HR Forum: discrimination

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EEOC reports record number of discrimination filings for FY 2011

The U.S. Equal Employment Opportunity Commission (EEOC) recently released fiscal year 2011 statistics, compiled in its annual Performance and Accountability Report (PAR). The EEOC handled a record 99,947 discrimination charges in fiscal year 2011 (ending September 30) -- the highest number in the agency's 46-year history. The EEOC also recovered more than $364.6 million in monetary benefits for victims of workplace discrimination -- again, the highest level in the agency's history. The fiscal year ended with 78,136 pending charges, a 10 percent decrease from FY 2010 (and the first such reduction since 2002).

Race charges were the most common claims filed in 2011 (36%), followed by sex (29%), disability (25%) and then age (23%). National origin, religion and Equal Pay Act claims all registered less than 5% of all charges filed.

“I am proud of the work of our employees and believe this demonstrates what can be achieved when we are given resources to enforce the nation’s laws prohibiting employment discrimination,” said EEOC Chair Jacqueline A. Berrien.

The major takeaway in all this? Be especially diligent about training your employees and managers on proper, non-discriminatory behavior and document, document, document. The bad economy may be driving the bump in discriminatory charges. And unless the economy picks up in 2012, this trend may continue.

Survey reveals doubts that businesses are doing enough to prevent discrimination and identity theft

Today's post comes from G.Neil's HR News Weekly:

According to a recent survey of 1,000 people for the Chubb Group of Insurance Companies, approximately one out of every three Americans has concerns that businesses are:

•    Protecting employees from gender discrimination – 30%
•    Guarding employees from other forms of workplace discrimination – 32%
•    Shielding consumers from theft of personal information – 32%

Chubb executives offered an explanation for the survey results, as well as precautions for businesses operating in such a legally sensitive and tech-driven environment.

Pointing out that a record-high number of discrimination charges have been filed with the EEOC, Catherine Padalino, vice president and employment practices liability product manager for Chubb, advised, “ … employers should continually review and adhere to anti-discrimination and anti-retaliation policies and procedures, keep abreast of changes in employment laws and seek outside counsel when facing discrimination charges or considering employee layoffs.”

Regarding potential cyber breaches, Tracy Vispoli, senior vice president and Chubb’s worldwide cyber security liability manager, shared, “A company’s board of directors needs to understand the risk associated with the theft of employee and customer information. This is more than just an IT issue. Although companies can help mitigate the risk by following best practices, they also need to have contingency plans in place before a data breach occurs.”

Train your staff to prevent harassment and protect your business from legal claims with Harassment-Free Workplace – Take Control, an easy-to-use, four-module DVD training program.

Top 3 employment law trends to keep on your radar

Running a business these days is certainly no picnic, thanks to the still-struggling economy and near-constant employment law risk. Management must maintain that perfect balance of awareness and action - or find themselves on the receiving end of a costly, potentially crippling lawsuit.

According to Shanti Atkins, Esq., president and CEO of ELT, the biggest employment law concerns plaguing employers today are:

1) Discrimination. And the claims aren't predominantly sexual harassment anymore, but also sexual orientation, religious and disability discrimination. Are your anti-harassment and anti-discrimination policies in order and, even more important, are you training your managers and staff - thoroughly and regularly?

2) Violence and bullying. Did you know that approximately 20 percent of all violent crime occurs in the workplace? This is no time to ignore bullying and other threatening behavior that could escalate into something more dangerous. Be on the lookout for early warning signs and encourage employees to report concerns immediately so that you can respond appropriately.

3) Wage and hour violations. Perhaps the biggest risk of them all, wage and hour class action lawsuits have expoded. In fact, these claims account for a whopping 84 percent of all employment class action lawsuits. Just as alarming, the Department of Labor (DOL) estimates that more than 80 percent of employers are out of compliance with federal and state wage and hour laws. Not knowing is no excuse. Make sure you're educated on the latest Fair Labor Standards Act (FLSA) guidelines and that you carefully explore any gray areas.

Passing over the unemployed would be unlawful under new bill

Today's post comes from G.Neil's HR News Weekly:

Being out of work is hard enough. Not getting work because you’re out of work is even harder.

