The HR Cafe

Anti-gay-bias law may be stalled

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Stalled federal legislation does not mean you shouldn't protect your company against sexual orientation discrimination in the workplace

Long-pending federal legislation to outlaw workplace bias against gay and transgendered employees may not pass in 2010 –  but should it matter to progressive employers?

Congress-watchers say the Employment Non-Discrimination Act (ENDA) could get through the House this year, but the recent loss by Democrats of a filibuster-proof Senate majority has dimmed prospects there.

Still, there are good reasons for employers to adopt policies discouraging bias against gay or transgendered employees. For one thing, 29 states have laws of this kind. For another, tolerating any type of personal discrimination at work – even if not illegal – sends the wrong signal to employees. Some may feel free to engage in the kind of illegal discrimination that will get your organization in trouble.

YOU BE THE JUDGE: Disability discrimination or poor performance

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Did an oral protest about disability discrimination hold up in court?

“I thought I asked you to have that report on my desk first thing this morning,” Supervisor Nancy Marvin said to Dave Carson.

“I'm sorry,” Dave replied. “When we discussed the report last week, I may have misheard the exact deadline. You know I don’t always hear everything the first time,” he added, pointing to his hearing aid.

Nancy started to respond, but Dave went on. “I'll finish up the report as soon as possible, but we’ve talked before about how I really need oral instructions followed up in writing because of my hearing problem.”

Words challenged

“Don’t try to put the blame for this on me,” Nancy snapped. “How am I supposed to work with you if you can’t hear?”

Dave stared at her for a long moment. “Aren’t you being discriminatory?” he asked.

“Excuse me?” Nancy demanded. She paused. “All right, I’m not going to argue about what you did or didn’t hear. Let’s just take a moment.”

She took a deep breath, then said, more calmly, “The priority is getting this report done today – can you get it to me by noon?"

"Yes," Dave answered. "I'll give it to you by noon."

Nancy proceeded to write a negative evaluation of Dave’s performance and three days later terminated him. 

Dave sued the company for disability discrimination and retaliation. Did he win? 

Yes, Dave won his lawsuit.

A federal appeals court held that supervisor Nancy retaliated against Dave because he made an informal complaint about her discriminatory comment regarding his disability. Yes, Dave’s short sentence –

“Aren’t you being discriminatory?” – amounted to an informal bias complaint, the court ruled. A complaint doesn’t have to be long or written down.

When the supervisor whipped up a negative evaluation and fired Dave on the heels of this complaint, it  pointed to a retaliatory intent, the court noted.

Actions and words speak loudly

The supervisor may or may not have had reason to fire Dave for his work performance, but her bias against his hearing disability came through loud and clear. The supervisor:

• Failed to follow the agreed-upon accommodation by not following up her verbal instructions to Dave in writing.

• Commented disparagingly on his disability.

• Wrote a negative evaluation of him  immediately after their argument.

• Terminated him just three days after he challenged her comment.

Pregnancy Discrimination: Top management overrode HR’s advice

FMLA Pregnancy Discrimination at work

What would you do if top management came to you with a proposed personnel action that you knew to be discriminatory? Would you take it to the mat if necessary?

It’s a ticklish situation. And the fallout can be severe, as illustrated by a recent case in South Dakota.

A dental clinic hired an employee who told her manager days later that she was pregnant. Realizing the woman would be on maternity leave during the busy summer season, the CEO decided to fire her.

The person who handled HR, the business manager, advised the CEO that he couldn’t legally do this. But the exec went ahead anyway.

When the employee sued for pregnancy discrimination, she won $15,000-plus. Even more damaging, she got an appeals court to agree that she should receive punitive damages – which could run as high as six figures.

They knew it was wrong

The court focused on the fact that a decision-maker – the business manager – knew the firing was illegal, but the organization went ahead anyway.

The lesson for HR? Because you know the law, you have a heavy responsibility to make sure others follow it. If you don’t, the consequences could be worse than if you were just plain ignorant.

