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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 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.

Discrimination against job seekers a persistent, national problem

As if the nationwide hiring slump and struggling economy weren't challenging enough, job seekers often encounter debilitating discrimination based on their race, sex, age, national origin or other protected characteristic. This was the conclusion - and source of discussion - by a group of experts in an Equal Employment Opportunity Commission (EEOC) meeting.

EEOC General Counsel P. David Lopez opened the meeting by singling out a hiring case involving Wal-Mart rejecting two deaf applicants. As part of the negotiated settlement (for which Lopez was an EEOC trial attorney), the mega retailer aired a commercial on Arizona television featuring the two individuals telling their story and informing the public about the nation's equal employment laws.

"Unfortunately, discriminatory hiring practices … continue to exist," Lopez advised.

Bill Lann Lee, a former U.S. assistant attorney general for Civil Rights, implored the EEOC to combat hiring discrimination. "Systemic discrimination in hiring today is particularly disheartening to communities where joblessness has put the American Dream on hold," he said.

Lee continues: "Hiring discrimination is a fundamental problem; it often denies more than one employment opportunity, cutting off future opportunities as well."

Among the other participants, Marc Bendick, an employment discrimination researcher for Bendick & Egan Economic Consultants, Inc., shared that unfair hiring practices are especially problematic in the following industries: advertising, construction, firefighting, restaurant, retail, employment placement, financial services, television and film production, and high technology.

Finally, Rae T. Vann, general counsel of the Equal Employment Advisory Council - an organization of major employers - underscored the need to train and monitor staff involved in the hiring process.

EEOC may extend recordkeeping requirements to GINA-covered entities

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

The Equal Employment Opportunity Commission (EEOC) is recommending an extension of the recordkeeping requirements under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to employers and entities covered by Title II of the Genetic Information Nondiscrimination Act (GINA).

To clarify all those acronyms and numbers, what this means is this: The EEOC would like to update the current Title VII and ADA recordkeeping regulations to add references to GINA. According to the EEOC, the proposal wouldn't create additional documents or impose any new reporting requirements. Rather, it would extend the same record retention requirements under GINA that are imposed under Title VII and the ADA.

(As a reminder, Title II of GINA prohibits the use of genetic information to make employment decisions, while also restricting the acquisition or disclosure of genetic information by employers and other GINA-covered entities.)

The EEOC is accepting comments on the proposed rule until August 1, 2011. Check back here for updates.

At long last, the final ADAAA regulations are here

Although the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) went into effect January 1, 2009, the EEOC just recently released the long-awaited final regulations. The new regulations, which are effective May 24, 2011, reflect the more than 600 public comments the Equal Employment Opportunity Commission (EEOC) received from a wide range of stakeholders.

What stays the same: The basic legal requirement that employers not discriminate against individuals with disabilities who are qualified for a job, with or without reasonable accommodations. The final regulations maintain the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.

What changes: How these terms are interpreted – with many more conditions falling under the definition of “disability.” For example, impairment doesn’t necessarily have to prevent or restrict performance of a major life activity to be considered substantially limiting. In addition, episodic impairments, such as epilepsy, are considered disabilities if they limit activity.

“Under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person’s impairment,” the EEOC stated at the time the regulations were announced.

As with the existing ADA rules, you should err on the side of caution. It’s best to assume that most employees with physical or mental impairments are covered under the ADA … and make every effort to cooperate with impacted employees. For guidance on the many nuances of the new ADA rules, check out the handy guide available on the ADA website.

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.

Long-awaited GINA regulations clarify how to prevent genetic information discrimination

On November 9, 2010, the U.S. Equal Employment Opportunity Commission (EEOC) published the final regulations implementing the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA). Title II of GINA is designed to prohibit employment discrimination based on genetic information, specifically restricting employers with 15 or more employees from obtaining and sharing genetic information.

According to the EEOC.gov website: “The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment.”

Specifically, genetic information is defined as:

• Information about an individual’s genetic tests and the genetic tests of family members (including tests that identify a predisposition to a disease, such as breast cancer or Huntington’s Disease)
• Family medical history (often used to determine someone’s risk of getting a particular disease or disorder)
• Requests for and receipt of genetic services by an individual or family members
• Genetic information about an individual or family member’s fetus, or of an embryo legally held by an individual or family member through assisted reproductive technology

In addition to clarifying GINA’s prohibition against requesting, requiring or purchasing genetic information (including guidelines for legal Internet searches), the final regulations include a “safe harbor” provision protecting employers from liability when they use specific language warning individuals not to provide genetic information when submitting health-related information.

