Race Discrimination

Diversity and inclusion in the corporate culture could mean preemptive hiring is discrimination. A Black employee alleged that she was denied a promotion to a higher IT position, and a less-qualified Asian employee was selected instead. The employer’s defense was that she never applied for the position and, therefore, could not contest the decision. However, the evidence showed that the manager: knew there were only two eligible employees; knew the Black employee intended to apply; did not wait for the application deadline to expire; and directed the selection of the Asian employee and stopped the hiring process, while the application period was still open. The evidence further showed that the plaintiff rated far higher on performance factors than the person selected, and other key managers considered her “superior by a wide margin.” The court found that the employer’s defense seemed to be a pretext for racial discrimination. Calhoun v. Johnson (D.C. Cir., 2011). For best practices in recruitment, watch Diversity Recruitment Web Seminar: How to Find 1,800 Black & Latino Employees.

Race discrimination claim ruled “nonsense.” A white police applicant filed a race-discrimination case alleging that he was bumped from a hiring list, passed over, so that lower-scoring “minority” applicants could be hired. He identified two “minority” officers who were hired. The court upheld summary judgment, dismissing the case as frivolous and “nonsense.” The plaintiff’s complaint relied on hearsay and stray comments he had heard from people who were not involved in the hiring (loose rumors, conjecture and pure speculation). The actual evidence showed that: the plaintiff was not “passed over,” he was eliminated due to failing the background check; the two identified “minority” officers had been hired in a process that was long over before he even applied, and neither of them had “passed over” anyone; and finally, the bottom half of the roster that the plaintiff was on were all white (some of whom were hired), so he could not have been bumped by a “minority.” His entire case was based on conjecture, unfounded rumors and stereotypes about “affirmative action” hiring instead of evidence. Thompson v. Lansing Mich. (6th Cir., 2011). For more on stereotypes, read ‘Blacks Should Not Be Satisfied With Food Stamps’: The Danger of Stereotypes and NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words

Sex Discrimination

HR manager files class-action suit against Toshiba. A former HR manager has filed suit requesting certification of a class of “all females who are or have been employed by Toshiba in the United States.” The suit alleges systemic gender discrimination in compensation, promotion and terms and conditions of employment under Title VII and the Equal Pay Act. The suit seeks to cover all Toshiba subsidiaries. The plaintiff had been an HR manager for the Toshiba Nuclear Energy Corp. subsidiary Cyphers v. Toshiba American, Inc. (S.D., NY, 2011). (Whether such a large class will be certified may rest on the outcome of the pending Walmart decision by the U.S. Supreme Court.)

Trashing harassment complaint creates case. After-the-fact action does not cure the problem. A clerical employee gave a written complaint of sexual harassment to her supervisor after several verbal complaints received no action. The supervisor wadded up the complaint, threw it in the trash, pointed at the door and said, “This is total [BS]! I want you out of here and never want to see you again!” She left, assuming she was fired. However, two days later the company’s HR director learned of the incident, called the employee, informed her she was not fired and asked her to come back. She refused, claiming that she could not reasonably reenter the environment after what occurred. She sued for Title VII retaliation. The court ruled that there was a valid claim of retaliation. The supervisor’s act clearly violated Title VII. The company’s attempt to cure was too late to overcome such an overt act by the supervisor. Young-Lousee v. Graphic Packaging Int., Inc. (8th Cir., 2011).

Disability Discrimination

Is an essential function essential to the job? A shoulder injury made a UPS driver unable to do his job. He applied for several other positions he believed he could do. The company rejected him, due to essential job functions in the job descriptions requiring lifting and mobility beyond his medical limitations. However, the employee produced evidence that these functions were not actually performed in the real job. The court allowed the case to go to trial. The courts give great weight to an employer’s determination of what duties should make up a job, and the position description’s list of essential functions are a powerful defense in an ADA case. The court, though, ruled that there must be more than a hollow defense. “The employer will have to show that it actually imposes such requirements on its employees in fact and not simply on paper.” Supinski v. United Parcel Service, Inc. (3rd Cir., 2011).

Messing up president’s schedule was valid reason for discharge. A communication director had cancer. He incorrectly scheduled the organization’s president, resulting in the president missing a major, important public-relations event. The communication director was fired. He sued, claiming that he was replaced by a person without a medical condition and therefore the discharge was a prima facie case of disability discrimination. The court disagreed. It found no connection between the cancer and the discharge. A major job blunder is a valid non-discriminatory reason for discharge. McCermott v. New York City Housing Development Corp. (S.D. NY, 2011).

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

The post ‘I Didn’t Get the Job Because I’m Black’ 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.

Watch the video below to learn more about the history behind this case, which was filed in 2010.

Read also:

Asian Americans Are Fastest-Growing Racial Group

Jeremy Lin & Racism: 3 Ways to Stop Dangerous Stereotypes

Asian-American Heritage Facts & Figures

The post Managers’ Racist Bullying Ends in Hospital Paying $1M Lawsuit appeared first on DiversityInc.

