The NDAA is an enormous bill that specifies the budget and expenditures of the Department of Defense (DOD). It also contains sections that deal with military issues ranging from the total number of troops to retiree benefits, and everything in between. It is one of the primary vehicles used by Congress to provide oversight and mandate change within the military. Every year, SWAN partners with key members of Congress to provide bipartisan legislative recommendations to both the House and Senate to improve the welfare of service women and women veterans.

This year, SWAN was able to help introduce into the bill a record number of provisions based on our policy agenda, chief among them to improve the way the military handles sexual assault and sexual harassment in the ranks. Other provisions were also included that improve health care for service women and military families. Specifically, the law now provides for:

• Prohibiting the military from recruiting anyone convicted of a sex offense

• Mandatory separation of convicted sex offenders

• Insurance coverage for abortions in cases of rape or incest for service women and military family members

• Retention of restricted report documentation for 50 years if so desired by the victim

• The creation of “Special Victims Units” to improve investigation, prosecution and victim support in connection with child abuse, domestic violence and sexual assault cases

• Allowing victims to return to active duty after separation to help prosecute sex offenders

• The creation of an independent review panel comprised of civilian and military members that will closely examine the way that the DOD investigates, prosecutes, and adjudicates sexual assaults

• Required sexual assault prevention training in pre-command and command courses for officers

• Improved data collection and reporting by the military on sexual assault and sexual harassment cases

• Annual command climate assessment surveys to track individual attitudes toward sexual assault and sexual harassment

• A review of unrestricted sexual assault reports and the nature of any subsequent separations of victims who made those reports

• Notification to service members of the options available for the correction of military records due to any retaliatory personnel action after making a report of sexual assault or sexual harassment

• Requirement for DOD to establish a policy for comprehensive sexual harassment prevention and response

• Language that will allow better oversight and tracking of DOD’s implementation of sexual assault provisions from prior Defense Authorizations in order to ensure they are being enforced properly

Legislating reform of DOD policies can be a difficult, complicated and sometimes painfully slow process, and is only one of several tools SWAN uses to make institutional change happen. Ensuring those policies are properly implemented by the services and fairly practiced in individual units “where the rubber meets the road” is a continuous process for us. Calls from active duty troops and veterans on our Helpline continue to inform and guide our work. We are grateful to be able to provide help to service members and veterans in need. We are also thankful for our incredible coalition of military, veterans and civil rights organizations, the members of Congress who have partnered with us, and each one of you who have supported us this year. In order to eradicate sexual assault and sexual harassment we must continue to work together to transform military culture. The passage of the 2013 NDAA is another critical step in moving the military one step closer to change.

As we move forward with this year’s policy and legislative agenda, and prepare for our second annual Summit on Military Sexual Violence, SWAN will continue to hold our civilian and military leadership accountable for the welfare of our nation’s service members and veterans. We will continue to fight for changes in the execution of military justice for victims of sexual assault, service members’ access to civil courts, and comprehensive reform of VA policy regarding “Military Sexual Trauma” compensation claims. With your support, we look forward to continued success as we begin work on the 2014 NDAA.

* This article is republished with permission from Service Women’s Action Network

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

Liable for Discrimination?

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

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

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

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

Will Discrimination Lawsuits Increase?

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

A decision is not expected until sometime after winter 2013.

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Starbucks failed to accommodate server with dwarfism. A job applicant had short height because of the condition of dwarfism. A Starbucks store refused to place her in a barista job. She claimed she could do the job using a stool. However, the management did not even try this accommodation. It concluded, without facts, that she would “pose a danger to customers and employees.” When the ADA case was filed, Starbucks quickly settled for $75,000 and agreed to provide training on proper ADA procedures to managers. The EEOC praised Starbucks for its prompt resolution of the issue. EEOC v. Starbucks Coffee Co. (W.D. Tex., 2011). 

Employee’s clothing too modest for Catholic facility. A non-Catholic was hired to work in a nursing home operated by the Catholic Church. Because of her own Church of the Brethren beliefs, the employee wore very modest clothing, including long dresses, long sleeves and a hair cover. The nursing director informed the employee that her garb made her stand out in a way that bothered some residents and did not fit into the operation or its mission. When the employee insisted her attire was a function of her faith and that she would not modify the clothing, she was fired. She sued for religious discrimination. The court granted judgment to the nursing home based upon the First Amendment and the Title VII deference to religious organizations. The decision was based on what was appropriate for a Catholic service environment. A religious-based employer is not required to accommodate the religious practices of other faith employees when they even minimally conflict with the organization’s views of what is or is not a proper environment for its own faith. Kennedy v. St. Joseph Ministries, Inc. (4th Cir., 2011).  For best practices on religious inclusion, read Starting Religious Resource Groups.

