in their proposed policies and remedies. Further, the National Association of Government Employees Local 282 in Massachusetts has an anti-bullying clause in its collective bargaining agreements.  

 

 

The AP notes that business groups strongly oppose such laws, which they believe will just encourage frivolous lawsuits.  

 

Are such proposed laws tenable? Will they address the problem of bullying while not encouraging meritless claims?   Does anyone in HR have any thoughts about this?    

 

 

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A survey of women in three large cities in China has found that almost a third reported an increase in sexual harassment over the past three years; almost half of women between 16 and 25 reported increased incidents of harassment.   Compared to India, where an article in The Wall Street Journal notes that “aggressive sexual harassment is a fixture of daily life,” this is, presumably, considered relatively safe.    

 

I have long thought that in traditional and/or closed societies, efforts at "modernization," or attempts to change or break traditional cultural models -- especially rapidly -- often results in death-grip holds on the old ways by those who feel most threatened, which can lead to or include harassment or other violent acts, efforts to restrict birth control or abortion, disparate wages, etc.

 

Supporting this view, the WSJ article notes that in 2006, a University of Chicago report stated that China’s economy has been transformed rapidly and massively in the last two decades, and has seen rapid urbanization. Along with this, there has been a quick rise of Chinese women who are employed, and, the report notes, they face sexual harassment especially in service jobs.   This would seem to bear out the theory that rapid change or dislocation can cause a backlash by those most threatened -- in this case, male co-workers who fear both loss of their jobs and loss of traditional authority

 

What can be done?  China passed anti-harassment only in 2005, which were not fully implemented until 2007, so time will tell if this legislation is effective. There must also be education, outreach and sensitivity training and social condemnation for acts of harassment. 

 

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One year ago, we asked employers the key question "Can You Pass The Acid Test?"  

That is, can you feel secure that you have taken all possible steps to avoid discrimination or harassment lawsuits that, even if you win, can cost hundreds of thousands of dollars to defend?    We wrote:  "An ounce of prevention ..."

Back by popular demand is "the test."  Take it if you dare.  Just open the link above and answer the 10 questions.

 

 

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Addressing a business group in Washington State, the EEOC’s Northwest regional attorney told them that  “If they ignore the subject or convey an attitude of indifference they are setting themselves up for trouble.”   

 

Capital Press reports that William Tamayo spoke to the Washington Farm Labor Association, and noted that 25% of the EEOC’s national case docket is comprised of sexual harassment cases. In the past, some of these types of cases were so egregious that they were settled for millions of dollars – cases that involved rapes and threats of termination, deportation and death.   

 

 

We reported on December 14, 2012 that sexual harassment of farmworkers, which Mr. Tamayo was focusing on in his talk, has been established by the EEOC as an area of concern, with the words “harrowing,” “appalling” and “extreme abuse” used regarding a series of recently filed cases. The EEOC has said it is explicitly targeting the abuse of “vulnerable workers.”

 

 

As to what employers should do, Mr. Tamayo stated that employers should encourage good workplace culture, and that “no policy, no training, no consequences enables the predator." 

 

  

"A common thread in egregious cases is total neglect. Out of sight and out of mind. In one of our cases an employer on the witness stand said, 'We don't have policies. These are just farmworkers. Oh, I mean we're just a family farm."

 

 

 

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China’s Ministry of National Defense has announced that military prosecutors have indicted a one-star general on charges of sexually harassing a female military officer, according to The China Post. 

 

The article reports that the (married) general took a female military officer with him whenever he was on the road, that other military personnel saw him holding hands with the same officer on public transport, and four times he was seen putting his hand on the officer’s leg and into her underwear at the military base.

 

 

The general has been removed from his post and now faces a maximum sentence of 20 years in jail.

 

 

The report does not say that the general’s acts were “unwanted” or harassing. Perhaps they were – but 20 years in prison seems a little steep, in light of our post yesterday that harassment in China is ubiquitous and even takes place at harassment seminars.

 

 

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Don’t say that we didn’t warn you to take steps now to avoid discrimination in your workplace.  And we also told you how to do it.  Have you followed our advice?  Come on - fess up? 

 

Want to be scared -- enough so that maybe you might decide to take precautions?   Age and race discrimination cases will increase in number and cost in 2013, according to an annual survey of general counsel and in-house litigators at major U.S. and international companies conducted by Fulbright & Jaworski. The survey concludes that while the pace of labor litigation such as wage and hour suits has slowed, discrimination cases are rapidly increasing, as is the cost to defend them -- 2/3 of in-house counsel said that the average cost to defend a single plaintiff case is in excess of $100,000!    

 

Indeed, almost half of the in-house counsel surveyed said that labor law is the most common type of litigation that they encounter.     

 

 

The survey sponsors attribute the reason for this growth to an increase in the activity of regulatory agencies since 2008, and a targeting of discrimination, which will continue.  Moreover, the number of regulatory investigations of companies has increased and will continue to increase.  

 

 

Still want to be penny wise and pound foolish and not update your employment manual, or promulgate appropriate policies, or conduct harassment training, or do a host of other things to avoid such litigation and the enormous cost to defend it?    Still want to wait until the process server knocks on your door?   Its only a matter of time. ... 

 

 

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A Chinese journalist reports that an 18-year-old female employee at a Foxconn factory in Shanghai was subjected to sexual harassment from three male employees  --- while attending a required sexual harassment training seminar.

 

Say it ain’t so – not in the land where the late Chairman proclaimed: “Women represent a great productive force in China, and equality among the sexes is one of the goals of communism. The multiple burdens which women must shoulder are to be eased.”  Chapter 231 of Quotations from Chairman Mao Tse-Tung (emphasis added). 

 

 

Apparently, the factory, which employs almost 60,000 people, has an enormous demand for young workers – i.e, people under age 21.*  And those newly-hired employees must take various training classes, one of which deals, quite appropriately, with sexual harassment.  Because no attendee is permitted to leave the seminar, one female employee was forced to sit silently while being sexually harassed. 

 

 

One worker at the factory was quoted as saying: "That sort of thing happens a lot. She was just not used to it."

 

 

I guess that the company had the right idea in requiring sexual harassment training, but that something went awry in the application.   

 

 

(*We have frequently warned employers in the US with a large proportion of young people, such as start-up companies, that harassment may present itself as a big problem, and that training and good policies are a must).     

 

 

 

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It has been reported that Flint, Michigan has agreed to shell out a whopping $600,000 to a teacher who claimed that her principal sexually harassed her after she ended a sexual relationship with him.

 

She alleged that the principal began pulling her out of class, came to her home, followed her, asked other teachers about her personal life, and threatened to fire her if she did not submit to his advances,

 

 

The teacher is currently out on sick leave after having attempted suicide in November 2011. There is no report whether or not her condition is related to this case.

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Our recent post about whether the workplace might be well served by applying the "Broken Windows Theory" to acts of harassment has, happily, brought forth a torrent of useful comments from readers who are HR professionals.   Since we think that this discussion is important, we re-print four sample comments below.    

 

“I am familiar with the "Broken Windows Theory" and agreed with it in the original context. I believe it applies to this context as well. If rules are malleable you will always see the limits continually pushed until there is some push back. In the case of workplace sexual harassment the greater concern is that something truly regrettable may happen. As if that wasn't bad enough, then when the lawyers come calling they will be backing up a truck to your checkbook if you can't demonstrate what you've consistently done to discourage such behavior! (emphasis added).”

 

 

 

“Without moralizing, I think that part of the problem is that we're surrounded by sexual suggestiveness, from halftime at the Super Bowl, to the SI swimsuit issue, to shock jocks on the radio, to the increasingly "R-rated" fare on network television shows ... the list goes on and on. We expect employees to turn all of this off the instant they step through the door of the workplace. It's a daunting if not impossible task.”

 

 

 

“It is important to view this type of issue in the larger context of society and not limit it to the workplace. It is rather strange to expect a person to change his mindset when going to work, but of course it doesn't make such behavior tolerable.”

 

 

 

"As with the broken window theory, only those organisations which apply it will reap the benefits. Since only a minority will apply zero tolerance, this field of work will be ripe for reaping for lawyers dealing with discrimination issues for generations to come. Cha ching! (emphasis added).

 

 

 

 

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One might think that HR Directors, well-schooled in the anti-discrimination laws and ant-harassment laws, as well as relevant polices and training to combat acts of discrimination and harassment would know better. But, alas, taint so.

 

We have read a news item that an assistant superintendent for student services at a Texas school board who had previously overseen the HR department, filed a complaint with the EEOC in December against the current HR Director – for sexual harassment.  The board just entered into a settlement agreement to pay her $150,000 if she resigned. 

 

 

HR people, being people, are perhaps no less likely to get caught up in allegations of harassment or to actually harass, despite their presumed knowledge and training.  The lesson today is that there is no one in the workplace who should not be required to participate in periodic anti-harassment training and be constantly reminded of the company’s zero tolerance policy.     

 

 

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ZDNet reports that a former project manager in Australia sued the company for sexual harassment by a sales representative who she had to work with, who allegedly made comments to her which progressed from suggesting that the two of them were married in a previous life, to harassing her for not going to a party with him and not going on a date with him, through telling her how "hot [she] would be in bed." Her complaints went unaddressed and she quit.    

 

 

The Federal Court of Australia found the company liable for sexual harassment, has ordered it to pay AU$18,000 in damages, and stated that the sales rep’s actions were "persistent and ultimately callous," and that the company did not take all reasonable steps to prevent it.

 

 

The kicker of this story is that even a large and sophisticated company waited until the loss of this lawsuit before it began to conduct workplace diversity training policy for all staff.

 

If only they read our blog and paid attention to instituting and implementing appropriate employment policies and practices.    

 

 

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We read with interest and recommend an article by Pam Paziotopoulos, Esq. on the Forest Advisors web site, entitled "10 Things an HR Director needs to know about Domestic Violence and Stalking in the Workplace"

 

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Bernie Althofer AFAIM, who we quoted in brief yesterday, is a former Harassment Referral Officer in a police service in Australia.  We have been hoping for active feedback and discussion on our positing the applicability of the "Broken Windows Theory" to workplace sexual harassment (if at all), and Bernie was kind enough to giive us his thoughts, which we believe can be very useful to employers and HR professionals.  We print it below in full, and have underlined passages that we think are significant.   

 

"In practice, both Broken Windows and Zero Tolerance depend on 100% commitment at all levels of an organisation. Unfortunately, having been a Harassment Referral Officer in a police service, I have seen and heard of situations where 'mate's rates' apply, e.g., favouritism and nepotism.

If zero tolerance is to work, it means that workplace standards have to be set and documented and applied fairly, justly and equitably across all levels - no excuses because the alleged offender is a colleague of a senior employee. Employees see inconsistencies in how others are treated and then complain about how the system does not work.

From my perspective, there seems to be an increasing trend to provide online training as the primary delivery method. It seems from some current discussions, that interactive training will provide participants the opportunity to test their understanding and knowledge of the various policies and procedures, allow them to participate in role plays and quizzes, and perhaps provide an organisation with an increased capacity to defend claims.

Following a Commission of Inquiry into allegations of corruption, the police service adopted a community policing approach and in my role at the time, I was required to 'read up' on various community policing models. In my Master of Arts (Justice Studies), I wrote and presented on zero tolerance and Broken Windows. At the time, I questioned whether or not there was broader application. I think that organisations do need to look outside the square when it comes to being proactive and taking a preventive approach.

I think that whilst there are distinct advantages in both approaches, selling the message might be more difficult. I understand that there may be some differences in our workplaces and cultures regarding what is seen as acceptable, e.g., if people can get away with it they will, and some people still find pulling people into line for crossing the line when it comes to sexual harassment a bit too hard or want to write it off  as ‘a bit of harmless fun'. There is a Member of Parliament who has found himself subjected to media scrutiny in relation to a number allegations involving sexually harassing comments made to various staff before he became an MP.

I am also aware of an organisation where female employees had been subjected to sexual harassment, and training was recommended. A senior executive attended to open the training, and his opening words were "Good morning b.tches" (and he said it with a smile on his face). The training provider asked my advice on what they should have done, and I told them that I would have said "Thank you for those comments. I am now terminating this workshop and I will be reporting your conduct to the CEO".

I think that over a period of time, there will be some interesting comments and observations made about both Broken Windows and Zero Tolerance. In the past, there have been discussions on zero tolerance with feedback suggesting that this would mean an offender would be automatically dismissed for even minor transgressions."

 

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One more comment about the applicability of the "Broken Windows Theory" and workplace sexual harassment.  Michele Sommer, an Employee Relations and Human Resources specialist, said that it "would make a difference. When you let little things go, people tend to try more. Just look at the spectrum of violence. People rarely act out with murder as their first act on the spectrum. Rather there is most often a escalation of behavior."

 

She helpfully addressed our initial request for HR people to weigh in as to exactly what can be done in the workplace to "repair the broken windows" early on:   

 

"We do need to define 'zero tolerance.'  I am not saying that every minor infraction needs to be disciplined or someone fired or a public calling out. If I witness someone who crosses the line in a minor way or comes close to crossing the line, I will pull them aside and explain my reaction, remind them of the policy, remind them that it's not intent but impact that matters and suggest they refrain from saying or doing what they just did. We need to be sure that we review situations on a case by case basis and make sure that the punishment fits the crime (emphasis added).”

 

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We think that the "broken windows" and workplace sexual harassment discussion is important and are actively seeking comments to publish from professionals in any related fields as to their assessment and point of view.   

Below is another comment from a reader in Australia, Bernie Althofer AFAIM, who notes that for the theory to work a zero tolerance policy must be adopted.   We agree, but go further --  a zero tolerance policy is essential. 

"There is no reason why it would not work. I think that the issue is that some organisations do not take into consideration other models that can be used. For example, whilst the 'Broken Window Theory' might been seen as a crime prevention model, it can be applied in areas such as occupational violence, workplace bullying and sexual harassment.

The secret though to good policy implementation is ensuring that the workplace culture also changes to adopt a zero tolerance approach."

 

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We received a lot of comments from readers about our "Broken Windows" post last week.  We wondered if employers could reduce workplace sexual harassment -- the kind that gets you sued --if every little unwanted comment or leer was discouraged or had consequences.  

Here is one comment (keep those cards and letters coming in!):   

Kevin Panet, MS HRM, SPHR-CA liked the application of the theory, and wrote:

"Yes, I can certainly see how the "broken window theory" relates to the creation of a hostile environment. Most people don't get up in the morning and decide to go grab someone in an inappropriate manner. However, most harassers do start out small, maybe with inappropriate photos. When they find they can get away with that, they might tell inappropriate stories or jokes. If they can get away with that, then they might try to get physical. So, if you can address inappropriate actions that contribute to a hostile environment with those actions are small, you will have less problems down the road. ... and less broken windows."

 

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This last year has seen a number of female Royal Canadian Mounted Police file sexual harassment lawsuits.  They claim that their complaints had been ignored or covered up.

 

To its (belated) credit, the Mounties are promising to  “stamp out sexual harassment and bullying:"

 

"Harassment has no place in the RCMP.  We recognize it may be impossible to prevent entirely, but we will implement a zero tolerance approach.  … The RCMP stands little to gain by denying the obvious - and it will not do so. … As long as these cases dominate the public discourse they will undermine public confidence in our institution and consume effort. Where wrong has been committed, it will be made right."

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A new federal Title VII lawsuit was just filed in California alleging that the NCAA’s 2011 rule which permanently bars, among other things, convicted felons from coaching in NCAA-certified tournaments, discriminates against African-Americans.  See Hardie v. National Collegiate Athletic Association et al, 3:13-cv-00346 (S.D. Ca).

The complaint alleges 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.”

 

We blogged on April 29, 2012 that there is nothing in Title VII that deals with people with a criminal history being in a protected class. That is, it does not bar employers from asking job applicants or employees about arrests, convictions or incarceration. However, we know that discrimination may involve an employment practice or policy which has a “disparate impact” upon members of a protected class.

 

 

 

Employers should note that the EEOC is sensitive to the “disparate impact” which criminal background checks (as well as, for example, credit screening), may have on protected classes, and therefore may violate Title VII. This is not a new issues; the EEOC has been wrestling with this issue since at least as far back as 1987.

 

 

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In November we blogged about the impermissibility of firing a pregnant employee because the employer “could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.” We quoted an EEOC attorney who said that "Employers may not bar pregnant employees from work because of outdated myths or stereotypes.”   That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child. 

 

The EEOC has just announced the settlement of a pregnancy discrimination case in Mississippi  which alleged that a four months' 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."  The employee was under no medical or working restrictions when she was fired.

 

This time the EEOC spokesperson said emphatically that "Employers have a duty to know the law and to follow it. Women have the right to work, including during pregnancy. The EEOC will continue to use appropriate means to protect this right."

 

The EEOC is targeting pregnancy discrimination.   Take heed.

 

 

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What if employers (who, hopefully, adhere to a well-publicized “zero-tolerance” policy towards sexual harassment, or any kind of harassment for that matter), actively discouraged, showed disapproval or otherwise rebuked every stray or trivial unwanted comment or act that did not rise to a legally-actionable level?  Would this cause a decrease in actionable harassment or a less hostile workplace?   

 

Consider this: In 1982, at perhaps the height of urban blight and crime, there arose a popular, albeit controversial/debatable theory, put forward by a couple of professors who called it “the broken windows theory.”   In short, the professors argued that if an urban environment was kept well-ordered and every “broken window” repaired (i.e., every act of public disorder addressed) this might stop an escalation into more serious crime – “if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.” Mayor Giuliani in NYC heartily endorsed and implemented this theory.

 

From the seminal article in The Atlantic Monthly, the professors explained:  

“at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence. …  We suggest that ‘untended’ behavior also leads to the breakdown of community controls. …  A piece of property is abandoned, weeds grow up, a window is smashed.  Adults stop scolding rowdy children; the children, emboldened, become more rowdy. Families move out, unattached adults move in. Teenagers gather in front of the corner store. The merchant asks them to move; they refuse. Fights occur. Litter accumulates. People start drinking in front of the grocery; in time, an inebriate slumps to the sidewalk and is allowed to sleep it off. Pedestrians are approached by panhandlers (emphasis added).”

 

Without addressing the evidence for or against this theory, or the controversy surrounding it, we wonder if it can be usefully applied to the workplace. Could we, in fact, decrease incidents of actionable harassment if we stop or discourage even sub-actionable unwanted comments or behavior?   I leave it to the HR professionals out there to devise ways to do this (perhaps better training, posters advising employees that any such unwanted behavior – a “joke,” a “funny” email, or a one-off comment - is unacceptable and will not be tolerated). But it seems that at a minimum a zero tolerance policy must come from and be followed from the top down, and an appropriate corporate culture must be nurtured.      