Despite entreaties from GOP leaders, including presumptive vice-presidential nominee Rep. Paul Ryan, Akin is continuing his run for the Missouri Senate seat. And all this focus on what he said, his alleged sources of information and the backfighting in the party are proving a negative distraction for the Republican national convention in Tampa next week.

The greater organizational issues one can take away from this are both of a preventative and a reactive nature. From a preventative perspective, how can an organization create a culture of inclusion and respect so people do not feel they can make blatant—and erroneous—statements that are harmful to others? And once a statement is made or action taken, what are the legal and ethical ways to respond? How do you prevent negative stereotypes from seriously impacting productivity?

Without proactive efforts to create an inclusive culture, organizations run the risk of permitting inaccurate stereotypes to flourish, which hampers engagement and productivity. Dr. Claude Steele spoke about this to a DiversityInc audience, highlighting stereotype threat and how it impedes talent development for people from underrepresented groups. [Scroll down to watch the video.]

What’s Legal?

DiversityInc legal columnist Bob Gregg, who specializes in discrimination law, says our laws encourage the ability to have different viewpoints. “We recognize that if we have people from so many races and religions, all these differences create frictions. We address our differences with laws as opposed to guns and bullets … Our policies have to be flexible enough to allow difference but not to allow discrimination.”

Many of these statements are voiced as “religious beliefs.” In the private sector, the Title VII Civil Rights Act of 1964 guarantees that employees cannot be discriminated against because of religious beliefs. Employees can believe whatever they choose but cannot take actions that violate a company’s policy. However, the company must be very clear in its communications on the policy.

AT&T, No. 4 in The 2012 DiversityInc Top 50 Companies for Diversity list, ran up against this issue in 2004. The company had adopted a diversity policy requiring its employees to “value the differences” in all employees. A Christian employee, who said he believed that being gay is a sin, requested clarification on the policy and did not receive it. He then refused to sign the policy and was fired. He sued for religious discrimination and won because, according to Gregg, “AT&T failed to accommodate his religious beliefs by failing to provide an explanation and ordering him to sign the policy.”

But in another 2004 religious-discrimination lawsuit against Cox Communications, No. 25 in the DiversityInc Top 50, the outcome was quite different, says Gregg. A supervisor was fired for violating the anti-harassment policy (which had been clearly explained) when he told a lesbian employee during an evaluation that being a lesbian was a sin and that he would pray about her sexual orientation. The court found that the behavior violated a reasonable company policy, and the firing was upheld.

“Our policies should not prohibit beliefs; they should focus on behaviors. If it’s not a matter of public concern, a religious belief or something protected by the whistleblower law, a company can say that if a person doesn’t go along with company values, they can work elsewhere,” Gregg says, adding that it also depends on the person’s job. A vice president of HR, for example, would have more at stake for making a comment perceived as biased than a file clerk. It also matters whether the comment was made on company or personal time, he says.

Can You Prevent These Incidents? 

From these cases, it’s obvious that an organization must communicate its values clearly—and that those values must emanate from the top.

DiversityInc Top 50 companies all have consistent diversity and inclusion policies and statements from the CEO on their websites supporting them. In almost all of these companies, the mission statement also includes a diversity component.

Organizationally, it’s important to engage employees “whose thoughts around their personal values may differ from corporate values,” says Dr. Walter McCollum, senior director of Organizational Development at Sodexo, No. 2 in the DiversityInc Top 50. Dr. McCollum, who will be the luncheon speaker at DiversityInc’s Sept. 13 event on “Managing Relationships Between HR & Diversity Departments,” says it’s critical to recognize the interplay between departments, sub-units and identity groups.

“By paying attention to the impact of actions on different populations, we make sure we account for key aspects of the system, and, therefore, create comprehensive and lasting change. Attending to diversity increases the likelihood that a change process will benefit the system as a whole along with its many parts,” he says.

An essential way to do that is through the use of resource groups, which are a major source of cultural education in an organization and a conduit between mid- and low-level employees and senior executives. All of the DiversityInc Top 50 companies use their resource groups for these purposes, and they make sure the groups are inclusive—so anyone can join, even if they are not of the direct “affinity” of the group. That increases the ability to reach those who have different views, as does mandatory diversity training for the workforce, which 66 percent of the DiversityInc Top 50 has.

Corporations don’t have power over freedom of thought or speech. But companies with clear communications and diversity-management initiatives in place are better equipped for the legal and organizational challenges of dealing with those whose views collide with corporate values.

–Barbara Frankel

The post Can You Prevent a ‘Todd Akin’ Moment at Your Organization? appeared first on DiversityInc.