To ensure compliance, you should display the “EEO is the Law” posting that the EEOC revised in late 2009. With Poster Guard® Compliance Protection, you can be confident you’re communicating the latest mandatory GINA information via the Federal Easy-Post™ labor law poster. You should also update your employee handbook to include “genetic information” as one of the protected, anti-discrimination categories.

Federal agencies to bump up enforcement in 2010

Last year a number of federal agencies increased their compliance enforcement efforts, including the Department of Labor (DOL), Internal Revenue Service (IRS), Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA) and Department of Homeland Security (DHS). Recent actions by these agencies suggest that this trend will continue in 2010:

• Designed to raise employee awareness of their rights under the Fair Labor Standards Act (FLSA), the recently launched, DOL-sponsored We Can Help campaign will undoubtedly increase the number of employee wage and hour complaints to the agency. The campaign is actively targeting the country’s lowest-paid workers, regardless of citizenship status, and encourages them to submit information, including pay stubs and hours of work, via the agency’s website. In addition, the DOL received a significant uptick in funding for 2010, and is requesting more in its proposed 2011 budget.

• Immigration enforcement is a priority for the Obama administration, and the DHS is following through with plans to conduct 25,000 on-site inspections at companies who employ workers with H-1B visas – an increase of nearly 20,000 over the previous year.

• Secretary of Labor Hilda Solis has promised more OSHA inspections, and employers can expect to see a shift to a more aggressive, citation-based approach from OSHA. Last year, between July and September, OSHA performed nearly 700 inspections and issued over 1,000 violations that resulted in $1.6 million in fines.

Enforcement efforts like the We Can Help campaign and others underscore the importance of maintaining strict compliance with federal regulations, including those covering labor, safety, tax, immigration and employment law. Stay tuned for more updates as they come.

Survey reveals heavy financial burden of class action lawsuits

Based on the sixth annual Workplace Class Action Litigation Report by Seyfarth Shaw LLP – a leading law firm handling complex employment litigation – employers should be aware of several key trends that occurred in federal and state courts last year:

• Class action filings seeking recovery for unpaid wages and 401(k) losses increased. More age discrimination and Worker Adjustment and Retraining Notification (WARN) lawsuits were filed, too, due to workers being displaced in layoffs.

• Wage and hour litigation outpaced all other types of employment-related cases, especially in CA, FL, IL, NJ, NY, MA, MN, PA and WA.

• The Obama Administration’s renewed focus on regulation and enforcement, mostly through the DOL and EEOC, continues to increase exposure for employers.

• Massive settlements were seen in several nationwide class actions, as plaintiffs’ lawyers pushed for greater damages. The top 10 employment discrimination settlements in 2009 totaled $86.2 million, while the top 10 wage and hour settlements reached $363.6 million.

Just one major, costly lawsuit could be devastating to your business. Stay on the right side of the law and reduce your risk with legally compliant products and services – from Poster Guard® Compliance Protection to the latest FMLA, FLSA, OSHA and HIPAA compliance materials.

Looks like we made it - Saying goodbye to 2009 and hello to 2010

So here we are, ushering in 2010 … a fresh, unspoiled year … a blank slate waiting to be filled with new experiences and opportunities. The year ahead feels like that shining, new employee you just hired, coming to you with impeccable credentials and a winning personality. Will the new year, like that new employee, be everything you hoped for?

In addition to wishing you a "Happy New Year" in this first blog post of 2010, I feel like I should express my congratulations, too. Congratulations on enduring a year that was anything but dull, thanks to a lingering recession, the swearing in of a new, Democratic president and heightened labor law enforcement under the Obama administration. Many of you successfully kept your businesses afloat with fewer employees, fewer resources and budgets that were cut to the bone.

Lest you forget your strength and resilience during such trying times, let us take a quick walk down memory lane to revisit the changes that hit employers the hardest in 2009 (and that were covered in HR Forum):

=> New Family and Medical Leave Act (FMLA) rules become effective in January, with expanded military coverage and revised guidelines on determining FMLA eligibility and handling leave requests.

