Discriminating Droids: What Employers should know about Artificial Intelligence
|
01/05/2022
|
By: Sarah Otto
|
A
growing
number
of
employers
are
beginning
to
turn
to
artificial
intelligence
to
help
make
hiring
decisions.
Although
some
programs
may
sound
like
science
fiction,
they
are
already
being
used
by
companies.
For
example,
some
online
systems
search
social
media
profiles
for
desirable
characteristics
to
identify
candidates
for
positions.
Others
use
keyword
searches
of
resumes
or
more
complex
evaluations
to
compare
and
rank
the
materials
candidates
submit
as
part
of
their
application.
And
rather
than
conducting
screening
interviews
in
person,
some
companies
are
using
chat
bots
for
the
initial
screening
contact
or
recording
and
using
artificial
intelligence
programs
to
analyze
video
of
a
candidate
answering
interview
questions.
Although
artificial
intelligence
has
the
potential
to
make
hiring
and
other
employment
decisions
easier
by
reducing
the
amount
of
work
required
to
find
a
great
candidate
for
a
position,
some
commentators
are
increasingly
concerned
about
the
potential
for
discrimination
or
disparate
outcomes
as
a
result.
Real-World
Examples
of
Discrimination
in
Automated
Systems
It
might
seem
counterintuitive
that
turning
your
hiring
decisions
over
to
a
seemingly
neutral
and
bias-free
computer
system
could
lead
to
discriminatory
outcomes.
But
these
systems
are
not
perfect
—
they
are
developed
and
trained
by
humans
who
may
have
unconscious
biases
that
the
artificial
intelligence
system
“learns”
and
applies.
For
example,
during
a
review
of
a
resume-screening
tool,
one
company
discovered
that
the
program
identified
two
factors
to
be
the
most
important
when
deciding
whether
to
recommend
a
potential
candidate:
the
applicant’s
name
was
Jared,
and
the
Continue Reading...
|
|
Ban the Box Legislation for Federal Contractors Takes Effect
|
12/20/2021
|
By: Charles McClellan
|
Civil-rights
groups
across
the
globe
have
long
advocated
for
the
removal
of
“checkboxes”
on
job
applications
that
require
applicants
to
disclose
prior
convictions.
In
the
United
States,
the
EEOC
has
often
expressed
concerns
that
screening
out
all
applicants
with
a
prior
conviction
(or
even
a
prior
felony
conviction)
would
tend
to
have
a
disparate
impact
on
minority
or
other
protected
groups.
Many
states
(including
Kansas)
have
laws
which
ban
such
inquiries
for
public
employers,
but
only
a
handful
of
states
(such
as
California,
Colorado,
Connecticut,
Hawaii,
Illinois,
Maine,
Maryland,
Massachusetts,
Minnesota,
New
Jersey,
New
Mexico,
Oregon,
Rhode
Island,
Vermont,
and
Washington)
and
cities
(including
Columbia
and
Kansas
City,
Missouri)
have
enacted
similar
laws
for
private
employers.
Congress
included
“ban
the
box”
legislation
known
as
the
“Fair
Chance
Act”
for
federal
government
contractors
and
subcontractors
within
the
“National
Defense
Authorization
Act
for
Fiscal
Year
2020,”
which
then-President
Donald
Trump
signed
into
law
on
December
20,
2019.
That
law
(which
is
codified
at
41
U.S.C.
§
4174)
was
slated
to
take
effect
two
years
after
becoming
law
or,
in
other
words,
on
December
20,
2021.
As
it
applies
to
employers,
this
law
prohibits
federal
contractors
from
asking
(orally
or
in
writing)
for
any
criminal
history
record
information
regarding
applicants
before
extending
a
conditional
offer
of
employment.
Criminal
history
record
information
includes,
for
example,
information
about
an
individual’s
arrests,
indictments,
criminal
charges,
or
dispositions
thereof,
as
well
as
any
sentencing,
ongoing
supervision,
or
release.
The
law
does
not
prohibit
employers
Continue Reading...
|
|
Pronouns and Misgendering: Answers to Common Questions From Employers
|
10/10/2021
|
By: Emily Matta
|
After
the
U.S.
Supreme
Court’s
Bostock
decision
in
June
2020,
which
held
that
discrimination
because
of
someone’s
transgender
status
is
prohibited
under
the
umbrella
of
sex
discrimination,
the
EEOC
issued
guidance
expanding
on
Bostock’s
practical
implications.
The
EEOC’s
guidance
highlights
one
form
of
harassment
that
can
contribute
to
creating
a
hostile
work
environment
based
on
gender
identity
—
misgendering.
Here
are
answers
to
four
common
questions
employers
have
regarding
misgendering
in
the
workplace.
(1)
What
does
it
mean
to
misgender
someone?
Transgender
and
non-binary
employees
may
ask
you
to
refer
to
them
using
language
that
expresses
and
corresponds
with
their
gender
identity
—
their
internal
sense
of
self
and
gender.
Some
people
choose
to
go
by
a
name
other
than
the
name
their
parents
gave
them
at
birth.
And
some
people
use
pronouns
that
correspond
with
their
gender
identity
rather
than
the
sex
they
were
assigned
at
birth.
These
pronouns
might
be
gendered
(e.g.,
she/her/hers
and
he/him/his)
or
non-gendered
(e.g.,
singular
use
of
they/them/their;
ze/hir/hirs).
Misgendering
means
intentionally
or
unintentionally
referring
to
a
person
with
language
that
doesn’t
align
with
their
gender
identity.
For
example,
you
just
hired
an
employee
whose
legal
name
is
Alecia.
During
the
onboarding
process,
the
employee
informs
you
that
he
is
a
transgender
man
and
wishes
to
be
called
Alex
and
referred
to
using
the
pronouns
“he/his/him.”
Calling
Alex
“Alecia”
and
using
the
pronouns
“she/her/hers”
to
refer
to
the
employee
would
misgender
him.
(2)
When
does
misgendering
rise
to
the
level
of
Continue Reading...
|
|
Kansas Human Rights Commission Expands LGBTQ Protections
|
08/27/2020
|
By: Travis Hanson
|
On
August
21,
2020,
the
Kansas
Human
Rights
Commission
(“KHRC”)
decided
to
begin
accepting
complaints
of
“sex”
discrimination
in
employment,
housing,
and
public
accommodations
based
on
an
individual’s
LGBTQ
status
under
the
Kansas
Act
Against
Discrimination
(“KAAD”).
This
decision
follows
the
U.S.
Supreme
Court’s
ruling
in
Bostock
v.
Clayton
County,
where
the
Supreme
Court
held
that
Title
VII
protects
individuals
from
employment
discrimination
on
the
basis
of
their
sexual
orientation
and
gender
identity.
Notably,
the
KHRC’s
decision
expands
on
Bostock
in
two
important
ways.
First,
the
KAAD
applies
to
Kansas
employers
with
four
or
more
employees,
whereas
Title
VII
only
covers
businesses
with
15
or
more
employees.
Second,
the
KHRC’s
decision
expands
protections
to
individuals
alleging
discrimination
in
housing
and
public
accommodations.
In
an
e-mail
to
interested
parties,
the
KHRC’s
Executive
Director
indicated
that
formal
guidance
will
be
forthcoming.
Kansas
employers
should
contact
counsel
to
determine
the
impact
the
KHRC’s
decision
will
have
on
their
business.
And,
if
they
haven’t
already,
Kansas
employers
should
review
their
anti-discrimination
and
harassment
policies
to
ensure
that
sexual
orientation
and
gender
identity
are
included
as
protected
categories.
|
|
Supreme Court Rules Title VII Prohibits LGBTQ Discrimination
|
06/15/2020
|
By: Teresa Shulda
|
The
Civil
Rights
Act
of
1964,
which
includes
Title
VII,
prohibits
employment
discrimination
against
employees
because
of
race,
color,
national
origin,
religion,
and
sex.
Today,
the
Supreme
Court
issued
its
long-awaited
decision
in
a
trio
of
cases
that
tested
the
question
of
whether
Title
VII’s
existing
ban
on
discrimination
“because
of…
sex”
includes
discrimination
because
an
employee
is
gay
or
transgender.
A
six-justice
majority
of
the
Court
ruled
that
an
employer
indeed
violates
the
law
when
it
impermissibly
considers
an
employee’s
LGBTQ
status
in
making
employment
decisions.
In
the
cases
at
issue,
the
Court
heard
three
similar
fact
patterns,
representing
a
split
among
the
federal
appellate
courts.
In
the
title
case,
Bostock
v.
Clayton
County,
Georgia,
a
long-time
gay
male
county
employee
alleged
that
he
was
terminated
for
conduct
“unbecoming”
of
a
county
employee
shortly
after
he
joined
a
gay
recreational
softball
league.
In
that
case,
the
Eleventh
Circuit
Court
of
Appeals,
covering
Georgia,
Florida,
and
Alabama,
ruled
that
Title
VII’s
prohibition
against
discrimination
based
on
sex
did
not
include
sexual
orientation
discrimination.
The
Second
Circuit
Court
of
Appeals,
covering
Connecticut,
New
York,
and
Vermont,
gave
an
opposite
ruling
in
Altitude
Express,
Inc.
v.
Zarda.
In
that
case,
Zarda,
a
gay
male
skydive
instructor,
alleged
that
he
was
terminated
because
he
was
openly
gay
and
referenced
his
sexual
orientation
to
clients
and
coworkers.
The
Second
Circuit
concluded
that
an
employer
cannot
consider
or
define
a
person’s
sexual
orientation
without
considering
the
person’s
sex.
Thus,
sexual
orientation
discrimination
is
discrimination
because
of
sex,
Continue Reading...
|
|
Looking Ahead: Hot Employment Law Issues for 2020
|
01/07/2020
|
By: Morgan Hammes
|
What
issues
and
trends
do
we
see
on
the
horizon
for
employers
in
2020?
Here
are
some
hot
employment
law
issues
that
may
impact
your
organization
or
give
you
food
for
thought.
- Arbitration
Provisions.
The
Supreme
Court
has
made
it
clear
that
class
action
waivers
in
employment
agreements
requiring
employees
to
arbitrate
legal
disputes
are
valid
and
enforceable.
More
and
more
employers
are
using
such
arbitration
agreements
to
limit
liability
exposure
for
employment
law
claims.
Is
this
a
good
option
for
your
company?
- Marijuana
Legalization.
Colorado
has
legalized
recreational
marijuana;
Oklahoma
and
Missouri
have
legalized
medical
marijuana;
and
Nebraska
has
decriminalized
marijuana
usage.
What
does
the
future
hold
for
Kansas?
Even
aside
from
potential
legal
changes,
some
Kansas
employers
have
decided
to
stop
testing
for
marijuana
use
in
light
of
the
tight
labor
market
and
changing
public
perceptions.
- Ban
the
Box.
Kansas
state
employers under
Governor
Kelly's
jurisdiction
and
employers in
Kansas
City,
Missouri,
are
now
prohibited
from
asking
about
criminal
history
until
after
a
conditional
offer
has
been
made.
Many
other
states
and
cities
have
also
“banned
the
box.”
As
an
employer,
should
you
continue
to
use
criminal
history
to
automatically
disqualify
job
applicants?
- LGBTQ
Protections.
In
2020,
the
U.S.
Supreme
Court
is
expected
to
decide
the
hotly
debated
question
whether
Title
VII’s
prohibition
of
discrimination
based
on
sex
extends
to
sexual
orientation
and/or
Continue Reading...
|
|
Overland Park Enacts LGBTQ Discrimination Ban
|
11/7/2019
|
By: Sarah Otto
|
The
Overland
Park
City
Council
recently
approved
a
nondiscrimination
ordinance
that
makes
it
unlawful
to
discriminate
an
employee
based
on
sexual
orientation
or
gender
identity.
In
doing
so,
Overland
Park,
the
state’s
second-largest
city,
follows
other
Kansas
cities
such
as
Kansas
City
(Kansas),
Lawrence,
Manhattan,
Merriam,
Mission,
Prairie
Village,
and
Roeland
Park.
About
half
the
states
now
prohibit
discrimination
against
applicants
and
employees
based
on
LGBTQ
status,
but
Kansas
is
not
among
them.
However,
companies
that
have
contracts
with
the
State
of
Kansas
are
subject
to
an
executive
order
that
bans
discrimination
on
the
basis
of
sexual
orientation
or
gender
identity.
The
Overland
Park
City
Council
approved
its
ordinance
just
one
day
before
the
U.S.
Supreme
Court
heard
oral
arguments
in
a
set
of
cases
that
test
whether
federal
nondiscrimination
laws
protect
LGBTQ
employees.
Title
VII
of
the
Civil
Rights
Act
of
1964
prohibits
discrimination
based
on
sex.
The
Supreme
Court
will
decide
whether
the
statute
protects
employees
who
claim
they
were
subjected
to
discrimination
because
of
their
sexual
orientation
or
transgender
status.
Even
if
the
Court
decides
that
Title
VII
doesn’t
prohibit
discrimination
based
on
sexual
orientation,
employers
still
need
to
be
aware
of
state
and
local
laws,
like
the
Overland
Park
ordinance,
that
extend
legal
protections
to
LGBTQ
employees.
|
|
Recap: Foulston's Discrimination Mock Trial at 2019 SHRM State Conference
|
10/10/2019
|
By:
|
HR
Professionals
are
often
called
upon
to
make
difficult
decisions
that
are
legally
compliant.
Occasionally,
however,
personnel
decisions
lead
to
charges
and
lawsuits
that
may
go
to
trial,
where
a
jury
will
scrutinize
those
decisions.
On
September
13,
2019,
Foulston’s
Employment
Law
Team
presented
a
mock
trial
of
an
age
discrimination
lawsuit
to
a
packed
room
at
the
Kansas
Society
of
Human
Resources
Management
(SHRM)
State
Conference
in
Overland
Park.
During
the
first
hour,
attorneys
for
the
employer
and
former
employee
presented
their
cases
as
they
would
in
a
real
trial
–
but
in
a
much-abbreviated
fashion
–
including
opening
statements,
direct
and
cross-examination
of
witnesses,
and
closing
arguments.
In
the
second
hour,
audience
members
were
divided
into
10-member
juries.
