Cynet Systems, an IT and engineering staffing company, had a viral mess on its hands over the weekend after it posted a job that asked for candidates, âPreferably Caucasian.â
Your job listing for a mid-senior level business development positionâs top qualification is âPreferably Caucasianâ
How could you POSSIBLY think thatâs okay?
Uh, hey, itâs very, VERY not OK.
Her tweet, at the time of publication, received 11,249 likes, 6,752 retweets, and 622 comments.
It took Cynet Systems 44 hours(!) to respond, with this tweet:
Cynet apologizes for the anger & frustration caused by the offensive job post. It does not reflect our core values of inclusivity & equality. The individuals involved have been terminated. We will take this as a learning experience & will continue to serve our diverse community.
Its CEO, Nikhil (Nick) Budhiraja, initially tweeted that the job posting was a âterrible mistake,â and that the person responsible had been sent for retraining. Apparently, someone told him that the company needed to take a stronger stand against racism, because that tweet no longer exists, and âsent for retrainingâ is now âterminated.â
A few thoughts.
First, what the holy hell? Do we not know better in 2019 (not to mention, 2009, or 1999, or 1969 ⌠or, really, ever) that we canât advertise jobs for âCaucasiansâ? This is HR 101. There should not be any lesson that needs to be taught here, period.
Second, you can prefer age, sex, religion, or national origin, but only if itâs a bona fide occupational qualification for the position. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission, of the employerâs business. A classic example of a BFOQ is safety-based mandatory retirement ages for airline pilots. Race or color, however, can never, ever be a BFOQ.
Third, this is not a training problem. If your recruiters do not know that they cannot prefer white candidates, they should not be recruiting for you.
Finally, 44 hours is way too late to respond to a 2019 crisis. When a story goes viral, your company needs to get out in front of it immediately. As bad as this crisis is, Cynet Systems made it that much worse by waiting almost two full days to publish its response. Cynet Systems has now been labeled as a racist company. The offensive job posting certainly created that perception, but its 44-hour delay in responding let the story, and the perception it created, percolate and fester. Every hour you let a viral story go un-responded-to adds time exponentially to undo the harm, if it can ever be truly undone.
So let this be a lesson to you and your business. Know whoâs hiring for you, know what they are posting and do not wait to respond to bad press or bad social media.
Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned it in 1905.
It translates variously as the slow process, the lingering death, or slow slicing. It’s more commonly known as “death by a thousand cuts,” in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.
On April 24, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.
Management-side employment lawyers will herald this decision, along with Epic Systems v. Lewis (which held that agreements that compel employees to waive their rights to file or participate in class or collective actions and individually arbitrate their claims are valid under Section 7 of the National Labor Relations Act), as the death knell for wage/hour and other employment law class and collective actions. And, they are probably right. But, is this result a good result for employers?
Also, however, consider whether by preventing employees from litigating claims as class or collective actions you are inflicting lingchi on your business. Yes, class actions are large, and unwieldy, and expensive. But they also offer the opportunity for finality. You will resolve the issue in one lone (albeit large) case. Alternatively, if you require employees to litigate their wage/hour claims (for example) in individual lawsuits, instead of facing one claim, you will expose your business to dozens, or hundreds, or thousands of individual claims, each carrying with it a small amount of damages for unpaid wages, and a large exposure for an attorneys’ fee award in each case. And while attorneys’ fees are the number one risk factor for employers in wage/hour class and collective actions, would you rather expose yourself to one potential award of fees, or dozens, hundreds, or thousands? And, don’t forget about arbitration fees, which, often times, employers are contractually obligated to pay in full.
So, before you jump on the class-action waiver bandwagon, talk to your employment lawyer and consider whether it’s really in the best interest of your business. Do you want one larger cut, or thousands of smaller ones?
Facebook and SAP announced integration that will allow SAP SuccessFactors to distribute job postings through the social networking site.
