Category Archives: discrimination

Setting a Strategy for Transgender Employees

Transitioning transgender employees. It’s a conundrum. And there’s a whole lot to consider. Such was the message Tuesday at the annual ThinkstockPhotos-531246420SHRM conference, in a workshop titled “Intel’s Strategy to Support Transgender Employees.”

Speaking were Eva Breslin, HR legal representative for Intel Corp. in Rio Rancho, N.M., and Keith Epstein, HR legal representative in the company’s Hillsboro, Ore., office.

In careful, thorough detail, they laid out all the impacts and ramifications Intel faced, which led to a comprehensive transgender strategy the company set in stone a couple years ago. After one male employee came running to Intel’s HR department complaining that a (transgendered) female was using the men’s room … it had to be done, they said.

Presenting three of their own Intel case studies — a female-identifying male who wanted to send out his transition story in a detailed email, a devout Christian who came to HR deeply hurt and offended by one employee’s change, and a transitioning male-to-female who was ready to leave work Friday and show up Monday as a woman — they discussed what went into Intel’s response to each in hopes it might help other employers (and audience members) facing similar challenges.

In those three cases, considerations included, respectively, the potential dissemination of personal medical information in the email that had to be thwarted and reworked, the need to fully explain and perhaps  enforce the new policy to the religious employee, and the need to step back and develop a cogent transition plan that would last far more than one weekend.

“How you deal with this is extremely important, and can save considerable time and expense,” said Epstein. Before the Intel strategy was adopted, for instance, “every time people were coming to us with a problem or concern, we had to start anew” with discussions and a plan, he said.

So the company established a team that included business HR, HR legal, members of the transgender community and others to put everything in writing, and on the company website.

From that point forward, all employees have been free to use whichever bathroom they prefer, in keeping with the gender they identify with. The company’s values and guidelines in the handling of benefits, name changes, back-office document changes and every other change that must be made are all laid out in black and white for all to see.

Steps for notifying managers and HR ahead of time, so every transitioning employee gets the support and respect he or she needs and deserves, are also detailed now.

“In one early case of ours,” said Breslin, “a manager was completely shocked and speechless for the entire day when an employee came in as a female after leaving the night before as a male. Clearly, everyone involved would have benefited from prior notification.”

Setting up an organization’s communication plan for transitioning transgenders is a complicated and sensitive process, and the ultimate goal should always be to avoid surprises, she said. Does a particular manager need guidance before meeting with employees to announce the change? Who will communicate it, the transitioning employee or the manager? Would the employee like to write a letter to his or her team instead? And should he or she read it and be there for the reaction, or should the manager go it alone, with that employee absent?

How all these issues are handled should be up to the discretion of each and every organization, said Breslin, but it’s imperative that all are addressed to “set the stage for how everyone will feel and might react.”

“It can also help avoid devastating outcomes,” she said.

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Two Tough Lessons on Training

New commercial truck drivers must cover thousands of miles with a trainer before they can work on their own. For women, that means ThinkstockPhotos-57533192spending weeks in close quarters with a boss who most likely is a man.

What could go wrong?

A pair of recent Equal Employment Opportunity Commission cases suggests the situation is every bit as risky — both for drivers and employers — as you might think.

The cases involve two trucking companies that got in trouble over sexual harassment of female trainees. One escaped major sanctions and may even recover legal costs from the agency, thanks to a U.S. Supreme Court ruling that lawyers call a victory for employers.

The other … let’s just say it didn’t go well.

That company, Missouri-based Prime Inc., is one of the nation’s largest long-haul truck companies. After a female trainee charged the company with sexual harassment and the EEOC sued, the company in 2004 adopted a new procedure: women trainees were paired only with female trainers.

But in the end, the new procedure apparently did far more harm than good.

Because the company had only five women trainers, according to the EEOC, women trainees had to wait a year or more to get in. Men, however, were accepted immediately.

In 2011 the EEOC sued again, and U.S. District Court Judge Douglas Harpool didn’t have much trouble concluding the training practice was discriminatory. In April he signed a consent decree ordering the company to pay $2.9 million to 68 women who had applied to the company’s training program.

