Category Archives: discrimination

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.

Want your employment-law verdicts and settlements on a more continuous basis? Consider subscribing to Jury Verdict Research, it’s one of our sister publications from LRP.

Boomers, Benefits and Bias

As baby boomers begin to turn 65 on Jan. 1, seven in 10 (71 percent) Americans say they should be encouraged to keep working past normal retirement age, according to a national multi-generational survey (PDF) conducted by the Marist College Institute for Public Opinion, which was commissioned by Home Instead Senior Care. 

Broken down by generation, 75 percent of baby boomers, 79 percent of the Greatest Generation, 65 percent of Gen X and 62 percent of millennias believe baby boomers should stay in the workforce past retirement age.

The boomers, born between Jan. 1, 1946 and Dec. 31, 1964, number 77 million. Their biggest concerns about life after 65 are finances (48 percent) and health (34 percent).

Almost assuredly, the two are intertwined.

According to the Employee Benefit Research Institute, 65-year-old men will need anywhere from $65,000 to $109,000 in savings to cover health-insurance premiums and out-of-pocket expenses in retirement — that’s if they want a 50-50 chance  of having enough money.

To have a 90 percent chance of having enough money for such expenses, they will need to save between $124,000 and $211,000.

And women, because they tend to live longer, will need even more.

For many of those older workers, this recession has thrown them a curveball. Some many have lost their jobs and found it extremely difficult to find new ones.

Lengthy stays on unemployment seem to be the norm for older workers, possibly because of intentional or unintentional age discrimination, but also because such workers are generally at higher levels and are higher paid.

As HREOnlineTM columnist and Wharton professor Peter Cappelli writes in a recent column, hiring managers and HR leaders would be more willing to hire older workers if only they thought of them as “experienced” instead of “old.” Cappelli’s latest book, with Bill Novelli, former CEO of AARP, is Managing the Older Worker.

Another aspect of boomers working longer is the subject of an upcoming story in Human Resource Executive® magazine — dealing with conflicts between older employees and younger supervisors. Having the right programs and policies in place can help stem that tide. But you’ll have to wait until late January to read it on HREOnline.

NLRB Moving Closer to Letting Unions Access Your Private Property

Spoke to an attorney today who had some interesting things to say about what the near future holds for unions wanting to gain access to private property. Make that alarming things if you’re an employer. Make that especially interesting/alarming if you happen to own or operate a medical facility.

Steven M. Swirsky, an attorney in the labor and employment practice of EpsteinBeckerGreen, took the time to talk to me about an e-mail alert I got from his firm saying the “new Obama Labor Relations Board has signaled that it will likely be granting union organizers the right to enter a healthcare facility’s premise to conduct union-organizing activity.”

That alert was based on this NLRB call for amicus briefs to help the board rethink how it rules on employers’ rights to limit union access to their private properties. For an even clearer understanding, here’s the NLRB’s press release about its call. The deadline for submissions, by the way, has just been pushed to Jan. 7.

The Supreme Court has said in the past that employers have the right to limit access to their properties so long as they don’t discriminate. The NLRB wants to rethink the legal definition of “discriminate.”

The problem is, says Swirsky, “you have to think about a hospital or rehab or nursing-care facility like you would a shopping mall or department store. There are areas, like the lobby or parking strip or front entrance, that are always open to the public. So now, if a hospital allows Girl Scouts to come in, will they then have the right to say they don’t want the Teamsters or the Teamsters don’t have the right to picket … in their lobby?” Based on every other ruling by the NLRB since President Obama has taken office, he says, this will likely not come down on the side of emplolyers. Swirsky thinks this’ll probably be decided before the summer.

The issue is complicated and involves a lot of legal cases and tangents, so rather than try to interpret, here are some links: one to an alert by an editor with HealthLeaders Media, another to an alert by Swirsky’s firm on what all employers should be doing to prepare for this,  another to an alert by employment law firm Littler, another to a link-filled legal rundown by Labor Relations Today of everything under consideration and, finally, to a whole rundown of “The Next Phase of the Employee Free Choice Act: Union Organizer Access to the Business” — or “son of EFCA,” or “grandson of EFCA,” or whatever they’re calling it now — by EFCA info.org.

