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April 21, 2015

Avoid Dress Code Discrimination Issues

Filed under: Discrimination,Training12:12 pm

ThinkstockPhotos-537247283

 

This is the second of a two-part series of blogs regarding dress codes. Today’s post deals with discrimination, which can be a major item of consideration for many organizations. Here are some of the areas you want to think about when drafting your policy.

1. Disability Discrimination

a) Dress and Appearance

Dress or appearance standards that adversely affect or otherwise screen out qualified disabled applicants or employees have been found to be discriminatory.

Examples:

  • Excluding applicants or discriminating against employees because of obesity may be illegal.  Severe obesity may be a disability under the ADA.  Such cases would be examined on a case-by-case basis.
  • Regarding an individual as disabled because of obesity may also be discriminatory.  For example: an ADA violation was found where an obese applicant for a bus driver position was regarded as disabled because it was believed she could not move appropriately in case of an accident.  She was otherwise qualified for the position based on her driving record, experience, and references.

Failing to hire an applicant due to his facial disfigurement can constitute disability discrimination.

2. Religious Discrimination

Title VII requires that organizations must accommodate an employee’s religious beliefs and practices unless an undue hardship is created.

Examples:

The following practices have generally been upheld:

  • An employee was transferred to a janitorial position after refusing to shave his beard for religious reasons.  The company contended that the issue was safety, as the beard did not permit a proper fit of a respirator.

Discrimination has been found where:

a) A nurse had been required to wear a nurse’s cap without a tight fitting scarf underneath (her religion required that her head be covered).

b) A hair salon had refused to allow an employee to wear a yarmulke to work (Jewish skullcap).

c) An airport had refused to allow security workers to wear headscarves (as required by their religion).

3. Racial Discrimination

Charges by employees alleging that dress and grooming standards violated their freedom of expression have generally been upheld.  Expressions of cultural heritage are typically not protected by Title VII.

Examples:

a) African-American employee charges that the company dress code infringed on their black pride and culture were not upheld.

b) Title VII did not protect an employee’s wearing of nose jewelry, which she contended was an expression of her Mexican Indian heritage.

4. What about state and local laws?

Employers must also ensure that dress and appearance policies meet state and local legal requirements.

Examples:

a) California does not allow employers to prohibit employees from wearing pants in the workplace;

b) Wisconsin requires organizations to state their dress and grooming requirements at the time of hire;

c) The District of Columbia (as well as numerous localities) prohibits discrimination based on an individual’s appearance, including style of dress or hair.

We’d love to hear if you’ve face any dress code issues and how you dealt with them!

 

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April 13, 2015

Spring Flowers Lead to Summer Dress Codes

Filed under: Discrimination,General HR Buzz8:25 am

dress code

by Joyce Marsh, SPHR, Senior HR Consultant

If yours is like many companies, these two items may be part of your current discussion regarding summer dress code. Yes, it’s rapidly approaching, and it seems the discussion erupts after the first warm, unexpected day when an employee shows up to work in something that is, perhaps, questionable. Then the whole can of worms opens up. Is it appropriate to wear sleeveless tops? What about collarless shirts?

Many of these answers depend on your business, your customers and the overall philosophy of appropriate “dress” within your culture. Whatever the point of view, an understanding of the issues and legal concerns surrounding dress and appearance standards is necessary to ensure that you can implement an effective code that meets the needs for professionalism and safety in your organization. Our next two blogs will explore some items for consideration when drafting your dress code policy.

  1. How much freedom does an employer have in setting appearance standards for its employees?
    Typically, a lot. Organizations may generally impose standards based on “social norms.” Appearance and dress requirements that are based on legitimate business needs (e.g., safety needs, industry norms, management philosophy, types of jobs involved and common business standards) are more likely to be upheld should a discrimination charge be filed. Workplace rules based on “personal taste” are typically difficult to defend.
  2. What are the discrimination issues?
    Dress and appearance standards may violate federal or state anti-discrimination statutes if they are applied inconsistently or create a disparate impact on a protected group. Sex and religious discrimination are most commonly alleged.
  3. Sex Discrimination

a) Dress and Appearance
Dress code differences for men and women do not inherently create sex bias. Different dress standards for men and women that reflect common social norms have generally been upheld. Therefore, employers do not have to apply identical dress standards for men and women. However, dress codes not based on societal norms that impose a greater impact or burden on one sex, that are antiquated or based on sex stereotypes, or that are significantly different for men and women typically cannot be upheld.

