Category Archives: discrimination

EEOC: HR Leader Wrongly Fired

The American Dental Association illegally fired both its CHRO and chief legal counsel after they alerted the association board about employment discrimination occurring at the Chicago-based trade group, says the Equal Employment Opportunity Commission.

The agency on Friday announced a $1.95 million settlement with the association to resolve charges that the group illegally retaliated against the the chief legal counsel, Tamra Kempf, and the association’s  chief HR official, whom it did not name.

The two had raised concerns about violation of laws prohibiting discrimination on the basis of age and disability, the EEOC said, without providing details.

Beyond the discrimination, the retaliation was of great concern, said Julianne Bowman, director of the EEOC’s Chicago District office.

“The position of the EEOC is that human resource  professionals and in-house lawyers who advise their employers to abide by anti-discrimination laws are engaged in protected activities, and any retaliation against them for doing so is illegal,” Bowman said in the EEOC statement.

The dental association contended the two former employees’ complaints are “without merit,”but said it settled to avoid the costs and risks of a trial.

In addition to the fines, which will go to the former employees, the association agreed to take “proactive measures” to prevent future discrimination and retaliation. It also will provide training in discrimination law for employees in the association’s Chicago headquarters,the EEOC said.

Limiting Subpoena Power

As you might have heard, the Supreme Court issued a ruling this week in the case of McLane Co. Inc. v. Equal Employment Opportunity Commission.

Monday’s ruling addressed the standard of review for a district court in determining whether to enforce or quash an EEOC-issued subpoena, with the Court reversing the Ninth Circuit’s judgment and holding that federal appellate courts must review a district court’s decision whether to enforce an EEOC subpoena for abuse of discretion, and not de novo.

The case centered on a former McLane Co. employee’s claim that the Temple, Texas-based supply chain services provider discriminated against her on the basis of her gender.

In 2007, Damiana Ochoa took three months of maternity leave from her job at McLane, which requires new employees and workers returning from medical leave to undergo a physical evaluation if their job is physically demanding—which Ochoa’s was, according to court documents. Ochoa attempted the evaluation on three separate occasions, and failed to pass each time. She was subsequently fired, which led to her filing a charge of gender discrimination with the EEOC.

As part of its investigation, the EEOC issued subpoenas to McLane, requesting the names, Social Security numbers and contact information for other employees that had been required to take the same evaluation. The EEOC filed actions to enforce the subpoenas after McLane refused to comply with that request.

Finding that the aforementioned information was not relevant to the charges, a federal district court refused to enforce the subpoenas. The Ninth Circuit reversed that decision, determining that the district court had erred in characterizing the information as irrelevant.

The Supreme Court’s decision to overturn that Ninth Circuit ruling offers “a good reminder that there are limits to the EEOC’s subpoena power,” says Melissa Raphan, a Minneapolis-based partner at Dorsey & Whitney.

“The practical effect of this decision for employers is twofold,” says Raphan, who is also chair of the firm’s labor and employment group. “First, it is a good reminder that the EEOC does not enjoy unfettered discretion to obtain information about other current and former employees. Second, the battleground to push back on the EEOC’s subpoena is in the district court.”

The EEOC’s subpoena power “does not allow the agency to bypass the burden of showing that the material is relevant, and, even if relevant, the employer can still show that the request is unduly burdensome.”

Ultimately, the decision’s impact on employers figures to be “somewhat limited in scope,” says John Alan Doran, a Scottsdale, Ariz.-based partner at Sherman & Howard.

Noting that only the Ninth Circuit took the position that it could review these trial court decisions “from scratch,” Doran adds that “every other jurisdiction has held that a trial court’s decision to quash or modify the scope of an EEOC opinion is subject to searching review by the appellate courts.”

As such, the decision directly affects only those employers doing business within the Ninth Circuit, continues Doran.

That said, “there is useful language for all courts to consider with respect to the scope of the EEOC’s subpoena power that employers will likely use in future run-ins with the EEOC throughout the country.”

