Warren & Hays LLC

I was just on a family vacation in Spain, and our last destination was the Mediterranean-touching, sun-drenched metropolis of Barcelona.  It was a beautiful sight to behold, even though the sun hid from view throughout our stay, and it snowed.  Not just a few flurries, but a bona fide good old-fashioned snow storm.  As I shivered my way through the Boqueria, the famous outside food market, I silently cursed my ill-fated decision to pack sandals for the trip, and only sandals.  I was indeed awed by the rows and rows of fresh fruit, vegetables, cheeses, nuts, herbs, candy, and just about any other type of food one can imagine, though I must admit my chattering teeth distracted me somewhat from the experience.  

It wasn’t just me.  Even the natives seemed out of sorts.  Many carried umbrellas to protect themselves from the storm (and we Ohioans know umbrellas don’t really do any good in a snow storm).  The buses shut down for the afternoon, as did the underground metro system.  The city was decidedly unprepared for the sudden turn in the weather.  (As it turns out, the storm was short-lived, and the sun was shining brightly as we boarded our plane to come home).  

I take two points from my chilly Barcelona experience.  They are equally apt when discussing trans-Atlantic traveling or managing employee relations in the workplace.  First, be prepared.  At a minimum, travelers should review the physical landscape before they leave (i.e., check the weather carefully).  Similarly, HR professionals should understand the legal landscape in which they are operating, including staying up-to-date on recent legislative changes at the local, state and national level.  Second, be adaptable to change.  Travelers must have a go-with-the-flow mindset to best enhance their experiences abroad.  So too with HR professionals in the workplace.  Things come up, often quite unexpectedly, especially when you are dealing with something as tenuous as employee relations.  Be flexible in your approach to handling workplace issues.  Going with the flow does not always come easy to those of us who fit the “Type A” mold, but cultivating that ability can be priceless.

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Retail giant Abercrombie & Fitch has had its share of discrimination-related smackdowns.  In 2004, the EEOC sued Abercrombie for race discrimination arising out of its hiring practices.  Abercrombie’s marketing and hiring strategy focused almost exclusively on good-looking white young men and women.  The EEOC obtained a $50 million settlement with the store, as well as the store’s commitment to “diversify” its marketing and hiring efforts and train its employees on the anti-discrimination laws.

Last September, the EEOC filed a discrimination lawsuit against Abercrombie based on its failure to hire a young woman who wore a hijab, a religious headscarf.  (We blogged about this case, the outcome of which is as of yet unknown).  

Last week, the Council on American-Islamic Relations, one of the country’s largest Muslim civil rights organizations, filed an EEOC complaint against Abercrombie-owned Hollister, also a retail store.  According to the complaint, nineteen year old Umme-Hani Kahn, a stockroom worker, was fired for refusing to take off her hijab.  Kahn was told she could wear her hijab when she was hired last October, so long as it was white, gray, or blue, so as to conform with the store’s “looks” policy.  But when a new district manager came to the store last month, Kahn was told wearing the hijab in any color violated the “looks” policy.  When Kahn claimed she could not remove it due to her religious beliefs, she was fired, according to the complaint.

It surprises me that some employers continue to be completely confounded by the duty to accommodate religious beliefs.  It’s not all that complicated, so long as employers take the time to know the general rules, and to train on them.  Even basic anti-discrimination training can enable employers and their managers to at least spot potential legal issues.  The lesson here is, in short, if an employee cites a religious belief as the basis for a specific appearance, whether it be a hijab, a yarmulka, a tattoo, a hairstyle, or anything else, check with counsel and go through a very careful analysis before firing that employee.

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Last October, the EEOC sued California Psychiatric Transitions, Inc. (CPT), a mental health rehabilitation center, for sexual harassment.  The lawsuit, which was filed in federal court under Title VII, alleged a supervisor had created a hostile working environment for several female employees over a number of years.  The EEOC took great issue with CPT’s response to internal complaints by the women, calling it “wholly inadequate.”  The response consisted of showing  an anti-harassment videotape to its employees.  Period.  According to the EEOC, not only should CPT have conducted a thorough investigation, it should have trained its workforce, “and particularly its supervisors and managers, on their responsibility to stop harassment.”  And, the training should have occurred as a matter of course, not simply as a result of a complaint.  Finally, the training should have consisted of more than a videotape.

Without a doubt, the best type of training is live, interactive training conducted by experts (such as us).  Not only do employers avail themselves of defenses in the event a harassment lawsuit ensues, they also stand a very good chance of averting such situations from arising in the first place.

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Last June, in Ricci v. DeStafano, the United States Supreme Court ruled for white firefighters who sued the City of New Haven after it discarded a promotional test on which they scored highly, claiming the city’s concern about the test’s disparate impact on minority firefighters amounted to discrimination against the white firefighters.  (See our blog on the topic).  The case generated a tremendous amount of attention, as it highlighted the employer’s unenviable position between a rock and hard place: promote the high-scoring white firefighters and risk a disparate impact lawsuit by the minority firefighters, or discard the test and be sued by the white firefighters.  In Ricci, the employer chose the latter, only to be told by the Court it should have selected the former option.

The case was also of interest because then-Supreme Court nominee Sonia Sotomayor was on the appellate court panel that found against the white firefighters.  All eyes may be on her in the next round, in Lewis v. City of Chicago.  The case involves a 1995 test by the city’s fire department.  While the test takers were only slightly less than 50% African-American, only 11.5% of the test takers scored high enough to be likely to secure a job.  Approximately 6000 African-Americans who were not hired sued the city, alleging the test had an illegal disparate impact.

The Supreme Court heard oral arguments in the case yesterday.  It is not yet clear whether they will decide the case on a mere timing issue (the plaintiffs may have missed the statute of limitations on their claim, as the Seventh Circuit held when it dismissed the suit), or it may tackle the broader issue of discrimination claims based on test scores.  Stay tuned.

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The proposed 2011 budget includes a $25 million plan, including the addition of one hundred new enforcement employees, to crack down on the misclassification of employees as “independent contractors.”  This proposal comes at a risky time for employers, as it is estimated that nearly 50% of jobs created during the economic recovery are contingent labor (temps and independent contractors, as opposed to regular employees).  It can be quite tempting to hire “independent contractors” instead of employees.  Employers do not have to pay Social Security or workers’ compensation, don’t have to worry about complying with the FLSA, and don’t have to consider Title VII and the other anti-discrimination laws.  Sounds like a no-brainer, right?  Not quite, especially given the hefty fines and penalties employers can face when they are found to have misclassified.

So how can you tell if you’ve got an independent contractor or an employee?  In the infamous words of the “Hoosier” poet James Whitcomb Riley, “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”  In other words, the label an employer slaps on the “contractor” does not matter.  The IRS has published an article to help employers make correct classifications.  The linchpin of the IRS’s inquiry is how much control the individual in question has over her job.  The more control, the more likely it is that independent contractor status is appropriate.

Our advice is to take proactive steps to determine whether your independent contractor classifications are correct.  Better you do it now than the IRS does it for you down the road.

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Earlier this month, the Sixth Circuit Court of Appeals upheld the dismissal of a case brought under the Age Discrimination in Employment Act (“ADEA”).  In Schoonmaker v. Spartan Graphics Leasing, the plaintiff, a 58 year old woman, was selected for termination as part of the employer’s reduction-in-force (“RIF”).  So was her 65 year old co-worker.  Their 29 year old co-worker, however, was retained.  The court held that this “mere age differential,” without more, was insufficient to create a prima facie showing of discrimination.  Unfortunately for the plaintiff, she did not have any other evidence, other than her own, unsupported belief that she was the more worthy employee.

While this case has a happy ending for the employer, employers should still be careful about the rationale behind all termination decisions, whether as part of a RIF or otherwise.  Thorough, consistent and well-documented performance reviews are an example of such relevant and helpful documentation.

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Last week, CareerBuilder released a survey that revealed employees are increasingly comfortable with openly dating other workers.  In fact, three out of ten employees surveyed ended up marrying their workplace sweethearts.  So finding love in the office is not necessarily a bad thing.  Nonetheless, tales of workplace romances gone bad are legion.  As are the resulting HR headaches: claims of harassment, favoritism, retaliation, bad morale, and bad PR.  So what is a prudent employer to do?  Our advice is to simply set up some ground rules and make sure everyone understands them.  Our top 5:

1.  Have a policy that sets forth the do’s and dont’s of workplace dating.

2.  Emphasize that professionalism is to be maintained at all times (i.e., no public displays of affection at the water cooler).  

3.  Provide that if the paramours find themselves in a supervisory relationship, they must disclose this fact to HR or another designated source, so that the reporting relationships can be altered.

4.  Train all managers and employees on the policy.  It should be included in your harassment training, and should include as many specifics as possible (for example, “no” means “no” at work, even if at the bar on Saturday night you are inclined to think “no” means “maybe”).  

5.  Make sure to warn against retaliation, both in the policy and in the training.  If things don’t work out, both parties must agree to maintain a professional working relationship.

Now some experts advise that employers prohibit intra-office dating altogether.  Others suggest requiring the employees to sign a “love contract,” attesting to the consensual nature of the relationship.  Both are legitimate approaches.  But in our view, respecting individual choices and privacy interests sends the better message.

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Have you heard about the new CBS reality show “Undercover Boss?”  The idea is that CEO and other C-Suite types assume false identities to infiltrate their workforce as entry-level new hires.  Oprah Winfrey’s February 1 show contained some highlights and interviews.  In it, the CEO of corporate giant Waste Management, Larry O’Donnell, went undercover as “Randy,” an entry-level worker.  Instead of running the largest waste and recycling operation in North America from his comfy corner office, Randy set about learning such tasks as cleaning port-o-potties and sorting recyclable materials from a fast-moving conveyor belt.  He struggled with these tasks.  In fact, a long-term employee who was charged with training Randy concluded after just a day that he did not have what it takes to get the job done.

When Randy revealed his true identity to the workers with whom he had interacted, they were naturally surprised.  But instead of the ruse being some kind of cruel prank on them, Larry O’Donnell went on to recognize each for their efforts and committed to implementing long-term changes that could improve the lives of all Waste Management workers.  Needless to say it was a warm and fuzzy “t.v. moment” ending.

Management could take a lesson here — don’t just sit in your corner office day in and day out never having face-to-face interactions with your employees.  Roll up your sleeves, get your hands dirty (figuratively, at least), and talk to employees at all levels of the organization.  You may find better ways to do business.  You may just give morale a boost or increase employee loyalty.  Whatever the result, the experience is likely to be eye-opening.  What have you got to lose?

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The 2009 Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee made a big splash in the world of employment law.  The Court expanded the reaches of Title VII’s anti-retaliation provision, holding an employee who participates in an internal investigation of a harassment complaint is protected from retaliation, even if that employee made no complaint of her own.  (For an excellent analysis of the case, see Jon Hyman’s post about it at the Ohio Employer’s Law Blog).  The plaintiff in the case was essentially thrown a lifeline by the Court and allowed to return to the trial court.  

Last month, a jury returned a verdict in her favor.  She was awarded 1.5 million dollars.  The case’s outcome serves as a reminder that retaliation claims tend to fare very well when they get before a jury.  Employers should make sure their supervisors understand their legal obligations in this respect.  Not doing so can be a very expensive misstep.

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Suppose you have successfully responded to a workplace complaint by conducting a prompt and thorough investigation and reaching findings of fact (or, better still, you outsourced the investigation to Warren & Hays).  The investigation found an employee violated the company policy prohibiting harassment or discrimination.  What is your next course of action?  A notation in the personnel file?  Yes, that’s most likely necessary, but not always sufficient.  One-on-one “sensitivity” training can be an excellent resource.

It sounds good, but what is it, exactly?  The offending party meets with an experienced third-party trainer.  During the course of the meeting, the trainer reviews the company policy, provides a detailed overview of the legal landscape and how the offender’s actions fit into it, instills the fear of God in the offender (by raising the specter of such terrors as personal liability), and coaches the offender on how to best avoid similar situations in the future.  The coaching portion of the session can provide the most helpful long-term gains, both for the employee and the employer.  Murky areas such as management style, workplace communications, unconscious bias, and increased sensitivity are explored in an interactive way.  The result is often a better informed, more aware supervisor who is eager to hone her new-found skills.  

I often hear from the skeptical client, “but can people really change?”  It is true that deeply-held biases and ingrained attitudes can be hard to shift.  But it is just a true that behavior in the workplace can be altered by training, coaching and, yes, scaring offending employees.

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Defense Secretary Robert Gates is expected to announce the commencement of a year-long Pentagon study into how best to revise the “don’t ask don’t tell” policy concerning gay members of the military today before the Senate Armed Services Committee.  ”Don’t ask don’t tell” essentially provides that gay service members keep their sexual orientation to themselves.  If revealed, however inadvertently, they can be dismissed from the military.  This announcement represents a significant step towards President Obama’s stated goal of eliminating the policy largely considered to be anti-gay.  Gay rights’ activists are pleased with this development, while some high-ranking military officers have expressed concern about this decisive issue being raised.

Secretary Gates has indicated change should ensue slowly and carefully, as the lifting of the ban on openly gay military members would represent the biggest social change to the military since the 1948 executive order for the racial integration of military units.  Still, change is likely to occur, as the study is premised on the idea that lifting the “don’t ask don’t tell” policy can be accomplished without compromising the military’s capabilities.

