Last week, President Trump signed his “Buy American, Hire American“ Executive Order. The EO encourages American businesses to buy American-made products and hire American workers.
Come again? Does that say hire American workers? Doesn’t Title VII prohibit national origin discrimination?
Yes, Title VII still prohibits national origin discrimination. And, no, this Executive Order does nothing to change Title VII’s impact. But the manner in which the White House is promoting this EO is … curiously disturbing.
If you read the fine print—that is, the actual language of the Executive Order—you learn that #HireAmerican isn’t really “Hire American”, but instead it’s “hire any American citizen or anyone else legally authorized to work in the United States under our current immigration laws.”
But that’s not how the White House is promoting this Order. It’s being promoted as #HireAmerican, which sends a certain signal to certain xenophobically and/or racistly inclined Americans, who might use this Executive Order to discriminate on the basis of national origin, or race, or religion. “Trump says Hire American, so I’m not hiring that one with the turban, or hijab, or funny accent.” And that’s the exact type of discriminatory misconduct that Title VII is supposed to protect against.
If President Trump wants stricter borders, and to restrict work visas available to foreign nationals, so be it. It’s his prerogative as the President of the United States. If you don’t like it, your remedy rests at the ballot box. However, the White House needs to be careful with its messaging. #HireAmerican sends the wrong message, and will do a whole lot more harm than good, by offering the ignorant and the uninformed a license to hate and discriminate.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
If you are a private employer, it is 100 percent illegal for you to provide employees comp time in lieu of overtime for hours worked by non-exempt employees over 40 hours in a work week. If a non-exempt employee works overtime, you must pay them overtime, and you violate the FLSA if you provide comp time in its place.
If enacted, the bill would enable employees to earn compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation would otherwise be required. It also:
Caps the amount of comp time an employee may accrue at any given time at 160 hours.
Requires that employers annually pay out any unused comp time.
With 30 days’ notice, permits employers to pay out any unused comp time in excess of 80 hours.
Provided for payment of unused comp time upon termination of employment for any reason.
Prohibits retaliation.
Gives employers the flexibility to schedule requested time off within a reasonable amount of time after it is requests, such that operations are not disrupted.
Critics argue that this bill is a “scam” and “phony”:
Workers may request the time for any purpose they like, including care for a sick child or even baseball opening day. There’s just one hitch: the boss may decide an absence that particular day would “unduly disrupt” business operations and specify an alternative date when the child happens to be well and in school and the World Series has come and gone. Flexibility often is a one-way street. … There are a few other drawbacks. When overtime assignments come around, workers get to choose which option they prefer, pay or comp time. But the boss also gets to make the assignments. Those who need overtime to pay the bills may well be passed over. For them, this bill represents a pay cut.
That argument missed one key piece of the legislation — the decision to choose comp time in lieu of overtime rests solely with an employee.
An employer may provide compensatory time to employees … only if such time is provided in accordance with a [written] agreement arrived at between the employer and employee before the performance of the work … (i) in which the employer has offered and the employee has chosen to receive compensatory time in lieu of monetary overtime compensation; and (ii) entered into knowingly and voluntarily by such employees and not as a condition of employment.
In other words, if an employee values overtime over comp time and would rather have extra money instead of extra time off, then the employee chooses overtime. If an employee, like many these days, prefers flexibility and work/life balance, then the employee chooses comp time. What is the harm? Where is the lack of flexibility? Where is the pay cut?
This bill (which expired five years after it is passed, and will be a test balloon on this issue) strikes an important balance for employees and employers on an issue that has become more and more important to the American worker — flexibility and time. No, it does not solve every problem with a lack of work/life balance (see, paid medical leave), but it is a quality step in the right direction that we should all embrace.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
I don’t say this often. In fact, I don’t think I’ve ever said it, at least not in such clear-cut terms: Bravo, Society for Human Resource Management, for doing the right thing. Pulling your ads off of Fox News in the wake of the Bill O’Reilly sex harassment payoff scandal was the right choice.
