Category Archives: discrimination

The EEOC Enforcement Agenda

Earlier this week, the Equal Employment Opportunity Commission issued its updated enforcement guidance on national origin discrimination.

(The EEOC also issued two resource documents to accompany the guidance: a Q & A publication on the guidance document and a small business fact sheet designed to illustrate the guidance’s chief points in plain language, according to the organization.)

The new guidance defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.”

The documents also address Title VII’s prohibition on national origin discrimination as applied to a broad range of employment situations and highlight practices for employers to prevent discrimination, as well as discussing legal developments since 2002, when the EEOC issued the national origin discrimination compliance manual section that these new guidelines are intended to replace.

“EEOC is dedicated to advancing opportunity for all workers and ensuring freedom from discrimination based on ethnicity or country of origin,” says EEOC Chair Jenny R. Yang, in a statement.

“This guidance addresses important legal developments over the past 14 years on issues ranging from human trafficking to workplace harassment. The examples and promising practices included in the guidance will promote compliance with federal anti-discrimination laws and help employers and employees better understand their legal rights and responsibilities.”

This announcement comes just weeks after the EEOC unveiled its Strategic Enforcement Plan for fiscal years 2017 through 2021. One pillar of this plan is the agency’s expanding focus on protecting immigrant and migrant workers, such as those who are Muslim or Sikh or persons of Arab, Middle Eastern or South Asian descent, as well as those perceived to be members of these groups, as HRE’s Julie Cook-Ramirez noted earlier this month.

Of course, the EEOC’s new guidelines and its stated strategy for the next five years arrive almost exactly two months before the scheduled inauguration of President-Elect Donald Trump, who stands to significantly shake up the agency’s agenda.

In a recent blog post at www.law360.com, law professor Michael LeRoy explains how the incoming president could very well upend the EEOC’s enforcement agenda with regard to national origin (and other forms of) discrimination.

“Trump’s popularity derives in no small measure from people who are tired of ‘political correctedness,’ ” writes LeRoy, a professor in the School of Labor and Employment Relations and College of Law at the University of Illinois at Urbana-Champaign. “This concept is generally found in Equal Employment Opportunity Commission regulations that prohibit employers from creating a ‘hostile work environment.’ ”

That term applies to sexual harassment, but racial, religious and national origin harassment as well, adds LeRoy.

“A Trump EEOC could redline ‘hostile work environment,’ thereby signaling that no federal employment policy prohibits the type of degrading language that Trump has used against women, Mexican, Muslims and other groups.”

For that matter, President Trump will have the opportunity to appoint high-ranking personnel that could in turn impact staffing decisions throughout the EEOC, potentially shifting the agency’s enforcement priorities, as Seyfarth Shaw attorneys recently pointed out.

In addition to the possibility that President Trump could designate a new EEOC chair, the agency will see General Counsel David Lopez leave at the end of 2016.

“[Lopez’s] impending departure means that President Trump will have an early opportunity to appoint his successor,” Seyfarth attorneys wrote. “These leadership changes at the highest levels of the EEOC will undoubtedly impact the direction the agency takes in the future.”

A Trump administration could also signal budgetary constraints for the EEOC, which may alter the way the agency approaches enforcement of discrimination guidelines.

“Historically, the EEOC adapted by focusing its enforcement efforts on systemic litigation, meaning targeting high-impact cases that address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants,” Seyfarth attorneys note. “The theory was that large, high-profile cases, settlements and judgments would have a greater deterrent effect, and would therefore affect a larger number of workers and industries.”

Faced with the possibility of fewer resources and new personnel, however, the EEOC of the near future could be forced to find “new and creative ways to adapt its enforcement program (and its own political viability) to the new reality.”

 

Trump Win Good for Biz Women??

Not one for post-election posting here, but this LinkedIn piece by Sallie Krawcheck caught my eye. As a woman watching and dv496065aweathering the campaign, and now the transition to a Trump presidency, I wanted to make sure as many women — and men — as possible saw it too.

Her premise that “Donald Trump as president of the United States could just be the best thing that has happened to professional women in a long time … huh? what?” is right in Krawcheck’s wheelhouse. She’s the CEO of Ellevest, a digital investment platform for women; chair of Ellevate Network, a global professional women’s network; and author of Own It: The Power of Women at Work, to be released in January. As she puts it,

“We’re awake now. That’s because it’s all out in the open: the Billy Bush conversation, the recent New York Times OpEd on “bro talk on Wall Street,” even the light sentence for Brock Turner.  And while as a mother and an aunt, I hate it, I hate it, I hate it that we haven’t made more progress for younger women, this does represent an odd form of forward motion: We can’t really deal with an issue until we fully understand the issue.”