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On January 28, 2010 the EEOC issued a press release indicating it is partnering up with the Maltz Museum of Jewish Heritage to “fight job discrimination.”  The Maltz Museum, familiar to any east-sider, is in Beachwood and easily accessible from the freeway.  The EEOC announced that on the last Thursday of every month, its employees will be at the Maltz Museum to meet with anyone who has concerns about job discrimination, and to help fill out the necessary forms to file a Charge of Discrimination.

This local outreach effort demonstrates a renewed and serious commitment on the part of the EEOC to proactively and aggressively root out workplace discrimination.  Employers – have you recently reviewed your discrimination policies and trained your managers on the discrimination laws?  Unless you are emphatically nodding your head, there is no time like the present.  (Or, as my favorite yoga teachers often ask, “if not now, when?!”)

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The Fair Labor Standards Act (FLSA) provides steep penalties for “employers” who violate its requirements.  Who, exactly, is an “employer”?  The statute states an employer is “any person acting directly or indirectly in the interest of an employer in relation to an employee. . . .”  29 U.S.C. Section 203(d).  The Ninth Circuit had the occasion to interpret this section in the recent case of Boucher v. Shaw.  The court gave an expansive interpretation, looking at the nature of the employment relationship as a whole and the degree of control exercised by the would-be employer.  It went further than a prior Ninth Circuit case, which had held an FLSA “employer” needed to have a significant ownership interest in the corporation.  The Boucher court found the defendant’s CFO, who had no ownership interest, to be an “employer” within the meaning of the FLSA, along with the CEO and another officer who owned a substanial part of the company.

Knowing this risk of personal liability, it would serve senior management well to ensure their company is in compliance with the FLSA.  A wage and hour audit can be the perfect, cost-effective solution.

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In my opinion, and in a word, yes.  Last week, the television news show 20/20 aired a story about the “alarmingly high number of teens [who] claim sexual harassment at work.”  ABC’s Brian Ross interviewed a sixteen year old student from Orange County, California who worked part-time at a local Starbucks as a barista.  According to the young woman, who has since sued the coffee giant, her direct supervisor, a twenty-four year old male, repeatedly harassed her and coerced her into a sexual relationship.  She claims she did not believe she could refuse his advances.  She also claims when she finally complained to Starbucks, she was transferred to another store but the alleged harasser faced no consequences.  Starbucks is fighting the lawsuit, in part by claiming the young woman’s sexual history undermines her claims.  However the case turns out, it is certainly an embarrassment for Starbucks, and an expensive one at that.   

In another recent case, two teenage women sued Taco Bell after their supervisor allegedly raped them.  The EEOC pursued the matter, obtaining a several hundred dollar settlement for the women.  The EEOC’s position in the case was that the employer had a heightened responsibility to protect its youngest workers.

The EEOC has a point, and one that I imagine most judges and juries would be swayed by.  Certain employers hire teenage workers, as they are inexperienced and inexpensive, and employers can make good money off of them.  It only seems fair that the employers should, in turn, take some responsibility for providing their newest members of the workforce with a safe and productive work environment.  Two easy and inexpensive ways to implement this responsibility are (1) making sure discrimination and harassment policies are updated, disseminated, and provide a clear channel for employees to complain, and (2) training teenage workers and, more importantly, those who manage them, on how to create and maintain a healthy work environment and avoid issues of harassment and discrimination.

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According to the Eighth Circuit Court of Appeals, it can be.  In Lewis v. Heartland Inns of America, the appeals court reversed a lower court’s dismissal of a claim brought by Brenna Lewis, who sued her former employer for sex discrimination after she was fired.  Lewis worked at the front desk of one of Heartland’s hotels.  Her performance was indisputably good.  However, her new supervisor (a woman) was heard complaining that Lewis, a self-described “tomboy,” was not pretty enough for the job.  She wanted her employees to have a “Midwestern girl look” and even insisted that interviews be videotaped so she could assess the candidates’ attractiveness.

The court was quick to denounce the lower court’s holding that Lewis’s claim was doomed because she was unable to point to any similarly situated males who were treated differently.  The issue, according to the Eighth Circuit, was whether Heartland, via its supervisor, had engaged in gender stereotyping.  It easily concluded it had, and went on to join the ranks of other circuits (including the Sixth) that have held that employment actions based on a failure to conform to gender-based stereotypes is a form of actionable sex discrimination.

This area of sex discrimination law is one not necessarily well-known or understood by many supervisors.  Given that their actions are often automatically imputed to their employer, employers should make sure their supervisors are properly trained.

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A recent report released by the law firm Seyfarth Shaw reviewed and analyzed class action employment litigation in 2009.  The results, not all that surprisingly, show that class action and collective employment-related lawsuits are indisputably on the rise.  ”Given the enormous financial stakes, proactive planning and legal compliance programs — to get ahead of class action risks — are critically important for businesses in 2010,” stated Gerald Maatman, the report’s editor.

Settlement amounts in 2009 also rose significantly for workplace class actions.  As the plaintiffs’ bar continues to push the envelope in crafting theories of recovery, employers will be forced to contend with heightened risks and potential damages.  According to the report, the monetary value of the top ten private plaintiff settlements entered into or paid in 2009 for employment discrimination class actions totaled $86.2 million.  For wage and hour suits, the top ten private settlements received $363.6 million.  For ERISA cases (generally arising out of 401(K) losses), the top ten private settlements totaled $499.5 million.  These figures do not include government-initiated actions.

To this point, the Plain Dealer reported today that over 200 former store managers of Aldi, a large discount grocer that employs over 11,000 workers in the U.S., sued Aldi under the FLSA.  The lawsuit, which was initiated by a man from Elyria, alleges store managers were improperly classified as exempt employees even though their duties rendered them non-exempt and thus entitled to a tremendous amount of overtime pay that they never received.  While the case is in its early stages, Aldi can expect an incredibly long and expensive uphill battle.

What can employers do to best avoid being hit with such risks?  As we have advised before, audit your employment practices and train your managers on legal compliance issues.  It’s well worth it.

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Those of us that participate in the social networking site LinkedIn understand the value of recommendations.  The more you have on your home page, the better you look.  So many engage in an informal barter system — I recommend you, hoping that you will in turn recommend me, etc., etc.  But employers and managers need to bear in mind that a LinkedIn recommendation is, essentially, an employment reference.  And there are legal consequences of poorly written or inaccurate employment references, such as claims for negligence and defamation.  

Many employers have policies about employment references, such as that they may only contain dates of employment and positions held, or that they must be screened by HR before they are released.  If you have such a policy, consider making a specific reference to LinkedIn recommendations, to the effect that they be handled the same way as all employment references.  If you don’t, now is a good time to get one.  At a minimum, employers should have a consistent practice with respect to LinkedIn recommendations and should make sure all supervisors are on board.

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In a healthy work environment, supervisors and employees know each other as individuals and can openly discuss personal facts about themselves, such as where they are from, what their hobbies are, how many children they have, and the like.  But a recent case illustrates the danger in showing too much of an interest in an employee’s background, particularly with respect to protected characteristics.  

In EEOC v. Go Daddy Software, the plaintiff, a Muslim of Moroccan national origin, alleged religious and national origin discrimination (among other things).  A jury awarded him nearly  $250,000, and an appeals court upheld the award.  The evidence showed the plaintiff’s supervisor asked him about his religion and national origin after overhearing him speaking French on the phone with a customer.  While the supervisor claimed his questions were merely to show an interest in the plaintiff, the plaintiff contended they were asked in a hostile manner and demonstrated a disrespect and dislike for Muslims.  Apparently, the jury was more persuaded by the plaintiff.

This case reiterates for employers the importance of treading lightly around employees’ protected characteristics.  While casual banter pertaining to someone’s religion or country of origin might seem harmless at the time, things can look quite different in front of a jury.  Make sure your supervisors understand the difference between asking an employee what music he likes and asking what mosque he attends.

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An article released yesterday in major newspapers across the country reported that Major Hasan’s (the suspect responsible for the November Fort Hood workplace shooting spree that left thirteen dead) supervisors had deep concerns about his behavior for years.  However, he received numerous positive performance reviews that allowed him to be promoted.  As is the case in some organizations, the Army culture is such that very few performance reviews ever contain negative comments.  In keeping with this practice, Hasan’s supervisors at Walter Reed Army Medical Center, where he worked immediately before being transferred to the Fort Hood army base in Texas, failed to make any reference to issues with his performance and behavior (such as charges that Major Hasan inappropriately preached about religion to his psychiatric patients).  Thus, his transfer and promotion were not hindered by his reviews.  

This begs the obvious question: had Major Hasan’s reviews been conducted in a thorough and honest manner, would he have remained in the Army’s employ and thus afforded the opportunity to engage in a heinous shooting spree?  Of course, Major Hasan may have acted out violently regardless of what happened with his employment.  But had his reviews been thorough and honest, his supervisors could at least have had a clue as to what kind of personality they were dealing with and perhaps taken some proactive measures.  As the problem appears to be Army-wide, it will require a significant change in supervisory behavior to put an end to falsely positive performance reviews.  Training will be key.

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By now, everyone has heard that during the 2008 presidential election, Senate majority leader Harry Reid described then-candidate Obama as electable because he is a “light-skinned” African American who lacks a “Negro dialect” except when he wants to portray one.  In the last several days the media frenzy over the revelation of this comment has been significant, with mixed reactions on either side of the political aisle.  Some Republicans are insisting Mr. Reid step down.  President Obama, on the other hand, responded by immediately and unequivocally accepting Mr. Reid’s apology, stating he has known and respected Mr. Reid for years and knows he has a good heart.

As I was listening to NPR yesterday afternoon, author Keli Goff was discussing her recent piece in the Huffington Post about the issue.  She opines that Reid is not racist (after all, he lobbied to get Obama elected and has worked hard on behalf of African American constituents), but his remarks reveal he lacks racial sensitivity.  What’s the difference?  Racism involves an antipathy for people of a particular race, which Mr. Reid does not have.  Racial insensitivity, though, reveals a lack of understanding of a racial group.  Goff theorizes (correctly I believe) that the root cause of racial insensitivity is a lack of real and meaningful interaction with members of the race in question.  She cheekily insists that employing African Americans as nannies, office staff, and the like does not translate into friendships or other close personal bonds that can bring understanding of cultural and racial differences.  Thus, her conclusion is that Mr. Reid’s comments reveal a lack of understanding of black people, which is ok, according to Goff, “unless of course you’re one of the leaders of what’s supposed to be the party of diversity and inclusion.”

I have no doubt the controversy will ensue.  But I am less interested in Mr. Reid himself or the political/media repercussions he may face, and more interested in implications for those of us in the world of HR and employment law.  As Goff highlights, Mr. Reid’s comments reveal a truism about American society that rarely gets much air time (except before the EEOC and the courts): colorism.  There is a very real bias in favor of lighter-skinned minorities.  As the EEOC has repeatedly told us, favoring a lighter-skinned African American is just as illegal as refusing to hire an African American at all.  This brings me to point number one.  Anti-discrimination training (and the accompanying company policies) must explore colorism, its implications, what precisely it is, and how to avoid it in the workplace.  Second, it is important simply to recognize that inadvertent racial insensitivity is alive and well and can have significant effects in the workplace and beyond.

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Last week, the EEOC released its charge filing statistics for Fiscal Year 2009.  Here’s what they reveal, in a nutshell.  The EEOC received 93, 277 charges, down slightly from 2008, but still a record-setting high.  Retaliation was the most commonly claimed type of discrimination.  The EEOC recovered $294 million on behalf of alleged victims of discrimination.  These numbers suggest (correctly) that the EEOC is really sinking its teeth into enforcing the anti-discrimination laws.  In fact, in FY 2009, the agency began to expand its staff for the first time in nearly a decade, and will continue to do so throughout 2010.

So what do these numbers mean for you?  For starters, make sure your EEO compliance is up to speed.  This means having the most up-to-date policies, training your supervisors on their obligations under the anti-discrimination laws, and making sure you have a solid internal mechanism for receiving and resolving complaints before they ever get before the EEOC.  Beyond these compliance essentials, reflect on your corporate culture.  While having an open, fair and ethical workplace is not guaranteed to stave off discrimination complaints, it certainly helps.

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Unless a disability is obvious, an employee seeking a reasonable accommodation must specifically ask for one, according to a case decided by the D.C. Circuit this week.  In Stewart v. St. Elizabeths Hospital, the plaintiff, a hospital aide in a maximum security wing dealing with mentally-ill criminal patients, claimed the difficult working environment caused her to suffer from a mental disability under the Rehabilitation Act.  She alleged the hospital failed to provide a reasonable accommodation, as it did not transfer her to a different department.  However, the court found the hospital did not know of any alleged disability up until the end of the plaintiff’s employment when she finally requested a transfer.  At that point, the hospital asked for medical documentation and assured her it would assist her once it received the requisite paperwork.  She never provided it, however, as she left work, attempted suicide, and never returned.

Buttressing the court’s finding was the fact that up until the time the plaintiff asked for an accommodation (and thereafter left and never returned), the employer was not on notice of any alleged disability.  The plaintiff did get visibly upset at work on a couple of occasions, but this alone did not alert the employer to a mental disability.

In disability discrimination cases, the courts often refer to the “interactive process,” the dialogue between employer and employee about the need for an accommodation.  When the need for an accommodation is unclear, Stewart indicates it is incumbent upon the employee to directly ask for accommodation and explain the need for one.

However, bear in mind that the duty to provide reasonable accommodations will be more of a focus going forward under the ADA Amendments.  Therefore, if you have a question about a particular employee, it’s always a good idea to check with counsel.  And make sure your managers have received sufficient training about the duty to accommodate so they can, at the very least, spot the issue when it arises.