 

In our post of December 24, 2012, we urged employers to make a New Year’s resolution to  “create a non-permissive environment.” We quoted both a Department of Defense Sexual Assault Prevention and Response Office spokesperson and a young woman in India, respectively, in this regard:  

“The solution to [sexual harassment] is creating a non-permissive environment where sexual harassment, sexist behavior, stalking and these types of behaviors are not condoned, tolerated or ignored.”

“I never tolerate any kind of harassment, so this (zero tolerance) is in my resolution list every year.”

 

Just a thought.

 

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On February 4, 2012, we wrote about a case filed by a female prison guard in Iowa against prison officials claiming that sexually explicit and violent movies which inmates were allowed to see caused them to sexually harass her. She sued for what is known as “third-party harassment,” where an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.

We asked for comments, and printed one this week. We got a lot more. A particularly incisive comment came from S. Caroline Schroder, a Principal at Sulgrave Strategies LLC., who distinguished a prison from a workplace as we know it, as it relates to harassment of employees.  

 

With her permission, we quote her as follows:

“Having worked with half-way and other shelters every now and then, it seems important to say that these prison populations are unlike any other, with much higher rates of psychiatric disease and brain abnormalities and damage than the general population, all in confined spaces and not controlled with retaliatory measures, equivalent violence for violence any more.

Considering the prisoners' response --" subjected her to insults and threats to kill her, and threw urine on her"--, one is definitely reminded that the prisoner population is different and impossible to control to normal non-prison "community standards". 

 

1)  Several studies have shown that 'there is a specific brain abnormality associated with criminal psychopathy': Julian C. Motzkin, Joseph P. Newman, Kent A. Kiehl, Michael Koenigs. Reduced Prefrontal Connectivity in Psychopathy. Journal of Neuroscience, 2011; 31 (48): 17348-17357 DOI: 10.1523/JNEUROSCI.4215-11.2011 (Study of prisoners: psychopaths' decision-making mirrors that of patients with known damage to their ventromedial prefrontal cortex (vmPFC).)

 

2)  S. Gregory, D. ffytche, A. Simmons, V. Kumari, M. Howard, S. Hodgins, N. Blackwood. The Antisocial Brain: Psychopathy Matters: A Structural MRI Investigation of Antisocial Male Violent Offenders. Archives of General Psychiatry, 2012; DOI: 10.1001/archgenpsychiatry.2012.222

 

3)  And " Substance abuse disorders (SUDs) and other psychiatric disorders are common among prison populations. A dual diagnosis (DD) refers to a co-existing SUD and any Axis I disorder, such as depression, schizophrenia, or social phobia. A new study has not only confirmed DD among prisoners in France, but has also found that it is a major risk factor for suicide. ...Even though the research is limited, studies have shown that prisoners with DD have more severe SUD, more psychiatric disorders, more criminal history, and are more likely to be re-incarcerated"

Co-authors of the ACER paper, "Dual Diagnosis: Prevalence, Risk Factors and Relationship With Suicide Risk in a Nationwide Sample of French Prisoners," were: L. Blecha of the Institut national de la santé et de la recherche médicale (INSERM), Paris and the Centre de Recherche et de Traitment des Addictions at the Hôpital Paul Brousse AP-HP, Villejuif; .... The study was funded by the French Ministry of Health and the Department of Justice.

http://www.eurekalert.org/pub_releases/2008-11/ace-sao102608.php

 

4) Violence rises with testosterone:   "The key to this study is it shows testosterone is linked to dominance in both criminal behavior and behavior in prison," says Dr. James Dabbs, a professor of psychology at Georgia State University and lead researcher on the project. The findings, by Dabbs and Marian Hargrove, are similar to those in studies of male prisoners. This indicates testosterone's effects on behavior are the same in women as in men, says Dabbs. Testosterone levels were highest among male inmates convicted of violent crimes such as rape, homicide and assault. These men also violated more prison rules."

http://www.sciencedaily.com/releases/1997/09/970927110900.htm

 

5)  Social identification, not obedience may drive brutality and other heinous acts:

S. D. Reicher, S. A. Haslam, J. R. Smith. Working Toward the Experimenter: Reconceptualizing Obedience Within the Milgram Paradigm as Identification-Based Followership. Perspectives on Psychological Science, 2012; 7 (4): 315 DOI: 10.1177/1745691612448482."

 

 

 

 

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The Israeli Defense Forces (“IDF”) chief of staff’s advisor on Women’s Affairs, Brig. Gen. Racheli Tevet-Weisel, has reported 2012 statistics showing approximately 500 complaints from soldiers of sexual harassment or assault, 10% of them from male soldiers. 

 

A story in Israel News by Yoav Zitun notes that Gen. Tevet-Weisel stated that “Our emphasis this year is on prevention … we are investing in heavy sentencing and in an informational campaign." Further she said that the IDF was installing billboards about sexual harassment and will release a film on social networks.

 

 

In another story, the Jerusalem Post reports that a number of female employees of the Israeli NTA – Metropolitan Mass Transit System Ltd. - have filed sexual harassment police complaints against the chairman, Michael Ratzon, a former Likud deputy minister. One woman complained of a physical assault. 

 

 

Ratzon has responded that the allegations are part of a "premeditated and organized attack that is completely unfounded, meant only to prevent the extension of my service at my current position."

 

 

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Kathleen Bartle, a longtime strategic consultant on workplace conflict, has written a short but eye-opening article about workplace gossip, which, she says, can ruin a person’s career since it has “legs” – “even those who supported the target of the gossip in the past (including hiring them and promoting them) seem to lose faith in that person. If the target defends herself or himself, then he or she is labeled as weak and defensive. If the gossip is ignored, then it becomes true.”

Gossip may be at the very center of workplace bullying.

 

She defines "gossip" as rumors or talk of a personal, sensational, or intimate nature. A “gossip” is someone who habitually spreads intimate or private rumors or facts. Oftentimes my clients report that groups of people spread the gossip (called mobbing).

 

 

Employers should, of course, develop appropriate policies and procedures about bullying and gossip, but until then she recommends “some action steps” for all managers and employees, which we quote:

• Don’t participate in the gossip behavior
• Don’t make things worse by repeating it
• Don’t exaggerate
• Be aware of the power of gossip
• Don’t get on the mobbing bandwagon
• Defend the target with facts

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Jason Carney, a workplace consultant in Indianapolis, was interviewed recently by Amanda McGrory-Dixon of BenefitsPro on the subject of workplace bullying involves. He described bullying as demeaning an employee or undermining and sabotaging his or her work: “In a lot of ways, work is no different than high school. People feel they need to be in with the ‘right crowd,’ and they bow to peer pressure of bullying.”

 

Carney contends that besides the obvious personal invidiousness of bullying, permitting workplace bullying is costly to an employer: it can result lower productivity, higher absenteeism, poor morale and even higher insurance costs.  

 

How To Reduce Bullying? 

Carney outlines a few steps to take to reduce bullying in the workplace.

--  Have a good management team in place that can spot this bullying “a mile away.”

-- Be on the lookout for office gossip, a major indicator of bullying (more on that soon), and try to reduce harmful gossip by making employees aware of its damage.  

-- Conduct sensitivity training for all employees, and training specifically on workplace bullying for managers.

-- If workplace bullying has indeed occurred, an employer should help the victim gain access to an employee assistance program (“EAP”) – which can provide free counseling sessions, and an anonymous third-party reporting mechanism.

 

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There is a bizarre new twist to the tale of the Portland police officer who, because of his sexual harassment, was transferred out of his unit --- to supervise the Sex Crimes unit where some of his victims worked.  See our story from January 30th.   

According to The Oregonian, the police chief who transfered him now contends that he didn't consider the officer’s touching for which he was disciplined to be "sexual in nature. It was inappropriate contact in a meeting. The women never complained it was a sexual encounter."

 

However, the same police chief said in a letter demoting the officer that one woman claimed that he "stroked her leg," a second that “he placed his hand on the top of her leg and rubbed back and forth,” and a third that “he touched her thigh and lingered.”

 

 

Because an element of sexual harassment is whether the sexual conduct is “unwanted,” University of Oregon Law Professor Caroline A. Forell said that the chief "can say whatever he wants” but that the law doesn't consider harassment from the point of view of the harasser: "Regardless of what [the officer] intended, if the woman perceived it as sexual or unwelcome, that would rise to sexual harassment."

 

 

The story will likely get stranger.

 

 

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Three Democratic New Jersey state senators have introduced a bill called “New Jersey's Opportunity to Compete Act,” which seeks to eliminate disclosure of criminal history on job applications.   Supporters of the bill contend that criminal background checks have a disproportionate impact on minority communities. 

 

Said one senator:  “One in four Americans has a criminal record that could show up in a routine background check. With the increased usage of these checks, qualified applicants — many of whom have already paid the price for their past infractions — cannot even get their foot in the door to be considered for jobs.”
 

Laws which limit criminal background checks are already on the books is many states, such as California, Connecticut, and Massachusetts, as well more than 40 cities and counties, such as Atlantic City and Newark.

 

 

The proposed law would eliminate the “check box” on employment applications (hence the bill’s nickname “ban the box”) that would require job applicants to note their criminal history. The bill’s authors claim that employers often throw out applications with checked boxes.

 

 

However, the bill provides that employers may still consider serious violent crimes such as murder, attempted murder, arson, terrorism and sex offenses that require registry, and may ask about criminal history after a conditional offer is made. There are several other provisions which permit consideration by employers of criminal backgrounds.  The bill also provides certain safeguards for applicants who are denied employment, such as appeal and the right to challenge the accuracy of their criminal history.

 

 

 

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This week we wrote about a case just filed by a female prison guard in Iowa against prison officials claiming that sexually explicit and violent movies which inmates were allowed to see caused them to sexually harass her. She sued for what is known as “third-party harassment,” where an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.

 

After discussing the developing law in this little known area, we concluded that the case will likely turn on the ultimate findings of fact, and the reasonableness of the prison officials permitting the inmates to watch the offending videos.  We also noted the likelihood of “expert witness testimony on the effect of such videos, which may end up in the thicket of the current (and endless) debate on whether there is a cause and effect between video watching and violent behavior.”

 

 

A reader just gave us his opinion of the case and raised questions which we think are worth sharing:

 

 

“Interesting facts but I suspect a difficult case for the Plaintiff.  Putting aside the fact that the science on cause and effect of watching violent or sexually explicit movies is not very strong, what is it that the employer did that violated any law? If letting the inmates watch the movies is the issue, then it acted promptly upon notice by stopping the movies. If it is the conduct that followed withdrawal of the movies, if the employer imposed reasonable discipline on the offending inmates I suspect there will be a finding of no liability.”

 

Any other comments?

 

 

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CNN has reported that there are a growing number of male caregivers – and that they are suffering gender discrimination in the workplace.

 

We discussed the issue of family caregivers being subjected to employment discrimination in our September 3rd and September 4, 2012 blogs. Noting that the population is aging but must work at paid jobs during the economic downturn, and also work without pay providing care for elderly parents and other family members, we cited studies that they are treated disparately in the paid workplace. “It may take the form of limited flexibility, denied leave, or even a pink slip, but whatever the case, more instances of employers treating employees with caregiving responsibilities less favorably than other employees are coming to our attention.”
 

 

A 2011 MetLife study stated that the number of adult children who care for parents has tripled over the past 15 years, and an earlier MetLife study found that such caregivers frequently suffer from depression, diabetes, heart problems and hypertension. An AARP Public Policy Institute report claimed that there is an “emerging trend” of caregivers of older adults facing increasing discrimination in the workplace.  While the AARP study described the hallmarks of what they call “family responsibilities discrimination” as limited flexibility, denial of leave, or even termination, the 2011 SHRM survey reported that cost-conscious employers are, in fact, cutting eldercare benefits, which benefits have been shown to reduce absenteeism, increase employee loyalty, improve employee health, and reduce employee turnover.

 

Now, with men becoming a larger percentage of family caregivers, employers are resisting accommodating them based upon the old stereotype of males being the "breadwinners."  Between 2006 and 2010, the number of family responsibility discrimination cases brought by males increased by 300% as compared to the period  2001 and 2005.  An EEOC attorney said that "Employers are often more relaxed in applying blatant sexual discrimination against male caregivers.  When invoking parental leave, some supervisors might say 'Oh no, that's for women.' There are some pretty entrenched stereotypes."

The times they are a changin'. 

 

 

 

 

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We just received a book entitled “Bullying, Violence, Harassment, Discrimination and Stress,” by Ellen Pinkos Cobb, Esq. (2012), and even after a cursory review it seems like an extremely valuable resource.  The author has reviewed all of the topics listed in the title, and after defining her terms in a careful legal way, has compared the workplace laws of dozens of countries.

 

We also recommend a 2011 interview with the author which we found online at International HR Forum, from which the following quotes were taken:  

 

“In the United States, workplace bullying has been found to be four times more prevalent than sexual harassment.  At the Work, Stress, and Health 2011 conference in May, bullying expert Staale Einarsen of Norway described the workplace bullying field as “exploding.”

 

 

Workplace bullying is now being generally acknowledged as a global issue, affecting all countries, professions, and workers.  A recent Monster Global Poll bears this out. The poll, conducted in early May, 2011, surveyed workers worldwide, and posed the question, “Have you ever been bullied at work?”

 

 

The 16,517 responses received indicated the following: 64% answered that they had been bullied, either physically hurt, driven to tears, or had their work performance affected; 36% replied that this had never happened to them; and 16% answered that they had seen it happen to others.

 

 

The prevalence of bullying is a global phenomenon: 83% of European respondents reported that they had been physically or emotionally bullied; 65% in the Americas; and 55% in Asia.

 

 

Workplaces in which bullying is allowed to occur undermine the pursuit of a business’ growth and profitability and may lead to a detrimental impact on the corporate image with the public at large.

Specifically, the costs of workplace bullying include time and production lost due to factors which include employees’ preoccupation with negative circumstances, and resulting costs to the company’s overhead, loss of skill and experience when a worker leaves due to being bullied, lowered employee morale, medical and insurance costs, and harm to a company’s reputation.

 

 

Occupational health and safety laws have long dealt with physical risks, and now psychological risks are beginning to be treated similarly.  In today’s workplaces, the approach by management to should emphasize both physical and psychological health.”

 

 

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We recently read an Associated Press report about a female prison guard in Iowa who sued prison officials on these grounds, claiming that the movies caused the inmates to become sexually aggressive. She filed complaints with the officials and alleges that when they finally acted by largely barring movies with sexually explicit content, inmates blamed her for this and subjected her to insults and threats to kill her, and threw urine on her.  

 

Third-Party Harassment

 

This kind of claim is known as “third-party harassment,” and was the topic for our blog on December 27, 2012. We reminded readers that, as the EEOC stated recently, “courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it (emphasis added).”  

 

 

Citizen Harassment of Public Employees

The situation of our prison guard is within a subset of “third-party harassment” claims known as “citizen harassment of public employee” claims.  These cases are difficult because a municipal employer has little control over acts of citizens who harass government employees. 

There have not been many cases involving “citizen harassment of public employees.”  The one we spoke of on December 27^th involved a public employee who claimed that she was sexually harassed at a public meeting because the commissioners conducting the meeting, at which she was secretary, “failed to protect her from criticism” leveled at her from two county residents. She lost her case, but we speculated that if the residents, instead of merely criticizing her, had made sexually harassing comments to her, we might well be within the realm of actionable “citizen harassment of public employees.”

 

 

Harassment of Peace Officers

 

 

This is where a line of cases arising out of the harassment of prison employees comes in, which we discussed on November 19, 2012.   In a recent guidance letter involving harassment of police officers by citizens, the EEOC cited the case of Cromer Food, but found no cases involving police officers, so instead looked to Title VII cases where prisons were sued for harassment of employees by inmates.

 

While noting the “practical and constitutional limits on the steps [the prison] can take to protect staff from inmate harassment,” the EEOC quoted one federal appeals court which stated the "general rule of reasonableness regarding employer liability for third-party harassment under Title VII adequately respects the difficulties that prison officials encounter in controlling inmate conduct. …  Although some harassment by inmates cannot be reasonably avoided, [a prison], on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by inmates."

 

Conclusion of the EEOC

 

The EEOC concluded that there could be Title VII liability based upon “the reasonableness of the employer's corrective action [which] would depend on the totality of the circumstances.”  These circumstances could include the nature of the harassment, the specific context, and the practical limitations on the employer's ability to respond.

The lawyer for our prison guard said that her lawsuit is aimed at forcing the prison administration to create a workplace environment that is free from sexual harassment and threats of violence from inmates, and to allow employees to file complaints without fear of retaliation. “No private employer could get away with this,” she said.

 

So -- does our prison guard have a good case?   Maybe -- it seems to us that the case will likely turn on the ultimate findings of fact, and the reasonableness of the prison officials permitting the inmates to watch the offending videos.  Also likely will be expert witness testimony on the effect of such videos, which may end up in the thicket of the current (and endless) debate on whether there is a cause and effect between video watching and violent behavior.

 

 

 

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We read a good article in Suddeutsche.com (in the original German) and Worldcrunch (in English) about the problem of sexual harassment in Germany. The German General Act on Equal Treatment (“AGG”) requires employers to protect employees from sexual harassment.  Nonetheless, a 2010 government survey found that 60% of women had experienced sexual harassment either in public, the workplace, or socially (22% of cases occurred at work or school), and 50% of those feared for their safety.  

 

Significantly, the government report said what we have always believed, that “[i]n most cases, there is a big discrepancy in power between the perpetrator and the victim, and the former often abuse the latter’s dependence."  See our blog of  December 27, 2012, which discussed a new academic study which correlated low status in the workplace and victimization.   

 

Alexandra Borchardt and Tanja Rest, who authored the journal article we have been discussing, explained sexual harassment in a way worthy of quoting here and worth noting by employers:  

“Men in power are used to getting what they want. They tell others what to do and generally get obedience and agreement back. Sexual harassment is also a means of establishing or enforcing power dynamics. A man who treats a woman like a Playboy bunny is making sure she stays at the bottom of the totem pole.

But men in upper management also have to get used to the fact that with women in the group certain word choices or the after-work activities will have to change. Some men resent this, and yet if women go along with the boys’ rude ways it’s often negatively construed. Uncertainty levels are high for both men and women.