The
juries
received
instructions
from
the
judge,
selected
a
foreperson,
and
deliberated
until
they
reached
a
verdict.
In
case
you’re
wondering,
30%
of
the
juries
found
for
the
employee,
and
70%
for
the
employer.
The
fact
that
so
many
juries,
all
consisting
of
HR
professionals,
reached
different
results
underscores
how
difficult
it
is
to
predict
how
a
particular
jury
might
see
things.
And
why
it’s
important
to
make
and
implement
HR
decisions
in
a
way
to
lessen
the
possibility
that
they
will
be
second-guessed
by
a
jury.
Participants
reported
that
the
mock
trial
provided
a
good
reminder
about
the
need
for
ongoing
management
training
(especially
for
new
managers),
the
importance
of
keeping
personnel
policies
updated,
Continue Reading...
|
|
Foulston Presents: Employment Discrimination Mock Trial at SHRM State Conference
|
08/13/2019
|
By: Steve Massoni
|
Will
we
be
seeing
you
at
the
2019
Kansas
SHRM
State
Conference
in
September?
We’re
excited
to
bring
you
an
interactive,
two-part
breakout
session
the
last
morning
of
the
conference:
an
Employment
Discrimination
Mock
Trial.
As
an
HR
professional,
you
are
trusted
by
your
employer
to
make
difficult
decisions
that
are
legally
compliant.
However,
sometimes
personnel
decisions
can
lead
to
messy
lawsuits
that
may
go
to
trial
where
a
jury
will
scrutinize
your
actions.
At
this
Mock
Trial,
you
will
get
the
unique
chance
to
weigh
in
on
a
case,
learn
how
the
trial
process
unfolds,
and
view
your
actions
from
a
different
perspective.
With
Foulston
attorneys
cast
as
the
judge,
the
trial
lawyers,
and
the
witnesses,
you
will
take
on
the
role
of
the
jurors
—
you
will
hear
the
witnesses’
testimony,
evaluate
the
lawyers’
arguments,
and
then
you
will
deliberate
with
other
jurors
to
analyze
the
evidence
and
reach
a
verdict.
Hope
to
see
you
there!
Be
sure
to
arrive
early,
as
seating
is
limited.
You
can
also
catch
us
in
the
Marketplace
at
booth
59.
Register
now
and
learn
more
at:
https://2019.ksshrm.org/

What:
2019
KS
SHRM
State
Conference
|
Employment
Discrimination
Mock
Trial
When:
Friday,
September
13
|
8:00
–
9:00
AM
and
9:15
–
10:15
AM
Where:
Overland
Park
Convention
Center
|
Courtyard
1
|
|
USSC to Hear Trio of LGBTQ Cases
|
05/01/2019
|
By: Teresa Shulda
|
The
Supreme
Court
recently
agreed
to
hear
three
cases
that
address
whether
Title
VII’s
protections
against
sex
discrimination
extend
to
discrimination
on
the
basis
of
an
employee’s
sexual
orientation
and
gender
identity.
Lower
courts
have
struggled
with
the
question
of
whether
“discrimination
on
the
basis
of
sex”
could
include
protections
for
LGBTQ
workers,
resulting
in
a
split
among
the
federal
courts
of
appeal. The
Supreme
Court
will
now
have
the
opportunity
to
resolve
the
question
once
and
for
all. Two
of
the
cases
involve
gay
employees
who
both
claim
that
they
were
fired
because
of
their
sexual
orientation. In
one
case,
Zarda
v.
Altitude
Express,
the
Scond
Circuit
Court
of
Appeals
(covering
northeastern
states)
ruled
that
Title
VII
extended
to
sexual
orientation
discrimination.
In
the
other
case,
Bostock
v.
Clayton
County,
the
Eleventh
Circuit
Court
of
Appeals
(covering
southern
states)
ruled
that
Title
VII
did
not
protect
employees
from
sexual
orientation
discrimination. The
third
case
the
Supreme
Court
will
hear
involves
a
transgender
employee.
In
R.G.
&
G.R.
Harris
Funeral
Homes
Inc.
v.
EEOC,
a
funeral
home
owner
terminated
an
employee
because
of
her
transgender
status. The
business
owner
relied
on
the
Religious
Freedom
Restoration
Act
to
argue
that
his
personal
religious
beliefs
supported
his
termination
decision
and
RFRA
provides
a
defense
for
employers
with
sincerely
held
religious
beliefs. The
Sixth
Circuit
Court
of
Appeals
(covering
midwestern
states,
but
not
Kansas),
ruled
against
the
business
owner
and
found
that
Title
VII
protects
transgender
employees
and
RFRA
did
Continue Reading...
|
|
Governor Kelly Reinstates LGBT Protections for State Workers
|
01/22/2019
|
By: Travis Hanson
|
As
she
promised
she
would
do,
newly
elected
Kansas
Governor
Laura
Kelly
restored
protections
from
on-the-job
discrimination
for
lesbian,
gay,
bisexual,
and
transgender
state
employees
via
Executive
Order
No.
19-02
on
her
first
full
day
in
office
January
15,
2019.
Former
Governor
Kathleen
Sebelius
had
issued
a
similar
executive
order
in
2007,
which
was
later
rescinded
by
former
Governor
Sam
Brownback
in
2015.
The
Order
protects
state
employees
from
discrimination,
harassment,
and
retaliation
based
on
their
sexual
orientation,
gender
identity,
and
gender
expression,
among
other
protected
classifications.
The
Order
also
expands
the
policy
to
require
state
government
contractors
to
comply
with
the
order
in
their
employment
practices.
Advocates
of
LGBT
rights
view
the
Order
as
a
major
victory
for
LGBT
state
employees
and
a
stepping
stone
towards
extending
these
protections
to
the
entire
private
sector.
Kansas’s
first
openly
lesbian
and
gay
legislators,
Representatives
Susan
Ruiz
and
Brandon
Woodward,
have
announced
that
they
planned
to
introduce
a
bill
that
would
expand
Kansas’
anti-discrimination
law
to
provide
similar
protections
for
employees
of
private
businesses.
The
likelihood
of
such
a
bill
passing
is
unclear,
but
a
growing
number
of
Kansas
employers
are
voluntarily
adding
sexual
orientation
and
gender
identity
as
protected
categories
under
their
Equal
Employment
Opportunity
&
Harassment
policies
in
anticipation
of
a
potential
future
change
in
the
law.
Stay
tuned
for
further
updates
on
this
potential
litigation
as
well
as
other
developments
in
the
2019
legislative
season.
|
|
A Kansas Employers’ Guide to the New Year
|
01/04/2019
|
By: Travis Hanson
|
The
start
of
the
new
year
is
a
perfect
time
for
Kansas
employers
to
address
employment
updates
from
2018
and
prepare
for
possible
changes
coming
in
2019.
In
this
article,
we’ve
summarized
a
few
changes
and
trends
from
2018,
as
well
as
a
few
changes
we
might
see
in
2019.
EEOC
&
Title
VII
Litigation
Trends.
2018
saw
another
increase
in
harassment
and
discrimination
lawsuits
being
filed
nationwide.
In
fact,
EEOC
litigation
filings
have
doubled
since
2016.
One
big
area
of
movement
is
sexual
harassment
cases
and
charges,
which
rose
significantly
in
2018
after
more
than
five
years
of
decreasing
numbers.
We
expect
this
trend
will
continue
into
2019.
Another
trend
is
the
EEOC’s
sustained
efforts
to
push
for
inclusion
of
sexual
orientation
and
gender
identity
as
protected
classes
under
Title
VII,
which
prohibits
discrimination,
“because
of
sex.”
The
Supreme
Court
has
long
held
that
Title
VII
protects
against
discrimination
for
employees
who
don’t
meet
typical
“gender
norms,”
such
as
a
woman
who
is
not
feminine
enough,
but
it
has
not
yet
addressed
head-on
the
questions
of
sexual
orientation
or
gender
identity.
Over
the
last
few
years,
the
EEOC
has
taken
a
clear
position
that
“sexual
orientation
is
inherently
a
‘sex-based
consideration’
and
an
allegation
of
discrimination
based
on
sexual
orientation
is
necessarily
an
allegation
of
sexual
discrimination
under
Title
VII.”
Currently,
Continue Reading...
|
|
Kansas Agencies Ban-the-Box
|
06/11/2018
|
By: Teresa Shulda
|
A
growing
number
of
employers
have
voluntarily
decided
to
eliminate
questions
about
criminal
convictions
and
arrests
from
their
employment
applications.
Koch
Industries,
a
Kansas-based
company
and
one
of
the
country’s
largest
private
employers,
has
been
on
the
leading
edge
of
the
movement.
Now,
Kansas
Governor
Jeff
Colyer
is
joining
the
movement
with
a
recent
executive
order.
What
is
the
“ban-the-box”
movement?
“Ban-the-box”
refers
to
the
box
that
has
historically
appeared
on
many
job
applications
asking
the
applicant
whether
he
or
she
has
ever
been
arrested
or
convicted
of
a
crime.
The
“ban-the-box”
movement
has
been
an
effort
organized
by
civil
rights
organizations
composed
primarily
of
formerly
incarcerated
people
and
their
families.
Statistics
show
that
lack
of
employment
makes
it
more
likely
that
ex-offenders
will
re-offend,
so
those
supporting
this
movement
argue
that
employing
more
individuals
with
criminal
convictions
will
have
a
positive
impact
on
society.
In
essence,
supporters
of
the
movement
advocate
for
enabling
people
with
prior
convictions
to
show
their
qualifications
for
a
position
before
being
automatically
excluded
from
the
job
based
on
their
criminal
record.
Is
it
legal
to
ask
applicants
about
their
criminal
history
on
the
application?
Maybe;
maybe
not.
Currently,
31
states
and
more
than
150
cities
and
counties
have
adopted
laws
or
policies
“banning”
the
box
for
government
positions.
In
other
words,
public-sector
employers
in
these
states
and
cities
cannot
include
inquiries
on
application
forms
that
would
require
the
applicant
to
disclose
arrest
and
conviction
information.
Eleven
states
(California,
Connecticut,
Hawaii,
Illinois,
Massachusetts,
Minnesota,
New
Jersey,
Oregon,
Rhode
Continue Reading...
|
|
The Evolution of Title VII and Sex Discrimination
|
03/09/2018
|
By: Teresa Shulda
|
It
seems
as
though
every
few
months
we
need
to
update
our
understanding
of
what
discrimination
“because
of...
sex”
means
under
Title
VII.
Gay
and
lesbian
employees
continue
to
bring
discrimination
claims
against
employers,
arguing
that
Title
VII’s
prohibition
against
discrimination
“because
of...
sex”
extends
to
sexual
orientation
discrimination.
Well,
it’s
time
for
another
update.
Last
month,
the
Second
Circuit
Court
of
Appeals
issued
a
ruling
in
Zarda
v.
Altitude
Express,
Inc.,
finding
that
sexual
orientation
discrimination
is
motivated,
at
least
in
part,
by
sex,
and
is
thus
a
subset
of
prohibited
sex
discrimination
under
Title
VII.
In
Zarda,
the
plaintiff,
a
skydiving
instructor,
claimed
he
was
terminated
due
to
his
failure
to
conform
to
male
sex
stereotypes
solely
because
he
was
gay.
The
plaintiff
did
not
claim
that
he
failed
to
conform
to
a
masculine
look
or
behavior.
Rather,
he
claimed
it
was
simply
the
fact
that
he
was
gay
and
referenced
his
sexual
orientation
to
clients
and
coworkers
that
led
to
his
termination.
The
Zarda
court
recognized
the
long-standing
rule
that
gender-based
stereotyping
can
violate
Title
VII’s
prohibition
on
discrimination
“because
of...
sex.”
For
example,
in
Price
Waterhouse
v.
Hopkins,
a
case
decided
in
1989,
the
U.S.
Supreme
Court
found
in
favor
of
a
female
plaintiff
who
alleged
that
she
was
denied
partnership,
because
she
did
not
fit
the
male
partners’
idea
of
what
a
female
employee
should
look
and
act
like.
Male
partners
instructed
her
that
she
would
have
a
better
Continue Reading...
|
|
Debate Continues on Whether Title VII Prohibits Discrimination Based on Sexual Orientation
|
04/05/2017
|
By: J. Steven Massoni
|
The
federal
courts
continue
to
wrestle
with
whether
sexual
orientation
is
protected
by
Title
VII
–
the
law
that
prohibits
discrimination
based
on
sex.
Although
most
circuit
courts
of
appeal
(including
the
10th
Circuit
that
covers
Kansas)
hold
that
Title
VII
does
not
cover
sexual
orientation,
recent
court
decisions
have
brought
the
debate
to
the
forefront.
We
told
you
in
a
post
last
August
that
the
7th
Circuit
Court
of
Appeals
had
rejected
the
EEOC’s
position
that
discrimination
based
on
sexual
orientation
violates
Title
VII.
That
Court,
however,
later
vacated
the
earlier
decision,
and
granted
a
rehearing
en
banc.
Then,
on
April
4,
2017,
the
Court
reversed
course
and
ruled
that
discrimination
based
on
sexual
orientation
is
indeed
a
form
of
unlawful
sex
discrimination.
In
late
March,
the
2nd
Circuit
Court
of
Appeals
reached
the
opposite
result
and
ruled
that
under
its
existing
precedent,
Title
VII
does
not
prohibit
discrimination
based
on
sexual
orientation.
In
a
separate
opinion,
two
of
the
three
judges
urged
the
entire
Court
to
reexamine
its
earlier
precedents
in
light
of
the
“evolving
legal
landscape.”
And
in
early
March,
the
11th
Circuit
Court
of
Appeals
held
that
discrimination
based
on
sexual
orientation
was
not
sex
discrimination.
A
dissenting
judge
concluded,
however,
that
“it
[was]
time
that
the
court
recognized
that
Title
VII
prohibits
discrimination
based
on
an
employee’s
sexual
orientation.”
These
conflicting
decisions
are
not
binding
on
other
federal
circuits.
But
they
signal
that
the
Supreme
Court
may
be
called
on
in
the
near
future
to
settle
the
debate.