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In yesterday’s blog — which you may not have received due to a technical glitch — I talked about some particularly apt HR New Year’s resolutions.  One was to consider implementing a social media policy, if you don’t already have one.  Even if you do, it’s a good idea to review its content.  The Delaware Employment Law Blog recently discussed guiding principles of business use of social media, and it’s worth a read.  

In addition to formulating a thirty thousand feet view of whether and how social media could affect your business, some attention should also be paid to the details.  For example, does your policy contain any provision regarding “endorsements?”  If not, it could invite some unwanted attention from the Federal Trade Commission (FTC), which recently issued “Guidelines Concerning the Use of Endorsements and Testimonials in Advertising.”  Under the guidelines, employers can face legal liability for false or misleading statements made through online endorsements, or for failing to disclose their connection to the endorser.  In other words, an employee who uses electronic media (e.g. Facebook, Twitter, email, blogs, etc.) to make comments endorsing his or her employer’s products, and who fails to disclose the employment relationship, could create liability for the employer in the event a consumer relies on the endorsement to his or her detriment.

This all sounds like a lot of legal jargon, but the point is that employers have to be very clear with their employees about what is permitted and what is prohibited use of social media as it relates to their business.  In a nutshell, the FTC guidelines provide one more reason to develop a policy that is in keeping with your overall vision, and make sure your employees understand it.

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Aside from your own personal goals (e.g., exercising more, reading more, drinking less, etc.), why not spend a few minutes thinking of a resolution or two for your professional life?  Now that the festivities have died down, it is a good time to ponder some workplace goals for 2010.  Here are our top five suggestions.

1.     Set your 2010 training goals.  As employment laws continue to evolve and expand (the ADA, FMLA, and GINA, to name a few that saw significant revision/passage in 2009), it is crucial that managers understand their new obligations under the laws.  Bring in experts to provide educational, practical, and legally sound training.  Maybe this is the year for a refresher on harassment training.  Or maybe potential FLSA problems are something of concern.  You don’t have to tackle everything at once.  But sit down and make a realistic plan for 2010.  Your lawyers will thank you.

2.     Review your policies and procedures.  If you don’t already have an employee handbook, invest in one specifically tailored to your business.  Because there have been a lot of changes in the law in the last year, some of your policies may no longer be up-to-date.  Don’t yet have a social media policy?  It’s a great time to think about implementing one, as 2009 saw an enormous spike in the use of social media, and its intersection with the workplace has become profound.

3.     Consider an HR Audit.  Reviews of the HR function, or of compliance with significant employment laws, can bring a lot of bang for your buck.  Determine whether investing in one now or at some later point in 2010 makes more sense for your organization.

4.     Hear from your employees.  Conducting an employee survey or using a less formal means of soliciting feedback can be incredibly illuminating and helpful in goal setting.  Are your employees jonesing for some additional resources you could easily provide?  Are they disgruntled about something you know nothing about?  Just by asking the questions, you can easily pave the way to improved employee relations.

5.     Take stock in your own management style.  Is there room for growth?  Keep in mind that great leaders do the following things exceptionally well: they set clear expectations, they provide continuous feedback, they accept blame for their mistakes, they are open to input, and they manage by keeping connected to their employees and understanding what they actually do (instead of managing remotely from their corner office).  How do you measure up?

By taking a little time to think through and assess your goals, 2010 can be a great year!

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We Clevelanders can probably relate to some of the symptoms of seasonal affective disorder, a form of depression that strikes most commonly during the winter months.  But for some, the so-called “winter blues” represent more than a passing bad mood that roughly corresponds to the number of days that have elapsed with no sign of the sun.  Seasonal affective disorder is a diagnosable and largely treatable form of clinical depression.  And, as with other mental impairments, employers have a duty to reasonably accommodate those who suffer from it under the ADA.  

This was the issue in the recent case of Ekstrand v. Sch. Dist. of Somerset.  Ms. Ekstrand, a first grade teacher, suffered from seasonal affective disorder and provided corroborating medical documentation from her mental health provider.  She requested that her room — which had no windows — be changed so she could be exposed to natural light through  out the workday.  While the school did not accommodate this request, it did make some changes to improve the lighting and air ventilation in Ms. Ekstrand’s room.  Nonetheless, Ms. Ekstrand’s symptoms did not recede and she eventually went on medical leave and ending up finding work elsewhere.

While the district court granted summary judgment to the school district on Ms. Ekstrand’s ADA failure to accommodate claim, the Seventh Circuit reversed.  By failing to provide the requested for accommodation — which was shown to have been possible and virtually costless — the district violated the ADA (or at least that question should be put to a jury).  The “undue burden” standard that excuses an employer from providing a particular accommodation is a high one, and one the school district did not come close to establishing, according to the court.

Employers should also bear in mind that under the recent ADA amendments, the issue courts will be focusing on is that of accommodations, as opposed to whether the plaintiff was covered by the ADA in the first instance.  (See Ohio Employer’s Law Blog dated 9.22.09)  So the next time an employee requests an accommodation, take the interactive process seriously, consider all options, and document your decision-making process.  And, of equal importance, make sure all managers understand their obligations under the ADA.

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In Monday’s Ohio Employer’s Law Blog, Jon Hyman discussed the recent Sixth Circuit case of Weimer v. Honda of Amer., where the court upheld the jury’s verdict in favor of the employer.  The issue was whether the employer’s termination of the plaintiff violated his rights under the Family Medical Leave Act (FMLA).  Honda discharged Weimer based on the results of an investigation it conducted to determine whether Weimer’s stated need for FMLA leave was honest, or whether he had lied to get some time off.  At trial, the plaintiff presented some evidence that his need for leave had been, in fact, real.  No matter, said the court.  The issue for the determining liability was whether the employer honestly and reasonably believed that the plaintiff had lied, which would be grounds for termination.  Whether or not they were right, in other words, was not determinative.  

Mr. Hyman wisely points out that the “takeaway for employers from the Weimer case is to make sure that all reasons in support of a termination are documented.”  In addition, an employer who finds itself having to make a termination decision based on disputed facts should conduct a thorough investigation.  An investigation worth its salt should include (documented) interviews with all relevant individuals and a review of all relevant documents.  

Sometimes, an investigation can be conducted quickly and thoroughly in-house.  When emotions run high (as they often do in termination decisions), however, it can be a good idea to bring in an outside resource.  Not only to make sure the investigation is conducted properly, but also to take some heat off the employer for the results.  

By way of example, Warren & Hays recently conducted an investigation that substantiated some of the alleged wrongdoing.  The alleged wrongdoer ended up furious with us — the neutral, third party investigators — but not with the employer.  Thus, the employer came out looking like the “good guy” even though it disciplined the employee in question.  This made the transition back to business-as-usual mode at work far smoother than it would have been without our involvement. 

So keep us in mind not just to conduct thorough and defensible investigations, but also to enhance your employee relations by making you look good!

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How engaged are your employees?  And why should you care?  These two questions are tackled in a recent Wall Street Journal article, Management’s Dirty Little Secret.  As to the first, the answer is a striking “not very,” as demonstrated in the Global Workforce Survey conducted by Towers Perrin, an HR consultancy.  The study — which sought to measure employee engagement around the world — polled over 90,000 workers in eighteen countries.  The results: only 21% of employees are truly engaged in their work.  The remaining 79%, in other words, would not “go the extra mile” for their employer.  The Wall Street Journal article puts it bluntly:  ”There’s no way to sugarcoat it — this data represents a stinging indictment of the legacy management practices found in most companies.”

The author describes the empirically-proven connection between employee engagement and the bottom line.  This direct and causal relationship between enjoyment and profitability — borne out by another Towers Perrin study — warrants management attention, particularly in a lagging economic climate.  The critical point is that success depends largely “on a company’s ability to unleash the initiative, imagination and passion of employees at all levels — and this can only happen if all those folks are connected heart and soul with their work, their company and its mission.”

So how do employees become engaged?  They must have the opportunity to learn and grow continuously.  They must be in an environment that seems worthy of commitment; e.g., a company committed to making a difference in the world or exemplifying the kinds of values employees can feel good about.  And they must be surrounded by leaders whom they respect and want to emulate or learn from.  Without the presence of these three factors — which are indisputably management issues — employee engagement is low.

 What is the answer for management?  First, take a cold, hard look at your management style and the priorities that are communicated to the rank and file.  Second, assess your managers.  Have they been trained to emulate your corporate values down the chain of command?  Don’t assume that simply because your managers are good at what they do, they are good managers.  As the above statistics evince, more often than not, they aren’t.  Take the time and energy to focus on  and communicate your corporate values, and then to live by them.  Your bottom line demands no less.  

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President Obama has indicated his clear support for the ENDA, which would ban discrimination based on sexual orientation and gender identity.  However, neither the House nor the Senate will take up the legislation until after the New Year.  This delay has upset some of the bill’s most vocal supporters.  The Human Rights Campaign and other LGBT rights groups recently issued a statement that “[p]assing basic job protections for lesbian, gay, bisexual and transgender people must happen now.”

Whether the bill will pass — and how quickly — seems to be an open question.  Many, including Representative Barney Frank, a chief sponsor of the bill, continue to be optimistic and expect the ENDA to become law in early 2010.  But others are concerned with the strong opposition from conservative members of the House and Senate, and anticipate it stands a good chance of ultimately defeating the passage of the ENDA.

For now, employers can either move ahead in adopting policies consistent with the ENDA, or else adopt a wait-and-see attitude towards any policy revisions.  (We recommend the former).  Employers should also check local and state laws to ensure their policies are up-to-date and compliant.  (See our prior blogs on this issue, 5.19.09, 10.1.09, and 12.2.09).

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Seasonal hires can present unique concerns for employers.  Some businesses need extra hands during the holidays, while others may need to supplement their numbers during the summer.  Whatever the reason for additional hires at a particular time of year or for a specific project, there are a number of things employers need to be mindful of.  

Because of the nature of the employment relationship with seasonal employees (i.e., transitory), it can be tempting to treat the employment relationship far more casually than one would with regular hires.  But this can be a costly mistake.  Employment-related lawsuits have been brought successfully against employers based on incredibly short employment relationships, even those lasting mere days.  

So what should employers do?  In a nutshell, business as usual; all the regular rules apply.  For example, check references.  Have a documented hiring process, from the application through the interview and decision-making process.  Have seasonal hires review and sign off on the employee handbook, or at least on important policies, such as harassment and confidentiality.  Make sure all hires accurately and thoroughly complete I-9 forms.  Determine whether seasonal employees are exempt or non-exempt, pursuant to the FLSA and for overtime purposes.  And have some kind of orientation/on-boarding process for your seasonal hires to acclimate them to your particular culture.  They represent you and your business just as your regular employees do.

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The Bureau of Labor Statistics recently released figures demonstrating that college-educated black men have struggled nearly twice as much as their white counterparts in terms of finding jobs in the economic downturn.  On December 1, 2009, New York Times reporter Michael Luo wrote about this troubling trend in an article entitled In Job Hunt, College Degree Can’t Close Racial Gap.  On December 7, NPR aired a segment on Talk of the Nation called Unemployment and African-Employment Men.  Both pieces contain anecdotal evidence from college-educated black men, including some from prestigious institutions such as Yale University, describing how the application process seemed to turn south the moment the hiring managers realized they were black.    

In recent times, various academic studies have made clear that racism is alive and well when it comes to the job market.  For example, a 2003 American Economic Review study called “Are Emily and Greg More Employable than Lakisha and Jamal?” found that applicants with “white-sounding” names received twice as many employer responses as did those with “black-sounding” names.  But what accounts for the 2009 trend specifically?  Theories abound.  Some speculate that the election of President Obama has actually created a backlash against blacks.  Others surmise the stereotypes about affirmative action programs negatively impact highly-educated blacks, who would-be employers might assume they only got as far as they did because of affirmative action.  Still others claim informal networking programs that largely influence hiring decisions have a disparate impact on black males.  (See our September 16, 2009 blog on this topic).

Whatever the reason, the fact that black male college graduates have an unemployment rate nearly twice that of their white counterparts (8.4% compared to 4.4%) is cause for concern.  For proactive employers, awareness may be the best defense to falling prey to this trend (and thereby avoiding unnecessary and costly litigation as a result).  Have your hiring managers received training on the discrimination laws?  Have you invested in sensitivity sessions, whether in a group or one-on-one, aimed at raising awareness of subtle, even unconscious bias (dubbed “neo-racism” in Luo’s NY Times article)?  If not, now is as good a time as any.

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It is common for employers to have inflexible return-to-work policies that require employees to return to work immediately following the exhaustion of their workers’ compensation leaves, or else face termination.  But common does not mean legal; just ask the EEOC.  In September, the EEOC received a $62 million settlement from Sears, Roebuck and Co. for violating the Americans With Disabilities Act.  Sears utilized a workers’ compensation leave exhaustion policy whereby employees who failed to return to work upon the expiration of their leaves were summarily terminated.  The EEOC sued the retail giant, claiming it should have considered whether additional leave would have been a reasonable accommodation under the ADA.

According to Regional Attorney John Hendrickson of the EEOC’s Chicago District Office, “[t]he era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over.”  This settlement represents the biggest in EEOC history regarding the ADA.

Employers would be wise to review their leave policies in light of the EEOC’s stance.  If your policy is inflexible, change it now.  Even if it is not, make sure those who apply it understand their ADA obligations with respect to reasonable accommodations.  Manager training in this area is always a good idea.