Racial Discrimination

Racial names do not justify slapping customer. A white customer suspected of shoplifting was escorted to a security area for questioning. The customer’s white friend then barged into the area, cursing at the store employees, one of whom was Black. She used the N-word toward the Black store employee, who reacted by slapping the verbally abusive customer in the face. The police were called and both customers were arrested. The store then fired the employee for having slapped the customer, in violation of its no-violence policy and no-physical-contact-with-customers policy. The fired employee filed a Title VII race-discrimination case, alleging that Kmart was promoting a racially hostile environment and “ratifying hate speech” by firing the victim of harassment. The court ruled against the employee. The customer’s behavior was clearly harassing and improper. However, the store took prompt action to have the police remove the offender. The company had policies on how to deal with customers for these situations and how to raise complaints without escalating a situation. Slapping a customer was against policy and not warranted by a verbal situation. The employee’s escalation to the physical level was unwarranted and justified discharge. Lee v. Kmart Corp. (D. Minn., 2012).  For more on the discrimination and the N-word, read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words.

Hostile supervisor loses discharge case. A Cuban-born manager filed national-origin and race-discrimination cases under Title VII and 42 U.S. Code §1981 after he was discharged. The evidence showed that the manager’s employees filed complaints about his supervisory behaviors. The evidence was that he yelled and swore at employees, used a “brutal and belittling manner,” demeaned them as they were dealing with customers, and generally “created a fearful environment.” When human resources met with him about these concerns, the manager refused to acknowledge any of the issues and expressed that he would not change his management style. He was fired as a result. The court found valid reason for the discharge and no evidence of any similarly situated non-Latino manager. The only other managers who were cautioned about rough supervisory behaviors had immediately recognized issues, expressed a sincere interest in change and corrected the behaviors, instead of digging in their heels and refusing to acknowledge the concerns. The manager’s case was dismissed. Martinez v. W.W. Granger, Inc. (8th Cir., 2012).

Religious Discrimination

Proselytizing judge loses case. A Michigan State Court administrator filed a complaint about the chief district judge’s use of the courtroom to proselytize. She alleged that he used his judicial position and authority to promote his particular religious beliefs, in violation of the Constitution. The judge then fired the administrator. She sued. The federal court jury awarded $734,000 in economic, compensatory and punitive damages. The appellate court confirmed the verdict, plus attorney fees. It found that the administrator’s complaint was clearly constitutionally protected; it addressed a matter of serious public concern. The chief district judge’s actions were clearly retaliatory against a citizen’s right to freely speak out against a government official’s alleged violations of the Constitution. Pucci v. Somers (E.D. Mich., 2012).

Disability Discrimination

Essential function can depend on number of other employees to bear the burden. A nurse suffered a stroke. She rehabilitated enough to return to work, but not full time. She could work limited hours with no on-call duties. This meant the other nurses had to put in extra duty hours and pull more frequent on-call nights, weekends and holidays. The nurse could not provide a return-to-full-time estimate and was ultimately terminated for inability to meet the essential scheduling requirements. She filed an ADA case and lost. There was no duty to convert a full-time job to part time. The court ruled that “A job function may be considered essential by virtue of the limited number of employees available to perform the work.” The ADA does not require accommodation by shifting essential functions and extra burden onto others. Azzam v. Baptist Healthcare Affiliates, Inc. (W.D. KY, 2012).

TSA immune from most employment suits. A diabetic Transportation Security Administration employee had a foot infection, took leave and returned with a fitness-for-all-duties doctor’s certification. His TSA supervisor refused to let him return because he “was too much of a liability.” He then, with EEOC support, sued under the Rehabilitation Act. The court dismissed the case. It ruled that the legislation creating TSA exempted the agency from liability under the Rehabilitation Act, FLSA, ADEA and several other employment laws. The court made a broad interpretation of the general clause in the Act giving TSA the power to set and enforce its employment standards “notwithstanding any other provision of law.” National security overrides all other interests. Field v. Napolitano (1st Cir., 2011).

Family and Medical Leave Act

Double damages for failure to give proper notice of change in FMLA policy. A company had an FMLA policy, providing 12 weeks per calendar year. So each January 1, there was a fresh 12 weeks available. It then changed to a “rolling” method, giving 12 weeks’ leave in a 12-month period measured back from the current usage. It did not send notice to employees about this change. In April, a 36-year employee requested and was granted FMLA. He had taken FMLA the prior calendar year as well. The company terminated the employment a month prior to his expected return because it now counted the prior year’s FMLA (pre-January 1) as part of the use in the past rolling 12 months. The effect was not only loss of a job; it also cut him off from retirement benefits he would have had in just two more years. In the FMLA suit, the court found bad faith on the part of the employer. It could not hold employees to a new policy that had not been communicated to them. (The FMLA generally requires a 60-day written notice of policy changes before they become effective.) The company’s actions were like springing a trap door without warning. The bad-faith interference with FMLA rights warranted double damages, an adjustment of the discharge date by two years to create eligibility for retirement benefits, and attorney fees, for a total of over $400,000. Thom v. American Standard, Inc. (6th Cir., 2012).