Continue Reading...
|
|
On Campus Recruiting and Age Discrimination
|
10/19/2016
|
By: Donald Berner
|
In
a
recent
decision,
the
11th
Circuit
Court
of
Appeals
ruled
that
on
campus
hiring
programs
used
by
employers
cannot
serve
as
the
basis
for
an
age
discrimination
claim. The
issue resolved
by
the
Court
revolved
around
whether older
applicants
can
make
the
claim
that on
campus
hiring
creates
a
disparate
impact
against older
applicants. The disparate
impact
theory
approach
was
rejected
by the
Court requiring
older
applicants
to bring
claims
only
for
intentional
bias.
In
plain
language,
the
idea
that
on
campus hiring
disadvantages
older
applicants
was
rejected
by
the
Court
as the
grounds
for
a hiring
discrimination
claim.
Employers
should
keep
in
mind
that
this
ruling
directly
applies
to
only
a
couple
of
states
in
the
southeast.
The
issue
is
still
unresolved
for
most
of
the
country,
although
this
ruling
would
be
persuasive
in
other
areas.
This
is
an
issue
to
keep
an
eye
on
as
other
jurisdictions
grapple
with
these
types
of
age
discrimination
claims
from
older
applicants.
|
|
EEOC's Position on Sexual Orientation Based Discrimination Rejected by the 7th Circuit
|
08/01/2016
|
By: Donald Berner
|
As
most
of
you
probably
already
know,
the
EEOC
has
taken
the
position
that
bias
based
on
sexual
orientation
is
sex
discrimination
in
violation
of
Title
VII.
In
a
decision
issued
by
the
7th
Circuit
Court
of
Appeals
(the
first
federal
circuit
court
of
appeals
to
hear
such
a
case),
the
EEOC's
position
was
rejected.
The
Court
focused
heavily
on
following
the
precedent
established
in
prior
7th
Circuit
cases
in
reaching
its
conclusion.
that
Title VII
does
prohibit bias
on
the
basis
of
sexual
orientation.
This issue
is
likely
to
make
news
through
the
remainder
of
2016
and
throughout 2017
as
other federal
circuit
courts
of
appeals
are
set
to
hear cases
raising
the
same
issue.
In
addition
to
further
court
decisions,
the
Equality
Act
is
pending
in
Congress
which
would
add sexual
orientation
and
gender
identity
to
the
protected
classifications
currently
in
existence under
federal
law.
Stay
tuned
for further
developments.
|
|
Governor Rescinds Anti-Discrimination Protection for LGBT State Employees
|
02/10/2015
|
By: Tara Eberline
|
On
February
10,
2015,
Kansas
Governor
Sam
Brownback
rescinded
an
executive
order
that
provided
persons
employed
by
the
State
of
Kansas
protection
from
discrimination
on
the
basis
of
sexual
orientation
and
sexual
identity.
The
executive
order
was
originally
signed
in
2007
by
then-Governor
Kathleen
Sebelius.
Brownback
stated
that
any
action
to
create
additional
protected
classifications
should
be
done
by
the
legislature
rather
than
by
executive
order.
The
rescinded
executive
order
was
replaced
with
one
that
Brownback
says
“reaffirms
the
commitment
of
the
State
of
Kansas
to
employment
practices
which
do
not
discriminate
based
on
race,
color,
gender,
religion,
national
origin,
ancestry
or
age.”
|
|
OFCCP Proposes Overhaul of Sex-Discrimination Regulations
|
02/03/2015
|
By: Charles McClellan
|
The
Department
of
Labor’s
Office
of
Federal
Contract
Compliance
Program
(OFCCP),
which
regulates
companies
that
contract
or
sub-contract
to
do
business
with
the
federal
government,
issued
proposed
rules
last
week
that
would
replace
the
existing
sex-discrimination
guidelines
for
contractors.
The
proposed
rules
purport
to
account
for
changes
in
sex-discrimination
laws
that
have
occurred
since
the
rules
were
first
adopted
in
1970
and
to
address
current
workplace
issues.
Among
other
changes,
the
proposed
regulations:
·
Shift
emphasis
from
overt
discriminatory
practices
that
no
longer
exist
(such
as
gender-segregated
job
advertisements
or
“male-only”
hiring
policies)
to
more
subtle
forms
of
sex-based
discrimination,
including
sexual
harassment,
sex-based
job
segregation
and
classification,
and
discrimination
based
on
gender-based
stereotypes
related
to
family
caretaking
responsibilities
or
gender
norms.
·
Expand
protections
to
pregnant
applicants
and
employees,
consistent
with
the
1978
Pregnancy
Discrimination
Act,
by,
among
other
things,
prohibiting
employers
from
forcing
pregnant
employees
to
take
leave
or
limiting
their
job
duties
and
by
obligating
employers
to
provide
pregnant
employees
reasonable
accommodations
and,
in
some
situations,
health
or
disability
insurance.
·
Clarify
that
harassment
or
discrimination
based
on
gender
identity
constitutes
unlawful
sex-discrimination.
·
Broadly
define
and
explicitly
prohibit
sex-discrimination
in
compensation
and
fringe
benefits.
|
|
"Like a Girl" Superbowl Commercial
|
02/02/2015
|
By: Donald Berner
|
During
last
night's
Superbowl,
the
P&G
commercial
"Like
a
Girl"
caught
my
attention.
It
was
an
interesting
play
on
how
the
phrase
"Like
a
Girl"
somehow
represents
doing
a
task
poorly
or
as
the
commercial
shows
us
in
a
not
so
athletic
way.
From
an
employment
law
standpoint,
the
idea
that
"Like
a
Girl"
represents
a
weak
or
poorly
performed
action
is
just
the
type
of
approach
that
will
get
employers
into
hot
water.
So
on
this
post-Superbowl
Monday
morning,
give
a
thought
to
what
"Like
a
Girl"
might
mean
to
you.
If
you
buy
into
the
stereotypes
portrayed
in
the
commercial,
you
are
likely
to
be
exposing
your
company
to
liability
at
some
point
down
the
road. As
an
HR professional,
if
you
have
managers/executives
at
your
company
that
buy
into
the
"Like
a
Girl" stereotype,
its
only
a
matter
of
time
until
those
same
managers/executives find
themselves
on
the
wrong
side
of
a
gender
based
discrimination
claim
or
concern.
Now might
be
a
good
time
to
remind your
management team
of
the
perils
of
discrimination
and
your
company's
policies
against
the
same.
|
|
Termination Case Goes South
|
01/20/2015
|
By: Donald Berner
|
A
recent
decision
in
a
Texas
federal
court
case
highlights
for
employers
the
dangers
of
a
sloppy
termination
process.
The
basic
story
is
an
employer
terminated
the
employment
of
a
55
year
old
employee
for
having
a poor
attitude
and
poor
work
performance.
The
employee's
story
differed
in
that
he
claims
he
met
all
requirements
and
his
supervisor
harassed
him.
The
parties
ended
up
in
litigation
and through
the
discovery
process
the
employer's
termination
process
began
to
unravel.
The
employer's
basis
for
the
termination
came
into
doubt
when
the
supervisory
team
could
not
identify
who
made
the
decision
to
terminate
the
employee.
Multiple
supervisors
pointed
in
different
directions
as
to
the
identity
of
the
person
making
the
decision.
In
addition,
the
employer
failed
to
follow
its
own
progressive
discipline
policy
with
respect
to
the
employee.
These
flaws
in
the
termination
process
resulted
in
the
court
providing
the
employee the
opportunity
to
present
his
case
to
the
jury
at
a
trial.
This
outcome
is
a
significant
loss
for
the
employer
and
will
likely
result
in
the
employer choosing
to settle
the
case
with
the
employee
rather
than
go
forward
to
a
trial.
Looking
back at
the facts
of
the
Texas
case,
there
are
a
couple
simple
and obvious
lessons
for
other
employers.
First,
ensure
in
any
termination of
employment
that
you
follow
your
own company
policies/procedures.
If
you
fail
to
follow
your
own
policies/procedures
a
court
or agency
will
doubt
the truthfulness
of
story
you
tell
regarding
the
termination. Second,
make
sure
your
management
team
is
on
the
same
page
with
the
decision-making
process.
If
Continue Reading...
|
|
EEOC Concern About Targeted Job Advertisements
|
11/19/2014
|
By: Donald Berner
|
Does
your
company
utilize
social
media
outlets
to
recruit
employees?
If
so,
you
might
take
a
moment
to
consider
the
EEO
risks
of
utilizing
targeted
advertising
the
social
media
sites
utilize
on
your
behalf.
If
your
social
media
hiring
is
being
targeted
to
a
narrow
set
of
social
media
users
it
could
leave
you
exposed
to
an
accusation
of
discriminatory
hiring
practices.
The
possibility
that
your
ads
are
being
targeted
at
a
specific
age,
race,
gender,
or
ethnic
population
could
attract
the
EEOC's
attention.
This
risk
can
be
particularly
high
if
your
hiring
is
heavily
utilizing
targeted
advertisements
of
this
nature.
|
|
What A Short, Strange Trip It’s Been
|
02/19/2014
|
By: Boyd Byers
|
Has
it
really
only
been
a
week
since
the
Kansas
House
of
Representatives
passed
House
Bill
2453?
Supporters
said
it
simply
protects
religious
liberty.
Opponents
countered
that
it
sanctions
discrimination
against
same-sex
couples;
allows
police
officers,
fire
fighters,
and
other
government
employees
to
refuse
to
provide
basic
or
emergency
services
to
tax
payers;
and
imposes
significant
burdens
on
Kansas
employers.
A
nationwide
hullabaloo
ensued.
House
Bill
No.
2453
is
titled
“an
act
concerning
religious
freedoms
with
respect
to
marriage.”
Section
1
of
the
bill
provides,
“Notwithstanding
any
other
provision
of
law,
no
individual
or
religious
entity
shall
be
required
by
any
governmental
entity
to
do
any
of
the
following,
if
it
would
be
contrary
to
the
sincerely
held
religious
beliefs
of
the
individual
or
religious
entity
regarding
sex
or
gender:
…
Provide
any
services,
accommodations,
advantages,
facilities,
goods,
or
privileges
…
or
provide
employment
or
employment
benefits,
related
to
…
any
marriage,
domestic
partnership,
civil
union
or
similar
arrangement.”
The
term
“religious
entity”
is
broadly
defined
to
include:
(1)
any
“religious
corporation,
association,
educational
institution
or
society;”
(2)
any
entity
“connected
with”
such
a
religious
organization;
or
(3)
“a
privately-held
business
operating
consistently
with
its
sincerely
held
religious
beliefs.”
Section
2
provides
that
individuals
or
religious
entities
that
refuse
to
provide
services,
employment,
or
employment
benefits
“related
to”
any
such
relationship,
because
of
their
religious
beliefs,
are
shielded
from
civil
claims
or
government
penal
action.
Section
2
also
says
that
if
an
employee
of
any
employer
(even
the
government
or
a
non-religious
Continue Reading...
|
|
What's in a Color???
|
02/12/2014
|
By: Donald Berner
|
A
pink
hard
hat.
Completely
harmless
on
its
own,
but
let's
put
the
pink
hat
in
context.
A
pink
hard
hat
is
provided
to
a
female
field
service
representative. The
field
rep
frequently
visits
work
sites
and
needs
to
wear
PPE,
including
a
hard
hat.
She
works
in
a
heavily
male
industry
and
is
one
of
the
few
females
working
in
the
field.
The
pink
hard
hat
is
said
to
be
a
sign
of
"inclusion"
making
the
field
rep
"part
of
the
team"
since
it
symbolizes
her
acceptance
by
the
male
employees
in
the
field.
She's
told
that
only
a
few
of
the
office
staff
(also
female)
have
pink
hard
hats
and
she
is
lucky
to
have
one.
So
what's
in
a
color?
The
color
of
this
hard
hat
is
not
just
coincidence.
It
is
gender
stereotyping
in
action.
Stereotyping
is
nothing
new;
it
is
an
age-old
way
for
people
to
categorize
information.
Stereotypes
are
not
inherently
negative
or
illegal
--
in
fact,
there
are
positive
associations
that
can
be
made.
With
that
said,
employers
should
be
extremely
wary
of
any
sort
of
mass
generalizations.
Stereotypes
can
cover
the
entire
spectrum
ranging
from
gender,
age,
race,
religion,
marital
status,
sexual
orientation,
national
origin
and
these
sort
of
biases
can
be
especially
costly
in
the
workplace.
Stereotyping
can
lead
to
a
variety
of
harms
including
poor
morale,
retention
difficulty,
lost
productivity
and
even
litigation.
At
its
core,
stereotyping
leads
to
the
creating
of
factions
with
the
workplace
thus
undermining
a
cohesive
work
environment.
As
Continue Reading...
|
|
EEOC FY2013 Data Shows Growth in EEOC Activity
|
02/05/2014
|
By: Donald Berner
|
The
EEOC recently
released
its
FY2013
enforcement
and
litigation
data
for
public review. The
data
shows
a
decline
in
the
total
number
of
charges
filed
with
the
EEOC as
compared
to
the
totals
for
2010,
2011
and
2012.
Of
note,
however,
is
the
growth
in
the
number
of
retaliation
charges
filed
as the
statistics
continue
to
show
a
growth
in
the
number
of
charges
based
on
retaliation
claims.
Employers
should
take
note
and
ensure
their
policies
and
procedures
address
retaliation
concerns. Furthermore,
employers
should
consider
additional
training
for
managers
as
it
relates
to
potential
retaliation.
Click
here
for
the
new
release
and
link
to
the
statistical
data.
|
|
Hidden Bias Revisited
|
01/31/2014
|
By: Boyd Byers
|
Earlier
this
month
The
Wall
Street
Journal
ran
an
interesting
article
about
hidden
or
unconscious
biases
and
their
influence
on
workplace
decisions.
Such
blind
spots
can
be
based
on
height,
tattoos,
and
gregariousness,
as
well
as
protected
characteristics
such
as
race
and
age.
Aside
from
the
obvious
legal
implications,
the
failure
to
overcome
hidden
biases
can
result
in
bad
decisions,
costing
companies
money.
So,
as
the
article
reports,
more
U.S.
companies
are
providing
unconscious-bias
training.
Years
ago
I
wrote
an
article
about
hidden
bias
in
the
workplace,
and
what
employers
can
do
to
identify
and
address
it.
