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.

• 8 percent Black: a total of 43
• 6 percent Latino: a total of 32
• 5.6 percent Asian: a total of 30
• 18.9 percent women: a total of 101. Read facts about the congresswomen.
• Four Arab Americans and one Caribbean American were also elected to Congress

Diversity in religion and sexual orientation also increased: The first Buddhist senator, Senator Mazie Hirondo; the first Hindu representative, Congresswoman Tulsi Gabbard; the only Unitarian Universalist, Congresswoman Ami Bera; the first openly gay senator, Senator Tammy Baldwin; the first nonwhite LGBT, Congressman Mark Takano; and the first openly bisexual woman and only atheist, Congresswoman Kyrsten Sinema, were also sworn in.

Among the new faces of the 113th Congress are: 4 Blacks, 10 Latinos, 6 Asians, 5 LGBTs and 24 women. Plus, four of the incoming congressional representatives are of the Millennial generation, born in the 1980s.

Changing Diversity: What Will Election 2016 Look Like?

Will this diverse mindset continue to make its way into the upper echelon of the political parties?

Although diversity made significant headway in the recent election, the overwhelming majority of congressional representatives (80 percent) are white and male. In the House, for example, there are 42 Blacks, 35 Latinos, 11 Asians and 2 American Indians, according to House Press Gallery, but together that accounts for only about one-fifth of all representatives. Moreover, the House has 81 women, which is 18.6 percent of the total number of representatives, but the United States is 50.8 percent women.

But that’s poised to change in the next election. Anticipated diverse candidates on the Democratic side for the 2016 presidential race include three women: former Secretary of State Hillary Clinton, Senator Kirsten Gillibrand and Senator Elizabeth Warren. The GOP’s rising stars include three women: Senator Kelly Ayotte, Governor Nikki Haley and Governor Susana Martinez; three Latinos: Senator Marco Rubio, Governor Brian Sandoval and Martinez; and two Asians: Governor Bobby Jindal and Haley.

The 2012 election results show that voters, particularly Millennials, are more than ready for a change and are looking for leadership that more accurately reflects the country’s increasingly diverse population.

Non-Hispanic white populations will decrease drastically by the year 2050, according to Census Bureau data, from 71.6 percent to 46.3 percent, and Latino populations will increase significantly from 11.3 percent to 30.3 percent. Asian populations will grow to 6.3 percent from 4.4 percent, and Black populations will tick up from 12.8 percent to 12.9 percent. More than half (50.4 percent) of babies born in the United States in 2011 were Black, Latino or Asian, per the Census Bureau.

Additionally, Pew Research reports that Asians are the fastest growing demographic, growing 43.3 percent between 2000 and 2010. Comparatively, the Latino population grew 43 percent, and the Black population grew 12.3 percent. The white population grew 5.7 percent during the same period.

Millennials are the most racially and ethnically diverse demographic in history, per Pew Research: 18.5 percent are Latino; 14.2 percent are Black; 4.3 percent are Asian; 3.2 percent are mixed race or other. Only 59.8 percent are white, the lowest percentage to date. In the 2012 election, 60 percent of individuals ages 18-29—which totals 19 percent of all voters—cast ballots for Obama. And just as new and youthful mindsets about diversity helped win this past election, it’s this more-inclusive generation of Millennials that will continue to be a driving force in deciding the outcomes of future elections.

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DiversityInc has compiled a collection of best practices from religiously inclusive workplaces and data from the DiversityInc Top 50 to help your company navigate the cultural competence and legalities of religion in the workplace.

Ask DiversityInc: How Does Your Company Handle Religious Holidays?
When allowing employees to celebrate the holidays with tasteful decorations and celebrations, how do organizations make sure that those who don’t celebrate are not offended?

Best Practices on Religiously Inclusive Workplaces
Employers must provide “reasonable accommodations” for employees’ religious practices, per Title VII. But what exactly does that mean?

Religious Discrimination in the Workplace
A leading discrimination attorney provides advice on EEOC/Civil Rights laws and how to best mitigate religious discrimination at work.

Laws on Religion, Dress & the Workplace
What’s permissible and what’s not? We spell out the legal precedents for you.

Ask the White Guy: My Managers Are 95% White, Christian–Do I Have a Chance?
What can a person do if they’re in a company where the in-crowd goes to a certain church?

Ask DiversityInc: How Can Diversity Management Measure Religious Inclusion?
Can religion be represented/highlighted as a primary diversity metric in an overall assessment?

Ask the White Guy: What About Religious Expression?
How much religious expression in the workplace is acceptable? CEO Luke Visconti discusses the difference between proselytizing and religious expression.

Ask the White Guy: Are Traditional Christian Values Part of Diversity?
Does diversity management mean ignoring those who hold traditional Christian values?

The post Holidays at Work: Culturally Competent or Offensive? What You SHOULD Know 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.

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.

Question:

At the company my husband works for, he was told in less-than-explicit terms that although he is great at people management, unless he has a mentor who will stick by him, he should forget about growing in that role. If he does want to grow in the company and not stagnate, he should consider a technical track. Full disclosure: We are Indian Hindus. After doing some analysis, we noticed that 95 percent of people managers at my husband’s company are white and Christian and go to the same church. The couple of Indians who were people leads were told they were not doing a good job and that they would be better off on the technical ladder, then they were pushed aside.