It’s clear that you enjoy playing in the always-treacherous snake pit that is today’s partisan politics-infused TV news game. With the knee-jerk nature of our political spinmeisters it’s a gambit that can backfire on a moment’s notice. Yet you planted your feet and took a firm stance for ethical workplace practices and against a morally bankrupt TV talker who cost his news operation employer some $13 million because he lacked the basic capacity to act like a decent, normal person around women.
While your ad pull seems like a no-brainer, and considering O’Reilly’s one-time value as a big-time TV personality and author who’s a huge nightly draw, the reality is the high road also entailed the loss of some 4 million sets of eyeballs on your ads. There must have been some level of hand-wringing at SHRM HQ.
Yet your brief, direct statement released in the wake of the New York Times story on Fox’s massive payoffs to five women spoke volumes: “SHRM has determined to cease its current advertising on the Fox News Network,” you declared.
So let me reiterate: Bravo, SHRM, bravo.
That all said, there’s something that still sticks with me. I mean, sure, you get a standing O for this one. You took a controversial and potentially costly position, an uncommon characteristic in the hyper-cautious, don’t-make-waves world of HR.
With my respects in mind I still have to ask: What took so long?
I mean, Fox News has not exactly been the gleaming beacon of outstanding management practices, particularly in the wake of last summer’s ouster of network boss Roger Ailes for his serial sex harassment shenanigans. Coincidence that Fox News in late December named Kevin Lord as its first EVP of HR? I think not.
Lord is earning his keep amid the financial fallout of the O’Reilly scandal that saw you and dozens of other companies pull lucrative advertising dollars. Few things draw executives’ attention faster than someone or some thing affecting the bottom line.
And with O’Reilly’s firing April 19, Fox executives indeed were paying attention.
But I’m not going to ding you too hard, SHRM. Better late than never. Your stand for inclusive workplace cultures comes at a critical time.
I don’t think it’s an overstatement to say that moreso than ever, organizations need HR. Your position on Fox symbolizes that HR should not compromise standards for workplace fairness, decency and transparency no matter who is committing the transgression.
We are in an era of unprecedented entrepreneurialism not only in the United States but globally. Practically overnight, companies are springing from a handful of overworked dreamers to hugely successful business people flush with cash who nevertheless lack people management basics. The surge criss-crosses all industries — benefits, wellness, HR technology, L&D, recruiting, staffing, retail … we haven’t seen anything like this since the dawn of the internet in the late 1990s.
We’ve also witnessed an unprecedented spike in employee-employer relationship gaffes. These unicorns just can’t seem to avoid goring themselves with their own horn.
Zenefits and Uber to name just a couple have spiraled into self-induced PR nightmares that could have likely been avoided with two simple words: human resources.
I get it … sort of. What are the immediate C-suite needs when a company suddenly blows up? Finance, check. IT, yep. Sales, right away. And let’s outsource our recruiting and staffing and don’t forget to order the keggerator.
Ummm, hello, HR here; don’t look now but the staff is fornicating in the stairwells and the boss is telling racist jokes — again.
HR isn’t needed until it’s needed. And by that time it’s too late. Organizations quickly find themselves wading through a morass of costly HR-related people issues that were easily avoidable had executives — admittedly good at building a business but lousy managers — thought about quality internal governance.
Think Uber; think Zenefits; think Thinx.
And finally, think Fox News.
That’s where SHRM’s actions speak louder than words. It took longer than I would have liked, but your blow to Fox’s financial solar plexus was a shot heard ’round the HR world.
Along with other well-earned plaudits you’ve received, I’d like to add a final hearty bravo, SHRM, for practicing what you preach.
Rick Bell is Workforce’s editorial director. Comment below or email editors@workforce.com.
The 6th Circuit is considering whether Title VII’s definition of “sex discrimination.”
