By Barbara Frankel

In all likelihood, the government will resolve the budget issues, and the automatic $1.2 trillion in budget cuts known as sequestration won’t be triggered in the first week of March. But if it happens, there’s been web chatter about companies’ benefiting from EEOC cuts because there would be fewer discrimination lawsuits.

Actually, the exact opposite is true. I spoke with Gil Casellas, the former chairman of the EEOC, and Bob Gregg, an attorney who specializes in discrimination law and writes a monthly column for us. Your company’s potential for costly lawsuits is actually much higher if sequestration or other major budget reductions occur. The EEOC would lose between 6.5 percent and 8.2 percent of its budget ($23 million to $30 million), according to the American Federation of Government Employees (AFGA).

What’s important to your company is where the EEOC chooses to make the cuts.

Casellas points out that the EEOC’s budget for litigation support is usually relatively small, and unless the entire category is cut, “which is not likely given the obligations the commission has to court as a litigating party,” smaller decreases in this area wouldn’t have much impact.

Fewer Cases Resolved Quickly

But if the cuts are directed toward field personnel, “the slowdown of investigations would be felt by charging parties as well as employers, whose wait times for charge resolution will increase dramatically,” says Casellas.

In other words, the mediation and arbitration that usually results in settlements and quick ends to discrimination charges wouldn’t happen, “and uncertainty of outcomes as well as delay doesn’t benefit the majority of employers who seek speedy resolution.”

Gregg notes that past cuts to the EEOC budget led to more work for plaintiffs’ attorneys as cases dragged on. In George W. Bush’s administration, from 2001–2008, the EEOC lost 25 percent of its staff and the backload of complaints grew dramatically.

“The EEOC screens out a lot of cases so employers get them resolved with a minimum of fuss,” Gregg says. With diminished resources, employers end up with lengthier litigation and public-relations nightmares.

EEOC Numbers 

The EEOC already had its budget reduced by $7 million last year, leading to a 9 percent staff cut, according to the AFGA, the union that represents EEOC employees. This comes at a time when the caseload is up.  As a result, the EEOC filed only 122 lawsuits in FY 2012, according to an article on Lexology, less than half the 261 filed in FY 2011. The authors note that if the EEOC tries to “do more with less,” the emphasis may be on more high-profile, large-scale discrimination claims against employers.

The post Would Budget Cuts at EEOC Help or Hurt Your Company? appeared first on DiversityInc.

By Bob Gregg

EEOC announces 2013 priorities. The Equal Employment Opportunity Commission (EEOC) has announced its four-year (2013–2016) Strategic Enforcement Plan. The agency plans to devote additional attention to the issues of identifying and eliminating discriminatory recruiting and hiring barriers; enforcing equal-pay laws; protecting immigrant, migrant and other vulnerable workers; preventing harassment; preserving access to the legal system; and addressing “emerging issues.” Emerging issues identified in the plan include the ADA Amendments Act standards, pregnancy accommodation, and coverage of LGBT under Title VII provisions “as they may apply.” This last item recognizes the growing de facto inclusion of LGBT discrimination under Title VII, often as “gender stereotyping,” even though the law does not specifically include those as protected categories.

National Origin Discrimination

In EEOC v. PBM Graphics, Inc. (M.D. NC, 2012), the company will pay $334,000 to “on-call” temporary workers. “On-call” workers wait to be called in only “as needed.” The suit, under Title VII, alleged that PBM established a “core group” of Latino on-call workers who were told to report every day unless called off. They became, in effect, regulars. Other on-call workers, U.S. citizens, were still only on-call and only called when the “core group” was not sufficient, thus seriously diminishing their employment.

EEOC v. Hamilton Growers, Inc. (M.D. Ga., 2012) was a case brought under Title VII, the FLSA and the Migrant & Seasonal Agricultural Workers Protection Act. The EEOC alleged that the company laid off virtually all of its U.S. citizen farm workers, almost all of whom were Black, and replaced them with H-2A guest workers from Mexico. Contrary to the stereotype of replacing higher-paid U.S. workers with lower-paid foreign labor, the company allegedly paid higher rates to the H-2A workers than to the few U.S. employees it did retain. The EEOC alleged that this was also done in an effort to motivate the remaining U.S. employees to quit. Again, the company denied the charges while settling the case for $500,000.

