August 17, 2011

Weekly Wednesday Acronym – ENDA

Filed under: Affirmative Action,Compliance,Discrimination,EEO,Employment Law,General HR Buzz,Genetic,Management Practices,Title VII — Tags: , , , — Joyce @ 7:00 am

The Employment Non-Discrimination Act (ENDA) is not a new acronym.  In fact, it has been included in some form of the bills considered by Congress in every session since 1994 except in the 109th Congress (January 3, 2005 to January 3, 2007).  So what is ENDA?  Simply stated, it is a proposed federal law that would prohibit sexual orientation and gender identity discrimination in the workplace.  The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. 

Currently, 21 states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and 15 states and D.C. also prohibit discrimination based on gender identity.  Although these laws provide important protections, according to a 2002 General Accounting Office (GAO) report, relatively few complaints of discrimination based on sexual orientation have been filed in these states.

Although there isn’t currently a federal law in place, as of March 2011 87% of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation and 46% had policies that include gender identity.

Currently the bill was introduced in the 112th Congress on April 6, 2011 in the House, and on April 13, 2011 in the Senate.  With the current makeup of the House and Senate, politicians are predicting that the proposed ENDA may pass.  Stay tuned for further updates.

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June 15, 2011

Weekly Wednesday Acronym – EEO

Filed under: Compliance,EEO,Employment Law,General HR Buzz,Title VII — Joyce @ 1:58 pm

Equal Employment Opportunity (EEO) is applicable to all applicants and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations.  It prohibits discrimination based on race, color, religion, sex, national origin, disability, age, genetics, age, retaliation, or marital status.

Your workload may have increased significantly recently based on the sharp increase of EEO claims filed by applicants and employees.  According to statistics from the Equal Employment Opportunity Commission (EEOC), the number of claims of job discrimination filed with the agency has increased by nearly 33% over the last 5 years.  A record number of claims – 99,922 charges – were filed in 2010.

 Why the increase?  There are a few reasons speculated as to the spike in claims:

  • Weak job market
  • Recession
  • New EEOC system, making it easier to file claims
  • Current administration has taken a hands-on role in pushing workers’ rights

 So does an increase in the number of claims result in an increase in settlements?  Not necessarily, according to statistics from the EEOC.  For claims filed in fiscal year 2010, just 19.2% of claims ended up with “merit resolutions” resulting in positive outcomes for complainants such as back pay, reinstatements of seniority and employment, or a job promotion.  Out of the remaining 80.8% of cases, nearly 65% were dismissed and found to have no “reasonable cause.”

 Keeping accurate records of applicants, tracking performance, accurate payroll records, and documentation of employee-related decisions are important safeguards when presenting the company’s defense should you be faced with a claim from the EEOC.

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December 6, 2010

Supreme Court to Hear Wal-Mart Class Action Case

Filed under: Legal Issues,Title VII — Monica @ 10:13 am

The Supreme Court announced today that it will consider the appeal of Wal-Mart in a sex discrimination class action suit.   The Court will limit its review to the question of whether the lower court erred when certifying the class, one of the largest in history.  Six female Wal-Mart employees initiated the suit, alleging unfair pay and promotion practices.  The plaintiffs sought class action status, a class that could potentially cover 500,000 to 1.5 million workers.  Wal-Mart’s appeal is being supported by other major US corporations and the Chamber of Commerce.

You can read more about the case in the Wall Street Journal at:  http://online.wsj.com/article/SB10001424052748704156304576003313491986164.html?mod=WSJ_hp_MIDDLETopStories

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March 22, 2010

Sexual Stereotyping and Adverse Employment Decisions

Filed under: Title VII — Tags: — Jane @ 1:58 pm

An 8th Circuit Court of Appeals decision found that an employer, who fired an employee because she did not fit within sexual stereotypes (not feminine enough), violated Title VII.

The employee, a night desk employee at a motel, had received several merit pay increases and positive customer feedback.  Consequently, her manager sought and received approval (over the phone) from a corporate director of operations to put her in a daytime front desk job.

All was fine until the director stopped by in person and found the employee wasn’t “pretty enough” lacked the “Midwestern girl look” that the motel chain desired.  The employee, by her own admission, wore men’s shirts and pants, had a more masculine appearance, and had even been mistaken for a male.

The director ordered the manager to put the employee back on the night shift.  When the manager refused she was asked to resign.  The employee was later fired…and then sued.  The court found for the employee, holding that the discrimination would not have occurred but for the individual’s sex, violating Title VII.

Note that federal law still does not prohibit discrimination based on sexual orientation (although many states do).  Rather the court found discrimination “because of sex…,”   a confusing distinction, I know.   [Lewis v Heartland Inns of America].

The 8th Circuit covers North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri, and Arkansas.

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December 5, 2008

HR Fact Friday: Pregnancy Discrimination Claims Increase

Filed under: Title VII — Tags: , , — Paul @ 1:44 pm

The United States Equal Employment Opportunity Commission reports that employment discrimination claims based on pregnancy have increased significantly from 1992 to 2007. Pregnancy claims increased sixty-five percent during the last fifteen years and hit a record high in 2007.

Interestingly, a large part of the increase came from filings by women of color:

Black women pregnancy claims were up 45%
Claims by Hispanic women up 135%
Claims by Asian women up by 90%
And by Native American women up 109%

Pregnancy Discrimination expands the gender-protected class by prohibiting employment discrimination against women based on pregnancy and related issues. Because the threat of pregnancy discrimination claims is an increasing risk factor today for employers, wise employers will review their policies, practices and procedures to try to minimize this risk.