The case is “largely about whose ox is getting gored, so it is hard to describe the decision as pro- or anti-employer,” says Doran. “In cases where an employer fails to convince a trial court to modify or quash an EEOC subpoena, this decision makes it that much harder to reverse the trial court’s decision on appeal. But where an employer successfully convinces a trial court to modify or quash a subpoena, its likelihood of success on appeal of that issue is considerably better.”

Headscarf Ban OK’d By Euro Court

With most of the East Coast layered under a thick coat of snow and sleet today, we bring you news from across the pond: the BBC is reporting Europe’s high court has ruled that bans on wearing religious headscarves in the workplace are not necessarily a form of discrimination.

According to the report, workplace bans on the wearing of “any political, philosophical or religious sign” such as the Muslim practice of hijab need not constitute direct discrimination, European Court of Justice has ruled.

But the ban must be based on internal company rules requiring all employees to “dress neutrally” and cannot be based on the wishes of a customer, the court ruled.

This is the court’s first ruling on the wearing of headscarves at work, and it was prompted by the case of a receptionist fired for wearing a headscarf to work at a Belgium-based security firm.

Rights group Amnesty International said Tuesday’s ECJ rulings were “disappointing” and “opened a backdoor to . . . prejudice.”

Meanwhile, the Conference of Rabbis expressed worry about the ruling: “With the rise of racially motivated incidents and today’s decision, Europe is sending a clear message; its faith communities are no longer welcome.”

While the court’s ruling likely comes as a blow to religious freedom advocates as well as working Muslim women in Europe, it is unlikely to alter any American policy, which largely aligns with the ECJ ruling regarding “neutral” rules in the workplace.

This fact sheet from the American Civil Liberties Union, meanwhile, highlights some of the challenges hijab-practicing Muslim women face in the modern American workplace.

Lessons from the Sterling Scandal

With the salacious details of the Sterling Jewelers pay-discrimination lawsuit still sickeningly fresh in our minds, many of us have been asking how such behavior — as alleged by some of the 69,000 former employees involved in the suit– could happen at such a large company.

From security guards with overactive wands to district managers with overheated libidos, the sexual-misconduct accusations truly run the gamut of the perverse, according to court filings.

“But don’t they have programs in place to prevent this sort of behavior?” we wonder.

For its part, the company has denied any wrongdoing. On the matter of pay and promotion discrimination, the accusations are “not substantiated by the facts,” Signet Jewelers Limited, the parent of Sterling, said in a statement. In addition, Sterling said it found the claims of sexual misconduct to be without merit.

But today’s New York Times takes a look at some of the programs that may have unwittingly contributed to the harassing behavior being alleged by the suit plaintiffs:

…[L]awyers and academics who specialize in gender discrimination say the documents — more than 1,300 pages in total — provide a rare insight into how a company’s policies work in real life. Whether it is a not-so-confidential tip line or an in-house court, they say, some widely used corporate procedures can mask problems that women often face in the workplace. Here is a look at what the documents revealed.

The Times article looks at three employee-centric programs in particular: the company’s employee hotline, its arbitration policy and its “tap on the shoulder” promotion policy.

The entire article is well worth a read, if only to remind HR leaders that, just because you have a program in place to remedy a problem, that doesn’t mean it’s necessarily working. In fact, it could actually be covering up more issues than it is resolving, as Sterling is now learning the hard way.

 

 

 

 

 

Uber’s Toxic Workplace Culture

A company director shouting a homophobic slur at a subordinate during a meeting. A manager groping female co-workers’ breasts during a company retreat. A manager threatening to beat an underperforming employee’s head in with a baseball bat. All of these incidents — and more — are described in a fascinating front-page story on Uber’s workplace culture by New York Times reporter Mike Isaac, who based his story on interviews with 30 current and former employees of the ride-hailing service and reviews of internal emails, chat logs and tape-recorded meetings.

