Category Archives: discrimination

Disability Stigma Alive and Well

Came across this post on LinkedIn the other day, reminding us all about the importance of giving disabled Americans the chance to 512903522-disabilityprove themselves in the workplace.

Included in the general reminder by Amber Fritsch, a talent-management consultant, were other reminders for employers — including  the new provisions regarding leave as a reasonable accommodation — the Employer-Provided Leave and the Americans with Disabilities Act — released by the Equal Employment Opportunity Commission earlier this year. Would be nice to think we’re moving in the right direction toward giving the more than 56 million Americans with disabilities a fair shake in corporate America.

But then I harked back to something I had come across earlier in the year — a mention of a movie I can’t say I’ve seen and can’t say I want to: Me Before You.

According to this recent post by Jennifer Laszlo Mizrahi, president of RespectAbilityUSA.org, the film is “the latest Hollywood movie to end with the assisted suicide or euthanasia of the lead character with a disability.”

She calls it “yet another case of ‘ableism’ — prejudice that people with disabilities are somehow less human, less valuable, less capable than others — and should simply die.”

Pretty grim description, but not too far removed from the stigma disabled job candidates still face, she says. The latest research from Mizrahi’s organization shows the numbers of working disabled Americans is still woefully low.

It cites findings that only one-in-three Americans with a disability has a job today and, of those who do, 400,000 work in sheltered workshops, also known as “enclaves” or “crews.” These institutions literally and legally can and frequently do pay people with disabilities sub-minimum wages, says Mizrahi. She adds:

“The lack of opportunity for people with disabilities leads to poverty, prison and, as we see in the fictionalized true story behind Me Before You, even death.”

In a follow-up conversation, Mizrahi cited a Keller Foundation study showing 70 percent of people with disabilities are working age and currently striving for work. Only 34 percent have any job, however. From her vantage point …

“There has been NO improvement in the labor-force-participation rate in decades for people with disabilities. Zippo. And because other groups made progress and we did not, the gap in [those] rates between people with and those without disabilities has increased substantially.” 

She thinks a serious, systemic and ongoing communications campaign highlighting the benefits of inclusive hiring and self-employment is needed in this country so “people with disabilities can achieve the American dream, just like anyone else.”

Not sure why this hasn’t happened yet. Also not sure what the underlying problem is. And it’s not like we haven’t probed the matter. This recent HREOnline news analysis shows problems of recognizable bias in the hiring process still in existence at a majority of companies.

As Paula Brantner, executive director of Workplace Fairness in Silver Spring, Md., says in that story:

“You start with the adherence to the law [i.e., the Americans with Disabilities Act], but until you get to where people can actually work side-by-side with someone who has a disability, it’s going to be hard to overcome some of those deeply held biases that are really unfounded in reality.

“HR needs to send the message that this is a company that welcomes workers with disabilities and then facilitate that process every step of the way.”

HRE Editor David Shadovitz’s more-positive HRE Daily post last year at least cites some evidence that disabled workers and job applicants are starting to overcome some of these barriers.

The post includes statistics from John O’Neill, director of employment and disability research at the Kessler Foundation, showing that roughly 16 percent of those with disabilities say they’ve experienced barriers resulting from supervisors’ attitudes and about the same proportion experienced barriers resulting from co-workers’ attitudes.

But when you ask them about their ability to overcome those barriers, about 41 percent of the former said they were able to do that and 54 percent of the latter said the same.

So there’s hope. But the overcoming efforts shouldn’t rest on the shoulders of disabled workers alone.

Landmark Ruling on the Horizon?

A new landmark ruling affecting how employers view sexuality when considering applicants could soon be in the offing, according to Reuters.

The 7th U.S. Circuit Court of Appeals will hear arguments tomorrow in Hively v. Ivy Tech Community College, in which a former Ivy Tech adjunct professor, Kimberly Hively, claims the college refused to allow her to interview for a full-time job and ultimately did not renew her contract because she is a lesbian.