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On Monday, the City of Cleveland passed an ordinance protecting gender identity (e.g., transgendered individuals, or individuals who identify with a gender other than the one they were born as) from discrimination in employment and housing.  Sexual orientation is already a protected category under the City’s anti-discrimination laws.  The City Council voted unanimously in favor of the law, further cementing its growing image as one of tolerance.  (For example, the City has been awarded the opportunity to host the 2014 Gay Games, an international competition).

So what does this mean to employers in the City of Cleveland?  They should immediately update their EEO and anti-discrimination policies and handbook, as well as recruiting and hiring forms that contain any references to anti-discrimination policies.  For those outside the city borders, now is a good time to think about following suit on a voluntary basis.  Many expect that it won’t be long before gender identity and sexual orientation are federally protected categories too.  See Warren & Hays blog 10.1.09.

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If a single plaintiff alleges co-worker harassment, can s/he offer evidence of other employees’ wholly unrelated harassment complaints, even if those complaints occurred at different locations and involved different employees?  The Eighth Circuit answered this question with a resounding “yes” in Sandoval v. Amer. Building Mainten. Industries.

In Sandoval, decided in August 2009, the plaintiff alleged a hostile work environment by her co-workers.  She conceded the employer did not have actual knowledge of the harassment, but claimed it had constructive knowledge based on harassment complaints by other employees during the same time frame in which the alleged harassment against the plaintiff occurred.  In other words, according to the plaintiff, the mere fact that other people complained about alleged harassment was enough to place the employer on notice (thus kicking off its legal obligation to take reasonable steps to end the harassment).  The fact that plaintiff did not know about the other alleged instances of harassment was of no import, she claimed.  The trial court disagreed, ruling in the employer’s favor.  But the Eighth Circuit Court of Appeals held otherwise.  

Not only were the alleged other instances of harassment enough to place the employer on notice with respect to the plaintiff’s situation, but they also constituted persuasive evidence that the harassment allegedly suffered by the plaintiff was severe and pervasive.  The court stated “[i]rrespective of whether a plaintiff was aware of the other incidents, the evidence is highly probative of the type of workplace environment she was subjected to, and whether a reasonable employer should have discovered the harassment.”

So what’s the takeaway for employers?  Our advice is that all instances of alleged harassment be catalogued in a central location (ideally, in HR).  This way, complaints of harassment that are seemingly unrelated can be considered and handled in a proactive and consistent manner.  Not only will such a practice help employers stay on top of their workplace environments, but it will also help in the event of a lawsuit, as the plaintiff will undoubtedly request this information (and is entitled to it under the reasoning in Sandoval).  Better to know what the evidence is before a plaintiff demands it, so that the employer can keep on eye on the effectiveness of its harassment prevention program.   

If you do not have a harassment prevention program in place, Warren & Hays can help.

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As Thanksgiving draws near during one of the toughest economies in years, most employees are thankful for their jobs, according to a recent survey conducted by Taleo, a provider of management talent solutions.  This is good news for employers, and something they too can be thankful for.  After all, employees who are happy to have their jobs are more likely to be engaged, motivated, and productive.  But wise employers will not take this news (or their employees) for granted.  Now is a good time to make sure your workplace generates gratitude (as opposed to thankfulness simply for a paycheck).  

While seventy percent of the approximately 900 employees surveyed indicated they are “very thankful” for their jobs, the remaining thirty percent indicated otherwise.  A quick review of the sentiments expressed by this minority group can help employers ascertain where to focus their energies rather than resting on their laurels.  

A significant percentage complained about a lack of feedback on their performance.  Others complained about perceived gender inequities (largely revolving around pay).  The survey also revealed that “the younger generation expects a higher level of engagement from employers.”  These results can point employers to creative, cost-effective ways to shore up their employee relations.  For example, an anonymous employee survey can reveal a lot about your workplace’s particulars.  Perhaps it is time to invest in a little performance management training for your supervisors.  Maybe some company-wide communications on the state of the business are in order to generate enthusiasm and investment.  Or, start planning some holiday festivities to boost morale (more on that one, and how best to avoid the legal pitfalls associated with holiday parties, in an upcoming post).  

Generating some workplace thanks does not need to be a time or resource-intense investment.  It just requires a little thought.  With that in mind, Happy Thanksgiving!

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What happens on company time belongs to the company, including employee emails, right?  Not necessarily.  Employers often assume that anything done on the company computer — including personal emails — is their property.  This may have been a relatively safe assumption in times past.  But in the age of the Internet and an increasingly blurry line between the personal and the professional, courts are starting to tilt in the direction of greater employee privacy rights.  At the same time, employers are increasingly inclined to monitor employee communications, as concerns over security breaches, trade secrets and the like are at a fever pitch.  The result?  More litigation over employee privacy issues.

The Wall Street Journal reported last week that 52% of employees surveyed in a 2009 study conducted by a data security research firm said they access their personal email accounts from their work computers.  And 38% of employers surveyed said they employ staff specifically for the purpose of monitoring the content of employee emails.  Yet only about 20% of employers have policies detailing how they handle employee information, including emails.  This gap in numbers increases the likelihood for conflict.

This trend is highlighted by a New Jersey case decided earlier this year.  In Stengart v. Loving Care Agency, Inc., an appellate court held that an employee does have an expectation of privacy in personal emails sent on a company-issued computer.  The case involved emails between an employee and her attorney, sent via her private, password-protected email account.  The account was accessed on her company-issued computer.  The trial court found the emails were fair-game for the defendant (the employer), as the company’s electronic communications policy put the plaintiff on notice that her emails could be considered company property.  But the appellate court reversed, relying in large part on the fact that the employer’s policy was ambiguous.  While it stated that all communications on the company’s computer were company property, it also stated that occasional personal use was permitted.  According to the court, this was enough to cast doubt on whether the plaintiff had a reasonable expectation of privacy in her personal emails.

So what is an employer to do?  First, review your electronic communications policy (or make sure you have one).  Does it clearly articulate what is considered company property and what is private?  Then, make sure your monitoring practices comply with your policy.  And finally, remember that in the words of First Amendment expert Floyd Abrams, “[c]omputers are becoming recognized as being so much a part of the ongoing personal as well as professional life of employees and everyone else that courts are more sympathetic all the time to granting greater recognition to privacy.”

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Since 1995, there has been a nearly 400% increase in claims of family responsibility discrimination, or “FRD.”  FRD refers to adverse employment actions taken based on an employees’ family responsibilities.  According to the Center for WorkLife Law (“WLL”), a non-profit research and advocacy group, mothers tend to bear the brunt of employer stereotypes about work ethics and the ability or willingness to balance work and caregiver responsibilities.  But fathers, pregnant women, and employees caring for aging parents are increasingly claiming they too are losing out on job opportunities because employers assume their caregiving responsibilities are at odds with their jobs.  

If you are scratching your head and wondering when being a caregiver became a protected category, it didn’t.  But that has not stopped courts and juries from going after FRD under the rubric of varying employment laws.  FRD claims have been brought, and many successfully, under the following laws: Title VII (alleging sex discrimination), The Pregnancy Discrimination Act, FMLA, ADA, ERISA, and the Equal Pay Act.  And according to WLL, FRD claims have twice the success rate of more traditional discrimination claims, such as sex and race discrimination.

Demonstrating the growing awareness of and sensitivity to FRD, in 2007 the EEOC issued an Enforcement Guidance aimed at preventing discrimination against caregivers.  Since then, claims have become even more prevalent.  To avoid such claims, employers should be mindful of common workplace stereotypes that negatively impact those with caregiving responsibilities.  Have a hard-working employee about to have a baby?  Don’t assume she can’t handle the work pressure anymore.  Know of an employee who needs time off work to care for a sick parent?  Don’t hold it against him (per the FMLA) or assume he is not as committed as he once was.  

The best way to combat such common stereotypes is to train managers on discrimination laws generally, with an emphasis on the dangers of stereotyping in the workplace.  Now, lest you throw up your hands and think all hope/common sense is lost, rest assured.  If an employee is actually failing to meet work standards (as opposed to you assuming she will fail to meet those standards), of course you can and should take appropriate action, so long as you are not running afoul of any of the aforementioned statutes.

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Last week’s Fort Hood shootings have left many employers concerned about workplace safety, and with good reason.  Though it did not make as many headlines, just a day later in Orlando, Florida, a former employee returned to the engineering firm where he was let go over two years ago, opened fire, and killed one person (five others were injured).  Why do employees and former employees commit acts of violence in the workplace?  More importantly, what can employers do to protect themselves from such tragedies?

As to the first question, theories abound as to the root causes of workplace violence.  Three factors experts focus on are economic stress, mental illness, and a desire for revenge (for perceived workplace mistreatment).  But instead of trying to predict violence, employers should put down the crystal ball and focus instead on acting proactively to prevent violence from erupting in the first place.

First, employers should have a solid workplace violence policy.  The policy should express the employer’s commitment to providing a safe working environment, and include a non-exhaustive list of prohibited behaviors.  It should also encourage reporting of potentially dangerous situations and a short description of how problems will be addressed.  Managers and employees should be trained on the policy, and made aware of company and/or local resources (i.e., employee assistance programs (EAPs), local non-profits that may address troubled individuals’ concerns, etc).

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On November 5, 2009, Maj. Nidal Malik Hasan, an Army psychiatrist soon to be deployed to Iraq or Afghanistan, went on a shooting rampage at the Fort Hood army base in Texas, leaving 13 dead and at least 28 wounded.  While the details of the shootings  have largely emerged, Major Hasan’s motive — and the important question of whether he acted alone or as part of a terrorist network — remains murky.  Regardless, one angle of this tragedy employers should be aware of is the possibility that Muslim Americans will face religious-based harassment and/or discrimination in the workplace.  As we learned after 9/11, when a single Muslim commits an act of violence, other actual or perceived Muslims can become targets for blame and retaliation.

Muslim and Arab civil rights groups are already anticipating a potential backlash.  Just hours after the shootings, the Executive Director of the Council on American-Islamic Relations spoke at a news conference, condemning the violence and simultaneously urging American Muslims to take care to protect themselves and their families from possible backlash.

Employers should be on the lookout for any retaliatory harassment or discrimination.  At the first sign of trouble, proactive measures such as reissuing anti-discrimination policies, workplace training, and swift disciplinary measures in response to any policy violations can help insulate employers from legal risks.

Tune in tomorrow for some words about the other critical issue to emerge from this tragedy – workplace violence.

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On October 28, 2009, President Obama signed the 2010 National Defense Authorization Act (“NDAA”), which includes provisions relating to Family and Medical Leave Act (“FMLA”) for military families.  By way of background, FMLA coverage was extended to military families in 2008.  Under the 2008 amendments to the FMLA, family members of members of the Reserves and National Guard called to active duty were entitled to FMLA protections relating to certain qualifying exigencies.  

Under the new law (which is effective immediately), family members of active duty members of all Armed Forces are entitled to the same protections.  In addition, family members of veterans are now covered as well.  They are entitled to 26 weeks of leave to care for veterans undergoing medical treatment, recuperation or therapy for a serious illness or injury either incurred or aggravated (i.e., preexisting condition) during the course of duty.

Now is a good time to double check your policies and practices to ensure legal compliance.

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A district sales manager in Hartford, CT is suing retail giant Bath and Body Works for religious discrimination in violation of Title VII.  Her claim is based on the allegation that her manager made derogatory comments about her religion, Wicca, and fired her shortly after she took time off for a religious observance.  

Wicca is a neopagan, nature-based religion that is often colloquially associated with witchcraft.  The New Year of the Wiccan religion is October 31st, Halloween.  According to the complaint, many Wiccans celebrate by traveling to Salem, Massachusetts, home of the witch trials of the late seventeenth century.

The plaintiff in the case, Gina Uberti, claims she scheduled time off for the occasion well in advance.  A new supervisor, however, allegedly badgered her about the need for time off and made comments such as “you will need a new career in your new year” and “I will be damned if I have a devil-worshipper on my team.”  True to her word, the supervisor fired Uberti a few days after her leave.

While this case is just beginning its long jaunt through the court system, it serves as a useful reminder of employers’ obligations under the anti-discrimination laws.  If this supervisor had received good, solid training on the duty to accommodate religious beliefs (no matter how silly she may find them), chances are Bath and Body Works would not be spending a lot of time and money dealing with this entirely preventable lawsuit.

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When a manager in Loves Park, Illinois got into an argument with a subordinate over her failure to complete paperwork, the employee explained that she must not have heard the deadline correctly, as she is hearing-impaired.  Frustrated, the manager asked “How can you work when you cannot hear?”  The employee responded with a question of her own: “Aren’t you being discriminatory?”  That was enough, according to a recent Seventh Circuit decision, to trigger Title VII’s prohibition against retaliation.  When the employee was subsequently terminated, she sued for retaliation (as well as disability discrimination).  While the trial court kicked the case out on summary judgment, the Seventh Circuit reversed, instead ordering the case be tried.

Employee protections against retaliation are far-reaching.  They are among the most common — and most costly — types of employment-related claims.  Make sure your anti-harassment and discrimination policies cover retaliation, and make sure all managers are trained on this prevalent and sometimes counterintuitive area of the law.

