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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.
 
Interested parties have until March 31, 2015 to comment on      Continue Reading...
 
"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
 
In April of last year, the EEOC issued Enforcement Guidance      Continue Reading...
 
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."
 
Miss Utah’s question was prompted by the 50th anniversary of the Equal      Continue Reading...
 
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. 
The EEOC Report is available at http://www.eeoc.gov/eeoc/plan/upload/2012par.pdf.
 
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

 

 
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...

 
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...
 
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

 


Authors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
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