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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.



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. 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


April 8, 2014

Harassment and Bullying in the Workplace

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

What is harassment?

In the employment and legal context, harassment is defined as conduct or actions based on race, religion, sex, national origin, age, disability, genetic information, military membership or veteran status that is severe or pervasive enough to create a hostile, abusive or intimidating work environment for a reasonable person.

State laws may further define harassment to include additional protections, such as sexual orientation, marital status, trans-sexualism or cross-dressing, political affiliation, criminal record, prior psychiatric treatment, occupation, citizenship status, personal appearance, tobacco use outside work, receipt of public assistance or dishonorable discharge from the military.

Harassment is:

  • A form of discrimination that violates Title VII of the Civil Rights Act of 1964, the ADA (Americans w/ Disabilities Act), the ADEA (Age Discrimination in Employment Act), or GINA (Genetic Information Nondiscrimination Act).
  • Unwelcome verbal or physical conduct based on a person’s race, color, religion, sex or gender, national origin, age (40 and over), disability (mental or physical), or genetic information.
  • Severe, pervasive and persistent conduct that unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment.
  • An occurrence where an employee’s status or benefits are directly affected by the harassing conduct of a manager or person of authority.
  • Adverse employment actions (retaliation) against employees who complained of harassment or discrimination or who participate in a complaint procedure.

What is workplace bullying?

In the workplace and as used in this blog, the term “harassment” refers to the illegal form of discrimination. An employee may claim he/she is being harassed; however, he/she may be subjected to inappropriate conduct or behavior that, although not illegal by definition, is unacceptable by your company’s policies and will not be tolerated if proven true. The term frequently used to describe this type of behavior and conduct is often called “workplace bullying.”

Workplace bullying is repeated mistreatment of one or more employees using humiliation, intimidation and denigration. Bullying behavior can exist at any level of an organization.  Bullies can be superiors, subordinates, coworkers, and colleagues.

Some examples of workplace bullying are:

  • Social bantering or teasing
  • Verbal abuse and profanity, humiliation, constant criticism
  • Gossip- conversation & rumors about other people, typically involving details that are not confirmed as being true
  • Taking credit for work performed by others
  • Personal and professional denigration (attacking one’s character/reputation)
  • Overt threats
  • Assignment of an unrealistic workload
  • Aggressive e-mails or notes
  • Professional exclusion or isolation
  • Sabotage of career

Why is it important to prevent harassment and bullying in the workplace?

Compliance with laws that prohibit discrimination and enforcing your internal policy on bullying (or any other type of inappropriate conduct that may not be illegal by definition) are both paramount in preventing lawsuits and litigation costs.  The Equal Employment Opportunity Commission (EEOC) had almost 100,000 employee charges in 2012.  Regardless the number of substantiated claims, the process alone is time-consuming for internal resources and external legal fees are often added to that cost.

What are some measures in preventing EEOC claims and lawsuits?

  • Review your current handbook policies.  Be sure they are accurate, compliant, and up-to-date regarding harassment, inappropriate conduct, sensitivity, and workplace bullying.
  • Ensure every employee receives a copy of these policies and conduct company-wide training.
  • Conduct a separate training session for managers and supervisors, clearly stating expectations when they observe or hear of any violations regarding possible harassment or bullying.



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.”


March 6, 2014

Religious Garb and Grooming – New Publication from the EEOC

Filed under: Compliance,EEO,Legal Issues,Title VII11:45 am

Dress codes are always a hot topic in HR!  Deciding what is allowed, what is not, and what kind of perception a company wants to create with its customers, are all affected by how its employees dress and groom.  Employers have been warned against being too strict in their dress code policies and to realize that at times they must make exceptions to their usual rules or preferences to be in compliance with Title VII of the Civil Rights Act of 1964.  For instance last year, clothing retailer, Abercrombie & Fitch, learned the hard way (several times) not to discriminate against an employee or applicant whose sincerely held religious beliefs require them to wear hijabs.

To help employers sort out this sometimes personal topic, the Equal Employment Opportunity Commission (EEOC) today issued a practical guide, entitled “Religious Garb and Grooming in the Workplace:  Rights and Responsibilities” along with a Fact Sheet regarding the same.  This guide provides practical advice for employers and employees, and includes a question-and-answer format with numerous examples based on EEOC litigation.  It is hoped that this guide will protect employees and applicants from job segregation, workplace harassment, retaliation, and discrimination based on their religious beliefs.

