Category Archives: discrimination

Fighting Unemployment Discrimination via Facebook

Facebook has become a social-recruiting player yet again, this time in the form of one software provider’s campaign to end discrimination against the unemployed, as this story details.

The provider, Smart Recruiters, calls it the “Unemployed, Please Apply” campaign, accessible through its Unemployment Movement Facebook page. The title is a take on “Unemployed Need Not Apply,” a message that has been explicitly stated in job advertisements and is now under investigation by the U.S. Department of Labor, the Equal Employment Opportunity Commission and the National Employment Law Project.

The campaign is asking that businesses visit the page and pledge their commitment to interview at least one unemployed candidate for every job opening. SmartRecruiters, a free-recruiting-software provider headquartered in San Francisco, says this problem is very real. According to a recent survey it conducted, 82 percent of recruiters, hiring managers and human resource professionals confirm that “discrimination against the unemployed is a reality.”

The survey also reveals 55 percent who say they have “personally experienced resistance when presenting a qualified, yet unemployed, candidate” and 53 percent who see unemployed job seekers as “unemployed for a reason” or “probably not qualified.”

Further proof of this discrimination can be found in this July 19 Leader Board blog post by Andrew McIlvaine, based on an analysis of job ads by NELP.  

“There is an unwritten rule that unemployed candidates just aren’t qualified,” says SmartRecruiters CEO Jerome Ternynck. “Not only is this bad business; it’s also unfair and needs to stop … .”

Last month, I blogged about Facebook’s announcement of a joint project with the U.S. Department of Labor called the “Social Jobs Partnership,” a Facebook page where job seekers could find a plethora of job openings and information from a host of organizations committed to putting America back to work.

“I am very disturbed when I hear that employers don’t want to even look at resumes of people who have been out of work for six minths or just [are] unemployed,” DOL Secretary Hilda Solis said at the partnership’s announcement. “It’s as though people have created this problem themselves, and that’s just not true.”

What do you think? You think you might take this new pledge plunge?

3M Pays $3M in Age-Discrimination Case

Global technology giant 3M has agreed to pay $3 million in relief to some 290 former employees who the U.S. Equal Employment Opportunity Commission claims were illegally laid off due to their ages.

The EEOC lawsuit charges that the company discriminated against the workers, all of them over the age of 45, during a series of reductions-in-force from July 1, 2003 through Dec. 31, 2006 aimed at saving money. (Here’s the EEOC’s release about the case.)

The agency also claims older employees were denied leadership training and laid off to make way for younger leaders. It’s investigation found an employee email describing then-CEO Jim McNerney’s “vision for leadership development” as “we should be developing 30-year-olds with general manager potential” and “he wants us to tap into the youth as participants in the ldeadership development.”

In addition to the payments to those employees, 3M has also agreed to implement a review process for termination decisions and training on how to prevent age bias.

In a statement published in the Wall Street Journal (subscription required), the company said the settlement wasn’t an admission of guilt or liability. “3M’s human resource practices are fair, comply with federal and state laws, and are widely recognized as ‘best in class,’ ” the company told the paper, adding that it “needs and values contributions from all of its employees.”

Pretty hefty price to pay for something it didn’t do.

A Different Way of Looking at Corporate Misconduct

Not sure how helpful this is, but this recently published guide to lessons learned from cases of corporate misconduct is so uniquely packaged it caught my eye.

Called The Unlucky 13: Lessons Learned from Companies Caught in the Act, the small and free downloadable publication offers tiny little synopses of small and large cases — some I’d heard of — from the likes of Xerox, Ford, Siemens, Tyco, Hewlett-Packard, Johnson & Johnson, Mattel, Google, Verizon and more.

Most of the write-ups start with the monetary damage involved, followed by one or two graphs about what happened, followed by one or two bullet-pointed corporate “takeaways.”

