Separate But Equal? ‘Full & Skim-Milk Marriages’

The Supreme Court’s stance on DOMA leaned favorably toward marriage equality after almost two hours of oral arguments on March 27. A majority of the justices voiced concerns for the constitutionality of a federally mandated definition of marriage, which currently is defined and recognized as being between a man and a woman only. As such, only heterosexual married couples are eligible to receive benefits like Social Security and tax breaks, while married same-gender couples, in states that have approved such unions, still are not recognized by the federal government.

Having two kinds of marriages, according to Associate Justice Ruth Bader Ginsberg, is likened to having “separate but equal” tiers, inferring a direct parallel to the faulted rationality the government once upheld in Jim-Crow-era laws. Ginsberg said:

They’re not–they’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question. It’s — it’s — as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

Additionally, questions surrounding the original motives behind DOMA arose: “Well, is what happened in 1996–and I’m going to quote from the House Report here–is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?” asked Justice Elena Kagan.

Comparisons between same-gender-marriage bans and racism have become an increasing argument for the supporters of LGBT-rights. For example, pro-LGBT group Every1Against1 previously used Jim-Crow imagery in its campaign in support of marriage equality, and Howard University School of Law’s Civil Rights Clinic recently filed an amicus brief that compared both Prop 8 and DOMA, and similar same-gender-marriage bans with Jim-Crow era laws that prohibited interracial marriage and reinforced continuing discrimination against Blacks.

“Without acknowledging the racial provenance of these discredited arguments, opponents of marriage equality have attacked same-sex couples as a threat to American society, American families and heterosexual marriage, as an affront to the laws of God and nature, and as a menace to their children,” read the brief.

The Supreme Court is expected to make a decision on DOMA and Prop 8 sometime this summer.

The post ‘Separate But Equal?’ Same-Gender Marriage Parallels Racist Jim Crow Laws appeared first on DiversityInc.

New York City cops intentionally are targeting Black and Latino youth for marijuana possession, according to a new report from the Drug Policy Alliance.  The data suggest that the NYPD, under Mayor Michael Bloomberg’s administration, is acting on racial bias to inequitably arrest Black and Latinos for marijuana possession—an initiative that’s wasting both valuable taxpayer dollars and more than 1 million hours of police time.

The “One Million Police Hours” study, prepared by Queens College professor Dr. Harry Levine, quantifies that NYPD personnel have made 440,000 arrests (estimated at $1,000 to $2,000 or more a pop) over the last decade and held individuals in police custody for approximately 5 million hours, costing the city a grand total of at least $440 million dollars—the report says estimates can exceed $1 billion.

A 1977 law that decriminalized marijuana possession for amounts of less than one ounce gave police authority to arrest and charge anyone if the marijuana is in public view. It’s a loophole that police have used during stop-and-frisks, which require a person to empty the contents of their pockets or bags, and are used frequently to target Blacks and Latinos.

The NYPD’s stop-and-frisk policies also are being evaluated in the Floyd v. City of New York trial, which argues the motives and definition of “probable cause” searches.

Bamboozle Arrests Total 85 Percent Blacks, Latinos

The people arrested? Eighty-five percent were Blacks or Latinos, with 50 percent under the age of 21. This is despite research that shows the majority of marijuana users are whites.

The report reads: “We agree with Governor Cuomo who said in his 2013 State of the State address, ‘These arrests stigmatize, they criminalize, they create a permanent record. It’s not fair, it’s not right, it must end, and it must end now.’”

Neither the NYPD nor Bloomberg has responded to the report or the accusations of racial bias.

Bloomberg announced in February a slight change to the marijuana arrest policy and a reduction in the legal consequences: Those in possession of low levels of marijuana (25 grams or less) will not need to remain jailed overnight.

The post More Whites Smoke Weed, But NYC Spent $440M Targeting Blacks and Latinos appeared first on DiversityInc.

