EEOC to get more involved with small businesses

Thanks to a new internal task force, the Equal Employment Opportunity Commission will focus on expanding and refining outreach and technical assistance to small businesses. As stated in a mid-December announcement, the Small Business Task Force will “work to find ways in which the agency could better collaborate with the small business community to ensure compliance with federal antidiscrimination laws.”

On its to-do list:

=> Determine how to utilize new technology to broaden outreach
=> Develop technical assistance and training initiatives
=> Identify specialized approaches to aid small businesses owned by women and minorities
=> Pinpoint specialized approaches for micro businesses (those with 50 or fewer employees)
=> Enhance small business information and training on the EEOC’s website

As far as the types of businesses that will be on the EEOC's radar, the agency said the task force will focus on newly established small businesses, as well as those that can't afford lawyers or human resource personnel.

“The Task Force demonstrates our commitment to strengthening the lines of communication with small business owners and educating them about their responsibilities, including the benefits of preventing and resolving discrimination claims,” EEOC Chair Jacqueline A. Berrien said.

At the same time, the EEOC considers the task force to be particularly timely, citing that the nation's economic recovery depends on the ability of the small business community to survive and thrive. If there are new opportunities for the EEOC to better serve small businesses, it wants to identify and act on them.

EEOC to get more involved with small businesses

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.

In a weak economy, discrimination charges strengthen

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.

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

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.

Dethroned former Miss California USA sues for religious discrimination

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.

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

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).

Sexual orientation, gender identity discrimination protections gaining legal ground

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.

Supreme Court limits worker age-bias suits

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."

Workplace discrimination up as economy worsens

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.

New EEOC best practices against caregiver discrimination

Can an employer fire an employee for being too buff?

During a recent conversation with a friend in the HR industry, an interesting story came up about a situation at a past employer. To keep it simple, we’ll call our friendly HR-pro “Jane.” (Note: Names, dates and company information have all been omitted to protect the innocent.)

Years ago, Jane was recruiting physicians for the medical clinic she worked at when she thought she came across the perfect doctor to fill an open position. The applicant filled all the necessary qualifications, was well-educated, well-spoken, energetic and self-motivated. Jane offered the job to the doctor the day after the interview. He accepted and was hired.

After about a week on the job, Jane unexpectedly found the doctor showing off to some of the medical assistants in the employee lounge. The doctor, dressed in scrub pants and an undershirt, was having the medical assistants count off how many one-handed push ups he could complete in one minute. After the push-up routine, he proudly took off his shirt and asked for volunteers to hang on his biceps as part of another strength test.

Jane fired Dr. Muscle a week later and some of the female assistants seemed to be rather upset. However, Jane thought the office was better off without someone revealing their muscles and working out when they should be focused on their job.

While Jane may think she did her office a favor by getting rid of Dr. Muscle, could she have potentially put her clinic in serious legal trouble for the firing? A list of questions ran through my brain:

Can an employer fire an employee for being too buff? Could that warrant a sexual discrimination claim? Behavior is one thing, but what about just looking too hot and that being a distraction to the other employees? Is there a discrimination lawsuit in there? Is it the same for a good looking man or a good looking woman?

According the G.Neil legal team, unless you are a government employer or operate under a contract, your company is most likely an at-will employer. At-will simply means the employment relationship may be terminated at any time for any reason by either the employer or the employee. The only “catch” is that the “any reason” really means any reason except for an illegal one. In other words, you can terminate an employee because of absenteeism, poor work performance or simply because he/she isn’t a good fit for your company. However, you cannot fire someone for being Asian, a female, too old, etc. Firing someone because of race, color, national origin, religion, age, gender, disability or other legally protected characteristic is prohibited by law and may result in a claim of wrongful discharge.

Although there is no law that prohibits discrimination based on personal appearance, appearance-based litigation arises under several discrimination laws. These days employees and former employees are bringing lawsuits, which are in essence appearance-based discrimination claims, alleging violations of the ADA, ADEA, Title VII, and state fair employment statutes. By tying an unprotected physical characteristic to race, sex, national origin, religion, or disability, plaintiffs are able to get their appearance-based complaints in front of a judge or jury.

Can a particular employee be asked/required to cover up more than other employees because of appearance (good or bad)? Possible situations … large breasts, ugly scars, big muscles, deformities, etc. Is there a level of distraction that could justify such a request as part of a legitimate business need on the part of the employer?

Employers generally have the right to establish dress code and appearance standards for appropriate business reasons. Common business reasons include sustaining a positive public image, promoting productivity, and complying with health and safety standards. Legal claims can arise when an employer enforces dress code or appearance standards that are not business-related or applied uniformly, or when the standards affect one group of individuals more than another, in violation of federal or state anti-discrimination laws.

In some cases, a company might be required to make an exception to its established dress code or appearance standards for legal reasons. For example, employers are required to reasonably accommodate an employee’s religious beliefs and employees generally should be permitted to wear head coverings, religious insignia and other tokens of faith. Religious accommodations are not required, however, if they present a safety risk, public health concern, or other undue hardship on the employer. For example, employees may be prohibited from wearing long hair or flowing garments near machinery, or they may be required to wear hats or ponytails in a food service establishment.

We know that firing an employee is never an easy thing to do, but knowing how to handle each stage of the process can make it go much smoother. The ComplyRight How to Fire Anyone: Your Guide to Fair and Legal Terminations will give you a clear explanation of the legal do’s and don’ts when it comes to firing employees.

Can an employer fire an employee for being too buff? Leave a comment and let us know what you think.

Can an employer fire an employee for being too buff?