According to Swirsky, this call for amicus briefs “gets at the heart of achieving EFCA without EFCA” and even includes an intent by the NLRB to re-examine its “registered guard” statute, which may lead to unions having access to employees’ e-mail as well.

So what are you supposed to do? Says Swirsky, “Look very carefully at your policies and how they’re enforced” to make sure you’re not discriminating against unions. Are employees allowed to distribute fund-raising solicitations for Johnny’s soccer team? Then you’ll probably have to grant unions the same physical and e-mail access. Do you enforce your limited-access rules only when unions want to organize? “Then the board will look at this and see discrimination,” he says.

How people learn about these rules, how they sign off on these rules, “how thoroughly managers are trained about these rules and why they exist, and what the consequences are if they don’t follow them … you’ll need to think of everything,” Swirsky says.

Disabled Workers Lose Advocate

The New York Times is reporting on the death of Paul S. Miller, a long-time advocate for disabled workers who was also born with achondroplasia, or dwarfism.

The paper reported the cause of death was cancer.

Miller was a graduate of the University of Pennsylvania and Harvard Law School, but was rejected by law firms more than 40 times, according to the piece, because of his physical stature:

One time, he said, he was told the firm feared that clients would see his hiring as a “circus freak show.”

Despite those setbacks, Miller was hired by a law firm, and eventually became a professor at the University of Washington in Seattle, where he was director of the university’s disabilities studies program. According to the NYT:

For 10 years before joining the faculty in 2004, he was a commissioner of the federal Equal Employment Opportunity Commission. At the same time, he was the Clinton administration’s liaison to disability organizations, a role he reprised in the first nine months of the Obama presidency.

We here at the Leader Board salute Miller and his efforts to lead more disabled workers to their rightful places in the working world.

Ruling Against Google Will Impact HR

The California Supreme Court ruled today on a pretty big age-discrimination case against Google that folks in the employment-law sector think could have significant repercussions in the HR profession.

The decision in the case Reid vs. Google basically rules on two things: one, whether evidentiary objections are waived on appeal if a trial court does not rule on them (the court says they are not) and two, whether California should follow the federal “stray remarks” doctrine, which basically says statements made by employees who are not involved in the employment decision a discrimination suit is based on cannot be considered in support of a discrimination claim. (The court says that doctrine is unnecessary and should not be followed.)

I won’t spell all the details of the case out here. They’re in the ruling linked above. What I will share are concerns from two employment attorneys who see some real precedent-setting effects on employers because of this, and not just employers in California.

Eric Steinert, an employment partner at Seyfarth Shaw in San Francisco, says that, “as a practical result [of this ruling], employers will win fewer age cases on summary judgment. More cases will go to trial and presumably more evidence will come in at trial regarding general workplace comments not made by direct supervisors or decision makers.”

Anthony Oncidi, who heads the Labor & Employment Law Group in Proskauer Rose’s Los Angeles office, seconds that and adds that the stray-remarks decision “points to the need for HR to be more comprehensive in doing complete investigations to determine whether or not there was discrimination” after a complaint is filed.

It will no longer be sufficient, he says, “just to run the allegation down with a supervisor and not ask any further questions. HR will really need to ‘tease’ it out of the [complainant] now to get him or her to say there is or is not anyone else who did or did not make [similar discriminatory] comments.”

Oncidi also says it will now be “very important to bear this ruling in mind” when you’re conducting anti-discrimination training and do everything you can to train “as many people as possible about what they can and cannot say” about a co-worker or employee.

He also thinks more HR leaders will be putting arbitration agreements in place now, because the ruling makes it harder to get summary judgment granted before trial — something many employers relied on up to now as a way to dismiss what they considered to be frivolous lawsuits.

And don’t sit back on the fact that it’s only the California (not the U.S.) Supreme Court. Oncidi says this is the most broad-based, lengthy and definitive ruling in this legal area to date, “reviewing all the existing stray-remark cases throughout the country.”

“I would not be surprised,” he says, “if other courts look to this as precedent.”