Gender Discrimination

Food company settles OFCCP charges of adverse impact hiring discrimination. A national food distributor has agreed to pay approximately $200,000 and change its hiring practices. The Office of Federal Contract Compliance Programs (OFCCP) charged that the company’s hiring practices discriminated against women. In a nine-month period, the company hired only six out of 90 qualified female applicants (6.6%) for “order selector” positions at one of its facilities. Out of the male applicants, the company hired 40 of 150 qualified applicants (26.6%). The OFCCP considered this disparity too great to be random and too great to avoid a conclusion of gender discrimination. The situation was heightened by evidence that a number of the rejected female applicants had experience and credentials which were equal to and greater than the men who were hired. The settlement monies will go to women who were not hired, and a number of those will also be offered jobs. This was a no-fault settlement because it was reached in a conciliation process, before the OFCCP proceeded to the enforcement stage. OFCCP v. Nash Finch Co. (Administrative Settlement, 2012). 

Religion/National Origin Discrimination

Offensive mannequin and one comment were not enough to create harassment case. A Jewish hospital employee of Mexican origin filed a case on religious/national origin’ harassment and for retaliatory discharge after he complained about the harassment. The harassment consisted of three incidents. There were mannequins in one area of the hospital. The supervisor noticed that one had a “Hitler-style mustache” and thought it would be funny to position the arm in a Nazi salute. The Jewish-Mexican employee saw this, was offended and put the arm back down before the end of the day. He then called the internal complaint hotline about the offensive incident. During the call he also stated that he heard that the same supervisor had previously referred to the hospital’s cleaning crew as “those Mexicans,” allegedly in a negative tone. The employee then transferred to another location. At that location he was critiqued for performance issues and complaints by patients about his work. This critique eventually led to discharge. He filed a Title VII case on religion, national origin and retaliation. In the case, he added the evidence that the supervisor who posed the mannequin had also once noticed the large Star of David necklace worn by the employee and said, “That’s gaudy!” This was further evidence of anti-Semitic animosity.

The court granted summary judgment, dismissing the case. The incidents were not sufficiently severe or pervasive to constitute illegal harassment. Neither the mannequin pose nor the Mexican comment were directed at the employee. Though insensitive, there was no indication the less-than-a-day mannequin pose was intended to be anti-Semitic. Not every Hitler reference or parody has such an intent. The jewelry comment had no religious reference attached. It was a large piece of jewelry, and the court would not interpret a religious meaning to an otherwise neutral comment. Finally, the performance critique and discharge were by a different supervisor, in a different location. The evidence was that this supervisor had no knowledge of the employee’s prior hotline complaint and so could not have acted in retaliation. De La Rosa v. Hanger Prosthetics and Orthotics, Inc. (D. Ariz., 2012).

National Origin Discrimination

Deputy sheriff can maintain retaliation case for investigation of her citizenship status. A 13-year veteran deputy sheriff of Mexican descent made an internal written complaint about alleged improper treatment of and derogatory and discriminatory comments made to and about Mexican inmates in the county jail. The following day, she was suspended pending an investigation of her own status—was she a U.S. citizen or legal resident? The deputy was able to produce the evidence of citizenship and was reinstated. However, the court validated her ensuing suit for retaliation under 42 U.S. Code § 1983, against the county, the sheriff and two other personally named defendants. The judge found a substantial foundation that the reason for the sudden investigation of the deputy’s legal status was her complaint about improper treatment and national origin discrimination, a matter of public concern. Garcia v. Arapahoe Co. Sheriff’s Office, et al. (C.D. Col., 2012).

Disability Discrimination 

Failure to confer with coach/guardian can violate interactive process. Some disabilities render the person less capable of communicating without assistance. This may be true for visual and hearing conditions and is often the case with intellectual disabilities. A kitchen worker with an intellectual disability was capable of doing the job if his supervisor was reasonably sensitive to his understanding abilities and manner of direction. His accommodation plan included a request to consult with a third-party job coach or his guardian regarding accommodation requests and before any tangible employment decisions. The employee did make requests for accommodation, which seem to have been ignored. There was no communication with the designated third party. He was then fired, again with no consultation with the designated third party. This violated the established accommodation plan and the ADA-required interactive process. The company agreed to settle the ensuing case for $255,000 plus a series of compliance requirements. EEOC v. Bannes Health (Administrative Settlement, 2012).