The case , Reuters notes, gives the 7th Circuit a historic opportunity to fix what three of its own judges have called “a jumble of inconsistent precedents” and a “confused hodge-podge of cases.” If the full appellate court sides with Hively and her lawyers from the Lambda Legal Defense and Education Fund, gays and lesbians will finally receive protection under federal law from workplace discrimination.

Lambda Legal lawyer Kenneth Upton told Reuters:

“Sexual orientation doesn’t have anything to do with employees’ ability to do their job,” Upton said. “It shouldn’t be a determiner of whether you should continue to be employed.”

The Hively case spotlights a weird legal paradox, according to the Reuters piece.

Title VII of the Civil Rights Act forbids employers from treating workers unequally on the basis of race, color, religion, sex or national origin. A plurality of justices on the U.S. Supreme Court said in 1989’s Price Waterhouse v. Hopkins that employers cannot discriminate against workers who don’t conform to sex stereotypes.

Yet as a three-judge panel at the 7th Circuit explained last summer in its since-vacated Hively opinion, every federal appellate court to have considered the question of whether employers can discriminate based on workers’ sexual orientation has concluded that Title VII’s bar on sex discrimination doesn’t give redress to gays and lesbians.

Upton added that three-judge panels at the 5th and 2nd Circuits are also facing the question, so ultimately, it will probably be up to the Supreme Court to provide an answer.

 

The EEOC Enforcement Agenda

Earlier this week, the Equal Employment Opportunity Commission issued its updated enforcement guidance on national origin discrimination.

(The EEOC also issued two resource documents to accompany the guidance: a Q & A publication on the guidance document and a small business fact sheet designed to illustrate the guidance’s chief points in plain language, according to the organization.)

The new guidance defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.”

The documents also address Title VII’s prohibition on national origin discrimination as applied to a broad range of employment situations and highlight practices for employers to prevent discrimination, as well as discussing legal developments since 2002, when the EEOC issued the national origin discrimination compliance manual section that these new guidelines are intended to replace.

“EEOC is dedicated to advancing opportunity for all workers and ensuring freedom from discrimination based on ethnicity or country of origin,” says EEOC Chair Jenny R. Yang, in a statement.

“This guidance addresses important legal developments over the past 14 years on issues ranging from human trafficking to workplace harassment. The examples and promising practices included in the guidance will promote compliance with federal anti-discrimination laws and help employers and employees better understand their legal rights and responsibilities.”

This announcement comes just weeks after the EEOC unveiled its Strategic Enforcement Plan for fiscal years 2017 through 2021. One pillar of this plan is the agency’s expanding focus on protecting immigrant and migrant workers, such as those who are Muslim or Sikh or persons of Arab, Middle Eastern or South Asian descent, as well as those perceived to be members of these groups, as HRE’s Julie Cook-Ramirez noted earlier this month.

Of course, the EEOC’s new guidelines and its stated strategy for the next five years arrive almost exactly two months before the scheduled inauguration of President-Elect Donald Trump, who stands to significantly shake up the agency’s agenda.

In a recent blog post at www.law360.com, law professor Michael LeRoy explains how the incoming president could very well upend the EEOC’s enforcement agenda with regard to national origin (and other forms of) discrimination.

“Trump’s popularity derives in no small measure from people who are tired of ‘political correctedness,’ ” writes LeRoy, a professor in the School of Labor and Employment Relations and College of Law at the University of Illinois at Urbana-Champaign. “This concept is generally found in Equal Employment Opportunity Commission regulations that prohibit employers from creating a ‘hostile work environment.’ ”

That term applies to sexual harassment, but racial, religious and national origin harassment as well, adds LeRoy.

“A Trump EEOC could redline ‘hostile work environment,’ thereby signaling that no federal employment policy prohibits the type of degrading language that Trump has used against women, Mexican, Muslims and other groups.”

For that matter, President Trump will have the opportunity to appoint high-ranking personnel that could in turn impact staffing decisions throughout the EEOC, potentially shifting the agency’s enforcement priorities, as Seyfarth Shaw attorneys recently pointed out.

