Category Archives: discrimination

Overcoming the Barriers Disabled Americans Face

On July 26, it will be 25 years since George H. W. Bush signed into law the Americans with Disabilities Act, legislation that prohibited discrimination in employment, public accommodation and a number of other areas.

ThinkstockPhotos-457783527At the time of the signing, the president said …

“I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We’ve all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we’ve been committed to containing the costs that may be incurred … . Let the shameful wall of exclusion finally come tumbling down.”

Whether or not that “shameful wall of exclusion” has actually fallen is debatable. But with the release on Wednesday of a study titled the 2015 Kessler Foundation National Employment and Disability Survey, there’s now further evidence that people with disabilities are striving to work and are having some success in overcoming many of the barriers that have stood in the way. (Kessler unveiled the results to policymakers on Capitol Hill.)

Take the following finding in this study of 3,013 Americans with disabilities that was commissioned by the West Orange, N.J.-based Kessler Foundation and conducted by the University of New Hampshire: Nearly 69 percent of those surveyed are either working, looking for work or have worked since the onset of the disability.

“This clearly demonstrates that people with disabilities are ready and able to contribute their talents in the workforce,” says Kessler Foundation President and CEO Rodger DeRose.

Diving a little deeper into the data, the researchers found that Americans with disabilities who are employed work an average of 35.5 hours per week, with just over 60 percent of those working more than 40 hours per week.

The research did confirm, as might be expected, that many Americans with disabilities continue to encounter formidable barriers as they look for work, with the top three being the lack of sufficient education or training, employers that assume they can’t do the job and the lack of transportation. Then, once in the workplace, they face hurdles such as getting less pay than others in a similar job, negative attitudes of supervisors and negative attitudes of co-workers.

But, as mentioned earlier, the report does go on to make the point that a substantial percentage of the respondents are successfully overcoming many of these challenges. Of the 36 percent who reported employers assumed they couldn’t do a job, for instance, around 33 percent said they were able to overcome that barrier. Similarly, of the nearly 17 percent who said they were getting less pay than others in similar positions, nearly 39 indicated they were able to surmount that hurdle.

Earlier today, I asked John O’Neill, director  of employment and disability research at the Kessler Foundation, which of the findings surprised him most.

O’Neill specifically cited the finding that transportation may not be as significant a barrier as some have previously contended.

“When people think of barriers to job search, transportation is one of the first things to come to mind,” he says. “Yet of those looking for jobs, only 25 percent said they faced that barrier. Add, on top of that, that 42 percent of those facing that barrier had overcome it, and it would seem to be not as looming an issue as many people might have thought in the past.”

As for a takeaway for HR leaders, O’Neill points to the attitudes of supervisors and co-workers.

Roughly 16 percent of those with disabilities cited they had experienced barriers resulting from supervisors’ attitudes and about the same proportion experienced barriers resulting from co-workers’ attitudes, he says. But when you ask them about their ability to overcome those barriers, he adds, about 41 percent reported they were able to do so and 54 percent reported the same, respectively.

“Those figures,” he says, “are higher than I would have thought—and says that, while they’re [still] issues, people are finding ways to negotiate and work with their supervisors in terms of how they are being perceived.”

There no question a lot more work needs to be done when it comes to ridding the workplace of the many and varying barriers facing those with disabilities. But it’s also nice to see new research suggesting they aren’t insurmountable.

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Top 10 Reasons to Test Adverse Impact Correctly

This one caught my eye. Not that I’ve been a big David Letterman watcher (past my bedtime), but — as Merrily Archer put it in this 101390464 -- gavel and law booksLinkedIn post — “resuscitating the Top Ten list one last time” before it’s long forgotten was intriguing.

Even more intriguing was the content of her post, Top 10 Reasons to Acquire Adverse Impact Testing Skills — starting with 10. “The [Equal Employment Opportunity Commission]’s ‘Systemic Initiative’ to eliminate ‘discriminatory barriers in hiring’ — i.e., qualification standards — [was] launched nearly 10 years ago on April 4, 2006 — it’s not too late to catch up!” …

And ending with “the No. 1 reason HR practitioners and in-house employment counsel must understand the theory behind adverse impact analyses and how to conduct them: Turning over applicant flow data — or a hiring database — to the EEOC or in discovery that you have not analyzed for adverse impact is like disclosing a packet of documents that you’ve not read — i.e., legal malpractice!!”