EEOC v. R.G. & G.R. Harris Funeral Homes alleges that the funeral home fired its funeral director because she is transgender and transitioning from male to female. The Eastern District of Michigan concluded that Title VII does not expressly cover LGBT discrimination, and limited the sex discrimination claim to a sexual stereotyping claim.
The court will hold oral argument later this year. The importance of this case cannot be understated. Circuit courts all over the country are lining up on both sides of this issue. Earlier this month, the 7th Circuit (not renowned for its liberal views) concluded that Title VII’s definition of “sex” expressly covers sexual orientation and gender identity. That decision aligns with the EEOC’s view, but contrasts against holdings of the 11th and 2nd Circuits.
As the circuits take sides on this issue, it becomes more and more likely that a losing party will appeal to the Supreme Court, which will be tempted to resolve this issue.
Stay tuned. The oral argument and ultimate decision in R.G. & G.R. Harris Funeral Homes is one of the key cases to watch in 2017 and 2018.
How high is the bar for what qualifies as unlawful sexual harassment in the 4th Circuit? Pretty damn high, if you ask me. Consider that in Wilson v. Gaston County [pdf], the Court concluded that the following misconduct did not entitle the plaintiff to a jury trial on her sexual harassment claim:
Wilson contends that Putman began harassing her…, telling her she had a “nice ass,” sending her pictures of his genitals, asking for naked pictures in return, expressing his desire to kiss and have illicit forms of sex with her, and making other unwanted physical contact. This behavior persisted despite Wilson’s repeated protests.
The most serious of these events occurred in December 2011. Wilson was sitting in the passenger seat of an emergency vehicle parked at a county station when Putman reached through the open vehicle door and began to tickle and grope her. When she resisted, Putman pulled her from her seat and pinned her against the side of the vehicle, proceeding to grope her breasts, pelvic area, and genitals until a co-worker approached. Then, in January 2012, Putman walked up behind her and slapped her buttocks so hard that her sunglasses and clipboard went flying. Wilson explains that both encounters left bruising either behind her right knee or on her buttocks, respectively.
This employee, however, did not lose this case because she was subjected to this level of harassment. Instead, she lost because, according to the court, she never complained to anyone about it.
The primary objective of sexual harassment liability is a prophylactic one. Notice is therefore a predicate of employer liability because it provides an opportunity for the employer to correct and prevent sexual harassment, and to do so sooner rather than later. …
As a result, we have repeatedly held that an employee claiming harassment by a coworker bears significant responsibility in notifying the employer. Indeed, an employer cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists under its reasonable procedures. Particularly in large entities with a great number of workers, employers are not necessarily aware of every interaction between employees and cannot be saddled with the insurmountable task of conforming all employee conduct at all times to the dictates of Title VII, irrespective of their knowledge of such conduct.
This does not mean employers can assume a mentality of see no evil, hear no evil. In fact, an employer may be charged with constructive knowledge of coworker harassment when it fails to provide reasonable procedures for victims to register complaints. By establishing an environment hospitable to reporting, employees are encouraged to come forward, sexual harassment can be prevented sooner rather than later, and employers will not be burdened with liability for conduct of which they were unaware. (internal quotes and citations omitted.)
Thus, this court’s definition of “constructive knowledge” such that an employer cannot claim ignorance of harassment is the failure to provide reasonable procedures for victims to complain. Otherwise, according to this court, an employee cannot win a harassment case because of his or her failure to place the employer on notice of a need to investigate and remedy the offending misconduct. Because this employee admitted that she failed to complain to HR, she lost her claim.
Readers, is it appropriate to ignore workplace harassment just because no one has brought it HR’s attention? I’ll give you two choices — “no” or “no”.
Under no circumstances should you ever bury your corporate head in the sand in the face of workplace harassment. You must not ignore harassment that you know about or should know about. It is not a defense for you to close your eyes and hope that it will all be gone when you open them. Just ask Fox News (which, according to The New York Times, has settled the claims of five women for $13 million) how that strategy has worked out for it.