The settlements, which include back pay and compensatory damages, ranged from about $29,000 to nearly $92,000 each. The company also agreed to hire all the women immediately. In addition, the company paid $250,000 to another female driver trainee who had brought the complaint to the EEOC.

On top of that, the company — which finally ended its same-sex training policy in 2013, two years after the EEOC filed suit — promised not to reinstitute the practice.

Was Prime’s 2004 training policy a well-intentioned response to the first complaint that accidentally led to a second one? Or a passive-aggressive jab at women who had complained? In a final order in the case dated May 26, the judge says he can’t tell.

“While Prime’s same-gender training policy was illegal, misguided, and ill-advised, the court is not willing to find … [it] was evil or malicious,” Harpool writes.

The other trucking company fared better in its battle with the EEOC. On May 19 the U.S. Supreme Court unanimously found that Iowa-based CRST Van Expedited Inc. may be entitled to $4.5 million in legal expenses it incurred battling the agency over another sexual-harassment case.

The case stems from a 2005 claim by a female driver trainee who said she was sexually harassed. Two years later the EEOC filed a class-action suit on behalf of 250 women whom it said had been victimized. Most of those plaintiffs were dismissed, however, after the court found the EEOC had not properly investigated their claims.

Employment lawyers lauded the Supreme Court’s ruling as a victory for employers.  The ruling “has made clear that a defendant may be entitled to recover attorneys’ fees even absent a victory on the merits,” write Lindsey M. Marcus and Michael A. Warner Jr., partners in the employment law practice of Franczek Radelet in Chicago.

Though the outcomes were very different, the lesson for folks in HR is the same: Training, like trucking, can be a risky business.

 

 

 

 

 

 

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Supreme Court Backs Workers

The U.S. Supreme Court ruled 7-1 yesterday  in the case of Green v. Brennan that the statute of limitations for Title VII constructive discharge claim begins on the date of the employee’s notice of resignation, not on the date of the last alleged discriminatory act by the employer.

According to Fisher Phillips’ Melody Rayl,  the court’s decision is a “bad one” for employers and will likely lead to an uptick in legal claims filed by disgruntled former workers.

“The question that confronted the Supreme Court is important because it goes directly to whether such constructive discharge claims are filed in a timely manner,” Rayl writes. “Prior to filing suit for discrimination under Title VII, employees must first file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days ‘after the alleged unlawful employment practice’ occurred, although the time is extended to as much as 300 days if the claim is also filed with a state or local agency authorized to investigate such claims.”

Further, Rayl writes, the Supreme Court’s decision now opens the door for former employees to file constructive discharge claims long after the alleged discriminatory conduct occurred by simply delaying their resignation indefinitely.

Now may be a good time for some legal background, courtesy of Rayl:

What Is A “Constructive Discharge?”
In a claim for constructive discharge, a former employee accuses the employer of engaging in discriminatory or retaliatory conduct that makes the working conditions so intolerable that any reasonable person in the shoes of that employee would feel they have no choice but to quit. In other words, a constructive discharge means a worker is forced off the job by the employer.

The concept of constructive discharge is a sort of legal fiction, allowing workers who claim to have been subjected to particularly egregious workplace treatment, but who have not been fired, to nonetheless resign from the offensive work environment and preserve their right to seek damages in the form of lost wages and benefits.

While the ruling is plainly a win for employees on this front, Rayl notes there was one area of the ruling in which employers can take solace:

In the smallest of victories for employers, the Court did acknowledge the limitations period should begin to run when the employee gives notice of resignation rather than on the date the resignation becomes effective.

With respect to Green, the Court found the facts were not sufficiently developed to pinpoint precisely when his notice of resignation occurred. Thus, the Court remanded the case back to the Tenth Circuit to determine, as a factual matter, whether he gave notice of his resignation on the date he signed the settlement agreement or nearly two months later when he submitted his retirement paperwork.

All things considered, that’s a small victory for employers indeed.

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The Cost of Not Accommodating Caregivers

Some employers “still aren’t getting it when it comes to discriminating against employees with family responsibilities.”

So says Joan C. Williams, founding director of the Center for WorkLife Law at the University of California, Hastings College of the Law, in a recent statement highlighting findings from a new UC Hastings study.