Archer — an employment-discrimination litigator, legal coach and creator of the EEO Legal Solutions website — is very passionate about imparting what she knows about navigating your way through the ever-more-aggressive EEOC. She began her career as a trial attorney there and knows how it works. Or make that knows how it’s supposed to work and not supposed to work.

“I feel strongly that everyone needs to know how to test for AI and how to analyze their own hiring data, especially before turning anything over to the EEOC,” she says. “I’ve seen attorneys at big law firms hand over entire databases in response to an EEOC request for information, without having a clue about what the data actually reveals.”

For anyone who may not know, adverse impact, according to this post on USLegal.com, “refers to employment practices that appear neutral but have a discriminatory effect on a protected group. ”

More specifically, it says:

“Under the EEOC guidelines, adverse impact is defined as a substantially different rate of selection in hiring, promotion or other employment decision which works to the disadvantage of members of a race, sex or ethnic group. The EEOC agencies have adopted a rule of thumb under which they will generally consider a selection rate for any race, sex or ethnic group which is less than four-fifths or 80 percent of the selection rate for the group with the highest selection rate as a substantially different rate of selection. The selection rates for males and females are compared, and the selection rates for the race and ethnic groups are compared with the selection rate of the race or ethnic group with the highest selection rate.”

Sounds pretty convoluted, doesn’t it? In reality, it’s all about the calculations, so EEO and legal consultants would be advised. That said, though, Archer’s No. 7 reason to acquire these skills is worth noting: “Using FREE online adverse-impact calculators … is EASY, even for the math-phobics — i.e., lawyers.”

The Center for Corporate Equality, in its Technical Advisory Committee Report on Best Practices in Adverse Impact Analyses, says determining whether selection, promotion and termination decisions result in adverse impact — i.e., whether “substantial differences in employment outcomes across groups exist” — is an extremely important topic for organizations, yet “there is limited guidance about the specific and proper ways in which these analyses should be conducted.”

In the EEOC’s “Uniform Guidelines on Employee Selection Procedures,” adverse impact falls under Section 4, item D.  It doesn’t offer much in the way of calculation help, but if you’re not perfectly clear on everything it says, you’d best read up, says Archer. Better yet, consider yourself warned, by her:

“[Many] defense attorneys put employers at the mercy of the EEOC’s AI analysis, which is likely statistically flawed, based on inaccurate assumptions about the hiring process and actual applicant flow, and calculated to maximize ‘shortfalls’ — i.e., the difference between the expected and actual number of hires in that minority, gender or age group — for settlement negotiations.

“Attorneys can be so myopic: ‘If they didn’t teach it in law school, it must not be relevant.’ Unfortunately, the exact opposite is true. … This area of law is still pretty nascent, but one day soon, I’m convinced that failing to audit for AI will become malpractice — it’s just part of the standard of care and protection that employers need in the systemic era.”

A few other compelling reasons to perfect your AI skills, from Archer’s Top 10:

“9. Since the EEOC shifted its enforcement focus nearly 10 years ago, ‘systemic discrimination’ has become the new phrase that PAYS at the EEOC and among employee-side lawyers.

8. The EEOC uses specific statistical tests to measure whether a challenged practice — e.g., criminal-background check, educational standard — has an ‘adverse impact’ and to calculate damages in conciliation negotiations: HR practitioners and attorneys MUST know how the database will be analyzed and what the numbers say.

2. EEOC systemic cases that have reached litigation demonstrate a high likelihood that the EEOC will [do the AI analysis of your database incorrectly] in a way that hurts [you,] the employer.”

 

 

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Here’s an Overnight Cure for Bias?

Here’s a question you might want to ponder … or maybe even sleep on. Can we snooze our gender and racial biases away?

ThinkstockPhotos-163819282Well, apparently researchers at Northwestern University, the University of Texas at Austin and Princeton University thought enough about that question to conduct a study. And guess what? They found that biases can indeed be counteracted while people sleep.