=> In his first piece of legislation as President, Barack Obama signs the Lilly Ledbetter Fair Pay Act into law in late January, an equal-pay bill designed to make it easier for employees to sue for pay discrimination.

=> In response to the nation’s dire economic situation, President Obama signs a $787 billion stimulus package that includes a COBRA subsidy for laid-off workers, hiring incentives via tax credits for certain types of workers and other new HR requirements.

=> Just as most businesses are preparing to update their employment verification practices to incorporate newly updated I-9 Forms, the Department of Homeland Security (DHS) pushes back the scheduled update by two months (to April 3).

=> In late April, Secretary of Homeland Security Janet Napolitano urges employers to aggressively prepare for another outbreak of swine flu to prevent it from becoming a full-fledged pandemic.

=> The U.S. Immigration and Customs Enforcement (ICE) launches a bold initiative in early July as part of its stepped-up enforcement, alerting 652 businesses nationwide that ICE agents will be inspecting their hiring records.

=> Beginning September 8, all federal contractors and subcontractors are required to use E-Verify, a free, web-based system, that compares employee information from the Form I-9 against federal databases to verify a worker’s employment eligibility.

=> Also in September, all businesses covered by HIPAA - or that offer products or services that interact with protected health information – must notify individuals when their health information has been breached, along with updating their HIPAA policies and procedures.

=> In October, OSHA announces a national emphasis program (NEP) on recordkeeping to assess the accuracy of injury and illness data recorded by employers, largely due to unusually low incidence rates in traditionally high-rate industries.

=> The provisions of the Genetic Information Nondiscrimination Act (GINA) go into effect in November, which includes an updated EEOC “Equal Employment Opportunity is the Law” poster – the fifth federal-level posting change in five years.

Awareness and action in 2010

While the new year is starting on a high note – with many experts indicating that the recession is lifting – we can most likely expect a similar level of labor law reform and increased enforcement under the Obama administration in 2010. Check back here often for insights on the latest legal and HR issues affecting your business, including solutions to help you meet every challenge like a seasoned pro.

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.

New Federal EEOC poster released - All covered employers must post to comply!

On October 23, 2009, the Equal Employment Opportunity Commission (EEOC) released the revised “Equal Employment Opportunity is the Law” poster, which includes the new Genetic Information Nondiscrimination Act (GINA) and ADA Amendments Act regulations. The EEOC posting change is mandatory for all covered employers.

Effective November 21, 2009, GINA prohibits employers with 15 or more employees from:

• Using genetic information to discriminate against an individual through hiring, firing, compensation, promotions and other employment decisions

• The collection and disclosure of genetic information

• Retaliation against individuals who exercise their rights under GINA

Now is the time to get into compliance with this mandatory posting update, as well as learn more about GINA and its impact on your business.

When you enroll in Poster Guard® Compliance Protection, you’ll enjoy the promise of complete, worry-free posting compliance – immediately, with the revised EEOC poster and in the future, with automatic posting replacements anytime mandatory changes affect your federal or state postings.

For an overview of GINA and clear explanations of how it affects you as an employer, download the ComplyRight™ Now E-Guide: New Genetic Discrimination Law: What It Means for Employers.

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.

Thanks to ADA, NBA may employ oldest player in history

Alan Rupe is a 59-year-old, 5-foot-ten attorney, who claims he can have his dream job as a professional NBA player and you can too, thanks to the Americans with Disabilities Act (ADA).

His strategy – leverage some recent court decisions “guaranteeing” equal employment rights under the ADA in his favor. All he needs to do is find a mental or physical disability protected under the ADA.

His plan – find an ADA protected mental or physical disability. After proving that he suffers from a covered disability, the NBA will essentially be forced to accommodate his limitations.

Sound crazy? Maybe crazy like a fox…

Take a look at the recent appeals decision of Tobin v. Liberty Mutual. Plaintiff Tobin claimed his bipolar disorder caused a lack of focus and concentration. He couldn’t complete work on time, prioritizing was difficult and stress worsened his symptoms.

After 11 months of Liberty working with Tobin to accommodate his disability, he was fired for “consistent poor performance” that the company said lasted for years. Long story short – Tobin sued. Tobin won more than $1 million.

