Family friendly policies — is it true that they are rare in the US, but common in Europe?

Two more readers have different opinions:  one attorney touts the childcare services of one US company very highly, while a diversity specialist in the UK is less than enthusiastic about family friendly practices in Europe.

childcare : Children playing on the floor. Educational games for kids Stock Photo

Curtiss Jameson, an attorney in the NYC area:

“I cannot comment directly on women not returning to employment after having a child, but I can comment on lack of family friendly policies as a disincentive to transferring jobs/filling employer’s lateral needs.

My wife left employment at a prominent, large pharma company to obtain employment at a competing (albeit also prominent and large) pharma company because the first did not provide any childcare, whether onsite or through an external partnership with a childcare center, but the second provided onsite childcare. She is well credentialed and always receives the highest rating on reviews.

She has stuck with that “second” pharma company through 3 children because of the onsite child care (and other family friendly efforts) despite numerous head-hunters looking to poach her for other pharmas in the area. We’ve had to forgo opportunities for markedly increased pay (and double title promotions) at these other potential employers – – but it has been worth it. The transactional costs of switching employers which do not have any provisions for childcare are too great.

I wonder how much other talent is locked-up due to such issues?  Plus, she feels a genuine loyalty to her employer for providing a family friendly environment while also permitting her career to grow in terms of promotions and raises where most of the competitors simply do not care about family issues other than what the FMLA requires.”

Anthony Wilkes, Chair and Chief Assessor at United Kingdom Investor Equality and Diversity, Twickenham, UK:

“Interesting article. My experience working as an equality, diversity and inclusion training consultant and dispute resolution adviser in the UK and mainland Europe would caution against the US benchmarking itself against Europe regarding family friendly policies.

Whilst it is correct that some European countries notably France and the Scandinavian countries have enshrined in law proactive measures to promote gender equality in the workplace, the overall position across Europe regarding prospective returning mothers to the workplace is very poor indeed; with the number of discrimination claims in this area increasing.”

 

The Stage News in the UK reports on the fairly shocking results of a survey commissioned by the Joint Industry Stunt Committee about harassment and bullying in the stunt performer industry.  Link:  http://www.thestage.co.uk/news/2014/12/bullying-sexual-harassment-rife-stunt-industry-survey-finds/ 

stunts : Concept of a business man who defies all obstacles

Seems that we report fairly frequently on surveys in various industries and professions, and every one seems to reflect substantial harassment and/or bullying to one degree or another.  To those in the HR or diversity fields:  has any workplace or societal progress been made?

The UK survey found that:

1.  Close to half of all TV and film stunt performers have been bullied “frequently or sometimes,” and/or sexually harassed.  The bullies were “most likely to be fellow members of the stunt team.”

2.  Approximately 80% were victim to insulting behavior or words;  more than 60% were victims of malicious rumors and/or “ridicule or demeaning” actions.

3.  Greater than half had been picked on, and almost 40% had been victims of violent threats.

4.  More than a third of those reporting felt “uncomfortable and unsafe” in the workplace.

Unsurprisingly, 90% of those so victimized did not report these events to managers “for fear of not getting work in the future.”

Takeaway:  The stats speak for themselves.  We can only repeat that as long as harassment and bullying are societal problems, employers must keep conducting appropriate periodic training of managers and employees, and keep pushing and insisting on compliance with appropriate workplace anti-discrimination and anti-harassment practices and policies.

 

The BBC has just reported that numerous age discriminatory ads appear on the UK government’s Universal Jobmatch website, which is used by millions seeking jobs.

“Recent graduates” are sought in ads by hundreds of employers, such as “My client is recruiting a recent graduate to join their extremely busy team. You should be looking for a career, have good customer service skills and good administration skills including data entry.”

Some ads are bolder and seek “young graduates.”

We would have to agree with the UK lawyers interviewed that such ads would be found discriminatory.  At least in the US, where they would violate the ADEA and state and local laws which forbid age discrimination.

kids : Portrait of young boy thinking his aspirations Stock Photo

Another ad read:  “We are always looking to recruit talented, ambitious young people who may fit well into one of our progressive thinking departments such as media, including social media, TV, press officer or other departments such as office administration.”