Like the $50-to-$100-million case from November 2010 involving a former Ford employee who pleaded guilty to stealing trade secrets by downloading design documents unrelated to his job onto an external hard drive. Reminders there: Don’t ever give employees access to information unrelated to their jobs and eliminate their abilities to connect any sort of media-storage devices to the network.

Or the $20 million disability discrimination settlement by Verizon, underscoring the need for employers to have attendance policies in place that take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.

My personal favorite: a smaller case involving a $22,500 discrimination settlement paid by Happy Days Children’s Wear Inc. for — of all things, considering the business — firing a female employee because she was pregnant.

If you really want the full scoop in any of these cases, you’ll have to do your own digging. The guide is hardly comprehensive. But you might find some of the reminders helpful.

Perhaps the best advice around corporate misconduct comes from HREOnlinecolumnist Susan Meisinger in her column this week: If you, as an HR leader, detect unethical practices or behavior that set a cultural tone you — hard as you try — can’t change … “Go. And go as quickly as you can.”

Deadline Approaching for Disability Hiring Help

Wanted to alert you all to a deadline fast approaching to get applications in for funding designed to encourage disability hiring.

The deadline came to my attention through this piece on the Society for Human Resource Management site (subscription required) about the U.S. Department of Labor making $1.6 million available in a second round of funding aimed at increasing employment opportunities for people with disabilities.

The money is being made available through the Add Us In program, launched in 2010 by the DOL’s Office of Disability Employment Policy. The deadline to get applications in is Sept. 2.

Labor Secretary Hilda L. Solis, in announcing this second round of funding at the National Disability Forum on Aug. 4, said her department “is committed to ensuring that every American who wants a job can find one, including people with disabilities.”

Employers’ failures to hire disabled workers was only one of the concerns raised in a recent story by Jared Shelly on HREOnline™ about the skyrocketing number of disability discrimination claims filed in 2010.

One reason for the increase, according to experts quoted in his story, was the expanded definition of “disabled” under the revised Americans with Disabilities Act. But also onerous is the hesitation on the part of employers to hire people with disabilities because of the perceived difficulties in ensuring the required accommodations are provided.

Sollis stressed during her announcement, however, that “if we [simply] make modest accommodations, we can see [disabled workers’] talent[s] unleashed.”

Abercrombie Might Have to Get Used to Head Scarves

Abercrombie & Fitch, doing business as Abercrombie Kids, was found in a July 13 ruling to have committed religious discrimination for refusing to hire a Muslim teen in 2008 because she was wearing a hijab head scarf when she interviewed at its store in Woodland Hills Mall, Tulsa, Okla.

A federal court in Tulsa granted summary judgment to the Equal Employment Opportunity Commission in the ruling, charging that Samantha Elauf was turned down for a sales position in June of 2008 because she wore the head covering in keeping with her religious beliefs.

Abercrombie had argued in its rebuttal that the seriousness of Elauf’s religious belief was questionable. The inquiry, the court stated in its ruling, is whether “the belief is held as a matter of conscience or instead animated by motives of deception and fraud.” The court found there was no evidence of the latter.

As EEOC attorney Jeff A. Lee said in a Society for Human Resource Management account of the case, “The court has sent a clear message to employers: that the denial of a request for a reasonable accommodation of an employee’s or applicant’s religious beliefs must be based on demonstrated facts, not guesswork or speculation.”

This isn’t an isolated head-scarf case brought against the retail giant. In a religious-discrimination complaint filed in federal court in San Francisco on June 27, 2011, the EEOC alleged the retailer violated Title VII when it fired a 19-year-old Muslim woman for wearing a hijab in her sales job in a San Mateo, Calif., Abercrombie store.

Nor is this the first time the chain’s “look policy” took a beating. An earlier case resulted in a $40 million settlement to a class including African-Americans, Asian-Americans and Latinos who were denied employment.

Perhaps it’s time to add scarves and hats to the Abercrombie “look”?

A New ADA Category?