In another case, Titus v. Home Depot, a store manager suffered an injury on the job that caused permanent damage. The manager requested Home Depot make “reasonable accommodations” for him that included a promotion. The company declined, the manager sued and won.

Under the ADA, employers must “provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.” (EEOC)

“Unless an employer can prove it would suffer “undue hardship” in the operation of the business, the employer is required to provide the requested accommodation,” says Rupe.

As it turns out, the older Rupe gets, the better chance he has at joining the NBA. Like I said, crazy like a fox.

New amendments to the ADA effective January 1, 2009, expanded the definition of disability. And as some experts predicted, reasonable accommodation requests have become more frequent and complicated.

Be prepared to handle and know how to document reasonable accommodation requests with tools like the ComplyRight ADA Administration System. With this supply of ADA forms, information and tip sheets, you’ll be ready to manage employee requests.

With Rupe on the way, maybe the NBA should look into it, too.

Same-sex harassment complaints growing

Dillard’s, Inc. will pay $110,000 and provide significant remedial relief for a same-sex harassment suit in Florida, according to an announcement from the Equal Employment Opportunity Commission (EEOC) last week.

The EEOC claimed that Dillard’s violated Title VII of the Civil Rights Act by permitting a sexually hostile work environment for men at its Fashion Square Mall store in Orlando, Fla. The EEOC charged that a male sales associate and a young dockworker were verbally and sexually harassed by a male supervisor.

The workers accused their supervisor of exposing himself in front of them, making sexual propositions, and making sexually explicit and derogatory comments. According to the EEOC, Dillard’s store managers ignored complaints made by the workers about the harasser.

Dillard’s argued that the store wasn’t liable because the supervisor had been fired and had an anti-harassment policy in place. The court rejected that argument and “found that Dillard's anti-harassment policy could not absolve it of liability if the policy hadn’t been effectively implemented.” (Business Management Daily)

“The EEOC will hold corporate America accountable for failing to prevent and correct employment discrimination,” said Commission Acting Chairman Stuart J. Ishimaru. “Sexual harassment charge filings by men have trended upward over the past decade. Employers must be more vigilant in ensuring that men are not subjected to sexually hostile workplaces.”

In addition to paying $110,000 to the two male victims, the Dillard’s Fashion Square Mall store must:

distribute policies to the workforce on preventing sexual harassment and retaliation;
conduct sexual harassment and anti-discrimination training for all employees;
train employees who are responsible for investigating sexual harassment complaints;
submit to monitoring throughout the decree’s three-year duration;
and post a notice about the resolution of the case.

“Employers must diligently enforce policies to prevent sexual harassment and ensure that managers take same-sex harassment complaints seriously. It is vital to protect both men and women from workplace harassment,” said EEOC Miami Regional Attorney Nora Curtin.

The number of sexual harassment charges filed with the EEOC are up 11% from last year and at the highest rate since 2002. Sexual harassment charges filed by men make up 16% of total charges, a figure that once stood at 12% in the late 1990s.

Sexual harassment is sexual harassment no matter if it’s male-on-female, male-on-male or female-on-female. Even if the harassment doesn’t look exactly like what was taught in the training video, it should still be handled with the same sensitivity and diligence that would be given in any “normal” situation.

According to Mindy Chapman, Esq., of Mindy Chapman & Associates, in a recent Business Management Daily article, companies can learn three major lessons from this case:

Train “it.” Anyone designated in your anti-harassment policy’s reporting procedures needs to know they could be tagged “it” with a complaint. Train them so they know “it.”

Script “it.” The store manager should have responded by saying, “Thank you for letting me know. You are important to us at Dillard’s. I will help you immediately.” Then he should have, in the next breath, contacted the district manager.

Stop “it.” The manager had an obligation that if he saw “it,” heard “it,” or heard about “it,” he should have stopped “it,” but never ignored “it."

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.

Use sexual harassment training as prevention, not punishment

Cracker Barrel Old Country Stores, Inc. will pay $255,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Opportunity Commission (EEOC), the agency announced Thursday April, 9.

Cracker Barrel, based out of Lebanon, Tenn., had allegedly turned a blind eye to repeated sexual harassment incidents at its Cedar Bluff, Tenn. store location. The EEOC lawsuit claims that male managers and other employees made repeated and unwanted sexual jokes and lewd remarks to women.