In the study, posted this week on the Science magazine website, researchers found that information recently stored in the brain can be integrated with other information during sleep and transformed into stable representations through a process known as systems-level consolidation.

“Taking into consideration the role of sleep in memory consolidation, we adapted procedures for reducing implicit social biases and reactivating this training during sleep,” the researchers said.

You can read more about how the study was conducted at Science. But cutting to the chase, the researchers “reactivated counterbias information during sleep using subtle auditory cues that had been associated with counterbias training.”

In the study, electrodes recorded the brain activity of participants as they napped. Then, during periods of deep sleep, one of the sound cues from the association test was repeatedly played.

As Xiaoqing Hu — postdoctoral fellow at University of Texas at Austin and one of the study’s researchers — writes in a piece appearing on The Conversation: “Prior research on prejudice and stereotyping shows that extensive counter-bias training can lessen automatic stereotyping. Building on this bias reduction and sleep-based memory consolidation research, we aimed to test whether people can further process such counter-bias memories during sleep. Can such learning reduce long-lasting stereotypes and social biases?

The researchers found that pre-existing stereotypes associated with the sound cue replayed during sleep were significantly reduced when the participant woke up …

 “We were surprised that this sleep-based intervention was so powerful when participants woke up: the biases were reduced by at least 50 percent relative to the pre-sleep bias level. But we were also surprised at how long the effect lasted. At the one-week follow-up test, the sleep-based intervention was still effective: bias reduction was stabilized and was significantly smaller (approximately 20 percent) than its baseline level established at the beginning of the experiment.”

As you might expect, those involved in the research acknowledge more work is needed. So, at least for the time being, you might want to hold off retrofitting your nap room—for the few of you who  have one—to include this kind of intervention or adding a sleep component to next year’s bias-training program.

Let’s hope your bias-training efforts don’t already induce said sleep.

 

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Mixed Interpretations of Mach Mining Decision

Reactions to last week’s U.S. Supreme Court ruling in Mach Mining v. EEOC are plentiful, and mixed. The decision essentially came down 78805354 -- Supreme Court for left sidein favor of employers and against the U.S. Equal Employment Opportunity Commission, but just who the real winner is — and by how much — is subject to interpretation.

In the case, Mach Mining was accused by the EEOC of discriminating against women who applied for jobs at its Johnson City, Ill., coal mine. The EEOC filed suit in 2008 after an unsuccessful job applicant complained to the agency that the company never hired a female miner.

In response, Mach argued for an intensive federal-court review of conciliation efforts the EEOC should have engaged in, but Mach argued were not carried out — as required under Title VII of the Civil Rights Act — prior to the company being sued.

“In language that is sure to be repeated back to the EEOC for years to come, the Supreme Court held that ‘[a]bsent such review, the commission’s compliance with the law would rest in the commission’s hands alone,’ ” say Seyfarth Shaw attorneys Gerald L. Maatman Jr., Christopher Cascino and Matthew Gagnon in this blog post. “This, the Supreme Court said, would be contrary to ‘the court’s strong presumption in favor of judicial review of administrative action.’ ” They go on:

“While the Supreme Court did not rule that the intensive review that Mach Mining argued for was required, the case nevertheless represents a significant win for employers and resounding defeat for the EEOC. The EEOC will no longer be able to file suit against employers after paying mere lip-service to its conciliation efforts, and to give them the back of the hand in response to requests for fulsome information about liability and exposure in a threatened lawsuit. And employers will, as a result, be in a better position to settle meritorious claims  on reasonable terms before the EEOC files suit, thus saving employers from unnecessary litigation expense.”

But not so fast. According to points raised by Jon Nadler, a Philadelphia-based employment attorney with Eckert Seamans Cherin & Mellott, the ruling is actually a win for the EEOC, despite the prevailing commentary and headlines. Though the court ruled the EEOC’s conciliation efforts are subject to some judicial review, “that review is extremely limited (‘relatively barebones,’ in the court’s words,” his notification says.

On the contrary, it goes on, the “EEOC will merely need to show it provided the employer with notice of the allegations — the specific alleged unlawful practices, and identification of those allegedly harmed — and to engage in some bilateral communication with the employer in an attempt to resolve the matter.”

Nevertheless, Nadler points out, though employers have complained in some instances that the EEOC “failed even to provide this basic information, now [it’s] clearly required.”

