Category Archives: discrimination

Microsoft CEO Touts Equal Pay after Apology

Satya_NadellaIt seems Microsoft Chief Executive Officer Satya Nadella (at right) is still in apologetic mode after making some ill-advised comments at a recent conference that, in essence, discouraged female employees from asking for raises.

Apologizing immediately afterward, Nadella now says in this Oct. 20 Time magazine online article, that men and women at Microsoft are paid equally. Clearly, the need for more positive spin is still there.

Here, in case you missed it, is Josh Eidelson’s Oct. 13 post on Bloomberg Businessweek‘s Politics & Policy site about whether Microsoft’s female employees have grounds for a complaint with the National Labor Relations Board, based on what Nadella said onstage at the recent Grace Hopper Celebration of Women in Computing Conference in San Francisco.

The post also mentions that Nadella apologized and retracted what he said just hours later in a companywide email, calling his gaffe “completely wrong.” For the record and according to Eidelson, here was his egregious response to a question someone at the conference posed about what he would tell women who are hesitant to ask for a raise:

“It’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along. And that, I think, might be one of the additional superpowers that quite frankly women who don’t ask for a raise have. Because that’s good karma. It’ll come back, because somebody’s going to know that’s the kind of person that I want to trust. That’s the kind of person that I want to really give more responsibility to.”

Wilma Liebman, who chaired the NLRB during President Obama’s first term and now lectures at Cornell University, says in the post, “You could make a very clear argument that [such a comment] means, ‘Don’t ask for a raise, and if you ask for a raise, you’re not going to be trusted.’ And ‘you’re not going to be trusted’ translates to ‘you could be in some jeopardy.’ ”

The issue raised in the Businessweek piece, of course — since it considers NLRB review and possible enforcement of Section 7 of the National Labor Relations Act — is whether Nadella’s message explicitly chills a protected concerted activity; i.e., a group of Microsoft women banding together in search of higher pay.

Lawyers are mixed on that one. “If a group of women said these comments chilled them from seeking together to get better pay in the workplace, they could file an unfair labor practice claim with the NLRB,” Paul Secunda, director of the Labor and Employment Law Program at Marquette University Law School, is quoted as saying in that story.

On the other hand, the story says, Samuel Bagenstos, a University of Michigan law professor and former Department of Justice official, doubts Nadella’s comments would merit NLRB review, considering he didn’t specifically address that kind of group activism. “Asking for a raise for oneself only would count as concerted activity if there was an argument that the employee was asserting a grievance that was or could be expected to be shared by others,” Bagenstos is quoted as saying.

Hope B. Eastman, principal at Bethesda, Md.-based Paley Rothman and co-chair of its employment law group, who I spoke with about this, concurs. “The fact that Nadella has apologized and retracted his statement, and the fact that his comment was in the context of an individual woman asking for a raise,” she says, “makes it unlikely that the NLRB would take this on … .”

That said, she adds, “there have been studies suggesting that women do not negotiate salaries as well as men; this is an issue that needs attention.” So the silver lining, I guess, is that this issue was given new light through Nadella’s comments.

The Businessweek piece also brings up another story we followed in 2011 on this blog, when the NLRB issued a complaint against Boeing, claiming executives’ public comments about striking employees in the state of Washington suggested they were to blame for the company’s intended move to a new South Carolina site at the time. (Here’s one other mention of that story on this blog.)

As Eidelson points out, that Boeing story establishes “precedent for investigating public comments from an executive as alleged discrimination.”

And what’s the message for HR in all this? I guess check with your C-suiters on absolutely everything they intend to say publicly before they take the podium or stage …

If that’s even possible.

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SCOTUS to Hear Headscarf Case

courtWhile the upcoming caseload for the United States Supreme Court’s fall term may not be as heavy on HR issues as in the past, there is at least one case that will examine the role of religious freedom in hiring .

The Court has announced it will hear the case of a Muslim woman who was denied employment at trendy clothing retailer Abercrombie & Fitch because she wore a headscarf.

The company has faced more than one discrimination suit in recent years over the policy, which has subsequently been amended, according to the Baptist Joint Committee for Religious Liberty.

In this case, according to the MSN News story:

Samantha Elauf, then 17, was refused a job at the retailer in Tulsa, Oklahoma in 2008 because she wore a headscarf, violating the company’s “look policy,” which outlines how store staff should be groomed and dressed.

While a federal judge hearing the case found Abercrombie & Fitch was liable for discrimination — to the tune of $20,000 — that decision was later appealed, where the 10th US Circuit Court of Appeals in Colorado ruled that the 1964 Civil Rights Act only protects employees who provide “explicit notice of the need for a religious accommodation.”