A spokesperson for one leisure industry company with a similar ad used “business necessity” language in justifying such an ad, stating that (as paraphrased in the article) “he could see nothing wrong with it because in the leisure industry people needed to be young and fit.”

young people : portrait of large group of young people in summer time Stock Photo

The UK government must get its House in order.

 

There’s apparently a bit of a brouhaha in Wales, we wrote on August 31st — the former City Manager of Cardiff was caught sending racist text messages.  An article in WalesOnline reported on this story and asked a local Cardiff attorney “when [does] banter go[] too far and become[] discrimination?”

We asked the same question in an earlier post.

banter : A figure posed with head resting on hand, with a headache caused by loud talkers around him

We received a number of good comments from around the world on this:

Bernie Althofer, an HR professional from Brisbane, Australia:

“Some organisations have managed to link their social media policy to their workplace bullying policy and associated Codes of Conduct etc.

At the same time, they have provided some ‘once only training’ without realising or understanding that the current field in relation to counterproductive behaviours i.e. bullying, harassment etc is dynamic and constantly changing. In fact, I would go so far as to say that the changes are occurring so rapidly that organisations and individuals are not able to keep ahead of the pack.”

wales : very big size wales country flag illustration

Rebecca Foreman, Director of Operations at CMP Resolutions, in Bassingbourn, Cambridgeshire, UK:

“If you think about the phrase “where is the line?” in our Anti-Banter training we actually draw the line and ask people to talk about different words/comments/behaviours and where that line comes….what is interesting is the realisation that the line is NOT FIXED!   It moves depending on where, who, why how and what….You can say one thing to one group of people and be fine but then said the same the thing to a different group of people in similar circumstances and somehow have ‘crossed’ the line.

The advice in the article is sound….think about what you are saying, connect your brain to your mouth and if in doubt, check it out or don’t say it!

And by the way – LOVE the word Brouhaha! It is not used nearly enough!”

Pete Jones, Bias Psychologist in Sheffield, UK:

“I have been trying to run a study on the impact of ‘jokes’ and ‘banter’ for some time. I just need to find the time as I think this is an important area where the views are contrary; one is that jokes and some banter indicates hidden biases and are reinforced by banter, and the opposite that ‘it’s just a joke’ and that the conscious recognises that and can remain fair. As I work mainly in the unconscious domain it won’t surprise people that I have an unconscious take on jokes and banter which is that ‘the unconscious does not have a sense of humour’. It simple wires what it sees and hears. It’s not being politically correct, it is being neurologically correct.

With the MSc students starting soon it is a study I want to do this year to put some evidence on the table either way.”

Marc Brenman, Instructor at Morgan State University, Olympia, WA:

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

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

A few points should be borne in mind.

First, the UK’s Equality Act is under fire and in the process of being watered down.

Second, the UK doesn’t have freedom of speech protections like the US does, but does have much stronger libel and slander protections.

Third, when “bad” comments are criminalized, the result can be “hate speech” laws, which, in the US, generally add to an existing criminal violation and don’t stand by themselves. Prosecutors use the laws relatively little, in part because of likely juror offense at creating “thought crimes.” In the US, we pride ourselves on freedom of thought. In some other countries, like Canada and Germany, for example, Holocaust denial and Nazi manifestations are illegal.

Fourth, while certain types of discrimination don’t need to show an adverse effect (like some forms of sexual harassment), it sure does help to prove a violation of law to have a real live injured party, rather than just an theoretically injured or offended party.

So a joke by itself, with nothing else supporting, like harm or intent to harm, isn’t likely to create much of a legal violation. It can be condemned as in bad taste, but we’re on thin ice when we base legal judgments on taste.”

 

 

Comes now a newly effective law in the Channel Island of Jersey – the first anti-discrimination law there and 13 years in the making.   It only covers race for now, but “it is expected that sex, age and disability will follow.”

And the terrible anxiety has just begun.

The first that we heard of this new fear is from an article in the online BBC News Jersey in which an employment expert opined that “Calling someone a ‘bean’ is unlikely to fall foul” of the new law.  Wheww!   We were bloody worried.

beans cartoon : 3d render of cartoon character with bean

For you blokes out there who do not know Jersey, seems that “The term ‘bean’, [is] a colloquial reference to Jersey’s traditional bean stew, [and] is seen by some as derogatory.   A local press report recently suggested calling someone a bean at work could prompt complaints under the new law.”