Disability Discrimination

Educating women to tolerate harassment was not a reasonable request for accommodation. An employer received numerous complaints about a male employee’s sexual comments, staring and following of female workers. He produced certification of a Pervasive Developmental Disorder (PDD) which caused low control of these behaviors. He requested the reasonable accommodation of having his treating therapist educate the female staff so they would understand his disability and be more tolerant of the behaviors. The employer denied that accommodation, and he was terminated for continued sexual harassment. He sued under the ADA and Rehabilitation Act for failure to accommodate. The court dismissed. It found the requested accommodation to be “unreasonable on its face, as a matter of law.” No one should have to accommodate by tolerating ongoing and overt sexual harassment. It also found the plaintiff to not be a “qualified person with a disability.” His disability rendered him unable to follow valid rules of workplace conduct; therefore, he could not meet essential functions of the job. McElwee v. County of Orange (2nd Cir., 2012).

Gender Discrimination

The fact that harassment stopped is not enough to avoid liability; employer has a duty of care to take corrective action. A county secretary complained that the planning office’s legal counsel subjected her to a pattern of overt verbal and physical sexual comments, touching and sexual gesturing. When she complained to the department director, he laughed and agreed that the attorney was “a pervert,” then did nothing. At about the time of the complaint, the secretary announced that she was pregnant. The harassment stopped. Nonetheless, the secretary filed a harassment case. The county defended, claiming that the harassment ceased after her complaint, so there was no liability. The court disagreed. It ruled that an employer has a duty to actively address harassment situations. Doing nothing is not adequate. Just because the harassment happened to coincidentally stop, fortuitously, does not excuse the employer from its obligation to actually address and correct the attorney’s behavior. The county’s nonaction on the complaint fell below the required duty of care. Henricks v. White County (N.D. Ind., 2012).

Religion Discrimination

Is veganism a religion? A hospital required all employees to have a flu shot. It did exempt those whose religion prohibited them from vaccination, under Title VII’s reasonable-accommodation requirements. One employee refused to get the shot, claiming that she was vegan and the flu vaccine was made using an egg-based medium. Thus, the shot would put an animal product in her system. The hospital fired her for not following its policy. She sued for religious discrimination, claiming a sincere religious belief in her vegan practice. The hospital claimed her social beliefs and lifestyle did not equate to a religion under Title VII. However, the court found sufficient foundation for the case to proceed. Title VII covers “moral or ethical beliefs . . . held with the strength of religious views.” The plaintiff’s strongest point is that she quoted Biblical scripture about dietary restrictions and purity while refusing the flu shot. Chenzira v. Cincinnati Children’s Hospital (S.D. Ohio, 2012).

Veterans Discrimination

Laid-off status is a valid “re-employment position.” The Uniformed Services Employment and Re-Employment Rights Act (USERRA) requires that service members returning from active duty be reinstated to the job they left, including to the position their job became while they were gone (such as reclassifications to a higher level, pay increases, enhanced duties, etc.). This is called the “escalator principle.” Upon return from deployment, the plaintiff was informed that his job had been eliminated in a layoff of an 18-person unit, so there was nothing to restore him to. He sued. The court ruled in favor of the company. The law requires reinstatement to the position one “would have had absent military interruption.” If he had not been called to duty, the plaintiff would have been laid off in the unit elimination. He is entitled to no better treatment than had he been employed the whole time, so his laid-off status is exactly what his job “escalated to.” The employer is not required to create a new or different job. Milhauser v. Minco Products, Inc. (8th 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

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Additionally, the government will use another $1.9 billion to purchase fractioned land allotments from current proprietors and return that land to the tribe. The deal also includes a government-funded scholarship for American Indian youth.

“These settlements fairly and honorably resolve historical grievances over the accounting and management of tribal trust funds, trust lands and other non-monetary trust resources that, for far too long, have been a source of conflict between Indian tribes and the United States,” said Attorney General Eric H. Holder Jr. in a statement.

The lawsuit initially was filed in 1996 by Blackfeet tribe leader Elouise Cobell after she witnessed those who leased American Indian land gain wealth from selling its resources. There was no accounting of the royalties from this land that was held in trust for them by the government, actions that prolonged poverty in the American Indian community. Cobell died in 2011 from cancer.

“We all are happy that this settlement can finally be implemented,” said lead attorney Dennis Gingold in a statement. “We deeply regret that Ms. Cobell did not live to see this day.”

Another 60 similar class-action lawsuits against the government have not yet been settled. American Indian tribes across the country, including the Osage tribe in Oklahoma, the Chippewa tribe in Minnesota and the Nez Perce tribe in Idaho, await resolution and payout.

The post $3.4B Class-Action Lawsuit Ends: 350,000 American Indians to Receive Payout 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.