Check out the EEOC’s new publication today!


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!




September 18, 2013

Are You Recording Me?

Filed under: Title VII12:07 pm

Oh, Technology!  It is forever on the move, constantly evolving into the next generation of devices with more bells and whistles than the last.  Is your company ready for the next tech creation?  We have so many capabilities with smartphones and tablets, our lives should be easier, right?

Employees would probably answer that with a resounding “yes”!  However, for employers the devices in the hands of nearly every employee presents a danger.  Now, don’t take them away or ban them, but rather be aware of what this means for you and your managers.  Here it is, “Be careful what you say in the workplace.”  Pretty simple!

The Practical Employer, Jon Hyman, shared in his blog at the dangers of recording devices in the workplace.  He cited the verdict in a New York racial harassment case between an African-American woman and her boss, also African-American.   She had worked for the defendant for two years and was a manager.  She lost her job in retaliation of her claim that he called her the “n” word eight times, which she found to be offensive and hurtful.  He said it was a term that has different contexts that can mean affection or even tough love.  She proved her claim by submitting a four-minute recording of his rant that she made on her iPhone.  The jury found in her favor and awarded her a total of $280,000.

It may be difficult to entirely ban employee recordings in the workplace because of the National Labor Relations Board’s crackdown on employment policies, but there is a proactive measure you can take.  The lesson for employers according to Mr. Hyman, is to “train your managers and supervisors to understand and assume that everything they say is being recorded, if not electronically, then via a mental note that an employee can later jot down.”  Remember how important documentation is for HR, well it can be equally important for an employee who becomes a plaintiff!


October 17, 2012

Pregnant Women’s Rights – - Long Overdue!

On September 19, 2012, a bill was introduced to help protect pregnant women’s rights in the workplace.  What?  You say there already is a law like that?  Well, not quite!

Back in 1978, The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act, was passed with the intent to protect women from discrimination due to “pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.”  It was made a part of the Civil Rights Act because it protects against sex discrimination, covered by that law.  The Pregnancy Discrimination Act required equal treatment in employment for pregnant women.  This meant that all policies that were applied to other non-pregnant employees should be equally applied to the pregnant employee.  The law also said that an employer could not refuse to hire a pregnant woman on the basis of her pregnancy or any condition relating to it.  And, it went further yet.  Pregnant women were to be afforded equal health insurance benefits for all her pregnancy related expenses as with other medical conditions.  However, pregnancy has never been considered a disability. . . until possibly now.

The bill mentioned above that was introduced by Sen. Robert Casey, Jr. (D-PA) proposes that pregnant women be given the same workplace accommodations that are afforded to persons with disabilities.  The Pregnant Workers Fairness Act (PWFA) would require an employer to make “reasonable accommodations” as required by the Americans with Disabilities Act (ADA) for a pregnant employee, to allow them to perform the essential functions of their job.

If this bill passes, it will bring great relief to pregnant women who once feared disclosing their pregnancy to their employer for fear of being involuntarily transferred to another position, placed on unpaid leave, or even losing her job.  It would permit a woman to have minor modifications to her job duties that would allow her to work as long as possible in her pregnancy without worrying about harm to herself or her unborn child.   These minor adjustments could be as simple as an offer of light duty or even providing a chair in which to occasionally sit, when standing or walking is the norm.  Affording such reasonable accommodations would also give the expectant mother a measure of economic security, knowing her pregnancy will not jeopardize her employment.  The National Women’s Law Center reports that women make up half the workforce, so this bill, if it becomes law, will be a step in the right direction to keep the economy strong.

Keep your eye on this one because opposition is strong.  Republicans who oppose this bill argue that it will bring lower profits and undue hardship on businesses.  See the full text of the bill here.


May 1, 2012

Background Check Best Practices: A Follow-Up

Filed under: Compliance,EEO,Employment Law,Title VII10:10 am

Last week, I wrote a blog about best practices for conducting legal criminal background checks.  Also last week, the Equal Employment Opportunity Commission (EEOC) updated and released enforcement guidance on employers’ consideration of arrest and conviction records in employment.