In addition to the possibility that President Trump could designate a new EEOC chair, the agency will see General Counsel David Lopez leave at the end of 2016.

“[Lopez’s] impending departure means that President Trump will have an early opportunity to appoint his successor,” Seyfarth attorneys wrote. “These leadership changes at the highest levels of the EEOC will undoubtedly impact the direction the agency takes in the future.”

A Trump administration could also signal budgetary constraints for the EEOC, which may alter the way the agency approaches enforcement of discrimination guidelines.

“Historically, the EEOC adapted by focusing its enforcement efforts on systemic litigation, meaning targeting high-impact cases that address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants,” Seyfarth attorneys note. “The theory was that large, high-profile cases, settlements and judgments would have a greater deterrent effect, and would therefore affect a larger number of workers and industries.”

Faced with the possibility of fewer resources and new personnel, however, the EEOC of the near future could be forced to find “new and creative ways to adapt its enforcement program (and its own political viability) to the new reality.”

 

Trump Win Good for Biz Women??

Not one for post-election posting here, but this LinkedIn piece by Sallie Krawcheck caught my eye. As a woman watching and dv496065aweathering the campaign, and now the transition to a Trump presidency, I wanted to make sure as many women — and men — as possible saw it too.

Her premise that “Donald Trump as president of the United States could just be the best thing that has happened to professional women in a long time … huh? what?” is right in Krawcheck’s wheelhouse. She’s the CEO of Ellevest, a digital investment platform for women; chair of Ellevate Network, a global professional women’s network; and author of Own It: The Power of Women at Work, to be released in January. As she puts it,

“We’re awake now. That’s because it’s all out in the open: the Billy Bush conversation, the recent New York Times OpEd on “bro talk on Wall Street,” even the light sentence for Brock Turner.  And while as a mother and an aunt, I hate it, I hate it, I hate it that we haven’t made more progress for younger women, this does represent an odd form of forward motion: We can’t really deal with an issue until we fully understand the issue.”

It’s a compelling piece and worth the read, whatever your gender or persuasion, political or otherwise. This new Trump era, ushered in by stepped-up conversations about the treatment of women, comes with “some proof that we can’t rely on others to fight this battle for us, and so we must redouble our efforts,” Krawcheck says. “… I’m hearing from more and more women that we must ‘put on our big-girl pants’ and do this ourselves..”

And it’s not like women don’t have the resources, she adds. “[W]e control $5 trillion of investable assets, we direct 80 percent of consumer spending, we’re more than half of the workforce. We’ve got a lot of power.”

Krawcheck’s list of what to do to claim and use that power is impressively detailed, and long. Just some of her many suggestions — some we’ve heard and written about, some we haven’t — include mentoring and sponsoring other women, amplifying what other women say in meetings, pointing out to others when they interrupt other women or ignore them in meetings, pointing out when the words they use to compliment men (“aggressive” or “go-getter”) are used to put down women and refusing to work at the company that doesn’t “get it” on making the work environment one in which you can be successful.

She also bangs the political drum some, post-election, suggesting women start donating to female candidates whose views line up with theirs, and start running for office and encourage other women to run for office.

And the financial-independence drum:

“[D]oing all that we can to be in financial control feels more important today than it did [before the election]. It’s important that we break the old gender norms of ‘the man manages the money; I manage the household.’ That leaves us retiring with two-thirds the money of men … but living five-plus years longer than they do. …

“[P]lease get yourself a financial plan and invest.”

All politics and election furor aside, Krawcheck gave me some serious things to think about. If any of this gets you thinking about new approaches to help the women in your organization claim their power and succeed, then all the better.

The Motherhood Tax at Work

New research out of the United Kingdom shows the gender-pay gap widens significantly after the birth of a child, otherwise known as the “motherhood tax.”

According to a new report from the Institute for Fiscal Studies, 12 years after giving birth for the first time, women are making 33 percent less per hour than men.

On average, women in work receive about 18 percent less per hour than men, down from 23 percent in 2003.