We don’t quite get it on a number of levels — if the law now only covers race, is “bean” a possibly racist epithet?

bean stew : Hot turkish bean stew with a tasty tomato sauce

Said the local employment lawyer:  “It comes down to whether the person is objectively offended.  It’s important people are quick to say they are uncomfortable with something. That puts the onus on the employer but also gives them the opportunity to do something.”

The Jersey Social Security Minister said that the law is “only a minefield if you make it one. What the law provides is a clause, that I was particularly keen appeared, about the interpretation of harassment.  In the workplace, if it seems quite common to say ‘bean’ or ‘jock’ then that’s fine, but if someone takes offence and requests that it stop and it doesn’t then that might be harassment.”

PS.   My mom used to call me “ol’ bean” when I was a kid in Brooklyn, and I never knew what it meant.   Was she harassing me???  OMG!

 

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

Why is this worthy of a post?

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

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

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

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

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

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

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

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

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

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

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

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

The number of UK employment cases plunging?  We asked about this earlier when we wrote that the UK Ministry of Justice released employment tribunal stats for the first quarter of 2014, and according to Michael Rubinstein Publishing, there has been a “huge fall in employment tribunal claims as a result of the introduction of fees to bring a case and have it heard.”

Lots of folks wrote in to explain to us the impact of these fees, and on August 5th we did a post which we entitled, “UK Employment Tribunal Fee: End Of The “Gravy Train” Or “Justice Only For Those Who Can Pay,” which set forth arguments for and against.

We now hear from Ireland.  Eamonn Gibney, an HR professional and business owner in Ireland wrote:

“Hi Richard,
Its an interesting debate, but I would be in favour of the introduction of fees here in Ireland. The ease of taking a frivolous or vexatious claim when there is no fee is just too much. People take claims for unbelievable reasons sometimes and its costing businesses a lot of money to defend and present for the cases.

If an employee feels really wronged, they won’t mind paying a small fee to take a claim and they will turn up for the case.”

high prices : An image of a man shocked at how expensive his bill is.

Mark Porter, an aviation employee in the UK disagreed, albeit wrting from the viewpoint of the UK:

“I am against the introduction of fees.   There was already a mechanism for dealing with frivolous or vexatious claims:  it was called a pre hearing review. … A rework of those rules relating to pre hearing reviews would have been far more sensible.

The reason I say this is because if you have just been dismissed (unfairly) and therefore out of work, and you are not on a bankers salary but still have bills to pay and children to feed, £1200 on top of any legal fees is a lot money to try to access justice and completely distracts from the original objective of the industrial tribunals that were set up in 1971.”

 

Hrmagazine.co.uk has reported an interesting survey made by a UK employment law firm which analyzed the size of companies and the number of employees reporting discrimination issues.

It seems that their survey turned up the fact that  “10% of workers in companies with 50 staff or more face barriers due to their gender, compared to 1.3% in micro-businesses (between one and nine employees) and small companies (between 10 and 49).”

“Additionally, in micro-businesses and small employers the number who have witnessed age discrimination is almost zero, compared to 20% in medium-sized employers and larger.”

One partner of the surveying firm opined that when a company grows rapidly it may tend to focus less on HR issues and more on things like finance.    Moreover, she said, “If you’ve grown from a small business of fewer than 10 people, it can go from feeling like a family to something less personal.”

So is small better?   Does this survey ring true in the US?

The survey is hardly scientific, but assuming the correctness of its general results, and assuming the results hold true in the US workplace, what does this mean for employers?    Well, first of all, we always preach that preventive law is preferable to dealing with claims and lawsuits down the road.  Its cheaper, less distracting and supports the old adage that “an ounce of prevention. …”

That said, we would like to repeat some of the “tips” we have provided in the past to avoid problems before they happen.   But given these results, accurate or not, it behooves mid-sized employers and employers with growing companies (the ubiquitous start-ups) to follow our common sense tips below more closely (especially numbers 3 and 4).

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Ten Tips To Avoid The Pitfalls Of The UK Survey

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 company’s 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: from the top down, 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.

Any questions?

 

 

The number of employment discrimination charges plunging in the UK?    We posted earlier this week that the UK Ministry of Justice released employment tribunal stats for the first quarter of 2014, and according to Michael Rubinstein Publishing, there has been a “huge fall in employment tribunal claims as a result of the introduction of fees to bring a case and have it heard.”