The updated guidance is available directly from the EEOC website in PDF form, and includes a list of employer best practices.  The EEOC does not appear to have made any strict rules that would prevent employers from considering conviction records, but attempts to provide some guidance.  The Commission continues to embrace the long-standing three-factor test that was first established by the Court in Green v. Missouri Pacific Railroad Company:

  • The nature of the offense;
  • The time elapsed since the conviction or completion of sentence; and
  • The nature of the job sought or held.

New in the Guidance Report:

  • Application Questions – Although the agency did not ban employers from using the checkbox on an application, they did recommend against it as a best practice.  Instead, the agency recommends employers only ask applicants in the case where criminal history may be relevant.
  • Arrest Records – It is important to note that arrest records, standing alone, may not be used to deny employment to an individual.  However, employment decisions may be made based on the conduct that underlies the arrest.  Consequently, an individual may be denied employment or terminated if the arrest is relevant and makes the individual unfit for the position.
  • Individualized Assessment – This is the biggest development in the EEOC’s guidance.  An “individualized assessment” occurs when the employer: informs the applicant or employee that he or she is being screened due to a criminal record; individual is provided with opportunity to respond; and the employer considers extenuating circumstances when making its final decision.  The EEOC states that employers who develop their targeted screen based on the Green factors and conduct an “individualized assessment” can avoid Title VII liability.  According to SHRM’s survey, 88 percent of respondents indicated they allow the individual to explain the results of the background check, so it appears many employers are already engaging in this best practice.
  • Compliance with Federal Law – Employers who are conducting a criminal background check in order to comply with another Federal law will not violate Title VII.  However, any screening that exceeds the scope of the applicable law will be scrutinized.
  • Compliance with State Law – Title VII pre-empts state and local laws that are in conflict with it, so an employer who conducts criminal background checks in accordance with state law will not be protected from liability.  Some employers could end up in a no-win situation as a result.

Employers’ best bet now is to review their criminal background check procedures in light of the new guidance.


March 13, 2012

Politics in the Workplace: What’s Your Vote?

Filed under: Discrimination,EEO,Employment Law,Title VII12:15 pm

At one time or another, we’ve all heard this advice: “Talk about anything – except religion and politics.”   Many of us could also say that at one time or another, our parents or grandparents told us to be even more careful in discussing those issues at work.  Employers walk a fine line between respecting employees’ rights to freedom of speech and protecting those employees from discrimination or harassment that could arise from those discussions.

In a recent Careerbuilder survey, one third of respondents said they discuss politics at work.  Forty-three percent also said they expected to discuss the upcoming presidential election at work.  The sample of 7,000 full-time workers also revealed:

  • Men are more likely than women to engage in political discussion at work (44% men, 23% women).
  • 23% of workers admit that they have been involved in a political discussion that became heated with a co-worker, or in some cases, a boss higher up in the organization.
  • Men are also more likely (25%) than women (19%) to admit to an altercation with a co-worker over opposing political views.
  • 10% of workers said that their opinion of a co-worker changed – often for the negative – after learning of his or her political views.
  • Although the statistics were fairly even across age groups, people age 55 and older were the most likely (43%) to discuss politics at work, and people ages 18-24 were least likely (25%).

Political views often mix with religious views as well, and a company could easily find itself in the middle of a discrimination or harassment claim.

The Equal Employment Opportunity Commission (EEOC) provides a few tips for employers on stopping religious harassment:

  • Make sure you have a well-publicized – and consistently applied – anti-harassment policy.  Make sure it is clear to employees how they should file complaints, and quickly and thoroughly investigate any complaints.
  • If you discover harassment has occurred, address and end the conduct, even if you don’t think it rises to the level of unlawful activity.  Allowed to continue, the conduct could become more pervasive or severe.
  • Intervene if you learn of possible Title VII violations, even if no one files a complaint.
  • Allow religious expression among employees to the same extent that you would allow other forms of personal expression that are not harassing or disruptive.

More of the EEOC’s tips can be found here: Employer Best Practices – Religion

Careerbuilder Political Survey

How do you handle political discussions in your workplace?  We want to know!

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