(Who
knew
back
then
that
I
was
so
cutting
edge?)
You
can
read
it
by
clicking
here:
Freakonomics,
the
Weakest
Link,
and
Implicit
Bias.
|
|
EEOC Releases End of Year Report
|
12/17/2013
|
By: Donald Berner
|
The
EEOC released
its
fiscal
year
2013
report
earlier
this
week. The
EEOC's
overall
message
is
that despite
a
tough
year
with
furloughs
and
reduced
budgets,
the
agency
achieved
all
its
goals. In
2013,
the
EEOC reached
a
new
record
for
monetary
relief
obtained
on
behalf
of
claimants.
Piecing
together
the
various
numbers
throughout
the
report,
it
appears
that
over
half
of
the
monetary
relief
came
by
way
of
settlement
agreements
with
employers.
In
keeping
with
that
settlement
theme, the success
of
the
mediation
program
last
year
was
also
emphasized
in
the
report. To
view
the
full
report
click
here.
|
|
Holiday Party Fun
|
12/09/2013
|
By: Donald Berner
|
It
is
that
time
of
year
again.
Now
that
we
have
cleared
Thanksgiving,
we
are
into
the
homestretch
to
Christmas
and
the
New
Year.
As
they
say
-- "Tis
the
Season".
Well
it is
the
season for
the
annual
holiday
party
or
in
some
circles a
series
of parties
until
the
holidays
are
gone. Before
your company
holds
its
holiday
party,
take
a
quick
review
of
this
post
and
make
sure
you
are
all
set
in
the
HR office.
1.
Be
careful
with
the
alcohol.
If you
are
going
to
serve
alcohol do
your
best
to apply
some
sane
limits
upon
your
partygoers.
And
by
all
means
make
sure
that
before you
turn
off
the
lights
and
send
everyone
home
that
you
have
taken
care
of
providing
some
form of
transportation
to
those
that
failed
to
limit
themselves.
2.
It's
a
great
time
to shine
some
light
on
your
productive
work environment
policy
(anti-harassment). For
those
that
serve
alcohol
(see #1
above), harassment
concerns
may
rear
their
ugly
heads
at
the
holiday
party.
And
while
everyone
else
is
having
a
good
time,
keep
your
eye
out for problems
in
this
area
and step
in
before
it
gets
past
the
point
of
no return.
3.
If
you
have
employees
involved
in
any
of
the
setting
up
or
cleaning
up
beware
of
wage
and
hour
rules.
Remember,
employees
are
not
volunteers.
4.
Do
your
best
to
keep
the
various
religious
references
out
of
the
holiday
party.
Remember,
your
employee
group
is
diverse
and
what
might
be
acceptable
to
one
could
offend
another.
Keeping
an
eye
on
these
little
things
prior
to,
or
during,
the
holiday
party
can
help
avoid
Continue Reading...
|
|
Happy Halloween!
|
10/30/2013
|
By: Donald Berner
|
It's
almost
Halloween.
A
night
when
young
kids
dress
up
and
roam
the
streets
crying
out
"TRICK
OR
TREAT"
in
hopes
of
getting
bags
full
of
candy.
For
some
adults,
Halloween
is
a
big
holiday.
It's
a
time
to
dress
in
costume
and
go
to
parties
of
their
own
without
the
kids.
Keep
in
mind
that
Halloween
can
be
a
tricky
holiday
in
the
workplace.
The
origins
of
the
holiday
are
rooted
in
religious
related
concepts
(click
here
for the
unofficial
history
of Halloween).
These
religious
roots
can
make
Halloween
in
the
workplace
more
trick
than
treat.
The
holiday
meets
resistance
from
those
who
practice
Islam,
Judaism,
and
Christianity.
Some
have
very
strong
beliefs
about
Halloween.
With
that
in
mind,
if
your
workplace
celebrates
Halloween
or
requires
employees
to
dress
in
costume,
be
mindful
of
employees
with
religious
objections
to
such
activity. Should
an
employee
object,
ensure
you
carefully
handle
these
objections
to
avoid
religious
discrimination
concerns.
|
|
New Affirmative Action Rules for Government Contractors
|
10/16/2013
|
By: Boyd Byers
|
Federal
contractors
and
subcontractors
now
must
adopt
quantifiable
goals
for
the
employment
of
individuals
with
disabilities
and
protected
veterans,
according
to
new
regulations
issued
by
the
U.S.
Department
of
Labor’s
Office
of
Federal
Contract
Compliance
Programs.
The
new
Rehabilitation
Act
regulations
require
contractors
to
establish
a
“utilization
goal”
of
having
7
percent
of
their
workforce
be
comprised
of
persons
with
disabilities.
Similarly,
the
new
regulations
under
the
Vietnam
Era
Veterans’
Readjustment
Assistance
Act
(VEVRAA)
require
contractors
to
establish
a
“benchmark”
for
hiring
veterans.
Contractors
may
either
use
the
national
percentage
of
veterans
in
the
civilian
labor
force,
which
currently
stands
at
8
percent,
or
develop
their
own
hiring
benchmark
based
on
factors
listed
in
the
regulations.
Both
sets
of
new
regulations
point
out
that
the
respective
utilization
goals
and
benchmarks
are
neither
rigid
quotas,
nor
are
they
floors
or
ceilings
on
the
hiring
and
employment
of
individuals
with
disabilities
or
protected
veterans.
A
contractor’s
failure
to
meet
these
metrics,
however,
will
invite
government
scrutiny
into
the
adequacy
of
its
affirmative
efforts
to
recruit
and
employ
members
of
these
protected
classes.
In
addition
to
these
new
metrics,
the
regulations
impose
additional
data
collection,
self-identification,
and
other
requirements
on
contractors.
For
example,
contractors
now
must
collect
and
retain
data
regarding
the
total
number
of
job
openings
and
jobs
filled;
the
total
number
of
job
applicants
and
the
number
of
applicants
known
to
have
disabilities
or
to
be
veterans;
Continue Reading...
|
|
‘Not so fast,’ Kansas AG tells EEOC
|
08/28/2013
|
By: Boyd Byers
|
The
college
football
season
is
upon
us.
Which
means
the
return
of
the
antics
and
banter
of
Lee
Corso,
Kirk
Herbstreit,
and
Chris
Fowler
on
ESPN’s
College
GameDay program.
As
part
of
their
weekly
shtick,
Herbstreit
makes
a
prediction
about
a
game,
to
which
Corso
expresses
wild
disagreement,
uttering
his
catchphrase,
“Not
so
fast,
my
friend!”
Last
year
the
Equal
Employment
Opportunity
Commission
issued
controversial
enforcement
guidance
regarding
the
use
of
arrest
and
conviction
records
in
employment
decisions.
This
summer
the
EEOC
put
its
playbook
into
action
by
suing
two
employers,
BMW
and
Dollar
General,
for
their
use
of
criminal
background
checks. In
response,
the
Kansas
Attorney
General
(along
with
the
AGs
from
eight
other
states)
said,
“Not
so
fast!”
Well,
not
literally.
And,
unlike
Lee
Corso,
they
did
not
say
“my
friend.”
What
the
AGs
actually
said,
in
an
open
letter
to
the
EEOC,
is
that
the
guidance
and
lawsuits
are
“misguided”
and
“a
quintessential
example
of
gross
federal
overreach.”
Boo
Yah!
Things
went
from
bad
to
worse
for
the
EEOC
two
weeks
later,
when
a
federal
court
punted
the
commission’s
lawsuit
against
another
employer
based
on
its
use
of
criminal
background
checks.
The
EEOC
alleged
that
the
background
checks
caused
a
disparate
number
of
African-American
and
male
workers
to
be
disqualified
from
jobs.
But
the
court
threw
out
the
case,
calling
the
EEOC’s
analysis
“flawed,”
“rife
with
analytical
errors,”
“laughable,”
and
“an
egregious
example
of
scientific
dishonesty."
Read
the
play-by-play
below.
EEOC
game
plan
|
|
Miss Utah and the Equal Pay Act
|
08/21/2013
|
By: Boyd Byers
|
She
didn’t
win
the
crown,
but
Miss
Utah
made
the
most
news
after
the
Miss
USA
pageant
this
summer.
Her
bungled
response
to
a
question
about
the
gender
pay
gap
went
viral
and
was
seen
by
millions
on
the
Internet.
But
it
also
generated
serious
discussion
about
equal
pay.
'Create
education
better'
The
question:
“A
recent
report
shows
that
in
40
percent
of
families
with
children,
women
are
the
primary
earners,
yet
they
continue
to
earn
less
than
men.
What
does
this
say
about
society?”
Miss
Utah’s
answer:
“I
think
we
can
relate
this
back
to
education
and
how
we
are
continuing
to
try
to
strive
to
…
[long
pause]
figure
out
how
to
create
jobs
right
now—that
is
the
biggest
problem.
And,
I
think,
especially
the
men
are,
um,
seen
as
the
leaders
of
this
and
so
we
need
to
figure
out
how
to
create
education
better
so
that
we
can
solve
this
problem.”
Cringe.
Predictably,
Miss
Utah’s
epic
fail
lit
up
the
twitterverse
and
blogosphere.
But
she
got
a
chance
at
Web
redemption
on
the
“Today”
show
a
few
days
later.
She
told
host
Matt
Lauer
that
the
question
was
“confusing”
to
her.
So
he
gave
her
a
do-over.
Her
new
(scripted
and
rehearsed)
answer
was
far
better:
“So
this
is
not
okay,
it
needs
to
be
equal
pay
for
equal
work,
and
it's
hard
enough
already
to
earn
a
living
and
it
shouldn't
be
harder
just
because
you're
a
woman."
|
|
EEOC Sues Employers Over Criminal Background Checks
|
06/19/2013
|
By: Boyd Byers
|
Last
year
the
EEOC
issued
Enforcement
Guidance
on
the
Consideration
of
Arrest
and
Conviction
Records
in
Employment
Decision
Under
Title
VII
of
the
Civil
Rights
Act
of
1964.
As
explained
in
the
Guidance,
an
employer's
use
of
an
individual's
criminal
history
in
making
employment
decisions
may,
in
some
instances,
violate
prohibitions
against
employment
discrimination,
particularly
with
regard
to
race
and
national
origin.
This
can
occur
when
an
employer's
neutral
policy
disproportionately
impacts
persons
of
a
particular
race
or
national
origin,
and
the
policy
is
not
job-related
and
consistent
with
business
necessity. Last
week
the
EEOC
put
its
money
where
its
mouth
is
by
suing
two
employers,
BMW
and
Dollar
General,
for
their
use
of
criminal
background
checks.
In
the
suit
against
BMW,
the
EEOC
alleges
that
BMW
disproportionately
screened
out
African
Americans
from
jobs,
and
that
the
policy
is
not
job
related
and
consistent
with
business
necessity.
The
EEOC
alleges
that
after
BMW
ended
its
contract
with
UTi
Integrated
Logistics,
Inc.
("UTi"),
which
provided
logistic
services
to
BMW
at
a
manufacturing
facility,
UTi
employees
were
informed
of
the
need
to
re-apply
with
the
new
contractor
to
retain
their
positions
in
the
BMW
warehouse.
As
part
of
the
application
process,
BMW
directed
the
new
contractor
to
perform
new
criminal
background
checks
on
every
current
UTi
employee
applying
for
transition
of
employment.
The
new
contractor
subsequently
discovered
that
several
UTi
employees
had
criminal
convictions
in
violation
of
BMW's
criminal
conviction
policy.
As
a
result,
those
employees
were
told
that
they
no
longer
met
the
Continue Reading...
|
|
A Million Dollars a Day Helps Keep Discrimination Away
|
11/21/2012
|
By: Boyd Byers
|
There
are
365
days
in
a
year.
In
fiscal
year
2012
the
EEOC
collected
$365
million
for
private-sector
discrimination
claimants.
Coincidence?
(Cue
eerie
music.)
In
its
2012
Performance
and
Accountability
Report,
released
last
week,
the
EEOC
touts
not
only
its
record-high
$365.4
million
recovery,
but
also
its
10
percent
reduction
in
charge
backload
for
two
years
running.
In
short,
the
agency
is
processing
claims
faster
and
extracting
more
settlement
money
from
employers.
Other
EEOC
statistics
you
might
want
to
know:
- The
total
number
of
charges
filed
with
the
EEOC
has
been
in
the
100,000
range
for
three
years
in
a
row.
- The
average
processing
time
to
resolve
charges
dropped
by
17
days,
from
305
days
to
288
days.
- Twenty
percent
of
the
cases
on
the
docket
involve
allegations
of
systemic
discrimination,
the
largest
proportion
of
such
cases
since
the
EEOC
has
tracked
this
statistic.
This
met
the
agency’s
newly
established
baseline
of
having
at
least
20
percent
of
the
active
case
docket
consist
of
“systemic
cases,”
which
are
defined
as
pattern-or-practice,
policy,
or
class
cases
where
the
alleged
discrimination
has
a
broad
impact
on
an
industry,
occupation,
business,
or
geographic
area.
|
|
Do You Know? Job Protection for Employees Who Experience Domestic Violence
|
10/31/2012
|
By: Boyd Byers
|
On
October
12,
the
EEOC
issued
guidance
titled
“Questions
and
Answers:
The
Application
of
Title
VII
and
the
Americans
with
Disabilities
Act
to
Applicants
or
Employees
Who
Experience
Domestic
or
Dating
Violence,
Sexual
Assault,
or
Stalking.”
The
guidance
recognizes
that
federal
EEO
laws
do
not
prohibit
discrimination
on
these
bases,
per
se,
but
explains
how
these
laws
may
apply
to
such
situations.
Examples
include:
- A
manager
fires
a
female
employee
after
learning
she
was
subjected
to
domestic
violence
because
he
fears
the
"potential
drama
battered
women
bring
to
the
workplace.”
- An
employer
refuses
to
allow
an
employee
extra
time
off
work
for
treatment
of
anxiety
or
depression
resulting
from
domestic
violence.
But
do
you
know
that
Kansas
law
specifically
allows
employees
to
take
time
off
work
to
deal
with
the
effects
of
domestic
violence
or
sexual
assault?