It’s a compelling piece and worth the read, whatever your gender or persuasion, political or otherwise. This new Trump era, ushered in by stepped-up conversations about the treatment of women, comes with “some proof that we can’t rely on others to fight this battle for us, and so we must redouble our efforts,” Krawcheck says. “… I’m hearing from more and more women that we must ‘put on our big-girl pants’ and do this ourselves..”

And it’s not like women don’t have the resources, she adds. “[W]e control $5 trillion of investable assets, we direct 80 percent of consumer spending, we’re more than half of the workforce. We’ve got a lot of power.”

Krawcheck’s list of what to do to claim and use that power is impressively detailed, and long. Just some of her many suggestions — some we’ve heard and written about, some we haven’t — include mentoring and sponsoring other women, amplifying what other women say in meetings, pointing out to others when they interrupt other women or ignore them in meetings, pointing out when the words they use to compliment men (“aggressive” or “go-getter”) are used to put down women and refusing to work at the company that doesn’t “get it” on making the work environment one in which you can be successful.

She also bangs the political drum some, post-election, suggesting women start donating to female candidates whose views line up with theirs, and start running for office and encourage other women to run for office.

And the financial-independence drum:

“[D]oing all that we can to be in financial control feels more important today than it did [before the election]. It’s important that we break the old gender norms of ‘the man manages the money; I manage the household.’ That leaves us retiring with two-thirds the money of men … but living five-plus years longer than they do. …

“[P]lease get yourself a financial plan and invest.”

All politics and election furor aside, Krawcheck gave me some serious things to think about. If any of this gets you thinking about new approaches to help the women in your organization claim their power and succeed, then all the better.

The Motherhood Tax at Work

New research out of the United Kingdom shows the gender-pay gap widens significantly after the birth of a child, otherwise known as the “motherhood tax.”

According to a new report from the Institute for Fiscal Studies, 12 years after giving birth for the first time, women are making 33 percent less per hour than men.

On average, women in work receive about 18 percent less per hour than men, down from 23 percent in 2003.

While the wider gap for mothers is not because women see an immediate cut in hourly pay after childbirth.

Possible explanations include mothers missing out on promotions or accumulating less labor market experience, the authors said.

“Comparing women who had the same hourly wage before leaving paid work, wages when they return are on average 2 percent lower for each year spent out of paid work in the interim,” the IFS wrote.

(Tip of the hat to CNN Money.)

A Groundbreaking New Pay Equity Law

Beginning July 1, 2018, employers in Massachusetts will be prohibited from asking job candidates about their salary history before offering them a job or asking candidates’ former employers about their pay. The new law, the Pay Equity Act, is designed to reduce the pay disparities between men and women in the workplace.

Although other states (including California and Maryland) have also enacted recent legislation designed to reduce pay inequity, Massachusetts is the first state to ban employers from asking about candidates’ salary history. The law, signed earlier this week by Republican Gov. Charlie Baker, not only had bipartisan support in the state legislature but also from business groups such as the Greater Boston Chamber of Commerce.

Nationally, women still earn only 79 cents for every dollar earned by men, according to the U.S. Census Bureau. Because companies tend to use candidates’ pay history as a guideline in making offers, these inequities can follow candidates throughout their lifetimes, pay-equity advocates say.

The Massachusetts law, which amends and expands upon the state’s pre-existing pay equity law, also makes it illegal for employers to ban employees from discussing their pay with others and will require equal pay employees whose work is “of comparable character or work in comparable operations.” The law also bars employers from reducing the pay of any employee in order to come into compliance with the Pay Equity Act.

The law also increases the penalties for violations, according to an analysis by law firm Holland & Knight:

The law expands the remedies available to plaintiffs by extending the statute of limitations from one year to three years, and creating a continuing violation provision under which a new violation of the law occurs each time an employee is paid an unequal amount. This provision may permit employees to recover years of back pay discrepancies as well as liquidated damages. Fines are increased from $100 to $1,000 per violation. There is no requirement that an employee file first with the Massachusetts Commission Against Discrimination (MCAD). Lawsuits may be filed directly in court.

Notably, however, the law features a safe harbor provision for employers that have been accused of pay discrimination, writes attorney Victoria Fuller of White and Williams:

Employers may avoid liability for pay discrimination under the Act if they can show within the last three years and before the commencement of the action, they have completed a good-faith self-evaluation of their pay practices and can demonstrate that reasonable progress has been made towards eliminating compensation differentials based on gender for comparable work in accordance with the evaluation.

Eliminating the ‘Mad Men’ Mind-set

Less than two weeks from today — August 15 — federal contractors that work with the U.S. government will need to comply with modernized rules when it comes to sex discrimination in the workplace.

