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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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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 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 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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June 11, 2014

Insensitive Facebook Comments Lead to Resignation

Filed under: Discrimination,Legal Issues10:57 am

A cardiac nurse in Utah has resigned his employment in the face of controversy over his postings on Facebook.  The case arose after a shooting occurred in a gang crimes case in the new Utah federal courthouse. The defendant in that criminal case allegedly had charged the witness stand and threatened a witness when he was shot and killed by a federal marshal. Afterwards, the nurse posted a public Facebook comment that referred to the nationality of the involved gang member and said “Kill Them All.” The nurse’s employer, a Utah public hospital, put the nurse on leave while investigating the matter. The nurse eventually chose to resign his position. A recent article about the matter is available here: http://www.sltrib.com/sltrib/news/57855398-78/shrum-comment-angilau-hospital.html.csp

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April 3, 2014

Not Selected for RIF – Could It Be Discrimination?

Filed under: Discrimination,Legal Issues,Title VII — Tags: 6:00 am

When a company makes the decision to reduce its workforce, employees experience a wide range of emotions.  Such employment action is very personal.  Some feel angry, some feel numb, some are worried, but most people feel relieved when they were passed over in the selection process for the reduction-in-force (RIF).  Though the initial relief can quickly turn to “survivor’s guilt.”  However, a recent court case illustrates what can happen when an employee doesn’t get selected for the RIF and cries foul!

A long-term worker for the U.S. Postal Service filed claims of gender discrimination and retaliation, among other things, because he was excluded from two RIFs and was transferred to another position.  While most employees would be grateful, the worker considered the transfer an adverse employment action.  As a disabled veteran, had he been included in the RIF, he would have received certain employment rights giving him an opportunity to advance to a higher-level position.  He argued that his exclusion from the RIF was a denial of a promotion.  The court agreed.

The lesson for employers is to document, document, and yes, document!  Adverse employment actions are much more than just terminations.  As shown in this case, the worker sued under Title VII discrimination and retaliation protections.  When an employer is contemplating a reduction-in-force, it is vital to consult with counsel and to document reasons why some employees were included and others were excluded.  Your documentation may come in very handy should you find yourself explaining those reasons to a judge!

Source:  Brody, Robert G. and Warren, Abby M. “Keeping Workers Employed May be Discrimination.”

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February 20, 2014

“Steer” Clear of Discrimination

Just when you thought you had heard everything there was to know about discrimination, I just came across another – “Steering!”  According to the HR Daily Advisor, “’Steering’ may be charged when people in a protected class are ‘steered’ to jobs with lower long-term potential than other similar jobs.”

A recent court case settled by the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) illustrates just how government agencies are beginning to look at situations in the workplace under a different light.  G&K Services Company provides textile leasing and renting services to government agencies.  It was discovered that G&K had a practice of assigning laundry workers to different tasks and different pay rates on the basis of gender.  The OFCCP specifically found that female employees who had been hired as general laborers were assigned to “light duty” jobs that paid less than the “heavy duty” jobs involving similar work and qualifications, which the company reserved for men.  This is a form of pay discrimination because women were denied access to higher paying opportunities because of sex stereotyping.  It was also discovered by investigators that male applicants were frequently denied the option to compete for a majority of the open laborer opportunities because the company only considered them for the so-called heavy duty work.

G&K Services will be paying back wages of $265,983 to 59 female workers who were steered into lower paying jobs and they will be offered higher-paying laborer positions.  G&K will also pay back wages of $23,968 to 331 male job applicants who were denied the opportunity to compete for open lower-paying laborer positions.

It is extremely important that employers review their hiring policies, but also their hiring practices.  If any discriminatory trends are noted, make good-faith efforts to correct them, documenting along the way.  With so many people still unemployed, everyone deserves a fair chance to choose the job they want, not the one they were steered toward!

Source:  http://www.dol.gov/ofccp/

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January 16, 2014

Touting Religion as a Job Requirement

It is pretty straightforward that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion.  This would include forcing employees to conform to a particular religion, which is what one employer did.

The Equal Employment Opportunity Commission (EEOC) recently settled a charge of religious discrimination by Dynamic Medical Services, Inc. (DMS) of Miami, providers of medical and chiropractic services.  The EEOC charge stated:

“DMS required Norma Rodriguez, Maykel Ruz, Rommy Sanchez, Yanileydis Capote and other employees to spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving.  The company also instructed employees to attend courses at the Church of Scientology.  Additionally, the company required Sanchez to undergo an “audit” by connecting herself to an “E-meter,” which Scientologists believe is a religious artifact, and required her to undergo “purification” treatment at the Church of Scientology.”

When employees, Rodriguez and Sanchez refused to participate in Scientology religious practices and did not want to conform to Scientology religious beliefs, they were terminated.  DMS will pay $170,000 to the four named claimants and four other class members to settle the lawsuit as well as meet other criteria for resolution.

It is against the law for an employer to mandate employee participation in, or the practice of, a specific religion, as well as refusing to accommodate an employee who requests to be excused, because of objecting to the practices.    Employers should be sure they have a current anti-discrimination policy explaining employees’ rights to be free of discrimination of any kind.  The EEOC is diligent about addressing these types of charges.  Be assured, employers violating such federal laws will be held accountable.

Need help with your employee handbook?   HRN is here for you!

 

Source:  www.eeoc.gov

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