If a proposed bill is passed, employers will have a legal obligation to guard against this very situation. Shortly after the Equal Employment Opportunity Commission (EEOC) held a public hearing on unemployment discrimination, Rep. Henry Johnson of Georgia introduced a bill that would make this type of discrimination unlawful.

The Fair Employment Act of 2011 would add “unemployment status” to the list of protected classes under Title VII of the Civil Rights Act. Specifically, “unemployment status” is defined as “being unemployed, having actively looked for employment during the then most recent 4-week period, and currently being available for employment.”

Regarding the bill, Rep. Johnson stated, “Employer discrimination against unemployed job applicants is fundamentally wrong. With unemployment at about 9 percent and with nearly 14 million Americans out of work, this discrimination will only prolong the crisis.”

Check back here for updates on the proposed bill.

In a weak economy, discrimination charges strengthen

Not good. Not good at all. According to a wsj.com article, workers filed a record number of discrimination charges against employers last year. And once again, the strained economy is to blame.

The number of charges filed with the Equal Employment Opportunity Commission (EEOC) climbed to nearly 100,000 – a 7% increase from the year prior and a 21% jump from 2007.

Joe Trauger, vice president of human-resources policy for the National Association of Manufacturers, a business trade group, explains:

"When times are good, people are happy and when they're not, they aren't. Anytime we go into a recession or the economy gets a little shaky the numbers seem to spike a bit.”

The fact that the EEOC has ramped up its budget and staffing may be contributing to the increase, as well. With more resources to work with, the agency is working harder to educate employees about their workplace rights while also making their services more user-friendly and accessible.

Apparently workers are getting the message. They’re quicker to recognize discriminating behavior and take legal action when they feel they’ve been wronged.

The message, then, for employers is to ensure a harassment-free workplace supported through clear workplace policies, strict adherence to anti-discriminatory labor laws, and ongoing employee and manager training.

Enforcement kicks into high gear - Don't leave your compliance efforts idling!

After shoring up their resources last year, the Equal Employment Opportunity Commission (EEOC) and Immigration and Customs Enforcement (ICE) are flexing their enforcement muscles ... and planning to pack a punch in 2011.

Increased staffing and a sharper focus on enforcement will mean more audits, more investigations into complaints and more inspections in the months ahead.

The EEOC, for example, received a record-high of 99,922 discrimination charges in 2010. Yet because of the EEOC’s expanded resources, the number of pending charges dropped by 14 percent. And that’s not all: Greater claim-processing procedures resulted in the EEOC collecting an all-time high of $404 million from employers last year.

ICE is making its presence known, as well. Last year, the agency conducted more than 2, 200 employer audits, which led to 180 criminal charges. And immigration enforcement continues to be a priority for the Obama administration, with ongoing goals to conduct on-site inspections (particularly businesses that employ workers with H-1B visas) and expose illegal hiring practices.

In light of these recent statistics, it’s never been more important to prevent harassment and discrimination in the workplace (via clear policies, legally sound actions and attitudes, and regular training) and to keep scrupulous I-9 records on all employees. Otherwise, you could find your company on the receiving end of a discrimination lawsuit or I-9 audit.

Changing a job's "essential functions" - ADA loophole or sinkhole?

Ask Woodman’s Food Markets this question and you’ll probably get a resounding “sinkhole.” The Janesville, Wisconsin-based grocery store chain is being sued by the Equal Employment Opportunity Commission (EEOC) for firing a disabled employee who was restricted from lifting more than 10 pounds.

The snag is this: Kimberly McMillan-Goodwin successfully performed the job for years with the lifting restriction. But when she returned from an absence due to injuries in a car accident, she was placed on a one-year leave and then terminated. The company’s explanation? It changed the position, making McMillan-Goodwin no longer able to perform her job with the long-standing restriction. Plus, the company claimed it had no other positions to offer her.