Specifically, users of SuccessFactors Recruiting can choose Jobs on Facebook as a source, then market their openings to Facebookâs community along with any other outlets selected for a particular posting. In addition, the integration provides analytics to measure performance at each step of the recruiting process.
For SuccessFactors, with its 6,700 customers and 100 million users, the partnership is a logical move to expand the reach of its recruiting tools. However, it isnât clear how well the needs of SAPâs enterprise customers align with Facebookâs largely consumer audience.
Jeff Mills, director of solutions marketing, SuccessFactors.
âThe consensus seems to be that Facebook works pretty well for SMBs whose primary web presence is their Facebook company page, and/or companies that are hiring in sectors like hospitality or skilled trades,â said Jeff Dickey-Chasins, principal of JobBoardDoctor LLC, which consults with job board providers on a variety of issues. âLinkedIn definitely has the edge for white-collar workers, and its tools for recruiters are much more robust.â
Jeff Mills, SuccessFactorsâ director of solutions marketing, has a different perspective. Many of his customers, including large enterprise organizations, have expressed interest in posting jobs on Facebook. âI do not agree that [Facebook] is best-suited to small, local businesses,â he said. â[Larger companies] are tapping into it more because it is a cost-effective way to reach a local audience.â
To Dickey-Chasinsâ point, LinkedIn has an impressive presence in online recruiting. The site reports offering 20 million job postings, and says they result in an average of 4 million hires each year.
While Facebook doesnât share its number of jobs available, in October 2018 it had filled more than 1 million positions since launching Jobs on Facebook in February 2017.
In any case, integration between HR technology vendors and sites like LinkedIn, Facebook or Indeed are common, Dickey-Chasins said. For one thing, they improve the candidate experience. When a product like SuccessFactors integrates with services that act as job-posting distributors, âthat makes things easier for the candidate, which in theory should improve the successful apply rate,â he said.
A Question of Audience
Integrations like this may be more important to SuccessFactors and its competitors than they are to Facebook, observers say. For one thing, âthe talent acquisition suite provider is a small fry in comparison to the whole audience that Facebook captures,â said Nikki Edwards, principal research analyst for HR outsourcing at NelsonHall.
Jeff Dickey-Chasins, principal, JobBoardDoctor LLC.
On top of that, Dickey-Chasins suggested these partnerships donât necessarily work to Facebookâs advantage. âFacebook wants to build an environment where its users never have any reason to leave, so an external integration is, to a certain degree, a negative for them,â he said. âTheyâd rather control the entire hiring process on their end.â
Facebook doesnât see it that way. Jackie Chang, head of Business Platform Partnerships at Facebook, said the social network will âcontinue to identify strategic companiesâ in order to help businesses hire and people find work. âWeâre looking to grow these partnerships,â she said. âWe know many businesses are already working with HR solutions providers to manage their hiring needs and we want to make it easier for businesses to tap into the tools they already use, and help more people find jobs.â
In their publicity and marketing, HR solutions providers usually focus on how integrations offer customers a wider range of job-posting options. But just how much value end users realize depends on how sophisticated they are about the integrationâs benefits, said Edwards.
âWhether the customers/users really care will depend on how savvy they are about the benefits these integrations can bring, and whether theyâre using the [talent acquisition] suite to its full potential,â she explained. âOften, users are not.â
Both recruiters and analysts expect companies like SuccessFactors to continue integrating its services with the Facebooks of the world. Many platforms already have integrations in place, Edwards noted. SuccessFactors, Mills said, has integrations with âmost major job boards in major markets.â
While she wouldnât disclose how many partnerships Facebook has, Chang said the social media giant is working with JazzHR, Talentify, Workable and other vendors in addition to SuccessFactors.
Party City has agreed with the EEOCÂ to pay $155,000 to settle an ADA lawsuit the agency filed on behalf of a rejected job applicant on the autism spectrum and suffering from severe anxiety.
According to the lawsuit, the individual had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including working and applying for a job. These services included a job coach.
When the Party City interviewer learned that the woman accompanying her to her interview was a job coach, the EEOC alleged that his entire attitude changed.