Chiropractic clinic was not a tribal business. Even though all stock was owned by the Cherokee Nation, a chiropractic clinic was incorporated under the state laws of Oklahoma. It operated off of the reservation, contracted to serve a U.S. Army base. It was open to business for all of the service members and civilians on the base and others, overwhelmingly non-Cherokees. A fired technician filed age-discrimination and Title VII suits. The clinic moved for dismissal, claiming Sovereign immunity. The court denied the motion: A “separate legal entity” status incorporated under Oklahoma law precluded it from sharing in the Cherokee Nation’s sovereign immunity. Somerbolt v. Cherokee Nation Distributors (10th Cir., 2012).

Salvation Army waived immunity when it took federal money. Many organizations have a legal or constitutional exclusion from suit, but when you take the money, you take the rules that come with the contract. Even though the Salvation Army is clearly a religious organization and immune from many employment laws, it can be sued by a rejected job applicant with a disability. It took federal money to provide social services. The Rehabilitation Act applies to all contractors who receive federal funds. Taking the money was a voluntary waiver of any immunity from suits under that act. Doe v. Salvation Army (6th Cir., 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 Who Can’t Be Sued for Discrimination? appeared first on DiversityInc.

The lawsuit before the court on Wednesday could result in the reversal of the college’s affirmative-action admissions policies—and potentially deem all instances of race-based criterion in higher-education admissions “unconstitutional.” This would overturn the landmark Grutter v. Bollinger decision in 2003, which upheld the use of race as one of multiple factors when determining acceptance.

If Fisher Wins & Affirmative Action Ends …

Educational and civic leaders are “very concerned that a [negative] decision will impact any and all incoming students from high school or transfers,” said Ben Reese, president of the National Association of Diversity Officers in Higher Education (NADOHE). “We are looking for an admissions system that is inclusive of all the qualities that students bring, including race, not stunting the growth of community colleges and four-year schools and building an appropriate workforce.”

Collateral consequences of a Fisher win would be a narrowing of Black and Latino admissions to four-year colleges only, which would limit community-college transfers and increase pressure on smaller, two-year schools that already are strained and turning students away because of limited budgets, according to executives representing nine higher education associations.

These include: The American Association for Affirmative Action, American Council on Education, American Indian Higher Education Consortium, Association of American Medical Colleges, College and University Professional Association for Human Resources, Hispanic Association of Colleges and Universities, National Association of Diversity Officers in Higher Education, National Association for Equal Opportunity in Higher Education and NADOHE.

“Too much is at stake. We need to build truly inclusive learning environments and can’t afford to go backward at this point,” they said.

The Case

Abigail Fisher, a white high-school student, filed the lawsuit in 2008 after she was denied admission to the University of Texas at Austin, which she claims was unequal treatment because of reverse discrimination and, therefore, a violation of the14th Amendment. Project on Fair Representation, a legal-defense foundation, is representing Fisher. Watch this organization’s video on the case below.

Learn more about the case and affirmative action by watching the video above, then read these articles:

Is Affirmative Action Over?

Affirmative Action Foe Ward Connerly Comments at the DiversityInc Conference

Why We Still Need Affirmative Action

Talent Development Creates Ability for INROADS Students to Succeed

Corporate Diversity: Outreach With Rutgers Future Scholars Enhances Talent Pipelines

The post Affirmative Action: What If the Supreme Court Ends It? appeared first on DiversityInc.

MasterCard’s diversity leader, Donna Johnson, details at our diversity event how the company works with HR, legal and diversity to improve its talent-development efforts. Watch the video below. The full presentation slides are available on DiversityIncBestPractices.com.

Video Minutes

0:04:00 Strong Foundation for a D&I Policy

0:05:27 Setting Measurable Evaluation Criteria

0:06:32 Governance & Accountability

0:09:10 MasterCard’s Eight Business Resource Groups

0:11:56 D&I as Part of Law and Franchise Integrity

0:16:28 Public Policy, Philanthropy, Ethics & Compliance

0:28:04 The Evolution of a Global Policy

The post HR & Legal: Setting Goals appeared first on DiversityInc.

The law, which goes into effect on Jan. 1, protects lesbian, gay, bisexual and transgender minors from all forms of “reparative” and conversion treatment—mental-health therapies that aim to “resolve” individuals’ gay attractions. Treatments range from noninvasive counseling to more traumatic forms of shock therapy and exorcism and can cause emotional damage, according to Huffington Post.

“These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery,” Brown said as he marked yet another historic moment for gay-rights progress this year.

However, some medical professionals and religious leaders feel that the bill infringes on the First Amendment, and they plan to file a lawsuit. This includes the National Association for Research and Therapy of Homosexuality and the Pacific Justice Institute.