While we don’t know the outcome of the lawsuit yet, the case deserves our attention because it pertains to whether an employer can change the essential functions of a job under the ADA and in turn, fire a disabled individual who was previously qualified. There is a fear that for particularly crafty employers, this could serve as a legal loophole, allowing them to sidestep the accommodation duty under the ADAAA’s expanded definition of “disabled.” Simply change the job description to shut out disabled candidates or existing employees who no longer meet the job’s requirements.

The EEOC’s position in the”changed jobs” case is more clear-cut. “It is unfortunate that some managers still act as if it’s acceptable to deny jobs to people who are ready and able to work, simply because of a disability – especially when the people they put on the street have a history of
long, loyal successful performance,” says John Hendrickson, regional attorney for the EEOC’s Chicago District. “It really runs against most people’s sense of fundamental fairness and, beyond that, it violates federal law.” (eeoc.gov)

October is National Disability Employment Awareness Month. In its support for disabled employees, the DOL’s Office of Disability Employment Policy (ODEP) is promoting the message:

“Talent has no boundaries – Workplace diversity includes people with disabilities.”

Are you doing your part to open doors when hiring and promoting workers with disabilities? Just as important, are your workplace policies in sync with last year’s amendments to the ADA, including making reasonable accommodations for qualified individuals?

Caution! Pulling back the social media curtain could lead to hiring discrimination

The social networking explosion has created an “Age of Transparency” for individuals who share their lives – the good, the bad and the ugly – for the entire world to see. As of January 2010, there were more than 500 million global subscribers to Facebook, with 103 million residing in the U.S. – a leap from 43 million a year earlier or an annual increase of 145 percent! Even more astonishing: The growth rate within the 35-54 age bracket is up 328 percent in the U.S. over the same period. It’s safe to say nearly everyone is doing it.

The ubiquitous use of Facebook and other social networking websites creates opportunities for hiring managers and HR professionals to “peek behind the curtain” with potential hires. While a helpful resource, social networking sites may also pose an HR risk if discrimination comes into play during the screening process.

To make sure you don’t cross any legal lines, consider these tips before scouring social networking sites:

1. Don’t judge a book by its cover. Photos appearing on social networking sites often depict individuals having fun with friends and family and may not always be flattering. Judge candidates on how they present themselves during face-to-face interviews. It’s their professionalism in an office environment that you are concerned with most.

2. Check out LinkedIn for the professional point of view. While Facebook is a friends and family communication portal, LinkedIn is its professional counterpart. Reviewing LinkedIn content will give you a much better perspective of an individual’s career history, skill set and professional presentation.

3. Avoid out and out discrimination. Some managers may dig deep into a prospect’s past, and, in turn, uncover spiritual, political, social or sexual preferences in the process. Using this information and other protected categories to discriminate in the hiring process is unlawful. Some states, like California and New York, have privacy laws preventing employers from interfering with employees’ private lives.

4. Social networking sites don’t always present the facts. Many people provide inflated details about their personal lives to hide certain information or to paint a desirable picture to friends and family. Focus your hiring decisions on resumes, interviews and references to avoid relying on disinformation.

5. Add social networking rules to your company policy. The best practice to avoid misuse of social networking sites is having a written policy that clearly informs hiring managers about what information can and cannot be considered in the review process.

Does your harassment training cover mistreatment of men?

Workplace harassment can rear its ugly head in many different forms. The stereotypical image of harassment as the overbearing male boss making advances on a young, attractive female is a narrow-minded view. And if your training takes this same narrow-minded view, you could be tip-toeing around some legal landmines.

Take male harassment. Last year, the percentage of lawsuits the EEOC filed on behalf of male victims reached an all-time high – amounting to 14% of all cases.

A Seattle Times article explains:

While some cases allege harassment by female supervisors or co-workers, most charges involve men harassing other men. Sometimes it's unwelcome romantic advances. Other times, men are picked on because they are gay, perceived as being gay or not considered masculine enough for the work setting.

As the EEOC handles more lawsuits involving men, it’s also reinforcing the message that this type of harassment is unacceptable and unlawful. Case in point: Last November, the Cheesecake Factory agreed to pay $345,000 to six male employees who claimed they were sexually assaulted by a group of male kitchen staffers at a Phoenix-area restaurant.