The hiring manager told the job coach that Party City had hired people with disabilities with job coaches in the past and that it had not gone well, and made disparaging comments about those empÂloyees. Although both the applicant and the job coach explained to the hiring manager that the applicant had been successful shadowing others in previous retail jobs, the hiring manager was uninterested in either the applicant’s abilities or in the limited role the job coach would play. ⌠The hiring manager tried to cut the interview short by telling the job coach in a patronizing tone, “Thank you for bringing her here,” while the applicant was still in the room. The hiring manager also stated, in the applicant’s presence, that the Party City employee who had encouraged the applicant to apply would hire anyone, and would “even hire an ant.”
Per EEOC regional attorney Jeffrey Burstein, “Federal law requires employers to consider disabled job applicants based on their abilities, not on demeaning stereotypes.” Adds Kevin Berry, director of the EEOC’s New York District Office, said, “Allowing this applicant to work with a job coach in her early weeks of employment would not have caused an undue burden on Party City. The ADA requires employers to make this type of reasonable accommodation so as to enable qualified people with disabilities to join the workforce, which is a win-win for everyone.”
Four takeaways from this lawsuit and settlement:
An employer’s obligation to consider and offer reasonable accommodations does not just extend to employees, but also to applicants. Employers cannot shirk their ADA responsibilities just because the person needed the accommodation is just an applicant.
Past bad experiences with other employees or applicants are not a valid reason to deny a reasonable to a current employee or applicant. Reasonable accommodations are individualized, and must be considered on an individual-by-individual basis. Telling someone that you can’t offer an accommodation because of past bad experiences with others is a recipe for an expensive (and difficult to defend) lawsuit.
A job coach is potential reasonable accommodation you must consider when presented by a disabled employee or applicant. You have to then engage the individual in the interactive process and determine how to offer that accommodation, if possible.
Party City did the right thing by recognizing that it mishandled this applicant and settling this lawsuit through early mediation. It could have avoided the whole problem, however, by ensuring that those involved in hiring for its stores understand their reasonable accommodation obligations to disabled applicants. Indeed, I’d go so far as to say that no one should be doing any interviewing or hiring without ADA and reasonable accommodation training. This risk is just too great.
So meet, ROBERTa! Shopping in the womenâs department for a swimsuit at the BR Target. For all of you people that say you donât care what bathroom itâs using, youâre full of shit!! Let this try to walk in the womenâs bathroom while my daughters are in there!! #hellwillfreezeoverfirst
Suppose you own a company, and one of your employees posts this rant on her personal Facebook page.
Further suppose that in addition to owning the company, you are also a lesbian and take offense to the employee’s views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?
The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.
The court held that under its own precedent, O’Daniel could not move forward on her claim.
O’Daniel claims in essence that she was retaliated against because she “opposed” discrimination perpetrated against her on the basis of her heterosexual orientation.⌠Title VII in plain terms does not cover “sexual orientation.” ⌠Because the law in this circuit is clear, we cannot accept O’Danielâs ⌠suggestions that this panel either overrule the precedents or assume arguendo that the “trend” has upended them.
Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee’s complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: “Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits.”
Two points to make about this opinion.
First, if Title VII equates LGBTQ discrimination to “sex” discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.
Second, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: “Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity.”
If the employee ranted against interracial marriage, and the company’s African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee’s right to express bigoted views on her personal Facebook page or otherwise.
Before you pull the trigger, ask yourself, “Is this employee going to perceive that the decision was fair.” Did the employee have notice of the issues that caused the termination? Had the employee recently complained or otherwise engaged in protected activity? To look at this issue another way, mock-jury your decision. If the employee lawyers up and sues, will a jury think your decision was fair? If jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much more likely to find in the employer’s favor.