Kansas
employers
are
required
to
allow
employees
time
off
from
work:
- To
obtain
restraining
orders
or
other
injunctive
relief
in
domestic
violence
or
sexual
assault
situations;
- To
seek
medical
attention
for
injuries
caused
by
domestic
violence
or
sexual
assault;
or
- To
obtain
services
from
a
domestic
violence
or
sexual
assault
center
shelter.
An
employee
should
give
the
employer
reasonable
advance
notice
of
the
intention
Continue Reading...
|
|
A Tale of Two Kansas Cities: Voters Will Decide Whether to Ban Employment Discrimination Based on Sexual Orientation
|
10/24/2012
|
By: Boyd Byers
|
On
election
day,
voters
in
Hutchinson
and
Salina
will
decide
whether
to
prohibit
employment
discrimination
based
on
sexual
orientation.
Neither
federal
law
nor
Kansas
law
provides
such
protection.
However,
21
states
and
400
cities
have
enacted
similar
laws.
Lawrence
passed
an
ordinance
banning
discrimination
based
on
sexual
orientation
in
1995.
In
2007,
Governor
Sebelius
issued
an
executive
order
that
protects
Kansas
state
employees
from
workplace
discrimination
based
on
sexual
orientation
and
gender
identity.
The
Salina
City
Commission
passed
an
ordinance
that
prohibits
discrimination
based
on
sexual
orientation
in
employment,
housing,
and
public
accommodation
in
May.
After
that
decision,
a
petition
was
presented
to
put
the
issue
to
a
public
vote.
In
Hutchinson,
the
City
Council
added
sexual
orientation
and
gender
identity
as
protected
classes
under
the
city’s
civil
rights
code
in
June.
But
in
September,
faced
with
a
petition
challenging
the
ordinance,
the
Council
voted
to
repeal
it
and
instead
let
the
public
decide
the
question
in
the
November
election.
|
|
Avoiding Discrimination Claims - Good Investigations
|
10/16/2012
|
By: Donald Berner
|
In
most
cases,
a
discrimination
claim
arises
following
some
sort
of
disciplinary
process
or
performance
counseling
activity.
In
more
limited
cases,
the
external
claim
follows
some
concern
raised
internally
with
the
employee
being
dissatisfied
with
the
resolution
reached
during
the
internal
process.
In
all
of
these
situations,
the
employer
should
have
conducted
an
internal
investigation
into
the
matter.
The
quality
of
the
internal
investigation
will
have
a
significant
impact
on
the
later
external
claim
the
employee
files
with
the
KHRC/EEOC.
In
the
case
of
employee
misconduct,
the
internal
investigation
will
provide
the
basis
for
the
discipline
that
is
ultimately
issued
in
the
matter.
The
documentation
of
the
investigation
will
go
a
long
way
to
supporting
the
employer's
defense
to
a
discrimination
claim
if
the
investigation
was
handled
appropriately.
The
key
to
any
investigation
is
to
be
thorough
and
fair
as
the
facts
and
circumstances
are
evaluated.
A
good
investigation includes
interviews
of
any
and
all
witnesses
to
the
situation,
even
if
the
witness
will
provide
information
that
is
contradictory
to
the
position
the
management
team
has
taken.
Trust
me
on
this
one
--
it
is
much
better
to
find
out
all
the
sordid
details
during
the
internal
investigation
than
to
be
hit
over
the
head
with
those
bad
facts
months
(or
even
years)
after
the
fact
during
an
external
investigation.
|
|
Avoiding Discrimination Claims - Good Documentation
|
10/12/2012
|
By: Donald Berner
|
If
you
have
worked
in
HR
or
management
for
more
than
a
few
days
you
are
sure
to
have
heard
several
times
by
now
to
document
and
then
document
and
then
document.
This
old
employment-law
adage
remains
true
today.
Maintaining
documentation
of
your
employment
decisions
can
be
the
difference
between
being
able
to
successfully
defend
a
discrimination
claim
and
losing
on
that
claim.
The
typical
discrimination
charge
filed
with
the KHRC/EEOC
covers
factual
events
that
range
anywhere
from
three
months
old
to
several
years
old.
If
you
are
anything
like
me,
remembering
where
I
was
at
two
years
ago
today
is
virtually
impossible
let
alone
what
happened
during
a
three-minute
conversation
with
a
co-worker.
That's
where
documentation
comes
into
play.
I
want
to
expand
a
bit
on
that
concept
of
documenting
to
add
in
the
notion
that
what
you
are
really
after
is
good
documentation.
Any
employment
decision
made
should
be
supported
with
documentation
reflecting
that
action.
The
documentation
can
be
simple
notes
written
by
a
supervisor
or
a
full-scale
form
detailing
actions
taken
and
the
reasons
for
the
action.
In
most
cases,
the
documentation
will
be
an
accurate
and
true
reflection
of
the
events
being
noted
and
will
be
given
much
more
weight
two
years
later
than
a
supervisor
or
employee's
recollection
of
the
events.
That's
what
makes
good
documentation
so
important
--
it
is
not
subject
to
revisionist
memory
since
it
was
created
at
the
time
of
the
event.
One
last
note:
the
documentation
maintained
in
an
employee's
personnel
file
should
Continue Reading...
|
|
Supreme Court Begins New Term
|
10/02/2012
|
By: Boyd Byers
|
Yesterday
the
Supreme
Court
officially
opened
its
2012-2013
term. The
justices
denied
review
of
304
cases,
including
48
employment-related
decisions. One
of
these
cases
is
particularly
significant
for
Kansas
employers.
In
that
case,
the
Court
let
stand
a
ruling
by
the
U.S.
Court
of
Appeals
for
the
Tenth
Circuit
in
favor
of
a
Kansas
school
district. The
appeals
court
had
held
that
the
Lilly
Ledbetter
Fair
Pay
Act
applies
only
to
claims
that
employees
did
not
receive
equal
pay
for
equal
work,
and
that
this
does
not
encompass
demotion
claims,
even
if
the
demotion
results
in
a
pay
cut. (The
Ledbetter
law,
as
you
may
recall,
amended
Title
VII,
the
ADEA,
and
the
ADA
to
provide
that
the
time
for
filing
a
pay
discrimination
claim
is
triggered
with
each
paycheck
that
reflects
a
past
discriminatory
compensation
decision
or
practice.)
Accordingly,
the
Ledbetter
Act
did
not
excuse
two
school
custodians’
failure
to
file
a
timely
age
discrimination
claim
within
300
days
of
learning
of
their
demotions. The
case
is
titled
Almond
v.
Unified
Sch.
Dist.
501.
|
|
Avoiding Discrimination Claims - Training
|
9/27/2012
|
By: Donald Berner
|
If
an
employer
has
a
set
of
policies
and
practices
in
place,
educating
the
employees
and
the
management
team
is
a
critical
link in
reducing
the
likelihood
of
a
discrimination
claim.
The
training
for
employees
will
differ
somewhat from
the
training
provided
to the management
team.
With
respect
to
employees,
the
new-hire orientation process
should
contain a
general
overview of
company
policies
and
rules.
In
addition,
it
is
always
a
good
practice
to
have the
employees
sign an
acknowledgment
that
they
were
made
aware
of
the
policies
and
rules
in
place.
Beyond
a
general new-hire-training
process,
it
is
also
helpful
to
conduct periodic training
sessions
for
employees
focused
on
non-discrimination
and anti-harassment
policies,
as
well
as
any
specific
company
rules
that
need
additional
emphasis.
With
respect
to the
anti-harassment and
non-discrimination
training,
it is
important
to
emphasize
the
internal process
by
which
complaints
under
those
policies
can
be
made.
This
internal
complaint
process will
be
helpful
in
that
it
will
encourage
employees
to
keep
complaints
internal
and
may
provide
the
employer
with
the
ability
to
assert
some
affirmative
defenses
if
the
employees
fail
to
follow
a
complaint
process.
The
management
team
should
receive
the
same
training
as
non-management
employees,
as
well
as
additional
training
on
topics
including
the
FMLA,
ADA,
Title
VII,
and
the
FLSA.
It
is
important
for
supervisory
employees to
understand
the
employer's basic
obligations
and
practices
with
respect
to
these
various
statutes.
These
management
employees
are
likely
to
be
the
first
employer
representative
to
encounter
a
concern
implicating
these
statutes,
so
they
need
to
understand
the
basics
to
ensure
they
properly
respond
to
the
employee.
Another
key
part
of
the
Continue Reading...
|
|
Avoiding Discrimination Claims - Policies Pt. 2
|
09/25/2012
|
By: Donald Berner
|
The
last
installment
discussed
a
couple
of
important
policies
-
EEO
and
anti-harassment
-
that all
employers
should
have
in
their
policy
collection
to
help
avoid
discrimination
claims.
Beyond
those
two
policies,
employers
should
also
have
a
wide-ranging
variety
of
policies
related
to
how
employees
should
conduct
themselves
in
the
workplace.
These
various
policies
will
cover
all
sorts
of
disciplinary
and
performance
issues
and
will
vary
from
employer
to
employer.
While
having
the
policies
is
helpful,
the
next
key
to
avoiding
discrimination
claims
is to
ensure
these
wide-ranging
policies
are
followed
as
written
by
the
employer.
If
an
employer
policy
addresses
a
situation,
the
actions
taken
by
the
employer
should
be
consistent
with
the
policy.
And
beyond
being
consistent
with the
policy,
the
actions
taken
should
be consistent
how
the
employer
handled past
instances
of
violations
of
the
policy.
An
employer
that
deviates
from
the
terms
of
its
own
policies
or from
its
past
practices may
find
it
difficult
to
defend
the
employment
action
taken.
You
can
be
sure
the
employee
filing
the
charge
will
claim
the
deviation
is
a
result
of
the
employee's
protected
classification
as
opposed
to the
employer's
insistence
the
action
was based
upon
the policy
violation.
So
remember,
follow
the
policy
as
written
and
make
sure
any
employment
action
taken
is
consistent
with
how violations
have
been
handled
in
the
past.
A
failure
to
do
so
will
invite employee-discrimination
claims.
|
|
Avoiding Discrimination Claims - Policies
|
09/21/2012
|
By: Donald Berner
|
As
most
of
you
know, any
of
your
employees (or
former
employees) can
file
a
discrimination
charge
with
the
EEOC
or
KHRC
alleging
your
company
discriminated
against
them
on
the
basis
of
any
(or
several)
protected
classifications
under
the
various
statutes
like
the
ADA or
Title
VII.
When
a
charge
is
filed,
the
employer
will
almost
always
be
required
to
respond
to
the
agency
and
provide
a
variety
of
supporting
materials
and/or
materials
requested
by
the
agency.
These
investigations
also
frequently
involve
the
agency
sending
an
investigator
to
your
workplace
to
interview
witnesses
(managers
and
co-workers
of
the
complaining
party).
This
process
can
be
time
consuming
for
employers
and
serve
as
a
distraction
from
the
normal
course
of
business
for
the
employer.
The
best
defense
to
a
discrimination
charge
is
to
exercise
good
preventive
medicine.
Over
the
next
few
weeks,
check
back
for
a
series
of
posts
highlighting
some
good
preventive
measures
an
employer
can
take
to
avoid
a
discrimination
charge.
And even
if
these
measures
don't
prevent
a
charge, following some
or
all
of
them
will
make
defending
the
charge
a
much
easier
task.
So
let's
get
started.
The
first
line
of
defense
revolves
around
employer
policies.
Every
employer
should
implement EEO-related
policies
and
procedures.
The
basic
EEO
policy
should
reinforce
the
employer's
commitment
to
equal
employment
opportunity
and
to making
employment-related
decisions
without
considering
protected
classification
information.
In
addition
to
an
EEO policy,
employers
should
also
have
a
policy
related
to
harassment
issues.
The
anti-harassment
policy
should
cover
sexual
harassment
and
other
forms
of
harassment
based
on
protected
classifications.
It
is
Continue Reading...
|
|
EEOC Strategic Enforcement Plan Published
|
09/11/2012
|
By: Donald Berner
|
The
EEOC
published
a
draft
version
of
its
Strategic
Enforcement
Plan
last
week.
Of
particular
note
for
employers
is
the
priorities
section
of
the
document,
which
identifies
the
areas
in
which
the
EEOC
will
place
special
emphasis
in
the
future.
Some
of
the
areas
of
emphasis
will
include:
- Hiring
Discrimination:
The
gist
of
this
effort
is
to
target
employers
with
hiring
practices
that
discriminate.
While
this
seems
easy
enough
to
understand,
keep
in
mind
that
a
neutral
policy
or
practice
that
has
an
adverse
impact
on
a
protected
classification
is
just
as
much
a
problem
as
a
policy
that
directly
discriminates.
- Immigrants
and
Migrant
Workers:
The
EEOC
views
this
segment
of
the
population
as
vulnerable
and
exploited
and
intends
to
pay
special
attention
to
the
treatment
of
these
groups.
- Pregnancy
Accommodation:
The
EEOC
seems
to
believe
that
pregnant
women
are
placed
on
unpaid
leave
when
other
employees
are
provided
accommodations
and
will
be
paying
special
attention
to
this
concern.
There
are
some
other
areas
of
emphasis
that
shouldn't
come
as
a
surprise
(like
ADA
enforcement). You
can
review
the
full
document
here. To
see
the
priorities
scroll
down
to
Section
III
of
the
document.
|
|
Fluoride, Freakonomics, and Employment Discrimination
|
08/22/2012
|
By: Boyd Byers
|
Wichita
is
one
of
the
few
large
cities
in
the
U.S.
that
does
not
fluoridate
its
water. The
battle
over
fluoridating
the
city’s
water
supply
has
waged,
on
and
off, for
over
half
a
century. This
week
the
City
Council
declined
to
decide
the
issue,
leaving
it
up
to
public
vote. Proponents
argue
that
water
fluoridation
is
a
proven
safe
and
effective
way
to
prevent
tooth
decay
that
would
save
Wichitans
millions
of
dollars
a
year
in
costs
for
preventable
dental
reconstruction. But
can
fluoridation
also
improve
wage-earning
potential
for
women?