I believe that Wilson is an anomaly, not gospel. Should you rely on Wilson to ignore harassment that occurs in your workplace, I can guarantee a lawsuit, and I cannot guarantee that your result will be anywhere near as successful as Gaston County, which, in my opinion, dodged a huge bullet.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
It’s been barely a year since HR technology’s prodigal son, Parker Conrad, was forced to leave Zenefits over regulatory misdeeds after building the HRIS software company into Silicon Valley’s fastest growing startup ever.
He returned in March triumphant with the announcement that he’s launching new company called Rippling, an onboarding services firm that promises to eliminate the checklist from the onboarding process.
Parker Conrad has discovered life after Zenefits with Rippling, his new onboarding operation.
According to Conrad, Rippling is going eliminate the biggest problem that small and midsized companies face with onboarding: the endless task list. “A company with 100 employees might have 40 different places where employees need to get set up,” he said. That can require multiple people in several departments to complete different tasks just to get one new hire onboarded. “I felt like it was a problem that wasn’t being solved,” he said.
So he set out to solve it by automating the entire onboarding process, from setting up emails and filing paperwork to making sure employees have their key cards, office space and computers. Rippling even provides the computers preloaded with all the appropriate software, which the company will then update every two years. Conrad sees Rippling as a permanent layer of business software, supporting all of the administrative tasks related to employee changes during their tenure at a company, including promotions, change of office, or new managers. Companies pay $8 per month per employee for the service.
It’s an intriguing idea that has earned Conrad the admiration and financial backing of many of the same firms that supported his first foray into HR tech. He has already secured $7 million in venture capital, and it is likely the first of many rounds of funding if he can follow through on the business plan.
Though that’s a big if. Even Conrad admitted that automating onboarding is a lot harder than building a better checklist. And even if his team can engineer a solution, the onboarding space is crowded with competitors that have been around a lot longer. Onboarding has become the new darling of the HR tech space, noted Ray Wang, principal analyst for Constellation Research. “It is the natural next extension application.” The question now is whether they can win over enough customers. “That’s the challenge for any new software firm,” Wang said. “You have to get to volume to make it work.”
That means Rippling has to figure out how it will stand out when buyers are already overwhelmed by the number of options and features available, said Lilith Christiansen, vice president of organizational development for Kaiser Associates in Washington, D.C. “There are so many tech companies in this space, and they all focus on different aspects of onboarding.”
Rippling isn’t the only startup trying to differentiate itself by making onboarding faster and easier. “Lots of companies are focused on enhancing the experience for new hires and managers, and they are going beyond just automation,” she said. Christiansen pointed to MindTickle, which uses gamification to engage new hires; Appical, which offers an entirely mobile-enabled onboarding process; and Worktop, which focuses on motivating new hires and making sure they are prepared to work on day one.
“From a startup perspective it’s a great time to be in this space because there are a lot of opportunities for innovation,” Christiansen said. And she sees the entrance of Rippling as further proof that the space has room to grow. “Obviously, there are still a lot of problems with onboarding that haven’t been solved.”
For buyers of these tools, she encouraged HR leaders to think about their own onboarding pain points, then assess which tools are designed to specifically address those issues. For some, that might be dealing with paperwork, while others will want to focus on learning, engagement or time to productivity, she said. “When you start with a diagnostic, you can narrow your universe of options and find the right technology to meet your business goals.”
Sarah Fister Gale is a writer in the Chicago area. Comment below or email editors@workforce.com.
I saw in the elevator at work recently that jobless claims are lower than expected, signaling — according to that brief paragraph — signs of strength in the labor market. I wouldn’t know. I’m not looking for a job, and I don’t know anyone who is, which is interesting. Because I know quite a few people who are jobless.
Why? A variety of reasons. Layoffs, bad bosses, health issues, whatever the reason, they should be looking for work. But to a man, their “search,” well, let’s just say it deserves those air quotes.