Under the act, no one can be refused employment based on their religion, unless the employer cannot accomodate the person’s religious beliefs without adversely affecting business, and court documents said she did not ask about how the company’s “look policy” could be adjusted to accommodate her religious dress at the time of the interview.

“Before her interview, Ms. Elauf knew the position required her to model the Abercrombie style, knew the style of clothing that Abercrombie sold, and also knew that Abercrombie did not sell headscarves,” Abercrombie said in its court brief.

The EEOC said its cases involving complaints of religious discrimination have more than doubled in the past 15 years, according to MSN News.

SCOTUS is expected to take up the case in January, with a decision expected in June.

Stay tuned…

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Women and the ‘A’ Word

200401077-001A recent analysis of performance reviews by linguist Kieran Snyder has uncovered what seems to be a powerful bias against women who are seen as “too assertive” in the workplace — and the bias seems prevalent regardless of whether the review was conducted by a man or a woman.

Writing in the latest issue of Fortune, Snyder describes how she collected 248 performance reviews from 28 companies that ranged from large technology firms to small start-ups. The reviews came from 180 male and female managers.

Snyder was inspired to do this partly by a conversation she’d recently had with an engineer friend who was preparing performance reviews for two people on his team, a man and a woman. He wanted to promote both, but was concerned that his peers would endorse only one of them: “Jessica is really talented, but I wish she’d be less abrasive. She comes on too strong.” And the male? “Steve is an easy case, smart and great to work with. He needs to learn to be a little more patient, but who doesn’t?”

In examining the reviews, Snyder found that women received much more critical feedback than men did: About 59 percent of men’s reviews included critical feedback, while nearly 88 percent of women’s did. As for constructive feedback, the advice given to women tended to include personality criticisms, such as “stop being so judgmental” and “You can come across as abrasive sometimes. I know you don’t mean to, but you need to pay attention to your tone.”

Snyder also found that the word “abrasive” was used 17 times to describe 13 different women, but the word never appeared in men’s reviews.

Here at HRE, we’ve written about the double standard faced by women, including those in positions of authority. Here’s hoping that HR leaders of both genders take this omnipresent bias into account, and strive to help their organization’s leaders be as fair as they can.

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Could Women Be ‘Fry’-ing Their Prospects?

vocal fryYou may not be familiar with the term “vocal fry,” but if you’ve heard women from the ages of 13 to 35 or so speak recently, then you’re most likely acquainted with the phenomenon itself. Also known as “creaky voice” and “glottalization,” vocal fry refers to a speech pattern in which people lower their voices to a more guttural sound at the end of a sentence so that “interesting” sounds sort of like “interestaaang” or “awesome” sounds like “awe-suuhm.” Here’s a video of someone demonstrating vocal fry.

Often derided as an affectation, celebrities such as the Kardashians and the singer Kesha are regular practitioners of vocal fry. Although it’s practiced among both male and female speakers, vocal fry appears to be most commonly employed by young American women. And it could be holding them back in the job market, according to a new study published in peer-reviewed journal PLOS ONE.

Researchers from the University of Miami and Duke University recorded seven women between the ages of 19 and 27 and seven men between the ages of 20 and 30 saying the phrase “Thank you for considering me for this opportunity” in both their normal tone of voice and using vocal fry. Next, they had 800 study participants listen to five audio pairings and asked them to select people — the ones speaking normally and the ones using vocal fry — was the more educated, competent, trustworthy and attractive, based solely on the audio recording. When asked which of the pair they would hire, study participants chose the speaker with the normal voice 80 percent of the time. Participants also tended to judge female speakers exhibiting vocal fry more harshly — particularly when the listener was a woman, the study found.

Male recruiters and hiring managers should be aware of their perceived bias when interviewing female job applicants who use vocal fry in their speech, Casey A. Klofstad, one of the researchers, told CBS News. However, applicants themselves (ones who don’t have naturally low-pitched voices, that is) may want to avoid using vocal fry, he said. “Humans prefer vocal characteristics that are typical of population norms,” he said. “While strange-sounding voices might be more memorable because they are novel, humans find ‘average’ sounding voices to be more attractive.”

Interestingly, those “humans” may not include college-age humans, among whom studies have shown vocal fry to be both widely practiced and accepted. Approximately two-thirds of the college women observed by Long Island University speech scientist Nassima Abdelli-Beruh used vocal fry in their speech, according to Science magazine. When samples of a young woman’s speech employing vocal fry were played for students at the University of California-Berkeley and the University of Iowa, students viewed the affectation as “a prestigious characteristic of contemporary female speech.” In an essay last year, Slate columnist Amanda Hess wrote that older men may find vocal fry objectionable because it represents a rejection of their own way of talking:

As women gain status and power in the professional world, young women may not be forced to carefully modify totally benign aspects of their behavior in order to be heard. Our speech may not yet be considered professional, but it’s on its way there.