Another case in point, this time involving women making unwanted advances toward men: Last year, the Regal Entertainment Group agreed to pay $175,000 to a male employee who claimed a female co-worker repeatedly grabbed his crotch.

While male victims may be less inclined to come forward with their harassment claims for fear of being judged or ridiculed, they shouldn’t be expected to suffer in silence either.

“All sexual harassment victims feel humiliated, lacking control and power," says Mary Jo O'Neill, a regional attorney in the EEOC's Phoenix District office.

How inclusive is your harassment training? Are you taking a broad view of every type of harassment that can surface in your workplace? And more important, are you educating your staff on the attitudes and actions against women and men that can get them in trouble?

DOL and EEOC could receive major financial boost in 2010

The House approved a massive $447 billion spending bill that would provide a significant bump in funding for the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) for fiscal year 2010. The Consolidated Appropriations Act (H.R. 3288), which combines six separate spending measures, passed by a vote of 221-202 on December 10. The bill is now with the Senate and must be passed by December 18 – or extended by a temporary measure to keep it afloat.

Here are a few highlights regarding the proposed funding:

=> $13.3 billion for the DOL, with $1.6 billion earmarked for worker safety and health programs ($121 million more than the amount provided in 2009)

What it means: More financial support for the enforcement and compliance initiatives of the Employment Benefits Security Administration (EBSA), Employment Standards Administration (ESA), the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) – including the hiring of 600 new, full-time employees. Employers could see a greater presence by OSHA, with more inspections, more audits of safety records and more enforcement of required safety standards.

=> $367 million for the EEOC ($23 million more than the amount provided in 2009)

What it means: More funding to ease the backlog of 70,000+ pending employment discrimination cases. The EEOC received 93,277 private-sector discrimination charges in 2009, the second-highest number in 20 years. Employers could see more employee lawsuits coming their way for discrimination based on race, color, national origin, sex, age, religion or disability.

So while we can’t be certain how this bill will play out in the coming months, we do know that President Obama's administration places a high priority on employment and labor law reform, particularly the enforcement of laws designed to protect employees.

Now, more than ever, employers need to step up their compliance and training programs to prevent costly fines and potential lawsuits. In light of this possible funding and renewed enforcement, you would be wise to:

1. Conduct procedural audits and other internal reviews to identify any issues that require immediate action.

2. Review and revise the employment policies in your company’s Employee Handbook and ensure they’re properly distributed. Be certain your policies reflect the many employment law developments in the past year, such as changes to the ADA, FMLA and COBRA.

3. Assess your internal complaint procedures (as well as your employees’ awareness of such procedures). Employees who cannot voice their concerns are more likely to feel powerless and as a result, take legal action against their employers.

4. Provide ongoing harassment prevention and anti-discrimination training to employees and managers. Your company must send a clear message that harassment will not be tolerated in the workplace – and support that message with education on how to recognize and prevent harassment.

5. Maintain up-to-date labor law postings and other specialized, employee-facing posters, which keep your company in compliance and act as a first line of defense in an employee-based lawsuit.

Fast-food giant "burned" for mistreatment of transgender applicant

Although it has a strict policy prohibiting any form of discrimination or harassment in hiring, termination or any other aspect of employment, a McDonald’s in Orlando, Florida, is eating its words due to a former employee who overstepped his bounds.

In a complaint filed by the Transgender Legal Defense and Education Fund (TLDEF) before the Florida Commission on Human Relations, 17-year-old Zikerria Bellamy claims she was not hired by the fast-food restaurant because she was a transgender.

When Bellamy filled out the application at the Orlando location, she did not check off the box that asks whether the applicant is male or female (a voluntary question that states, “failure to respond will not subject you to adverse treatment”). Later, when she went in for an interview, she was forced to check off the box indicating her gender. And then, to make matters worse, she received this damaging voicemail: "You will not get hired. We do not hire (expletive). You lied to me. You told me you were a woman.”

McDonald’s quickly defended its position – and policies - forbidding this type of behavior:

"The behavior of the individual in question is not reflective of the employment policies in the organization. Further, this individual acted outside the scope of his authority and was not responsible for hiring.”