I’ve asked why, and again, to a man, their responses are some variation on the following: You couldn’t pay me to look for another job, and let these folks treat me any old kind of way. Um, OK. So it’s more important that you be treated well than it is to find a job?
Their response: Basically? Yeah. Out of necessity small, home-based businesses are popping, there’s long-term temping, dedicated freelancing, there are all kinds of hustles out there keeping good workers out of traditional offices.
Of course, when I hear stories like these I ask for details. One lady told me for one job — she’d been looking steadily for over a year— she interviewed with four different people. She thought she was in until that last one. The man interviewing her wouldn’t meet her eye, and he was looking pained. He also kept sighing and rubbing his head.
She said she knew it was over at that point. Weeks went by and she heard nothing. She finally called them and was told some vague variation of “we’ve gone in another direction.”
“Well, thanks for sharing,” I scoffed.
“Mr. Crusoe, I’m concerned about this 20 year gap in your resume.”
She nodded. “Yup. That’s what I thought too.”
Another lady told me she was up for a great job. Her first phone screen went well. The second one went even better. Then she showed up for the in-person interview. She was kept waiting for almost an hour with no explanation or apology, and when a man came out he looked at her with feigned surprise and said, “You’re [fill in first and last name here]?”
“He wasn’t even the person I was there to meet. But I suspect the receptionist told him what I looked like.”
We had a good laugh about it. I shared an eerily similar story of my own that happened years ago.
“Huge waste of time,” I recalled. “Whenever that mess crosses my mind I regret that I even sat through it. What did you do when he asked you were you really you?”
She laughed. “Girl, you’d have been proud. I said, ‘I sure am,’ and I held up my phone. ‘And I just found out I got a fabulous job. Bye!’ I should have won an Oscar. Buzzards. Wasting my time, making me put on my good clothes and spend money traveling to deal with stupid ****. They weren’t getting another minute from me.”
She has since suspended her search altogether and is now happily enrolled in beauty school. She’s been doing hair on the side for years and figured she was doing well, why not make it official? She likes being her own boss, she said. “And I always treat my customers right.”
Both stories are examples of how talented employees are choosing to vote with their feet and take themselves out of the talent pool because companies are not ready or willing to treat them with respect. It doesn’t make sense.
The phrase war for talent is a little dated, but it’s definitely still valid. Companies have tons of unfilled positions, and I know there are a good number of qualified, hardworking people out there who would love to fill them; I’ve worked with the Oscar winner/stylist before, and she’s sharp as a tack, professional and dedicated. It was definitely their loss.
The problem is, the recruiting process is broken. Whether it’s a sign of the times, the result of technology and the rapid pace of business edging out common courtesy and common sense, recruiters aren’t always what they should be.
I’ve heard them described as careless, rude— how would you like to go to an interview in your best clothes and be called by the wrong name or be asked were you there for the housekeeping position?— and completely unprepared. And what’s with the weeks going by without telling people whether or not they got the job? Even a form letter-type email is better than silence. Close the loop already. Don’t just leave people hanging.
Recently my boss sent our intern candidates — interns — who didn’t get the post an email within days of us making the decision. And that’s standard practice for him. So, talent leaders? Y’all may need to ask yourselves, what is our recruiting process/experience really like?
If you have unfilled positions and you’re spending a lot of time and money recruiting and interviewing with no results, something’s not right. Determine:
Are we being careless with people’s time?
Are we making assumptions about candidates who look a certain way?
Do we have a clear idea of what we want a candidate to be able to do?
Are we willing to offer training if a candidate looks promising?
Are our resume review, candidate selection and interview processes user friendly and free of bias?
Are interviewers well trained?
Are candidates being treated with respect? For instance, are we informing people in a timely fashion that they did or did not get the job?