 

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A Double Standard at the NY Times?

Jill_Abramson_2012Jill Abramson, the executive editor of the New York Times and the first woman to ever hold that position at the paper, was fired yesterday and replaced by managing editor Dean Baquet. The official reason the paper gave for the firing was because of an “issue with management in the newsroom.”

According to news reports, many staffers at the Times found Abramson difficult to work with — “condescending,” “brusque” and “abrasive” were some of the adjectives used to describe her — and there apparently was a clash between her and Baquet — her second-in-command — over some management changes.

I’m not privy to what went on behind the scenes, of course, but from what I can glean so far, we may have yet another case here of the double standard that stubbornly lives on for women who hold high-ranking management positions. Last year, Politico ran a piece detailing the complaints some staffers had about Abramson. Here’s one I found particularly telling:

In one meeting, Abramson was upset with a photograph that was on the homepage. Rather than asking for a change to be made after the meeting, she turned to the relevant editor and, according to sources with knowledge of the meeting, said bluntly, “I don’t know why you’re still here. If I were you, I would leave now and change the photo.”

It sounds to me like Abramson was behaving like a decisive leader. After all, if there’s an opportunity to fix a problem on a website in real time, why would you wait until after the meeting to do so? In fact, Apple’s Tim Cook reportedly said something similar to one of his direct reports back when he was the company’s COO, according to website The Verge:

Cook’s relation with supply chain is best described by an anecdote reported by CNN, related to the period when Cook joined Apple in 1998 to straighten the operational morass that Apple was in. In a meeting convened to tackle a problem in China, he had said: “This is really bad someone should be in China driving this.” Thirty-minutes in the meeting he chided Sabih Khan, the then operations executive, saying “Why are you still here?”. Khan responded by immediately booking a ticket to China, sans a change of clothes.

Cook was later promoted to CEO of Apple after Steve Job’s death. The above anecdote about Cook has been repeated often, typically to demonstrate his tough, no-nonsense approach to things. Yet Abramson is pilloried for behaving in a similar way. I can’t find any other anecdote about Abramson’s supposedly “alienating” management style that isn’t routinely demonstrated by many male CEOs — and is more often than not lauded as “decisive.” Abramson’s predecessors in her job were hardly warm and fuzzy, by most accounts — Howell Raines, who served as the Times‘ executive editor from 2001 to 2003, reportedly ruled the newsroom through fear and intimidation. He was fired in 2003 after it was discovered that reporter Jayson Blair had repeatedly fabricated many stories. No such embarrassments took place under Abramson’s watch — in fact, last year the paper won four Pulitzer prizes, the third-largest such haul in its history.

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Service-Dog ‘Fakers': Could It Happen at Work?

464734925 -- guide dogsThis was certainly intriguing: a release from KCRA in Sacramento, Calif., about a hearing before the California State Senate examining what appears to be a real problem out there: people masquerading their dogs as guide dogs for the disabled so they can bring them along to wherever they’re going.

I guess they would miss them that much, which says something about the kind of person who would conjure up such a scheme. Worse yet, what kind of person would actually then “play act” a disability, namely blindness?

“This is a big issue in California,” Phyllis Cheng, the executive director of the Fair Employment and Housing department, says in testimony. In fact, here is the entire senate-hearing report:

Here, too, is the Fox 45 news report on the problem:

So I’m wondering, could this become a problem in the workplace? I asked two employment attorneys — Keisha-Ann Gray at Proskauer (HREOnline‘s “Legal Clinic” columnist) and James McDonald, managing partner of the Irvine, Calif., office of Fisher & Phillips — for their takes on this.

They tell me that, although there is no hard-and-fast rule under the Americans with Disabilities Act requiring employers to allow guide dogs to accompany disabled employees, every employer with 15 or more employees is required to try and make a reasonable accommodation if the request is made, unless that accommodation would cause an undue hardship to the business or present a direct threat to health and safety.

Could this kind of cheating actually lead to workplace “dog parks” though? Well, maybe not dog parks, but both say yes, they could see this kind of problem occurring at work. Such widespread scheming is definitely humanely possible, they say. “I know of people personally who claim their pets are service animals and they put a little vest on the animal so they can go in restaurants, etc.,” McDonald says.