Click here to read more court cases on diversity legal issues.

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 Racial Discrimination: Black Employee Fired After Being Called the N-Word appeared first on DiversityInc.

“My dad was easily the greatest human being I’ve ever known because of his tremendous compassion for people, especially the underdogs. This influenced every aspect of my life,” says Brown, who is a partner in Greenbaum Rowe Smith & Davis’ legal department and chair of the White Collar Defense & Corporate and International Human Rights Compliance Group.

Brown was raised in what he calls a “Jim Crow housing project,” the Booker T. Washington complex. After a childhood watching his father organize protest marches and fight David vs. Goliath legal battles, he wanted to be anything but a lawyer.

He attended Columbia University, where the late 1960s student protests were getting under way, and he became an activist in the Black student movement. As a result of charges stemming from a confrontation between police officers and protesters, Brown “became the football in an important legal battle.” He wasn’t convicted and was never indicted, and the legal experience made him decide to become an attorney. “I realized that lawyers are the core who can challenge the legal system,” he recalls.

Diversity and Inclusion: Working Within the Law for Change

He went to law school at the University of California, Berkeley, where activism and legal knowledge went hand in hand. As he launched his legal career, the people he’d met through his father globally made him want to explore human-rights ramifications in and outside of the United States.

“It’s hard to be around a person like my father and not realize how important this is,” he says. “I grew up in the movement. I met my first aboriginal people who came to the U.S. in 1956 … I saw the Ghandists around Dr. King and the strategic value of non-violence. There’s always been an aspect of the civil-rights movement that had an eye toward all people who were oppressed.”

Read: What Dr. King Really Meant: The Obligation That Benefits Everyone

This “natural progression, intellectually and personally,” led him to an astounding career, domestically and globally. In the United States, where he’s specialized in white-collar crimes and corporate compliance, he’s appeared in high-profile trials, including the trial of former Labor Secretary Raymond J. Donovan and the successful eight-year defense of senior executives of a large corporation charged with environmental violations. Globally, he’s conducted investigations in Kenya, East Africa, El Salvador, the Cayman Islands, Switzerland, the Bahamas, Colombia and Sierra Leone.

What jump-started his work for human rights was being asked to be an anchor on Court TV, reporting on war-crime violations. He has continued his legal/journalism career, hosting the Emmy Award–winning New Jersey Network Program “Due Process” and often serving as a legal analyst for broadcast programs. He has also taught international criminal law at Seton Hall University, has been a prolific public speaker and has received numerous awards, including the Award of Excellence from the Thurgood Marshall College Fund, the Distinguished International Award from the National Council of Women in the USA and the Van Y. Clinton Award for “excellence as a tireless advocate for just causes” from the Garden State Bar Association.

His trial experience has included criminal cases, serious violations of international humanitarian law, RICO violations, environmental pollution and internal investigations for public and corporate clients.

Crimes Against Women

Brown and his wife, Wanda, who is also an attorney, operate the International Justice Project, which fights human-rights abuses. “We focus on crimes against women. If you sexually assault women, you demoralize them and destroy the family union,” he says. “Women are the key to economic life. The deliberate attempt to destroy women is a big part of how the law looks in many countries.”

As a result of these experiences, Brown has pioneered the development of a new practice area, working with corporations to make them aware of the risk-assessment and business benefits of their involvement with human-rights causes.

“A C-level person says, ‘Wait a minute. Think of the short-, mid- and long-term requirements of regulations and how we’re perceived at a time when businesses are required to act as sovereign entities.’ There is a profound transformation now culminating in a way that affects businesses,” he says, and their efforts toward diversity and inclusion.

Read: Women’s History Month Facts and Why Is Global Diversity So Difficult?

The post Why This Attorney Makes Global Human Rights His Personal Challenge appeared first on DiversityInc.

Diversity and inclusion cannot exist in a culture that allows bullying in any way. Bullying starts young–examples of bullying in schools with horrific results, especially suicides, are in the news every day. If bullies are left unchecked when they’re young, they grow up to be bullies in the workplace, which undermines diversity management’s impact.

Bullying in Schools

In all societies, people in underrepresented groups are the traditional victims of bullies. And it starts young. GLSEN (the Gay, Lesbian & Straight Education Network)’s National School Climate study has found that 61 percent of students feel unsafe at school because of their orientation, 39.9 percent because of gender identity, 16.4 percent because of religion, 9.8 percent because of gender, 7.6 percent because of race/ethnicity, and 5.3 percent because of disability.

The impact of school bullying was shown in the recent documentary “Bully.” The impact on youth, their families and the loss of potential talent is devastating.

For resources to stop bullying in schools, visit GLSEN, stopbullying.gov, National Crime Prevention Council, End to Cyber Bullying Organization and Lady Gaga’s recently launched Born This Way Foundation.