Cite: EEOC v. Siouxland Oral Maxillofacial Surgery, Nos. 07-2419/07-2420, 8th Cir., 8/27/09.

Legal compliance: Singin' the EEOC jailhouse blues

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Dear HR Executive,

A knock on the door. A voice from outside: “This is the EEOC. Open up. You’re under arrest.”

Far-fetched? Nope. This is pretty much what happened recently to the owner of a Chicago health care firm.

ShoreKare LLC ignored two EEOC subpoenas and a court order demanding information about a discrimination charge. A judge then issued a civil arrest warrant, and U.S. Marshals physically hauled the owner to court.

Scare tactics
Think the EEOC wants to scare recalcitrant employers? Yep. Why else would the agency put out a press release about the defiant Chicago man?

If you get an EEOC subpoena, you needn’t obey it blindly. If you or your lawyers think it’s a fishing expedition, you can ask a federal court to narrow its scope. But you can’t close your eyes and hope it’ll go away.

Dave Clemens

Editor-in-Chief

HR Rapid Learning Center

Harassment: An issue for female managers

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Dear HR Executive,

Let’s face it: When HR pros worry about sexual harassment, they’re usually more concerned with harassment against rank-and-file employees than against supervisors.

But supervisors can and do experience harassment – especially female ones.

A new study, led by University of Minnesota researcher Heather McLaughlin, found that female supervisors are actually more likely than regular female employees to suffer harassment.

In the study of 1,000 young adults, about half of females who had held supervisory roles at work reported they were harassed. By contrast, one third of frontline female employees said they’d been.

The study didn’t explain why harassment of female supervisors is so common.

An anti-power trip?

But some of the interviewees believed that men who harassed supervisors weren’t sexually attracted. Rather, the harassers were offended that women were in positions of authority and were trying to tear them down.

Obviously, it’s part of HR’s job to make sure no manager’s authority is unfairly undermined. Is anything like this happening to female managers in your organization?

Dave Clemens

Editor-in-Chief

Human Resources Rapid Learning Center

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

Faith-based blunders land companies in court

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Dear HR Executive,

Religious beliefs at work present a balancing act – you can’t shut off every expression of faith, but you've also got a business to run. So where do you draw the line?

Two companies recently drew it wrong, according to the EEOC and the courts.

The Vail Corp., which runs the ski resort in Vail, CO, is paying $80,000 to settle an EEOC lawsuit on behalf of a Christian employee who said her boss barred her and another Christian from discussing their beliefs with each other. He also didn’t let them listen to Christian music for fear of offending others, but let others listen to lyrics promoting violence against women.

Best bet: Don’t stop people from having courteous discussions about religion, but be alert for folks who bend the ear of the unwilling.

The EEOC sued AT&T Southwest for refusing to let two Jehovah’s Witnesses attend a religious convention. AT&T paid $1.3 million after a federal appeals court upheld a jury verdict in the workers’ favor. The employees asked for a Friday off to travel to the convention. AT&T refused, saying it would cause the company undue hardship. The courts said any hardship was minimal.

Takeaway: The law allows you to refuse a religious accommodation that would cause undue hardship. But “undue” could be tough to prove. You might be better off granting the accommodation.

Dave Clemens
Editor
HR Café Newsletter

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

Discrimination in the workplace: You can’t hide behind customers

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Dear HR Executive:

Recent rulings show that companies are still trotting out the “customer made me do it” defense to discrimination in the workplace claims. And the EEOC still isn’t buying it.

In one case -- EEOC v. Jacobs Technology -- a military contractor in Aberdeen, MD, let an older worker go because, it said, customers preferred younger contacts. The EEOC said Jacobs Technology fired an employee in his late 50s, who’d been with the company for more than 15 years and had been consistently promoted. 

The company agreed to pay $60,000 to settle the EEOC’s age discrimination lawsuit on the employee’s behalf.

Employers in Massachusetts and Indiana followed similar logic and now are paying a total of $306,000 to settle EEOC lawsuits for workplace discrimination. One employer, a staffing agency, supplied only male temps when the customer requested them (EEOC v. Preferred Labor). The other, a nursing home, went along with some patients who said they didn’t want to be cared for by black nurses. The employers settled the lawsuits for $250,000 and $56,000 respectively (EEOC v. Heartland Employment Services).