Examples:

The following practices have generally been upheld:

  • Requiring men, but not women, to wear ties.
  • Allowing women, but not men, to wear earrings.
  • Terminating a female juvenile center employee for wearing too much makeup (after repeated warnings).
  • Prohibiting men from wearing long hair.
  • Because of safety reasons, requiring employees to wear hair a certain way or to use a hair net.
  • Requiring facial hair to be neatly groomed; however, completely prohibiting facial hair may be discriminatory on the basis of religion, disability or race.

Discrimination has been found where:

  • Female employees, but not males, were required to wear uniforms.
  • Female employees, but not males, were forced to wear smocks.
  • A manager required a female employee to wear makeup within days of being notified that the employee was pregnant. The manager had also asserted that pregnant women were less attractive.
  • Maximum weight requirements were established for female airline employees where none were established for males.
  • Only women were required to wear contact lenses.
  • A convenience store fired a black employee who had a skin disease aggravated by shaving and who refused to shave. (Black males are most likely to have this condition, known as PFB.) Company concerns regarding “image” generally don’t justify a “no beard rule.” PFB may also be a disability under the ADA.
  • Male employees were required to wear jackets and ties, but females could wear jeans, sweaters, and other informal apparel.

b) Harassment
Employers have been held liable for sexual harassment because they had required female employees to wear provocative clothing.

Discrimination has been found where:

  • A female lobby attendant was required to wear sexually revealing and provocative clothing that subjected her to derogatory comments and harassment from the public.
  • A female cocktail waitress was required to wear a revealing costume while male servers wore tuxedos.

Part two of this blog will focus on avoiding potential discrimination issues when concerning disabilities, religion and racial items. So, don’t miss next week’s blog!

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March 2, 2015

Putting Job Descriptions under the Microscope

Filed under: ADA & Disability,Hiring & Jobs4:41 am

man_microscope

by Joyce Marsh, SPHR, Sr. HR Consultant

Job descriptions. They’re something every human resource person and manager know are important, but keeping them current and pertinent can sometimes slip through the cracks.

Having the most accurate job descriptions for your employees not only ensures everyone is on the same page on duties and responsibilities, but they can help protect your organization from facing disability discrimination claims.

If your business has at least 15 employees, you need to ensure that your job descriptions correctly identify what all the essential job functions are of each position – and list any specific tools or resources needed. Here are six steps to  help ensure that all of your current and potential employees have the most comprehensive job descriptions:

  1. Collect Information and Analyze
    Why not start at the source? Interview your employees and managers about the various positions. Use questionnaires. You might even want to take some time to casually observe your employees in their positions to confirm that your descriptions are correct.
  2. Use Visual Aids
    If an employee needs specific resources or equipment for their job, include a photo of what they are. Or, depending on the position, you could videotape the individual performing their job.
  3. Identify Hazards
    Include any hazardous exposure disclosures that safety laws require.
  4. Describe the Environment
    Is the position indoors or outdoors? Is there easy access from one floor to the next (stairs and/or elevator)?
  5. Mental and Physical
    Be sure the job description includes employer expectations outlining mental and physical requirements, education and training plus any attendance or schedule requirements.
  6. Making Distinctions
    As with anything, there’s a difference between what’s required and what would be “nice to have.” There’s no place in a job description for the latter. Only include what an employee needs to get the job done.

Writing Those Descriptions

When it comes to sitting down and actually writing the job descriptions, you’ll want to: use simple and concise language with active verbs; try not to include any industry jargon that outsiders may not comprehend; use a consistent format throughout all your job descriptions; and have supervisors and employees verify the information. Combine these and the six steps above and you’ll have comprehensive job descriptions to keep everyone on the same page and the Americans with Disabilities Act satisfied.

 

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December 2, 2014

Employee Bullies, Are They Protected Under the ADA?

Filed under: ADA & Disability,General HR Buzz10:56 am

human resources bully free zone

by Emily Sternberg, HR Consultant

Employers and HR Professionals face “difficult” employees all the time.   We know who they are, they are those employees who are considered intimidating, demeaning, or even threatening to co-workers.    The question is, can these employees, with an ADHD diagnosis, be considered disabled under the Americans with Disabilities Act?   The US 9th Circuit Court of Appeals says no, overturning a jury verdict that awarded a former police officer more than $750,000 in damages, back pay, front pay, and attorney’s fees.   The court stated that although the ADA forbids discrimination against “a qualified individual on the basis of disability”, the evidence presented in the case showed that the plaintiff’s interpersonal problems with co-workers did not amount to a substantial impairment of his ability to interact with others within the meaning of the ADAA.   The court ruled that a cantankerous person who merely has trouble getting along with others is not disabled under the ADA.  The court’s opinion also stated that one who is able to communicate with others, though his communications may at times be offensive, is not substantially limited in his ablity to interact with others within the meaning of the ADA.