Workplace-Diversity Implications 

When bullies go unchecked, they grow up to be bullies. They may hide it during the job interview and rise to leadership roles.

But they will continue to target and bully people, most frequently those in underrepresented groups. And instead of fostering an atmosphere where people can bring their whole selves to work and foster innovation, your culture will become one where engagement and retention are seriously undermined.

What You Can Do 

A strong diversity and inclusion strategy will give you safeguards to find and address bullying in the workplace, but you must ensure these practices are available consistently across your organization. Read Diversity & Inclusion Means ‘You Can’t Afford to Be Dismissing People’s Ideas’ to learn how this CEO’s commitment to diversity and inclusion increased innovation at Ameren.

• Clearly State and Communicate Values: Mission statements and consistent values that are inclusive of every group must be visibly present on the website and in other prominent communications. Most importantly, they must come from the CEO and be supported by senior leaders. Read Ask the White Guy: Decision Making, Clarity of Values & What to Do When It Goes Horribly Wrong.
  
• Resource Groups: Your resource groups are your first and best line of defense. Well-developed groups, with the ability to regularly communicate with senior executives, including the CEO, can tell you what’s going on and help create culturally competent solutions.  Senior executives who sponsor groups outside of their own demographics often become more inclusive leaders. Watch Diversity Web Seminar: Resource Groups.
• Diversity Training: Mandatory diversity training that goes beyond compliance and addresses specific cultural-competence education is vital, especially for those who don’t “get” diversity and inclusion and may be bullies. It’s important to follow up and measure the success of training to make sure you have the right programs in place. Read Do White Men Really Need Diversity Outreach?
  
• Mentoring: Cross-cultural mentoring allows individuals to get to know people from underrepresented groups and to “walk in another person’s shoes.” The bidirectional aspect of mentoring, especially for white, male executives, can reduce bullying through cultural education. Read Cross-Cultural Mentoring: How IBM, E&Y & Kraft Increase Diversity in Management.
• Legal/HR Repercussions: If despite all your diversity-management efforts, instances of bullying occur, it is vital to address them quickly and severely. Understand what is legal and what is not, and work with your HR department to ensure nothing is being ignored. DiversityInc is holding a one-day workshop Sept. 13 on Managing Relationships Between HR & Diversity Departments, and bullying will be a major topic.

For more resources on diversity and inclusion awareness, go to DiversityInc.com/diversity-facts.

–Barbara Frankel

The post Diversity & Inclusion Means Zero Tolerance for Bullying appeared first on DiversityInc.

Company accused of hiring only gay men loses $1-million verdict. Three women filed a discrimination charge against a shipping company, alleging that the company only hired gay men for station-manager jobs. When the gay, male manager of one location left, the assistant, also a gay man, was logically made acting manager. He stated his interest in being appointed as the regular station manager. However, the company refused to even accept his application for the opening. He was told he would not be considered because the company was “in a boiling pot of water” because of the three women’s complaints.

A senior manager told others that the company “needed to clean house” of gay people. Under the Maine Human Rights Act, a jury awarded more than $1 million in damages plus attorney fees for discriminatory denial of the promotional opportunity in Russel v. Express Jet Airlines, Inc. (Maine S.Ct., 2011). The warning in this case is about overreaction. Do not react to one discrimination case by then discriminating in another direction. Adopt validated, sound practices in general. 

For more on hiring best practices, watch our recruitment web seminar, featuring staffing leaders from AT&T and Toyota Motor Sales, and read Diversity Training Goes Way Beyond Compliance. 

Georgia legislature could not fire transgender state employee. The 14th Amendment Equal Protection Clause covers discrimination on the basis of sexual orientation and transgender by government employers (unlike Title VII, which does not cover these issues). When the editor of a Georgia General Assembly publication began a transition from male to female, the legislative council manager initiated a discharge. The manager stated that the sex reassignment would be “inappropriate” and “disruptive” and some coworkers would have a “moral issue and feel uncomfortable.” In the resulting case, the court found clear discrimination based on transgender and gender stereotyping. Glenn v. Brumby (11th Cir., 2011).  

For more on LGBT best practices, read Our Analysis of the HRC’s Corporate Equality Index and  Ask DiversityInc: How Can Corporations Support Same-Sex Marriage? 

Discrimination: Age

$17.7 million to older drivers. A jury found that a soda-bottling company engaged in a deliberate plan to rid itself of older truck and forklift drivers by artificially lowering performance evaluations and assigning harder work designed to cause injury or motivate them to resign. Evidence included a “manager claiming he was required to discriminate against older drivers,” comments by a senior manager referring to facilities with older workers as “retirement communities” in need of “new blood,” and the non-responsiveness of human resources to complaints made by the older workers. Seven plaintiffs received the award, including $1 million each for pain and suffering and up to $2 million each in punitive damages in Ward v. Cadbury Schweppes Bottling Group (C.D. Cal., 2011). The awards were under California’s antidiscrimination laws and are not subject to the liability caps of the federal Age Discrimination in Employment Act.

