Category Archives: discrimination

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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DOL Mandates Pay Transparency

moneyOn the heels of President Obama’s recent executive order requiring federal contractors to provide at least seven days of paid sick leave, the Department of Labor’s Office of Federal Contract Compliance Programs today issued a final rule banning federal contractors from having policies that discourage their employees from discussing, disclosing or inquiring about their own pay or that of their co-workers.

The final rule implements Executive Order 13665, signed by the president last year, which stems from the Lily Ledbetter Fair Pay Act.

“It is a basic tenet of workplace justice that people be able to exchange information, share concerns and stand up together for their rights,” said DOL Secretary Thomas Perez in a statement. “But too many women across the country are in the same situation: They don’t know how much they make compared to their male counterparts, and they are afraid to ask.”

A “culture of secrecy” around pay keeps women from knowing they are underpaid and makes it difficult to enforce equal pay laws, according to the DOL. Women still earn only 23 cents for every dollar earned by male employees, the agency says.

The rule allows job applicants and employees of federal contractors and subcontractors to file a discrimination complaint with the OFCCP if they believe that their employer fired or otherwise discriminated against them for discussing, inquiring about or disclosing their own compensation or that of others.

Pay transparency benefits companies as well as employees, said OFCCP Director Patricia Shiu.

“Indeed, forward-thinking companies that have embraced greater transparency find that it benefits them and their workforce by helping them attract and retain talented workers,” she said.

The rule will go into effect 120 days after its publication in the Federal Register.

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Target Pays the Price for Problematic Assessments

You never have to look far for examples of big companies spending big money to deal with claims of discriminatory employment practices.

This week’s cautionary tale comes courtesy of Target Corp.

On Monday, the Minneapolis-based discount chain agreed to pay $2.8 million to resolve charges of discrimination stemming from employment assessments used by Target, which “disproportionately screened out applicants for exempt-level professional positions based on race and sex,” according to the Equal Employment Opportunity Commission. The payout will be distributed among more than 3,000 individuals.

In its investigation of the retail giant, the EEOC determined that the assessment tests Target administered to thousands of candidates—who were ultimately rejected—for upper-level positions were not job-related, and violated Title VII of the Civils Right Act of 1964.

In addition to finding that the assessments unduly eliminated individuals in particular groups from consideration—namely African-Americans, Asians and women, according to the EEOC—the Washington-based agency determined that one of the assessments Target had been using violated the American with Disabilities Act. In this case, applicants were subjected to medical examinations prior to an offer of employment, which, as the EEOC notes, is prohibited by the ADA. Finally, the EEOC found that Target committed recordkeeping violations by failing to maintain records adequately enough to evaluate the impact of its hiring processes.

While maintaining that it didn’t act improperly regarding the assessments, Target did stop using the tests in question during the EEOC’s investigation, and has “agreed to better track its testing process and check for impact based on race, ethnicity and gender,” according to Target spokeswoman Molly Snyder.

In the same statement, Snyder noted that Target had relied on these tests “over the past decade,” and said the EEOC concluded that “only a small fraction of the assessments … could have been problematic.”

The settlement underscores the “quite risky” nature of the pre-employment assessments commonly used by many employers, says Tashwanda Pinchback Dixon, an Atlanta-based attorney at Balch & Bingham, and a member of the firm’s labor and employment and litigation practice groups.

“It’s important that employers take a very close look at these tests and make sure there is a clear link to business necessity,” says Dixon, whose experience includes focusing on Title VII sex and race discrimination claims.

Ensuring such a connection “is even more critical with tests that seek medical information, because of the ADA and the Genetic Information Nondiscrimination Act,” adds Dixon.

In most instances, she says, “a case can be made for business necessity when the position requires manual labor, such as manual lifting requirements.”

In Target’s case, however, “the link to business necessity is not as obvious.”

In light of this week’s settlement, Dixon says that employers should expect their pre-employment assessments to come under scrutiny by candidates and—if brought to its attention—the EEOC.

As such, “employers should also evaluate and monitor whether their assessments have an adverse impact on any protected class,” she says, “including race, gender and individuals with disabilities.”

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