Men at all professional levels are going to have to get used to being surrounded by more – and very different kinds of – women. They are going to have to learn to understand what women are saying, especially when the woman is a subordinate. Women have to stop putting up with it – they have to set boundaries and find the courage to speak up when certain behaviors are unacceptable to them. And the learning curve doesn’t have to be unpleasant for anyone.”

 

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Thanks to my friend Judy Greenwald of Business Insurance who brought to my attention an interesting decision this week from a federal appeals court in Boston.

A female employee of a university and her supervisor had a weeklong “out-of-town” affair, after which when they returned home, “embarrassed by the fling, [she] rebuffed him.”  Some time later he propositioned her, and “grabbed her breast and made sexually suggestive grunting noises. [She] was disgusted but said nothing for fear of losing her job. "    

After she complained to the university of sexual harassment, an investigator came to the conclusion that she was not credible as to the alleged sexual incidents, and that even if they had taken place her “own conduct, namely her voluntarily engaging in off-color banter of a sexual nature” with her alleged harasser,  “showed that his conduct was not unwelcome.” 

Moreover, "[t]he general consensus [at work] was that the two appeared to have a close and trusting relationship, and their interactions often included off-color remarks and jokes of a sexual nature, many times to the discomfit of some.” She was heard to say to her boss, for example,  “’what will you pay to spend the night with me’ in a joking manner.”    After she quit her job she filed a Title VII case. 

The appeals court (reversing the trial court), shot down the university’s argument. It held that the argument “does little to convince.  We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. … There is no evidence that [she] encouraged or invited [her boss] to grab her breasts, and she indicated during the investigation that she was disgusted and bothered by him doing so.”

 

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Portland Oregon has witnessed a remarkable turn of events within its police department.  According to The Oregonian, the police chief reassigned a police lieutenant who had “inappropriate physical contact with women under his command in the records division” to a new command:  to supervise sex crime detectives who handle sex assault and human trafficking cases.  In December, the Portland Police Review Board had recommended that the lieutenant be fired.  

 

This may seem like a bad joke, but not to one of his victims who had filed a harassment complaint and now had to work in his new unit.

 

 

However, the chief, after “facing harsh criticism” of his judgment from the director of the Independent Police Review Division, and leaders of the Citizen Review Committee, reversed course, and a spokesman said “"After further consideration, Chief Mike Reese did not want to leave any doubt that the Portland Police Bureau takes harassment complaints very seriously and today has decided to reassign Lt. Wyatt.  Lt. Wyatt's assignment has yet to be determined."  

 

 

Is it tone-deafness, the traditional "blue wall of silence," or just stupidity?

 

 

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We were curious about this and asked around. We got a lot of different answers.  Some said that it was knowing all of the various laws that have to be complied with.   Some others said that it was trying to control the behavior of all of the different employees.  Other said that it was keeping the employee handbook and office policies up to date. 

 

The best response we received was this: getting it into the heads of employees and managers alike that the workplace is inherently and legally a different place than the home, the neighborhood tavern, the poker group or the social club. Behavior that is appropriate to those other places or in other situations may not be appropriate in the workplace.  Jokes that are appropriate in other places may not be appropriate at work (no matter how funny), whether on the work floor or by the water cooler.   

 

 

Because the workplace is a place where people go to make a living and support themselves and their families, pursue their jobs and professions, and produce goods or deliver services necessary for society, it must be a place where the playing field is level, where people of, for example, all races, ages, gender orientations or disabilities should be allowed to be all they can be and do all they can do without fear of harassment or discrimination. In short, it must be a place with sometimes strict rules and/or standards of behavior that may not exist in other places or may be silly or stilted in other places but must be adhered to so that no one is uncomfortable simply by being a member of a protected class.    

 

 

And people being people, oftentimes that can be pretty hard to achieve.

 

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Do I have any understanding of the many anti-discrimination laws governing the workplace? Do I have any policies or procedures in place that will help me if I get sued by a disgruntled employee? Am I prepared for a discrimination lawsuit if it comes my way?

 

Good questions to answer in the affirmative. Can you also answer the following ten questions in the affirmative?

 

1. Do I know about the relevant federal, state and local anti-discrimination laws and regulations and keep abreast of changes or do I have someone on staff who does?

 

2. Do I have policies and procedures in place regarding hiring, workplace rules and behavior, time off, benefits, and termination?

 

3. Are my policies and procedures in writing, kept up to date as needed, freely disseminated to all employees and vetted by knowledgeable counsel?  

 

4. Do I maintain a zero-tolerance towards any type of harassment, and does every employee know this? 

 

5. Do I set a good example for every employee by following my policies and procedures?

 

6. Have I appointed an EEO officer for the workplace so that every employee knows who to go to if they have a complaint, and is that person trained for this task?

 

7. Do I conduct periodic training sessions for both managers and employees so that they are sensitized to relevant workplace discrimination issues?

 

8. Do I maintain careful and up to date records for all employees, documenting everything from attendance to complaints to performance?

 

9. Do I know what to do if someone does complain of discrimination or harassment in order to minimize or avoid liability?

 

10. Do I insist that everyone treat everyone else with respect and the way they themselves expect to be treated, i.e., the “golden rule?”     

 

 

These are just the rudimentary questions to answer. However, if you answered “no” to any question, you better get on the stick and correct the situation before you get a knock on your office door and hear “There’s someone out here with some papers for you!”

 

 

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The New York City Council just passed a bill, Intro 814-A, which would prohibit an employer from using a person's employment status in hiring and from posting job advertisements that require applicants to be currently employed, and would give such a rejected applicant a private right of action. 

 

Last February 24^th, we recapped our numerous blogs where we wrote that under existing anti-discrimination laws, there is no protected class known as “the unemployed,” and if you are not hired because of your unemployment status, you have no actionable claim of discrimination. Blogs of 9/14/11; 6/8/11; 2/22/11  However, more than a dozen states are following the lead of New Jersey in seeking to pass legislation that would include "the unemployed" within the class protected against employment discrimination. 

 

 

NY's Mayor Bloomberg, however, promised a veto of the bill, stating that the bill would “be devastating” to small businesses, which need to know such information and which will be threatened with costly litigation if they fail to hire an unemployed applicant. Christine Quinn, the Council Speaker, claims that there are enough votes to override such a veto.

 

 

Bloomberg was quoted as saying that “this is certainly not the time that we need an incentive for small businesses in particular to not hire anybody."

 

 

Law360 Employment quoted Speaker Quinn, who is seeking to become Mayor, as saying that "Discrimination is wrong in all its forms, and we cannot — and will not — allow New Yorkers who are qualified and ready to work have the door of opportunity slammed in their faces.”

 

 

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The manager of an upstate NY grocery whose sexual harassment of underaged female employees was so egregious that an appeals court prohibited him from entering the grocery's premises has just had a punitive damages award of $477,349 against him and the store upheld.  

 

On October 22, 2012, we reported the stunning appeals court decision, which held that “this is not an ordinary case” and chastised the trial court for not itself issuing the injunction against the manager.  Apparently, the owner of the small Oswego grocery store hired a store manager with whom she quickly became romantically involved. The manager repeatedly verbally and physically sexually harassed many of the young women working in the grocery, some of whom were only 16 years of age. Read our earlier blog for the gory details – the judge called the testimony of the victims "to put it mildly, devastating in terms of painting [the manager] as a middle-aged sexual bully."

 

A jury awarded the ten women plaintiffs $1.2 million in punitive damages, which was ultimately reduced, and the decision this week upheld the new amount.  

 

Originally, we noted that the take away from the appeals decision was that “this case stands for the proposition that under Title VII a court has broad powers to fashion an appropriate remedy, and that in the appropriate case not exercising its broad power may be an abuse of discretion.”  We can now add an addendum that if harassing behavior is so egregious, punitive damages can be very severe.

 

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A Charlotte-based private security company was just sued by the EEOC in a Title VII class action lawsuit for sexual harassment of male employees based upon their gender.  The employees, security officers, were allegedly harassed by a captain and lieutenant who made offensive comments to them, solicited nude pictures from them, asked them to undress in front of them, solicited them for sex, forced them to accompany them to gay strip bars while on duty, touched their chests and genitals, and offered promotions to them in exchange for sex.   

 

Despite the complaints which many of the employees filed, the company allegedly failed to prevent and promptly correct the harassment and suspended, demoted and/or discharged certain of the complaining employees.

 

Note that this is a lawsuit premised upon sexual harassment, which is a form of sex or gender discrimination. This is not a case of discrimination or harassment based upon sexual orientation, which is not prohibited under federal law.  These employees were allegedly harassed because of their gender, not because of their sexual orientation.   "All employees, men and women alike, are entitled to a workplace free from sexual harassment," noted an EEOC attorney.

 

Employers should note, however, that discrimination or harassment based upon sexual orientation is prohibited under the laws of many states and municipalities, such as New York State and New York City.  

 

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We are pleased to note that Eric Meyer, who writes the well-known blog, The Employer Handbook has emailed us that  "You guys have a fantastic blog.  I'm a big fan!  Keep up the great work."

 

Thanks, Eric -- you too!  We are also fans of yours!

 

 

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Apropos our entry of January 10th on the EEOC targeting "Fears, Myths and Stereotypes," an attorney (obviously a loyal subscriber to our blog) wrote about his clients who "don't get it":

 

"My clients for the most part are quite bright. They participate in our flat fee retainer program, they recognize the value of supervisory training, they regularly review their handbook and revise as needed. Yet for some reason their Achilles heal seems to be their adherence to myths, fears and stereotypes usually involving pregnancy and heart conditions in a strenuous environment. I have to believe that one of these days the light bulb will finally go on (emphasis added)."

 

What more can we say?  

 

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If sequestration occurs in March, the EEOC stands to have its budget slashed by between $23 million and $30 million – a cut of between 6.5% and 8.2%.  Employee furloughs would undoubtedly follow, and a backlog of cases would grow.  

 

An American Federation of Government Employees spokesperson said that "For all intents and purposes, the United States would cease to have enforceable civil rights in the workplace should sequestration occur."

 

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We’ve used actual EEOC lawsuits to caution employers many times not to discriminate against employees by using concerns about their health or safety.  For example, on December 4th we discussed an ADA lawsuit brought by the EEOC on behalf of an employee who was fired because she had a prosthetic leg and the employer "did not want anyone bumping into her.”  An EEOC lawyer stated then that “Firing employees because of baseless fears and stereotypes about their disabilities is illegal.” 
 

We also wrote on November 14th about an employer who fired a housekeeper after learning that she was pregnant, contending that “it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.” An EEOC attorney said that "Employers may not bar pregnant employees from work because of outdated myths or stereotypes.”

 

Well, employers take note:  the EEOC is still targeting baseless fears, outdated myths and stereotypes.  It just announced today that it sued an employer on behalf of a mechanic who developed endocarditis, an infection of the inner lining of the heart, and after having valve replacement surgery was medically released to return to work. He was nonetheless fired.  His termination letter stated that "[g]iven the nature of  [his] job as a Sheet Metal Mechanic, it is too risky to allow [him] to return to [his] previous line of work," and his notice of discharge stated  that he was "unable to return to job as a Sheet Metal  Mechanic due to ongoing medical condition."     

 

An EEOC attorney hauled out of mothballs the quotes of his colleagues and stated that "The ADA was enacted to stop employers from refusing to hire or firing qualified employees based on fears, myths or stereotypes about their disabilities."    
 

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

 

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Here’s a cautionary tale. The EEOC sued a Burger King franchisee in 1998 on behalf of 89 female employees who alleged sexual harassment.  The case, pending in update New York, has been one of the EEOC’s most extensive sexual harassment cases ever.

 

The company fought the suit for 14 years and finally decided that although it denies any and all wrongdoing, it is settling the case for $2.5 Million, because (the CEO said), it was far less costly than continuing litigation, given the age of the claims and because hundreds of potential witnesses are scattered across the country, ill or deceased.  

 

He further said that “We unequivocally do not tolerate sexual harassment in our workplace," but as the company’s counsel added, "It has cost the company an enormous amount of money to defend itself up to this point … It would have cost many more millions of dollars in legal fees to have concluded a potential trial of 89 claims."

 

Employers should take away from this sad saga that being right and vindicating yourself is an extremely costly endeavor. Sometimes you have to fight, it is true, but since anyone can file a lawsuit, it may be more effective (and less costly) to take preventative action to eliminate some of the root causes of employee lawsuits. As always:

                 ---  maintain a zero-tolerance policy as to harassment;,

                 ---  update your employee handbook;

                 ---  maintain an open dialogue with employees (as best you can),

                 ---  keep conducting anti-discrimination training of all managers and employees;

                 ---  document all disciplinary infractions and performance issues; and

                 ---  keep abreast of the law (reading this blog is a good way!).          

 

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A female bar employee who was sexually harassed by her manager has been awarded $26,000 by the New Zealand Employment Relations Authority (“ERA”). The employee claimed that she was forced to quit after being bullied and being subjected to "off colour comments" and crude jokes, which the bar’s management “laughed off.”  

 

After her complaints, the manager ceased his sexual harassment but changed the nature of his bullying.  As the New Zealand Herald reported, “he micro-managed her every task, made her a cleaner, and ‘badgered’ her by monitoring bar till transactions on his home computer.” 

 

The ERA’s member who heard the matter determined that the employee had been constructively discharged, and stated that "Employees should not be subjected to such behaviour and when they raise their concerns those should be acted upon."

 

As its web page states, "The Employment Relations Authority is an independent body set up under the Employment Relations Act 2000. Its role is to resolve employment relationship problems by looking into the facts and making a decision based on the merits of the case, not on technicalities."

 

 

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A new study coming out of the University of Canberra in Australia has found that in rural workplaces “the tendency to make sexual harassment invisible appears fairly widespread.”  That is, “a large majority of employers and employees in rural and remote Australia are inclined to deny or minimize sexual harassment in the workplace.”

“Our most disturbing finding was that more than four-fifths of employers believed that women’s behavior contributed to their victimization.”

This writer has found similar attitudes coming from other places.  After my blog about the horrific gang rape in India and the surveys there which founds widespread sexual harassment of women, a reader wrote to me and, while condemning the atrocity and the perpetrators, nonetheless noted as an aside that the wearing of short skirts by women provoked such attacks.  "Blaming the victim" has, unfortunately, a long tradition.  

 

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On December 20^th we reported that a survey in India found that 92 per cent of women working in information technology, hospitality, civil aviation and call centers feel unsafe travelling home after work.  92% of women respondents in Delhi claimed that they did not feel safe at night (in fact two of every three women had experienced sexual harassment), 85% in Bangalore, 82 % in Kolkata, and 18% in Hyderabad. 

 

We learn now from the Yemen Times that the same sorry statistics are found in Yemen, where a recent report by the Safe Streets Initiative for Combating Harassment in Yemen found that 90 percent of Yemeni women are subjected to sexual harassment, and that most sexual harassment happens on the streets.  Sana’a ranked first (and Taiz and Aden were ranked second) as the cities with most newly reported harassment cases of rape, inappropriate touching and verbal harassment. 

 

The study found that “girls face constant harassment, whether it is on the street, in the markets or in the work environment. … Many women complain that trying to counteract harassments deprives them of social and professional advancement. If they cause a fuss, women have often been known to lose promotion or job opportunities.” 
 

Read about the UN initiative designed to protect women: http://www.unwomen.org/2011/06/un-launches-initiative-to-make-cities-safer-for-women-and-children/

 

 

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Our Princeton office will host a breakfast seminar on February 14, 2013 from 8:30 am. to 10 am, entitled Preventing Sexual Harassment and Discrimination.

This program will address the fundamentals for employers regarding the prevention of sexual harassment and illegal discrimination in the workplace.  The discussion will include what the law requires as well as what every employer needs to effectively meet its duties and obligations and will highlight what is currently trending in this ever-changing area of the law.

Click here for more information.

 

 

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A study by Illinois State professors Kimberly Schneider and Patricia Jarvis (and reported by Business News Daily) has found that adolescents employed as sales clerks or flipping burgers are more likely to be sexually harassed by older co-workers than adult employees, and more likely to be harassed than adolescents in jobs that provided more meaningful work and autonomy.

Significantly, such harassment can lead to lower job satisfaction, lower skill development (especially in females), and can impact performance in school, absenteeism, tardiness and grades.  

Why the disparity between low and higher skill jobs?   It should come as no surprise that victims of harassment are more often of “relatively low status and power in the workplace," stated one of the professors. As with people victimized throughout society, they are more often the victims of this “power differential.” 

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The former aid to former Australian Federal Speaker Peter Slipper, who sued him for alleged sexual harassment, said that he will appeal the recent adverse ruling of the Federal Court which dismissed the case as an abuse of the judicial process, and ordering him to pay Slipper’s legal costs. The Standard reports that James Ashby, claiming his sexual harassment case has not been heard because the “only matter that's been heard over the past eight months was Mr Slipper's abuse of process case," said that he will also bring the case to the attention of Fair Work Australia.

 

The Court said in its ruling that the harassment case was a politically motivated attack by Ashby and others, and that a series of text message exchanges between Ashby and his friends “read as if the participants were discussing the political ramifications of Mr Ashby revealing material that was sexually and politically embarrassing and that would compromise Mr Slipper and his position as Speaker.'' 

 

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A potentially explosive story has surfaced that the former “Abstinence Project Coordinator” and “Director of Women’s and Reproductive Health” at Tony Perkins' Christian conservative Family Research Council sued the organization based upon alleged sexual harassment by her supervisor, anti-abortion lawyer William Saunders, then the director of the organization’s “Center for Human Life and Bioethics” (who now works at the anti-abortion group Americans United for Life). 

 

She filed a charge of discrimination in 2009 with the District of Columbia Human Rights Commission, and stated that she was hired in 2005 and that when Saunders became her supervisor in 2007 “his inappropriate behavior towards me escalated.” 

 

In her charge of hostile work environment, she claimed that Saunders “pressur[ed] me to attend parties, referring to me as a ‘young, attractive woman’ and emailing me ‘hi cutie.’" “He also referred to the use of birth control pills by young women as ‘whoring around.’"

 

The organization fired the employee shortly after she filed the complaint (so has also sued for retaliation).

 

It is nice to know that those who advocate for abstinence and conservative values seem to exempt themselves from their own teachings and counseling. To borrow and mangle a quote from Orwell’s Animal Farm, "ALL PEOPLE  ARE EQUAL, BUT SOME ARE MORE EQUAL THAN OTHERS."   Isn't this known as hypocrisy?