Further, in points raised by Don Lewis, shareholder with Nilan Johnson Lewis, the Supreme Court also chose not to adopt a “good faith” standard of review previously adopted by the Fourth, Sixth and Tenth Circuits. “Employers,” his notice reads, “will be pleased that the high court has recognized that the EEOC’s obligation to conciliate is enforceable in court, and that its obligation includes a requirement to disclose and discuss the essential elements of its claims and identify the parties for which it seeks relief.”

Meanwhile, in this posting, the EEOC calls the decision a “step forward for victims of discrimination” in its rejection of the “intrusive review proposed by the company and its supporters.”

The agency goes on to say that the “court recognized … the scope of review is narrow and a sworn affidavit is generally sufficient to meet the statutory requirements. If the employer has concrete evidence that such efforts were not made and the court finds in favor of the employer,” it says, “the remedy is [simply] further conciliation.”

This story on the Inside Counsel site, written in January after oral arguments were presented in the case, offers great background on the history, arguments and questions surrounding all this.

So what does it mean? Obviously, it depends on who you talk to … on whose glass is half full or otherwise. Yes, the scope of judicial review articulated in the decision “is a narrow one,” Maatman and company write, but bottom line, the court “vigorously upheld the fundamental principle that judicial review of administrative action [however slight] is [still] the norm in our legal system.”

Further, they state, “the EEOC now has to present its position in a federal court, and its litigation strategies are apt to be very different when it must justify and show the basis for its conciliation positions before a neutral fact-finder.” In their words,

“Suffice it to say, employers’ defense of ‘failure-to-conciliate’ is still alive and well, and the EEOC’s litigation strategies are now likely to be in need of rebooting.”

Or not …

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Supremes Revive Young v. UPS Case

The reaction to yesterday’s Supreme Court decision to revive a pregnancy-discrimination lawsuit against United Parcel Service has been decidedly swift and, of course, decidedly mixed.

The Supremes based yesterday’s decision on the belief that lower courts had used the wrong standard to determine whether the company had discriminated against one of its drivers, according to the New York Times.

When Peggy Young’s doctor recommended that she avoid lifting anything heavy after she became pregnant, the company refused to give her lighter duties to accommodate her and placed her on unpaid leave, according to the 2006 lawsuit.

(UPS has since changed its policy to offer light duty to pregnant women, the Times reports.)

Barry Hartstein, co-chair of Littler’s EEO and diversity practice in Chicago,  says “the Court  essentially treated pregnancy under the classic disparate treatment theory, finding that discrimination can be inferred by certain employer conduct.”

Meanwhile, Katherine Kimpel, managing partner of Sanford Heisler Kimpel in Washington and co-author of an amicus brief in support of Ms. Young for medical providers and organizations involved in female and infant health and for the National Partnership for Women and Families, says the decision was more than just a victory for Young, who accused the delivery company of violating the federal Pregnancy Discrimination Act:

“The Supreme Court today handed a victory not only to Ms. Young but also to all pregnant women and mothers working in this country.  Ms. Young will have her day in court.  UPS does not get to subject women to a least-favored-nation status.  Other employers should be on notice.  The Supreme Court makes clear that the Pregnancy Discrimination Act has teeth.  Employers who accommodate everyone but pregnant workers will be held accountable.”

Meanwhile, Michael Droke, a Seattle-based partner in the labor and employment practice at the international law firm Dorsey & Whitney, calls the 5-4 decision a “fractured” one, adding that the Court “noted that the expansions to the Americans with Disabilities Act definitions of ‘disability’ might require companies to accommodate employees with temporary lifting restrictions, separate from the Pregnancy Discrimination Act.”

He says employers should beware that federal law, either under the ADA or Pregnancy Discrimination Act, protects disabled employees from discrimination and, in some cases, require reasonable accommodation.

“The Court refused to grant pregnant employees, in the Court’s words, a ‘most favored nations’ status,” he says. “In other words, an employer is not automatically required to give pregnant workers the same accommodations they would offer to others with temporary disabilities.

However, he adds, the Supreme Court required UPS to justify its treatment by establishing a legitimate, non-discriminatory reason for the difference.