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November 12, 2008

Post-Election. What’s Next? Sexual Orientation and Pay Discrimination

Filed under: Title VII — Jane @ 3:23 pm

Continuation of post last week introducing various HR issues being addressed in Washington DC and providing more information on each topic.

Congress likely will pass and the new President will support a national prohibition on employment discrimination based on sexual orientation. Many states already prohibit such job bias, but Congress seems poised to add sexual orientation to the national list of protected classes, along with race, color, age (40 or over), sex, pregnancy, gender, religion, disability, national origin, ethnic background, genetic status, military service and citizenship. The new Administration also seems to support Congressional efforts to strengthen the federal laws prohibiting pay disparities based on gender.

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September 4, 2008

English Only on the Golf Course?

Filed under: Title VII — Jane @ 9:21 am

Increasing diversity in the workplace has brought many opportunities and challenges. Ensuring effective communication among employees and with customers or vendors is one of them. Some employers have attempted to address the issue by establishing “English only” rules.  Such rules must be non-discriminatory, narrow in scope and application, and justified by business necessity.   The EEOC takes a dim view of such requirements.

The Ladies Professional Golf Association (LPGA) is the latest group to make news in the “English only arena.”   It has adopted a new rule that beginning in 2009 requires all golfers who have been on the tour for 2 years to pass a test evaluating spoken English.  Apparently there are over 120 international golfers on the tour.  Is English essential to be a golf professional?   The LPGA says it’s important to attract corporate sponsors.  However the issue of discrimination based on national origin has been raised by a number of civil rights groups.   They also ask:  What about international athletes in other sports?  What about American golfers who participate in tournaments outside the U.S?  Do they need to learn the local language?  Stay tuned.  This could get interesting. 

For more information on English only rules in the workplace go to the EEOC’s website at: http://www.eeoc.gov/policy/docs/national-origin.html#VC

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June 11, 2008

Tattoos “Un” Covered by ‘Freedom of Religion’?

Filed under: Title VII — Tags: , , , , , — Paul @ 7:42 am

I took an introductory marketing solicitation call yesterday from a very nice and knowledgable rep from HRMorning.com (http://www.hrmorning.com/). In the course of our conversation I took a look at their website (which is relatively new having been launched early in 2008) and was duly impressed. So much so that I am offering the highest form of a bloggers compliment . . . I am re-publishing some content (giving full credit of course to HRMorning.com — okay count em, that’s two plugs. See below for a recent HR Legal News posting on HRMorning.com (three plugs) dated 6/10/2008 by Sam Narisi.

You’ve got a policy against facial piercings and visible tattoos. Sounds fair. But what happens when an employee claims to be a member of the “Church of Body Modification?”

That’s what happened to one employer when a worker claimed her religion required her to display “facial jewelry” at all times. The company said no. She spent most of her time dealing with customers and was bound by a strict dress code.

She sued, but the company won. The court ruled it was OK to require employees to look professional in front of customers (Cite: Cloutier v. Costco).

Going the other way

The keys to victory in that case: 1) business need, and 2) a consistently enforced policy. Not all companies have been so lucky in court.

In another case, an employee was told to cover tattoos he had on his arms. He refused, because they were religious symbols. He was fired, and he sued.

In court, the company claimed that he dealt with customers so it had a legitimate business reason to ask him to cover up. But the company had no written policy banning employee tattoos, and the guy had been working for six months before anyone mentioned the problem. The company lost the case and eventually paid a $150,000 settlement (Cite: EEOC v. Red Robin Gourmet Burgers).

What you need

So when can you ask employees to hide their tattoos, even ones with religious significance? When:

  • you have a consistently enforced policy
  • allowing exceptions to the policy would cause a hardship (such as when employees are visible to customers, or co-workers complain about body art that’s offensive), or
  • safety is an issue.

Finally, with all religious accommodation requests, it’s smart to take them seriously and treat all employees’ beliefs as legitimate — yes, even members of the Church of Body Modification get legal protection.

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May 28, 2008

Threatening Students with Title VII?

Filed under: Title VII — Jane @ 6:43 am

In case you had any doubt that we really are an excessively litigious society, consider the case of the Dartmouth writing professor who threatened to sue her students under Title VII of the Civil Rights Act.  The  teacher accused the students of discrimination because of the way they allegedly disagreed with her in class, demeaned her, and disrespected her because of race and gender. Since the accusations, the professor has been informed that Title VII applies to the workplace (not the classroom).  Reportedly she now plans a suit against the college and will name the problem students in her grievances.

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March 7, 2008

HR Fact Friday: Job Bias Charges up 9% in 2007

Filed under: Title VII — Paul @ 1:20 pm

The Equal Employment Opportunity Commission has just released its numbers involving private sector discrimination filings for 2007.  They’re up by 9%, the highest increase since 1993, as the EEOC received 82,792 filings.  Bias charges based on race continued to be the most frequent. Race has been the most common claim since the EEOC went into business in 1965.   Interestingly, for the first time, retaliation was the second most common charge and was at record levels.  Claims based on sex/gender moved to third.  The next most common, in order, were filings based on age, disability, national origin, and religion.

  (more…)

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