Dr. Marcus Bachmann, husband to the GOP’s Michelle Bachmann and a well-known anti-gay counselor, surprisingly has yet to voice an opinion on the bill. However, we’re expecting him to jump on the pro-gay-cure bandwagon any day now; his mental health and counseling clinic, Bachmann & Associates, received nearly $173,000 dollars from federal faith-based programs to convert gays to heterosexuals through prayer. These “barbarians need to be educated … disciplined,” he told one radio outlet.

Do you think the ban is legal? Will other states follow California’s lead? Share your thoughts below, and be sure to read these articles for more on LGBT issues:

The 2012 DiversityInc Top 10 Companies for LGBT Employees

7 Things NEVER to Say to LGBT Coworkers

Where’s the Pipeline of LGBT Talent? Why We Need to Support Gay Youth

How Can Corporations Support Same-Sex Marriage?

The post Gay-Cure Ban Stops ‘Quackery’ Therapy appeared first on DiversityInc.

The Vanderhorsts were then escorted by airport personnel to a flight home on United Airlines and were forced to sit in the very last row of coach away from other passengers. They were not refunded for their upgraded seats.

Watch this video of the incident, which the mother, Joan Vanderhorst, recorded on her cell phone. Can you find all of Bede’s distracting behaviors such as “running around the gate area” that made him a “flight risk,” as an American Airlines spokesperson claims?

Read Disability Employment Awareness Month Facts & Figures for information on this traditionally underrepresented group.

The post American Airlines Employees Humiliate Family of Boy With Down Syndrome appeared first on DiversityInc.

Is the Roanoke Athletic Club (RAC)’s change enough? As of this morning, the lawsuit had not yet been dropped. 

The lawsuit garnered national attention last week. It was filed by Will Trinkle and his partner, Juan Granados, when the club refused to give them and their 2-year-old son a family membership. 

RAC posted the new extended policy on its Facebook page: “A household consists of a primary member and up to one additional household member that permanently lives in the household, and any of their dependent children under the age of 22 who also reside in the household on a permanent basis.” 

The couple stated in news reports and their lawsuit that they were encouraged by an employee to apply for membership in May for their family. They said that a few weeks later, they were told that Carilion observes Virginia law, which does not recognize marriage equality or civil unions, so they were not considered “a family.” Trinkle also told the press that a RAC employee said the club was “tightening policies so no families like us would ever get as far as we had.” 

Under the discrimination lawsuit, which didn’t specify a monetary amount, the couple alleged breach of contract in violation of Virginia’s Consumer Protection Act.

Trinkle and Granados’ lawyer, John P. Fishwick Jr., told ABC News, “It took a lot of courage to bring this lawsuit. Its primary purpose was for Will and his family to have a family membership. It looks like we’ve achieved that. It’s a victory for his family and other families.” 

Virginia Not a Gay-Friendly State 

Virginia has some of the toughest anti-marriage-equality laws in the country. This is the state that criminalized sodomy, a decision that was invalidated by the Supreme Court in 2003. In 2006, Virginia voters approved a constitutional amendment defining marriage as only between a man and a woman. Virginia law also does not include sexual orientation in its antidiscrimination statutes. For more on this type of legislation, read LGBT Facts & Figures. 

Last week, a lesbian couple, Chanda Ingram and Nikki Hyler, also alleged that another Carilion-owned club, the Botecourt Athletic Club, turned them away because of their orientation. 

Carilion did not return requests for comments from DiversityInc, but the company told a local television station its policy is not to comment on pending litigation. 

Carilion is a nonprofit healthcare organization in Virginia, headquartered in Roanoke with approximately 11,000 employees, all in Virginia. The organization has never participated in The DiversityInc Top 50 Companies for Diversity survey (more than 20 hospitals participated this year and the number increases each year). A review of the Carilion website shows no diversity section, but it does have a non-discrimination policy that includes orientation. An affirmative-action section states that Carilion complies with state and federal laws. The board of directors and senior staff members appear to have significant gender diversity (which is typical of the industry), but there are few pictures, so it is impossible to assess racial/ethnic diversity. 

More Inclusive Organizations 

A look at the organizations in The DiversityInc Top 5 Hospital Systems shows an emphasis on clear communications from the CEO on the website about the importance of diversity and growing reliance on established diversity-management initiatives such as resource groups and cross-cultural mentoring to drive human-capital results. These organizations have inclusive cultures, where staff members—especially those dealing with the public—have extensive cultural-competence training. 

For more on LGBT issues, read How Can Corporations Support Same-Sex Marriage?

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