Be sure you really hang up before you say what you really think―race and sex comments warrant discharge and union’s refusal to pursue grievance. A company manager gave training on its anti-harassment policy and zero-tolerance requirements. The next day, an employee present at the training left a voicemail for that trainer to complain about his supervisor. (So far, a protected act.) Then, failing to realize he had not actually hung up, he decided to “entertain” his coworkers by launching into a profane derogatory tirade of the manager and the anti-harassment training she had given. He used the N-word and made gross comments about her breasts. All was clearly recorded on the voicemail. He was fired, despite his 29-year tenure with the company. The union then refused to pursue his grievance process to the arbitration level and withdrew. The employee sued the company for unfair discharge, as well as the union for breach of its duty of fair representation. The court found against him on both grounds. He had clearly and intentionally violated the anti-harassment policy’s prohibitions on use of derogatory racial and sexual epithets and slurs. The union could validly consider this in its decision on which cases it should take to arbitration and was neither arbitrary nor unfair in its decision of non-representation. Robeson v. U.S. Steel Corp. (E.D., Mich., 2011). Read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words for more on stereotypes and racism.

Excess skin was a serious medical condition. A city employee took FMLA for a gastric-bypass surgery. She then lost more than 150 pounds. This left large areas of excess skin that hung from her arms and abdomen. She requested FMLA to have surgery for this and was denied. The employer considered it only cosmetic. She was fired when she took time off for the surgery. A jury ruled for the employee. The medical testimony was clear that the excess skin was itself a serious condition which, if uncorrected, could cause serious infections. The employer should have considered the medical verification before denying the leave. Alcazar-Anseimo v. Chicago (N.D. Ill., 2011). For more on FMLA, read FMLA: What Employers Need to Know.

Car salesman has valid constructive-discharge claim for age harassment. In Dediol v. Best Chevrolet, Inc. (5th Cir., 2011), the court found a valid claim of age harassment and constructive discharge. A 65-year-old was hired as a car salesman. His manager allegedly began daily comments about age, never calling him by his name but always “old man,” “pop” and “you old motherf***er.” The manager steered customers away from him and then escalated to more profane statements and physical threats. The salesman complained to higher management, but nothing was done. The manager reacted to the complaint by threatening to beat up the salesman and “charged” at him. The salesman left and did not return to work. The court found ample evidence to support a harassment and constructive-discharge case. For ways to avoid age discrimination complaints, read Things NEVER to Say to Older Coworkers.

Company overreacts to workers-compensation disability determination. An employee with a work-related elbow injury received a permanent partial (30 percent) disability determination. There were partial restrictions on mobility and an evaluation for not doing “a lot of heavy lifting.” However, the company interpreted this disability determination as meaning the employee could do no lifting whatsoever and could not use hand tools, and it banned him from returning to his job. The company seemed to jump to unfounded conclusions with no assessment and no interactive process with the employee. In the ADA suit, the court found discrimination for “regarding” the employee as having a disability. Jones v. Nissan North America (6th Cir., 2011).

Wisconsin legislature proposes eliminating conviction-record discrimination protection. The Wisconsin Fair Employment Act currently prohibits job discrimination against those with conviction records unless the crime was “substantially related” to the job or the work environment. Assembly Bill 286 would remove that protection and allow employers to fire or not hire anyone convicted of a felony, without any assessment of relatedness to the work. Further, AB 286 would prohibit local governments from enacting their own antidiscrimination rules on conviction status and would void those that currently exist. The legislature believes that the state should set uniform standards, rather than allow local governments to exercise discretion or consider local needs. For more on fairly hiring applicants with criminal records, How to Fairly Hire Applicants With Criminal Records.

Read more legal articles here. 

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

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Diversity and inclusion at Walmart (class action Phase 2). In early 2011, the U.S. Supreme Court rejected the massive Duke v. Walmart sex-discrimination nationwide class action because it was too large and had too many issues to fit within the class-action rules. The plaintiffs have now amended the complaint to focus only on 90,000 female Walmart employees in California. Duke v. Walmart (N.D. Cal., 2011). Get insight on this case in DiversityInc CEO Luke Visconti’s Ask the White Guy column.