For more on generational communications in the workplace, read Ask DiversityInc: How Can We Start Resource Groups Based on Generations, Disabilities? and watch our  resource groups webinar.

Discrimination: Disability

Injured vet gets job, but not millions. An injured Iraq war veteran won a jury verdict of $4.4 million because of discrimination. The defendant was, of all entities, the Department of the Army. The plaintiff lost his right hand, part of a lung and an eye while defusing a roadside bomb. On return from duty, he had a civilian job at the Detroit Arsenal. His supervisor and some coworkers were derogatory of his disability, calling him “cripple,” “lefty” and other names. When he objected, the supervisor said, “If you don’t like the way you are treated, go find another job.” He left, sued for constructive discharge and won. The award included $4.4 million in “front pay.” An appeals court modified the verdict. It held that reinstatement to a job—a higher-paying job under different supervisors—was the proper remedy, and not front pay. At age 38, it was unfeasible that he needed an entire life’s worth of pay, as if he would never be able to find another source of income, which is what front pay is supposed to compensate. McKelvey v. Army (6th Cir., 2011).

For more  best practices on hiring and developing veteran talent, read Veterans in the Workplace: How to Help Them Succeed and watch our veterans web seminar.

Hotel kitchen worker loses ADA case; would have won ADAAA case. The pre-amendment ADA cases are gradually coming to an end, while cases under the ADA Amendments Act are coming to the fore. This case is an illustration of why the ADA was amended. In Ramos-Echeverra v. Pichis, Inc. (1st Cir., 2011), a hotel kitchen worker’s epilepsy caused up to 16 seizures a week. However, this rarely interfered with work and never caused a serious performance or safety issue. Management, however, denied him full-time hours. He sued under the ADA. The court dismissed, ruling that even with 16 seizures a week, he was not “disabled” because he could still do work and most life activities. The ADAAA was passed specifically because the courts were making restrictive rulings about the definition of disability. It changed the definition of disability. The employee’s history of epilepsy and number of seizures would clearly be a disability now, and the case would proceed.

Court rules for deceased employee: morbid obesity is a disability. The EEOC pursued a disability case on behalf of a person fired from a residential care facility because her morbid obesity allegedly interfered with her work. During the course of the case, the plaintiff died because of complications of obesity. The court allowed the EEOC to continue the case on behalf of the employee’s estate and under the EEOC’s authority to address discrimination regardless of the presence of an individual plaintiff. Then the court ruled that morbid obesity itself can be a disability. Prior decisions have emphasized that there should be some other medical conditions that contribute to the obesity. Thus, those other conditions are the disabilities, and obesity is an effect. Now, this court found no other physiological impairments need be present; the obesity alone is a disability. EEOC v. Resources for Human Development, Inc. (E.D. La., 2011).

Read Obesity Is a Disability, Says EEOC for more on hiring workers with disabilities and EEOC regulations.

Discrimination: Religion

Non-Amish worker can pursue discharge case. In McIntire v. Keystone RV Co. (E.D. Penn., 2011), the court found sufficient evidence to validate an ex-employee’s religious-discrimination case. The plaintiff alleged that he took a job at an Amish-owned company, and then a new manager began a practice of replacing non-Amish workers with Amish. The plaintiff was then replaced. The company tried to argue that being “non-Amish” is not a protected category under Title VII; one must be discriminated against because of one’s religion—not one’s non-religion. The court rejected this argument. Title VII protects a person because of their religion and also protects against discrimination because one does not hold the same beliefs as the employer. Religion should play no role either way in private-sector employment decisions.

For more on religious issues, read Religious Discrimination in the Workplace.

Discrimination: Race

Stick to one story. A Black welder gave two different versions for leaving his employment, in two different cases: personal injury and Title VII discrimination. In the Title VII case, the employee claimed he was constructively discharged; he had to quit because of racial harassment by coworkers and supervisors knew it, and that was the only reason he left. Prior to resigning, the welder had been injured in an off-work car accident. He sued the other driver. In that case, he claimed he had been forced to quit work because of the injury, claiming “I’m in pain all the time.” He claimed the only reason he had to quit work was because of the injury and “my supervisors knew this is why I had to quit.” It appeared he was telling whatever story was most convenient to get the most damages in either case—double-dipping. Evidence of the testimony in the personal-injury case came to light in the Title VII case. The court dismissed the discrimination case based upon dishonesty. Brown v. Oil States Skagit Smatco (5th Cir., 2011).

Watch our mentoring webinar for best practices on retaining and developing Black, Latino, Asian and women talent.