“This may prove a very difficult burden for most employers to meet,” he says. “Employers must be very careful when granting leave requests or making job accommodations, because the Company might later be required to justify any difference in treatment for other employees.”

 

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Considering the Stigma of Affirmative Action

Two recent studies out of the University of Michigan raise some troubling questions about just how far we’ve come as a diverse 468250323 -- diversity hiringnation, with equal access to all in life, school and work.

The most recent, published on the Phys.Org site just this past Monday, contains the unsettling finding that, although a credential from an elite university results in more employer responses for all applicants, black candidates from these prestigious universities do only as well in getting the job as white candidates from less-selective universities.

When our editorial team discussed this study at its Tuesday news meeting, “unsettling” wasn’t the word most used. “Sad” was the term of choice.

“These racial differences,” says the study’s author, S. Michael Gaddis, “suggest that a bachelor’s degree, even one from an elite institution, cannot fully counteract the importance of race in the labor market. Thus, both discrimination and differences in human capital contribute to racial economic inequality.”

One can’t help but wonder if some of those hiring managers and recruiters studied by Gaddis weren’t jaded by assumptions that such a collegiate star — at least on paper — was the recipient of favorable treatment and maybe easier hurdles to jump, thanks to affirmative action.

Which brings me to the other, earlier U-M research that essentially confirms — by carefully examining — the stereotypes many do, indeed, have about co-workers who advance through affirmative action and diversity initiatives.

Researchers David Mayer of the U-M’s Ross School of Business, Lisa Leslie of New York University’s Stern School of Business and David Kravitz of George Mason University’s School of Business examined research showing affirmative-action recipients being viewed as less competent and competing for company resources. Based on that, they say, they’re seen as less likeable by their colleagues, which can lead to negative assessments of their performance.

“People have all kinds of assumptions about what affirmative action means,” says Mayer. “A lot of people assume it’s about hiring people less qualified [than leading candidates] because they are a member of a protected group … .”

In Leslie’s words:

“Diversity initiatives are effective, but also produce unintended consequences that can limit the career success of the very groups of employees they are intended to benefit. Implementing an affirmative-action plan without taking steps to avoid unintended consequence is unlikely to be an effective solution.”

So what should employers do with all this? Researchers from the earlier study say none of the drawbacks mean companies should get rid of affirmative-action programs. Instead, they say, such programs should be implemented more effectively and positive outcomes, such as having high-level minority role models in business organizations, should be studied.

But how do we alter those silent, destructive mind-sets that very well could be impacting resume assessments where ethnicities are known? Those mind-sets that whisper “easier ride”?

Hard to say.

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Men Need Not Apply?

76161057That’s the message Ruby Tuesday Inc. is sending some of its workers, according to a lawsuit recently filed by the EEOC, which accuses the restaurant chain of excluding male employees from consideration for coveted temporary assignments at a Utah resort.

Brought on behalf of male Ruby Tuesday employees Andrew Herrera and Joshua Bell, the suit claims an internal Ruby Tuesday job posting violated equal opportunity employment laws from the Civil Rights Acts of 1964 and 1991.

More specifically, the EEOC claim alleges that, in the spring of 2013, Ruby Tuesday posted an internal announcement within a 10-state region advertising temporary bartender and server positions in the chain’s Park City, Utah location, with company-provided housing for those selected. Herrera—a Ruby Tuesday employee since 2005 in Corvallis, Ore.—was one of at least two male workers who wanted to apply for one of the positions, “because of the chance to earn more money in the busy summer resort town,” according to an EEOC statement.

The announcement, however, stated that “only females would be considered, and Ruby Tuesday in fact selected only women for those summer jobs, supposedly from fears about housing employees of both genders together,” according to the EEOC.

What may be most surprising about this particular case is “that Ruby Tuesday was pretty upfront about wanting only women to apply for the positions,” according to a recent Washington Post article.

Ruby Tuesday did not immediately respond to the Post’s requests for comment. But if the Maryville, Tenn.-based chain did in fact make clear it would only seriously consider women for these roles, such a move would be a “rare” and “explicit example” of gender discrimination, says William R. Tamayo, a San Francisco-based regional attorney for the EEOC.