And, judging by some of the statistics found in said study, it’s hard to argue that she has a point.

The report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, analyzed 4,400 family responsibilities discrimination cases that were filed in the United States between the years 2006 and 2015.  Report author Cynthia Thomas Calver looked at employees’ claims alleging discrimination based on their status as a pregnant woman, mother, father, or a caregiver for a sick or disabled family member or an aging or ill parent, and found a 269 percent increase in the number of such cases filed in that 10-year span, compared to the prior decade.

While you’re digesting that number, chew on these facts and figures to emerge from the UC Hastings report:

  • Claims for FRD have been filed in every U.S. state.
  • Cases involving eldercare have increased 650 percent in the last 10 years.
  • Pregnancy accommodation cases have gone up by 315 percent.
  • Though the number of claims remains small, suits in which an employer is alleged to have denied accommodations or discriminated against an employee because she was breastfeeding or needed to express milk during the workday has risen by 800 percent.
  • Male employees have brought 55 percent of spousal care cases, 39 percent of eldercare cases, 38 percent of FMLA cases and 28 percent of childcare cases.
  • A clear majority of employees are succeeding with family responsibilities discrimination suits, with workers winning 67 percent of the FRD claims that went to trial from ’06 to ’15.

Naturally, these claims are hitting American employers pretty hard in the wallet. FRD litigation cost U.S. companies $477 million over the past decade (compared to roughly $197 million from 1996 to 2005), according to the WorkLife Law report, which suggests that the actual amount is “likely to be significantly higher, as many settlements are confidential.” These figures “also fail to capture the ripple effects of discrimination, including employee attrition and related replacement costs, damage to the company’s public reputation and reductions in the morale and productivity of all employees.”

The report also lays out some steps for preventing family responsibilities discrimination within the organization, such as providing supervisor training, adopting anti-discrimination policies that include family responsibilities, activating HR-run oversight programs and ensuring that the company’s procedures for responding to employee complaints address FRD.

In the aforementioned statement, Calvert, a senior advisor to the Center for WorkLife Law, stresses the importance of adapting to America’s evolving workforce and families, and the cost of failing to do so.

“Until employers adjust to the realities of families with all adults in the paid workforce and a significant growth in the number of older Americans who need assistance from their adult working children, it’s unlikely we’ll see a decrease in the number of cases filed.”

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Merck Suit Certified as Collective Action

In case you missed it, last week the U.S. District Court for the District of New Jersey granted plaintiffs’ motion to conditionally certify a collective action under the Equal Pay Act in the $250-million gender-discrimination suit filed against pharmaceutical giant Merck & Co. Inc.

The Court further ordered that thousands of female Merck sales representatives should be given notice and an opportunity to join the case. The lawsuit alleges that Merck systematically discriminates against female sales representatives, and pregnant women in particular, in pay, promotions and other terms and conditions of employment. The Court held that plaintiffs presented sufficient evidence of discrimination in pay to warrant notifying women across the country.

The Court’s decision also affirmed that an internal Merck policy purporting to govern contact between Merck employees and “third parties” does not bar Merck female sales representatives from communicating with Plaintiffs’ counsel and joining this lawsuit.

Some background on the case: In May 2013, Kelli Smith filed a class action lawsuit in New Jersey federal court alleging that pharmaceutical giant Merck & Co., Inc. (“Merck”) discriminates against female employees in its sales force in pay and promotions. Ms. Smith also claims that Merck discriminates against pregnant women and women who take maternity leave.

Early in 2014, several other women from across the country who had experienced similar discrimination at Merck joined Ms. Smith’s lawsuit. They too alleged class wide discrimination against female employees in pay and promotion, and on the basis of pregnancy. Although Merck sought to have the plaintiffs’ claims dismissed, the court denied Merck’s request.

Just how big this collective action will get is ultimately anyone’s guess, but the case should act as a stark reminder that “equal pay” is still largely a concept — and not a reality — in today’s business world.

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More Sexual-Harassment-Policy Rethinking

Came across this recent research from the University of Missouri that adds credence to a Q&A I did late last year with the author of a Sexual harassment at work in the officebook titled Sex and the Office: Women, Men and the Sex Partition That’s Dividing the Workplace.