Do not mistreat the employee at the time of termination. Terminated employees deserve a face-to-face discussion. At all costs, avoid firing by a letter, phone call (or, worse, voice mail), email, text message, Facebook post, Tweet, or any other not-in-person communication. Do not “perp walk” a fired employee. Some employees deserve to be shown the door swiftly and coarsely. They stole, they harassed someone, or they assaulted someone. For most terminationsâthe “you’re not a good-fit,” the “it just isn’t working out,” the “we’re going in a different direction”âyou want to do what you can to avoid litigation, or the employee trashing you on Glassdoor and other review sites. And not perp walking the fired employee is a great first step.
Offer the employee some explanation for your decision, but understand that if sued, you better be able to back that decision up, else a judge or jury might find your decision to be pretext for an unlawful reason. Offering no reason leaves an employee to scratch their head, which takes us right back to point 1 aboveâ”If they don’t have a reason (or won’t tell me the reason, is this decisions fair?” Offering too detailed of a reason could lead to issues of proof in litigation down the road, and could open turn your conversation into a debate (which is the last thing you want). Instead, look for the Goldilocks reasonâthe “just right” amount of an explanation so that the employee understands the rationale. If you’ve previously communicated to an employee documented performance issues, there is no point in rehashing them at termination. It accomplishes nothing and can be perceived as cruel. Instead, simply remind the employee that you’ve previously discussed the issues, which have not improved. Further, the more detail you provide, the more penned in you will be in later litigation. Your goal is to be honest with the employee, yet, in the event of litigation, provide your counsel with the most flexibility to support the termination.
In all but the most egregious of terminations, offer a soft landing through a severance package ⌠but only in exchange for a release of claims by the employee. Some employees deserve nothing (theft, harassment, etc.). But, most should walk out the door with something. While you are not under any legal obligation to provide severance to any employee (unless you have a plan or policy that says otherwise), there is a lot of value in getting their signature on an agreement in which they promise not to sue you. It’s closure, for both you and the employee, and helps create that little bit of good will at the end of the relationship.
The bottom line? Firing an employee the wrong way â a termination text message, a perp walk, and zero dignity â leads to bad feelings, which leads to expensive and time-consuming lawsuits.
What are your top tips for the “best” way to fire an employee? Leave your thoughts in the comments below, @ me on twitter with the hashtag #terminationtips, or on LinkedIn by posting a comment in this thread.
How can a manager become measurably more effective?
To answer this question, scholars, scientists and leaders have studied personality traits; others have tried to understand and categorize management styles. While these studies yield appealing insights, they are difficult to emulate. Evidence is lacking that these approaches to managerial effectiveness have enabled managers to markedly improve their personal influence and results.
In our own efforts to help managers improve effectiveness, weâve focused our study on crucial moments â those moments where a managerâs communication has a profound and disproportionate effect on results. In moments when the stakes are high, do managers remain calm, collected, candid, curious, direct and willing to listen? Or do their direct reports describe them as the opposite: upset, angry, closed-minded, rejecting, even devious? And how does either style under stress affect results and relationships?
Our latest research confirms, yet again, that the way a manager performs in these crucial moments has a disproportionate effect on their personal influence and their people. The research also shows, however, that a shockingly large majority of managers and leaders buckle under pressure.
We asked more than 1,300 employees to describe their leaderâs style under stress and the impact of that behavior. According to respondents, one in three leaders are seen by their direct reports as someone who fails to engage in dialogue when the stakes get high. Specifically:
53 percent of leaders are more closed-minded and controlling than open and curious.
45 percent are more upset and emotional than calm and in control.
45 percent ignore or reject rather than listen or seek to understand.
43 percent are more angry and heated than cool and collected.
37 percent avoid or sidestep rather than be direct and unambiguous.
30 percent are more devious and deceitful than candid and honest.
This is significant because itâs these nonroutine moments that define you as a leader. In difficult, highly charged situations, some managers react emotionally and aggressively while others became silent and withdrawn. These responses damage relationships and undermine the work being done.