Family and Medical Leave Act

Prenatal appointments qualify for FMLA, and company should have known better than to threaten discharge. Pregnancy itself is defined as a serious medical condition under the FMLA. In Dean v. Wackenhut Corp. (N.D. Ill., 2011), an employee requested FMLA for prenatal-care appointments. She made the request 20 days in advance. The company denied leave, on the basis that the appointment was “merely an initial examination and not medically necessary.” Then the company told her that she would be fired for no call-no show if she did go to the appointment. The employee pleaded for the ability to go to the appointments. In response, she was told that she “should not use pregnancy as a crutch … pregnancy is not an illness.” She sued for interference with FMLA rights. The court granted summary judgment in her favor. The violation was so clear cut that damages could be awarded without need of a trial. The decision called the employer’s actions “misguided and unfounded” and held that by denying leave and “by attempting to scare her into not taking the time off by threatening disciplinary action—indeed, discharge,” Wackenhut deprived her of her rights under the FMLA as a matter of law.

University denies intermittent leave for adoption. FMLA covers leave for birth, adoption or placement of a foster child. A university employee requested intermittent leave to care for a newly adopted child. The university denied the leave. She sued for interference with FMLA rights. The court granted summary judgment, dismissing the case. FMLA leave for serious medical conditions of employees or family members can be taken in short, intermittent periods. The new-child leave provision is different. It allows the employer the discretion to grant intermittent leave or deny it and force the leave to be taken all at one time. The employee had not made any claim about a serious health condition, so the university could validly deny intermittent leave. DeLuca v. Trustees of the University of Pennsylvania (E.D. Penn., 2011).

Read FMLA: What Employers Need to Know for more insights on FMLA regulations.

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

The post Workplace Diversity: Is Hiring Only Gay Men Unfair? appeared first on DiversityInc.

It’s the question that has landed the “The Bachelor” and “The Bachelorette” and its TV network, ABC, in the middle of a racial-discrimination lawsuit, which is reportedly the first lawsuit filed against a reality show.

The case: After 10 years and a collective 23 seasons, neither “The Bachelor” nor “The Bachelorette” has yet to feature a Black, Latino or Asian person. Out of a collective total of 610 contestants, only 16 were Black; none were selected for the lead, according to an evening newscast by The Insider on April 18.

It’s a misstep that the plaintiffs—Black football players Nathaniel Claybrooks and Christopher Johnson—say is intentional.

ABC, which is owned by The Walt Disney Company, one of DiversityInc’s 25 Noteworthy Companies, declined to comment. “ABC does not comment on pending litigation,” a company spokesperson said via email.

Warner Horizon Television gave the following statement: “This complaint is baseless and without merit. In fact, we have had various participants of color throughout the series’ history, and the producers have been consistently—and publicly—vocal about seeking diverse candidates for both programs. As always, we continue to seek out participants of color for both ‘The Bachelor’ and ‘The Bachelorette.’”

The Allegations

Both Claybrooks and Johnson, according to TMZ, say that they were treated differently than white contestants when they auditioned for “The Bachelor” at a casting call in Nashville this past August. Johnson says he was turned away and not allowed to audition at all, while Claybrooks says his audition time was cut notably short in comparison to other white contestants, according to The Hollywood Reporter.

Both spoke about their experience in a press conference yesterday afternoon:

The two men filed Case 3:12-cv-00388 on April 18 in Nashville, Tenn., federal court. They are seeking a class-action lawsuit against ABC as well as the show’s Executive Producer Mike Fleiss and its production companies, including Warner Horizon Television, Next Entertainment and NZK Productions.

Claybrooks and Johnson are represented by three firms: Barrett Johnston, Mehri & Skalet and Perkins-Law. They claim it’s a violation of the 1866 Civil Rights Act. Mehri & Skalet, a class-action plaintiff law firm based in Washington, D.C., has a history in dealing with civil-rights cases. “Our firm is highly selective about which cases we bring. One factor is the impact a case can have on society outside of the company. Here,  this popular show reinforces stereotypes and creates a ripple effect of discrimination. With this case, our clients can have a small part on the journey for a more inclusive, more tolerant America,” the lawyers said.

LaNease Adams, a Black woman who was chosen as one of the female contestants during the first season of “The Bachelor” and was one of the final eight women vying for the bachelor’s heart, notes the lack of Blacks and Asians on the show. However, she paints a different view of the producers and says she never felt discriminated against. She describes her experience in an interview with The Insider below:

ABC had another issue last year, when the LGBT and Latino communities were angered over a show that only aired two episodes: ‘I’m Puerto Rican—I’d Be Great at Selling Drugs’ and ‘Not Married? She Must Be a Lesbian’

Read more racial-discrimination lawsuits from legal expert Bob Gregg.