 

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Yesterday we wrote about the growing sexual harassment of woman in India, and today we have read in India’s Economic Times an angry editorial seemingly blaming movies and the machismo culture extolled in them for this increase. 

 

“Given that many Indians take their style and lifestyle cues from the movies,” said the editorial, “will the censors decide to snip overtly suggestive interactions between ardent heroes and the reluctant objects of their reel-life desire in the bud to assuage, at least in part, some of the people's anger against the crude machismo that appears to be leading to real-life molestations? That seems unlikely as such cuts would play havoc with storylines and song opportunities. Instead, the authorities could take a line from ad films with death-defying stunts and warn viewers during lascivious scenes not to do this at home — or in the street — as they are totally fictional, are performed by trained actors and are not meant to be prescriptive in any way. The least they can do, of course, is ban the practice of coyly describing all unacceptable and lewd behaviour, ranging from off-colour remarks to out-and-out assault, by the euphemism 'eve-teasing'.

 

 

We are not entirely convinced based upon the available evidence that movies cause violence or harassment, but we are convinced that people do take “lifestyle cues” from popular cultural outlets.  Censoring movies may not be the answer to this problem that we would like to see, but perhaps more sensitivity to the issue by moviemakers. In any event, seems like the issue goes well beyond the movies and has to be addressed at much higher levels and throughout all aspects of the society.

 

 

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This is not quite an employment discrimination story – but more of a story about sexual harassment of women after work ends. A nationwide survey in India has found that 92 per cent of women working in information technology, hospitality, civil aviation and call centers feel unsafe travelling home after work.  

Why should the nature of their work make them more or less vulnerable to post-work harassment? 

Seems that women who work in areas such as travel, tourism, nursing, and information technology were most vulnerable simply because they had to work late.

92% of women respondents in Delhi claimed that they did not feel safe at night (in fact two of every three women had experienced sexual harassment), 85% in Bangalore, 82 % in Kolkata, and 18% in Hyderabad. 

A majority of the women blamed this on inadequate street lighting and unsafe public transportation, and the Indian chamber of commerce organization that conducted the survey suggested that GPS devices be installed in taxis and public transportation, that women be trained in self-defense, and that employers “take extra precautions in case of women staff working till late in the evening.”

 

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In our practice we have received a number of inquiries over the years from employers whose departing employees executed severance agreements and then turned around and filed discrimination charges against them with the EEOC, or sued them.  Does this breach the severance agreement?  Can an employee who receives severance file such a charge? Can the employer stop paying severance?

 

The answer can be found in a newly settled EEOC lawsuit against Trinity Health Corporation of Michigan. The EEOC alleged that Trinity had a policy of denying or delaying severance payments to these employees.   It is clearly unlawful for an employer to punish or retaliate against employees who exercise their right under Title VII to file a charge of discrimination with the EEOC, and Trinity settled the case by agreeing to change its policy and also pay $25,000 to an employee whose severance pay was withheld after she filed an EEOC charge.  

 

An EEOC attorney answered our initial inquiry succinctly: "even if employees sign severance agreements with their employer, they are still entitled to file a discrimination charge with the EEOC."

 

Of course -- and this is a big "of course" -- if the severance agreement is properly drafted and provides consideration for the employee's agreement to release the employer from all claims, then the result could be different -- the employer would have a defense to the EEOC charge based upon the release.   

 

But could the employer also cease making severance payments based upon a breach of the severance agreement by the employee?  

 

 

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A 2008 class action ADA lawsuit filed by the EEOC against Dillard's, one of the US’s largest fashion apparel, cosmetics and home furnishings retailers, was just settled for $2 million.  The suit contested Dillard’s policy and practice of requiring employees to disclose the exact nature of their medical conditions to be approved for sick leave, and firing them in retaliation if they refused to do so. The federal court had ruled earlier in favor of the EEOC’s contention that this policy violated the ADA’s prohibition against employers making inquiries into employees’ disabilities unless job-related and necessary for the conduct of business. 

 

The EEOC also claimed that Dillard’s violated the ADA by its maximum health-related leave policy irrespective of the nature of an employee’s possible disability and without regularly engaging in an interactive process with the employee to determine if the employee required more leave as an accommodation.

 

We noted last month that the EEOC was targeting ADA issues, especially on a class basis, and this latest settlement shows that the EEOC is serious about its agenda, and has now freed up resources for further such lawsuits.    

 

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In a decision otherwise of little note, a federal appeals court has ruled in a case from Georgia that an employee who, because of her medical condition, was called “cripple” and “hopalong” by her supervisor, did not have a claim under the ADA because she was not “disabled” under the pre-amendment ADA.

 

The plaintiff argued that she had “stroke level” hypertension, mental illness that affected her ability to concentrate and sleep, spinal arthritis and a bulging disc or sciatica causing chronic back pain, and osteoarthritis that required knee-replacement surgery that affected her ability to walk, stand, and sit.  She claimed that she was denied reasonable accommodations.

 

 

The Court held, however, that the pre-amendment ADA defines “disability” as a physical or mental impairment that substantially limits one or more of the major life activities of an individual, and that plaintiff “did not provide evidence indicating that her difficulties walking, sitting, standing, concentrating, and thinking were any worse than similar afflictions suffered by many adults.”  She also failed to present sufficient evidence establishing that her physical or mental conditions were severe, long-term or permanent, or that they affected her ability to perform her job.

 

 

As to her “regarded as disabled” claim, the Court held that her employer did not regard her as substantially limited in a broad range of jobs or as having a permanent disability. The use of the words “cripple” or “hopalong” apparently did not matter to the Court.

 

 

In any event, its good advice not to call people who are disabled names – even if you ultimately win, why tempt fate and why create unnecessary discord or bad faith among employees.

 

 

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It is always a little disconcerting when, for example, in the employment realm a rehabilitation center gets sued for disability discrimination, or a center for the aged gets sued for age discrimination. 

 

We now learn that the American Arbitration Association ("AAA"), probably the nation's premier alternative dispute resolution provider, just got sued in New Jersey in a Fair Credit Reporting Act class action.  The plaintiff/applicant for employment claims that his offer of employment was rescinded because of his credit report which was relied upon by the AAA without providing him the opportunity to dispute or contest the accuracy of the information in it. 

 

The AAA has not yet been available for comment.

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Sexual harassment of farmworkers has been established by the EEOC as an area of concern, with the words “harrowing,” “appalling” and “extreme abuse” used regarding a series of recently filed cases. The EEOC has said it is explicitly targeting the abuse of “vulnerable workers.”

 

We reported on October 11th, that the EEOC had settled a national origin harassment case against a California vinyard which, it was alleged (among other things), permitted a supervisor to call Mexican workers "wetbacks" and "beaners."  As we said then, underscoring the EEOC’s use of the word “vulnerable” to describe the type of employees that it was moving to protect, one plaintiff was quoted as saying that "Until this case, we didn't realize we had rights, or that there are laws to stop that kind of treatment."
 

 

The EEOC has just announced a $500,000 class action settlement with a Georgia agricultural farm which has agreed to make payment to 19 American seasonal workers, mostly African-Americans, who were allegedly discriminated against based upon their race and national origin. The EEOC claimed that the employer engaged in a pattern and practice of such discrimination by firing virtually all American workers in favor of keeping Mexican workers, while also making race-based comments.

 

The EEOC general counsel reiterated that "The EEOC will continue to protect the rights of vulnerable workers, such as the African American agricultural workers in this case, who were unlawfully terminated because of their race and national origin. Employers must ensure that their employment practices are in line with anti-discrimination laws, especially in light of the globalization of the labor force."
 

 

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Call it overly cautious or squeamish, but trained HR people generally frown upon disciplining employees by choking them.

However, according to reports of a newly filed lawsuit, this well-established taboo apparently didn’t sink in to the CEO of American Apparel who throttled the former manager of his Malibu store (and called him anti-gay slurs). He only ceased his act of employee discipline when the manager began to gag – at which point the CEO, understandably frustrated by such resistance to his authority, threw dirt in the manager’s face.  Guess the manager is not likely to act up again!

After careful thought, we think that this is not a particularly good way to discipline employees or to gain their respect, or at least their cooperation.  Better not to do it.   However, it is a good way to get sued for assault, battery, and discrimination, and to get brought up on criminal charges.

 

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Add the Phoenix District Office of the EEOC to the Denver and Detroit EEOC offices which have announced a new collaboration with Mexican consulates in Phoenix, Nogales, Tucson, Yuma, and Douglas Arizona.

We described the nature and details of this collaboration earlier this week.

 

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The EEOC announced a $201,000 settlement of a Texas lawsuit on behalf of nine Hispanic employees who claimed a national origin hostile environment at Air Express International and DHL Global Forwarding.  There was "intimidation and ridicule,” stated an EEOC attorney, which was “dehumanizing” and “un-American." 
 

It was alleged that Hispanic employees (of Mexican, Salvadoran and Puerto Rican heritage) were constantly called names such as "wetback," "beaner," "stupid Mexican," and "Puerto Rican b---h," were subjected to ethnic slurs such as "salvatrucha" (gangster), and referred to by derogatory ethnic stereotypes (i.e., told they should be outside mowing the grass). Further, supervisors harshly warned bilingual employees not to speak Spanish at work.

The EEOC attorney warned these employers that they "must respond immediately to the multiple reports of harassment and eliminate the problems so as not to permit an atmosphere of contempt and mockery."
 

Good advice.

 

 

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You might remember our recent blog about the parrot kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended attending female nurse.  We asked whether an employer can be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by, for example, a parrot, a co-worker, or a mail deliverer?  The nurse's complaints to her supervisor were laughed off, but she got the last laugh because the court found a hostile work environment based upon sexual harassment.

We received a few comments from readers who thought that we were kidding. We weren’t.   And what’s more, a recent guidance letter from the EEOC dealt with this same issue, although it wasn’t about a parrot. The exact issue about which the EEOC was asked its guidance was whether a municipality has any obligations relating to hostile work environment under Title VII when a citizen harasses a police officer.

 

In a guidance letter, the EEOC, citing the case of Cromer Food, commented that “courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.”   Same as the parrot case.

 

As to the more difficult issue involving citizen harassment of public employees, the EEOC found no precedent, and so looked to the situation where courts dealt with prisons sought to be held liable under Title VII for harassment of a prison employee by inmates. While noting the “practical and constitutional limits on the steps [the prison] can take to protect staff from inmate harassment” the EEOC quoted one federal appeals court which stated the "general rule of reasonableness regarding employer liability for third-party harassment under Title VII adequately respects the difficulties that prison officials encounter in controlling inmate conduct. …  Although some harassment by inmates cannot be reasonably avoided, [a prison], on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by inmates."

 

The EEOC’s letter stated that with respect to the difficult case of citizen harassment of police officers, there are “constitutional constraints prohibiting the [the infringement of] the rights of citizens,” but that there could be Title VII liability based upon “the reasonableness of the employer's corrective action [which] would depend on the totality of the circumstances.”  These circumstances could include the nature of the harassment, the specific context, and the practical limitations on the employer's ability to respond.

 

However, the EEOC concluded that “Depending on the facts of a particular case, a city likely would not be liable under Title VII for citizen harassment of a law enforcement officer where the city had taken reasonable corrective action under the circumstances.”
 

 

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The UK's Manchester Employment Tribunal has awarded a former therapist £25,000 on her employment discrimination claim brought under the Equality Act of 2010.  This award is surprising to the extent that she was employed for only 19 days.

 

The Gloucestershire Echo reports that the Court held that in spite of the employee's very brief tenure, she was entitled to damages reflecting the time she likely would need to find a new job, plus "injury to [her] feelings."

 

Like American anti-discrimination laws, the Equality Act prohibits discrimination or harassment based upon sex or any other "protected characteristic" such as race, religion or sexual orientation.

 

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On May 21st , September 28th, October 1st and November 1st we wrote that the EEOC was serious about pursuing pregnancy discrimination cases filed under the Pregnancy Discrimination Act (PDA). We have cautioned employers for a long time that the EEOC was targeting pregnancy discrimination.

 

Now we learn that the EEOC has sued a Comfort Inn & Suites franchisee in Michigan who fired  a housekeeper when it learned that she was pregnant, contending that “it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.”

 

This, if true, is clearly pregnancy discrimination, even if, as the Supreme Court held, it is couched in the language of safety and health.  "Employers may not bar pregnant employees from work because of outdated myths or stereotypes,” an EEOC attorney was quoted a stating.

 

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Sexual harassment is on the EEOC’s radar, as we know.  And we also know that the EEOC intends to continue its practice of filing class action or systemic lawsuits. Finally, we blogged last week that the EEOC encourages settlements.

 

It is therefore not a total surprise that the EEOC has just announced that it settled a class action sexual harassment case for $1,000,000 against IHOP restaurants in two New Mexico counties owned and operated by one individual.  It was alleged that a single manager subjected a class of 22 women, including some teenagers, to sexually offensive comments and unwanted touching, and some of these women were forced to quit because of this.

 

The EEOC claims that this is the second-largest litigation settlement ever reached by the EEOC's Albuquerque Area Office. 

 

We concur with the statement of an EEOC attorney:   "Managers must constantly be reminded of their obligation to maintain workplaces where employees are not subjected to illegal harassment or forced to quit because of the harassment. Where managers fail to satisfy these obligations, it is the employer's responsibility to correct the violations and prevent other violations from occurring.  These women and all women deserve to work without being harassed because of their sex.  It is especially true that given these difficult economic times, women should not be forced to choose between intolerable sexual harassment and wages for their families."

 

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An important decision has been handed down by The European Court of Human Rights, which held that the UK had an obligation to provide protection against firing based upon an employee's membership in a political party that possessed political opinions  which may "offend, shock or disturb."

 

The employee in this case was a bus driver who belonged to a rightist party known as the BNP, who was fired, as the employer explained, because of "health and safety reasons" – that the employee was unsafe driving a bus where 75% of the passengers are Asian (and presumably, therefore, would be hostile or violent to the driver).  

 

The claim of “unfair dismissal” was unavailable to the employee because he did not work long enough to qualify under the law, and the UK court found that because the employer would have fired him whether he was black or white (he is white), he had no claim of race discrimination.  

 

The employee appealed to The European Court of Human Rights contending that European Convention of Human Rights Articles 10 (freedom of expression) and 11 (freedom of assembly and association) were violated. The Court held that even if the employee did not work for a long enough period of time, UK courts still must consider whether his Article 11 rights have been violated, since "this was necessary for the importance of democracy notwithstanding that the views of the employee might be offensive or shocking.”

 

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On February 9, 2012, we reported on the “Great Texas Lactation Case,” where a Texas federal judge held that a woman who claimed to have been fired for seeking to pump breast milk while on the job had no viable claim under Title VII’s prohibition against discrimination based upon pregnancy, childbirth or a related medical condition.   

 

The Texas judge famously (notoriously?) held that "Lactation is not pregnancy, childbirth, or a related medical condition," and stated curtly that after plaintiff gave birth, “she was no longer pregnant and her pregnancy-related conditions ended."

 

We later noted that the EEOC appealed the decision, and numerous organizations such as The Texas Pediatric Society and the Texas Medical Association filed a “friend of the court brief” in support of the EEOC’s appeal, arguing that “since the yielding of milk by mammary glands is a medical condition caused by pregnancy and childbirth, lactation is a ‘related medical condition’ as contemplated by Title VII.”

 

It came time for oral argument on the appeal last week, and the EEOC told a federal appeals court that Title VII, as amended by the Pregnany Discrimination Act, or PDA, protects women from being fired for both lactation and breast pumping. On the other hand, counsel for the company told the court that “breast pump discrimination is not protected by Title VII.”  

 

 

The Chief Judge, Edith Jones, took up this argument and tried to distinguish between “the desire to express breast milk,” and “lactation.” Judge Jones said that the plaintiff “didn’t say: May I lactate while I’m at work? She said: May I bring a breast pump to work?”      

 

The EEOC replied that “When you are firing somebody because of a sex-specific trait, then you are firing them on the basis if sex.”  

 

Seems like this appellate argument went beyond the trial court’s holding and decided to split hairs: is there anyone out there who cares to comment on the practical distinction between “lactating while at work” and “bringing a breast pump to work?”   Was the PDA really written to be read so narrowly?

 

 

 

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On September 28th we reported that the EEOC just sued two companies alleging pregnancy discrimination -- clearly signaling that this type of discrimination is on their radar.  One company, Muskegon River Youth Home in Michigan, had policies in place which required a woman to immediately notify the company once she learned that she was pregnant, and required her to produce a certification from her doctor that she is capable of continuing to work.

We noted earlier that company policies are great and desirable -- but that they cannot be discriminatory, as this one seemed to be!
 

Today, the EEOC announced a settlement of its suit against Muskegon River Youth Home.  The Home agreed to a 10-year consent decree requiring it (1) to rescind its pregnancy policy, (2) not require employees to inform the company when they become pregnant, (3) not require employees to wait 30 days after pregnancy before coming back to work or to provide medical statements regarding the employees' continued ability to work, and (4) conduct training on pregnancy discrimination and periodically provide reports to the EEOC.
 

The EEOC stated that "This employer should be commended for resolving this case at this juncture."
 

It seems that the EEOC is very eager to resolve its charges and cases as early as possible, and its warm and fuzzy press releases which praise such settlements are the carrots to the lawsuits' sticks.

 

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Sexual harassment suits are on the rise faster than other employment discrimination suits, be they suits by the EEOC or by private plaintiffs.  Some of the ones we have discussed here are pretty extreme, involving physical touching and worse.  And some involve verbal abuse and harassment which take place over a period of time. 

 

What all employers should be on guard against is a working environment that, while not having experienced any complaints of verbal or physical harassment, nonetheless are perhaps breeding grounds for future suits because of a “good old boys” environment. While this is more likely in an industry that is traditionally male-dominated, this could take the form in any workplace of a fraternity-like group of workers who “tease” female colleagues and/or exclude women from their “club,” to hostility to women evidenced by verbal abuse and harassment that may not rise to the level of “severe” but may still be “pervasive” and not merely episodic. 

 

 

Female employees may not (yet) have complained, but eventually a tipping point or critical mass may be reached and you will find yourself being sued and being shocked.  Just ask the traditional “old boys clubs” of banks and brokerages (and other bastions of male privilege) which have been the subject of numerous lawsuits over the last dozen or more years.