Not surprisingly, the individual in question is no longer employed by the restaurant.

Is your company doing enough?

According to the New York-based TLDEF, nearly 50 percent of transgender people in the United States have been fired or refused a job because of their transgender status.

While federal law clearly protects employees and applicants from discrimination based on race, color, religion, sex and national origin under Title VII of the Civil Rights Act of 1964, it doesn’t offer similar protections on the basis of sexual orientation or gender identity. Protection runs deeper on a state level, however, where almost half the states and the District of Columbia have enacted laws prohibiting sexual orientation discrimination in public and private employment. And earlier this year, Rep. Barney Frank (D-Massachusetts) introduced the Employment Non-Discrimination Act of 2009, a proposed federal law that would prohibit sexual orientation discrimination in the workplace.

Legal requirements aside, many employers recognize that in today’s diverse environment, instituting policies and procedures that prohibit this type of discrimination is smart business.

Preventing sexual orientation discrimination in the workplace starts with understanding current laws, examining your policies and procedures, and training employees to abide by those policies.

For a quick overview of the issues, check out an earlier blog post, Sexual orientation, gender identity discrimination protections gaining legal ground, and the article in our G.Neil library, Sexual Orientation and Gender Identity Protection.

For specific guidance creating gender orientation policies and procedures, read our free whitepaper, Creating a Gender Orientation Policy for Your Workplace (pdf).

Home Depot employee fired over "politically driven" pin that violated dress-code policy

In yet another real-life reminder of why it’s so important to maintain an employee handbook with crystal-clear workplace policies, a Home Depot employee claims he was fired for expressing his personal beliefs though an American flag button he wore on his apron. The former cashier of the Okeechobee, FL, store says he had the right to wear the “One nation under God, indivisible” button, while his employer argues that he DID NOT – and the reason being the company’s written dress-code policy forbidding it.

Whether you feel the pin and its message was religious, political or just patriotic (and as such, acceptable in the workplace) is a matter of interpretation. And it’s because of this sort of interpretation that employee policies exist.

“The issue is not whether or not we agree with the message on the button," says
Craig Fishel, a Home Depot spokesperson. "That's not our place to say, which is
exactly why we have a blanket policy, which is long-standing and
well-communicated to our associates, that only company-provided pins and badges
can be worn on our aprons."

While the employee’s lawyer is suing Home Depot for religious discrimination, the case probably won’t go very far. As Michael Masinter, a civil rights and employment law professor at NOVA Southeastern University in Fort Lauderdale, explains:

"Because it's a private business, not one that's owned and operated by the
government, it doesn't have to operate under the free speech provisions of the
First Amendment."

He clarifies the matter of religious displays and expression, too, for those who feel Home Depot’s pin-banning action was a form of religious discrimination:

“But we're not talking about religious displays here," he said. "This sounds
more like a political message ... Wearing a button of that sort would not easily
be described as a traditional form of religious expression like wearing a cross
or wearing a yarmulke."

As a private business, Home Depot has a right to protect its image by not promoting different employee opinions via pins and badges - opinions that might offend customers who are as diverse as the employees serving them.

Some important details in this case: The employee was first asked to remove the pin. He refused. He was also offered a company-approved pin that said, “United We Stand,” but he declined.

It would appear that Home Depot did everything right, from an HR standpoint, in this situation. They based their actions on company policy, they confronted the employee first (and hopefully documented the exchange) and when all was said and done, the employee refused to cooperate with policy. Thus, the employee was fired.

What do you think? Do you agree with Home Depot’s actions? Please leave a comment - I’d love to hear your thoughts on the matter!

EEOC has beef with meatpacking company that violated civil rights of Muslim workers

The Equal Employment Opportunity Commission has determined that the U.S. unit of Brazilian meatpacking giant JBS SA violated the civil rights of more than 100 Muslim Somali workers in plants in Colorado and Nebraska, unlawfully harassing them and firing them based on their religion.

According to the Reuters article,

"The dispute began last year during the Muslim holy month of Ramadan when the
workers walked off the job after managers denied them a prayer break at sunset.