One executive we worked with was adamant and deliberate about creating a fun and supportive atmosphere where his team felt safe to try new things. He saw his role as building people. And yet, to his surprise, most of his team labelled him a âjerk.â As we described a situation his team found particularly âjerky,â he said, âYouâre probably thinking Iâm some sort of hypocrite. But Iâm not. Ninety-five percent of the time, Iâm the fun, supportive guy Iâve described. Itâs only the 5 percent when I lose my temper that I say stupid things. Those statements are not an accurate reflection of who I am.â
And while it was true that his team agreed he was great 95 percent of time, it was also true that this nonroutine behavior was what left a lasting impression. His team felt those few moments when stakes were high and the heat was on revealed the truth about who he really was.
A leaderâs unsavory behavior in stressful moments does more than harm his or her personal influence â it also hurts the team. When asked how their leaderâs style impacted their results, respondents said that when their leader clams up or blows up under pressure, team members have lower morale; are more likely to miss deadlines, budgets and quality standards; and act in ways that drive customers away. They also described negative impacts on morale and psyche. Specifically, when a leader fails to practice effective dialogue under stress, team members are more likely to consider leaving their job; more likely to shut down and stop participating; less likely to go above and beyond in their responsibilities; and more likely to be frustrated, angry and complain.
Luckily, there are managers who handle themselves under pressure differently from the rest. In high-stakes situations, they remain calm and respectful. They donât skirt or minimize issues. They are direct, but their behavior invites others to contribute their concerns and ideas. By doing so, they surface the most accurate, complete information; they better understand problems; they formulate with others the best solutions; and they act together with greater unity and conviction. This, in turn, creates better relationships and results.
Another silver lining? A managerâs ability or inability to deal with high-stakes, stressful situations has nothing to do with age or gender. Neither factor correlated with the skills and behaviors of dialogue under pressure. The ability to stay in dialogue when stakes are high is not dependent on genetic or inherent factors. Rather, these are skills anyone can learn and adopt to not only be more personally effective and influential, but to better lead a team to success.
Here are a few tips managers can use to improve their communication style under stress and see better results from the people they lead.
Speak up early. When we anticipate stress or pressure, most of us decide whether or not to speak up by considering the risks of doing so. Those who are best at dialogue donât think first about the risks of speaking up. They think first about the risks of not speaking up. They realize if they donât speak up early and often, they are choosing to perpetuate and often worsen the situation â and their reaction to the situation â as they begin to work around the problem.
Challenge your story. When we feel threatened or stressed, we amplify our negative emotions by telling villain, victim and helpless stories. Villain stories exaggerate othersâ negative attributes. Victim stories make us out to be innocent sufferers who have no role in the problem. And helpless stories rationalize our over- or under-reactions because, âThere was nothing else I could have done!â Instead, take control of your emotions by challenging your story.
Create safety. When communicating while under pressure, your emotions likely hijack your positive intent. As a result, others get defensive to, or retreat from, your tirade. As it turns out, people donât get defensive because of the content of your message, but because of the intent they perceive behind it. So, when stressed, first share your positive intent. If others feel safe with you, they are far more open to work with you.
Start with facts. When the stakes are high, our brains often serve us poorly. To maximize cognitive efficiency, we tend to store feelings and conclusions, but not the facts that created them. Before reacting to stress, gather facts. Think through the basic information that helped you think or feel as you do, and use that information to realign your own feelings and help others understand the intensity of your reaction.
Managers who can effectively hold crucial conversations outperform their peers. As an organization collects a critical mass of these effective managers, it has a profound effect on successful execution of initiatives, financial agility and overall performance.
David Maxfield is a New York Times best-selling author, keynote speaker and leading social scientist for business performance. He leads the research function at VitalSmarts, a corporate training and leadership development company. Comment below or email editors@workforce.com.
Tinsley was so stressed that even something as simple as her co-workers at Caterpillar Financial Services bouncing stress balls off the ground would trigger her post-traumatic stress disorder.