Both the MU researchers and the author of the book, Kim Elsesser, seem to be getting at the same point about today’s sexual-harassment policies in the workplace. For the most part, they’re not effective because they incite more fear of possible infractions than encourage healthy banter between men and women.

The more recent findings, from MU, studied how employees’ interpretations of sexual-harassment policies can invalidate the purpose of the policies. Researchers found that employee perceptions of how exactly “sexual harassment” is defined by a company’s policy can, in effect, eliminate or reshape the meaning of the policies and contradict the norms and values of the companies that try to enforce them.

As one of report’s co-authors, Debbie Dougherty, associate dean of research and professor of organizational communication in the MU College of Arts and Science, puts it:

“Although the policy statement [might specify] the importance of building a culture of dignity and respect, the participants in the study reinterpreted the policy in such a way that they believed it actually created a culture of fear. This inhibits the camaraderie participants believed was produced by normalized sexual banter, behavior and jokes.

“Our findings suggest that the ways in which employees construct meaning around the policy can preclude the usage and effectiveness of the policy; therefore, sexual-harassment-policy research should focus on the complex ways that our understandings shape policy meanings in order to find more effective ways to address sexual harassment in the workplace.”

Which is kind of what Elsesser gets at in her book. It’s her premise that senior male executives and male managers, who can and want to help women under their supervision advance, are reluctant to reach out or get into any personal discussions with them for fear they’ll be breaking company rules and policies governing sexual harassment and discrimination.

As her book’s description on Amazon puts it, “many male executives stick with other men, especially when it comes to dinners, drinks, late-night meetings or business trips, [and] when it’s time for promotions or pay raises, these same executives are more likely to show preference to the employees with whom they feel most comfortable — other men.”

So the vicious cycle continues.

Just as the MU researchers suggest, Elsesser thinks HR executives need to be aware that focusing on sexual-harassment prevention may have secondary consequences. As she says,

“Right now, our efforts to eliminate sexual harassment may be creating this barrier between the sexes. Obviously, we need to continue on the path of reducing sexual harassment — but we must figure out a way to do this without creating this barrier. Instead, we should be thinking of ways to bring the sexes together.”

Dougherty would add that organizations need to discuss their sexual-harassment policies in a clear, concise manner “to ensure each employee has the same understanding of what is meant by sexual harassment.”

“Organizations,” she adds, “also would benefit from sexual-harassment training that acknowledges the gender dynamics of harassment.”

Not to mention the gender dynamics of trying, at all costs, to avoid committing such harassment.

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Helping Older Workers Find the Work they Want

OK, this baby boomer officially feels old now. I was just informed by Paul Magnus — vice president of workforce development for Akron, 474168522 -- older workerOhio-based Mature Services — that “mature” actually refers to 40 and older.

I was asking him to elaborate on his organization’s 26th Annual Mature Workers’ Job & Career Fair, coming up on Tuesday, April 12, at the Akron Fairlawn Hilton, designed “to help the 40-and-older population find employment,” as its release states.

Shocked as I was by that clause, Magnus pointed out that the oldest of the “Gen Xers [those born from the early 1960s to the early 1980s] started turning 52 in February 2016.” (Stop the world, I want to get off!)

But whether they’re 40 or 52 or on up into baby-boomer territory, he says, “we advocate for all older workers” and the extensive experience, skills and work ethic they bring to the workplace.

If you consider baby boomers alone, he adds, they possess the “highest level of intelligence and institutional knowledge, highest motivation factor and highest skill set of any demographic that has come through the workforce to date.”

Though many are staying in the full-time workforce out of necessity, a growing share are just heading into retirement age and are trying to “reinvent their lives,” be it through a mentor or tutor role or a part-time consultant’s role, says Magnus, whose agency helps those people achieve their desired situations as well.

In all work situations, says Don Zirkle, Mature Services’ training and placement supervisor, “[o]lder workers bring to the job commitment, experience and the ability to work as part of a team.” Older workers, he adds, have “adapted to technology as well.”

“These are traits that all employers are looking for in a new hire,” Zirkle says.

Unfortunately, far too many employers are still disregarding senior job candidates, especially those who have been long-term unemployed — a problem we’ve certainly written about on this site and on HREOnline.com.