According to the Office of Federal Contract Compliance Program’s fact sheet, the revisions will bring the “guidelines from the ‘Mad Men’ era to the modern era,” as well as protect women and men from discrimination on the job.

The U.S. Department of Labor is publishing new sex discrimination regulations that update – for the first time in more than 40 years – the department’s interpretation of Executive Order 11246 to reflect the current state of the law and the reality of a modern and diverse workforce.

“Updated rules on workplace sex discrimination will mean clarity for federal contractors and subcontractors and equal opportunities for both men and women applying for jobs with, or already working for, these employers,” the department said in a release.

“We have made progress as a country in opening career opportunities for women that were, for decades, the province of men. Yet, there is more work that lies ahead to eradicate sex discrimination. This is why it is important that we bring these old guidelines from the ‘Mad Men’ era to the modern era, and align them with the realities of today’s workplaces and legal landscape,” said director of the Office of Federal Contract Compliance Programs Patricia A. Shiu.

The final rule updates OFCCP’s sex discrimination regulations to make them consistent with current law. It makes explicit the protections against compensation discrimination; sexually hostile work environments; discrimination based on pregnancy, childbirth or related medical conditions; and discrimination based on unlawful sex stereotypes, gender identity, and transgender status. The regulations also promote fair pay practices.

The rule implements Executive Order 11246, which prohibits companies with federal contracts and subcontracts from discriminating in employment on the basis of sex.

But before the new rules take place, says Brett Draper, a partner at Alston & Bird’s labor and employment group:

“[E]mployers should review current policies to determine what changes should be made to processes in order to keep up with new regulations and ensure compliance.”

The new rules add to the growing employment obligations imposed on federal contractors through various guidelines and regulations, adds Clare Draper, also a partner with the law firm.

“While the OFCCP seeks to minimize discrimination in the workplace through these expanded requirements, the burden on businesses to comply grows as well. Businesses should take immediate action to protect themselves from exposure that can arise through OFCCP compliance reviews, class actions and other legal actions.”

EEOC Steps Up Data Collection on Discrimination

In case you missed this bit of news on your rush out the door to start your weekend last Friday:

In an effort to improve the information available about religious discrimination, the U.S. Equal Employment Opportunity Commission  announced it will implement changes in the collection of demographic data from individuals who file charges with the agency. These changes, the agency says, will allow it to collect more precise data about the religion of the individual alleging discrimination – allowing the EEOC, as well as the public, to recognize and respond to trends in charge data.

Additionally, the EEOC also announced the release of a one-page fact sheet designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination. The fact sheet is available at EEOC’s Youth@Work website, which presents information for teens and other young workers about employment discrimination.

Combating Religious Discrimination Today, a community engagement initiative coordinated by the White House and the U.S. Department of Justice, Civil Rights Division, brought together EEOC and other federal agencies to promote religious freedom, challenge religious discrimination, and enhance efforts to combat religion-based hate violence and crimes. The report from the effort is available at https://www.justice.gov/crt/file/877936/download.

Finally, EEOC plans to improve coordination with the Department of Labor’s Office of Federal Contract Compliance Programs, which enforces the prohibition of religious discrimination in employment by federal contractors and subcontractors. EEOC and OFCCP will work together to develop joint outreach and education efforts concerning discrimination based on religion.

Don’t Get Blindsided by Family-Leave Laws

Ever wonder what a typical case of family-responsibility discrimination involving elder care might look like? Consider this 538047854 -- elder carescenario laid out in a piece by Tom Spiggle that posted on the Huffington Post in June:

“You have an elderly parent who suffers from Alzheimer’s. He requires continuous care. You have worked at the same job for five years with a strong, positive work history. To better care for your father, you move him out of assisted living into your house. A paid caregiver takes care of him during the day, but leaves at 6, which means that you have to be home then.

“Your performance at work remains strong, but you are no longer able to take part in the informal after-work get-together frequently arranged by your boss. After missing these for a month, your boss stops by your office to ask why. You tell him. He responds ‘How long will this go on?’ You tell him maybe years. After this, things change at work. For no apparent reason, your boss begins to criticize your work. At one point, HR puts you on a performance-improvement plan.

“Although you do everything they ask and more, nothing seems good enough. One day, your father falls at your house, breaking an arm. You have to leave work early to get to the hospital and miss work the next day. You call HR, letting them know what happened and put in for [Family and Medical Leave Act] leave to cover the absence. When you return, the axe falls; you get fired. The last communication you receive from your boss is an email: ‘I’m sorry it had to end like this. You will be missed. I hope that this gives you the time that you need with your father.’

“That would be discrimination under the Family Medical Leave Act and the Americans with Disabilities Act.