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Some managers and employers have always walked a fine line between being friendly with their employees and being their friends.  The general rule of thumb (at least if you listen to employment lawyers) has been to maintain enough distance so that friendships don’t muddy the hierarchical workplace waters.  But with the onslaught of social media, and Facebook in particular, what are the new rules?  In Facebook lingo, a “friend” is anyone I am connected to on the site.  I have hundreds of “friends” on Facebook, some of whom I would not even know if I bumped into them on the street.  They are not really friends, yet the world of social media has created this gray area where a lot of mere acquaintances are suddenly called “friends” and are privy to all kinds of personal information.  What is a Facebook fiend who also happens to be a manager or an employer to do?

Our advice is not to “friend” employees (or superiors).  One of the biggest risks is that you may inadvertently learn information about an employee’s protected status that you otherwise would not have known.  Maybe an employee is struggling with depression and posting about her progress (if you have not yet been on Facebook, yes, some people post about such seemingly private information).  You may have had no idea she had a potential mental disability.  If you subsequently discipline her for any reason (poor performance, excessive absenteeism, etc), could she argue that it was her disability that motivated the adverse action?  Absolutely.  (Shanti Atkins of ELT recently blogged about this and other dangers lurking in the social media world – it’s worth a read if you want to know more).  

So resist the urge to “friend” everyone you know.  Managers and employers must always be mindful of their role vis-a-vis their employees, even when off-the-clock.  And, make sure you have a policy addressing the intersection of the world of social media and the workplace.  

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According to the EEOC, an employer’s policy or practice of excluding individuals from employment on the basis of conviction records has a disparate impact on African Americans and Hispanics.  Recent statistics show they are convicted at a rate disproportionately greater than their representation in the overall population.  

Presumably, the EEOC could make a prima facie (initial) case that such a hiring practice has a discriminatory disparate impact.  Faced with such a charge, an employer would have to prove the policy is “consistent with business necessity.”  Specifically, the EEOC would be asking whether the employer considered the nature and gravity of the offense, the time that elapsed since the conviction, and the nature of the position sought.  

A blanket prohibition on hiring those with felony convictions obviously would not satisfy this inquiry.  Check with counsel (or your favorite HR consultants) to review any applicable policies and/or practices.

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This week I have been listening to Malcolm Gladwell’s book Blink in the car.  For those of you who have not yet read it, it is basically about rapid cognition – or the kind of thinking we do in the blink of an eye.  Sometimes rapid cognition, or “thin-slicing,” as Gladwell refers to it, can lead us to great results that could not be obtained through a more deliberative process.  

The book begins with a poignant example involving the Getty Museum’s acquisition of what appeared to be a genuine kouros, or statue of a standing nude young man meant to represent the ideal of youth.  The museum spent over fourteen months researching the “artifact,” hired expert after expert to validate its authenticity, and spent approximately $7 million to acquire it.  Subsequently, several world-renowned experts on ancient sculptures had literally visceral reactions when they saw the kouros.  One felt revulsion.  Another imagined the word “fresh” (i.e., not ancient).  Something about it just seemed wrong.  It turns out, the nay-sayers were right.  How did the Getty — with its painstaking research and careful analysis — get it wrong?  According to Gladwell, the deliberative process simply failed, while rapid cognition worked.  But, Gladwell warns, this is not always the case.

When it comes to assumptions about protected categories such as race and gender, thin-slicing actually leads us astray.  In Blink, Gladwell discussed the Implicit Association Test, or “IAT.”  The test was created by Harvard psychologists and is based on word association.  It is performed online at high speeds and is said to measure unconscious attitudes as opposed to deliberative thought.  You can try it yourself at the Project Implicit website.  Gladwell, who is half-African American, took the test and it revealed his own (heretofore unknown) racial biases.  I took one of the tests (it takes about 10 minutes), and was surprised to learn I have a moderate association with women and home, and men and work.  ”Not me,” I thought, “I’m a working woman!”  Gladwell’s point is not that he is a racist (or that I am a sexist), but rather that our unconscious thoughts are affected by the culture in which we live and the stereotypes that abound.  

Do these unconscious biases affect the way we act?  Of course.  (Jon Hyman makes this point nicely in a June 15, 2009 blog, Examining our prejudices).  So when you sit down to interview that minority applicant, slow down, examine your own possible biases, and double check your actions to make sure you are not letting them seep into your behavior.

Workplace training is a good, proactive way to address this issue of unconscious bias.

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On October 15, many of us tuned in for a while as a helium balloon floated over the Colorado sky, allegedly with a six-year old boy in it.  The media was all over this story as it unfolded, flitting from one working theory to another.  He’s in the balloon!  He was never in the balloon!  He must have fallen out!  He was home the whole time!  

As we all know by know, the boy (unfortunately dubbed forevermore as “Balloon Boy”) was hiding in the attic during the entire episode.  While the media buzz (as well as local law enforcement) has turned to the issue of whether the entire episode was a misguided hoax aimed at increasing the family’s publicity, I find myself wondering what we can learn from this.

It is a natural human tendency to want to know how things are going to turn out, and to want to know now, now, now.  And, this yearning for instant gratification is amplified with today’s technology.  After all, information on almost anything is available to us 24/7 with little more than a click of the mouse.  

When it comes to workplace investigations (or children allegedly floating away in helium balloons), however, patience can be a virtue.  When an employee has complained about harassment, discrimination or other alleged misconduct, it is natural to want to get to the bottom of the complaint asap.  Maybe we have an imaginary scenario already running through our heads of who is telling the truth in the he said/she said saga.  But unless we take the time to gather all the facts and conduct a thorough, impartial, and objective investigation, we may be left in the end holding a bag of theories that do not necessarily reflect the reality.  Trained outside investigators (like Warren & Hays) can be the best solution.

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The Uniformed Services Employment and Reemployment Act (“USERRA”) protects the “seniority, status and pay” of service members returning to civilian employment.  In an effort to support the troops as they return to home and work, the Department of Justice’s Civil Rights Division has given high priority to pursuing cases under USERRA.  I blogged about a recent Sixth Circuit example in August.  

Another recent case highlights the importance of understanding USERRA’s broad reach.  In Middleton v. City of Sherwood, No. CV 08-604-HA (D.Ore. 2009), the long-time Chief of Police returned from an extended tour of duty and was asked to accept a demotion, as his USERRA rights conflicted with the city’s need for “continuity of leadership.”  Chief Middleton refused the demotion, but the city responded by creating a new position that effectively demoted him anyway.  Middleton sued, alleging he was constructively demoted.  The city tried to defend the case on the basis that USERRA does not cover instances of demotion.  The court disagreed, and the case is now pending trial.

My guess is that a jury — like the court —  will not look very favorably on an employer who tried to punish a returning service member for his absence.  After all, it’s not as if Chief Middleton was vacationing in Hawaii for 18 months; he was serving his country.  Employers should take heed and consult with counsel before taking adverse actions against those protected under USERRA.

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Clients often ask if people can really change.  What they mean is why invest in training – harassment, discrimination, supervisory skills, etc. – when people are just who they are?  My typical answer is: well, whether or not you actually change basic attitudes, whether about race, gender, or other characteristics that are inevitably part of the workplace fabric, investing in training provides legal cover in the event problems (i.e., lawsuits) arise.  

Saturday night a couple hundred Hall High Class of ‘89 alumni gathered at a local watering hole in West Hartford, Connecticut for our twentieth reunion.  Throughout the evening of reminiscing and catching up, I was struck by a few things.  Some people looked, sounded, and acted exactly the same.  Others, though, seemed to have been replaced with new beings altogether.  Yes, the class clown was still cracking jokes, and the overly confident ex-football star was still bragging about how cool, rich, and handsome he supposedly is.  But many, many others had changed.  A lot.  The shy bookworm was confident and engaging.  The “ditzy” cheerleader was grounded, articulate, and sensitive.  And so on and so forth.

I got to thinking about my typical response to questions about what workplace training can really accomplish.  In addition to meeting legal requirements and affording affirmative defenses in the event of litigation, I’ve got another answer.  Investing in training actually can — in some cases — alter attitudes, provide essential skills, and improve workplace relationships.

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In July, 2009, Warren, Ohio-based AVI Foodsystems Inc. agreed to settle a class action disability discrimination lawsuit brought by the EEOC.  At the root of the suit was the allegation that AVI did not permit employees with disabilities to return to work unless they had a full-duty, no-restriction return-to-work doctor’s authorization.  The EEOC’s position was that this prohibition violated the ADA.  The case is interesting in that it raises the question of how, exactly, employers are supposed to deal with disabled employees who are back at work.

The Society of Human Resource Management’s (“SHRM”) HR Magazine this month provides a textbook example of an employer being proactive in this regard.  Verizon Wireless has instituted policies geared specifically towards helping disabled employees acclimate at work and be as productive as ever.  According to one of Verizon’s HR professionals,

               “Until about five years ago, Verizon Wireless’ efforts in accommodating our employees with disabilities tended to be                             uneven and reactive rather than systematic and proactive.  We recently established specific policies to ensure that our                         employees with disabilities would be managed more consistently.”

Their new approach includes encouraging employees with new disabilities to take short-term disability leave.  During the leave, HR professionals stay in touch with the employee and provide him/her with information on community resources.  They also assess the employee’s return-to-work needs, agree on and implement accommodations before the employee’s return.  The employee is often encouraged to come in to work to help make this assessment and determination, even if he/she is still on leave.  This process results in a document clearly spelling out the accommodation to be implemented and includes a formal agreement between Verizon and the employee as to what is expected of each party upon the employee’s return.  And, time frames are made explicit, so that everyone knows when to expect the employee to return to full capacity in terms of performance.

Verizon Wireless does not lower its performance standards for employees with disabilities.  But it does take proactive steps to ensure the needs of both parties are met.  This kind of outreach and demonstrated commitment to its employees makes it more likely for employees with disabilities to remain fully committed and productive members of the workforce.  And that’s good for business.

Warren & Hays can help create and implement policies for managing employees with disabilities.

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On September 24, 2009, the House Education and Labor Committee held a hearing on the Employment Non-Discrimination Act (“ENDA”).  The most recent version of the ENDA was introduced in Congress in June.  The current version of the bill would prohibit discrimination based on sexual orientation and gender identity.  (See my prior posting on this issue in May).  Congressman Barney Frank opened the hearing urging the legislation’s passage, stating it would ensure “workers are judged solely on their work ethic and talents and not their sexual orientation and transgender status.”

The ENDA is considered highly controversial, and many on the right side of the political aisle are solidly against it.  But in making the case for its passage, EEOC Acting Chair Stuart Ishimaru explained that the ENDA would ease the burden on employers of complying with varying state laws.  Currently, 22 states prohibit discrimination on the basis of sexual orientation (and 12 have protections for gender identity”).  In addition to alleviating this patchwork of differing laws, passage of the ENDA would, according to Ishimaru, make a statement “of national policy that the federal government will not tolerate discrimination that is based on bias against individuals because of their sexual orientation and gender identity.”

It seems curious to me that there is still such vociferous opposition to extending the anti-discrimination laws to individuals based on sexual orientation and gender identity.  Regardless of the outcome of this legislative fight, employers who adopt policies consistent with the ENDA take an important step towards creating a respect-based workplace, which is always good for the bottom line.

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Under Ohio’s anti-discrimination law, employers with four or more employees must provide a “reasonable period of time” for pregnancy-related leave, including maternity leave.  The Ohio Civil Rights Commission’s (“OCRC”) regulations on the issue state that 12 weeks of unpaid leave is presumptively reasonable.  Do all employers have to provide 12 weeks?  Only if such a leave is “medically recommended” by the employee’s doctor.  Because many doctors are sensitive to their patients’ wishes, though, it could be relatively easy for employees to obtain such a three month leave.  This leave right exists regardless of length of service.

In March 2009, the Ohio Fifth District Court of Appeals upheld the OCRC’s finding that an employer violated the anti-discrimination law by denying an employee a pregnancy-related disability leave.  Nursing Care Mgmt. of Amer. v. Ohio Civil Rights Comm’n.  The employer claimed it denied the leave because the employee did not meet the length of service requirements under its maternity leave policy.  The appellate court held that under Ohio law, an employee is entitled to a “reasonable” amount of pregnancy-related leave, regardless of her tenure.  In that case, the court assumed the employee’s request for a seven week leave passed muster.  

Interestingly, the Ohio Supreme Court has agreed to review the case, so more information on legally required maternity leave may be coming down the pike.  For now, though, employers should remember their legal obligations and not try to enforce leave policies with a length of service requirement in the pregnancy context.

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By now everyone knows that employers have a duty under Title VII to reasonably accommodate religious beliefs.  Just how far this duty goes, though, is subject to debate.

On September 21, 2009, Jon Hyman blogged about this duty in the context of a recent lawsuit filed by the EEOC against the retail giant Abercrombie & Fitch.  According to the EEOC’s press release, Abercrombie & Fitch refused to hire a 17-year old Muslim because she wore a hijab to her interview, which was inconsistent with the store’s “Look Policy.”  Jon Hyman’s take on the case is that the EEOC will have a difficult time proving discrimination.  But I see it differently.

To me this case seems a lot like a recent EEOC case against Grand Central Partnership (GCP) in New York.  The EEOC accused GCP of discrimination against four employees who observed the Rastafarian religion.  The employees sought an exception to GCP’s grooming policy, which prohibited employees from wearing their hair outside their uniform hats.  The employees sought an accommodation for their long dreadlocks and short beards, which they claimed were part of their religious observance.  The case was settled on August 7, 2009, with GCP agreeing to permit the accommodation and also paying the employees for the alleged discrimination.