Neither attorney gave much credence to this getting out of hand, necessarily, in corporate America. Thinking realistically, if you consider the fact that employees bringing dogs to work would then have to care for them for the entire day (and we’re talking food, exercise and potty breaks), “that might mitigate this a little bit,” McDonald says.

The bottom line to keep in mind, says Gray, is that this is the very type of situation that could get you in legal trouble if not handled properly. Faking questions aside, “once the employer is aware they have someone who can perform essential functions of the job, but would need help to perform the job based on a disability,” that employer must engage in a reasonable-accommodation dialogue.

And although “reasonable” does mean it does not create undue hardship or safety hazards, proving that a particular dog might bite or “seems irritable” could get dicey.

I’m thinking trying to nail someone for faking a disability or service-dog credentials could get dicey, too.

Best advice, from Gray: “If you’re thinking of denying a person a request for a reasonable accommodation, for whatever reason, get counsel involved.”

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Momentum Building for Putting Disabled to Work

Nice to see how much attention RespectAbilityUSA has gotten in just a little more than a month since I posted this plea to employers by the Washington-based nonprofit to get more disabled Americans into the workforce.

122470463 -- disabled execThe group — dedicated to empowering people with disabilities — made sure I saw this latest release touting all the big names to have signed on since that plea went out Jan. 13, including BMX bike legend and host of MTV’s The Challenge, T.J. Lavin; Delaware Gov. Jack Markell; U.S. Rep. Pete Sessions, R-Texas; U.S. Rep. Brad Sherman, D-Calif.; and Paralympian Matt Cowdrey.

Yes, the word is getting out. So much so that Lavin is now starring in a new public-service ad for RespectAbilityUSA that started airing Feb. 14. In the ad, he says “whether it is me, you, or someone who just wants to work — we all should have the same opportunity to achieve the American dream.”

Last month’s post included results from a just-completed RespectAbility poll showing three out of four people with disabilities surveyed value a job and independence over government benefits. This latest announcement, one short month later, mentions companies that are starting to get it, such as Walgreen’s, EY and AMC. They “have found people with disabilities to be highly valued employees who drive their company’s productivity as loyal, safe employees,” the release says.

Now, says Respectability President Jennifer Laszlo Mizrahi, “it is time for other companies to open new doors for people with disabilities.”

“The bottom line,” she says, “is that people with disabilities want a hand up, not a hand out. They want to work side-by-side with people who don’t have disabilities, make their contribution to society, pay their taxes and achieve the American dream.”

I like how Lavin puts it, too: “Recognize the disability, respect the ability, but imagine the possibility.”

We’ll keep watching this momentum and where it heads. In the meantime, employers and their HR executives should be bracing for two final rule revisions — issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs and impacting affirmative-action plans for veterans and people with disabilities — that go into effect on March 24. I have a news analysis appearing soon on our website, HREOnline.com, about these new rules and what they mean, and will share a link here when it goes live.

You might say the rules, revising the OFCCP’s Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act, are the government’s way of ensuring this momentum does, indeed, go forward.

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A Valuable Legal Lesson

courtroomThis recent Michigan court ruling may seem like a bit of a puzzler, but it could also be instructive for employers.

The United States Court of Appeals for the Sixth Circuit is sending the case of Deleon v. Kalamazoo County Road Commission to trial, ruling the plaintiff can proceed with suing the county for an adverse employment action motivated by discrimination—after being granted the very job transfer he had previously sought.

According to the suit:

In 2008, Kalamazoo County employee Robert Deleon applied for an internal transfer to the position of equipment and facilities superintendent. According to the job description, the role entailed working primarily in an office as well as a “garage where there is exposure to loud noises and diesel fumes.”

Initially passed over for the job, Deleon was involuntarily transferred into the position when it became available again in 2009. He subsequently sued the county, claiming the transfer was a retaliatory adverse employment action, in addition to alleging the working conditions in his new job led to him developing bronchitis as well as a cough and sinus headaches due to the aforementioned diesel fumes.

According to Kalamazoo County, Deleon never withdrew his initial request for the transfer, and did not complain at the time he received it.

In its ruling, however, the appeals court found Deleon had provided sufficient evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis, and that his work environment was “objectively intolerable.” The court also noted that Deleon applied for the position under the impression the move would include a $10,000 raise; a raise he never received, advancing the argument that his transfer was involuntary.

The case is “a classic example” of the challenges employers face in defending against discrimination claims, says Joel S. Barras, a Philadelphia-based partner in Reed Smith’s labor and employment practice.