State employee cannot sue under ADA-Title II. The U.S. Supreme Court has ruled that state agencies are immune from suit under the ADA’s Title I employment sections due to the 11th Amendment’s “sovereign immunity” clause. (Employees can file cases under the Rehabilitation Act if the agency takes federal funds for a program they work under.) Title II of the ADA, however, specifically applies to state and all other government agencies. Title II prohibits discrimination by any public entity “in any public services, benefits or activities.” A university employee alleged she was discharged due to failure to accommodate her spinal conditions. She sued under Title II, claiming the language covered any discrimination, including employment actions, by an entity which provided public services. The court disagreed. It ruled that Title I and II are mutually exclusive. Title II is limited to those who are recipients or participants of the public services and not the employees of those services. Ewell v. Bd. of Regents of the U. of Oklahoma (10th Cir., 2011). This is the fourth court to make this finding (also the 3rd, 6th and 9th Circuits). However, the 11th Circuit has allowed a Title II employment case. So other cases may be brought to test the waters in other circuits.

History of drug use vs. current drug use. The ADA does not protect an employee from the consequences of current drug use. However, there is a “safe harbor” for those who have a “history” of use, have completed a treatment program and are no longer using. Where is the transition point? In Shirley v. Precision Castparts Corp. (S.D. Tex. 2012), an employee was abusing prescription painkillers at work. Instead of discharging him, as it could have, the company allowed a leave for treatment with the condition that he complete treatment. After two days, the employee checked out of the program, against the doctor’s advice. He was fired. He sued under the ADA, claiming he had a protected disability as a “former user.” The court disagreed, finding “current use” means “recent use.” The employer could infer the use was current, especially since the person failed to complete treatment and checked out after only two days. There must be a “sufficient time” after the last use to qualify for the “safe harbor” protection.

One year is enough time, and college perceived employee as drug dependent and disabled. A mailroom supervisor at a private college became dependent on prescription pain medication following a series of back surgeries. He tested positive for an “excessive amount” of opiates. He entered and completed a treatment program for addiction. He continued to take a different prescription medication for his continuing surgeries and pain, monitored by his physician, along with opiate-blocking medications. A year after the completion of the drug-treatment program, the college again ordered a drug test. It again showed the presence of prescription pain medication. The college fired the employee. In this case, the employee did qualify under the ADA’s “safe harbor” as a person with a record of past treatment. Further, the college did not establish that the prescription medication level was “excessive.” It did not ascertain that he was taking the medication under his doctor’s monitoring and treatment advice. Thus, the termination violated the ADA, based on the employer’s perception of drug addiction, instead of a valid foundation. The jury awarded $300,000, plus attorney fees and costs. Fowler v. Westminster College (D. Utah, 2012).

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post Poor Workforce Diversity Practices Result in Gender Discrimination appeared first on DiversityInc.

Wagner made his initial comments in the President’s Letter in the latest issue of Emory Magazine. (Note that the page has been edited to include the apology at the top in italics; the original letter is below.) Wagner stated that the Constitutional compromise, in which each slave was counted as three-fifths of a person for determining taxes and representation apportioned to states, was “a good thing in itself.” Wagner wrote: “The two sides [North and South] compromised on this immediate issue of how to count slaves in the new nation. Pragmatic half-victories kept in view the higher aspiration of drawing the country more closely together.”

What’s missing from Wagner’s original comment and his apology is the recognition that either counting enslaved people or counting three-fifths of them was a horrible injustice as those counted would only count toward apportioning more representatives for the slave holders! This was NOT a “Constitutional compromise about slavery,” as Wagner describes it. This was NOT a lessening of the practice of slavery at all. This was a compromise on the power of Southern plantation owners versus Northerners—and the Southerners clearly won. (The point was made at the time: It made no sense to count enslaved people at all as they had no legal standing as human beings.) Wagner discounts this moral abdication of the Northern states as “working towards the highest aspiration they both shared”; that’s an amazing lapse of judgment and terribly offensive.

In praising the “compromise,” Wagner was referencing the current fiscal debate and the GOP threat of sequestration, dramatic automatic budget cuts that will virtually cripple the federal government. But his likening of successful compromise to this horrific piece of American history in which humans were valued as less than human spawned an outcry on social media.