The lesson in this case is that all employers must take all requests for disability seriously before making the determination that the employee or candidate is no longer “qualified” to perform the essential functions of the job.   Simply arguing that an employee has no disability may no longer be applicable under the ADAAA interpretation.   As always, be sure to consult with a labor law attorney before taking adverse actions against an employee who has requested accommodation under the ADAAA.

Source:  Weaving v. City of Hillsboro, No 12-35726 (9th Circuit Court of Appeals 8/15/2014)

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November 5, 2014

Train Now or Be Sorry Later!

Filed under: ADA & Disability,Compliance,Discrimination — Tags: 2:20 pm

Can a one-armed security guard be effective?  A jury recently found for the Equal Employment Opportunity Commission (EEOC) who sued an employer for unlawfully discriminating against a licensed security guard who lost his right arm in a car accident.  The employee, Alberto Tarud-Saieh, was removed from his post because of a customer complaint about his disability.  In fact, it was the president of a community association that stated, “This company is a joke.  You sent me a one-armed security guard.”  The company responded by removing Tarud-Saieh from his post and not reassigning him to another post, thus terminating his employment.

Treating a disabled individual based on customer preferences, stereotypes, and assumptions as to what the employee can and cannot do is a violation of the Americans with Disabilities Act (ADA).  Instead, a disabled individual should have the opportunity to be considered based upon their actual abilities to perform the job.  Tarud-Saieh was awarded $35,922.  Besides the award to their former employee, the company must also engage in training and implementing anti-discrimination employment policies.

This is a good example of how sound policies and a little training can go a long way to protect your company from charges of discrimination.  Training managers to understand what constitutes discrimination under the ADA is vital to ensure an equal employment opportunity for all.

 

Source:  www.eeoc.gov.

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September 25, 2014

Executive Orders Mean New Rules for Federal Contractors

Filed under: Discrimination,Legal Issues — Tags: 10:20 am

A series of new executive orders from President Obama present some new HR law compliance challenges for federal contractors.

The President recently signed an order requiring that federal contractors not discriminate based on sexual orientation or gender identity. About half the states already prohibit such discrimination in one form or another. Another order mandates such contractors pay a minimum wage of $10.10 per hour. Both rules will take effect after implementing regulations are adopted and finalized later in 2014.

Yet another order requires that certain contractors (those with contracts over $500,000) disclose state and federal labor law violations from the past three years and also gather similar information from their subcontractors. Such violations include problems under the Fair Labor Standards Act, the National Labor Relations Act, the Family and Medical Leave Act, and the anti-discrimination laws. Repeat offenders may not receive federal contracts. The latest executive order also will prohibit companies holding new contracts of more than $1 million from requiring that their employees arbitrate alleged discrimination and harassment claims. The most recent executive order will be implemented on new contracts beginning in 2016.

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September 17, 2014

Should Employees Work While on FMLA Leave?

Filed under: Employment Law,FMLA8:13 am

The availability of electronic devices permits employees to work anywhere, any time.  The convenience and flexibility are generally welcomed by employees wishing to balance work and home responsibilities.  However, when does the overlap of work/life balance create a problem?  When it involves working during FMLA leave.

A pregnant employee, Tondalaya Evans, worked for the company, Books-a-Million, and was expecting a baby on September 1.  Tondalaya was the payroll manager and was in the process of implementing a new payroll system, which had been delayed until November.  She requested FMLA for the birth of her child.  Books-a-Million told her she would not be on leave, but rather would be working while on her maternity leave, and that she had no other choice, because the payroll system was due to “go-live.”  Ms. Evans had her child on August 30, and began working full time from home on September 1.  Even though, she was being paid her full wage, she was being denied the time off.

Tondalaya later returned to work, and found that she had been transferred to another position.  She was not agreeable with the change, quit her job, and sued in part for FMLA interference.  The court found that the company had violated the FMLA by denying her a benefit (FMLA leave, with no work being performed) for which she was entitled.  The company argued, to no avail, that she was being paid to work, and they were not in violation of FMLA.

The takeaway is that employees are entitled to FMLA for the purpose of being completely excused from work while they take care of a serious health condition of their own or an approved family member, without the worries of performing or losing their job.  Requiring or forcing an employee to work when eligible for FMLA can cause neither their work nor the reason for the leave to be given full attention.  Even if an employer offers to pay the employee, it is still undermining the purpose of the FMLA and is illegal.

 

Source:  Hyman, Jon.  “Do Not Force Employees to Work During FMLA Leave.” Workforce.  Available here.

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September 11, 2014

Think Before Documenting That!