 

 

New Lawsuit Against The Old Boys  

 

Yesterday, a suit was filed in Texas by a woman who alleged that the executives of real estate investment trust Weingarten Realty Investors maintained an "elitist 'good-old-boy' network" that was "designed to demean and discriminate against women in the workplace. The environment was both subjectively and objectively hostile to women."   It was alleged that they frequently berated, embarrassed or mistreated female employees, while also paying them less than male co-workers.  

 

Plaintiff complained to HR, and was told by the HR director that if she pursued her complaint it would be a "nail in your coffin" and that “she could lose her job, financial safety, and that the health and well-being of her new baby would be at risk.”  She claims that she was fired by email while she was on medical leave following the premature birth of her daughter and recovery from a rare disorder and complications during pregnancy. 

 

Dissolve The Good Old Boys Network

 

We have the same advice for “good old boys” that we have for all employers – but we emphasize it more. 

 

1.   Above all, be vigilant that the good old boys do not inhabit your workplace.  Maintain a fair and consistent workplace; employees who feel that they are treated fairly and respectfully are less likely to complain or sue.

2.   Draft and maintain an up-to-date employment manual, which incorporates all of your companies policies and procedures, and keeps current with the ever-changing law.  Make it known to your employees that you have a zero-tolerance anti-discrimination and anti-harassment policy in your company, which you will enforce fairly and consistently. And be serious about it.

3.   Conduct periodic training programs for all managers and employees in anti-discrimination, anti-harassment and anti-retaliation policies. Let all employees know where and who to go to register a complaint, so as to give an aggrieved employee recourse if he/she experiences discrimination or feels aggrieved. Treat all employee complaints seriously and confidentially, and investigate all claims promptly and even-handedly.

 

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On November 1st we reported that the EEOC’s targets include sexual harassment, and that it plans to continue filing systemic litigation. As if to put an exclamation point on this, the EEOC just sued Señor Frog's, a chain of Mexican-themed restaurants, as well as its staffing company, for “rampant sexual harassment of its female employees in Honolulu.”

The suit alleges that “widespread sexual harassment was out of control, stemming from Señor Frog's owner himself.”
 

“[A]t least nine female servers and bartenders were repeatedly bombarded with sexual propositions, explicit sexual remarks, groping, grabbing, and exposure of genital areas by male managers, and even ordered to perform sexual favors for high-level Señor Frog officials.”
 

The regional EEOC attorney stated that “We are troubled by the increase of sexual harassment cases and companies continuing to fail to take this problem seriously."

 

We told you that we would follow the EEOC’s filed suits to see if we detect an adherence to its espoused goals. So far they are one-for-one.

 

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This is an employment discrimination story.  Honestly. 

According to Katherine Feeney of the Brisbane Times, Queensland, Australia is poised to pass an amendment to the Anti-Discrimination Act which would allow hotel and motel owners to evict guests they believe are (legal) sex workers. Apparently a Queensland Civil and Administrative Tribunal found that the Drover's Rest Motel had breached the Anti-Discrimination Act by refusing a room to a legal sex worker, which prompted the government to introduce the new law.

Lest our readers think that this report has zero to do with employment discrimination, it seems that before the passage of the Anti-Discrimination Act, some motel owners refused accommodation to indigenous Australians.  Claims one civil liberties advocate, the proposed law targets a “particular class of people” based upon arbitrary discrimination on the grounds of personal prejudice, similar to the bias shown in the 1970’s against indigenous Australians.
 

“If the prostitution in certain cases is quite legal, then to give – without seeing legislation – to give hotel and motel owners the right to evict sex workers if they are carrying out their employment in a legal fashion opens a whole myriad of problems for other people who carry on their business at [hotels and motels].”
 

A spokesman for a hotel trade group, the Accommodation Association of Australia, supports the proposed law, saying the responsibility for deciding who can get a room should lie with the owner or manager. "As well as providing our industry with much greater certainty, the new laws will assist with ensuring the tourism experience of staying in Queensland is enhanced."

This is a true story -- but anyway: Happy Halloween!

 

 

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Apropos to our blog entry of October 9th, where we described the EEOC’s targeting of cases of harassment and abuse of “vulnerable” employees, especially farm workers, the EEOC announced yesterday that it settled a case against a vineyard in Ukiah, California on behalf of farm workers.

 

The suit alleged national origin harassment against Mexican-born winery workers, who were called "wetbacks" and "beaners" by a supervisor, who also told them to go back to Mexico when they complained about the harassment.

 

Underscoring the EEOC’s use of the word “vulnerable” to describe the type of employees that it was moving to protect, one plaintiff was quoted as saying that "Until this case, we didn't realize we had rights, or that there are laws to stop that kind of treatment."

In our earlier blog we said that “it goes without saying that all employers in the United States must have a written 'zero tolerance' policy regarding sexual harassment distributed to all employees and managers and enforced by the employer, as well as appropriate periodic sexual harassment training of both employees and managers.”

Apropos to that advice, note that the settlement entered into by the Ukiah winery provides that it must pay $75,000, and also must conduct training for all employees against national origin harassment, as well as provide copies of its anti-harassment training in both English and Spanish to the employees.
 

 

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Everyone loves lists. Although not everything is reducible to a simple list, nonetheless here is our list of ten tips (back by popular demand) to lower your risk of being sued for employment discrimination

1. Know the basics of anti-discrimination law, both federal and in your state and city. Be familiar with what a “protected category” is, what you can and cannot ask in an interview, what constitutes harassment, what is retaliation and an “adverse action,” and what to do if an employee complains of discrimination.

2. Know who you hire. Consistent with the anti-discrimination laws, and without violating laws relating to, by way of example, credit and criminal record privacy, and health record confidentiality, do the legal and proper due diligence before you hire someone.

3. If you are big enough, hire a knowledgeable and experienced HR person.

4. If you cannot afford or justify hiring an in-house HR person, make sure that you have someone you can turn to who can identify an employment discrimination issue before it develops or gets worse, be it an attorney, or even an outside vendor who works with employers and know the terrain.

5. Draft and maintain an up-to-date employment manual, which incorporates all of your companies policies and procedures, and keeps current with the ever-changing law.

6. Make it known to your employees that you have a zero-tolerance anti-discrimination and anti-harassment policy in your company, which you will enforce fairly and consistently. And be serious about it.

7. Conduct periodic training programs for all managers and employees in anti-discrimination, anti-harassment and anti-retaliation policies.

8. Keep good and thorough records, and document everything, especially employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support disciplinary measures, termination or reductions in force.

9. Let all employees know where and who to go to register a complaint, so as to give an aggrieved employee recourse if he/she experiences discrimination or feels aggrieved. Treat all employee complaints seriously and confidentially, and investigate all claims promptly and even-handedly.

10. Above all, obey the “Golden Rule” as it applies to the workplace: be as honest, transparent and forthright with employees as is consistent with business considerations, keep employees in “the loop,” and maintain a fair and consistent workplace. Employees who feel that they are treated fairly and respectfully are less likely to complain or sue.

 

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“Harrowing,” “appalling” and “extreme abuse” were words used by EEOC lawyers regarding a series of recently filed cases targeting sexual harassment of farmworkers. It appears that the EEOC is periodically targeting different types of discrimination and different industries, and selecting particularly egregious cases to make a point to employers. Recently, for example, we noted that the EEOC was targeting the health care industry, ADA violators, as well as pregnancy discrimination.

Now the EEOC has announced that it has filed numerous lawsuits within the last few days targeting sexual harassment, particularly of farmworkers, who are subject to an “appalling abuse of power.”

In perhaps the most “harrowing case” (quoting an EEOC attorney), the EEOC sued River Point Farms of Oregon, alleging that a supervisor reinforced the domestic abuse of a female employee by verbally abusing her for years and publicly encouraging the woman's husband to kill her. After her husband tried to kill her when she was pregnant by kicking her in the stomach “so savagely” that she had to go to the hospital, the supervisor blamed her for causing her husband's arrest and then fired her.

The woman was quoted as saying that "My supervisor told me I was less than a man, that my husband should be allowed to beat me, and that I should put up with it because I am a woman."

The EEOC also sued Washington’s Roy Farms, alleging that a male supervisor sexually harassed male laborers for two years by assaulting them with sexual and threatening comments, touching them in a sexual manner and insisting that they watch him urinate. "I have worked in the farm industry for many years, and I had never before faced such extreme abuse," said one EEOC attorney.

Finally, the EEOC sued National Food Corporation, a major egg supplier in Washington, alleging that it allowed a supervisor to physically grab a female worker, who worked alone in an isolated barn where the harasser was the only management person on site, and make sexual demands upon her several times a week for years. "I suffered humiliating and disgusting demands from my boss," said the barn worker.

To underscore its efforts involving sexual harassment of “vulnerable workers,” another EEOC attorney recounted several recent settlements. Seattle’s Allstar Fitness paid a $150,000 settlement on behalf of a janitor repeatedly raped and then fired. Oregon-based Wilcox Farms settled a sexual harassment and physical sexual assault case for $260,000. And ABM Industries, Inc. paid $5.8 million to 21 janitorial workers who were sexually harassed by 14 male coworkers and supervisors, including one who was raped by a supervisor.

 

These may be "appalling" cases chosen by the EEOC to make a point, but it goes without saying that all employers in the United States must have a written "zero tolerance" policy regarding sexual harassment distributed to all employees and managers and enforced by the employer, as well as appropriate periodic sexual harassment training of both employees and managers. 

 

 

 

 

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The Australian Computer Society (“ACS”) conducted a survey and found that almost one third of all people applying for information and computer technology positions have been discriminated against on the basis of age or gender.

Almost half of all women have encountered discrimination, with one third of those claiming it was based upon gender.

Of those over 55, over one third claimed that in hiring they have encountered age discrimination.
A 2012 ACS remuneration survey found that males earn 9.8 per cent more than females.
 

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A UK case headed to the European Court of Justice involves an arbitration provision between two businessmen that requires that arbitration of all disputes be conducted only before an Ismaili Muslim arbitrator. The challenger contends that this provision breaches European laws against discrimination as well as the UK’s Equality Act 2010 by unfairly discriminating against arbitrators of other religions
 

The UK supreme court held that arbitrators are not protected by equality legislation, and that even if they are, the requirement for an arbitrator to be of a particular religion was a "genuine occupational requirement," that is, it was genuinely necessary for the arbitrator to be from the Ismaili Muslim community to decide the dispute. The challenger, however, contends that "This is a commercial dispute which in reality only required an experienced lawyer – there was no question of religion.”
 

The other side – and the supreme court -- say that parties who have consented to private arbitration should have the freedom to also choose their arbitrator, irrespective of the anti-discrimination laws.

Ned Beale of The Guardian has commented that “The case involves the balancing of two conflicting principles of human rights: equality and the elimination of discrimination on the one hand, versus religious and personal freedom on the other,” and that the ultimate decision “may have major implications for equality and religious freedom.”
 

 

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A federal judge has just approved a new entry-level firefighters test for New York City, which has the largest firefighting force in the country.  

The new test, known as Exam 2000, was developed after a federal judge in 2009 found a disparate impact relating to the existing exam. The judge appointed a Special Master to oversee the creation of the new exam, which the City now claims will not result in a “practical adverse impact" on minority applicants.
 

The last time we spoke about “disparate impact” discrimination (although we have done so a lot) was on September 21st, when we added another municipal fire department to the list of those whose examinations for firefighter positions were either challenged as having a discriminatory “disparate impact,” or who settled such lawsuits  

Now add New York City.
 

 

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An interesting article published by ABC News Radio came to my attention concerning the use of personality tests used in hiring – are they discriminatory?

 

Citing to a Wall Street Journal report, the article began with a lengthy description of an EEOC charge made by a hearing and speech-impaired woman who applied for a job as a cashier, bagger and stocker at a supermarket. She was required to take a 50-question "personality test," known as a "Customer Service Assessment," that would supposedly predict whether she would be friendly and communicate well with customers. She did not fare well -- the test purportedly showed that she was less likely than other applicants to "listen carefully, understand and remember" and then suggested the job interviewer listen for "correct language" and "clear enunciation."  She was not hired and now claims disability discrimination.

 

This test, and others like it, have become commonplace – apparently almost one in five HR directors use them because they claim that personality tests can help predict job-related behavior or organizational fit.

 

But be careful if you choose to use them –  these tests can be potentially discriminatory because they may “disparately impact” certain groups, such as the hearing impaired, as noted above.  The ADA also prohibits employers from using a personality test involving a medical examination of an applicant's physical or mental impairments or health before an offer is extended (although that can be done after a job offer has been extended).  Personality tests can also be attacked as being used to screen out protected classes if they are used improperly.
 

 

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The number of discrimination claims in the employment tribunals and the Employment Appeal Tribunal continued to fall – this year by 15%, (to 186,300 claims) with age discrimination claims decreasing by almost 50%. The one category of cases that showed an increase (by 6.5%) was disability claims.

The median award in age cases nearly doubled to £6,065, and the largest single compensation award was £4.5 million (a race discrimination case).

An explanation for this decrease may be a drop in the number of class actions -- the number of multiple claims dropped by 19% but single tribunal claims fell by only 2%. However, as reported by Valerie Siebert in PM, there are “just over 500,000 employment tribunal cases yet to be processed. The backlog was mainly comprised of complex multiple claims.”

 

 

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Add Corpus Christie, Texas to the list.

“Disparate impact” discrimination is a subject in the news lately, and we spoke about it in our August 28th  and May 14th blogs. An example of “disparate impact” discrimination under Title VII was set out in a case filed by the EEOC against the City of Jacksonville, which alleged that the City put in place written examinations for the promotion of firefighters which have a disproportionately adverse impact on black test takers; that is, they have a “disparate impact” on African-American candidates, and are not job-related or consistent with business necessity.

The U.S. Department of Justice now reports that it has settled a similar case, this time with the city of Corpus Christi, Texas. It was alleged that the city police department discriminated against female job applicants by requiring them to complete and pass a demanding and extensive physical test which included pushups, situps, a 300-meter run and a 1.5-mile run.

 

There was nothing discriminatory about the test on its face but the results. The statistics showed that from 2005 to 2009, there was a statistically significant difference in pass rates between male and female applicants --19% for females and 63% for males.

 

In 2011 the city changed the cut-off score, but the results were the same -- now 33% pass rate for females, 82% pass rate for males, also statistically significant. In both cases women passed at a rate less than 80% the rate of men.

 

 

A proposed consent decree would require the city to scrap the physical abilities test and to develop a new selection procedure that is compliant with Title VII, as well as require the city to pay $700,000 as back pay to eligible female applicants who failed the challenged physical abilities test between 2005 and 2011.

 

 

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The BBC reports that “[c]urrently, MPs detained under the Mental Health Act for more than six months are stripped of their seat.”

Tory MP Gavin Barwell claims that "An MP or a company director can be removed from their job because of mental ill health even if they go on to make a full recovery. The law as it stands sends out a clear message that if someone has a mental health condition their contribution to public life is not welcome. That is an affront to a decent civilised society. The current law is both discriminatory and an ass."
 

So he is sponsoring the Mental Health (Discrimination) Bill that would “tackle the last legal form of discrimination in our society.”

The existing law, according to the UK’s Law Society, may even breach the UN’s Convention on the Rights of Persons with Disabilities, ratified by the UK.
 

The UK government backs MP Barwell’s bill.
 

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Human rights group China Labor Watch has accused South Korea's Samsung of utilizing a hiring poster for one of its plants in China which states that applicants must be “female and not possess any type of communicable disease."

The group alleges that this violates article 12 of the Chinese Labor Law, which states: "Labourers shall not be discriminated against in employment, regardless of their ethnic community, race, sex, or religious belief."  The group also alleges that this violates article 30 of the Employment Promotion Law, which states: "No employment unit, when recruiting employees, shall refuse to employ a job candidate on the basis that he/she is a carrier of any infectious pathogen."
 

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A labor situation is coming to a head which involves a strange scenario to the mind of an American. It seems that a South African company known as Woolworths is running an ad seeking only job applicants who are "African Blacks" or "Africans, Coloureds and Indians.”

 

Now, to an American lawyer, this seems clearly illegal – you cannot advertise that certain races or nationalities need not apply, or that you will only consider certain races or nationalities. And even more strange perhaps, is an ad that favors – not disfavors -- the members of a protected, discriminated-against class to the exclusion of all other applicants. One is left wondering what the nature of these advertised jobs is.
 

 

However, there is some method to this madness. The South African Employment Equity Act provides that a “designated employer,” i.e., an employer who employs 50 or more employees, must implement affirmative action measures for designated groups to achieve employment equity, and that it is “not unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude any person on the basis of an inherent job requirement.”

 

Woolworths’ ad would seem, therefore, to be in accordance with the law, and, indeed, be within the spirit of the law and the country's public policy which favors affirmative action.

 

Not so fast, says trade union Solidarity, which is starting a public campaign against Woolworths to amend the ad “so that people of all race groups will be considered for the positions.” It seems that the law, while clearly promoting affirmative action, nonetheless prohibits quotas, which Solidarity claims the ads promote.

 

The Employment Equity Act states that affirmative action measures must include things like identification and elimination of barriers with an adverse impact on designated groups; measures which promote diversity; making reasonable accommodation for people from designated groups; retention, development and training of designated groups (including skills development); and preferential treatment and numerical goals to ensure equitable representation. This excludes quotas (emphasis added).”

 

The ads here amount to “unfair discrimination,” according to Solidarity, which contend that seeking applications from only a particular racial group is a quota:

"The Employment Equity Act does not make provision for the exclusion of any race as far as applications are concerned. The current advertisements amount to an absolute quota, which the Act explicitly prohibits. The trade union has appealed to Woolworths to revisit its internal affirmative action policy to ensure that it does not discriminate unfairly against current or prospective employees of any race.”

 

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On February 23rd we reported that the EEOC had just voted 4 to 1 to approve its four-year enforcement plan to attack "systemic employment discrimination," by filing more suits relating to alleged patterns, policies or practices of employers. We cautioned employers that the EEOC was attempting to get more "bang for the buck" by filing larger, more newsworthy and higher visibility cases, targeting certain industries.

The EEOC has just released a draft of its Strategic Enforcement Plan (SEP) for public comment.

 

Employers – here is your chance to be heard about the EEOC’s four-year plan. Don’t be shy – submit your comments, either yourself or by your counsel. 
 

“Comments must be submitted by 5:00 pm ET on September 18, 2012 at strategic.plan@eeoc.gov or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. The Commission plans to vote on the draft plan at the end of this fiscal year.”
 