While the wider gap for mothers is not because women see an immediate cut in hourly pay after childbirth.

Possible explanations include mothers missing out on promotions or accumulating less labor market experience, the authors said.

“Comparing women who had the same hourly wage before leaving paid work, wages when they return are on average 2 percent lower for each year spent out of paid work in the interim,” the IFS wrote.

(Tip of the hat to CNN Money.)

A Groundbreaking New Pay Equity Law

Beginning July 1, 2018, employers in Massachusetts will be prohibited from asking job candidates about their salary history before offering them a job or asking candidates’ former employers about their pay. The new law, the Pay Equity Act, is designed to reduce the pay disparities between men and women in the workplace.

Although other states (including California and Maryland) have also enacted recent legislation designed to reduce pay inequity, Massachusetts is the first state to ban employers from asking about candidates’ salary history. The law, signed earlier this week by Republican Gov. Charlie Baker, not only had bipartisan support in the state legislature but also from business groups such as the Greater Boston Chamber of Commerce.

Nationally, women still earn only 79 cents for every dollar earned by men, according to the U.S. Census Bureau. Because companies tend to use candidates’ pay history as a guideline in making offers, these inequities can follow candidates throughout their lifetimes, pay-equity advocates say.

The Massachusetts law, which amends and expands upon the state’s pre-existing pay equity law, also makes it illegal for employers to ban employees from discussing their pay with others and will require equal pay employees whose work is “of comparable character or work in comparable operations.” The law also bars employers from reducing the pay of any employee in order to come into compliance with the Pay Equity Act.

The law also increases the penalties for violations, according to an analysis by law firm Holland & Knight:

The law expands the remedies available to plaintiffs by extending the statute of limitations from one year to three years, and creating a continuing violation provision under which a new violation of the law occurs each time an employee is paid an unequal amount. This provision may permit employees to recover years of back pay discrepancies as well as liquidated damages. Fines are increased from $100 to $1,000 per violation. There is no requirement that an employee file first with the Massachusetts Commission Against Discrimination (MCAD). Lawsuits may be filed directly in court.

Notably, however, the law features a safe harbor provision for employers that have been accused of pay discrimination, writes attorney Victoria Fuller of White and Williams:

Employers may avoid liability for pay discrimination under the Act if they can show within the last three years and before the commencement of the action, they have completed a good-faith self-evaluation of their pay practices and can demonstrate that reasonable progress has been made towards eliminating compensation differentials based on gender for comparable work in accordance with the evaluation.

Eliminating the ‘Mad Men’ Mind-set

Less than two weeks from today — August 15 — federal contractors that work with the U.S. government will need to comply with modernized rules when it comes to sex discrimination in the workplace.

According to the Office of Federal Contract Compliance Program’s fact sheet, the revisions will bring the “guidelines from the ‘Mad Men’ era to the modern era,” as well as protect women and men from discrimination on the job.

The U.S. Department of Labor is publishing new sex discrimination regulations that update – for the first time in more than 40 years – the department’s interpretation of Executive Order 11246 to reflect the current state of the law and the reality of a modern and diverse workforce.

“Updated rules on workplace sex discrimination will mean clarity for federal contractors and subcontractors and equal opportunities for both men and women applying for jobs with, or already working for, these employers,” the department said in a release.

“We have made progress as a country in opening career opportunities for women that were, for decades, the province of men. Yet, there is more work that lies ahead to eradicate sex discrimination. This is why it is important that we bring these old guidelines from the ‘Mad Men’ era to the modern era, and align them with the realities of today’s workplaces and legal landscape,” said director of the Office of Federal Contract Compliance Programs Patricia A. Shiu.

The final rule updates OFCCP’s sex discrimination regulations to make them consistent with current law. It makes explicit the protections against compensation discrimination; sexually hostile work environments; discrimination based on pregnancy, childbirth or related medical conditions; and discrimination based on unlawful sex stereotypes, gender identity, and transgender status. The regulations also promote fair pay practices.