Supervisors had initially agreed to adjust work schedules to accommodate
the requests by Muslim workers but later reversed their decisions after
non-Muslim workers protested the changes.”

Under Title VII of the Civil Rights Act of 1964 (which prohibits workplace discrimination based on religion, ethnicity, country of origin, race and color), employers must reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship for the employer. Some reasonable religious accommodations that employers may be required to provide workers include leave for religious observances, time and/or place to pray, and ability to wear religious garb.

Yet in the past 15 years, claims of religious discrimination filed with federal, state and local agencies have doubled – spiking a record 15% in 2007. Perhaps as surprising, these numbers are growing faster than claims based on race or gender.

With workplace disputes over religion on the rise, it’s essential that you include diversity awareness and training in your anti-harassment initiatives. Be certain you’re taking active steps to prevent religious discrimination and harassment in the workplace and when necessary, are accommodating employees’ religious beliefs and practices.

Dethroned former Miss California USA sues for religious discrimination

It’s been said that, “Beauty is in the eye of the beholder.” And with former Miss California USA Carrie Prejean suing pageant officials this week, so are claims of religious discrimination. Prejean is suing for libel, slander and religious discrimination, asserting that officials told her to stop mentioning God even before her controversial comments regarding gay marriage.

Prejean was fired from her position as Miss California USA in June, just months after the Miss USA Pageant where she spoke out against same-sex marriage. When asked whether she believes in gay marriage, she replied:

“We live in a land where you can choose same-sex marriage or opposite. And you
know what, I think in my country, in my family, I think that I believe that a
marriage should be between a man and a woman. No offense to anybody out there,
but that's how I was raised."

Was it this response that cost Prejean her crown – and ultimately led to her firing? While pageant co-director Keith Lewis claims Prejean’s termination was due to violation of contract (specifically, unwillingness to make public appearances), Prejean’s attorney, Charles LiMandri, says otherwise. He states:

“Over the past two months we have worked hard to provide overwhelming evidence
that Carrie Prejean did not violate her contract with Miss California USA and
did not deserve to have her title revoked by Keith Lewis. We will make the case
that her title was taken from her solely because of her support of traditional
marriage. Keith Lewis has refused to clear her good name or even to admit any
wrongdoing. Therefore, Carrie Prejean is left with no alternative but to take
her case to court where she expects to be fully vindicated.”

Do you think Prejean has a legitimate case here? Was she truly wronged for expressing her traditional religious beliefs? Or is this a carefully orchestrated publicity stunt that will meet its demise in court?

Regardless of your opinion of the “fallen” beauty queen, when it comes to religion in the workplace, the law is clear: Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Yet in 2009, EEOC received 3,273 charges of religious discrimination, resolving more than 2,700 of these charges and recovering $7.5 million in damages.

As an employer, you must accommodate an employee’s religious beliefs and take active steps to prevent religious discrimination and harassment in the workplace. Start with a careful review of the current laws and your internal policies and procedures. Then, be sure you’re holding all employees and managers accountable for adhering to these policies.

Gerber to pay $900,000 settlement for discriminatory hiring practices

Gerber Products Company in Fort Smith, Ark. will pay $900,000 in a hiring discrimination suit involving 1,912 minority and female applicants rejected for entry-level positions, according to an announcement from the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

From the announcement:

During a scheduled compliance evaluation of Gerber Products in Fort Smith, OFCCP investigators found the hiring disparity was in part caused by inconsistent selection procedures for entry-level positions. Additionally, OFCCP found that Gerber used pre-employment tests that negatively impacted minority applicants and determined that there was insufficient evidence of validity to support Gerber's use of the test. Gerber has discontinued its use of the test in the hiring process for entry-level positions.

The test that Gerber used was the TABE, or Test of Adult Basic Education – a test that is primarily used by adult education centers to evaluate a student’s reading and math skills. Elizabeth Todd, spokeswoman for the Labor Department at Dallas, said the aptitude test, with its pass-or-fail results, “significantly impacted minorities.”