My question is: How do you grow in a company that encourages this religious casteism and racism? And how do you deal with a situation where you really do want to manage people and are great at it but will not be given the opportunity to do so?

Answer:

I feel that culture within companies changes from the inside. There are examples of companies that change due to market pressure, but this is rare. Most companies go out of business rather than upset the status quo. Change almost always occurs when inspired leadership either overhauls the governance policies or enforces policies that are already in place.

Your situation is difficult­—you’re not the CEO, so you’re stuck with trying to change the culture of the organization using the governance policies that exist. Is this possible? Here are some things you should evaluate, as if for a report card:

1. Does your CEO have a quote about diversity on your company’s website? If so, does it read as heartfelt? Or do you think it came from the public-relations department?

2. Is his/her picture in that area? Does it look like the business part of the website (serious), or is it full of pictures of multiracial hands clasping, flowers and different-looking shoes (what I call diversity clichés).

3. Are there pictures of the board and senior executives? Are they scowling? Do their bios reflect community engagement and charitable work? Or do they look like the kind of people you’d avoid if you saw them coming? A lack of diversity among board members is typical but should be balanced by a statement of intention on diversity (see below points).

4. Is there a diversity council? Does it have significant representation of race, gender and position? How often does it meet? Does the CEO chair the diversity council?

5. Does your company have resource groups? Does your particular resource group have an executive sponsor? A business plan? Report-outs on the business plan?

6. Does your company have structured, disciplined and measured mentoring? Do you have a mentor?

7. Is your company philanthropic? Where does it disburse its charitable spend? What is the percent of gross revenue spent on philanthropy? (The DiversityInc Top 50 companies average 1.6 percent. DiversityInc itself donates more than 2 percent.) Does the charitable area of your company’s website cite hard facts and figures—or is it stale and/or full of public-relations gimmicks such as meaningless statistics, e.g., “Charitable donations rose 500 percent from 2002 to 2006”? (That could mean from $1 to $5.)

8. Is there a mission-and-values statement on your company’s website? Does it include diversity?

If you feel you can score your company positively on more than six out of the eight questions, I’d say you have a chance of inspiring change. The best way to inspire change is to leverage existing structure (diversity council, resource groups, mentoring, etc.) and to communicate in a style that is consistent with how your company expresses its most important financial information (i.e., use the same font and the same colors).

If your company has a mission-and-values statement, make sure you organize your information along the same lines. Use the same order of reasoning in your bullet points if you can. For example, here’s an area on Wells Fargo’s website where the CEO lays out the company’s mission and values. Page through the entire section. You can see how diversity is listed as one of the company’s core values—and there is an excellent explanation of what diversity means to Wells Fargo (No. 33 in the DiversityInc Top 50). There isn’t another company I’ve seen that lists its mission and values so clearly. We just had a senior executive from the company, Michelle Lee, executive vice president and Northeast region president, talk at our diversity event, and she told us that the company’s mission and values are a part of practically EVERY meeting.

I understand that most companies don’t have as clear a path as Wells Fargo, but you should look very carefully at what’s on a company’s website. As Maya Angelou said, “The first time someone shows you who they are, believe them.” Your company’s web site is a window into the leadership’s mind and heart. If there’s not much there, well, you may be working for mediocre people—and/or people who simply don’t see how strangling human capital by having unequal recruitment and talent development doesn’t translate to increased human-capital costs, lower brand equity with customers and squashed innovation.

I cannot say if the manager who gave you that reprehensible advice is following company policy or is just a rogue manager. Rogue managers doing bad things can happen at any company; a very smart governmental-relations pro at a company I enjoy visiting once asked me if I thought that it would be fair to say that 2 percent of any population would do something intentionally wrong that day. I thought the number was conservative. He responded that his company had more than 200,000 employees—which means that THOUSANDS of people at his company would do something intentionally wrong.

After all this introspection and investigation, if you feel that your entreaty will be positively received—and not damage your employment situation if you can’t afford that—my advice is to leverage the existing structures of feedback and take your change proposition through the chain of command. In my opinion, good organizations and leaders with a healthy sense of ego respond quickly to evidence that there are situations or actions that violate the stated mission and values of the company. They know that dissonance between values and actions destroys credibility, and that process destroys business because it psychologically detaches people from the satisfaction they derive from their daily work and detaches customers from their brand. Just look at what’s happened to Apple’s stock (down almost 10 percent) since workers at the Foxconn factory started rioting again. Now, there are plenty of things that go into a stock price, but over time, perception of the brand is key. I don’t feel the same way about my Apple products since learning about the abuse of workers at their assembly factories. It’s completely in conflict with their brand image.

I’m sure you know that your path won’t be easy. You will find people blocking your way—many times, petty people block good ideas because they’re not going to get credit for them. In my opinion, the cc field in an email is a little-used but very powerful management tactic.