Tinsley, who worked as a business system analyst for Caterpillar Financial, believed that the stress of her job was causing her to suffer adverse health issues. She emailed her supervisor, Paul Kaikaris, asking to be removed from a particular project, claiming that her “many [work] responsibilities ⌠[were] causing [her] to be stressed beyond what [she was] physically able to handle,” which “negatively impact[ed her] work, sleep, and overall health.”
Kaikaris met with Tinsley and said he would see what he could do to take work off her plate. Six days later, however, Tinsey submitted a doctor’s note requesting four days off for a “confidential medical condition.” Upon her return, Kaikaris, good to his word, met with her and reassigned some of her projects.
Her job performance, however, continued to suffer. Kaikaris informed Tinsley that she was not following the prescribed methodology for completing her work, the quality of her work was subpar, and she had been leaving work early without prior approval. A poor formal mid-year review and a performance improvement plan followed.
In response, Tinsley claimed that Kaikaris rated her poorly and assigned the PIP in retaliation for her complaints that he had enabled a “hostile work environment” by permitting co-workers to bounce stress balls off the ground. Thereafter, Tinsley began submitting doctors’ notes ad seriatum requesting more time off for “mental and emotional duress brought on by an over-excessive workload, unrealistic deadlines, a hostile work environment and a manager’s reckless indifference to [her] mental and emotional well-being.” Those notes culminated in the company granting a five-week FMLA leave of absence.
At the end of Tinsley’s FMLA leave, her doctor cleared her to return to work “at full capacity.” However, because of her “post-traumatic stress disorder,” her doctor recommended that Caterpillar Financial return her “in a different work environment and specifically under a different manager.” The company refused the transfer or managerial change, but did permit her to take an additional eight weeks of medical leave (totaling 18 for the year).
At the end of that leave, and with Tinsley still insisting on a new manager, Caterpillar Financial decided that it had enough. It told her that it could not accommodate her “confidential” medical condition and that it did not believe that her request for a transfer to a different supervisor was a reasonable accommodation.
Tinsley has asserted that her impairment (PTSD) impacted only the major life activity of working.⌠Thus, we must now examine whether Tinsley’s PTSD sufficiently limited her ability to perform a class of jobs or a broad range of jobs. The evidence demonstrates that it did not.⌠[T]he record is replete with undisputed evidence showing that Tinsley’s issues stemmed directly from Kaikaris’ management style as opposed to the responsibilities of a broad range of jobs. The clearest example of this is when Tinsley told Human Resources that she would be able to continue in the same position so long as she was under the direction of a different supervisor because her disability was triggered by “the way [Kaikaris] managed ⌠with all the balls bouncing.” ⌠Tinsley’s diagnosis does not limit her ability to work a broad class of jobs; rather, it relates solely to her ability to work under a specific manager. Accordingly, she is not “disabled” pursuant to the ADA and was thus not entitled to a reasonable accommodation of additional time off or a transfer.
The ADA covers working as a major life activity. However, for an employee to be “substantially limited” in that major life activity, it is not enough to be unable to perform the specific job. The employee must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”
This court reached the absolute correct result. It wasn’t that Tinsley couldn’t work as a business system analyst but that she just could not work under Kaikaris. Her own doctor said as much when he released her to return to work “at full capacity.”
If faced with a disabled employee claiming a substantial limitation in their ability to work, examine the request carefully. The ADA’s coverage of disabilities is broad. However, it is often difficult for an employee to establish “working” as a substantially limited major life activity. And, unless the employee cannot work in a class or broad range of jobs, the ADA does not cover them and you don’t have to offer to accommodate.
I recently received a pitch about how Amazonâs Alexa now has a âHIPAA-compliant upgradeâ through which people can book appointments, ask health care questions and check on the status of prescription deliveries. The immediate reaction of my editor and me was, âHow can this possibly be HIPAA-compliant?â
I bring this up because Iâve also recently read a Washington Post article about a pregnancy tracking app that claims to be HIPAA-compliant. And there was a lot to unpack here. From a patient advocacy perspective, a lot of scary things to unpack.