As you’ve probably heard, Uber found itself thrust into the spotlight after former employee Susan Fowler published a blog post last Sunday about her experiences working for the company. Fowler, an engineer, said she and other women were sexually harassed and discriminated against by her manager and little to nothing was done about it, even when she reported it to HR, because the manager was a “high performer.” (Fowler’s descriptions of her interactions with Uber’s HR department are particularly damning: For example, when she noted to an HR representative how few women were in her engineering department, the rep allegedly told her that she shouldn’t be surprised by the ratio of women in engineering because people of certain genders and ethnic backgrounds were better suited for some jobs than others.)

Fowler and other current and former Uber employees told Isaac that HR would excuse poor behavior by their bosses because the managers in question were top performers who benefited the health of the company. The company’s culture — set by Uber CEO and co-founder Travis Kalanick — emphasizes getting ahead at all costs, the sources told Isaac, even if it means undermining co-workers and supervisors. One group in particular that was shielded from accountability was “the A-Team,” the sources said, a group of executives close to Kalanick.

Since Fowler went public with her accusations, Kalanick has brought in former Attorney General Eric Holder and board member Arianna Huffington to conduct an independent investigation of the issues Fowler raised. He said the company would release a full diversity report shortly and that 15.1 percent of the engineering, product management and scientist roles at Uber were held by women and that that number “has not changed substantively in the last year.”

In a statement to the Times, Uber CHRO Liane Hornsey said “We are totally committed to healing wounds of the past and building a better workplace culture for everyone.”

Hornsey, who joined Uber in January (its former HR chief, Rene Atwood, left in July to join Twitter) and who will assist with the investigation, spent nine years as Google’s vice president of global people operations. Hopefully she’ll be able to put her experience and expertise to good use at a company that appears to sorely need it.

Discriminatory Dress Codes in the U.K.

Over on the other side of the Atlantic, a storm is brewing over the unequal treatment of women in the workplace. The United Kingdom has a law in place — the Equality Act of 2010 –intended to prevent such treatment. However, that apparently hasn’t stopped U.K. employers from ordering their female employees to wear high heels, dye their hair blonde and dress themselves in revealing outfits. That’s according to a recent report by the British Parliament, undertaken in the wake of a petition signed by more than 150,000 people calling for a law that would ban organizations from requiring women to wear heels at work. The parliamentary investigators received complaints from hundreds of U.K. women who said they were subject to sexist dress codes by their employers.

As reported in yesterday’s New York Times, Nicola Thorp started the petition after she was sent home without pay from her job as a temporary receptionist for refusing to comply with an order that she get herself a pair of shoes with heels that were at least two inches high. Turns out that Portico, the receptionist-services firm that formerly employed Thorp, had quite an extensive employee dress code that covered just about every aspect of a woman’s appearance, including hair (“regularly maintained hair colour — if individual colours hair — with no visible roots”), makeup (“makeup worn at all times and regularly reapplied … “) and footwear (“Heel height normally a minimum of 2 inches and maximum of 4 inches, unless otherwise agreed by the company”). The code even suggested the palette of nail polishes that was acceptable. Portico said it changed its policy after Thorp raised the issue, the Times reports.

Thorp told the Times that part of the reason she started her protest was concern for the health effects of wearing high heels throughout the workday: “The company expected me to do a nine-hour shift on my feet escorting clients to meeting rooms. I told them that I just wouldn’t be able to do that in heels.”

Thorp is hardly alone in her concern about the physical effects from being forced to wear high heels all day: “We heard from hundreds of women who told us about the pain and long-term damage caused by the wearing of high heels for long periods in the workplace, as well as from women who had been required to dye their hair blonde, to wear revealing outfits and to constantly reapply makeup,” the report said. It cited longstanding medical evidence showing that women who wear high heels for long periods of time can suffer physical damage, including stress fractures.

U.K. lawmakers expressed concern that the Equality Act has not been effective in preventing employers from applying sexist dress codes. The report calls for “urgent action” by the government, including increased financial penalties for employers that break the law. However, Thorp said she wasn’t satisfied, telling The Guardian she was “absolutely chuffed to bits” that the report’s recommendations didn’t go further.