We asked our UK readers for some clarification of what is taking place — and happily were accommodated.

One US reader shared our shock/skepticism over the numbers, noting correctly that in the US, claims/charges of discrimination are ever-increasing in numbers.

Marc Brenman, a university instructor in Olympia, WA:

“This is pretty shocking, but doesn’t sound right.   If there were drops like this in the US, advocacy groups would be up in arms, there’d be Congressional hearings, etc.  Can we confirm these figures from another source?”

20636667_sAll of our UK experts explained the fee, and/or noted that the stats were a predictable result of the increase in the fee.  As you can see below, many folks deplore this fee, one saying that “poverty is on the rise and there is only justice for those who can pay,” and tell us that the fee is under attack by a trade union in the UK.

Harmander Singh, a business strategist from Greater London, UK:

“This was widely predicted and likened to charging turkeys to appeal against Christmas.

The biggest fall would have been in multiple discrimination cases – helping the slave trade to make a comeback under the guise of ‘liberalising’ working practices in favour of the employers.”

Dilys Jouvenat, a diversity and inclusion specialist in Cardiff, UK:

“Organsiations such as the CAB are reporting a large decrease in employment tribunal cases simply because people cannot afford the fees, one area of particular concern is the amount of possible pregnancy/maternity discrimination taking place without challenge.

This policy is being challenged through the courts by UNISON the public services trade union.”

Ken Hall, somewhere out in cyberspace:

“In fact there is, and has been since their introduction, great controversy (denying access to justice etc.) about fee charging. The dramatic fall across most jurisdictions – not only discrimination – is certain to reignite a threatened judicial review of the whole scheme.

For a general coverage of the debate by the social partners in the UK see: http://www.eurofound.europa.eu…

Anne Hayfield, an equality and diversity professional in London:

The reason why there has been such a dramatic drop is that the UK Government has introduced fees for taking a case to tribunal. The fees have been set too high £200 to £1000. Its bad news…

This article explains that the fees are too high and should be reduced to about £50.  I believe Unison the trade union is pursuing a legal case against the government.     http://www.lawgazette.co.uk/law/government-to-consider-lowering-employment-tribunal-fees/5040657.article

Says “Stevenson,” not otherwise identified except that her email address reads “girlfromessex”:

“The people with money or insurance have no problem, they will pay the fees and will hopefully receive justice.

The poorest people, who might have a great case, will attract fee remission but as they will not be able to get any help with filling in the forms they are very unlikely to claim [sic] and another bad employer will get away with bad practice.  Advice centres are few and overstretched, and since the introduction of fees, that line has got worse.

The bottom line is that even if people have a genuine claim, they are unlikely to go to Employment Tribunal because of the fear of fees, which could be more than £950. https://www.gov.uk/government/…

The people in the middle might struggle; they had a well paid job and lost it, and money is now tight or has to be preserved to pay the bills and keep a roof over everyone’s head.  Many feel they cannot justify paying nearly £1,000 to get a claim accepted, when their family has very little money coming in.   Many of these people previously represented themselves at Tribunal, so gaining justice did not cost them anything.

That is the reason why fewer people are going to Tribunal. They simply cannot afford to do so. There never has been legal aid for people with an employment claim, and the fees were the final straw. Now people can lose their jobs for no good reason, or be victimized or discriminated against, and unless they have private funds, they have no redress to the law. In a country where food-banks are popping up on many High Roads, poverty is on the rise and there is only justice for those who can pay.”

 

 

 

9034764_sThe UK Ministry of Justice has released employment tribunal claims statistics for the first quarter of 2014.  According to Michael Rubinstein Publishing, whose blog is a good source for for us regarding UK employment discrimination, there has been a “huge fall in employment tribunal claims as a result of the introduction of fees to bring a case and have it heard.”

“There was a substantial reduction year-on-year in the volume of almost all discrimination claims. In particular, sex discrimination claims are down 81.4%. … Age discrimination claims received by tribunals were down 26%; disability discrimination claims down 47%; race discrimination claims down 60%; religion or belief discrimination claims down 63%; and sexual orientation claims down 60%.”

Can anyone in the UK weigh in on these figures — is this a good or bad trend?  What’s the story with the fee situation — is there any controversy?  And is there any controversy over this trend and what it represents?

The US would like to know.