“This suit is a cautionary tale to employers,” says Tamayo, “that sex-based employment decisions are rarely justified, and are not consistent with good business judgment.”

This certainly does seem like a unique case, and we’ll have to wait and see if more suits like this one begin to emerge.

But making positions such as those sought by Andrew Herrera and his male colleagues available to men could not only boost overall labor conditions, but may actually help level the playing field for women in some industries, according to UCLA Law Professor Noah Zatz.

“Jobs constructed as being for women pay less [and] have fewer promotional opportunities,” Zatz told TakePart.

“Busting up that single-sex monopoly in waitressing, in-flight service and nursing, for example, could be a strategy for disrupting the ways jobs are disadvantageous to women.”

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Facing ‘Double Jeopardy’ in STEM

One hundred percent is normally associated with a perfect score in something, but a new academic study on race and gender in STEM (Science, Technology, Engineering and Math) is now casting that figure in a very imperfect light.

University of California Hastings School of Law Professor Joan C. Williams and the Center for WorkLife Law just released the report titled Double Jeopardy? Gender Bias Against Women of Color in Science, which demonstrates how subtle—and not-so-subtle—bias shapes the daily work lives of women in STEM, and how women’s experience of gender bias is shaped by race.

“This is the first time someone has asked women whether they have encountered in actual workplaces the specific types of gender bias documented in social psychologists’ labs,” said Williams.

Given the amount of attention recently paid to the lack of gender diversity in the tech space,  it shouldn’t come as a surprise to anyone that women working in STEM fields have experienced some form of bias or discrimination in the workplace.

But perhaps the most startling result of the research was this: 100 percent of the women interviewed reported some sort of gender bias.

“But studies of gender bias generally focus on the experiences of white women, leaving unanswered the major question of whether the same patterns of bias extend to women of color,” Williams said. “This report finds that women of color experience pervasive gender bias—but in ways that often differ from the ways white women experience it.”

In essence, women of color working in the STEM fields find themselves in “double jeopardy” when it comes to dealing with bias in the workplace.

Significant findings of the report include:

  1. 100% of the women interviewed reported gender bias.
  2. Black women are more likely (77%) than other women (66%) to report having to prove themselves over and over again.
  3. The stereotype that Asians are good at science appears to help Asian-American women with students—but not with colleagues.
  4. Asian-Americans reported both more pressure than other groups of women to adhere to traditionally feminine roles and more pushback if they don’t.
  5. Latinas who behave assertively risk being seen as “angry” or “too emotional,” even when they report they weren’t angry; they just weren’t deferential.
  6. Latinas report being pressured by colleagues to do admin support work for their male colleagues, such as organizing meetings and filling out forms.
  7. Both Latinas and Black women report regularly being mistaken as janitors.

From the looks of the findings, there’s definitely a great deal of work to be done before the STEM playing field evens out. But the report introduces a new approach to organizational change to interrupt gender bias, called Metrics-Based Bias Interrupters, developed by Professor Williams last year.

Bias Interrupters uses a four-step iterative process: 1) survey women to find out whether they think gender bias is playing out in basic business systems (recruiting, assignments, evaluations, etc.); 2) develop objective metrics to test whether women’s perceptions are accurate; 3) implement “Bias Interrupters” to interrupt bias in real time; 4) see whether the relevant metric improves and, if it doesn’t, strengthen or modify the intervention.

Here’s hoping these “bias interrupters” can put a dent in that imperfect 100-percent score the next time research is done on the topic.

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Favoritism is No Friend of Diversity

469735239  -- workplace diversityI thought Martin Luther King Day might be a good time to reflect on the forces that make workplaces less diverse than they can and should be. Many are well-known and well-documented, including discriminatory hiring and promoting practices, lack of disability accommodations, insensitivity to gender-identity issues, unequal pay … the list goes on.

But as this recent piece in the Kansas City Star points out, it’s not just about tangible practices and accommodations — or lack thereof. It can be far more subtle and hard to pinpoint, writer Michelle T. Johnson says, when your diversity culprit is favoritism. As she writes:

“What does favoritism even look like? Favoritism is usually about choice. In some workplaces, the work and the people who do it don’t have much variance in how the work is done and who does it. However, in other workplaces, work decisions are made frequently — assignments, shifts, territories, days off. With most decisions come subjective judgments. Every industry and workplace is so different, yet everyone can probably relate to some area of the job that bosses influence [subjectively] at least weekly.”