Hashtags on Twitter expressing outrage included #racism and #noi’mnotkidding. Among the hundreds of comments on Facebook and in blogs was this one in response to a story on Gawker.com: “Cool story, bro. Personally, I use the 3/5’s compromise to illustrate to my students precisely why compromise should not be viewed as a de facto good. More often than not, those who extol the virtues of political compromise do so to excuse or conceal moral compromise. Of course, this kind of social and political analysis occurs in the social sciences and humanities, but whatevs dude. If you cut fast enough, soon no one will be able to call you on your bulls—.”

And this comment on the same page also illustrates the anger at Wagner’s extolling this as an “acceptable” compromise: “The Three-Fifths Compromise is a great example of the insidious consciousness of the pro-slavery class. They wanted it both ways: to think of Africans as chattel, like pack animals or workhorses or what have you, incapable of rational intelligence; but then they wanted them counted as people. Some may call it a great example of government at work. I see in it a condemnation of this whole they-were-just-people-of-their-times sentiment. They knew slavery was an injustice. They just didn’t give a f—.”

The Apology

After the storm of criticism, Wagner published a lengthy apology on top of his letter and referenced it on Emory’s Facebook page. He said he considers slavery “heinous, repulsive, repugnant and inhuman,” but that his initial point was that “compromise pointed to a higher truth for both sides of the debate, though they did not recognize it at the time. For the states supporting slavery, the higher truth was that persons denied a vote, denied even their freedom, did not constitute part of the body politic—not even three-fifths of it—and therefore should not be used as a means to political power. For those opposed to slavery, the clearer truth was that if persons were counted as even a fraction of the body politic, their personhood demanded the full rights and privileges of citizens.”

His point, and his “lesson” to the current factions fighting in Washington, is that sometimes we must compromise in order to eventually get to an equitable solution. He also referenced Emory’s own current financial situation and the university’s plan to cut academic offerings. An article on Inside Higher Ed notes, however, that during Wagner’s tenure as president of the Atlanta-based university, its board has acknowledged and apologized for the school’s use of slaves in its early history, and in 2011 it organized a conference on “Slavery and the University.”

Wagner’s apology isn’t winning a lot of converts. Inside Higher Ed reports that faculty and students at the school and at other universities continue to be appalled that the president of a major university doesn’t understand how deeply offensive this analogy is. Roopika Risam, a Ph.D. student in English at Emory, blogged that Wagner’s greatest misstep was suggesting that his comment was merely a gaffe. “To invoke a narrative of gaffe by way of ‘clumsiness’ is to claim ultimate deniability and to abdicate responsibility for one’s words,” she wrote.

See more university president gaffes: It’s a Good Thing That Women Don’t Think Like Men

The post Emory President “Apologizes” for Praising 3/5 of Person Slavery Compromise appeared first on DiversityInc.

New York attorney James H. Freeman submitted a formal letter to the EEOC last week requesting permission to sue both American Idol and Fox on behalf of nine Black men: Corey Clark (Season 2), Jaered Andrews (Season 2), Donnie Williams (Season 3), Terrell Brittenum (Season 5), Derrell Brittenum (Season 5), Thomas Daniels (Season 6), Akron Watson (Season 6), Ju’Not Joyner (Season 8) and Chris Golightly (Season 9). Jones’ name—and elimination—was included in that letter without his permission or involvement in the discrimination lawsuit.

“I am offended they tried to paint me as a victim of discrimination. I appreciate the experience from Idol and embraced the good and bad from it,” says Jones. “I have moved on with my life … and have not authorized them to include me in the accusations.”

American Idol Racist?

The nine Black complainants all had been contestants on American Idol at some point throughout the show’s previous 11 seasons—and all were booted from the competition because of background checks, arrest records, information obtained by American Idol’s private investigators, etc. For example, Clark was disqualified in 2003 after Idol producers uncovered a previous arrest for allegedly assaulting his sister; or Jones, who was tossed in 2012 because he had multiple outstanding warrants.

The unusually high number of Black men disqualified from the show, Freeman claims, serves to continue a trend of “destructive stereotypes” against Blacks. He also says that the show made his clients appear to be “violent criminals, liars and sexual deviants.”