Women
who
grow
up
in
communities
with
fluoridated
water
earn
about
four
percent
more
than
women
who
do
not
(after
accounting
for
all
other
variables). This
is
according
to
a
study
featured
in
the
book
SuperFreakonomics
(follow-up
to
Freakonomics,
the
best-seller
that
applies
economic
analysis
to
everyday
issues). The
effect
is
mostly
concentrated
among
women
from
families
of
low
socioeconomic
status
(who
are
less
likely
to
prevent
or
fix
dental
problems
that
stem
from
lack
of
fluoride). Employer
and
consumer
discrimination
are
the
likely
factors
that
cause
oral
health
to
impact
earnings,
according
to
the
research. This
could
be
based
not
only
on
less
attractive
physical
appearance,
especially
for
positions
that
involve
customer
interaction,
but
also
on
a
perception
that
bad
teeth
equate to
poor
health
or
poor
personal
hygiene.
Access
to fluoridated
water
during
childhood did
not
have
a
negative
effect
on
men’s
incomes,
however. (See
The
Economic
Value
of
Teeth.)
The
existence
of
a
labor
market
penalty
for
bad
teeth
is
not
surprising. Economists
have
long-recognized
that
physical
appearance affects
wages—the
so-called
“beauty
Continue Reading...
|
|
Employer Flunks the Test with Pre-Employment Testing
|
08/16/2012
|
By: Donald Berner
|
The
use
of
pre-employment
testing
by
employers
has
become
more
common
in
recent
times.
In
most
cases,
the
testing
is
conducted
by
outside
vendors
offering
these
types
of
services
to
multiple
groups
of
employers.
While
these
tests
seem
to
be
a
good
idea
to
most
employers,
it
is
important
to
make
sure
they
pass
muster
with
the
various
administrative
agencies
at
the
federal
and
state
level.
In
a
recent
example
of
a
test
gone
wrong,
the
OFCCP took
issue
with
an
employer's
written
testing
program.
The
test
had
an
adverse
impact
on
minority
applicants
and
failed
to
meet
the
EEOC's
Uniform
Guidelines
on
Employee
Selection
Procedures. In
this
recent
case,
the
OFCCP
reached
a
$550,000
settlement
with
the
employer.
Click
here
for
the
OFCCP press
release.
While
having
the
OFCCP
involved
might
suggest
this
is
only
an
issue
for
written
tests
and
government
contractors, don't
be
misled.
This
is
only
an
OFCCP issue
because
the
problem
was
uncovered
by
an
OFCCP audit
of
the
employer.
The
EEOC's
requirements
in
this
area
apply
to
all
employers.
In
addition,
the
selection
guidelines
apply
to
all
types
of
pre-employment
testing,
ranging
from
written
testing
to
skills
testing
to
strength-and-agility
testing.
If
your
company
conducts
these
types
of
tests,
it
is
important
to
ensure
there
is
not
an
adverse
impact
on
a
specific
class
of
individuals.
If
there
is
an
adverse
impact,
the
employer
can
still
defend
the
testing
measure
if
the
employer
can
show
the
test
is
an
accurate
predictor
of
a
candidate's
ability
to
perform
a
job.
This
is
where
Continue Reading...
|
|
A Rose by Any Other Name?
|
04/16/2012
|
By: Boyd Byers
|
Having
a
simple,
easy-to-pronounce
name is
more
likely
to
win
you
friends
and
favor
in
the
workplace,
according
to
a
new
study
published
in
the
Journal
of
Experimental
Social
Psychology.
Researchers,
conducting
studies
using
a
range
of names
from
Anglo,
Asian,
and
European
backgrounds,
found
that
people
with easy-to-pronounce
names
are
evaluated
more
positively
and
more
likely
to
receive
job
promotions.
"Research
findings
revealed
that
the
effect
is
not
due
merely
to
the
length
of
a
name
or
how
foreign-sounding
or
unusual
it
is,
but
rather
how
easy
it
is
to
pronounce,"
according
to
lead
author, Simon
Laham
from
the
University
of
Melbourne
in
Australia. Subtle
biases
that
we
are
not
aware
of
affect
our
decisions
and
choices,
he
says. This
could
have important
implications
for
the
management
of
bias
and
discrimination
in
the
workplace
and
society. "It's
important
to
appreciate
the
subtle
biases
that
shape
our
choices
and
judgments
about
others.
Such
an
appreciation
may
help
us
de-bias
our
thinking,
leading
to
fairer,
more
objective
treatment
of
others,"
Laham
says.
|
|
EEOC Says High School Diploma Requirement May Violate ADA
|
04/09/2012
|
By: Boyd Byers
|
About
a month
from
now
high
school seniors
will
be
donning
funny
looking
caps
and
gowns
and
parading
across
stages
to
receive their
hard-earned
diplomas.
But
employers
who
require
a
high
school
diploma
or GED
as
a
condition
of
employment
need
to
make
sure this
requirement is
job-related
and
consistent
with
business
necessity,
and
that
it
doesn't
screen out
individuals
who
cannot
obtain
a
diploma
because
of
a
learning
disability.
The
Equal
Employment
Opportunity
Commission
recently
published new
guidance
on whether
an
employer's
requirement
that
a
job
applicant
have
a
high
school
diploma
may
violate
the
Americans
with
Disabilities
Act.
The
guidance
is
in
response
to
an
informal
discussion
letter
issued
by
the
EEOC
last
November
that
created
significant
commentary
and
conjecture.
The
guidance
explains
that
requiring
a
high
school
diploma
for
a
position
is
not
illegal.
Employers
may
continue
to
have
high
school
diploma
requirements
and,
in
the
vast
majority
of
cases,
they
will
not
have
to
make
exceptions
to
them.
However,
according
to
the
EEOC,
if
an
applicant
tells
an
employer
she
cannot
meet
this requirement
because
of
a
disability,
an
employer
may
have
to
allow
her
to
demonstrate
the
ability
to
do
the
job
in
some
other
way.
This
may
include
considering
work
experience
in
the
same
or
similar
jobs,
or
allowing
her
to
demonstrate
performance
of
the
job’s
essential
functions.
The
guidance
clarifies
that
the
ADA
only
protects
someone
whose
disability
makes
it
impossible
for
him
to
get
a
diploma.
It
would
not
protect
someone
who
simply
decided
not
to
get
a
high
school
diploma.
The
employer
can
require
Continue Reading...
|
|
Holy Act of Congress! Batgirl Demands Equal Pay
|
03/26/2012
|
By: Boyd Byers
|
Here’s
a
unique
footnote
in
employment
law
and
superhero
history.
In
1972
the
U.S.
Department
of
Labor
developed
a
public
service
announcement
to
promote
the
Equal
Pay
Act
featuring
characters
from
the
campy
Batman
TV
show.
In
the
PSA
Batman
and
Robin
are
tied
up
next
to
a
ticking
bomb
in
an
abandoned
warehouse.
Batgirl
swoops
in
just
in
the
nick
of
time.
But
she
leaves
the
Dynamic
Duo
hanging,
questioning
Batman
why
she’s
paid
less
than
Robin.
“Holy
discontent!”
exclaims
Robin.
To
which Batgirl
retorts,
“Same
job,
same
employer,
means
equal
pay
for
men
and
women.”
Is
it
curtains
for
the
Caped
Crusaders?
Will
Batgirl
get
equal
pay?
Click
here
to
watch
the
video.
|
|
Automatic Termination Policies May Equal Automatic Trouble
|
02/28/2012
|
By: Donald Berner
|
As
most
of
you
have
probably
followed,
the
ADA was
amended
a
couple
of
years
ago
to
expand
the
definintion
of disability.
The
EEOC issued
regulations
in
the
spring
of
2011
designed
to
add
some
additional
clarity
regarding
the
ADA Amendments
Act.
One
of
the
items
we
flagged
at
that
time
was
the
EEOC's
anticipated
hostility
towards
employer
policy
materials
containing
an
automatic
termination
provision
for
employees
absent
a
specific
length
of
time.
As
predicted,
the
EEOC has
successfully
brought
actions
against
employers
with
policies
of
this
nature.
Employers
still
utilizing a
policy with
automatic
termination
provisions
would
be
wise
to
review
and
amend
those
policy
materials
in
light
of
the
EEOC's
stance.
The
key
for
employers
is
to
make
sure
the
policy
provides
for
an
interactive
accommodation
process
to
occur
rather
than
a
leave
of
absence
length
triggering
an
automatic
outcome.
As
long
as
an
employer
evaluates
each
employee
situation
on
a
case-by-case
basis,
the
risk
of
an
ADA violation
drops
dramatically
(assuming
the
employer
properly
accounts
for
the
ADA requirements).
Employers
with
an
automatic
termination
trigger can
expect that the
EEOC
is
likely
to
deem
any
termination
based
on
the
trigger as
a
violation
of
the
ADA.
|
|
Beware of Cupid in the Cubicles
|
02/07/2012
|
By: Boyd Byers
|
Valentine's
Day
is
just
around
the
corner. It's
estimated
that
190
million
Valentine
cards
and
15
million
e-Valentines
were
sent
in
the
U.S.
last
year.
But
when
a
love-sick employee
sends
a
written
expression
of
love
to
an
unrequitting co-worker,
trouble often
follows.
Here
are
a
few
real-world
examples
from
published
court
cases.
- An
employee
sued
after
her
co-worker
harassed
her,
including
sending
her
a
card
that
said, “On
Valentine’s
Day,
remember
–
candy
is
dandy
.
.
. but
sex
won’t
rot
your
teeth!
So
what
do
you
say!”
- A
male
employee
made
a
harassment
claim
over
his
female
supervisor’s
conduct,
which
included
an
incident
on
February
12
where
the
supervisor
held
a
bottle
of
pink
lotion,
saying
she
was
“going
to
have
a
great
time
on
Valentine’s
Day,”
and
asking
the
employee
if
he
would
like
to
try
some
of
the
lotion.
- An
employee
claimed
harassment
regarding
her
supervisor’s
conduct,
which included giving her
a
Valentine’s
Day
card
with
a
$50
bill
in
it.
- An
employee
sued
after
her
supervisor
posted
a
Valentine’s
Day
message
to
her
in
the
town
newspaper,
which
stated
in
part,
“Dear
Sgt.,
Spring
is
right
around
the
corner,
just
like
me. Look
outside,
see
a
Robin
by
the
tree. Love
Azalea.”
- A
female
employee
claimed
a
male
co-worker
harassed
her,
starting
when
he
gave
her
a
Valentine’s
Day
card. The
male
co-worker
told
the
female
employee
that
he
stayed
up
until
2:00
a.m.
trying
to
decide
what
to
write
on
Continue Reading...
|
|
Ministerial Exception Upheld in Discrimination Suit
|
01/12/2012
|
By: Donald Berner
|
The
U.S. Supreme
Court
issued
a
decision
yesterday
in
Hosanna-Tabor
Evangelical
Lutheran
Church
and
School
v.
EEOC,
a
case
involving the
application
of the ministerial
exception. The
short
version
of
the
facts
is a
religious
school
terminated
the
employment
of
a
school
teacher
classified
as
a
"called"
teacher
and
she
filed
a
complaint
with
the
EEOC alleging
disability
discrimination
prohibited
by the
ADA.
The
Supreme
Court
reiterated the
validity
of
the
ministerial
exception
and
noted
that it
bars
employment
discrimination
suits
brought
on
behalf
of a
minister
challenging
a
church's
decision to
terminate the
minister's
employment.
While it
is
certainly notable
that
the
Supreme Court
validated
the
ministerial
exception, institutions
relying
on
the
use
of
the
ministerial
exception
should
keep
in mind
that
it
will not
apply
as
a
blanket
covering
all
employees
or
employment
decisions
of
a
religious
institution.
|
|
Watch Out For HR Ninjas
|
12/09/2011
|
By: Boyd Byers
|
Are
Rockstars
and
Ninjas
running
rampant
in
your
workplace?
More
and
more
companies
are dumping
their
mundane
old
job
titles
for
creative
new
monikers
like
these,
according
to an
analysis
of
business
card
trends.
The
most-popular
new
names
include Ninja,
Rockstar,
Geek,
Guru,
and
Wrangler. These
and
other
inventive
job
titles,
like
Czar, Kahuna,
and
Mad Scientist,
let
workers bring
some
personality
and
fun
to
their
jobs.
The
trend
started
with technology
companies
and
is
gaining
traction
in
a
wide
range
of
industries.
But
don't
expect
the
demise
of
traditional
job
titles at
most
companies.
From
the
perspective
of
an
Employment
Law
Guru
(hey,
that
sounds
kind
of
cool),
there's
nothing
inherently
wrong
with
colorful
job
titles,
if that
approach
is compatible
with
your
company
culture
and
customer
base. It
might
even
give
you
a
leg
up in
recruiting for
competitive
creative
or technology
jobs.
But
use
common
sense
and
don't
get
carried
away. Job
titles
(formal
or
informal) that
convey
sexist,
racist,
or
religious
overtones should
be
avoided.
So
no Wenches, Popes,
or
Nazis
(remember
the
Soup
Nazi
from
Seinfeld?).
Even titles
like
Ninja
or
Kahuna
could
be
problematic
if
directed
at
specific
employees
because
of
their
race,
ancestry, or
national
origin. Also
stay
clear
of
offensive
business
cards,
such
as the
ones ordered
by
Facebook
founder
Mark
Zuckerberg
early
in
his
career,
which
read,
"I'm CEO,
bitch." As
any HR
Rockstar
knows,
what
some
employees
find
clever
or
funny
can
be
offensive
to
others.
|
|
Employer's Good Safety Record Equals Employee's Path to Hell
|
11/22/2011
|
By: Donald Berner
|
With
a
title
like
this
one
you
may
be wondering
if
thoughts
of
turkey have
gotten
the
best
of
me.
You
might
also
wonder
how
a
good
safety
record
can
be
bad.
As
with
all
good
tales
about employment
law
cases,
the
devil
is
in
the
details--in
this
case
literally.
So
here
goes.
It
seems
an
employer
had
quite
a
run of
work
days
without
an
accident
or
injury. Most
of
you
are
probably
thinking
that's
great
news
for
the
employer,
and
I would
agree.
As
with
a
lot
of
employer
safety
programs,
this
employer
proudly
displayed
the number
of
days
without
an
incident. This
display
was
done via
a
safety
calendar
and by
the
employees wearing
stickers
designating the
number
of
days
without
incident.