When the women complained about the sexual harassment to the managers and made calls to Cracker Barrel’s compliant line, the company failed to take any action to stop the harassment.

The company failed to take any action to stop the harassment, even after the women complained about it to managers and to the company’s complaint line, according to the lawsuit.

Under the terms of the settlement, Cracker Barrel must:  

Modify its policies and practices regarding the investigation of sexual harassment claims,
Conduct annual training on sexual harassment and retaliation for all employees for a period of three years
Maintain and report complaints of harassment received for three years
Post the company’s sexual harassment policy and a statement it will investigate anonymous claims of sexual harassment.

Instead of having sexual harassment training be a punishment for your organization, make it a part of your company culture. Empower every employee with the promise that every sexual harassment claim will be taken seriously and that each case will be fully investigated.

Incorporate sexual harassment training into an overall harassment prevention program at your organization to ensure every employee, including managers and supervisors, know how to recognize and prevent harassing behavior.

Unfortunately, many of your employees may be engaging in or condoning sexual harassment without even realizing it. G.Neil’s Harassment-Free Workplace -- Take Control training program helps employees understand how they can “pause, fast forward, rewind and stop” to take responsibility for their own actions.

EEOC accepting public comment on proposed GINA rules

The U.S. Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rule Making on February 25, 2009, implementing employment requirements of the Genetic Information Non-Discrimination Act of 2008 (GINA). The EEOC is seeking public comment on the notice.

“The addition of genetic information discrimination to the EEOC’s mandate is historic, and represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act passed in 1990,” said Acting EEOC Chairman Stuart J. Ishimaru in a press release. “We welcome the opportunity to implement important provisions of this landmark legislation, and to expand the promise of equal opportunity in the workplace for everyone.”

The proposed rule provides additional guidance regarding some of the terms used in GINA. For example, the rule defines “employee” to cover not just current employees, but also applicants and former employees.

It also clarifies that drug and alcohol tests are not “genetic tests,” and invites comments on the scope of the term “genetic test,” specifically, “how the term should be applied, whether the proposed rule should be more or less expansive, and whether it or the preamble should provide examples of what should be included or excluded.”

The proposed rule also specifically mentions that the EEOC will update its EEO poster to include information regarding GINA. Final regulations must be completed by May 21, 2009.

“GINA is an important piece of legislation. As a deliberative body, we want to ensure that the intent of Congress is properly carried out through our regulations. Public comment on this NPRM is a critical part of that process. We look forward to a vigorous and thoughtful review,” said acting EEOC Vice Chair Christine M. Griffin.

The EEOC set up a 60-day public comment period on the proposed rule-making. Comments will be accepted through May 1, 2009.

You may submit comments by accessing the Federal eRulemaking Portal at http://www.regulations.gov. Comments will also be accepted by mail and fax. Read more instructions on submitting comments here.

For more information on the GINA regulations, read:

President signs Genetic Information Non-Discrimination Act

Genetic non-discrimination law includes increased FLSA child labor penalties

Lacking anti-harassment policy, New Jersey employer liable

In a recent court decision, New Jersey employers may be held liable for negligence for an employee’s sexual harassment by a coworker if the business lacks effective anti-harassment policies, even if the employer was unaware of the situation.

The decision in Cerdeira v. Martindale-Hubbell is the first of it’s kind in New Jersey. The court’s ruling makes it fully clear that New Jersey employers can be liable for coworker sexual harassment in “the absence of an anti-harassment policy with effective preventative mechanisms.”

The state’s highest court advises employers wanting to avoid sexual harassment to put five elements in place:

An anti-harassment policy
A complaint structure that allows for formal and informal complaint procedures.
Training that is offered to all members of the organization, but mandatory for supervisors and managers.
Effective monitoring mechanisms, to determine whether the complaint structure is trusted.
“An unequivocal commitment from the top that is not just in words but backed up by consistent practice.”

In 2007 there were 12,510 reported cases of sexual harassment resulting in almost $50 million in monetary benefits for charging parties (not including monetary benefits obtained through litigation), according to the U.S. Equal Employment Opportunity Commission.

“Prevention is the best tool to eliminate sexual harassment in the workplace,” according to the EEOC.

Visit G.Neil’s HR Library for more information on how to handle workplace diversity, discrimination and harassment.

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