Before I get into that, a quick anecdote from my high school years. My dad gave me some job advice Iâve never forgotten. Watch out for yourself and if you want to quit, donât feel guilty about leaving a company you donât want to be working at anymore. If the tables were turned and the company had to sack a bunch of people, itâd feel no guilt about letting you go. It would make a non-emotional business decision. Employers mostly watch out for themselves, and employees should too. Loyalty can only go so far.
I know that many employers tout a âculture of healthâ nowadays and make broad claims about how much they care about the health of their employees. As a benefits and health writer, I donât buy that. Not for nefarious reasons, but because I know that at the end of the day, itâs all about the business. Thatâs their No. 1 priority. Just like my career should be my No. 1 priority. To believe otherwise is naĂŻve.
Iâd argue that this self-interest extends to health plans. As this Washington Post article stated, âThe real benefit of self-tracking is always the company. People are being asked to do this at a time when theyâre incredibly vulnerable and may not have any sense where that data is being passed.â
How can employers benefit from self-tracking? Through digital health apps that employees sign up for, employers could access aggregate data of employee health; the data is âde-identified,â which means itâs stripped of information like name, social security number and email addresses that could be used to identify the patient. Employers who donât pry into these anonymous identities can still use this data to understand the overall health of its organization and identify issues that afflict many employees, which could help inform and shape its health strategy.
As for sneakier employers, the article notes that itâs ârelatively easyâ for companies to identify patients (in this case, women using the pregnancy app) âbased on information relayed in confidence, particularly in workplaces where few women are pregnant at a time.â Someone could, for example, cross-reference the appâs data with other data. This potentially could impact peopleâs health care costs or coverage.
An excerpt:
The apps, [health and privacy experts] say, are designed largely not to benefit the women but their employers and insurers, who gain a sweeping new benchmark on which to assess their workers as they consider the next steps for their family and careers. ⌠Experts worry that companies could use the data to bump up the cost or scale back the coverage of health care benefits, or that womenâs intimate information could be exposed in data breaches or security risks.
This is why I’m skeptical about digital health apps. I’ve heard arguments on both sides, but if it’s possible for someone’s private medical information to be used against them, how is that OK? Why arenât there more protections for patients? And how could current patient protection rules be up to date with the digital age?
To quote an informative article from The Verge: âIn 1996, the year Congress passed its landmark health privacy law [HIPAA], there was no Apple Watch, no Fitbit, no Facebook support groups or patients tweeting about their medical care. ⌠[It] is still a key piece of legislation protecting our medical privacy, despite being woefully inadequate for dealing with the heath-related data we constantly generate outside the health care system.â
The Post article brought up something else noteworthy: the appâs 6,000 word âterms of useâ agreement that women must consent to. A lot of us in the health space have probably heard the statistic of how few people know how to define basic health care terms like âdeductibleâ and âpremium,â suggesting low health literacy rates among people. So how is a person supposed to understand the legal and health care jargon in a 6,000-word âterms of useâ agreement? Is that realistic? Do people really know what could happen with that data?
Further, according to the article, while a spokeswoman said the company doesnât sell aggregate data for advertising purposes, the âterms of agreementâ tell a different story. The company has a âroyalty-free, perpetual, and irrevocable license, throughout the universeâ to âutilize and exploitâ de-identified personal information for scientific research and âexternal and internal marketing purposes.â
Digital health companies are a relatively new thing. And in any communications they make â whether itâs a press release, an executiveâs quote in the media or the employee they pick to make a statement to the press â theyâre marketing themselves. Of course the focus will be on the positive.
Thatâs why itâs healthy to be critical of these new institutions that have the potential to greatly impact peopleâs lives, health and security. If nobody pushes forward to seek change that could protect peopleâs health privacy, then the future health care environment is not going to be a safe place for patients. Patient advocacy groups should have a greater say in how these digital health companies operate. Insurance companies and employers can easily benefit from the wide array of data in these apps, but what about patients?