It is true that we do not know how a court would have ruled in the GCP matter, as it was settled.  But a few things are clear.  First, the EEOC is actively pursuing cases of what it considers an illegal failure to accommodate religious beliefs.  Second, employers should make decisions about the duty to accommodate carefully, and with the advice of counsel.  Finally, employers should make sure they take the time to train their managers on their responsibilities under Title VII.  

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Manhattan Apartments, Inc. (“MAI”) hired an independent contractor to conduct interviews and make hiring decisions on its behalf.  What may have been a good business decision turned into a legal mess for MAI when the independent contractor made an ageist remark to an unsuccessful applicant, who then sued for age discrimination.  At issue in the case was whether MAI should be held liable for the alleged discrimination.  The lower court dismissed the case, holding MAI was not an “employer” for purposes of the Age Discrimination in Employment Act (“ADEA”).  But on September 10, 2009, the Second Circuit reversed, holding MAI can be held liable for discriminatory acts perpetrated by its independent contractor.  Halpert v. Manhattan Apartments, Inc., 2d Cir. No. 07-4074.

This case is significant for employers considering outsourcing their HR functions.  Doing so can be cost-effective and make good business sense, but employers need to ensure their independent contractors are well-qualified and conversant with applicable laws (like, for example, Warren & Hays).

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Hiring by word-of-mouth — getting references from current employees, personal contacts, etc. — can be an effective means by which to attract and retain talent.  However, it can also be a surefire way to attract unwanted attention from the EEOC, particularly if the result is more of the same.  More males, more white employees, more employees under 40, and the like.  In the EEOC’s own words:

“While word-of-mouth recruiting in a racially diverse workforce can be an effective way to promote diversity, the same method of recruiting in a non-diverse workforce is a barrier to equal employment opportunity if it does not create applicant pools that reflect the diversity in the qualified labor market.”

Compliance Manual Section 15: Race and Color Discrimination.

So what should you do if word-of-mouth recruiting is something you really want to use?  Use it sparingly, and make sure it is only one of several recruitment methods.  And, make sure minority members of the workforce know their input is valued as much as anyone else’s.

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On September 8, a black family living in Fairview Park, Ohio found a noose in their front yard, along with a note demanding they leave the city.  Residents reacted quickly and unanimously: this kind of racism has no place here.  A message stating “Everyone Is Our Neighbor” went up all over town: on the high school marquee, at city hall, at churches, and even at private businesses.  The collective outrage mobilized a solidarity campaign, which will hopefully put an end to such acts in the future.  

Employers would do well to take a page out of the Fairview Park playbook.  Quick action, a strong anti-racism response, and a collective voice can be the best tools to rid an organization (or a city) of the pernicious effects of racial hatred.  Better still, train your workforces on your culture and values, and managers in particular about the anti-discrimination laws.

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U.S. Secretary of Labor Hilda Solis made this statement last week, in response to a report released September 2, 2009 that revealed, among other things, the wage and hour laws are not protecting many American workers.  Researchers at the National Employment Law Project, UCLA, the University of Illinois – Chicago, Cornell, and Rutgers University surveyed over four thousand workers in low-wage industries in Chicago, L.A. and New York.  The results – reported in the New York Times and blogged about by Jon Hyman last week – were startlingly dismal.  In a nutshell, hordes of workers are not paid minimum wage or overtime, not given legally required meal breaks, and not paid at all for hours worked off-the-clock.

The Department of Labor promised to change these statistics.  ”I am committed to the vigorous enforcement of our laws and will make use of the full weight of my authority to find and prosecute violators,” Solis stated.  To that end, she plans to hire 250 more wage and hour investigators by the end of 2010.

If you have not recently audited your wage and hour practices, there is no time like the present.

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For employers, the mere utterance of the word “harassment” sets off alarm bells — or at least it should.  Sometimes the word is simply code for “I don’t like my supervisor.”  Other times, its meaning is much more ominous.  With respect to both varieties, the correct initial response is always to inquire further.

I recently concluded an investigation where the “h” word meant that the supervisor (an executive-level employee, and thus the wise decision was made to retain an outside investigator) was not as polite as he could have been.  Sometimes he forgot such pleasantries as “please” or “thank you.”  Sometimes he joked around too much (but never on the basis of sex or any other protected category).  The investigation quickly concluded there was no harassment, in the legal sense of the word.  Case closed.  

On the other end of the spectrum is the recent Seventh Circuit decision in Porter v. Erie Foods International Inc.  The harassment at issue in that case involved the display of a noose.  The on-duty supervisor immediately removed the noose and contacted her supervisor as well as an HR representative.  The employer immediately launched an investigation, held a meeting to emphasize its commitment to non-discrimination and harassment in the workplace, spoke extensively with the one black employee on the shift in question, and questioned many employees to ascertain the source of the noose.  The black employee later quit and sued for racial harassment.  Affirming summary judgment in favor of the employer, the Seventh Circuit held the employer acted promptly and effectively to put an end to the harassment.

The lesson for employers is simple.  If you hear the “h” word, or any of your supervisors hears the “h” word, do something about it.  The choices range from a comprehensive investigation to a more informal discussion with employees to ascertain the basis for the claim.  And don’t forget to train employees on the anti-harassment policy, as well as on harassment law generally.  Sometimes, knowing what harassment is not is just as important as knowing what it is.

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Flexible work arrangements have long been thought of as a perk some employee-friendly companies provide their workforce.  But according to new research, flex programs benefit employers at least as much as employees.  The Families and Work Institute, a nonpartisan research organization, set out to analyze the effects of the recession on employers’ willingness to implement flex programs.  Expecting to find a decrease in such programs due to the economy, the researchers found the opposite.  

Over 80% of employers maintained the amount of workplace flexibility they offered over the past year, and 13% actually increased their flex time options.  Only 6% of employers surveyed eliminated their flex programs.  And among larger employers with over 1000 workers, there was a 25% rise in flexible work.  The reasons for this trend?  One of the main incentives was that flex programs actually helped employers stave of layoffs.  Compressing work weeks or offering more part-time options saved employers enough money to avoid having to reduce their staff.

In addition, and just as importantly, employers found that offering flex time helped them keep good employees, especially those who might otherwise be put off by compensation freezes.  Another benefit is that flex programs provide employers with a workable Plan B; in the event expert help is needed, part-time or semi-retired staff can often be mobilized on short notice.

Flexible work arrangement offerings typically include some combination of the following:

• part-time/reduced hours
• telecommuting
• compressed workweek
• break flexibility
• shift flexibility
• job-sharing
• phased retirement
• part-year work 

Not only may flex work be a good option for many employers, it is a growing “hot topic” in the world of workplace law.  The Working Families Flexibility Act, which was recently introduced to Congress, would require employers to discuss flex options with employees who raise the issue.  Though the sense of this bill is dubious (as Jon Hyman so succinctly put it in a recent Ohio Employer’s Law Blog post), it is still on the table, so considering whether a flex program makes sense for your organization makes sense from both an employee relations and a compliance perspective.

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When clients think about hiring us to train their workforces, they typically ask for the usual suspects: harassment, discrimination, wage and hour, and union avoidance.  Performance management training is often overlooked, as it is not considered legally required.  But managing employee performance is one of the most, if not the most, important skills a supervisor could have.  Good performance management entails far more than just filling out the performance review forms once a year.  It involves a continuous process of communication about performance, so employees are in the loop as to what their supervisors expect, and how they can improve.  Just opening the dialogue is an important first step, with a proven ROI (return on investment).  Employees who routinely communicate with their supervisors about their performance are more engaged, perform better, and create higher bars for themselves.  And, this kind of open dialogue enhances morale and decreases the likelihood of conflicts and claims.  In the event a claim arises, solid and well-documented performance management can go a long way to ensuring an employer victory.

Yesterday, we trained a group of supervisors on performance management.  One of the specific goals of our session was to calibrate supervisors’ rankings on the annual review, to help ensure consistency throughout the organization.  By going through a mock personnel file and actually filling out a review form – first individually and then as a group – the supervisors were able to see and discuss their colleagues’ rankings.  In the normal course of performance management, this kind of dialogue does not happen.  There simply isn’t time.  So think about carving out a couple of hours for your organization and investing in some hands-on, customized training.

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Under the Americans With Disabilities Act (“ADA”), an employee or applicant with a disability must be accommodated and cannot be discriminated against, as long as the employee can perform the essential functions of his or her job, with or without a reasonable accommodation.  A recent EEOC settlement emphasizes that employers should tread carefully before deciding that an employee is unable to perform.

On August 19, 2009, the EEOC settled a disability discrimination lawsuit it had filed against the St. Louis Rams.  The case was brought on behalf of long-time assistant trainer Ron DuBuque, who had epilepsy.  After years of successful employment, the Rams management decided DeBuque posed a threat to the safety of himself and his co-workers, and was therefore a medical liability.  Thus, his employment was terminated.

In the words of Acting EEOC Chairman Stuart Ishimaru, “disability does not mean inability.”  The consent decree includes monetary settlement of $134,000, we well as an agreement by the Rams to train their managers and supervisors on compliance under the ADA.

Be careful not to make assumptions about ability based on potential disabilities.  When in doubt — check with counsel (and don’t forget to train managers)!

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A few weeks ago I spoke at the Cleveland HR Star conference on dealing with problem employees.  Executive Happiness Coach Jim Smith spoke on the other side of the coin: how to become happier in life so you can show up as a better leader at work.  Jim’s philosophy — which is born out by empirical data — is that managers who take care of themselves on a personal level are able to be far more effective at work than those who do not.  He spoke of the idea of putting your own oxygen mask on first, referring to the airplane safety instructions we have all heard probably hundreds of times but have not paid much attention to.  The idea is that you can only help those around you once your own essential needs have been met.  Applying this to the workplace, and with the goal of creating positive working environments, Jim focuses on practical tools for managers so they can become happier and more effective leaders.

I thought about Jim’s speech as I walked along the South Carolina coast last week, during a week-long family vacation.  It resonated with me, as I breathed in the fresh ocean air and contemplated my work “to-do” list.  Instead of feeling anxious or overwhelmed, I felt excited about returning to the office and hitting the ground running.  I encourage employers not only to make sure they are taking time for themselves to find happiness, but to create a culture where all employees are encouraged to do so.  A good place to start is by encouraging employees take vacation time.  A little r & r can do wonders for the workplace.

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On August 6, 2009, the Sixth Circuit affirmed a finding of anti-military discrimination against Norfolk Southern Railway Company.  Train conductor Kelly Hance, a member of the National Guard, took several weeks of leave to satisfy his military obligations.  Shortly after a request for additional military-related leave, Hance was terminated, allegedly for poor performance.  However, there was no supporting documentation, and Hance had not received any prior warnings or discipline.

At issue in Hance’s subsequent (and entirely predictable) lawsuit was whether his military leave was a factor in his termination.  The trial court answered in the affirmative, and the Sixth Circuit agreed.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination based on military status and provides a whole host of reemployment rights to returning service members.  Smart employers will not forget this important protected category in their anti-discrimination policies and trainings.

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In yesterday’s Ohio Employer’s Law Blog, Jon Hyman discussed a recent Ohio case, Hidy Motors v. Scheaffer, in which an appellate court sent an age harassment claim back to trial, overturning the trial court’s summary dismissal of the case.  The plaintiff, a 67-year old salesman, was repeatedly referred to as “old man” by his supervisor.  In particular, he was subjected to the following comments:

• When the general manager would walk behind Sheaffer he would repeatedly say, “Come on old man, pick up your feet.”
• After Sheaffer told the general manager that a couple wanted to go home and think about buying a car, the general manager told him, “Come on old man, get your f****** head out of your f****** ass and go out there and slam them.”
• Referring to Sheaffer, the general manager directed another sales person to help the “old man” close a deal.
• In discussing a disagreement over a sales bonus, the general manager told Sheaffer, “Old man, I don’t give a f*** what you think. That’s the way it is going to be.”
• After a child spilled some water on the floor, the general manager told Sheaffer, “I’ve heard that’s what happens when you get your age – you can’t control yourself.”

Jon Hyman’s take on the case was that the above comments may well have constituted bullying and a poor management style, but they most likely did not rise to the level of illegal harassment, despite the court’s ruling.  He may well be right.  But to me, this case offers employers an opportunity to ask themselves a different question.  What kind of workplace do they want and will they tolerate?  Illegal or not, a high-level employee teasing a subordinate about his age in what can only be described as a mean-spirited fashion (who among us would laugh if teased by our boss about our bladder control?), should simply not be accepted in the workplace.  

Our advice?  Create a culture of respect.  Do this by having strong anti-harassment and discrimination policies, training on them, and publicizing a complaint procedure.  At the end of the day, employers should not be worrying about whether certain conduct is illegal or simply obnoxious.  They should be focusing on the business at hand.

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In a June 22, 2009 press release, the EEOC announced an $80,000 settlement with The Vail Corporation, which operates ski resorts in Colorado.  According to the EEOC’s lawsuit, Christian employee Lisa Marie Cornwell was, among other things, denied religious accommodations.  Her supervisor allegedly prohibited her from discussing her Christian beliefs while at work, forbade her from listening to Christian music while on duty (while permitting other types of music, including songs with profanity-laced lyrics), and denied requests for shift changes so that Ms. Cornwell could attend church services.

According to the EEOC, “claims of religious discrimination have increased by more than 80% in the last ten years,” and the agency intends to pursue claims similar to this one.   