Employers often spend tens of thousands of dollars in these cases, “which typically involve disproving a negative,” he says. “[It’s] no wonder there’s a cottage industry of plaintiffs’ lawyers who indiscriminately file claims against ‘deep-pocket’ employers, which only serve to detract focus from the cases of actual discrimination and retaliation.”

Nevertheless, this particular decision holds a valuable lesson for employers and HR, says Barras.

“The takeaway … is to always go the extra step, even if the outcome seems obvious.

“Common sense alone may not guarantee summary judgment,” he continues, advising employers in similar situations to ask the applicant if he or she still wants the job, clearly describe the working conditions, and make sure the candidate truly understands what the job entails.

There is a direct correlation between the amount of time and effort HR professionals expend on the front [end] of employment decisions and the chances for getting discrimination and retaliation suits dismissed quickly and relatively inexpensively.”

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Is Anti-Unemployment Discrimination Going Global?

I received an interesting email the other day suggesting the European Union may be in the early stages of adopting legislation to classify individual unemployment as an equal-employment-opportunity issue.

134518530 -- unemployedActually, according to the source, Brussels, Belgium-based Ius Laboris, the suggestion is more like a tiny whisper, but it is safe to say the EU’s general directorate has expressed interest in passing pan-European legislation to classify individual unemployment as an EEO matter.

“In essence,” the email says, “this would mean ‘unemployment’ was a protected category on a par with race or religion, prohibiting employers and employment agencies from asking employees about their current employment status in a job interview, and creating the threat of legal action if a business was demonstrated to have discriminated against an applicant on the basis of unemployment.”

Not sure where this is going and/or in what time frame, IL’s spokesperson tells me. And though it comes on the heels of similar moves across the United States, it’s hard to tell how far the anti-unemployment-discrimination momentum will take us on this side of the pond either.

At the time I wrote this news piece on New York’s passage of such legislation, this is where things stood here: “New York City is only the most recent jurisdiction where legislative action has been taken to protect the unemployed. States that have already passed laws against such discrimination include Oregon (passed in March 2012) and New Jersey (2011). The District of Columbia passed a similar bill in May 2012. And as of May 2013, five states — New York, Pennsylvania, Massachusetts, Iowa and Minnesota — have introduced bills during the 2013 legislative session, with another 17 states considering doing so.” Sources tell me this is still the case.

Wondering how this trend will be impacted if the unemployment figures continue to suggest steady job growth, as noted in this Associated Press piece released Wednesday.

Whatever the case, I’m compelled to share with you HREOnlineTalent Management Columnist Peter Cappelli’s column from several years ago, advising against such discrimination because it simply doesn’t make business sense.

 

 

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Will the EEOC Be Updating National-Origin Guidance?

There were some good signs in a public meeting in Washington yesterday (Nov. 13) that the U.S. Equal Employment Opportunity Commission may be willing to consider updating its guidance on national-origin discrimination issued after the 9/11 attacks.

177818736-- public meetingSuch is the gist of a blog post on Seyfarth Shaw’s Workplace Class Action Blog by Paul Kehoe, senior counsel in the employment law firm’s Washington office, who attended the meeting — aimed at hearing testimony about the challenges in today’s workplace related to national-origin discrimination, including English-only policies.

In a separate note about the meeting, Kehoe says the testimony “indicated some level of support for updated guidance from the EEOC.” He adds that, while it’s unclear whether the agency will actually revise the guidance, “an initial step to updating [a] guidance is to hold a public hearing.”

In his blog post, Kehoe describes some of testimony on both employer and employee sides:

Employer representatives suggested clarifying certain aspects of the current EEOC guidance and providing best practices, while fully considering employers’ legitimate interests and Title VII’s statutory intent. Advocates for workers suggested providing additional guidance narrowing the permissible instances where English-only policies would be appropriate and addressing ‘listener’or ‘implicit’ bias as it relates to customer preference and other issues.”

He also explains what’s at stake:

Currently, the EEOC’s guidance recognizes that claims may be brought under both disparate-treatment and disparate-impact theories of discrimination. Of course, in a disparate-treatment claim, the plaintiff would bear the ultimate burden of establishing pretext, while in a disparate-impact claim, the ultimate burden would fall on the employer to establish that the policy at issue was job-related and consistent with business necessity. Updated guidance would likely provide more context for the regulated community, but may ultimately make it more difficult for employers to comply with the EEOC’s view of Title VII.”

And in signing off, he provides some worthy employer caution:

Will the EEOC choose to update guidance in this area, which by Commission standards was recently completed in 2002, when there are other more pressing guidance documents to update? Only time will tell, but employers should review their language-related policies to determine whether they are in compliance with Title VII or if the policy needs additional consideration.”

 

 

 

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