The rule implements Executive Order 11246, which prohibits companies with federal contracts and subcontracts from discriminating in employment on the basis of sex.

But before the new rules take place, says Brett Draper, a partner at Alston & Bird’s labor and employment group:

“[E]mployers should review current policies to determine what changes should be made to processes in order to keep up with new regulations and ensure compliance.”

The new rules add to the growing employment obligations imposed on federal contractors through various guidelines and regulations, adds Clare Draper, also a partner with the law firm.

“While the OFCCP seeks to minimize discrimination in the workplace through these expanded requirements, the burden on businesses to comply grows as well. Businesses should take immediate action to protect themselves from exposure that can arise through OFCCP compliance reviews, class actions and other legal actions.”

EEOC Steps Up Data Collection on Discrimination

In case you missed this bit of news on your rush out the door to start your weekend last Friday:

In an effort to improve the information available about religious discrimination, the U.S. Equal Employment Opportunity Commission  announced it will implement changes in the collection of demographic data from individuals who file charges with the agency. These changes, the agency says, will allow it to collect more precise data about the religion of the individual alleging discrimination – allowing the EEOC, as well as the public, to recognize and respond to trends in charge data.

Additionally, the EEOC also announced the release of a one-page fact sheet designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination. The fact sheet is available at EEOC’s Youth@Work website, which presents information for teens and other young workers about employment discrimination.

Combating Religious Discrimination Today, a community engagement initiative coordinated by the White House and the U.S. Department of Justice, Civil Rights Division, brought together EEOC and other federal agencies to promote religious freedom, challenge religious discrimination, and enhance efforts to combat religion-based hate violence and crimes. The report from the effort is available at https://www.justice.gov/crt/file/877936/download.

Finally, EEOC plans to improve coordination with the Department of Labor’s Office of Federal Contract Compliance Programs, which enforces the prohibition of religious discrimination in employment by federal contractors and subcontractors. EEOC and OFCCP will work together to develop joint outreach and education efforts concerning discrimination based on religion.

Don’t Get Blindsided by Family-Leave Laws

Ever wonder what a typical case of family-responsibility discrimination involving elder care might look like? Consider this 538047854 -- elder carescenario laid out in a piece by Tom Spiggle that posted on the Huffington Post in June:

“You have an elderly parent who suffers from Alzheimer’s. He requires continuous care. You have worked at the same job for five years with a strong, positive work history. To better care for your father, you move him out of assisted living into your house. A paid caregiver takes care of him during the day, but leaves at 6, which means that you have to be home then.

“Your performance at work remains strong, but you are no longer able to take part in the informal after-work get-together frequently arranged by your boss. After missing these for a month, your boss stops by your office to ask why. You tell him. He responds ‘How long will this go on?’ You tell him maybe years. After this, things change at work. For no apparent reason, your boss begins to criticize your work. At one point, HR puts you on a performance-improvement plan.

“Although you do everything they ask and more, nothing seems good enough. One day, your father falls at your house, breaking an arm. You have to leave work early to get to the hospital and miss work the next day. You call HR, letting them know what happened and put in for [Family and Medical Leave Act] leave to cover the absence. When you return, the axe falls; you get fired. The last communication you receive from your boss is an email: ‘I’m sorry it had to end like this. You will be missed. I hope that this gives you the time that you need with your father.’

“That would be discrimination under the Family Medical Leave Act and the Americans with Disabilities Act.

Granted, his piece speaks primarily to employees, but there are some nuggets worth reviewing for employers, such as a little-known fact (little known by me anyway) that some bosses seem fine and accommodating with the first child, “but their attitude is that one child should have been enough,” writes Spiggle, an employment lawyer and founder of the Spiggle Law Firm, based in Arlington, Va.

(Note to anyone reading this who considers this a familiar occurrence in his or her organization: Time for some manager training!)