In addition to paying $900,000 in back pay and interest to the applicants, Gerber will:

Provide 61 entry-level positions (11 of whom have already been hired)
Undertake extensive self-monitoring measures to ensure they fully comply with the law when hiring, and promptly correct any discriminatory practices
Comply with Executive Order 11246 recordkeeping requirements

Employers can learn a few lessons from this case, most notably that the OFCCP, which is “responsible for ensuring that contractors doing business with the Federal government do not discriminate and take affirmative action”, can be a strict enforcer of employment discrimination laws. The agency monitors federal contractors to ensure they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veterans’ status.

Further, because recipients of federal funds must adhere to specific information reporting and auditing requirements, their hiring practices can fall under even tighter scrutiny with the OFCCP than with the Equal Employment Opportunity Commission (EEOC). Proper training for your hiring managers is essential, including a careful review of the tests and practices used to screen and select applicants for hiring.

“This settlement … should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination,” said Labor Secretary Hilda L. Solis.

Sexual orientation, gender identity discrimination protections gaining legal ground

On Monday, President Obama recognized a 40-year milestone for the gay civil rights movement in the U.S. at a reception for LGBT Pride Month at the White House.

Obama has been criticized by the LGBT community because he has been slow to act on many of the promises he made during his campaign. However, he told the audience at the reception that his administration has taken steps to ensure equal rights for gay Americans and plans to do more.

From CBS News:

"We seek an America in which no one feels the pain of discrimination based on who you are or who you love," he said.

The president noted that he has signed a memorandum extending some federal benefits to LGBT families and is urging Congress to pass the Domestic Partners Benefits and Obligations Act, which would mean the extension of health care benefits.

He also said his administration is working to pass the Employment Non-Discrimination bill and a hate crimes bill named after Matthew Shepard.

"There are unjust laws to overturn and unfair practices to stop," the president said.

Just 10 days before the White House reception for LGBT Pride Month, Rep. Barney Frank re-introduced the Employment Non-Discrimination Act or “EDNA” (H.R. 2981). The bill makes it unlawful to discriminate on the basis of sexual orientation or gender identity.

EDNA would extend federal employment laws, which already protect individuals on the basis of race, religion, gender, national origin, age and disability, to also include sexual orientation and gender identity.

While lawmakers discuss the fate of the legislation, it may be a good time to take a look at your company’s employee handbook. Until now, most have not been written to include how to address harassment or discrimination based on an employee’s sexual identity or orientation.

Though many are late to get started, some of the biggest U.S. companies are ahead of the game. As of February 2009, 423 (85%) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and more than one-third had policies that address gender identity.

Preventing sexual orientation discrimination in the workplace starts with understanding current laws, examining your policies and procedures, and training employees to abide by those policies. But that’s just the beginning.

For more information on creating gender orientation policies and procedures, read our new free whitepaper Creating a Gender Orientation Policy for Your Workplace (pdf).

Supreme Court limits worker age-bias suits

The Supreme Court handed down a verdict late last week that would give businesses more strength in employee lawsuits alleging age discrimination.

Employees now bear the burden of proving that age was a dominant factor in his or her firing or demotion in order to win a case. Under the Age Discrimination in Employment Act (ADEA), employees have the burden of proving that age was the “but-for” cause of an employer’s adverse decision.

With age-discrimination lawsuits growing at an alarming rate, the 5-4 ruling (Gross v. FBL Financial Services, Inc.) is considered a win for businesses that face age-bias lawsuits. Before last week, workers had to show only that age was a factor in the decision.

"The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age," Justice Clarence Thomas wrote for the majority. He added this legal rule applies "even when a plaintiff has produced some evidence that age was one motivating factor."

Karen Harned, executive director of the National Federation of Independent Business, said the opinion would help companies defend against age-bias claims. "Requiring claimants to show direct evidence that age played a substantial role in the challenged employment decision is the appropriate and fair standard," Ms. Harned said. (Wall Street Journal)

Since the U.S. economy began to slide downward, age discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) have increased by 29%, a jump from 19,100 in 2007 to more than 24,500 in 2008. (Washington Times)

This case involved a lawsuit brought against FBL Financial Group by Jack Gross, under the ADEA. Gross claimed that FBL violated the ADEA when he was demoted and some of his prior responsibilities were given to a younger worker.