One of the ways The Vail Corporation went wrong was by failing to permit Ms. Cornwell to discuss her religion and listen to religious-based music, especially in light of the permitted playing of other, arguably offensive, types of music.  Presumably, the supervisor in question was trying to maintain a religious-free workplace, but in doing so stepped on Ms. Cornwell’s rights.   

Employers need to be careful to draw the right line between proselytizing (which employers can regulate and even prohibit) and expressing religious beliefs (which employers must permit, to a reasonable degree, under Title VII).

In addition to extracting a monetary settlement, the EEOC forced The Vail Corporation to conduct company-wide training on complying with the discrimination laws.  

Best practices advice?  Employers should stay one step ahead of the curve and train supervisors on the need to accommodate religious beliefs.  After all, an ounce of prevention is worth a pound of cure!

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On July 21, 2009, the Fourth Circuit reversed a grant of summary judgment to the employer in EEOC v. Central Wholesalers, Inc.  Central Wholesalers (“Central”) had a well-written and publicized harassment policy, including a multi-layered complaint procedure.  It also attempted to respond to a number of complaints made by La Tonya Medley, an African-American female who alleged sexual and racial harassment.  But, while the trial court was persuaded that Central had taken appropriate steps to end the harassment, the Fourth Circuit disagreed, essentially characterizing Central’s actions as too little too late.

Some specifics:  co-workers consistently referred to women as “b***hes” and used the word “n***r” frequently.  One co-worker had a pornographic screensaver and listened to porn in his cubicle.  Per the company policy, Medley first approached the offenders and asked them to stop.  But, the conduct only increased.  Therefore, also according to policy, she went to her supervisor.  The supervisor did nothing immediately and then spoke to the co-workers.  Again, nothing changed.  In fact, the pornographic screensaver remained for about a week and a half following the supervisor’s discussion.  Even after that, the co-worker’s workspace was replete with Playboy materials.  Upper management eventually held a team meeting to discuss appropriate language in the workplace, though to little effect.  Thereafter, Medley saw a couple of blue-colored mop-head dolls hanging by nooses tied around their necks.  She brought this to the attention of another supervisor, who did not report the incident.  

Shortly thereafter, Medley left work, telling her supervisor she did not feel safe.  She then sent an email to upper management complaining she had been subjected to hostile work environment.  No one responded, but Central did commence an investigation. Following the investigation, one employee was issued a verbal warning and was sent to anger-management training.

In reinstating the sexual and racial harassment claims,the Fourth Circuit held that despite Central’s policy, its efforts to curtail the harassment were ineffectual.  Further, the court stated the attempted responses were not “prompt” enough (e.g., waiting a week and a half to remove the pornographic screensaver).  Thus, it will be up a jury to decide Central’s fate. 

The bottom line for employers: When faced with a harassment complaint or simply knowledge of a potential harassment issue, act promptly (this generally means immediately) and make sure your actions serve to end the harassment!  Check in with the complainant to make sure the issues have been successfully addressed.  Also, it is absolutely critical to train supervisors on how to respond to complaints.

 We conduct interactive training sessions tailored to client needs, so feel free to inquire!

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Clients often want to know how to best deal with “problem” employees (and, as mentioned in yesterday’s blog, I am speaking on this topic at tomorrow’s HR Star conference).  One of the cardinal rules of managing such employees is to create a healthy work environment, so as to nip problems in the bud, so to speak.  The old adage “the best defense is a good offense” is the essence of this course of action.  

What does a healthy work environment look like?  For starters, all productive and proactive workplaces display:

• Open communication
• Shared vision/goals
• Shared values
• Good work ethic
• Employee satisfaction

Workplaces characterized by these traits tend to have less problem employees to deal with, as such employees are stymied from the get-go rather than having room to flourish.

It is important to recognize that healthy work environments start at the top of any organization.  Executives set the tone and establish the organizational values.  These values then must be articulated and communicated, not just in employee handbooks, but in the way executives behave and treat their employees.   

Are problem employees giving you lots of headaches?  The first thing to do is to check the pulse of your organizational “health.”  An HR audit can be a great place to start.

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On July 15, 2009 the EEOC held a public hearing on recent developments under the Age Discrimination and Employment Act (“ADEA”).  In its press release following the hearing, the EEOC noted with alarm the  rise in age discrimination claims as a result of the struggling economy.  The predictable pattern: more layoffs, older workers targeted as a result of ageist stereotyping, and said older workers then have a hard time finding new work due to age discrimination.  A panel of experts testified as to the damaging effect of age-based stereotypes, as well as the detrimental impact on victims of a number of recent court decisions limiting the ability of older workers to sue successfully.

Alleged victims of age discrimination also testified, putting a human face on the problem.  One former plaintiff explained how he was selected for layoff due to his age despite years of stellar performance.  He took the only job he could get: as a janitor for the same employer.  He explained the humiliation he felt at being charged with emptying the trash cans of his former colleagues.

The panel urged the EEOC to take steps to provide additional regulatory and policy guidance on age discrimination, and also made the case for additional legislative action to protect older workers.  Acting EEOC Chairman Stuart Ishimaru and his fellow Commissioners vowed to consider the panel’s recommendations, noting “the devastating impact that age discrimination can have on a person.”

The EEOC also issued a technical assistance document on waivers for severance agreements.  For more details, see Jon Hyman’s post on the Ohio Employer’s Law Blog.

So what’s the big deal for employers?  Expect to see a lot more action on the administrative and even legislative fronts when it comes to protecting would-be victims of age discrimination.  Be careful about employment decisions that negatively affect older workers.  Talk to your lawyers.  And don’t neglect to train your managers on the anti-discrimination laws in general, and age discrimination in particular.

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There has been a lot of buzz over the past couple of years about enacting new paid leave laws that would require employers to provide paid sick leave to their workforces.  The Obama administration has indicated it would like to pass some form of paid sick leave legislation in 2009.  But the Society of Human Resource Management (SHRM) — the largest HR organization in the world — is trying to change the dialogue.  

According to SHRM’s COO China Gorman, “SHRM is advocating a 21st Century workplace flexibility policy that meets the needs of today’s employers and employees.  SHRM believes that employers should be encouraged to provide paid leave without new federal rules and regulations.”  The idea is that employers who voluntarily choose to offer paid leave will be protected by a “safe harbor” that deems them in compliance with federal, state and local laws.  The federal policy SHRM advocates would (1) encourage employers to offer uniform and coordinated paid leave; (2) create administrative and compliance incentives for employers who meet the leave standard; (3) provide certainty, predicability and accountability for employers and employees; and (4) allow for different work environments, industries and organizational size.  

On June 11, 2009, Ms. Gorman testified before the House Education and Labor Subcommittee on Workforce Protections.  The response?  Too soon to tell, though expect SHRM to keep forging ahead in its cutting edge effort to replace costly leave laws with a more flexible, incentive-based approach.

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Just a friendly reminder.  On July 24, 2009, the federal minimum wage will increase to $7.25 per hour, up from $6.55.  In Ohio, the minimum wage is currently $7.30 per hour, except for employees whose employers gross $267,000 or less, or for fourteen or fifteen year olds.  For these employees, the state minimum wage will also be $7.25, as of July 24.  Employees subject to both state and federal minimum wage laws are entitled to the higher rate of pay.     

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When we train clients on harassment and discrimination law, we preach against the use of stereotypes at work.  For example, assumptions about working mothers — frazzled, overextended, in need of a break, etc. — however well-intentioned, are illegal, plain and simple.  What about the stereotype of men as probable harassers?  Just as illegal, according to the Second Circuit in Sassaman v. Gamache, Dutchess County Bd. of Elections and Dutchess County, decided May 22, 2009. 

In Sassaman, after the male plaintiff was accused by a female co-worker of sexual harassment, he was asked to resign.  Rather than conduct an investigation into the allegations, the plaintiff’s supervisor stated he was afraid he would get sued by the complainant, adding “besides you probably did what she said you did because you’re male an nobody would believe you anyway.”    

The plaintiff sued for sex discrimination based on illegal stereotyping.  Though the district court granted summary judgment for the defendants, the Second Circuit reversed, holding that the statement about men’s propensity to harass women was indicia of discriminatory intent.  The employer’s second mistake, which also contributed to the ruling, was failing to conduct an adequate investigation into the charges of harassment.

The upshots: Don’t make assumptions, especially about the sexes.  Remember, being male is a protected category too.  And, always investigate thoroughly (or hire outside investigators) when it comes to allegations of harassment.  Employers owe this not just to the accuser, but to the accused.

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Yesterday I was listening to the BBC’s World Have Your Say program on NPR.  The topic was “Are the French right about the burka?”  People from all over the world called in to express their views about French President Nicolas Sarkozy’s attempt to ban the burka.  In a rare speech to Parliament on June 22, 2009, Sarkozy claimed “The burka is not a sign of religion, it is a sign of subservience.  It will not be welcome on the territory of the French republic.”  The issue is so hotly divided and elicited so much feedback that the BBC is conducting a second show on the topic today (Clevelanders may tune into 90.3 at 2 p.m.).  What does this have to do with HR, you wonder?  A lot.

Under Title VII, employers have an affirmative duty to reasonably accommodate sincerely held religious beliefs.  This duty often presents scenarios where conflicting rights are being asserted.  If a female employee wants to come to work in a burka in observance of her religious beliefs, must an employer allow her to?  The EEOC says yes, unless the employer can show it would impose an “undue hardship” to permit the Islamic garb.  Further, the EEOC rejects the notion that employee discomfort with the burka could constitute such a hardship.

Whether President Sarkozy’s attempt to ban women from donning the religious garb will succeed or not remains to be seen, though many argue that a decision to wear a burka or similar clothing is for a woman to make, not the government.  American employers, though, must tread extremely carefully when balancing the right to express one’s religion at work and the right of others not to be preached to.  Unless actual proselytizing is taking place, the law will most often come down on the side of freedom of expression.

Of course, if particular questions arise regarding the duty to accommodate religious beliefs, check with your employment counsel!

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On Monday, June 29th, the Supreme Court issued its long-awaited decision in Ricci v. DeStefano, holding that the city of New Haven, Conn. discriminated against (mostly) white firefighters by scrapping a 2003 promotional exam that had a disparate impact on minority firefighters.  The case has tremendous implications for workplaces all over the country who may be grappling with the issue of when, if ever, employers may consider race in job-related decisions.  

The case is also newsworthy for another reason — it overturns would-be Justice Sonia Sotomayor’s ruling in favor of the city as a Second Circuit judge.  Just a day later, her critics are already claiming the Court’s decision somehow puts a chink in her candidate armor.  But her supporters (me among them) know that lower court judges get reversed all the time; it is intrinsic to the job.  Further, the Second Circuit’s decision in Ricci hewed closely to precedent — also part of the job description of an appellate judge.

At the core of the Court’s majority decision, written by Justice Kennedy, is the notion that by addressing a potential violation of Title VII’s disparate impact provision, as the test in question had a statistically significant negative impact on black firefighters, the City necessarily implicated Title VII’s disparate treatment provisions.  In other words, the decision to disregard the test constituted intentional discrimination against the high-scoring white firefighters.  The Court acknowledged that the City’s decision was rooted in its belief that upholding the exam results could result in liability for disparate impact.  But the Court concluded “fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”  

Justice Ginsberg wrote a strong dissent, which she read from the bench.  She began by discussing the “entrenched inequality” in the firefighting profession, long known for racial imbalances.  She argued the majority decision thwarts voluntary compliance efforts, which Title VII specifically encourages.  She also rejected the majority’s pitting the disparate impact provisions of Title VII against the disparate treatment provisions.  The majority opinion held that by trying to avoid one (disparate impact), it violated the other (disparate treatment).  But Ginsberg argued this position ignores EEOC interpretive guidelines, usually afforded deference by the Court, which state “By the enactment of Title VII, Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement.”  She further argued the City’s decision to scrap the test was race-neutral in the sense that firefighters of all races would have to participate in another promotional process.  Therefore, the City’s actions were unlike quotas or even race-based preferences.

Expect a flood of information, analysis, and predictions from experts on both sides of the debate in the near future.  But the immediate and obvious takeaway for employers, at least until and unless Congress steps in to legislatively revisit the decision, is that any concerns about disparate impact must be fully vetted, investigated, and analyzed — presumably at great cost — before employers take “corrective” action, lest they court disparate treatment liability.

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It’s true.  Shaquille O’Neal is coming to Cleveland.  Amidst the thoughts of this is great for the city, what a duo he and LeBron will make, and other such obligatory musings, I began to wonder what the Cavaliers will do to ensure a smooth transition.  After all, the Cavs, like all employers, have their own culture, which is likely very different from that of the Phoenix Suns.

Employers sometimes underestimate the importance of successful onboarding, the process by which new employees are oriented and mainstreamed into a new company.  But studies clearly show that a positive onboarding experience is critical to retention, as first impressions tend to make a lasting impact.  New employees need to learn the basics, such as how to track their time and use their computers.  But more importantly, they need to gain a clear understanding of the employer’s culture.

How is corporate culture defined and communicated?  Typically, from the top down.  Management should set the desired tone, which is then (hopefully) reflected in the employee handbook and other company-specific documents, as well as in the way all employees behave in the workplace and interact with one another.

Some rules are unspoken, yet clearly understood.  I was recently in Paris and noticed every time someone walked in or out of a store or cafe, they greeted the workers with a cordial “bonjour mademoiselle” and an “au revoir monsieur.”  There was no rule that I saw about this, but I certainly noticed the disdainful looks of the employees when this nicety was overlooked.  So it is too with employers.  For the Cavs, perhaps a routine fist bump after a particular play.