From 1/16 Cherokee to the First Black Bachelor

The allegations of racism on the show aren’t new. The Huffington Post called out ABC for the shows’ all-white casts in January 2010. Additionally, during an interview in March 2010, Entertainment Weekly asked Fleiss, “Will we ever see a bachelor or a bachelorette who is not white?” His reply: “I think Ashley is 1/16th Cherokee Indian, but I cannot confirm. But that is my suspicion! We really tried, but sometimes we feel guilty of tokenism. Oh, we have to wedge African-American chicks in there! We always want to cast for ethnic diversity, it’s just that for whatever reason, they don’t come forward. I wish they would.”

So far there are only a handful of social-media users commenting on the news, the majority of which do not seem shocked by the allegations. On tumblr, one user refers to Fleiss’ explanation as “pathetic,” while tweets trending on #Bachelor include “I guess a spray tan and the occasional Asian does not diversity make …” and “I’d be shocked if they ever have a [B]lack man on The Bachelor … and it would be forced.” As of this morning, 13 comments and 50 “likes” were left in response to an article posted by The Root on its Facebook page, which calls attention to other TV networks that should be sued for a lack of diversity.

Additionally, a social-media campaign that has been lobbying for Lamar Hurd to become the first Black “Bachelor” (@1stblkbachelor) may finally have paid off. CBS Los Angeles reports that the show’s producers are considering the Black sportscaster from Portland as their next pick. (Watch his audition video below.) One news source, Weekly World News, says ABC made the announcement yesterday months ahead of schedule, presumably in response to the lawsuit.

Diversity in Reality TV and Entertainment

Ethnic diversity, however, does not seem to be a challenge for the rest of the reality TV segment, which an LA Times article reports to be typically more diverse than scripted sitcoms and shows. The article references Black and Asian participants on shows such as “The Amazing Race,” “Survivor” and “The Biggest Loser.”

PopWatch notes “Dancing with the Stars” for its diverse casting. The show is also broadcast by ABC. Seven of this season’s 12 dancing pairs have either Black or Latino representation: Super Bowl champion and Green Bay Packers receiver Donald Driver, Disney Channel’s Roshon Fagan, Grammy winner Gladys Knight, Latin soap opera and VH1 actor William Levy, “TV Extra” host Maria Menounos, “The View” co-host Sherri Shepard and “Family Matters” actor Jaleel White.

Last year, GLAAD applauded the show for featuring its first transgender person, Chaz Bono, and gay stylist Carson Kressley.

So what happened with “The Bachelor” and “The Bachelorette”?

Lesson Learned?

The entertainment media is facing quick backlash on these issues on social media these days. Remember the recent racial controversy surrounding box-office hit “The Hunger Games” and its abundance of Black actors?

It calls attention to changing demographics—and expectations—among the American audience. The U.S. Census Bureau reports that the white population is decreasing and projects that whites will make up less than half of the total population by 2050.

DiversityInc research and analysis illustrates companies’ increasing emphasis on clarity of values in their messaging, branding and staffing.

Read these DiversityInc articles for more insight on how crucial diversity is to a business’s connection to the marketplace:

Ask the White Guy: Decision Making, Clarity of Values & What to Do When It Goes Horribly Wrong
Are you violating your values? If you are, you can’t hide from the repercussions.

Did Komen’s Lack of Board Diversity Cause Its Crisis?
The nonprofit organization’s board of directors is mostly Texan, homogeneous and wealthy. Here’s how the lack of diversity fueled its misstep over funding to Planned Parenthood.

Diversity Web Seminar: Resource Groups
Innovative marketplace solutions from resource groups at American Express and Procter & Gamble provide best practices in using cultural competence to increase sales.

Diversity Training Goes Way Beyond Compliance
Our employment expert reveals how REAL diversity training can help keep your company from being sued for discrimination.

Do White Men Really Need Diversity Outreach?
How companies are showing white men what’s in it for them.

Top 5 Ways to Use Your Resource Groups
Here’s how more than 20 companies use their groups to find and develop talent and connect to customers/clients for business results.

Cross-Cultural Mentoring: How IBM, E&Y & Kraft Increase Diversity in Management
These companies’ cutting-edge best practices can help create and manage a successful mentoring program.

The post Is ‘The Bachelor’ Racist? ABC Sued for Discrimination appeared first on DiversityInc.

The partner at Boardman & Clark spoke with DiversityInc and gave a high-level presentation on compliance, training and the legalities in Diversity Training Goes Way Beyond Compliance. He provided six reasons for companies to go above and beyond basic compliance training. These include:

1. The focus on compliance training is aimed at saving money, while diversity training is about making money.
2. Courts frequently hold companies liable for allowing discriminatory cultures to flourish.
3. More and more decisions involving significant punitive damages occur when companies fail to give basic compliance training.
4. Courts have ruled that when the people in charge aren’t given the right training, there is liability.
5. Training should emphasize respect for the workplace and carry a message.
6. Specific training on issues, such as generational differences, often needs to be held.

Read more of these insights in Diversity Training Goes Way Beyond Compliance.

The post 6 Reasons Your Company Needs More Than Compliance Training appeared first on DiversityInc.