“The petition took off and I was very pleased to see the debate over heels grow to one about clothes, and continue moving on to other aspects of how women are treated in a work environment,” she told the paper. “We now need to see the government take these recommendations on board. The law should not just be changed but enforced.”

Under current U.K. law, instructing women to wear high heels at work “isn’t necessarily sex discrimination, ” Julia Wilson, an employment lawyer at Baker McKenzie, told British newspaper The Independent. “If [members of Parliament] want clear rules and fines for companies in relation to dress code practices, that is likely to require a change in the law.”

EEOC Releases Stats on LGBT Bias

The U.S. Equal Employment Opportunity Commission received 91,503 charges of workplace discrimination in in fiscal year 2016 — the second year in a row that the number of charges has increased, the agency reports.  The EEOC says it resolved 97,443 charges of discrimination and secured more than $482 million for victims of discrimination through voluntary resolutions and litigation last year.

That’s according to the EEOC’s just-released annual summary of its enforcement and litigation data for the previous fiscal year, which this year — for the first time ever — includes detailed information about workplace discrimination charges filed by LGBT employees. The agency reports that it resolved 1,650  charges and recovered $4.4 million for LGBT individuals who filed sex discrimination charges with it during fiscal year 2016.  The number of such charges filed by members of the LGBT community has steadily risen since the EEOC began collecting this information in 2013, with 4,000 charges filed between then and 2016.

The agency has been a strong advocate of workplace rights for LGBT employees, arguing that the protections afforded workers under Title VII of the Civil Rights Act extend to sexual orientation. In 2015, it ruled in favor of David Baldwin, a former Federal Aviation Administration employee who charged the FAA with discriminating against him because he is gay. In that case, the EEOC concluded that workplace discrimination on the basis of sexual orientation  is indeed “sex-based” discrimination and therefore falls under the protection of Title VII.

It’s filed supporting briefs in a number of federal lawsuits by members of the LGBT community against their employers, including that of Kimberly Hively. Hively, a former adjunct professor at Ivy Tech Community College in Indiana, claims the college refused to allow her to interview for a full-time position or extend her contract because she is a lesbian. In late November the 7th U.S. Circuit Court of Appeals heard arguments in her case and is expected to issue a ruling later this year. According to reports, the 7th Circuit judges expressed sympathy toward the arguments put forth by Hively’s legal team. Should the court rule in her favor, it would be the first U.S. appellate court to expand Title VII’s protections to LGBT individuals.

Mental Health Conditions and the ADA

Mental healthIn many cases, making reasonable accommodations for employees’ physical conditions should seem straightforward enough.

Provide a hearing-impaired worker with the necessary phone equipment, for example. Allow a blind employee to bring his or her service dog to work. Lower the height of a wheelchair user’s desktop.

Addressing the needs of individuals with mental health conditions—which can be difficult to understand or even recognize—is a bit trickier for employers. Recent history gives us examples (like this one) of how organizations can run afoul of the American with Disabilities Act when dealing with mental health issues in the workplace.

This week, the U.S. Equal Employment Opportunity Commission issued a resource document it hopes will explain workplace protections and appropriate accommodations for employees and job applicants with mental health conditions under the ADA.

Judging by recent EEOC data, many employers could use some guidance in this area.

During fiscal year 2016, the organization resolved nearly 5,000 charges of discrimination based on mental health conditions, and obtained roughly $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations. And, EEOC charge data show that claims of discrimination based on mental health conditions are on the way up.

Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights is geared toward the individual employee, but can also be instructive for businesses. For instance, the document offers examples of possible accommodations to help individuals with mental health conditions perform their jobs, such as altering break and work schedules (scheduling work around therapy appointments, for example), providing quiet office space or devices that create a quiet work environment, making changes in supervisory methods and granting permission to work from home.

It also outlines scenarios in which employees or job applicants are allowed to keep a mental health condition private, and details situations that permit employers to ask medical questions, including queries surrounding mental health.

“Many people with common mental health conditions have important protections under the ADA,” said EEOC Chair Jenny R. Yang, in a statement. “Employers, job applicants and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.”

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 Kessler 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.