A Black woman, Frenchie Davis (Season 2), also was removed from the show, when producers learned that she had posed for nude photos four years earlier. Idol has disqualified one white woman: Season 8’s Joanna Pacitti, when it was revealed that she had close ties with two executives at the company that produces Idol.

American Idol: About Talent … Or Race?

Are contestants really being booted off American Idol because of their race?

“We treat everybody the same,” Executive Producer Nigel Lythgoe says, “no matter the race, religion or sex. I think we’ve always had a fantastic share of talent from contestants both Black and white. … I don’t think I’ve ever seen racism at the show.”

The American Idol judges panel features a diverse representation—including Mary J. Blige (Black, guest judge), Lionel Richie (Black, guest judge), Jennifer Lopez (Latina), Paula Abdul (Syrian and Jewish) in previous years, along with 2013 judges Randy Jackson (Black), Mariah Carey (biracial), Nicki Minaj (Black and Asian Indian descent)—Black contestants have won the show. These include Ruben Studdard (winner, Season 2), Fantasia Barrino (winner, Season 3) and Jordin Sparks (winner, Season 6).

American Idol finalists and winners wholeheartedly disagree with the Idol Nine. “It is shocking to see such allegations. In my experience on the show, the Idol team strives to champion everyone, regardless of race. However, each contestant is explicitly told that the withholding of information that may compromise the show or artist can and will result in immediate disqualification,” says Melinda Doolittle, a Season 6 finalist.

Season 4 finalist Vonzell Solomon similarly stated that there was no sense of discrimination and attested to the conditions of the background-check results. “I was clearly informed of all grounds for disqualifications in our contracts. Idol has changed my life for the better. I didn’t feel like there was special attention given to someone because of race. I cannot see where this is coming from,” he says.

Racism Lawsuit: Will American Idol Go to Court?

If the lawsuit does make it to a courtroom, do Freeman and the nine Black men have a chance to win?

It’s unlikely, according to California attorney Anahita Sedaghatfar: “As we saw in the court’s ruling in the infamous race-discrimination lawsuit filed against the show The Bachelor, which was not brought under employment-discrimination laws but under civil-rights statutes, casting decisions by television shows and their producers are protected by the First Amendment. So even if this case is brought under civil-rights laws, it will still be highly unlikely they would prevail.”

The post Racism? American Idol Lawsuit Offends Former Black Contestant appeared first on DiversityInc.

CONTACT: Christine Nazer
Justine Lisser
(202) 663-4191
TTY: (202) 663-4912
newsroom@eeoc.gov

EEOC REPORTS NEARLY 100,000 JOB BIAS CHARGES
IN FISCAL YEAR 2012

Commission Obtains $365 Million for Victims of Workplace Discrimination;
Reduces Charge Inventory by 10 Percent for Second Consecutive Year

WASHINGTON—The U.S. Equal Employment Opportunity Commission (EEOC) today announced that it received 99,412 private sector workplace discrimination charges during fiscal year 2012, down slightly from the previous year. The year-end data also show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The fiscal year runs Oct. 1 to Sept. 30.  The fiscal year 2012 enforcement and litigation statistics, which include trend data, are available on the EEOC’s website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

Additionally, the EEOC achieved a second consecutive year of a significant reduction in the charge inventory, something not seen since fiscal year 2002.  Due to a concerted effort, the EEOC reduced the pending inventory of private sector charges by 10 percent from fiscal year 2011, bringing the inventory level to 70,312.  This inventory reduction is the second consecutive decrease of almost ten percent in charge inventory.  Also this fiscal year, the agency obtained the largest amount of monetary recovery from private sector and state and local government employers through its administrative process — $365.4 million.

In fiscal year 2012, the EEOC filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits. The EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million.

EEOC also continued its emphasis on eliminating systemic patterns of discrimination in the workplace.  In fiscal year 2012, EEOC completed 240 systemic investigations which in part resulted in 46 settlements or conciliation agreements. These settlements, achieved without litigation, secured 36.2 million dollars for the victims of unlawful discrimination. In addition, the agency filed 12 systemic lawsuits in fiscal year 2012.

“These remarkable achievements are a credit to the commitment of the EEOC’s staff and the product of strategic and efficient investment of critical budget resources in recent years, said EEOC Chair Jacqueline A. Berrien.  We look forward to building on these accomplishments and further advancing the agency’s mission as we implement our new Strategic Enforcement Plan in the coming year.”