Hostile employment environment cannot exist the moment employment ends. A moment can make a great difference. When a financial adviser submitted her resignation letter, a male manager applauded, grabbed her arm, pushed her out the building door and yelled, “Good riddance, b—-!” She sued for hostile-environment sexual harassment and constructive discharge. The court dismissed the case. There had been no sexually hostile environment prior to the resignation. There had been animosity between the manager and employee, but nothing to constitute sexual harassment. The resignation was triggered by a corporate territory reassignment that affected all advisors. Though the court found the manager’s conduct “reprehensible” and “unacceptable,” it was not actionable. It was impossible for the manager’s conduct to have “altered the employee’s terms or conditions of employment” when it occurred after she resigned. Overly v. Key Bank National Ass’n. (7th Cir., 2011). 

Read more sex-discrimination cases and rulings in Is Going Out for Drinks Sexual Harassment? and Lying About Disability, Covering Up Sexual Harassment & Other Legal Issues.

Age Discrimination: 

Reacting to rumors does not create constructive-discharge case. A 60-year-old hotel sales manager heard rumors that upper management wanted to get rid of her and “hire someone young and cute as sales manager.” In reaction, she submitted a resignation in order to avoid the stigma of being fired. She then sued for age discrimination and constructive discharge. The court found no valid cause of action. The employee had suffered no adverse actions. Constructive discharge requires one to have suffered terrible overt treatment. The employee had not waited to suffer any actions at all. Her preemptive quitting left her with no case, even if she was eventually replaced by a younger person. Fritzpatrick v. Raymond Mgt. Co. (N.D. Ill., 2011). 

Independent audit report overcomes case. A former school-district finance director sued and lost her discrimination case. After several financial improprieties surfaced, the district requested an audit. The auditor’s report found that the director’s department was “dysfunctional” and that she knowingly allowed irregular accounting procedures. The day after the report, the director filed a complaint alleging she was being mistreated because of her age, gender and Chinese national origin. She was fired soon thereafter. She sued, claiming the firing was because of her discrimination complaint and that she was replaced by a younger, white male. The court found that her “last-minute allegations” of discrimination were unconnected to the discharge. The independent auditor had already found ample nondiscriminatory evidence to warrant the discharge. Dellapina v. Tredyffrin/Easttown School Dist. (3rd Cir., 2011).

Disability Discrimination: 

Employers have the right to change duties with changing times and technology. No job is static and employees have no right to hold on to the job description or duties of their original hire. Due to incidents of fraud, Walmart changed its return process from a manual check-off by the greeter to a more complex hand-held scanning device. A greeter was unable to effectively use the new device because of a neurological disorder, which was now an essential function of the job. He requested and was denied the accommodation of going back to the old manual system. He then sued, claiming that he should be entitled to continue the duties he was hired to do and performed well. The court ruled that this argument was “a nonstarter.” The new technology significantly reduced fraud, and any employer may change duties and technology if it can show a valid business reason, in spite of the consequences this may have for some employees unable to make the transition. Walter v. Walmart Stores, Inc. (N.D. Ind., 2011). 

100% requirement is an automatic violation of the ADA. This case is in the “should have known” category. An employee took leave because of prostate surgery. He was cleared to return with restrictions on lifting and standing too long without the opportunity to sit. The company terminated him for being unable to perform 100 percent of the job. The employer should have known better. The ADA regulations and a long line of cases hold that a 100 percent return requirement is a “per se violation” of the law. The whole reasonable-accommodation concept is based on modifications because an employee may not be able to do 100 percent of the duties but can perform the essential functions. The employer should have engaged in the required interactive process to explore accommodations before making any decision. Nolan v. Arkansas (E.D. Pa., 2011). 

Safety evaluation is not a medical examination. The ADA has strict guidelines on medical evaluations. A FedEx employee challenged a field-evaluation safety assessment of hearing, which he failed. The court dismissed the case, finding it was not a medical exam under the ADA. There were no medical personnel involved. The hearing evaluation was done under actual workplace conditions, with a practical assessment of whether the person was able to be effectively safe. There was also a valid reason for the evaluation. The employee had several accidents, apparently because of failure to hear directions, including people yelling loudly that he was driving in the wrong lane. Margharita v. FedEx Express (E.D. NY, 2011).

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com. For best practices to create inclusive workplaces that reduce discrimination based on sex, age and disability, visit DiversityIncBestPractices.com.

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