Candice Sherman
One final thought comes from an interview I had about six months ago with Candice Sherman, the CEO of the Northeast Business Group on Health. The NEBGH released a fascinating guide about genomic medicine and employers that came from a roundtable including many key stakeholders, including employers, clinical experts, benefits consultants and genomic vendors. The missing stakeholder was a patient.
I asked Sherman about that, and she explained how health privacy concerns would stop patients from participating in a discussion like this. I do understand this, logically â and I am by no means trying to criticize Sherman or the NEBGH roundtable, since I love that they met up to have a discussion on a health-related topic thatâs only going to become more prominent.
That said, I think it would be valuable for businesses or business groups to find a way to include the patient stakeholder in conversations like this. Maybe through an advocacy group or an expert who can make sure to represent the patientsâ interests without experiencing the same privacy concerns. There are options.
This is a lot of information, but this topic is important now and itâs not going anywhere anytime soon. In summation, de-identified, aggregate data doesnât always stay anonymous; just because a digital solution is HIPAA-compliant doesnât mean itâs necessarily harmless to a patient; and patients deserve to have their voice represented in health care conversations.
I understand the power of data for organizations to understand big picture trends, but if this data could easily be used against an employee, itâs not worth it.
Health data privacy is important. Iâm curious what discussions we all must have and how laws should be rethought to represent patients â your employees.
Jonathan Baum worked as a scheduler for Metro Restoration Services.
In late 2014, he began to suffer cardiac problems. Over the course of the next several months, he went to the ER fearing a heart attack, had a heart catheter implanted, had an echocardiogram and wore a heart monitor. He occasionally also missed work for medical tests and treatments and sometimes worked remotely. His boss, and the owner of Metro, Patrick Cahill, was aware of Baum’s medical issues.
Following a work day on which Baum had worked remotely from his home, Cahill fired him. The expressly stated reason: “health issues and doctors’ appointments.”
Oops.
Baum then sued for disability discrimination.
Even with all of Baum’s cardiac issues, the 6th Circuit held that he could not establish that he suffered a physical impairment that substantially limited one or more major life activities. Therefore, Baum did have a legally protected actual disability. Baum had failed to identify a medical expert to testify and establish whether his cardiac problems substantially limit his cardiovascular and circulatory functions.
So do Baum’s impairments limit his cardiovascular and circulatory functions? They might. But to conclude that they did, a jury would need to understand themâhow they function, and what that means for Baum. And to understand them, jurors would need an opinion from someone with “scientific, technical, or other specialized knowledge”: expert testimony.
Because Baum failed to disclose his doctorâor anyone else with specialized medical knowledgeâas an expert witness, he lacks the evidence he needs. And without that evidence, he hasn’t created a factual issue over whether he is actually disabled.
Case closed, right? Not so fast.
The ADA does not only protect actual disabilities, but also perceived disabilities. On this latter claim, Metro had a huge problem.
Unlike actual disability claims, an employee proceeding on a claim of perceived disability need not prove a limitation of a major life activity, but only that the employer took an adverse action “because of an actual or perceived physical ⌠impairment.” Thus, the lack of a medical expert was not fatal to this claim.
Baum argues that a jury could find that Metro fired him because Cahill thought Baum was disabled. For support, he relies on Cahill’s knowledge of Baum’s catheter, CAT scan, trip to the ER, and period where he wore a heart monitor. Baum also points to Cahill’s stated reason for firing him: his “health issues and doctor’s appointments.” âŚ
Cahill’s knowledge of Baum’s medical issuesâaloneâis insufficient to carry the day.⌠But Baum has moreâhe has Cahill’s stated reason for firing him: his “health issues and doctor’s appointments.” That statement is what creates a factual dispute and makes it material. Giving Baum the benefit of the doubt, a jury could find that Cahill meant what he said. And if a jury so found, it could also find that Cahill perceived Baum to have a physical impairment and fired Baum because of that perception.
In other words, employers, it’s not the best idea to tell your employee that you are firing them because of their medical issue. It will not end well for you.
candidates, âPreferably Caucasian.â