“Many older workers have gotten trapped in that long-term-unemployment racket,” Magnus says. “We’re seeing that individuals who are not working aren’t getting the calls back. The longer they’re unemployed, the longer they’ll remain unemployed.”

Also on the unfortunate side, many baby boomers, when they started working, “didn’t necessarily need a degree for all the positions that were open to them,” he says. “Now, students are coming out of college with certificates and degrees for those same jobs,” and older workers trying to compete find themselves way behind the eight ball.

Through numerous programs run by his organization, including the U.S. Department of Labor-funded Senior Community Service Employment Program, which most other states also run, seniors are getting pointers and guidance in educational opportunities, job-hunting and skills training, and even tips on best ways to use social media, which many — surprisingly — aren’t that well-versed in, he says.

Times have changed, he adds, and seniors need to change with them.

I asked Magnus to describe the challenges and changes he’s seen in his 31 years with Mature Services.

The biggest difference he’s noticed over time, he said, is that everyone now has a different idea about what retirement means, from semi-corporate retirement to at-home part-time consultancies, and his agency is there to adjust to the changes, and guide and advocate for all older workers in his corner of the world — i.e., the Akron and surrounding areas.

“I remember starting this job when I was 28 years old,” Magnus says. “I remember walking up to a senior group of men and asking them if they would be interested in the recruiting help my agency had to offer, and they just laughed at me and said, ‘Why would I want to work when I’m retired?’ ” So at least that’s changed.

Second to that, he says, is that a growing number of employers are starting to see the value older workers, in any capacity, can bring to the workforce.

Though many still “do get bogged down in the older-worker perceptions that aren’t based on reality [like they can’t perform or produce like they once could, or they simply don’t want to be there], many others aren’t getting that hung up on age anymore.”

So there’s some progress at least.

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A Real Account of Long-Term Unemployment

It’s been awhile since we’ve reported on efforts to solve the nation’s long-term-unemployment problem. (Here are our HRE Daily posts 505475762 -- unemployment2and here are our HREOnline.com news analyses examining the problem and what can and should be done about it.)

Just recently, though, I came across an interesting write-up on the U.S. Department of Labor site about a panel discussion that was held in New Brunswick, N.J., on the topic.

The panelists, themselves, caught my eye: DOL Secretary Thomas E. Perez was leading the long-term-unemployment discussion, joined by former N.J. Gov. Jim Florio and U.S. Rep. Frank Pallone, D-New Jersey’s 6th District. Those who attended shared story after story of “devastation as they continue to look for employment to support their families,” the write-up says.

Which gets me to what was most interesting about the DOL release: the write-up and writer, themselves. Kevin Meyer, a public-affairs specialist at the DOL, wrote mostly about himself in response to what attendees were sharing. In his words,

“Those stories felt too familiar. In January 2014, I was one of the nation’s then nearly 3.6 million long-term unemployed. I was 52 and had spent two of the previous three years jobless. The great recession hit everyone hard, but older workers like me had a particularly tough time bouncing back.

“Even now as the overall unemployment rate [falls] below 5 percent for the first time since 2008, more than 2 million people have been out of work for more than six months. Today, the typical duration of unemployment for workers between 45 and 64 is still about a month longer than it is for younger workers.

“Ask someone — a relative, friend or neighbor — who is unemployed at this age, you hear the same things. Endless applications, unreturned calls, useless job searches, financial losses, anger, guilt and fear.”

Although he goes on, and in great detail, to tell his own harrowing story of being in the long-term-unemployed ranks for years before coming to the DOL’s Office of Public Affairs, he does also mention his agency’s Ready to Work grants — where and how well they’re working — and the fact that Perez had come to hear about New Jersey’s success with them.

But most of what he shared was impressive and moving, and I commend him for taking this tack. Full disclosure: Perez did ask Meyer to share his story at the roundtable. But he didn’t have to write it all down — which he did and did well. Case in point:

“Like those I met [in a previous roundtable on long-term unemployment, held in Washington, with Perez presiding there as well], I was desperate. I was fearful for my family; knowing that I would soon lose my home without more than another temporary job.