Who knows if it would fly here — after all the United States does now have a much less rigid definition of disability — but in Sweden, a restaurant dishwasher qualified for disability based on his love of heavy-metal music.

According to The Local, an English-language Swedish newspaper, Roger Tullgren, 42, from southern Sweden, will receive state benefits to supplement his income since his heavy-metal addiction has dominated so much of his life, causing him to lose previous jobs.

” ‘I have been trying for ten years to get this classified as a handicap,’ ” Tullgren told The Local. ” ‘I spoke to three psychologists and they finally agreed that I needed this to avoid being discriminated against.’ ” 

 According to the article, Tullgren skips work so he can attend rock concerts — about 300 a year. After losing his previous job, he relied on welfare, but a session with an occupational psychologist led to an assessment in which “his heavy metal lifestyle was classified as a disability.”

 “The manager at his new workplace allows him to go to concerts as long as he makes up for lost time at a later point. He is also allowed to dress as he likes and listen to heavy metal while washing up.”

Well, back to reality, maybe this wouldn’t qualify as a U.S. disability, but I wouldn’t bet any money that it might not pass muster as a religion: An employee could seek accommodation for services in accordance with the Book of Black Sabbath — or whatever.

Speaking Your Mind

Are HR leaders allowed to have the courage of their convictions? Even when their beliefs are not politically correct?

That’s the situation Crystal Dixon has placed herself in ever since she wrote a letter to the editor of the Toledo Free Press stating that being gay or lesbian is a choice and that they should not be afforded the same protections as minorities.

That 2008 letter led to Dixon being fired from the University of Toledo, where she served as interim associate vice president for human resources. We wrote about the story when it happened, here.

Dixon is in the news again because she was recently hired to oversee a newly merged Jackson, Ohio, city and county HR department. Gay rights activists seeking her firing faced off with Christian organizations, which supported the choice, and ultimately the city and county leaders stood behind their decision to hire Dixon.

In the HREOnline™ story, we included a quote from Brian Rooney, an attorney representing Dixon, who said she has hired gays and lesbians in the past.

“She has a proven track record, good performance evaluations and she’s hired homosexuals in the past,” he said. “It’s wrong to say she’s not entitled to a private citizen’s First Amendment rights because of her position.”

Of course, we all know employees check their First Amendment rights at the door. But this is a real dilemma for companies who need to balance the company’s brand against the right of individual privacy and the freedom to hold opinions that are distasteful to large groups of people.

We address the issue slightly in this recent story that deals with ways companies should deal with employees whose off-hours activities can impinge on the company.

But there seems to be a difference — to me, at least — between teachers who strip in their spare time and individuals who hold unpopular opinions.

Freedom of speech is all about guaranteeing people the right to hold unpopular opinions — but it doesn’t guarantee them the right to have a job. I think it’s a no-win situation, no matter how you look at it.


With Bated Breath …

Employment attorneys don’t expect the U.S. Supreme Court to approve (they hope!) the 1.5 million member class-action certification for the lawsuit against Wal-Mart (which was argued recently), but they fear the court will issue an opinion that will not be a complete rejection of the claim.

“If it’s a complete revocation, it’s ‘no harm, no foul.’ If it’s somewhere in between, it could have a big effect on Title VII and for large employers, it’s going to change how they operate,” said David Sherwyn, associate professor of law at Cornell University School of Hotel Administration, who moderated a session on “Hot Topics in Labor and Employment Law” at the HR in Hospitality Conference today.

If a decentralized pay and promotion program, such as was in effect at Wal-Mart, can be cited in a class-action suit, then what can’t? he asked.

Leslie Silverman, a partner with Proskauer in Washington, who used to serve on the Equal Employment Opportunity Commission, said “there’s just not a lot of ‘there’ there” in the lawsuit, noting some stores — and even some entire states — were not mentioned in charges filed by the plaintiffs.

She also noted it was impossible to opt-out of the lawsuit; all women were required participants.