Filed under: Discrimination,Legal Issues,Title VII — Tags: 8:20 pm

I was relatively new to the human resources scene in the early/mid 90s, and I watched as my manager could have shrieked in horror, (Does an audible gasp count?), at the note a hiring manager wrote on an employment application.  The applicant’s first name was Ebony.  Noted.  But, that manager in her efforts (giving her the benefit of the doubt) to remember the applicant wrote quite simply, “black girl.” Those two words, just screamed “discrimination” at my manager and she immediately took control of the situation.

Most HR professionals realize the implications of making descriptive notes on applications can be a double-edged sword.  Nearly everything is fair game to a plaintiff’s attorney, even the notes we make to ourselves about who was who in our candidate pool.  However, I learned that very day, in those very tense moments, that it is much better to write, “navy blue suit” as opposed to describing someone’s skin color.  Better yet, write nothing at all!

Such was true for a manager involved in a recent case out of Texas in which two newly hired workers complained their wages were lower than other workers with the same or very similar jobs.   After about three weeks of work for the company they were terminated on a trumped up reason.

The manager documented their personnel files after receiving a notice from the Equal Employment Opportunity Commission granting the two terminated employees the right to sue.  He wrote:

“Please note he is not eligible for rehire ever.  Tried to sue us.  Simply tell him, ‘sorry but we have nothing for you at this time.  Please try again.  Have a nice day.’  Not for rehire.  Per Ben G.”

Those words were enough to cause the Texas Court of Appeals to find for the two workers on the charges of retaliation and malice.  They were awarded damages as well.  (You can read the case here.)

So in every situation from hiring to firing – be careful and think before you document that!

 

Source:  Meyer, Eric B.  “The Problem With Putting ‘Do Not Hire’ Notes in Personnel Files.”  Article available here and here.

 

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August 28, 2014

ADA After FMLA – What Does Your Leave Policy Say?

A New Jersey healthcare provider will pay over $1 million to resolve claims before the Equal Employment Opportunity Commission (EEOC) that it committed disability discrimination. According to the EEOC, since the employer’s leave policy merely tracked the requirements of the federal Family and Medical Leave Act (FMLA), employee leaves were limited to a maximum of 12 weeks.

The employer’s policy meant that employees who were not eligible for FMLA leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks, all without additional consideration of whether the Americans With Disabilities Act (ADA) required some additional accommodation, including additional leave.

Managing both FMLA and the ADA can be quite tricky at times.  Additional leave after FMLA is exhausted is considered a reasonable accommodation under the ADA guidelines and must be factored in to an employee’s recovery or health management resolutions.  Whether an employer extends leave or not could be a million dollar question!

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August 14, 2014

If It Looks Like Retaliation – It Probably Is!

Filed under: Discrimination,Legal Issues,Title VII — Tags: 7:39 am

An interesting case from Salt Lake County, Utah, recently caught my attention.  The county was facing a sexual harassment claim.  The complainant’s coworker, Michael Barrett, helped her successfully win her case.  Barrett is a hero, right?  Wrong.  Shortly after assisting his coworker, Barrett was demoted.  Now, if that wasn’t enough to scream, “Retaliation!” the county hired a replacement for his previously held position.

Barrett, now knowing his way around the justice system, filed suit against the county alleging his demotion was a retaliatory action and violated Title VII of the Civil Rights Act of 1964.  The county argued that he was poor worker.  However, Barrett successfully presented evidence of his 14 years with the county having received multiple promotions and positive performance reviews – until that fateful moment when he began helping his distressed coworker.  The court ordered that Barrett be paid the same amount of pay in his new, demoted position that he had received in the old job, and that the newly hired, innocent employee not be removed from Barrett’s old position.  The county, of course, appealed.

The 10th Circuit Court of Appeals, whose rulings govern Utah employers, upheld the previous court’s decision.  They agreed that Barrett had presented sufficient evidence to demonstrate that he had been retaliated against by the county.  The 10th Circuit also agreed that the trial court had ordered an appropriate remedy to Barrett and the new hire.

Notable in this case was the supervisor’s actions.  HRLaws.com reported that, “The disciplinary proceedings that resulted in his demotion began almost immediately after his ‘supervisor learned of his involvement in the sexual harassment complaint.’”  Interestingly enough, other witnesses that were involved in the case were disciplined and the supervisor who administered some of the disciplinary actions lost the records for them.  Convenient.

Employers should be aware that employees have the right to complain about illegal treatment in the workplace.  They have the right to assist other employees, as witnesses, in a claim.  Any adverse employment actions against a complainant or a witness should be taken with extreme caution (and experienced legal counsel) so the action doesn’t even appear to be retaliatory.

 

Source:  www.hrlaws.comUtah – Employment Law Letter

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