Whatever the particulars are, employers should take the time to ensure the new employees are welcomed aboard with more than mere paperwork.  They should go home the very first day thinking “Yes, this job was the right move.”  My fingers are crossed that Shaq will feel the same way.

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While public employers have long had the option of offering compensatory time off (“comp time”) in lieu of overtime pay under the FLSA, private employers do not currently have such flexibility.  The Family Friendly Workplace Act, introduced by Congresswoman Cathy McMorris Rodgers (R-Washington), seeks to amend the FLSA to afford private employers this same opportunity.  The Act would allow private employers to offer comp time in lieu of overtime, but employees will have the ultimate say-so with respect to whether they take time off or receive extra wages for overtime worked.  Supporters tout the fact that comp time can afford employees greater flexibility in managing their work and home lives, which “is key to to increasing retention as well as attracting great employees that will help increase our country’s competitiveness.”

The Act would require a written agreement between employer and employee concerning the selection of comp time, and employees would always be free to opt for overtime pay instead, even after the hours have been worked.  Employees would be able to accrue up to 160 hours of comp time per year, and employers would have to cash out any accrued but unused comp time at the end of each year.

Having the ability to offer comp time in lieu of overtime will help employers meet changing business needs.  During busy times, payroll costs can remain consistent, and when workload tapers off, staff levels can vary.  At the same time, employees will benefit from increased flexibility in working hours, which, as the bill’s name suggests, can be critically important in juggling demands both at work and outside of work.  Sounds to me like one of those rare win-wins in employment law.

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What do domestic violence and employment have to do with each other?  A lot, according to Domestic Violence Center Executive Director Linda Dooley Johanek.  Some of the hidden workplace costs of domestic violence include lost productivity, increased health care claims, and compromised security.  Twenty six other states have workplace laws protecting victims of domestic violence, and Ohio may be next. 

House Bill 167 seeks to protect victims of domestic violence from discrimination in employment and housing.  The employment-related provisions apply to employers with 25 or more employees and prohibit discrimination based on victim status.  HB 167 also provides for unpaid leaves of absence for victims to attend court hearings or seek necessary medical attention.  And, it prohibits adverse employment actions based on batterer interruptions, requests for unpaid leave, or requests for accommodations, such as schedule changes and the like.  The Bill does not mandate that any particular accommodations be made.  Instead, it provides employers with substantial flexibility by requiring them to develop their own policies regarding domestic violence.  

I support HB 167 and hope that it passes.  Not just because taking steps to ensure employee safety is the right thing to do, but also because employers that address this societal malady send a strong message to their workforce that employee well-being goes hand-in-hand with professional success.

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In an effort to control soaring health care costs, many employers have introduced wellness programs, including health risk assessments.  Seems like a great way to encourage and ensure a healthy workforce, thereby keeping an eye on the bottom line, right?  Not so fast, according to the EEOC.  In a non-binding opinion letter dated March 6, 2009, the EEOC opined that requiring employees to participate in a health risk assessment in order to be eligible for company-sponsored health insurance would violate the Americans With Disabilities Act (“ADA”).  Health risk assessments tend to elicit disability-related information and/or genetic information by means of questions or medical examinations.

Under the ADA, employers may only make disability-related inquiries and require medical exams that are job-related and consistent with business necessity.  And under the Genetic Information Nondiscrimination Act (“GINA”), employers can offer “voluntary” wellness programs, but cannot require the involuntary disclosure of genetic information.  The employer in question required employes to participate in the health risk assessment that included a health-related questionnaire, a blood pressure test, and the submission of a blood sample.  Employees who chose not to participate in the assessment were ineligible for coverage under the employer’s health plan.  Because employees were penalized for nonparticipation, the EEOC opined the program was not voluntary.  Further, there was no showing of business necessity for the assessment.

The bottom-line: while the EEOC’s opinion letter in this case was case-specific and non-binding, employers would do well to keep potential ADA implications in the back of their minds when dealing with health risk assessments.  As always, consult with counsel if questions arise.

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“Proactive” is something we HR consultants are always preaching to our clients.  In fact, Warren & Hays’s predecessor was named Proactive Employment Practices.  But what does it really mean for an employer to be proactive?  Recently, I spoke at a webinar sponsored by Oswald Companies, The Lean Risk Proposition (podcast available online).  I explained what I mean by proactive with the acronym “PACT,” which stands for policies, audit, communication, and training.  Employers would do well to make a pact with their workforce to create and maintain excellent employee relations.

“P” is for policies.  Review them periodically.  Are they current and consistent with the most recent legal updates?  For example, the FMLA and ADA were recently amended, sexual orientation is on the verge of being a federally protected category, and the EEOC recently issued a list of best practices with respect to workers with caregiving responsibilities.  Good policies reflect and even anticipate some of these changes.

“A” is for audit.  Even a mini-audit of HR-related procedures can help minimize legal risks.  As just one example, new Labor Secretary Linda Solis has vowed to beef up enforcement efforts in the wage and hour arena.  Employers should review their pay practices to make sure they are not inadvertently violating the FLSA (experts estimate that over 70% of employers routinely violate the FLSA by mistake)!  

“C” is for communicate.  The best policies in the world will not do any good if employees don’t know of and understand them.  Most employees do not sit down and read the handbook cover to cover.  It’s up to the employer, then, to communicate regularly about important policies and procedures, especially when changes are made.  Employers can hold departmental meetings, send out informative emails, or hold periodic “state of the company” meetings where HR-related issues are explained.

Finally, “T” is for training.  Training the workforce — especially managers — on important policies, as well as on essential employment law and HR issues is the single most important thing an employer can do to avoid legal problems and ensure positive employee relations.  Harassment training and performance management are some of our most requested topics, and bring hefty ROIs. 

So make a “PACT” with your employees to stay on top of all things HR!

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On May 26, 2009 President Obama selected Judge Sonya Sotomayor as his pick to replace retiring Justice David Souter on the United States Supreme Court.  Former President George H.W. Bush appointed Judge Sotomayor to the federal bench fifteen years ago, and she has served on the Second Circuit since 1998.  Sotomayor, who grew up in the Bronx, graduated summa cum laude from Princeton University and then from Yale Law School, where she was an editor on the Yale Law Journal.  She then worked as a prosecutor before entering private practice.  Despite her experience and qualifications, the partisan rhetoric about Judge Sotomayor has begun in earnest.  Conservative interest groups accuse her of being a “liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written.” Former Speaker-of-the-House Newt Gingrich even went so far to label her a “racist.” As my esteemed former Stanford Law classmate Dahlia Lithwick asked, “Why did Republicans treat Samuel Alito’s blue collar upbringing as a great humanizing factor in his conformation hearings?  Why did they deem Clarence Thomas’s childhood poverty an advantage, whereas they now cast Sotomayor’s as a handicap?” Why indeed.  While the confirmation hearings promise to be full of drama and political agendas, one of the main questions in my mind is the impact a would-be Justice Sotomayor would have on employment law issues.

The Wall Street Journal reports “Judge Sonia Sotomayor has built a record on such issues as civil rights and employment law that puts her within the mainstream of Democratic judicial appointees.” One notable case, which is now pending before the Supreme Court, concerns the decision by the City of New Haven, CT, to invalidate a firefighter promotional exam based on its disparate impact on black applicants, all of whom scored too low to qualify for the promotion in question.  A three-judge panel of the Second Circuit, including Judge Sotomayor, upheld that decision, refusing to recognize a reverse discrimination claim brought by the white firefighters who aced the exam.  Contrary to claims of judicial activism, the appellate court’s decision in this case relied heavily on Second Circuit precedent.

In  another case, Judge Sotomayor ruled against a black couple who claimed they were bumped from a flight due to their race, as she concluded their claims were preempted by international law.  Again, “her decision was in conformity with what other courts were doing,” said the plaintiffs’ attorney.

All in all, Judge Sotomayor “has taken a fairly moderate, text-based approach to the cases before her, placing her much closer to retiring Justive David Souter than to the late Justice William Rehnquist on the judicial activism scale.” So what should employers be doing?  Business as usual — applying legitimate, performance-based measures to employment decisions and leaving the hysteria to the media.

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Last week the EEOC issued a short comment on the swine flu.  It warned employers not to engage in employment discrimination based on the virus.  Another protected category?  No, but the EEOC cited examples where employers taking care to protect against the swine flu might inadvertently commit discrimination.  For example, the prohibition against national origin discrimination could  be implicated if an employer refuses to hire Mexicans based on a concern that they might be carrying the virus.  While the comment was devoid of practical advice, it serves as a useful reminder that EEO issues can be implicated when we least expect it.  

The EEOC followed up with a brief technical assistance document pertaining to the potential implications of the Americans with Disabilities Act (ADA) vis a vis the virus, entitled ADA-Compliant Employer Preparedness For The H1N1 Flu Virus.  The EEOC reminds employers that the prohibitions on pre-offer medical examinations and the request of disability-related information are still in force, notwithstanding the virus.  

Are employers completely hamstrung in preparing for a pandemic?  No, according to the EEOC.  An employer is free to survey its workforce to gather personal information relevant to pandemic preparedness, so long as it asks broad general questions not limited to medical conditions.  For example, an employer could ask about an inability to work due to school closings, delays or stoppages in public transportation, and chronic illnesses.  But they cannot only ask about illnesses.  In its technical assistance, the EEOC even provides a sample workplace survey that it considers to be ADA-compliant. 

Our advice?  Make sure all policies related to illnesses such as the swine flu are applied consistently, across the board.  And don’t forget to train and even retrain hiring managers on the do’s and don’ts of medical inquiries pre- and post-hire.

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I predict that in fairly short order, sexual orientation, which is currently protected in several states but not in Ohio, will be a protected category under Title VII.  Consistent with his stated commitment to workers’ rights, President Obama is a staunch supported of the Employment Non-Discrimination Act (ENDA), which prohibits discrimination based on sexual orientation.  The ENDA passed in the House of Representatives last year.  An older version of the bill made it illegal for employers to discriminate on the basis of “gender identity,” and Obama supported that version too.

Though I think the odds are low that gender identity will be a federally protected category, courts are finding creative ways to protect transgendered employees under the rubric of sex discrimination, and have been for several years.  A 2005 Sixth Circuit case, for example, held that the City of Cincinnati engaged in sex discrimination when it failed to promote a transgendered male police officer who sometimes “acted like a woman” at work by wearing makeup.  Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).

Employers should be thinking ahead in terms of revising policies and educating their supervisors. Keep in mind that an employer is always free to adopt a more employee-friendly policy than the law requires.

Gay Rights

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I recently conducted a workplace investigation involving an anonymous complaint.  The individual complained that her boss, a senior level female executive, was, in essence, being a bully and making the work environment intolerable.  The company took the complaint seriously, brought me in to conduct a full-blown investigation and, in the end, decided the executive’s behavior was inconsistent with its corporate culture and did not tolerate it.  

The company did not have an anti-bullying policy, and no law prohibits bullying per se.  While several states (not Ohio) are considering anti-bullying legislation in one form or another, I agree with Jon Hyman, author of the excellent Ohio Employer’s Law Blog, that the issue of workplace bullying does not warrant legislative action.  Still, the savvy employer does not tolerate bullying simply because it is not illegal.  

My client clearly had a proactive bent, as it decided to bring in an outside investigator in the first instance.  As the investigation unfolded and the allegations were corroborated, the company took a zero-tolerance approach to behavior that reflected poor management  and interpersonal skills, at best.  Instead, it placed a premium on positive employee relations.  Now that’s what I call a “best practice.”   

Another blog-worthy aspect of this investigation was the fact that the alleged bully was a woman.  At the time, I wondered if this was an aberration or a trend.  The headline “Backlash: Women Bullying Women” leapt out at me from the front page of the business section of the May 10 New York Times.  According to the article, 40% of workplace bullies are women, and 70% of their targets are women (unlike male bullies, who tend to bully men and women in equal measure).  While the social psychologists among us will ponder the reasons behind these alarming percentages, suffice it to say that from my perspective, the employer who takes a strong stance against bullying behavior in the workplace will reap the benefits of increased productivity, loyalty, and an accompanying decreased risk of lawsuits.

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Many employers hire seasonal employees during the summer months, and most tend to be teenagers on summer break or young adults home from college.  A teen workforce brings its own unique set of dynamics to the workplace, which can trap the unwary employer in a host of thorny HR and employment law issues.  Taking the time to prepare for a teen-specific orientation is a great first step to meeting these challenges head on.  Some of these workers have never been in the workplace before, so setting some ground rules and expectations can be very helpful.  Employers should convey their corporate culture by covering expectations on everything from workplace etiquette to being on time to whom to speak to if problems arise. 

Not surprisingly, harassment issues frequently arise in the context of teen employees.  Providing some basic training on the employer’s anti-harassment policy and procedures can go a long way toward nipping these problems in the bud, or at least knowing how to deal with them if they arise.

In addition, front line supervisors responsible for the day-to-day management of seasonal workers may not know how to effectively manage them.  Wise employers take the time to educate these supervisors on how to deal with issues that could arise, such as performance problems, interpersonal conflict, lack of professionalism, and harassment/discrimination issues. 

Warren & Hays provides customized training programs both for teenage/young adult employees and their supervisors.  

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We are happy to announce the kick-off of our new blog.

We will be offering periodic musings on all things HR and employment law.  It is a busy and exciting time in the world of HR, both from an employee relations and a legal standpoint.  We’re looking forward to sharing some thoughts and insights, so stay tuned!

Sindy and Jennifer

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