“If this is the trend of how little it takes to get where we are, it’s a disaster [for companies],” Silverman said.

The decision is expected to be issued in June.

Two More Years? Or Six More?

On the same day President Obama began his re-election campaign, Shawn McBurney, senior vice president of govermental affairs at the American Hotel and Lodging Association, spoke of the way the hospitality industry was being targeted by his administration.

“For those of you who feel persecuted, you should,” he said, noting that the Department of Labor, Occupational Safety and Health Administration and National Labor Relations Board, to name just a few, are looking hard to find violations of workers’ rights.

The DOL, he said, believes the hospitality industry “is evil and they are targeting the industry.”

The comments were part of a session on public policy and HR strategy at the 5th Annual HR in Hospitality® Conference, which drew more than 275 attendees to the Marriott Wardman Park in Washington. The event runs April 4 to 6.

And even when there is not ill intent, off-the-cuff comments by politicians can be harmful, said Geoff Freeman, executive vice president of public affairs and strategy development at the U.S. Travel Association. He mentioned Obama’s infamous-in-the-industry remarks about discouraging travelers from going to Las Vegas, Vice President Joe Biden’s remarks about not traveling by air when fears of swine flu were rampant, and a U.S. General Services Administration notice to the effect that any trips not taken are good for the environment.

That last statement, Freeman said, was made without any study being done or being grounded in any data. In fact, he said, the truth might be just the opposite: Employees who are on business trips or at conferences may use less energy because they are grounded in one spot and are not driving to work or taking subways every day.

Regardless of whether Obama wins re-election or not, however, the deficit may drive whoever is in power to reconsider the ability of companies to write off healthcare and retirement costs, said Mike Aitken, director of governmental affairs at the Society for Human Resource Management. Those two tax write-offs offer the most potential revenue to the government, ranking even above the home-mortgage deduction.

Companies should also be wary, Aitken said, of actions emanating from the Equal Employment Opportunity Commission, which has been examining “barriers to employment,” including age, credit reports, criminal-background checks and even unemployment. Credit and criminal checks, he said, are areas the EEOC is “particularly interested in.”

Immigration is another area where the government believes “we are the bad guys,” Aitken said. The Department of Homeland Security collected $1 million in fines in 2009 from-employer violations. In 2010, he said, the total fines collected were $7 million. And DHS is continuing to increase its enforcement efforts.

A Look at 2010 Employment-Law Cases

Probably way more than you ever wanted to know about employment-based lawsuits that were decided last year is in the 676-page Seyfarth Shaw 2011 Annual Workplace Class Action Litigation Report (PDF) that was just released.

Among the tidbits:

* The top 10 private-plaintiff class-action settlements totaled more than $1.16 billion (up from $1.05 billion the year before) — and included four race-bias suits, three age-discrimination cases, two gender-bias and one disability-related class action.

* The top two: $175 million paid by Novartis (a class-action bias suit filed by 5,600 current and former female sales reps) and $70 million paid to TV writers over age 40 by TV networks, studios and talent agencies.

* The top private-plaintiff wage-and-hour class-action settlement was $86 million paid by Wal-Mart Stores — which also ranked fourth on the list, paying another $40 million.

Must be getting harder to keep those prices low when they’re paying those kinds of legal costs … and this doesn’t even include the Dukes vs. Wal-Mart employment-discrimination class-action case that was accepted by the U.S. Supreme Court. A ruling on that will probably come in the spring.

The report notes the “economic challenges and low hiring rates” fueled more lawsuits. Should the economy stay stagnant, employers can probably expect to see more litigation.

And they may see more from federal agencies as well.

Even though the Republicans (who generally are more business-friendly than the Democrats) gained many seats in the U.S. House, that probably won’t have a great deal of impact on the Obama administration’s efforts to ramp up enforcement through the Equal Employment Opportunity Commission and the Department of Labor.

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