As part of its Open Government efforts to make the greatest amount of useful data available to the public, the EEOC introduced several new features in the fiscal year 2012 data tables. The Commission released new tables showing sex harassment, harassment generally, and pregnancy discrimination which contain only those charges filed with the EEOC.  In the past, tables for these three categories, which are subsets of other bases, had listed all charges filed with both the EEOC and its state and local Fair Employment Practice Agency (FEPA) partners. Since no other charts include both FEPA and EEOC filings, these categories will now be harmonized with all the other data charts.

For the first time this year, the EEOC has released three separate data tables indicating the impairments/bases for ADA charges broken down by charges received, resolutions, and merit factor resolutions.  Previously, the breakdown was only available for merit factor resolutions.  Beginning last fiscal year, the EEOC began providing U.S. state and territory charge data on its website, www.eeoc.gov.

Additionally, in response to requests for this data, the Commission released a new table indicating the type of discriminatory action alleged by statute.  In fiscal year 2012, discharge was the most frequently-cited discriminatory action under all statutes, followed by “terms and conditions” of employment and then discipline.

Overall, the agency secured both monetary and non-monetary benefits for more than 23,446 people through administrative enforcement activities – mediation, settlements, conciliations, and withdrawals with benefits. The number of charges resolved through successful conciliation, the last step in the EEOC administrative process prior to litigation, increased by 18 percent over 2011.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its website at www.eeoc.gov.

The post EEOC Reports Nearly 100,000 Job Bias Charges in Fiscal Year 2012 appeared first on DiversityInc.

The findings resonate with recent news of a class-action lawsuit ruling, in Collins v. United States, that requires the Pentagon to reimburse $2.5 million in severance pay to the 181 gay and lesbian service members who had been targeted and discharged under the policy. The regulation dictated that all service members who were forced to leave military service because of their orientation were penalized half of their allotted severance pay—leaving them just $14,000 each. Normally, discharged military members would receive $28,000 in compensation.

Under terms of the settlement of the lawsuit, which was brought by the American Civil Liberties Union (ACLU) and the Service Members Legal Defense Network (SLDN), the government will award $14,000 to each plaintiff who was involuntarily dismissed, both honorably and dishonorably, because of DADT.

“This means so much to those of us who dedicated ourselves to the military, only to be forced out against our will for being who we are,” said Richard Collins, a former Air Force staff sergeant and lead plaintiff. “We gave all we had to our country, and just wanted the same dignity and respect for our service as any other veterans.” Collins served his country for nine years prior to being discharged under Don’t Ask, Don’t Tell. Collins had been seen kissing his boyfriend off-base.

“There was absolutely no need to subject these service members to a double dose of discrimination by removing them from the armed forces in the first place, and then denying them this small benefit to ease the transition to civilian life,” said Laura Schauer Ives, an ACLU lawyer.

History of Don’t Ask, Don’t Tell

The Don’t Ask, Don’t Tell policy went into effect in December 1993 under the Clinton Administration. It stated that military applicants could not be asked about their sexual orientation. DADT was introduced in Congress as a compromise to the regulations from Ronald Reagan’s 1982 defense directive that stated that all military personnel who engaged in sexual acts with people of the same gender or who said that they were gay or lesbian would be discharged.

Don’t Ask, Don’t Tell was repealed in May 2012 under the Obama Administration.

The post Who Was Most Hurt By ‘Don’t Ask, Don’t Tell’? Black Women appeared first on DiversityInc.

EEOC states that employers can discriminate in favor of people with disabilities or older workers. An Equal Employment Opportunity Commission discussion letter states that nothing in the Americans With Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) prohibits an employer from hiring only people with disabilities, or people over 40, or from discriminating against people somewhat over 40 in favor of people even older. The language of these laws cover only one-way discrimination; they do not cover those without disabilities or the more youthful. This is different from the other EEOC laws, which prohibit discrimination against any race, any religion, any national origin and both genders, equally; one cannot discriminate in favor of one over another. Employers should be cautious about any reliance upon this EEOC letter. It will only apply if the rejected party’s complaint is limited solely to being of a younger age or not having a disability. The moment the plaintiff claims that a preference for a person with a disability or an older person led to rejection of qualified people of a different race, sex, national origin, etc., then the EEOC will likely see a viable discrimination case. So the letter probably has only a very limited real-life application.