If you don’t think an appeal to better business practices will find a happy reception, you have three choices: Stay and make the best of it, start looking for a new job—or start interviewing lawyers.

If you investigate legal redress, you’re going to need a very good lawyer, and a class-action suit is far better than going it alone. But keep in mind that settlements usually do not amount to much after attorneys are paid. So your best course of action really is to change things from the inside, if your company passes my report card, or to find another job and recruit all your friends to the new company.

Luke Visconti’s Ask the White Guy column is a top draw on DiversityInc.com. Visconti, the founder and CEO of DiversityInc, is a nationally recognized leader in diversity management. In his column, readers who ask tough questions about race/culture, religion, gender, sexual orientation, disability and age can expect smart, direct and disarmingly frank answers.

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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.

Diversity-Management Question: I am the chairman of a religious group at my company. I am working with key business partners in our headquarters city to move forward with a strategy that involves transformation [to a religiously inclusive workplace]. Will you share your vision as to how religious diversity can be represented/highlighted as a primary metric in an overall diversity assessment of the companies you speak with?

A. We’ve assessed best practices for diversity management and religious inclusion for several years, including religious resource groups, which generally follow two models—all-inclusive of many religions or a focus on individual religions (American Express, No. 14 in the 2012 DiversityInc Top 50, is the leader in this with Christian, Jewish and Muslim resource groups).

The key to all those resource groups’ successes is that they are inclusive (anyone can join, including people not of that or any faith) and they are educational, with a primary goal of educating employees about the religion and its members. They cannot ever proselytize or promote anything that is exclusive of anyone else (this primarily surfaces with some religious groups arguing against the inclusion of LGBT people). Read Starting Religious Employee-Resource Groups for more.

Outside of the groups, DiversityInc also measures in the DiversityInc Top 50 survey whether companies make religious accommodations for employees (usually in the form of hours and dress but also including prayer rooms) and whether they allow employees time off for religious holidays. The Tanenbaum Center for Interreligious Understanding (www.tanenbaum.org) has a lot of information on this and on national trends around the issue.

The post Ask DiversityInc: How Can Diversity Management Measure Religious Inclusion? appeared first on DiversityInc.

Diversity and inclusion cannot exclude anyone, an issue that has created great conflict in the Black church as the momentum for LGBT rights has increased.

Last week, after the announcement of President Obama’s historic endorsement of same-sex marriage, the Rev. Jesse Jackson led the public pronouncements for equality, calling this “a bold step in the right direction for equal protection under the law for all citizens” and saying he wished the president had also pushed for federal equality rights for LGBT people instead of leaving it up to the states.

Many other Black religious leaders are publicly agreeing, calling LGBT rights the current civil-rights battle. Two of these leaders are Rev. Delman Coates of Prince George’s County, Md., and Rev. Enoch Fuzz of Nashville, Tenn.

However, there remains a strong contingent of people in Black America who believe that same-sex marriage goes against their religious beliefs, including Pastor Jamal Bryant and Bishop Harry Jackson.

And there are others who are angered by the use of the term “civil rights.” Misperceptions abound; as one Black manager recently told us, “It’s not a civil-rights issue for them because they have a choice. I can’t change that I’m Black, but they don’t have to be gay.”

Black community support for same-sex marriages has increased, but not as rapidly as in the general population. Pew Center research shows that in 2001, 34 percent of whites and 32 percent of Blacks supported same-sex marriage. Today, 47 percent of whites and 39 percent of Blacks support it. And Black voters were instrumental in last week’s approval in North Carolina of a ballot measure outlawing same-sex marriage and restricting domestic-partner benefits.

How to Build Support for Diversity & Inclusion 

If your organization—or your church—isn’t supportive of equality for everyone, here are some tips garnered from the DiversityInc Top 50 on how to build an inclusive workplace.

• Require cultural-competence diversity training. Mandatory training that includes factual, educational information on LGBT groups is a must. People who are educated are less likely to make statements like the one above. Eighty-six percent of The 2012 DiversityInc Top 50 Companies for Diversity now require diversity training for their managers, compared with 78 percent five years ago. Sixty-eight percent require diversity training for their entire workforces, compared with 58 percent five years ago. Read DiversityInc’s LGBT Pride Facts & Figures, which you can use for educational purposes. For information on our diversity-training courses, click here.
• Use your resource groups to create more inclusive workplaces. Your LGBT resource group is a great start. Make sure its name includes the word “friends,” “allies” or “straight” so people who are not LGBT or are not out are comfortable joining. Ensure that members of this resource group are included in prominent roles in company events and publications, that they meet frequently with senior leaders, and that they set up company-wide educational programs. Read Our Analysis of the HRC’s Corporate Equality Index.
• Maintain a “no-tolerance for bigotry” policy for everyone. Core diversity-management values are essential to an organization, emanating from the very top. Those values must include an absolute adherence to diversity and inclusion for everyone, regardless of race, ethnicity, gender, religious background, disability and, especially, orientation. Read Diversity Management 101 and The Four Stages of Diversity Management.

–Barbara Frankel

The post Diversity & Inclusion Includes Gays & Lesbians: Is Black Church Getting the Message? 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.

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