The EEOC notes: “For general inquiries about the plan, please email strategic.plan@eeoc.gov or call (202) 663-4070/(TTY: 202-663-4494). For press inquiries, please contact the Office of Communications and Legislative Affairs at (202) 663-4191 or newsroom@eeoc.gov. If you are seeking EEOC information, please call (202) 663-4900 or e-mail info@eeoc.gov. Further information about the EEOC is available on itsweb site at www.eeoc.gov.”

 

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The AARP Public Policy Institute has just issued a report entitled "Protecting Family Caregivers from Employment Discrimination," and it claims that there is an “emerging trend” of caregivers of older adults facing increasing discrimination in the workplace.

An aging population must work at paid jobs, and also work without pay providing care for elderly parents and other family members, and are, according to the report, treated disparately in the paid workplace. The evidence of discrimination? “It may take the form of limited flexibility, denied leave, or even a pink slip, but whatever the case, more instances of employers treating employees with caregiving responsibilities less favorably than other employees are coming to our attention.”
 

The report cites compelling statistics of an aging workforce struggling to also care for elderly family members: The average American family caregiver is female, 49-years old, works outside the home, and spends almost 20 hours a week providing care for her mother. Moreover, 49 percent of the workforce expects to provide eldercare within five years.
 

With stats like that, we may reasonably expect an increase in lobbying efforts to prohibit “family responsibilities discrimination” in the workplace. 
 

 

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In case you thought otherwise, the United States is not alone in experiencing blatant acts of race or national origin discrimination. According to CNN, the 2011 Australian census revealed that Indian and Chinese born Australians make up 1.4% and 1.5% of the country's population, two of the largest such foreign born groups. Despite their small percentage of the country’s population, apparently some folks don’t want to hire them.

A cleaning subcontractor for Coles supermarket, one of the largest such chains in Australia, posted an online wanted ad (since removed) seeking cleaners at a Coles store near Hobart, the capital of Tasmania, that stated that "no Indians or Asians" should apply.

This ad was "discriminatory on the basis of race" and a breach of the Tasmania Anti-Discrimination Act, according to Tasmania's Anti-Discrimination Commissioner Robin Banks. 
 

Moreover, Coles may not have "fulfilled its obligations to ensure its agents do not engage in discrimination."

The Commissioner stated that she intends to investigate. 

 

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Seems like our naming of “The Great Texas Lactation Case” has gone viral. The August 23rd edition of “Workforce” devoted an article to the EEOC v. Houston Funding lawsuit, which it says “has been dubbed ‘The Great Texas Lactation Case.’"  Thanks!

 

On June 4th we reported that it “[s]eems like the “Great Texas Lactation Case” is the significant case that we had previously predicted. Blog of February 9, 2012. In that case, we noted that “the EEOC is seeking to reverse a Texas judge’s decision which denied the Title VII claim of a woman who alleged that she was fired for seeking to pump breast milk while on the job. He famously (notoriously?) said that "Lactation is not pregnancy, childbirth, or a related medical condition." The EEOC argues that the Pregnancy Discrimination Act and Title VII protect women from being fired for lactation and breast pumping.”

 

Seems like we have folks all over reading our blog!

 

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Rhode Island recently became the first jurisdiction in the United States to pass a law which prohibits employment discrimination based upon the status of being homeless, i.e., the law grants the right to seek and keep a job even if one does not have permanent housing.  The law also prohibits unfair treatment of people because of their homeless status as it relates to the actions of police, health-care workers, and landlords. 

The following is the relevant section of the Homeless Bill of Rights as it applies to employers:  "No person’s rights, privileges, or access to public services may be denied or abridged solely because he or she is homeless. Such a person shall be granted the same rights and privileges as any other resident of this state. A person experiencing homelessness: (3) Has the right not to face discrimination while seeking or maintaining employment due to his or her lack of permanent mailing address, or his or her mailing address being that of a shelter or social service provider"

 

 

 

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A judge in New York City has just held that an employee who alleged that she was fired for being short did not state a claim under New York state law which protects against genetic discrimination in employment and therefore prohibits employment discrimination on the basis of a

“predisposing genetic characteristic.”

The Plaintiff was employed by the city Parks Department with duties which included cleaning the bathrooms and taking out the garbage. She claims that she was the shortest of five employees in her unit, and that a supervisor told her “that she could not do the job, that she was too short and that there was something medically wrong with her, and that he required her to visit a physician, verbally abused and harassed her” and ultimately fired her.

She sued under both the New York State Human Rights Law (Executive Law §290 et seq.), and the New York City Human Rights Law (New York City Administrative Code §8-101 et seq.), claiming that the predisposing genetic characteristic which allegedly constituted the illegal discrimination under these laws was her height. (Note: The city law contains no prohibition relating to “predisposing genetic characteristic.”)

The judge did not state how tall she was (and noted that neither did her complaint), although he noted that her lawyer put before him an article on dwarfism, which the judge deemed as not being established as authoritative, beside being irrelevant.

 

However, the judge dismissed her complaint.  He held that “the definitions section of the [state] Human Rights Law specifically defines ‘predisposing genetic characteristic’ as a genetic, or inherited, proclivity to developing, or risk of developing, a disease or disability. It has nothing to do with a person's physical height. … Therefore, not only is mere height precluded as a ‘predisposing genetic characteristic’ under a plain reading of the phrase, but the Legislature has defined the phrase as meaning only a genetic predisposition to developing a disease or disability.” 
 

 

He went on to state that: “The height of plaintiff is undisputably outside the scope of the plain meaning of the phrase ‘predisposing genetic characteristics’ as a prohibited basis for discrimination in the workplace. Clearly, a fully mature adult such as plaintiff who has attained her maximum growth cannot be ‘predisposed’, genetically or otherwise, to becoming that height. There is no issue in this case of predisposition to anything, whether medical or generally anthropomorphic.”

We must ask why Plaintiff chose one of the more obscure sections of the law to make her claim, and even then failed to plead what her height was, when she might have also made a claim for discrimination on the basis of “perceived disability.” We discussed in yesterday’s blog that under the federal ADA, as an EEOC attorney noted, “Employers must remember that they cannot deny work opportunities to people who are ready and able simply because of inaccurate perceptions about medical impairments and disabilities.”

 

It would appear that our Plaintiff might have been able to plead that since her supervisor told her that “she was too short and that there was something medically wrong with her, and that he required her to visit a physician,” she might have had a claim that he perceived her as disabled – although being “short” is not itself a disability.

 

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We thank today's Law360 Employment for reporting on three newly-filed discrimination suits, implicating issues of race, national origin, gender, age, religion, sexual orientation, and retaliation. All this in just three lawsuits. All three plaintiffs allege that they were fired based upon these protected categories.

The Library of Congress was sued in federal court in Washington, D.C. by a former management analyst who claimed that once his homosexuality became known at work he was subjected to a hostile work environment based upon his religious affiliation (he claims to be a “liberal Christian”), and because he is gay.

Barclays Capital was just sued in federal court in New York by a commodities trader who claims that she was paid less than similarly situated males, and when she complained about this she was retaliated against by being fired.

Finally, the former president of Univision Radio National Sales has sued it in federal court in New York claiming that she was harassed and then fired due to her race (she claims that her accent was called a liability) and age.

It must be stressed that these are just-filed suits and so the defendant companies have had no opportunity to yet answer or otherwise rebut these allegations.

But what we find interesting (but not surprising), and what employers must face, is that in a down economy any adverse employment action, especially termination, will likely bring the possibility of discrimination lawsuits – alleging the entire panoply of possible claims of discrimination – concocted or otherwise.

Might as well brace yourselves, but take all possible protective action by (need we repeat it) having up to date employee handbooks in place and distributed; having zero-tolerance anti-discrimination policies that are widely disseminated; training-training-training and more training of both management and employees; investigating each and every complaint of discrimination made and taking remedial action if necessary; maintaining an open dialogue with employees about workplace practices and policies. There’s a lot more that can and should be done, but space limits us here. 

 

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On May 14^th we blogged about “disparate impact” discrimination by highlighting a recent case in which the EEOC sued the City of Jacksonville contending that it’s written examinations for the promotion of firefighters had a disproportionately adverse impact on black test takers, and were not job-related or consistent with business necessity.

 

Yesterday, a federal appeals court in New York ruled that although firefighter examinations in Buffalo, New York for lieutenant candidates had a disparate impact on black firefighters (black applicants had a significantly lower pass rate than white candidates), nonetheless the examinations were, in fact, “job related and consistent with business necessity."

 

 

The black candidates had sued alleging that the City of Buffalo had used a statewide New York State Civil Service Department analysis as to which skills and other attributes should be tested, but that there was little or no analysis as to the skills and other attributes that should be tested specific to Buffalo.   The lower court had previously held that that there indeed was a disparate impact, but that “[s]ubstantial empirical evidence, reinforced by expert review and jurisdictional comparisons, showed that fire lieutenants across New York performed the same critical tasks and required the same critical skills, regardless of the location and size of their departments.”   

  

 

The appeals court was required to decide the question: “Can an employer show that promotional examinations having a disparate impact on a protected class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue? (emphasis added).” 

 

It held that:

 

 “Where, as here, the district court hears extensive evidence as to how an independent state agency (1) determined, based on empirical, expert, and anecdotal evidence drawn from fire departments across New York and the nation, that the job of fire lieutenant, wherever performed, involves common tasks requiring essentially the same skills, knowledge, abilities, and personal characteristics; and (2) developed a general test based on those findings, we conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo's use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity (emphasis added.)”

 

 

This is a good example of a disparate impact case, and an example of a situation where in spite of a finding that a test disparately impacts a protected class, the municipality successfully demonstrated a defense of job relatedness and business necessity.  It should be noted that this was not an easy case, and that the court decision was not unanimous.  

 

 

 

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A Las Vegas company was sued by the EEOC on behalf of a male employee, who, after his wife had died, began to receive sexually suggestive notes from a female co-worker. He brought the notes to the attention of a manager who “made light of the advances” and did nothing stop the harassment – perhaps because the employer had no anti-harassment policy.

The EEOC just reported that the company settled the case for $75,000, but for some reason refused to agree to any “suggestions” made by the EEOC to prevent future harassment and thereby has been ordered to do so by the Court.

There are three points we would like to make here.

First, not only male employees can be sexual harassers, but also female employees. Although the manager here “made light” of what the male employee reported to him, imagine if the situation involved a female employee who reported to the manager what the male employee reported in this case: “While the alleged victim repeatedly communicated that he was not interested in the female co-worker, the advances only intensified, including giving him a semi-nude photo of herself, making lewd gestures, and even recruiting other employees to approach him on her behalf. Over the course of a year, the harassment escalated to a near-daily basis, including offensive remarks by co-workers about his sexuality due to his rigorous rejection of the sexual advances.”

 

If the employee had been female, would you think that this was sexual harassment?   A local director of the EEOC stated that “Sixteen percent of all sexual harassment charges at the EEOC last year were filed by men. The law protects both men and women from sexual harassment at work, and it is the employer’s obligation to actively prevent and correct such problems as they arise in the workplace.”

The second point – as we always note – is that a company MUST have written zero-tolerance anti-harassment policies in place and must strictly adhere to them, especially when harassment is reported to a manager. Moreover, managers (and employees) must be appropriately trained in anti-discrimination behavior.

Third, in a case like this, to refuse the EEOC’s requests to agree to future relief effectively invites court intervention and future EEOC scrutiny. In this case, the EEOC’s press release noted that it was forced to seek an injunction, which the Court granted. The Court enjoined the company “from further violating Title VII as it relates to sexual harassment for a period of five years. … further ordered [the company to] develop a policy and procedures for handling reports of sexual harassment; develop an effective investigation process for all complaints of sexual harassment; appropriately discipline management and human resources staff for failure to comply with such procedures; and provide annual sexual harassment training to all supervisory employees. This order impacts the over 4,000 workers employed by [the company]. The EEOC will monitor compliance with the judge’s order.”

Better to have a good policy, a trained workforce and management, and a voluntary agreement to follow the law than to suffer monetary damages and the EEOC super-managing your company for years to come.

 

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It has been reported in China Daily/Asia News Network that Juren Education Technology Co., located in Haidian district, allegedly failed to hire a job applicant because of her gender, spurring on what could be the first lawsuit under the Employment Promotion Law of the People's Republic of China of 2008, as well as a demonstration outside of the company’s offices.

 

The law, which went into effect as of January 1, 2008, states that “No worker seeking employment shall suffer discrimination on the grounds of ethnicity, race, gender or religious belief.”  It further provides that “The state shall safeguard the equality of women with men in their enjoyment of labor rights. With the exception of certain types of work or positions designated by the state as unsuitable for women, no employment unit, when recruiting new employees, shall refuse to recruit women by reason of gender or impose higher employment criteria for women.”

 

As to enforcement, the law states that “In the event of any employment discrimination in violation of the provisions of this Law, the relevant worker(s) shall be entitled to initiate legal proceedings in the peoples' court.”

 

Commenting on the lawsuit and the demonstration, Liu Xiaonan, an associate professor at China University of Political Science and Law, said the case could be the first lawsuit filed under the law, and that "The protest brings pressure on all employers, and reminds them to treat their employees equally."

 

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The Deputy Prime Minister for Social Policy of Ukraine, Sergiy Tigipko, has been quoted as saying that under the new law submitted by the government and passed on July 6th by Ukraine’s parliament, the Verkhovna Rada, “Employers will benefit” from giving jobs to young people (who have little work experience) and people over 50.  “And this is the main argument for them."

 

Local press reports have quoted experts as contending that about one-third of the unemployed in Ukraine are between 40 and 59 years of age.  And a study conducted by the Kharkiv Institute of Social Researches has found that age requirements are stated in 15% of employment advertisements in newspapers and 58% of employment advertisements on the Internet. The new law apparently addresses these two issues.

 

However, press reports from Ukraine provide little specifics on how the new law works and how it uses incentives to employers to combat age discrimination (which is what we would like to know, since in this way the law  would seem to differ significantly from American law).  What has been reported is only that the law provides opportunities to young and older workers to improve their professional skills and for relevant training, people over 45 will receive a voucher for learning a new profession.

 

Additionally, the new law also bans employment advertisements from indicating age limits or restrictions. 

 

If anyone is interested in Ukrainian employment laws, a good place to start is at this link. 

 

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If you are a reader of this blog, you know that we like to report on employment discrimination topics from around the globe, if for no other reason than to let our readers compare the laws and traditions of other nations with American laws, and to see that, at least in common law countries, there are similar bans on discrimination but no lack of imagination when it comes to remedies. 

  

We have found a case where a hairdressing salon in Perth, Australia has been found to have violated the Fair Work Act by discriminating against a female employee because of her physical disability – she has multiple sclerosis, and because of her pregnancy.

Similar to the US Title VII (but broader), the Fair Work Act makes it unlawful to discriminate against employees and prospective employees on the grounds of pregnancy, race, color, sex, sexual preference, age, physical or mental disability, marital status, family or career responsibilities, religion, political opinion, national extraction or social origin.

To avoid litigation, the employer executed an “Enforceable Undertaking” with what is called the Fair Work Ombudsman, which is an admission that it had, in fact, discriminated against the employee by changing her employment status from full-time to “casual” and reducing her hours because of her physical disability and pregnancy.  See role of Fair Work Ombudsman.

The employer also agreed to apologize to the former employee (it wrote of its "sincere regret" for its behavior and gave a commitment that it will not happen again), and to pay her $2000 compensation. It also agreed to seek specialist workplace relations advice each year for the next three years to ensure future compliance with workplace laws.
 

 

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According to a press release from the United Nations, reported in New Zealand’s “Scoop” World, the Committee on the Elimination of Discrimination Against Women, a 30 year old organization, is currently meeting at the United Nations in New York to ensure that certain governments which become a party to the “Convention on the Elimination of All Forms of Discrimination Against Women” eliminate discrimination against women. One of the many areas of inquiry is employment discrimination.

Once a country becomes a party to the Convention, of which there are now 187 countries, the Committee investigates each such country and questions its government representatives “about how they are ensuring that women are able to fully exercise their rights under each of the 16 substantive articles of the 30-article Convention.”  

These eight countries will face such scrutiny:

 

10 July: Guyana
11 July: Indonesia
12 July: Bulgaria
13 July: Jamaica
17 July: Mexico
18 July: New Zealand
19 July: Samoa
20 July: Bahamas

 

After the review, “the experts will adopt concluding observations, making recommendations to each government about what more it should do to eliminate discrimination against women.”

 

The provisional agenda, and reports about each country is cited at: : www2.ohchr.org/english/bodies/cedaw/cedaws52.htm

A full list of Committee members is available at: www2.ohchr.org/english/bodies/cedaw/membership.htm.

 

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A lot has been written lately (in legal blogs, at least) about what some call “beauty bias” – but which we have recently called “appearance bias” -- workplace bias based upon appearance. Obesity bias seems to be the most frequently observed manifestation of this.  See our blog earlier today and our blog of February 11, 2011.

 

A recent report about the EEOC investigating a popular chain of Massachusetts coffee shops known as “Marylou’s Coffee” has brought out a slew of punditry, most of it attacking the EEOC for allegedly “harassing” the chain about what the EEOC considers its alleged policy of only hiring attractive servers.

 

One blog writer caught our attention when he questioned whether beauty bias is “really a problem worthy of the EEOC’s attention.”  He wrote that “[m]ost rational employers are not likely to hire or promote people based solely on their looks. … One wonders how many hiring managers would really select a gorgeous but incompetent applicant over a less attractive but highly-skilled candidate.”

 

Our oblivious friend apparently is unaware of the studies and research in this area (although he does mention the seminal works of law professor Deborah Rhode and economist Daniel Hamermesh) which clearly demonstrate a beauty bias in the workplace.  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."  

 

Indeed, Rhode reports 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 reports that “handsome men earn, on average, 5 percent more than their less-attractive counterparts (good-looking women earn 4 percent more).”

 

For his part, Hamermesh calculates that a good-looking man will earn, over his career, about $250,000 more than his least-attractive counterpart.

Moreover, a phone survey of 756 women between the ages of 18 and 64 by the American Society of Plastic Surgeons, reveals that:

-- “13 percent (more than 1 out of 10 of the 115-million working-age women) say they would consider having a cosmetic medical procedure specifically to make them more confident and more competitive in the job market.

-- An astounding 3 percent (nearly 3.5-million working women) say they've already had a cosmetic procedure to increase their perceived value in the workplace.
 