Free white paper: Flu in the Workplace

The swine flu is dominating news outlets across the country, as new cases are reported daily. Schools and workplaces are typically considered high risk locations for the spread of viral infections. As an employer, what are your rights and responsibilities when it comes to protecting your workforce from contagious diseases?

The risk of illness spreading in the workplace is nothing new, but you still want to limit the risk to your staff and customers. G.Neil’s new “Flu in the Workplace” white paper explains important legal and ethical issues to consider before you create a policy, including:

The rights of exposed employees
Can an employer order a sick employee to go home?
Application of the Americans with Disabilities Act (ADA)
Discrimination based on ethnicity
Safety obligations and liability for employee exposure
Establishing a safe workplace policy

Download our free white paper and learn how to protect your employees and business from the spread of flu and other contagious diseases.

Workplace discrimination up as economy worsens

The economy is down and, if they haven’t already done so, most businesses are looking for ways to trim their budgets. Though some cutbacks are necessary, new research suggests that this is not the time to pull your diversity programs.

Diversity programs are more important now than ever before, according to a new study by Eden King, assistant professor of psychology at George Mason University. King’s research found that during an economic downturn workplace discrimination tends to increase.

Additionally, those in hiring positions may be less likely to hire a minority job applicant during difficult economic times. Competition for fewer jobs and resources often forces minority groups to the outside, King says.

“The reality is, diversity programs and disadvantaged groups may be the first to go in times of economic uncertainty,” says King. “This causes real problems for people of socially disadvantaged groups.”

As part of their study, King and her team of researchers found that when white women and men were told that the economy might decline and were then asked to evaluate four equally qualified job candidates, they favored the white male candidate. When the group was told that the economy may be on an upswing, they chose the female Hispanic candidate.

"In good economic times, people know they are supposed to support diversity and will tend to hire a minority candidate to get affirmative action points," says King. "But when times are tough, people tend to look out for their own group and isolate outsiders, and that's when discrimination can begin to rear its ugly head."

King noted that managers and human resource professionals should approach prejudice in today’s unstable workplace with caution.

"They need to understand that the short-term solution of cutting diversity programs might ultimately end up costing them even more in the long-run."

New EEOC best practices against caregiver discrimination

The Equal Employment Opportunity Commission (EEOC) recently released an online guide covering employer best practices for workers with caregiving responsibilities.

Along with advice on avoiding discrimination against caregivers the document also provides examples of best practices employers can adopt that go beyond federal non-discrimination requirements to reduce the chance of EEO violations.

This most recent guide supplements a 2007 document on unlawful disparate treatment of employees with caregiving responsibilities. The new EEOC guide outlines added suggestions for employers including suggested language for a written EEO policy addressing caregiver protection and best practices in recruitment, hiring, promotion and conditions and terms of employment.

Among the best practices explained in the new document, the EEOC encourages employers to:

Train managers and supervisors on their legal responsibilities regarding employees with caregiving responsibilities under federal regulations including the Americans with Disabilities Act, the Equal Pay Act, the Pregnancy Discrimination Act, Title VII of the Civil Rights Act and the Family and Medical Leave Act (FMLA).
Develop, distribute and enforce a strong EEO policy that clearly explains examples of discriminatory behavior against caregivers.
Respond to caregiver discrimination complaints efficiently and effectively.
Identify and remove barriers to re-entry for individuals who have taken leaves of absence due to caregiving responsibilities or other personal reasons.
Encourage employees to request flexible work arrangements that allow them to balance work and personal responsibilities.
Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers.

Employee training is your first line of defense to prevent employment discrimination and minimize legal action. Protect your company from lawsuits by educating your employees on their responsibilities when it comes to discrimination and harassment in the workplace.

Without the proper training, employees may be engaging in or condoning unacceptable behavior without even knowing it. The Harassment-Free Workplace -- Take Control is a comprehensive training program that teaches workers how to take responsibility for their own actions. Prevent harassment and protect your business with more tools from G.Neil.

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