Her advice to all managers and HR leaders is to always be examining “why you make the personnel decisions you do.” She continues:

“People are quick to defend their decisions, saying they base them on the best person to do the job. But over time, what conditions have you created to allow, for example, one person to inevitably do the job better than another? And if that has happened, what is the reason? Is it that the person reminds you of yourself or has similar interests, or because the person has a personality you find easier to get along with?”

Favoritism can be just that simple, she says. Some people make you spontaneously smile when they walk through the door. Others make you instinctively come up with an exit plan out of a conversation. “Know who those people are and go from there,” she says.

Granted, not all employers can be as proactive as Intel was in its recent announcement that Andrew McIlvaine blogged about earlier this month. Specifically, CEO Brian Krzanich shared in his keynote address at the Consumer Electronics Show in Las Vegas his company’s plans to spend $300 million dollars over the next five years to improve the gender and racial diversity of its U.S. employee base, and of Silicon Valley at large.

Though he made the announcement, the real powerhouse behind this initiative is Intel President Renée James, as this Fortune piece suggests. Since taking over the presidency in 2013, it says, James “has pushed to review a decade’s worth of diversity data and commissioned a new hiring program that incentivized managers to hire more women and minorities.”

Whichever end of the initiative spectrum you and your organization currently find yourselves on — boldly spending and going where few have gone, like Intel, or simply taking the kind of inward look at your management and personnel choices suggested by Johnson — there’s no better time than now to start thwarting your business’ inequality and no better day to get started than this one.

 

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Supremes Look at EEOC’s Role in Conciliation

Today the U.S. Supreme Court is hearing oral arguments in Mach Mining v. Equal Employment Opportunity Commission — a key employment case that addresses whether a court may enforce the EEOC’s duty to conciliate discrimination claims before filing suit, legal experts say.

In the Mach Mining case, the EEOC alleged that Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Ill. The EEOC notified the company of its intention to begin informal conciliation, and while the parties discussed possible resolution, they did not reach an agreement.

In the federal case, Mach Mining argued that the suit should be dismissed because the EEOC failed to conciliate in good faith. Then, in 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment-discrimination suit brought by the EEOC.

Gerald Maatman Jr., co-chair of the class action defense group of Seyfarth Shaw, says the Mach Mining case has significant implications for employers that are dealing with the EEOC.

“If the Supreme Court sides with the Seventh Circuit, employers will lose a powerful defense against the EEOC’s aggressive litigation tactics,” he wrote recently in Seyfarth’s Workplace Class Action Blog.

Maatman also says the Seventh Circuit’s decision had “far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes… prior to suing employers.”

In the amicus brief in support of Mach Mining on behalf of the American Insurance Association, Mr. Maatman and Seyfarth Shaw argue that insurers and employers facing EEOC litigation require detailed information in order to accurately set reserves and ensure that any settlement not only promptly and fairly compensates meritorious claims, but also satisfies the interests of insurance regulators.

Their brief contends that the Seventh Circuit’s ruling is “wrong as a matter of policy, since it is fundamental to the litigation process for a party to have fulsome information relative to the claims at issue. The Congressionally-mandated conciliation process was intended to provide that core knowledge;

“This is particularly important in EEOC-initiated litigation, where one of the government’s fundamental mandates is to achieve voluntary and informal compliance with anti-discrimination laws.”

And some of the reasoning behind the Seventh Circuit’s decision, as well as similar reasoning in the briefing the EEOC recently submitted to the U.S. Supreme Court—i.e., that it is essentially “too difficult” to articulate a workable standard for determining whether the EEOC met its good-faith conciliation requirement—defies practical experience, adds Steven Pearlman, partner and member of Proskauer’s employment litigation & arbitration group.

Moreover,  says Pearlman, if no limiting principle is imposed in this context, “the EEOC will be empowered to employ an unreasonable ‘take-it-or-leave-it’ approach to pre-suit settlement negotiations. In fact, courts recently have chided and even sanctioned the EEOC for engaging in such tactics.”

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