Granted, his piece speaks primarily to employees, but there are some nuggets worth reviewing for employers, such as a little-known fact (little known by me anyway) that some bosses seem fine and accommodating with the first child, “but their attitude is that one child should have been enough,” writes Spiggle, an employment lawyer and founder of the Spiggle Law Firm, based in Arlington, Va.

(Note to anyone reading this who considers this a familiar occurrence in his or her organization: Time for some manager training!)

Here’s another nugget: Employees claiming they were discriminated against or weren’t accommodated under family-leave law have much stronger cases if they ask for the law’s protection while they’re still working for you. Spiggle elaborates (remember, this is directed at employees, so interpret between the lines):

“Let me give you an example. Suppose that your boss says that you are a shoo-in for a promotion. Before things become official, you announce your pregnancy. Next thing you know, the promotion goes to a man who is your junior. When you confront your boss, she shrugs and says, ‘Them’s the breaks. Next round.’ Let’s suppose things only go downhill from there and you get fired, even though your performance remained unchanged.

“Here’s the thing: If you had complained about being skipped over for the promotion because you were pregnant before you were fired, you’d have a second claim of retaliation, which is easier to prove and gives you more leverage.

“There’s also a chance that, by reporting your concerns, you might get the problem fixed. Sometimes companies do the right thing when they learn that a rogue manager is violating the law. By reporting what happened, you give the company a chance to fix it.”

Probably the most telling piece of information he shares though — as does Mark McGraw in this HRE Daily post from May — is the fact that the number of family-responsibility-discrimination cases are going way up. McGraw and Spiggle both cite a report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, showing a 269-percent increase in the number of family-responsibility-discrimination cases between 2006 and 2015.

Many of our HREOnline.com news analyses have also mentioned this increase and the fact that far too many employers still don’t seem to get it when it comes to proactively turning that trend around.

Consider this a reminder, then, to get your anti-family-caregiver-discrimination house in order. And make sure you’re up on the nuances involved, including who has what rights and when — and precisely what this form of discrimination looks like.

Is Diversity Training a Waste of Time?

Diversity programs haven’t done much to actually increase diversity in the workplace.

This is the conclusion recently reached by sociologists Frank Dobbin and Alexandra Kalev, who drove this idea home throughout an article appearing in the July/August 2016 edition of Harvard Business Review.

The authors point to volumes of past research that they say reinforce the notion that diversity efforts—mandatory diversity training sessions in particular—may be well-intentioned, but often miss the mark.

“Firms have long relied on diversity training to reduce bias on the job, hiring tests and performance ratings to limit it in recruitment and promotions, and grievance systems to give employees a way to challenge managers,” wrote Dobbin and Kalev.

“Those tools are designed to preempt lawsuits by policing managers’ thoughts and actions,” according to Dobbin, a professor of sociology at Harvard University, and Kalev, an associate professor in the department of sociology and anthropology at Tel Aviv University.

Laboratory studies, however, “show that this kind of force-feeding can activate bias rather than stamp it out. As social scientists have found, people often rebel against rules to assert their autonomy. Try to coerce me to do X, Y or Z, and I’ll do the opposite just to prove that I’m my own person.”

Dobbin and Kalev’s HBR piece is based on their own examination of three decades’ worth of data, culled from more than 820 United States-based businesses as well as interviews with hundreds of line managers and executives.

In conducting their analysis, the authors found that companies saw representation of some demographic groups actually drop in the five years after they made diversity training programs obligatory for managers.

For instance, the share of black women in management roles decreased by 9 percent on average in that time, while the ranks of Asian-American men and women declined by 4 percent to 5 percent.

“Trainers tell us that people often respond to compulsory courses with anger and resistance,” added Dobbin and Kalev, noting that many participants reported feeling more animosity toward other groups after taking part in such programs.

The authors outlined other ways in which diversity training efforts are typically derailed.

Threatening undertones, for example, help to upend many diversity training programs.

“ … Three-quarters use negative messages in their training. By headlining the legal case for diversity and trotting out stories of huge settlements, they issue an implied threat: ‘Discriminate, and the company will pay the price.’ We understand the temptation … but threats, or ‘negative incentives,’ don’t win converts.”

Dobbin and Kalev contend that companies achieve better results “when they ease up on the control tactics” in delivering diversity programs.

“It’s more effective to engage managers in solving the problem, increase their on-the-job contact with female and minority workers, and promote social accountability—the desire to look fair-minded.

“That’s why interventions such as targeted college recruitment, mentoring programs, self-managed teams and task forces have boosted diversity in businesses. Some of the most effective solutions aren’t even designed with diversity in mind.”

Setting a Strategy for Transgender Employees

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

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

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

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

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

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

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

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

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

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

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

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

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

Two Tough Lessons on Training

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

What could go wrong?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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