It might be worthwhile sharing these recent cases with employees who are working directly with customers. Remind them that they can’t discriminate on a customer’s behalf, and ask them to report any such customer requests to you and/or their supervisor. That way, they’re protected if the customer complains about their performance later.

Michael Boyette
Editor
HR Café Training Center

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

Sexual harassment: "You probably did it. That’s what men do.”

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Dear HR Executive:

When you field a sexual harassment complaint, it can feel like you're walking a tightrope. Often, you’re dealing with an emotional complainant and an indignant accused – both of whom swear their version of events is the true one and the other is a big liar. It’s easy to get sucked into the story of one party or the other – especially that of the unhappy victim. But only trouble is ahead if you do.

Boys will be boys?
Case in point: In Sassaman v. Gamache, a female employee accused a male colleague of sexually harassing and stalking her. The man’s boss told him that if he didn’t resign, he’d be fired. 

The employee resigned, but later sued for sex discrimination. He recounted a climactic conversation in which the supervisor told him: “I’m afraid she’ll sue me. And besides, you probably did what she said you did because you’re male and nobody would believe you anyway.”

In court, the employer claimed the supervisor was only giving his opinion as to what other people thought, not justifying the forced resignation. But a federal appeals court thought otherwise, and allowed the male employee’s case to go to trial. The court said the supervisor defended his decision to side with the female employee “by pointing to the propensity of men, as a group, to sexually harass women.” This made it look like the man was forced out because of  “invidious sex stereotypes,” the court said.

“Guilty until proven innocent”
The court wasn’t sympathetic to the employer’s argument that it feared a lawsuit from the female employee if it didn’t get rid of the man. “Title VII requires employers to take claims of sexual harassment seriously,” the court said. But “it also requires that, in the course of investigating such claims, employers do not presume male employees to be ‘guilty until proven innocent.’ ”

That puts HR right back on that tightrope. Assuming a harassment allegation is male-on-female (still by far the majority of cases), you’re delinquent in your duty if you lean toward “he said.”  But if you lean toward the “she said,” you risk discriminating against the man as a man.

What’s the solution? A thorough and impartial investigation. In this case, the court was clearly swayed by the fact that the employer didn’t do such an investigation. The employer made “minimal, if any” efforts to verify the female employee’s allegations, the court said.

Although the supervisor did refer the matter to the local sheriff’s office – which found no indication of criminal activity – he didn’t investigate. Nor did he have his assistant look into the allegations. And he didn’t refer the case to the employer’s Equal Opportunity Officer. 

So although there were plenty of people around who could have investigated the female employee’s allegations – as well as the man’s counterclaims – nobody did.  And the employer ended up holding the bag. 

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

Employment testing on trial

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Dear HR Executive,

If you pay attention to the news, you know one of the big stories of the day is President Obama’s nomination of Sonia Sotomayor to the Supreme Court.

And you probably also know that a lot of attention is being paid to a decision regarding employment testing made by the federal appeals court that she sits on – Ricci v. DeStefano. That decision has been bumped up to the current Supreme Court, where a group of white firefighters argued they weren’t promoted by the city of New Haven, CT, but should have been.

The headlines in the general press are about reverse racial discrimination. But for HR folks, the focus should perhaps be elsewhere – on the employment testing that caused the trouble in the first place. The white firefighters passed the test, but when no black candidates did, the city threw it out.

What to watch out for with employment testing
The city was properly concerned about employment testing that appeared to have an adverse impact on minorities. That’s one caution that the EEOC and employment lawyers have frequently issued to employers about employment tests.

Pending the Ricci decision, though, the way that point is going to apply in the future isn’t yet clear.

Even so, there are four important points about employment testing and aptitude assessment that will help you stay on the right side of the law if you bear them in mind.