Age Discrimination

“He’s going to leave here at 62, and I’ll see to it!” It is difficult to defend an age-discrimination case when the discharged employee’s manager has made comments like the above. The manager also stated, “He’s been here long enough and he ought to go on Social Security.” The manager claimed the employee was terminated for poor performance. However, the court found that her overt statements about age undermined the poor-performance defense. Hale v. ABF Freight System, Inc. (6th Cir., 2012). A message from this case is that even if there might have been a performance problem, a manager can destroy any defense of a case by unwise, prejudicial statements. These may be made in angry frustration over real poor performance, but will overshadow any performance issue and lose the case.

Six-and-a-half years makes a difference. The ADEA protects older workers and applicants, including those older than others within the over-40 group. However, the courts recognize “approximately the same” age. Thus, a 60-year-old cannot effectively claim it was age discrimination to hire a 58-year-old, because they are approximately equal in age. The 6th Circuit has adopted a six-year range. A 57-year-old tech-college employee was fired and replaced by a 51-year-old. The employer argued that the case should be dismissed under the six-year “approximately the same” age rule. However, the court found a six-and-a-half-year age difference and ruled that there was enough difference in age to allow a prima facie ADEA case. Blizzard v. Marion Tech College (6th Cir., 2012).

Disability Discrimination

$4.85 million settlement due to discriminatory leave policy. A trucking company’s leave practice automatically terminated anyone unable to return to work after 12 weeks of medical leave, regardless of reason. This conformed with the Family and Medical Leave Act but violated the ADA, which requires consideration of a “reasonable amount of leave.” The EEOC brought suit due to the failure to consider disability exceptions to a rigid policy. In addition to the money, the settlement also included revision of policies, training of supervisors and employees, and appointment of a monitor—at company expense—to assure ADA compliance. EEOC v. Interstate Distributor Co. (D. Col., 2012). [For years the courts have ruled that the FMLA and ADA have different requirements, and simply allowing the 12 weeks for FMLA is not sufficient for ADA compliance. The courts have also routinely found fault with rigid leave policies and “no fault” (no excuse) attendance discharge policies which do not allow the interactive consideration process required by the ADA.]

Family and Medical Leave Act

School district has burden of proving that teachers did not work enough hours. A teacher was denied tenure at the end of his probationary period, though he received the highest possible ratings in almost all evaluation areas. The downfall was the “excessive absence” due to gall bladder surgery in the months before. He sued, claiming FMLA retaliation. The district defended by claiming the teacher had not worked the 1,250 hours necessary to be covered by FMLA—he was three hours short. However, he claimed to have regularly worked an hour a day outside of normal hours on items integral to teaching—preparing lessons, materials, etc. The court found that under the FMLA, the employer has the burden to “clearly demonstrate” that an employee did not work enough hours to be eligible. The court recognized that teachers often devote extra time “outside the contract negotiated hours.” Since the school district could not prove otherwise, the court found in favor of the teacher on the hours issue. Donnelly v. Greenburgh Central School Dist. (2nd Cir., 2012).

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanclark.com

The post Reverse Discrimination? EEOC Allows Bias in Favor of People With Disabilities, Older Workers appeared first on DiversityInc.

Q: How do o

A: Before we answer this question directly, we’d first like to address the issue of religion in the workplace. Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on religion, national origin, race, color or sex. Companies abide by this policy, but the more progressive ones create inclusive environments in which employees are encouraged to integrate their mandated religious practices into their day-to-day jobs. This helps companies build loyalty, raise morale and productivity, and reduce one of the hidden costs of ignoring religious diversity: absenteeism.