So
far
so
good.
As
the
number
of
days
without
incident
continued
to
increase,
it
would
seem
like
cause
to
celebrate. And
for
most
employees
it
was
a
positive
thing.
But
for
one
employee,
concern
and
dread
began
to
settle
in.
As
the
number
continued
to
grow
and
rolled
over 600
days
without
incident, our
worried
employee
began
to
highlight the
impending
doom
of getting
to
666
days
without
incident. As
the
number
continued
to
inch
higher,
the
employee notified
the
employer
that wearing
666--the "mark
of
the
beast"--was forbidden
by his
religious
belief.
And
this
is
where
the
real
problem
with this
great
safety
record
began. As
luck (good
or
bad,
you
be
the
judge) might
have
it,
no safety
incidents
occurred
and
day
666
arrived.
The
employee,
in
an
attempt
to
avoid
being
condemned
to hell, asked
to
be
excused
from
wearing
a
sticker
bearing
the mark
of
the
beast. Rather
than
accommodate
the
employee,
the
employer
Continue Reading...
|
|
Swimsuit Suit
|
08/26/2011
|
By: Boyd Byers
|
I've
heard
of
employees
being
fired
for
revealing
too
much
skin.
But
being squeezed
out
of
a job
for refusing
to
squeeze
into
a
Speedo? That's
a
new
one.
Roy
Lester,
a
61-year-old
lifeguard,
is
suing
his
former
employer
for
age
discrimination.
He alleges
he
was
fired
when
he
declined
to
don
a
snug-fitting
Speedo,
and
that
this
dress
code
policy was
a
ruse
"to
get
rid
of
the
older
guys."
"I
wore
a
Speedo
when
I
was
in
my
20s. But
come
on.
There
should
be
a
law
prohibiting
anyone
over
the
age
of
50
from
wearing
a
Speedo,"
Lester
said.
Read
the
full
story
here.
|
|
¿Es Legal Tener Reglas Que Requieren Hablar Solo Ingles en el Trabajo?
|
08/05/2011
|
By: Boyd Byers
|
Earlier
this
year
the
U.S.
Census
Bureau
released
detailed
2010
Census
population
totals
and
demographics.
The
data
reveal
that
six
percent
of
Kansans
were
born
in
a
foreign
country,
and
ten
percent
of
Kansans
speak
a
language
other
than
English
at
home.
Given
these
numbers,
it’s
not
surprising
that
Kansas
employers
are
more-frequently
facing
workplace
language
issues.
Problems
may
arise
when
two
or
more
workers
communicate
in
a
language
other
than
English,
and
customers
or
other
employees
can
overhear
but
cannot
understand
these
conversations.
In
response,
some
employers
have
implemented
English-only
rules
to
ensure
that
customers
do
not
feel
uncomfortable
and/or
to
avoid
feelings
of
alienation
or
hostility
among
co-workers.
But,
to
pass
legal
muster,
English-only
rules
must
be
job-related
and
consistent
with
business
necessity.
The
EEOC
takes
a
restrictive
view
on
English-only
rules.
Generally,
employees’
concern
that
other
employees
are
talking
about
them
behind
their
back
is
not
enough
to
justify
such
a
rule. In
addition,
employers
may
not
rely
on
coworker,
customer,
or
client
discomfort
or
preference
as
a
justification
or
defense
to
discrimination
based
on
race
or
national
origin.
According
to
the
EEOC,
an
English-only
rule
is
justified
by
business
necessity
if
it
is
needed
for
an
employer
to
operate
safely
or
efficiently.
Below
are
some
situations
in
which
the
EEOC
says
business
necessity
would
justify
an
English-only
rule:
|
|
Confucius Says: He Who Retaliates Digs His Own Grave
|
07/22/2011
|
By: Boyd Byers
|
The
thirst
for
revenge
is
among
the
strongest
of
human
emotions.
In
fact,
the innate
human desire
to
“get
even”
has
driven
much
of
the
history
of
the
world.
But
acting
on
feelings
of
revenge
can
have
dire
consequences,
not
only
in
the
world
at
large,
but
particularly
in
the
world
of
employment
law.
Most
employment-protection
laws
contain
anti-retaliation
provisions.
And
courts
are
broadly
interpreting
and
applying
these
provisions.
The
U.S.
Supreme
Court
has
recognized
and
expanded
the
right
to
bring
retaliation
claims
in
a
series
of
cases
over
the
past
several
years.
In
January,
the
Court
ruled
that
Title
VII’s
anti-retaliation
provision
covered
an
employee
who
was
fired
shortly
after
his
fiancée,
who
worked
for
the
same
company,
filed
a
sex
discrimination
claim.
( Supreme
Court
Finds
in
Favor
of
Fired
Fiance 01/25/2011)
In
March,
the
Court
held
that
the
FLSA’s
anti-retaliation
provision,
which
uses
the
phrase
“filed
any
complaint,”
applies
to
an
employee’s
oral
complaints.
These
cases
follow
prior
decisions
in
the
last five
years
in
which
the
Court
ruled
that:
·
Title
VII’s
anti-retaliation
clause,
which
refers
to
“opposition,”
does
not
require
active
opposition,
but
encompasses
involuntary
participation,
such
as
making
statements
during
an
employer’s
internal
investigation;
·
Employees
can
bring
retaliation
claims
under
the
ADEA;
·
Employees
can
bring
retaliation
claims
under
Section
1981
of
Chapter
42
of
the
Continue Reading...
|
|
The Supreme Court, Congress, and Isaac Newton
|
06/28/2011
|
By: Boyd Byers
|
Newton's
third
law
of
motion states
that
for
every
action
there
is
an
equal
and
opposite
reaction.
Great,
you
say,
a
lawyer
who
fancies
himself
as a
physicist.
And
what
the
heck
do
physics
laws have
to do
with
employment
laws?
Hang
with
me
and
I'll
connect
the
dots.
Unless
you've
been
living
in
a
cave
in
Afghanistan,
you
know
that
last
week
the
U.S.
Supreme
Court
ruled
that
lower
courts
had
improperly
certified the
massive
gender
discrimination class
action
lawsuit
against
Wal-Mart, the
nation's
largest private
employer. The
case,
which
has
been
going
on
for
over
10
years, had
been
the largest
job-discrimination
class
action
in
history,
potentially
covering
1.5
million
women and exposing
Wal-Mart
with billions
of
dollars
in
liability. But
the
majority
of
the
Court,
in
a 5-4
decision, said
the
women
who
brought
the
case failed
to
point
to
companywide
policies
that
had
a
common
effect
on
all
women
covered
by
the
class
action.
That
was
the
action.
Now
the
reaction.
Capitol
Hill
Democrats
denounced the
ruling
and
are
using
it
to
renew
a
push
for
new
legislation
addressing
equal
pay
and
gender discrimination. Sen.
Tom
Harkin
(D-Iowa)
said the
decision
is
"a
reminder
that
much
work
remains
to
be
done
in
order
to
achieve
equal
pay
for
men
and
women."
Harken, who co-sponsored the
proposed Paycheck
Fairness
Act
and
the
Fair
Pay
Act,
then
promised
to
"work
with
my
colleagues
to
strengthen
the
anti-discrimination
laws"
and
ensure
that
"victims
have
access
to
justice
and
corporations
are
held
accountable."
Rep.
George
Miller
(D-Calif.)
similarly
proclaimed that
the
Wal-Mart decision
"really
underscores
the
need
for
Congress
to
strengthen
our
civil
Continue Reading...
|
|
The $95,000,000 Sex Harassment Case
|
06/14/2011
|
By: Donald Berner
|
Most
employers
understand
the
implications
of
sexual
harassment
in
the
workplace
and
have
policies
prohibiting
inappropriate
behavior.
Those
same
employers
usually
have
a
reporting
mechanism
embedded
within
those
anti-harassment
policies. Both
of
these
procedures
are
prudent.
So
what
should
an
employer
do
when
a
complaint
arrives
via
the
procedure
established?
The
answer
is
simple
- go
out
and
investigate
and
respond
to
the
complaint. Too
often
employers
enact
policies
and
procedures
and
then
fail
to
implement
them. The
cost
of
failure can
be
high in
terms
of
monetary value
and
the lost
time
and
energy
in
dealing
with
agency
complaints
and/or
lawsuits that
could
arise down
the
road. One
employer
recently
learned
the lesson
of
follow-up
the
hard
way.
The
allegations
made by
the
plaintiff
in
Alford
v.
Aaron
Rents,
Inc.
are
extreme
and
the
response
by
the
company to
the
intial
complaint appeared
to
be
non-existent.
The
takeaway
from
this
$95,000,000
verdict
against
the
employer
is
to
always
follow-up,
investigate,
and
take
action
on
complaints.
Otherwise
the
cost
could
be
as
extreme
as
the
facts
in
this
case.
For
the
details
click
here for
the
story
published
in
the
St.
Louis
Post
Dispatch.
|
|
Robert's Termination: An Animated Video Short
|
05/31/2011
|
By: Donald Berner
|
At
the
Foulston
Siefkin
LLP
employment
law
seminar
Vaughn
Burkholder,
Tara
Eberline
and
Teresa
Shulda
discussed
some
common
scenarios
that
a
Human
Resrouce
Director
may
be
confronted
with
from
time
to
time.
We
have
had
a
number
of
requests
to
see
the cartoon
videos
used
to
facilitate
the
discussion.
In
this
installment, Frank
Manager
meets
with
Human
Resources
to
discuss
the
potential
termination
of
Robert.
Click
here
to
look
in
on
our
patient
HR
Director
as
the
discussion
unfolds.
|
|
So You've Been Sued -- Now What?
|
05/12/2011
|
By: Donald Berner
|
Earlier
this
week
at
the
Foulston
Siefkin
LLP employment
law
seminar,
David
Rogers
and
Teresa
Shulda
provided
employers
with
an
overview
of
the
entire
litigation
process
from
demand
letter
through
the
administrative
process
and
into
a
jury
trial.
The
presentation
highlighted
how
HR professionals
are typically involved
at
each
stage
of
the
process.
The
session
concluded
with
a
discussion
of
a
scenario
demonstrating
some
pitfalls
for
HR.
Some
lessons
learned
include:
- The
things
HR professionals
do
and
say
early
on
in
a
case
can
make
a
huge
difference
in
the
outcome;
- Following
the
company's
policies
is
key
to
defending
an
employment-related
claim;
- Taining
HR and
Management
on
the
company's
policies
is
critical;
- Employers
need
to
develop
a
document
preservation
process
("litigation
hold")
and
implement
the
process
when
a
claim
is
made;
and
- Be
cautious
when
responding
to
EEOC
or
state
agency
inquiries--providing inconsistent
or
invalid
reasons
for
an
employment
decision
can
make
it
next
to
impossible
to
get
the
case
dismissed
without
a
trial.
|
|
Social Security No-Match Letters Return
|
04/26/2011
|
By: Donald Berner
|
A
few
weeks
ago,
the
Social
Security
Administration
(SSA) issued its
first batch
of no-match
letters
to
employers
with
the
expectation
that
more
letters
will
be
sent
out
in
the
near future.
These
were
the
first
no-match
letters to
go
out
to
employers
since
2007.
The
lack
of
letters
over
the
last
few
years
was
the
result
of
ongoing
litigation
related
to
the
issuance
of
the
no-match
regulations
that
were
ultimately
withdrawn. With
an
end
to
the
litigation, the
SSA no-match
letters
return.
For
those
new
to
HR,
the
no-match
letter
is
a
tool
used
by
the
SSA to
try
and
resolve
discrepancies
when
an
individual's
name
and
social
security
number
don't
match.
The
intendend
purpose
of
the
letter
is
for
employers
and
employees
to
become
aware
of
the
problem
and
resolve
it
by
correcting
workplace
records
or
working
with
the
SSA.
For
employers
receiving
these
letters,
it
is
important
to
handle
them
with
some
care.
The
receipt
of
a
no-match
letter
is
not
intended
in
any
way
to
signal
to
an
employer
that
an
employee
is
not
authorized
to
work
in
the
United
States.
The
no-match
letter
should
set
in
motion
a
series
of
steps
designed
to
confirm
employer
data
being
reported
to
SSA
and/or
the
sending
of
an
employee
to
visit
the
local
SSA office
to
resolve
any
discrepancies.
The
bottom
line
is
that
employers
must
balance
between
taking
a
course
of
action
that
is
too
aggressive
yet
ensuring
the
potential
concerns
raised
by
a
no-match
situation
are
not
simply
ignored.
Information
published
by
the
Department
of
Justice
on
this
topic
can
Continue Reading...
|
|
EEOC Issues Final ADAAA Regs
|
03/25/2011
|
By: Boyd Byers
|
The
EEOC
has
finally
issued
its
long-awaited
regulations
interpreting
the
ADA
Amendments
Act.
The
final
regulations
are in
today's Federal
Register.
Here's
the link
(guaranteed
to
make
your
eyes
glass
over):
http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as#h-73
|
|
Leave of Absence and the ADA
|
03/24/2011
|
By: Donald Berner
|
As
most
of
you
know,
the
ADA was
amended
a
couple
years
ago
making
it
easier
for
individuals
to
qualify
for
protection
due
to
the
expanded
definition
of
a
disability. One
danger
area
for
employers
is
dealing
with
individuals
needing
a
leave
of
absence
or additional
leave
as
it
relates
to a
situation
that
may
be defined
as
a
disability
under
the
ADA.
This
can
arise
after
FMLA leave
has
been
used
and
expires,
or
for
those
non-FMLA employers/situations
at
the
end
of a
standard leave
of
absence. It
is
at
this
juncture
that
employers
sometimes
find themselves
in
dangerous
waters. What
should
an
employer
do
at
the
end
of
an
approved
leave
of
absence
(FMLA or
otherwise)
when
the
employee
isn't
quite
ready
to
return
to work? Does
the
employee
have
some
expected
return
date
that
is
just
a
few
days
or
weeks
away?
Is
the
return
a
bit
more
uncertain?
How
employers
resolve
this
issue
can
be
the
difference
between
smooth
exit
and
an
EEOC
complaint/lawsuit.