1. Match the employment testing to meet your needs. The test should measure the quality you want measured, and not something else. Too many organizations use blunt instruments when a scalpel is needed.  For example, a knowledge test probably won’t tell you a thing about a candidate’s ability to learn, lead or solve problems. An integrity test will speak to an applicant’s attendance and avoidance of drugs, but it won’t give you much of an idea how well she’ll work in a team. Also, make sure the test doesn’t demand more skill or effort than the job. The courts have labeled as discriminatory tests that call for applicants to show more physical strength than a job requires, for example.
2. Make sure the test is valid. Whether you buy a test from a commercial vendor or create one yourself, you must ensure that it’s valid. That’s to say, it must actually predict job performance. In many recent testing-discrimination lawsuits, a test’s validity has been successfully challenged. A test’s validity coefficient, which your vendor should be able to provide, can theoretically range from 0 to 1.0. Specialists caution against placing confidence in a coefficient of over .70. And if the coefficient is below .10, the test is next to useless. Generally speaking, anything above .20 is useful, and above .30 is very useful. 
3. Use a variety of assessments. It’s a mistake to rely too much on a test in isolation. A good rule of thumb is that pre-employment testing should make up no more than one third of your selection process. Structured interviews, job simulations, and careful reference checks will help you balance the results of a candidate’s test(s). And it’s a good idea to do your testing early in the evaluation process, so you have ample opportunity to follow up if the applicant’s score raises questions.
4. Consider job simulations as part of employment testing. Of all the employment assessment tools available, job simulations may be the most versatile. They can assess learning abilities, customer service skills, teamwork potential, leadership ability, motivation and other qualities. The simulation can either be an actual performance of specific job-related tasks, or a multiple-choice online test featuring video simulations of various situations.

We’ll keep you posted about the Ricci decision and its implications for employment testing and adverse impact as soon as the Supreme Court announces its ruling.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

Religious discrimination: a pilgrimage to Mecca

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Dear HR Executive,

My, how the world has changed.

A Tennessee employer just had to pay $70,000 for refusing to let an employee depart on a pilgrimage to Mecca.

Not too many years ago, a case like this would have been so exotic as to be almost unimaginable in an American workplace. But in today’s multi-diverse workplace, any HR person worth his or her salt has to know what to do in situations like this before they spin out of control.

Request denied
The employee, who was named Wali Telwar, was a practicing Muslim who took seriously his religious obligation to make the hajj, or pilgrimage to Mecca, at least once in his lifetime.

According to the EEOC, he had earned some vacation days and asked to use them for an extended leave. (The pilgrimage itself takes four days, but if you were taking vacation to do it, you’d have to factor in travel time, too.) He asked for approximately 20 days' leave altogether.

But his employer, a hospital, wouldn’t agree. The hospital told Telwar he either had to work as scheduled or quit, and apply for rehire when he returned. He chose the latter option, but when he came back, the hospital wouldn’t take him on again.

An impossible choice?
The EEOC sued on Telwar’s behalf, and the hospital decided to make the best of a bad situation and settle for $70,000.

The EEOC framed the issue very concisely, putting it this way: “Demanding that an employee choose between his job and a mandatory tenet of his faith is a violation of federal law.”

Most of us would easily recognize this principle if an employee requested Sundays off, or asked to be excused on Yom Kippur.

But it also holds if the tenet of faith involves something more complicated, like a pilgrimage to a desert city in Saudi Arabia – or to a mountaintop in the Himalayas or a shrine in rural Portugal, for that matter.

Accommodations
Of course, it’s not always an easy matter to find a religious accommodation, and it’s possible that certain religious demands – no matter how sincere – may pose undue hardship on your business. When they do, you can say “no.”

But in most cases, an accommodation is possible. The EEOC says this might involve:

• flexible scheduling  
• voluntary substitutions or swaps 
• job reassignments and lateral transfers, or 
• modification of policies and/or procedures such as vacation or leave policies

We’re willing to bet that one or more of the above would have cost the Tennessee hospital less than what it eventually paid to make good on its lack of respect for an employee’s deeply held beliefs.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter (www.hrcafe.net)

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."