Here’s another nugget: Employees claiming they were discriminated against or weren’t accommodated under family-leave law have much stronger cases if they ask for the law’s protection while they’re still working for you. Spiggle elaborates (remember, this is directed at employees, so interpret between the lines):

“Let me give you an example. Suppose that your boss says that you are a shoo-in for a promotion. Before things become official, you announce your pregnancy. Next thing you know, the promotion goes to a man who is your junior. When you confront your boss, she shrugs and says, ‘Them’s the breaks. Next round.’ Let’s suppose things only go downhill from there and you get fired, even though your performance remained unchanged.

“Here’s the thing: If you had complained about being skipped over for the promotion because you were pregnant before you were fired, you’d have a second claim of retaliation, which is easier to prove and gives you more leverage.

“There’s also a chance that, by reporting your concerns, you might get the problem fixed. Sometimes companies do the right thing when they learn that a rogue manager is violating the law. By reporting what happened, you give the company a chance to fix it.”

Probably the most telling piece of information he shares though — as does Mark McGraw in this HRE Daily post from May — is the fact that the number of family-responsibility-discrimination cases are going way up. McGraw and Spiggle both cite a report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, showing a 269-percent increase in the number of family-responsibility-discrimination cases between 2006 and 2015.

Many of our HREOnline.com news analyses have also mentioned this increase and the fact that far too many employers still don’t seem to get it when it comes to proactively turning that trend around.

Consider this a reminder, then, to get your anti-family-caregiver-discrimination house in order. And make sure you’re up on the nuances involved, including who has what rights and when — and precisely what this form of discrimination looks like.

Is Diversity Training a Waste of Time?

Diversity programs haven’t done much to actually increase diversity in the workplace.

This is the conclusion recently reached by sociologists Frank Dobbin and Alexandra Kalev, who drove this idea home throughout an article appearing in the July/August 2016 edition of Harvard Business Review.

The authors point to volumes of past research that they say reinforce the notion that diversity efforts—mandatory diversity training sessions in particular—may be well-intentioned, but often miss the mark.

“Firms have long relied on diversity training to reduce bias on the job, hiring tests and performance ratings to limit it in recruitment and promotions, and grievance systems to give employees a way to challenge managers,” wrote Dobbin and Kalev.

“Those tools are designed to preempt lawsuits by policing managers’ thoughts and actions,” according to Dobbin, a professor of sociology at Harvard University, and Kalev, an associate professor in the department of sociology and anthropology at Tel Aviv University.

Laboratory studies, however, “show that this kind of force-feeding can activate bias rather than stamp it out. As social scientists have found, people often rebel against rules to assert their autonomy. Try to coerce me to do X, Y or Z, and I’ll do the opposite just to prove that I’m my own person.”

Dobbin and Kalev’s HBR piece is based on their own examination of three decades’ worth of data, culled from more than 820 United States-based businesses as well as interviews with hundreds of line managers and executives.

In conducting their analysis, the authors found that companies saw representation of some demographic groups actually drop in the five years after they made diversity training programs obligatory for managers.

For instance, the share of black women in management roles decreased by 9 percent on average in that time, while the ranks of Asian-American men and women declined by 4 percent to 5 percent.

“Trainers tell us that people often respond to compulsory courses with anger and resistance,” added Dobbin and Kalev, noting that many participants reported feeling more animosity toward other groups after taking part in such programs.

The authors outlined other ways in which diversity training efforts are typically derailed.

Threatening undertones, for example, help to upend many diversity training programs.

“ … Three-quarters use negative messages in their training. By headlining the legal case for diversity and trotting out stories of huge settlements, they issue an implied threat: ‘Discriminate, and the company will pay the price.’ We understand the temptation … but threats, or ‘negative incentives,’ don’t win converts.”

Dobbin and Kalev contend that companies achieve better results “when they ease up on the control tactics” in delivering diversity programs.

“It’s more effective to engage managers in solving the problem, increase their on-the-job contact with female and minority workers, and promote social accountability—the desire to look fair-minded.

“That’s why interventions such as targeted college recruitment, mentoring programs, self-managed teams and task forces have boosted diversity in businesses. Some of the most effective solutions aren’t even designed with diversity in mind.”