-- 73 percent (almost three out of four or, 84-million working women) believe, particularly in these challenging economic times, appearance and youthful looks play a part in getting hired, getting a promotion, or getting new clients.
 

-- 80 percent (four out of five or 92-million working women) think having cosmetic medical procedures can boost a person's confidence.”

 

Beauty bias is real.  However, the issues are real too – how to define it legally, what to do about it, and how to address it. Our friend ingenuously asks "why the fuss?"  And he takes the position that “extending the laws against discrimination to cover bias against the unattractive would seem neither feasible nor wise.”

 

What do you think?

 

 

 

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On May 14th we highlighted the concept of “disparate impact” discrimination through a recent case in which the EEOC sued the City of Jacksonville contending that it’s written examinations for the promotion of firefighters had a disproportionately adverse impact on black test takers.

Christina also wrote here on June 26th of a $736,000 settlement in Massachusetts in favor of 30 women who were denied jobs as state prison guards after failing the physical fitness examination. The federal government’s lawsuit challenged the test as having a disparate impact on women since 96% of men passed and the pass rate for women was between 55 and 84%.

Seems that the government is giving increasing attention to lawsuits involving systemic "disparate impact."   

 

It has now been reported that the Justice Department just filed a Title VII suit against the city of Corpus Christi, Texas, in which it contended that the city’s police department “engaged in a pattern or practice of discrimination against women” by using a physical test between 2005 and 2011 which had the effect of excluding qualified women from consideration for hire as entry-level police officers and did not screen candidates for job-related skills.  

 

Haven't yet seen the complaint but experience suggests that the physical test either was designed so that men would pass it in disproportionate numbers, or else that this was simply the unintended result.  Either way, this would be what "disparate impact" means on a practical level.    

 

 

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We recently wrote about the law firm of Kelley Drye settling an age lawsuit by entering into a consent decree in which it agreed to pay a partner who had been working at the firm for more than 40 years approximately $500,000 in back pay, and also agreed to undergo age discrimination training and to implement monitoring procedures overseen by the EEOC.

The Washington Post has an interesting article on the growing number of discrimination suits filed against law firms by former employees. The Post cites statistics that claims against legal employers increased 8 percent between 2010 and 2011, and almost as much in the year between 2008 and 2009.

For example, it reported that the law firm of Venable just settled a national origin discrimination suit filed by a former paralegal from Kenya, and that the firm of Patton Boggs is being sued for sexual harassment by a former business development manager in its Washington, DC office. Additionally, an attorney is suing the Washington firm of James E. Brown & Associates for pregnancy discrimination, alleging a rescinding of her job offer when she informed the firm that she was pregnant.

The Post quotes “experts” who contend -- no surprise -- that the increase in lawsuits is “tied to the slow economic recovery making it harder for laid-off workers to find new jobs — and employees at law firms that underwent massive contraction during the recession are not exempt.”

 

Law firms are no different than their clients -- they have human beings managing and working there.  

 

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The EEOC recently anounced that it was posting online its appellate and amicus briefs going back to 2000 on its external website. "These briefs from the EEOC’s Appellate Services Division represent litigation in the U.S. Circuit Courts of Appeals in which the Commission was a party, or briefs filed as a ‘friend of the court’ (amicus curiae) in those courts, as well as in U.S. District Courts and state courts."

 

This is a great resource for anyone seeking to know the EEOC's position on virtually any relevant topic and for lawyers witn cases against the EEOC.

 

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I was interviewed last week on a local NYC TV show hosted by Susan Finelli, "Behind The Shadows," and spoke at length about new developments in employment discrimination.    

The YouTube link is:

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We have written a lot about persons who experience discrimination in employment based either on physical appearance or obesity, and how only one state – Michigan – and only 6 cities prohibit such discrimination. We have also noted that aside from these few laws, a few courts have taken the position that obesity is a “disability” under the expanded ADA definition. See Cook v. Dept. of Mental Health.

 

An important new working paper drafted by a Vanderbilt University academic suggests that these laws which make the obese a protected class, a la Title VII, are more effective than treating obesity as a disability under the ADA.

 

But first some background.

 

Way back in February 2011 we wrote that “according to surveys ‘weight bias’ is widespread in employment, with some reporting that within the continuum of employees who were overweight to severely obese there was a 12 to 100 times more likelihood of discrimination.” We also wrote that surveys show that so-called "beauty bias," or "appearance discrimination" exists in the workplace to a large degree.

 

More recently, a report about a Texas Medical Center which instituted a policy that requires potential employees to have a body mass index (or “BMI”) of less than 35 provided anecdotal evidence of such discrimination. The Texas Medical Center policy states that an employee’s body “should fit with a representational image or specific mental projection of the job of a healthcare professional,” including an appearance “free from distraction” for hospital patients.

 

Finally, in May we reported on a scientific study cited in the International Journal of Obesity which found that “strong obesity discrimination was displayed across all job selection criteria, such as starting salary, leadership potential, and likelihood of selecting an obese candidate for the job."

 

Now, a study undertaken by attorney and economist Jennifer Shinall has found that “the evidence suggests that at least two of the local laws” “have improved employment outcomes for the obese.” The local laws in Urbana, Illinois and Madison, Wisconsin are effective, she claims, because in those cities persons with claims of physical appearance discrimination may file a charge with a local agency which does all of the investigation and handles the complaint in its entirety. “These two jurisdictions, Madison, WI and Urbana, IL, have unique enforcement mechanisms that make it easy for discrimination victims to seek relief.”

 

Shinall suggests that the ADA’s 2008 amendments which broadened the definition of disability are unlikely to improve employment outcomes for the obese, and that the Cook case, although 20 years old, has not improved employment outcomes for the obese.

Her conclusion is that “any future law that seeks to improve labor market outcomes for the obese should be modeled after these two laws.”
 

 

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The EEOC has just announced that it has settled an ADA suit against a Maryland company which, it was alleged, discriminated against an employee with hemophilia based upon the company’s “perception of his disability.”

What is interesting about the consent decree that was entered into is the wide range of remedies that the EEOC sought, and the variety of actions which the company is now required to take, besides simply paying the employee $50,000. An EEOC attorney stated that “This settlement achieves the EEOC’s objectives by providing relief to the victim while implementing measures to prevent future discrimination and retaliation.”

As the EEOC press release has described it, in settling the case the company must now:

• Refrain from retaliating against any person because that person complained about, or participated in the investigation of, any charge of employment discrimination;

• formulate written policies which provide for an effective complaint process for employees and independent contractors who work for the company to report employment discrimination and retaliation;
 

• provide a toll-free number and e-mail address that employees may use to report allegations of discrimination and retaliation;
 

• post a notice to employees on its commitment to follow the provisions of the ADA;
 

• identify its equal employment opportunity officer and provide an expert to evaluate future requests for reasonable accommodations under the ADA;
 

• submit reports to EEOC on the outcomes of its internal anti-discrimination investigations and reasonable accommodation requests;
 

• provide training to the manager and supervisors on the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964, the ADA, the Age Discrimination in Employment Act and the Genetic Information Nondiscrimination Act; and
 

• submit reports to the EEOC regarding the company’s compliance with the consent decree.

 

Employers who think that the payment of money is the sum total of what it may be required to do if it is sued for discrimination should think twice. Money may be the least of it. 

 

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As we noted in our blog of April 9th, Wisconsin still-Governor Scott Walker signed into law a bill which repealed the state's 2009 Equal Pay Enforcement Act by eliminating compensatory and punitive damages to plaintiffs who prove employment discrimination.

The Daily Beast reported that the prior law, which banned discrimination based on race, age, disability, religion, sexual orientation, and other factors, was enacted to deal with gender pay disparaties.  

Steven Verburg now reports in the Wisconsin State Journal that veterans groups -- the Wisconsin Association of Concerned Veterans Organizations executive board and Wisconsin's Council on Veterans Programs, which advises the state Department of Veterans Affairs – claim that “Military veterans are the big losers” under the new law.  They contend that there are similar limits on available damages to veterans who sue in federal court, but that these limitations do not apply to other protected classes under the federal law.

Accordingly, says one Wisconsin employment lawyer, the new state law, by tracking federal law and eliminating compensatory and punitive damages for veterans, leaves vets with no remedy for damages arising out of stressful deployments and “the kinds of emotional pain and suffering that compensatory damages are meant to address.”
 

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Lynn Nakagawa has reported in Pacific Business News that a state appellate court in Hawaii has just reversed a lower court dismissal of a national origin discrimination and retaliation suit by a French national, who alleged that he was terminated from his job after he was called anti-French names, such as Frenchy,” by his managers.

The employee claimed that one of his supervisors often told him to go back to France because “America does not need French people,” and that another supervisor often referred to him as “French fries.”

The EEOC had originally issued a determination that the employee was harassed because of his national origin, but no determination that he was wrongfully terminated, but the lower court found no evidence of discrimination based upon the employee’s national origin, or that “Frenchy” was anything more than a nickname and not an ethnic slur.

Of note was that the lower court directed that the employee pay more than $158,000 in attorney’s fees and costs to the employer.  It is not clear from the published accounts of the case whether the award of legal fees was under Title VII (which, to a prevailing employer would have been rare indeed), or under a state statute in Hawaii.

"Those involved in the case say the reversal is important because it emphasizes that slurs based on ethnicity or nationality are illegal under civil rights law," noted Nakagawa.

 

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We have noted before that discrimination comes in two sizes – intentional discriminatory treatment, and “disparate impact” discrimination. While intentional discriminatory treatment probably needs little explanation or examples at this point since it is the basis of almost all employment discrimination claims (and, in any event, is the subject of most of our blog reports), some folks ask the question, exactly what is “disparate impact” discrimination?

A good example of “disparate impact” discrimination can be found in two companion lawsuits just 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 contends in the first case that the City put in place written examinations for the promotion of firefighters to four ranks which have a disproportionately adverse impact on black test takers; that is, they have a “disparate impact” on African-American candidates, and are not job-related or consistent with business necessity.

In the second case, the EEOC claims that the firefighters union knowingly negotiated this racially discriminatory promotional process with the City, thereby perpetuating a discriminatory process through collective bargaining.

Along with the City, the union is covered by Title VII, and the EEOC’s regional attorney in Miami stated that “We hope this lawsuit sends a clear message: Unions have a responsibility to oppose, not acquiesce in, racially discriminatory employment practices.”

 

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A federal appeals court has ruled in a Title VII race case arising out of Arkansas that reassigning an employee to a position that a reasonable employee would find “demeaning and intolerable” may be grounds for a claim for constructive discharge.

In Sanders v. Lee County School District No. 1, plaintiff claimed that because of her race she was reassigned by her employer School District from the job of “finance coordinator” to “food services assistant.” She asked the School District repeatedly to give her a job description for “food services assistant,” which would set forth her new duties, but this was never provided to her. She resigned and sued.

The Court stated that in a claim for constructive discharge, a plaintiff must demonstrate by an objective standard that the employer “deliberately created intolerable working conditions with the intention of forcing her to quit,” and that simply offering the employee a different job is not necessarily a good defense. In this case, the Court held that plaintiff had shown enough that a “reasonable jury” could find that her particular reassignment was a demotion in title and responsibilities.

Employers be advised:  It doesn’t take too much for an employee to claim a constructive discharge.
 

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Discrimination against the obese – we discussed this issue in our blog of 3/27, and noted that it is illegal only in Michigan, and about six cities in the US.  

The EEOC has taken the position, as we noted in our blog of February 11, 2011, that weight discrimination may, however, violate the Americans With Disabilities Act ("ADA"), if, for example, the employee's weight substantially impairs a major life activity. Moreover, it may be coupled with a condition caused or exacerbated by obesity, such as hypertension or diabetes, which have been held to be disabling.

Anecdotally, we cited a news report which demonstrates discrimination against the obese -- Citizen's Medical Center in Victoria, Texas has instituted a policy that requires potential employees to have a body mass index (or “BMI”) of less than 35.

In response to the last bog, we received a comment from a distressed reader who asked if anything could be done – she was overweight and lost many jobs after the initial telephone interviews went well, simply because she was overweight. She also noted that many interviewers assumed that she had no abilities to plan and make goals simply because she is overweight. See our blog of 4/9.

The anecdotal evidence of such discrimination has now been confirmed by a study published by scientists at The University of Manchester and Monash University, Melbourne in the International Journal of Obesity. One researcher, Dr. Kerry O'Brien, described the study and the results:
 

"We used pictures of women pre- and post-bariatric surgery, and varied whether participants saw either a resume, amongst many, that had a picture of an obese female (BMI 38-41) attached, or the same female but in a normal weight range (BMI 22-24) following bariatric surgery. We found that strong obesity discrimination was displayed across all job selection criteria, such as starting salary, leadership potential, and likelihood of selecting an obese candidate for the job."
 

The University of Manchester website offers that a "copy of the paper, ‘Obesity discrimination: the role of physical appearance, personal ideology, and anti-fat prejudice,’ published in the International Journal of Obesity, is available on request."

As we asked in our prior blog: how many employers have let the next mega-star employee slip through their fingers simply because of weight?
 

 

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In England, it has been reported that the East Staffordshire Racial Equality Council has received a £55,000 grant from the Office for Civil Society to continue providing free employment discrimination advice for another year.

As the Burton Mail reported yesterday, Director Amir Kabal of the Racial Equality Council explained that “[t]he money would enable it to continue providing free advice, guidance and support at the point of need to victims of all ‘protected characteristics’ outlined by the 2010 Equality Act.” Racial Equality Council Chairman Dennis Fletcher further stated that “In the current climate of cutbacks and squeeze on public finances, it is difficult for voluntary organisations to cope with demand.

Burton MP Andrew Griffiths stated that “Discrimination is a hugely important issue and [the Racial Equality Council’s] approach of intervening early and working with all parties to find a resolution solves problems and saves money for everyone in the long run.”
 

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We told you the other day that EEOC Commissioner Lipnic confimed that the EEOC would continue to file 200 to 300 lawsuits this year, targeting alleged systemic discrimination as well as large companies.     

In this regard, the EEOC just filed suit against a Dollar General store in Ohio, for alleged retaliation in the firing of two employees for their participation in a pregnancy discrimination investigation.   Dollar General is purportedly the nation's largest small-box discount retailer.  

 

The EEOC also filed suit against a Texas Wendy’s franchisee for refusing to hire an applicant who is  hearing-impaired, in alleged violation of The Americans with Disabilities Act (“ADA”).   The plaintiff claimed that the general manager told him that “there is really no place for someone we cannot communicate with.”

 

Thanks to the Kansas City Business infoZine.  Read the Dollar General article and the Wendy's article.   

 

 

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You may be forgiven if you thought that a hostile work environment was only created when an employee who was the target of racial, ethnic or gender slurs was a member of the race, ethnicity or gender that the slurs were directed at, i.e., a member of that particular "protected class."   

However, expanding the scope of  the New Jersey state anti-discrimination statute a New Jersey court has just ruled that employees who are not even members of the class that the law was designed to protect may sue; in this case, the court held that you don’t have to be Jewish to claim a hostile workplace if you are allegedly subjected to anti-semitic comments.     

 

Stacy Jones and Ben Horowitz who write for The Newark Star-Ledger report in The Washington Post that a former non-Jewish truck driver sued after having allegedly been subjected to slurs from his supervisors such as “only a Jew would argue over his hours” and “if you were a German, we would burn you in the oven.” (One allegedly offending supervisor would only concede that he merely said things to the plaintiff like “Jew money” and “bagel meister,” and used “Hava Nagila” as the plaintiff’s ring tone for his cell phone).   

 

In holding that the plaintiff had a right to bring the lawsuit (without ruling on the merits), the court said that the issue was whether under the state employment discrimination statute the plaintiff could prove that the discrimination “would not have occurred but for the perception that he was Jewish.”  Put another way, the court stated that the issue was the effect that the anti-semitic comments allegedly made would have on “a reasonable Jew,” rather than on a person of plaintiff’s German-Irish and Lutheran background. 

 

Who knew?

 

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As Americans debate the political and legal implications of the "rights" agenda, we forget that there is a world out there beyond us, whose citizens are engaging in the same debate over the same subjects, and suing over the same claims.  So much for "American exceptionalism" when it comes to civil rights and employment law.     

Here are a few examples of the robust international debate:  

 

India To Pass New Laws Forbidding Discrimination Based Upon HIV Status

 

A new law proposed in India would forbid the testing for AIDS as a pre-requisite for employment, and would provide that an AIDS patient cannot be denied employment or fired without a written assessment of an independent healthcare provider that the employee poses a risk of transmission of the virus to others at the workplace. 

 

The law would also provide two avenues for legal redress for aggrieved employees: the appointment of an ombudsman to adjudicate any violations of the law, as well as a private right of action in court by the employee. 

 

See The Times of India.

 

Ireland Considers Banning Discrimination Against Gay and Lesbian Teachers

Proposals to end discrimination against gay and lesbian teachers will be published in the coming weeks, Minister for Education Ruairí Quinn told delegates at a recent conference.

Under section 37 of the Employment Equality Act, schools are allowed to claim that hiring a homosexual, lesbian or bisexual teacher would undermine their religious ethos.

The Minister of Education also stated that “This work to remove discrimination will also be underpinned by the Forum on bullying which will take place on May 17th, and which will be supported by a working group on bullying which will initially focus on tackling homophobic bullying.”

 

See IrishTimes.com.

 

Thirty British Women To Sue The BBC

 

The Daily Mail reported that “The BBC's record on gender equality is under fire once again following reports that up to 30 female employees are preparing to sue the broadcaster, saying they have been the victims of sexism and age discrimination.”

 

BBC director-general Mark Thompson has conceded that there were “manifestly too few older women broadcasting on the BBC.”  Moreover, what has been described as “BBC sexism” has led to debate in Parliament on inequality in the workplace.   

 

See The Daily Mail Online.

 

 

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Since the Supreme Court’s Gross decision, a federal ADEA plaintiff has a higher burden to prove discrimination - she must establish that “but-for” unlawful discrimination, the employer would not have taken the adverse action, such as firing her. The former “mixed motive” analysis used in ADEA discrimination claims became unavailable to ADEA plaintiffs under Gross.  On June 16, 2010, we wrote a long piece describing how Gross changed the existing law, and noted that lawmakers were trying to pass a law overturning Gross.  It never happened.

Under New York State law, although it has not been determined whether the more-liberal “mixed motive” analysis also applies to discrimination claims pursuant to the New York State Human Rights Law, it has been held that the “but-for” standard does not apply to claims of discrimination brought under the broad New York City Human Rights Law (“CHRL”). 