While
just
how
much
leave
is
a
reasonable
accommodation
under
the
ADA can
be unclear,
it
is
clear
that
accommodating an
indefinite
or
uncertain
return
to
work
date
is
not required.
In
addition
to
having
sometimes
murky
factual
information,
some
employers
have
a
leave
policy
with an
automatic employment
termination
provision
that
triggers at
a
certain
point. For
example,
if
an
employee
has
been
on
leave for six
months,
his
or her employment
is
automatically
terminated. The EEOC is
focusing
some
negative
attention
on
this
type
of
leave
of
absence
policy
and
taking
the
position
that
such
a
clause
violates
the
ADA.
Given
this
scrutiny,
it's probably
a
good
idea
to review your
leave
of
absence
Continue Reading...
|
|
The Monkey, the Cat, and the Army Reservist
|
03/02/2011
|
By: Boyd Byers
|
Yesterday
the
U.S.
Supreme
Court
ruled
that
an
employer
can
be
liable
for
employment
discrimination
based
on
evidence
that
a
biased
supervisor
influenced,
but
did
not
actually
make,
an
employment
decision. The
Court,
pulling
words
and
phrases
from
a
legalese
lexicon
that
only
a
lawyer
could
love,
said,
“if
a
supervisor
performs
an
act
motivated
by
[discriminatory]
animus
that
is
intended
by
the
supervisor
to
cause
an
adverse
employment
action,
and
if
that
act
is
a
proximate
cause
of
the
ultimate
employment
action,
then
the
employer
is
liable
....” Leaving
the
legal
jargon
aside,
this
is
sometimes
called
the
“cat’s
paw”
theory
of
liability.
The
term
"cat's
paw"
theory
derives from Aesop's fable
about a
clever
monkey
who
persuades a
gullible
cat
to
retrieve
roasting chestnuts
from
a
fire. The
monkey
gets the
chestnuts,
and
the
cat
gets nothing
but
burned paws.
The
analogy
to employment
discrimination is when
a
biased supervisor
dupes an
unbiased
decisionmaker
into taking
an
adverse
job
action
against
an
employee based
on
inaccurate,
incomplete,
or
misleading information.
In
this
case,
Vincent
Staub
alleged
he
was
fired
because
of
his
military
service,
in
violation
of
the
Uniformed
Services
Employment
and
Reemployment
Rights
Act
(USERRA). Staub
presented
evidence
that
his
two
immediate
supervisors
had
an
anti-military
bias,
and
that
they
in
turn
had
convinced
the
human
resources
manager
to
fire
him. Staub
argued
that
even
though
the
HR
manager,
who
actually
made
the
decision,
was
not
herself
biased,
the
company
could
still
be
held
liable
for
discrimination because
she
fired
Staub
based
on
information
the
supervisors
reported
to
HR
and
put
in
Staub’s
personnel
file.
The
Continue Reading...
|
|
Run Faster, Jump Higher
|
3/1/2011
|
By: Donald Berner
|
Hardcore
football
fans know
that the
NFL combine,
which
precedes
the
draft, just
took
place.
If
you
have
never
heard
of
the
combine,
it
is
an
annual
event
that
takes
place
over
a
very
long
weekend
(about
5
days)
where
the
top
prospects
from
college
football
are
tested,
measured,
and
interviewed.
Think
of
it
as
a
massive
job
fair
with
candidate
interviews,
written
tests, running,
jumping,
catching,
throwing, kicking, and
other
agility
tests.
If
you
want
to
see
a
6'6
325
pound
man
run
amazingly
fast
and
weave
around
cones,
this
event
is
for
you.
While
your
business
isn't
likely
to
engage
in
this
type
of
testing,
most
employers
do
like
the
idea
of
conducting
pre-employment
testing
to
make
sure
prospective
employees
are
a
good
fit.
While
this seems
like
a
great
idea, keep
in
mind
that the
EEOC isn't
nearly
as
excited
about
this
process
as
the
average
employer.
If
your
business conducts
any
form
of
testing,
keep
in
mind
the
EEOC has
published
a
set
of
guidelines
related
to
the
testing.
If
the
testing process
in
any
way
discriminates
or
has
a
discriminatory
impact, your
business
may find
itself
at
odds
with
the
EEOC.
It
is
important
for
employers
to visit
with
counsel prior
to
implementing
any testing
programs
to ensure
they
fully
understand
the
risks
associated with
the
testing. Click
here
for
a
short
EEOC summary
on
pre-employment
testing.
|
|
EEOC Releases 2010 Summary Data
|
11/30/2010
|
By: Donald Berner
|
The
EEOC
recently
released
its
annual
performance
and
accountability
report.
While
this
report
does
not
contain
detailed
charge
statistics,
it
does
contain
summary
overview
material.
Here
are
a
few
highlights
from
the
report:
- The
EEOC
added
new
staff
during
2009
and
2010.
These
new
employees
are
enabling
the
EEOC
to
process
more
charges
on
an
annual
basis,
thus
reducing
the
EEOC
backlog
of
pending
cases.
- During
2010,
the
EEOC
received
99,922
charges,
a
significant
increase
over
the
93,277
filed
in
2009.
- The
EEOC
recovered
$319.3
million
through
the
administrative
process
in
2010,
up
from
the
$294.1
million
for
2009.
- The
litigation
arm
of
the
EEOC
filed
251
new
lawsuits
against
employers
in
2010.
All
of
these
data
points
reflect
a
more-aggressive
EEOC.
The
additional
funding
in
the
last
two
years
has
allowed
the
agency
to
increase
staffing,
thus
increasing
the
agency's
capabilities.
Employers
should
expect
more
of
the
same
over
the
next
few
years
as
the
newly
hired
staff
and
enhanced
budget
allow
the
EEOC
to
continue
these
trends.The
performance
report
can
be
reviewed
in
full
here:
http://www.eeoc.gov/eeoc/plan/2010par.cfm
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|
Tips & Tactics -- Avoiding Religious Discrimination
|
11/16/2010
|
By: Donald Berner
|
The
topic
of
religion
in
the
workplace
always
provides
a
danger
for
employers.
In
our
post-9/11
world,
we
have
continued
to
see
tensions
run
high
with
respect
to
the
Muslim
faith.
Our
continuing
wars
in
Afghanistan
and
Iraq
have
caused
these
tensions
to
remain
and
build
over
the
years.
With
the
recent
outcry
over
the
proposed
Islamic
mosque
near
the
site
of
the
former
twin
towers
in
New
York
City,
this
issue
has
been
tossed
onto
the
front
of
the
newscycle.
From
an
employer
perspective,
religion
is
a
topic
best
left
for
outside
the
workplace.
While
this
makes
for
a
great
philosophical
approach,
our
employees
are
all
human,
and
an
employer
expectation
of
a
religion-free
workplace
is
naive.
With
the
holiday
season
around
the
corner,
there
is
no
better
time
to
ponder
methods
how
to
avoid
religious
discrimination
and maintain
civility
and
respect
for
all.
Here
are
a
few
quick
thoughts:
1.
Make
sure
you
have
in
place
a
well-publicized
and
consistently
applied
anti-harassment
policy.
The
policy
should
contain
a
clear
and
concise
complaint
process.
If
you
haven't
trained
your
workforce
on
anti-harassment
issues
in
the
past
year,
consider
having
a
short
training
session
to
refresh
the
topic.
2.
If
complaints
are
made,
investigate
them
promptly
and
thoroughly.
If
you
find
a
problem,
take
steps
to
stop
the
conduct.
Even
minor
conduct
that
isn't
unlawful
can
pile
up
until
you
reach
a
point
the
overall
package
of
conduct
is
unlawful.
3.
Even
if
there
is
no
complaint,
intervene
if
you
become
aware
of
possible
policy
Continue Reading...
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|
A Veteran's Day Salute
|
11/11/2010
|
By: Donald Berner
|
In
the
spirit
of
Veteran’s
Day,
we
thought
a
brief
summary
of
the
Uniformed
Services
Employment
and
Reemployment
Rights
Act,
or
USERRA
for
short,
would
be
appropriate.
USERRA
protects
employees
who
serve
in
the
uniformed
services,
which
include
the
active
and
reserve
components
of
the
various
branches
of
the
military
and
national
guard.
USERRA’s
protections
come
in
two
forms.
First,
employers
are
prohibited
from
discriminating
against
an
employee
on
the
basis
of
his
or
her
uniformed
service.
In
other
words,
an
employer
cannot
discharge,
refuse
to
hire,
or
otherwise
treat
an
employee
negatively
because
he
or
she
has
served,
is
serving,
or
will
serve
in
the
uniformed
services.
Second,
for
employees
who
leave
their
employment
for
uniformed
service,
USERRA
requires
that
they
be
reemployed
promptly
upon
their
return
from
uniformed
service.
Under
what
is
known
as
the
“escalator
principle,”
the
employee
is
entitled
to
reemployment
in
the
position
in
which
he
or
she would
have
been
employed
had
he
or
she
not
left
for
military
service.
In
a
nutshell,
the
employee
steps
back
into
the
employment
relationship
as
if
he
or she had
not
left.
Where
a
promotion
is
reasonably
certain
to
have
occurred,
such
as
a
change
in
paygrade
based
on
years
of
service,
the
employer
must
place
the
returning
service
member
in
the
higher
or
escalator
position.
If
the
employee
is
not
qualified
for
Continue Reading...
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|
EEOC Statistics
|
8/31/2010
|
By: Donald Berner
|
As
most
of
you
are
aware,
the
EEOC is
charged
with
enforcing
the
federal
anti-discrimination
statutes
that
impact
most
employers.
The
primary
vehicle
utilized
to
bring
an
allegation
of
discrimination
under
those
statutes
is
for
an
applicant,
employee,
and/or
former
employee
to
file
a charge
of
discrimination
with
the
EEOC.
The
filing
of
a
charge
typically
triggers
an
investigative
phase
and
the
issuance
of
some
sort
of
finding
by
the
EEOC.
The
EEOC tracks
and
makes
public
the
statistical
data
for
any
given
year.
A
review
of
the
statistics
can
be
informative
in
viewing
the
big
picture
of
where
the
risks
lie
for
employers.
In
looking
at
the
2009
data
(the
most
recent
available),
the
following
points
merit
mention:
1.
Claims
of
discrimination filed
in 2009
are
even
or
slightly
higher
than
those
filed
in 2008
and remain
at
much
higher
levels
than
2007
filings.
When
reviewing
the
raw
data,
remember
that
a
charge
can
consist
of
multiple
claims
of
discrimination
which
must
be
counted
as
a
separate
claim.
2. Race,
gender,
and
age based
claims
declined
in
2009
as
compared
to
2008. While
these
traditional
areas
of
discrimination
claims
seems
to
have
stagnated
over
the
last
two
years,
the
overall
numbers
of
claims
in
these
areas
make
up
a
significant
volume
of
claims
filed
with
the
EEOC.
3.
National
origin,
religion,
disability,
and
retaliation
claims
are
all
up
as
compared
to
2008.
Claims
of
national
origin
and
religious
discrimination
don't
account
for
many
claims
overall,
but these
are
both
areas
that
have
experienced
considerable
and
rapid
growth
in
the
number
of
claims
filed
Continue Reading...
|
|
Health Care Reform and Nursing Mothers
|
8/3/2010
|
By: Donald Berner
|
Did
you
know
that
providing
break
time
and
a
private
location
for
new
mothers
to
express
their
breast
milk
is
now
a
requirement
under
wage
and
hour
law?
For
the
most
part,
employers
we
have
worked
with
in
the
past
have
been
sensitive
to
the
needs
of
new
mothers
upon
their
return
to
work.
Now
the
federal
government
is
mandating
employer
action
in
this
area. If
you
have
over
fifty
employees,
the
additional
break
time
requirement
applies
to
your
company.
For
those
employers
with
less
than
fifty
employees,
the
break
time
requirement
applies
unless
you
are
able
to
show
it
is
an
undue
hardship
for
your
company
to
provide
the
additional
break
time.
For
pratical
purposes,
even
small
employers
(under
fifty
employees)
should
assume
the
requirements
will
apply
to
them.
The
amendments
to
the
wage
and
hour
laws
require
employers
to
provide
this
additional
break
time
to
any
employee
that
is
not
exempt
from
overtime.
The
additional
break
time
does
not
need
to
be
compensated
time
unless
the
employer
provides
other
employees
with
compensated
break
time
for
other
purposes.
This
could
be
problematic
for
an
employer
that
allows
multiple
breaks
for
smoking
and/or
bathroom
visits
that
are
compensable.
In
addition
to
providing
the
additional
break
time,
employers
are
required
to
make
available
a
private
space
where
employees
will
not
be
intruded
upon
by
the
public
or
a
co-worker
while
expressing
breast
milk.
The
rule
specifically
states
that
a
bathroom
is
not
considered
an
acceptable
location
for
purposes
of
complying
with
the
requirement.
The
short
Continue Reading...
|
|
Don't Fire Me Because I'm Beautiful
|
06/04/2010
|
By: Boyd Byers
|
If
you've
heard
me
say
it
once,
you've
heard
me
say
it
a
hundred
times: Anybody
can
sue
anyone
for
any
or
no
reason.
Debrahlee
Lorenzana is
the
latest
to
prove
this
point.
Lorenzana
filed
a
lawsuit
claiming she
was
fired
from
her
job
at
a
New
York
bank
for
being
too
good-looking. The lawsuit
alleges
that
she
was
ordered
to
"[r]efrain
from
wearing
certain
items
of
clothing,
in
particular,
turtleneck
tops,
pencil
skirts,
fitted
business
suits,
or
other
properly
tailored
clothing. In blatantly
discriminatory
fashion,
[she] was
advised
that
as
a
result
of
the
shape
of
her
figure,
such
clothes
were
purportedly
'too
distracting'
for
her
male
colleagues
and
supervisors
to
bear."
Other
female
workers
were
allowed
to
wear
similar
clothing,
she alleges,
but "[t]heir general
unattractiveness
rendered
moot
their
sartorial
choices,
unlike
[hers]."
You
can
read
more
about
this unusual
lawsuit
at
the
following
link: http://www.businessinsider.com/debrahlee-lorenzana-citi-2010-6
|
|
|
Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

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