• Nine years ago, only 42 percent of the DiversityInc Top 50 had floating religious holidays, compared with 74 percent in 2011 and 78 percent in 2012. Sixty-six percent of all participants in the 2012 DiversityInc Top 50 survey had floating religious holidays. To put these statistics into perspective, a “Religion and Corporate Culture Survey Report” by the Society of Human Resource Management found that just 28 percent of 513 respondents offered paid leave for days that are not part of their regular holiday calendar.
• Seventy percent of the DiversityInc Top 50 companies have onsite religious accommodations, such as prayer rooms, compared with 32 percent eight years ago.
• Twenty-eight percent of the DiversityInc Top 50 companies have religion-based resource groups versus just 5 percent eight years ago.

For more information on religion in the workplace, visit DiversityIncBestPractices.com to read “Best Practices on Religiously Inclusive Workplaces.”

These statistics are important when it comes to handling holiday celebrations. Official holidays in the United States are predominantly Christian. This means that most of the holiday celebrations will be of Christian background. Celebrating other religions during this time can get tricky. Religious holidays should be good educational opportunities—we value differences instead of homogenizing them. So celebrating—and offering cultural-competence training—on religious holidays is critically important. Here are some suggestions to ensure your company’s holiday celebrations are inclusive of all religions and run smoothly.

Proactively Accommodate

Some issues are constants, such as wearing religious attire or the need for time off for observance. Other issues, such as celebrations, occur once or twice a year. Thinking through what policies will work for your organization and making sure all employees know which accommodations are available before they have to ask are critical.

Implement a Process & Clarify It

Employees are often uncomfortable asking for what they need. Implement a process for requesting celebrations and make it clear. Train managers to respond to requests appropriately and make sure everyone knows HR is a resource.

Get Help

If you have a religious resource group, utilize it to educate your employees about all religions. If you don’t have a religious resource group, go to the one place that is sure to have people from different religious backgrounds: your other resource groups. Bounce ideas/requests off of members and gain valuable insights.

At American Express, No. 14 in The 2012 DiversityInc Top 50 Companies for Diversity, there are longstanding religious groups for Christians, Jews and Muslims. All three groups are encouraged to educate their colleagues about their culture and share their traditions. The groups host events around the holidays. While the company has no formal policy regarding office decorations, all employees are encouraged to express themselves in a manner that is respectful of those around them.

Surveys

Use surveys to gain critical feedback on implementing or expanding celebrations. Incorporate questions specific to religious celebrations in your diversity surveys. Gather, analyze and share responses with key stakeholders and constituencies.

The post Ask DiversityInc: How Does Your Company Handle Religious Holidays? appeared first on DiversityInc.

Justices recently held an hour-long oral argument to discuss whether a person without the ability to hire or discipline employees can qualify as a supervisor in racial, sexual and religious discrimination cases. An employer automatically assumes liability if a supervisor is accused of harassment; when a coworker is accused, the victim must prove neglect on the part of the employer to extend liability.

Liable for Discrimination?

The debate stems from the Vance v. Ball State University racial discrimination case, in which Mattea Vance claimed her “supervisor,” Sandra Davis, created a racially hostile working environment.

The federal court—which had defined a supervisor as the power to hire, fire, demote or discipline—threw out Vance’s case, as Davis’ job responsibilities did not include these functions. Vance appealed because the Equal Employment Opportunity Commission’s (EEOC) defines “supervisor” as anyone who has authority to assign or direct daily work activities or recommend employment actions. Listen to the radio broadcast to learn more.

“There are lots of situations where people have power over other employees when they don’t have the power to fire them, to discipline them, to promote them, to set their wages or things like that,” says University of Virginia law professor Daniel Ortiz, who represents Vance. The AARP and National Partnership for Women & Families also are backing Vance.

“This is consistent with workplaces across America today, where jobs are less hierarchical, more collaborative, and so where you have got more senior employees by virtue of their experience or job title, just a paper title, are in a broad sense team leaders of the like in the workplace,” Gregory Garre, representing the university, told CNN. “That doesn’t mean they are supervisors in any traditional sense.”

Will Discrimination Lawsuits Increase?

If the Supreme Court rules in Vance’s favor, it could potentially increase the number of discrimination cases that actually make it to court. The conservative justices argued that a less-restrictive standard could leave companies suffering for the acts of mid-level employees, which would fall under scrutiny.

A decision is not expected until sometime after winter 2013.

The post New ‘Supervisor’ Definitions Could Increase Discrimination Lawsuits appeared first on DiversityInc.