 

Under the CHRL, a plaintiff seeking to prove age discrimination “need only prove by a preponderance of the evidence that age was a ‘motivating factor’” in the employer’s decision. Weiss v. JPMorgan Chase & Co., 2010 WL 114248 (S.D.N.Y. Jan. 13, 2010).  Relying upon the New York City Local Civil Rights Restoration Act of 2005 (Local Law No. 85)  Weiss explicitly rejected the "but-for" causation standard of Gross, and affirmatively adopted the continued interpretation of the CHRL’s “because of” language as requiring a plaintiff to prove only that age was a motivating factor. 

 

Senators -- from both parties -- are once again introducing a bill to overturn Gross.  Senate Bill 2189, known as the “Protecting Older Workers Against Discrimination Act,” would re-establish the “mixed motive” analysis for ADEA claims.

 

We will, as we said two years ago, keep you posted.

 

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In our blogs of 3/12 and 3/18 we talked about how the Missouri legislature passed, and the Governor  vetoed, a bill that would have weakened the rights of workers who allege employment discrimination. The bill would have required plaintiffs to allege that discrimination is not simply one contributing factor to any adverse employment action, but a “motivating factor.” 

The Missouri legislature is dogged about pushing this legislation, however, and is debating ways around the Governor’s veto, such as passing a new bill, sponsored by Republican Sen. Brad Lager, which is similar to the vetoed bill in that it changes the standard for employment discrimination cases to a "motivating-factor" standard.

Sen. Lager stated that through his veto “the governor continues to protect the status quo, a broken and unfriendly business climate, thereby limiting the economic opportunities for Missouri's citizens.”

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Last week, as reported on MyNorthwest.com, a Washington lawmaker introduced a bill that would make it illegal for employers to require applicants or employees to fork over Facebook passwords as a condition of employment. 

 

It seems slightly convenient to me that all of this hullabaloo over employers requiring Facebook passwords (see our March 26th blog) occurs right when Facebook is planning its IPO, but I suppose all of the press is simply coincidental.

 

Let me first go on record, before we receive a host of complaints, that I believe people should have basic privacy rights.  Although I question how much privacy one expects when sharing every detail of your life in your "private" Facebook account to the 600 "friends" whom you have probably never even met in person, especially where any one of your so-called friends could re-post anything you say.

 

Let me second go on record that I think that it is a bad practice for employers, as a blanket policy, to check applicants' Facebook pages or otherwise check into their Internet presence.  This is true largely because of all of the information employers may find out about an applicants' protected class, such as they belong to a church group, are a minority, have a disability, etc.  

 

I have been convinced in certain circumstances that it is not a bad idea.  For example, we once had a client who hired a child psychologist.  After announcing the person's hire, they received an anonymous tip that the new employee had complaints from parents that he was sexually abusing his patients.  In that case, a subsequent Google search and some creative, but legal, digging by the IT department revealed membership in a pedophile website.  Needless to say that offer of employment was revoked.

 

The problem with the proposed Washington law is that it does not provide any carve-out for times when demanding Facebook passwords may be legal.  What happens if an employer receives a complaint from an employee that another employee called them the "N" word on Facebook but that account is marked private? 

 

In short, no jury is going to see it as a defense that the employer did not investigate the harassment simply because the state prohibited the employer from asking for the password to verify the complaint. 

 

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We wrote on March 26th that because employers have been reported as asking job applicants for their Facebook passwords before hiring, Sens. Chuck Schumer of New York and Richard Blumenthal of Connecticut, demanded a Justice Department and EEOC investigation.  Four states -- Illinois, Maryland, New Jersey and California -- began rushing to introduce legislation to ban any such requirement.

Who would be first to pass such a law?  The excitement of such competing legislative action exceeded that of a turtle race!  But ...

We have a winner -- Maryland! 

Maryland just yesterday passed a law banning employers from asking for applicants' or employees’ social media site passwords, and also from taking, or threatening to take, disciplinary action to those who refuse to disclose such information.

 

Who will place and show?

 

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As we predicted in our blog of February 29, 2012, Wisconsin still-Governor Scott Walker signed Senate Bill 202 last week, which repealed the 2009 Equal Pay Enforcement Act, which permitted employees who claimed discrimination to sue for compensatory and punitive damages in the state courts. As The Daily Beast reported, the prior law, which banned discrimination based on race, age, disability, religion, sexual orientation, and other factors, “was enacted largely in response to a large gap between men and women’s compensation, one that was worse than average in Wisconsin—in 2009 the state ranked 36th in the country in terms of workplace gender parity.”

However, as Republican state senator Glenn Grothman stated, the threat of lawsuits unduly burdened business: “If tomorrow you woke up and some policeman is at your door giving you a summons for something, the fact that you’re innocent wouldn’t make you happy, because you have to show you’re innocent at some considerable time and expense.”

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Discrimination against the obese, or "weight bias."  Is it illegal?  Only in Michigan, and about six cities in the US.

 

Does it exist?   Most definitely, with some sources claiming that employees who are overweight to severely obese are 12 to 100 times more likely to suffer job discrimination.     

 

Have any doubts?  The Texas Tribune reports that Citizen's Medical Center in Victoria, Texas has instituted a policy that requires potential employees to have a body mass index (or “BMI”) of less than 35.  This means that a person who is 5'5" must be under 210 pounds, and a person who is 5'10" must be under 245 pounds.  The policy states that an employee’s body “should fit with a representational image or specific mental projection of the job of a healthcare professional,” including an appearance “free from distraction” for hospital patients.

 

As we noted in our blog of February 11, 2011, the EEOC has taken the position that weight discrimination may violate the Americans With Disabilities Act ("ADA"), if, for example, the employee's weight substantially impairs a major life activity.  Moreover, it may be coupled with a condition caused or exacerbated by obesity, such as hypertension or diabetes, which have been held to be disabling.    

 

But this is Texas, where everything is expected to be bigger, except employees. 

 

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AP just reported that some employers have been asking job applicants for their Facebook passwords as a pre-requisite to hiring, a practice which has drawn immediate fire from Sens. Chuck Schumer of New York and Richard Blumenthal of Connecticut, who are demanding a Justice Department and EEOC investigation, claiming that this practice is an invasion of personal privacy and a possible federal law violoation.  Sen. Schumer stated that “Employers have no right to ask job applicants for their house keys or to read their diaries. Why should they be able to ask them for their Facebook passwords?”

Facebook, ever attuned to public criticism, immediately called this practice "alarming," and said that it would stop this practice.  Facebook Chief Privacy Officer Erin Egan has blogged that such employer requests “undermine the privacy expectations and the security of both the user and the user's friends,” and violate Facebook's terms of use.  

 

Besides the two Senators, state legislators in four states -- Illinois, Maryland, New Jersey and California -- have or will introduce legislation to ban any requiremtn of current or prospective employees to provide or disclose any user names, passwords or other means of accessing a personal online account.

 

The bloging about this is in full swing. 

 

Won't you be my friend?

 

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Business Insider of March 23, 2012 has a fascinating article speculating about the possibility that " If you solely rely on Twitter to post job openings, you might be unknowingly discriminating against older workers."

Read more: http://www.businessinsider.com/you-may-actually-be-discriminating-if-you-post-your-job-openings-on-twitter-2012-3#ixzz1q4JCchqD

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Michael Howard Saul in The Wall Street Journal of March 22, 2012 reports that the New York City Council intends to introduce a bill to ban employers from discriminating against unemployed job applicants, and also bans "help-wanted" ads that state that the unemployed need not apply.  Penalties for violations could include up to $250,000.  We have reported extensively in this blog about similar bills and laws around the country.

The Journal quotes City Council Speaker (and possible next Mayor) Christine Quinn as saying that "We want to make sure everyone has a fighting chance to get a job ...  We want to send a clear message that it is no longer acceptable—and therefore will no longer be legal—to discriminate against unemployed people."

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Endorsing the passage of ENDA, (see our blog of March 18, 2012), The Center For American Progress cites a figure of $64 billion as the  “price to be paid for workplace discrimination  … That amount represents the annual estimated cost of losing and replacing more than 2 million American workers who leave their jobs each year due to unfairness and discrimination.” 

Take a read of their report.

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We spoke recently about the EEOC seeking to increase visibility and attention to cases of pregnancy discrimination.  This appears to be happening.

A couple of weeks ago we mentioned a federal judge who awarded a pregnant woman substantial damages after finding that her employer made offensive comments about her pregnancy, and then terminated her by certified mail while she was recovering in the hospital recovering from a Caesarean section.   This case is getting wide play in blogs around the country; see Oanow.com in Alabama.

In another case, it was reported by The Fresno Bee that the EEOC just settled with a large agricultural company which had rescinded an offer of employment to a woman when it found out that she was pregnant.   This settlement has been reported widely.

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As we predicted in our blog of March 12th, the Governor of Missouri vetoed a bill that would have diminished the rights of workers who allege employment discrimination claims. The bill would have required plaintiffs to allege that discrimination is not simply one contributing factor to any adverse employment action, but a “motivating factor.” 

Thanks to the March 18th issue of MissouriNet.

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We have repeatedly blogged that an employer must use its best practices to ensure that it does not get sued. Stay compliant. Train your staff and management. Have a zero-tolerance policy.  Have an up-to-date manual.  

“Can you pass the acid test,” we asked in our blogs of January 29, 2012 and February 6, 2012.

Today’s "Business Management Daily" asks (and answers) a similar question:  “How would your practices stand up in court?” 

 

We recommend that you read it. 

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Last month, we talked about what we called a “remarkable” federal appeals court concurring opinion in Coleman v. Donahoe, which took a sharp swipe at the long-established McDonnell Douglas test which set forth the shifting burdens in a Title VII case where there is no direct evidence of employment discrimination or discriminatory intent.  Others have begun commenting on this decision.

For example, The Harvard Law & Policy Review blog just wrote that the recent decision “makes good sense:” 

 

“In announcing the McDonnell Douglas approach, the Supreme Court’s intention was to assist plaintiffs by setting out a roadmap for proving employment discrimination via circumstantial evidence. But in practice the rigidity of McDonnell Douglas burden shifting all too often creates barriers for plaintiffs, because good evidence of discrimination won’t always fit neatly into the three-step framework.”

 

Plaintiff’s firm Outten & Golden also wrote a long comment about this new decision which should be looked at.

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We noted in our blog of February 29, 2012, that embattled still-Governor Scott Walker of Wisconsin sits poised to sign a bill  passed by the state legislature which would repeal the state’s Fair Employment Act to eliminate compensatory and punitive damages if a plaintiff proves employment discrimination. 

Now, the Missouri State Senate has just approved the state’s lower chamber’s version of a bill that would diminish the rights of workers who allege employment discrimination claims. Nevertheless, the new bill, if signed into law by Governor Jay Nixon, which is unlikely, would only bring the state law into line with the requirements of federal law Title VII.    

The bill would require plaintiffs to allege that discrimination is not simply one contributing factor to any adverse employment action, but a “motivating factor.” 

Although the bill’s Republican sponsor contended that it would raise the standards to better protect employees, in reality it would lower the standards. His real agenda was displayed when he the stated that the issues addressed in the bill were raised by the business community of Missouri. 

 

 

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The ACLU has just weighed in on pregnancy discrimination as "another battleground in the war on women."

On the subject of pregnancy discrimination, see our numerous recent blog entries.   

 

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On January 25, 2011 we blogged we about a big new case on the issue of associational discrimination --   discrimination, usually retaliation, based upon relationships or associations. 

We just read an interesting article in today's Business Management Daily which discussed a case where an employee claimed that he was discriminated against based upon his wife's race and national origin.  The writer justly warns employers that "punishing someone because of who he or she associates with doesn’t pass the smell test.   Yet many managers and supervisors don’t realize it is illegal. Educate them."   

 

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In a lawsuit brought by the EEOC, a federal court just awarded a pregnant woman substantial damages after finding that her employer made offensive comments about her pregnancy and then terminated her for taking maternity leave. The termination was particularly offensive – plaintiff learned by certified mail while she was in the hospital recovering from a Caesarean section that she had been fired and that her health insurance had been terminated

The Court awarded damages as follows: 

(1)  back pay plus pre-judgment interest in the sum of $48,340;

(2)  compensatory damages in the sum of $50,000; and

(3)  punitive damages amounting to $50,000. 

The Court also permanently enjoined the employer from engaging in any further pregnancy discrimination.

The EEOC is serious about pregnancy discrimination!   See our blog of February 17, 2012. 

 

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We all know that discrimination can be shown by direct evidence (“You are too old for our workplace”) or indirect evidence (circumstantial evidence by which one can infer that discrimination played a role in the adverse employment action).  

Two federal courts recently dealt with a similar issue – an employee who claims that evidence of discriminatory intent can be seen in one remark from a supervisor.    

In Fried v. LVI Services, a 71 year old employee who had his responsibilities reassigned was told by the president that “you’re 71 years of age … we have to plan for the future,” while in Makowski v. SmithAmundsen LLC, a pregnant employee was told by the head of HR that she was terminated because she was pregnant and took medical leave, and who also told her about the employer’s discriminatory treatment towards other pregnant women.    

 

The trial courts in both cases dismissed the claims. In Fried, the Court determined that this indirect evidence consisted of a “stray” remark – a single, isolated age-related comment.  The EEOC is appealing this ruling to the federal court of appeals in New York.   In Makowski, the appeals court held that there was direct evidence that “pregnancy was the motivating factor” in the employee’s termination, and reinstated the claim.

 

Moral: Don’t make stray comments or ANY comments that can be construed as evidencing “discriminatory animus.”    

 

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The Supreme Court has long held that under Title VII, an employee has a claim for hostile work environment discrimination if the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment."  Such a claim may be “ongoing,” “commonplace,” and “continuing.”

The Supreme Court has also held that there may be a hostile environment where the employer directs its discriminatory acts or practices at the protected group of which the plaintiff is a member, and not just at the plaintiff. Some courts use what they call the “totality of the circumstances” test to determine whether there was a hostile work environment where a group was involved.

 

But can a group of employees who each complain of a single hostile act aggregate their claims to show a hostile work environment, where they were not even aware of one another’s experiences or the hostile acts suffered by the others? 

 

A federal appeals court has just held that while a plaintiff does not need to be the target of, or a witness to harassment in order to show harassment in the totality of the circumstances, “he does need to know about it.”  

 

That is, each employee must show that she was individually aware of or knew about the harassment experienced by the other plaintiffs.  As the Court said, “An event should only be considered part of the totality of the circumstances if an individual employee claimed he was aware of it.”

 

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Many blogs and commentators have written about the “final” recordkeeping rules for employers which the EEOC issued on February 3, 2012 (which take effect on April 3, 2012) under the Genetic Information Nondiscrimination Act (“GINA”), which was signed into law in May 2008. 

The following websites may be of use to employers in understanding, and following, these rules:

 

United States Federal Register

 

Society for Human Resource Management     

 

California Chamber of Commerce

 

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If the roiling political waters of Wisconsin were not roiled enough, embattled still-Governor Scott Walker sits poised to sign a bill just passed by the state legislature which will repeal the state’s Fair Employment Act to eliminate compensatory and punitive damages if a plaintiff proves employment discrimination. 

Although business interests claim that the original law was burdensome, it was pointed out by opposition legislators that there has not been a single damage claim filed since the existing law was passed.         

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Imagine pleading ignorance of the law to avoid paying punitive damages. That’s just what a federal appeals court just ruled in a Title VII case arising out of Arkansas in which plaintiff alleged racial discrimination and constructive discharge. 

 

Plaintiff was awarded compensatory damages against the defendants, as well as $8,000 in punitive damages.

 

In reviewing the punitive damage award, the Court stated that punitive damages are recoverable if defendants discriminated “with malice or with reckless indifference” to plaintiff’s rights; that is, if defendants had knowledge that they were breaking the law. The Court held that since “it is common knowledge” that racial discrimination is in violation of the law, “evidence of blatant race discrimination is sufficient to prove knowledge such discrimination violates federal law unless the defendant actor affirmatively proves ignorance.” 

 

Accordingly, “defendants must affirmatively prove ignorance” to avoid punitive damages. Since it is difficult to show, 50 years after Title VII was passed, that defendants did not know that racial discrimination is in violation of the law, the punitive damage award was upheld.

 

Although this decision appears reasonable and logical, it does nevertheless seem counter-intuitive to those of us who would otherwise think that knowingly and willfully violating the law would incur punitive damages, not ignorance of the law.   

 

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In 1973, the Supreme Court issued the famous McDonnell Douglas decision in which it set forth the shifting burden test in a Title VII case, where there is no direct evidence of employment discrimination or discriminatory intent. For those who have just climbed out of their fallout shelter, the Court stated that under this test, a plaintiff has the initial burden of establishing a prima facie case of discrimination. To do this the plaintiff, an employee or applicant, must show:   

(i) that she belongs to a protected class, such as a racial minority; (ii) that she applied for and was qualified for a job for which the employer was seeking applicants; (iii) that, despite her qualifications, she was rejected, or if she was already an employee, that she suffered an adverse employment action; (iv)under circumstances giving rise to inference of discrimination.

 

If the plaintiff can meet this relatively easy burden, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection.  If the employer does that, the burden then shifts one final time to the employee, who has to show that the employer’s purported “legitimate, nondiscriminatory reason” is, in fact, merely a “pretext.” Nonetheless, the ultimate burden of proof always remains on the plaintiff. 

 

A recent federal appeals court took a major swipe at this venerable burden-shifting test, and suggested in a remarkable concurring opinion, that it is now time to scrap the complex, multi-stage, burden-shifting “swinging pendulum” approach of McDonnell Douglas and “collapse” it into one test. The Court stated that “Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, as this case well illustrates, the various tests that we insist lawyers use have lost their utility.” 

 

Therefore, the Court suggested a relatively simple single test: “plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason.”  

 

A number of commentators have noted that other appeals courts continue to accord vitality to McDonnell Douglas, and that its demise is illusory.

 

We shall see.

 

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In 2011 we wrote a number of blog entries (9/14/11; 6/8/11; 2/22/11) noting that there was no law prohibiting employers from refusing to hire the unemployed.  Under the anti-discrimination laws, there is no protected class known as “the unemployed,” and if you are not hired because of your unemployment status, you have no actionable claim of discrimination. 

Today's Wall Street Journal reports that more than a dozen states are following the lead of New Jersey and seeking to pass legislation that would include "the unemployed" within the class protected against employment discrimination.  These states include Connecticut, California and Colorado.

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