“I introduced myself and shared my work history of two decades as a writer and communications professional. My words then turned blunt, in typical New Jersey fashion. ‘Mr. Secretary, I must tell you that I battled an aggressive form of cancer into remission in 2006. As difficult as my cancer was, long-term unemployment has been worse,’ I shared, in a hushed conference room, trying to bury my emotion. ‘If I failed to beat cancer, my family had my company insurance and would have been cared for. If I fail to beat unemployment, I will leave them with nothing.’ “

We sometimes forget — as we write and read about joblessness, and unemployment rates, and layoffs, and older workers out of work — that for every number, there is a person there, struggling through pieces of a life event we will never know unless we go through it ourselves.

Thanks to a very different kind of press release, a tiny window was opened here, at least for me. For any employer hesitant to hire someone from these ranks, I’d say this is a must-read.

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EEOC Wants Pay Data From Employers

Under a new proposal from the Equal Employment Opportunity Commission, all employers with more than 100 workers will be required to furnish pay data to the federal government as part of their Employer Information Report (EEO-1), beginning with the September 2017 report. The objective, says the EEOC, is to make it easier for the government to spot potential cases of pay discrimination and to assist employers in promoting equal pay in their workplaces.

The proposal will be announced today in conjunction with a White House ceremony commemorating the seventh anniversary of the Lily Ledbetter Fair Pay Act.

“More than 50 years after pay discrimination became illegal it remains a persistent problem for too many Americans,” said EEOC Chair Jenny R. Yang in a statement. “Collecting pay data is a significant step forward in addressing discriminatory pay practices.”

“We can’t know what we don’t know,” said Secretary of Labor Thomas E. Perez. “We can’t deliver on the promise of equal pay unless we have the best, most comprehensive information about what people earn.”

The collected pay data will help employers evaluate their own pay practices to prevent pay discrimination in their workplaces while giving the Labor Dept. “a more powerful tool” to do its enforcement work, said Perez.

The EEOC proposal is in response to a task force set up by President Obama, which recommended new data-collection requirements to combat pay discrimination in the workplace.

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Can Social Media Stop Harassment?

A front-page story in the Washington Post yesterday focused on a new app popular among school-age kids these days called After School. The app, designed by its makers to let students anonymously post about sensitive topics they wouldn’t otherwise be comfortable discussing, has become a platform for bullying in some cases, with students using it to taunt their classmates about their appearance and mannerisms.

dv1080014The episode has led to more hand-wringing about the pernicious effect of social media in our lives. But social media can also be a force for good, particularly in the workplace. Earlier this week, speakers at a panel held by the Equal Employment Opportunity Commission explained how the medium can help alert organizations to incidents of harassment and discrimination that might otherwise go unreported.

Anne Johnson, executive director of Generation Progress of the Center for American Progress, told the EEOC’s Select Task Force on the Study of Harassment in the Workplace about the “It’s On Us” campaign, which incorporates the use of social media to raise awareness of and change behaviors toward sexual assault. It includes information on recognizing sexual assault, intervening in situations before it occurs and creating an environment where such assault is unacceptable. Although It’s On Us has been primarily focused on college campuses, it can also be used for preventing workplace harassment, Johnson said.

Jess Kutch, co-founder of Coworker.org, told the panel about how the petition platform has been used to call attention to workplace harassment that wasn’t treated adequately through the usual channels. If, for example, a number of people post about sexual harassment by one particular supervisor or about multiple incidents at a single location, she said, other employees who’ve experienced the same thing can see that they’re not alone and may be spurred to take action.

The EEOC’s panel also included testimony from groups representing the disabled, Muslims, people who are LGBT and older Americans, all of whom said workplace harassment continues to persist and — particularly in the case of Muslim and transgender employees — is an especially topical concern. Current events have exacerbated the harassment potential for Muslim employees, said Zahra Billoo, executive director of the San Francisco Bay Area chapter of the Council on American-Islamic Relations. Employees who are transitioning face severe harassment, often by coworkers who may mock them in front of customers, said Tara Borelli of the Lambda Legal Defense and Education Fund.

Considering that many incidents of harassment go unreported for any number of reasons, maybe it’s a good idea for HR professionals to consider social media as a potential “early alert” for things that would otherwise slip right under their radar.

 

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