Those are just a few questions to get you started. The actual recruiting process analysis will need to be much more in depth, and correcting any problems will be an even bigger job. But it’s a job worth doing. Further, you need to ask these questions of the right people — the candidates.
The best time to ask is right after the interview when the experience is fresh in their minds. Of course, who’s going to answer honestly when they’re still holding out hope of getting the gig? The next best time would be after they’ve been notified in the negative. Shoot them an email. It’s kind of like an exit interview.
I think companies should send in the job-seeker version of secret shoppers. Send in fake candidates of all shapes, colors and sizes with stunning resumes and see what happens. It might save some serious recruiting costs in the long-run by rooting out systemic bias and other institutionalized missteps. And anytime you sweep out the bad— assuming the company fixes what is broken — you make way for something good.
And good in the recruiting game means talent.
Kellye Whitney is associate editorial director for Workforce. Comment below or email editors@workforce.com.
In Saleem v. Corporate Transportation Group (2nd Cir. 4/12/17) [pdf], the 2nd Circuit Court of Appeals considered whether a company properly classified a group of black-car taxi drivers as independent contractors, or whether it should have classified them as employees. In ruling for the company, the court gifted employers a game plan to use when classifying workers to minimize risk in making the key determination of whether a worker is an employee or an independent contractor.
In so ruling, the court considered three factors to be crucial as to the “economic realities” of the relationship between company and drivers in this case.
1. The drivers had entrepreneurial opportunities available to them.
The fact that Plaintiffs could (and did) work for CTG’s business rivals and transport personal clients while simultaneously maintaining their franchises without consequence suggests, in two respects, that CTG exercised minimal control over Plaintiffs. First, on its face, a company relinquishes control over its workers when it permits them to work for its competitors. Second, when an individual is able to draw income through work for others, he is less economically dependent on his putative employer. … Plaintiffs here possessed considerable independence in maximizing their income through a variety of means. By toggling back and forth between different car companies and personal clients, and by deciding how best to obtain business from CTG’s clients, drivers’ “profits increased” through “the[ir] ‘initiative, judgment[,] or foresight’” — all attributes of the “typical independent contractor.”
2. The drivers were personally financially invested in their work.
Regardless whether they actually purchased a franchise, the record also shows that Plaintiffs invested heavily in their driving businesses — another indication that they were “in business for themselves.” … One Franchisor Defendant estimated expenses for an individual purchasing a franchise as totaling between $68,838 and $89,038.30. Such sums constitute a substantial financial outlay on Plaintiffs’ part, even beyond the purchase or rental of the franchise itself, and in essential facets of Plaintiffs’ business operations: vehicle acquisition, fuel, repair, and maintenance, license, registration, and insurance fees, and tolls, parking, and tickets. CTG did not provide reimbursements for these expenses, never mind for discretionary investment in business cards, advertising, or other ventures designed to attract customers.
3. The drivers maintained a high degree of flexibility in how they performed their work.
The ability to choose how much to work also weighs in favor of independent contractor status. … After purchasing or leasing a franchise and securing a suitable vehicle, Plaintiffs set their own schedules, selecting when, where, and how often to work (if at all). Defendants provided no incentive structure for Plaintiffs to drive at certain times, on particular days, or in specific locations, leaving the decision to work “to the whims [and] choices” of its drivers. Likewise, Defendants required no notice on the part of drivers as to when they intended to work, nor did they make any effort to coordinate drivers’ schedules. … Plaintiffs also exercised considerable discretion in choosing when and where to drive. … Additionally, the record demonstrates that, as a matter of economic reality, Plaintiffs accepted and rejected (despite the penalty of being placed at the end of the queue) varying numbers of job offers, a fact indicative of the discretion and independence associated with independent contractor status.
The court, however, was not without a warning for employers in making this important determination between employee and contractor:
To be clear, we note in conclusion the narrow compass of our decision. Specifically, we do not here determine that it is irrelevant to the FLSA inquiry that the Defendants provided Plaintiffs with a client base, that Defendants charged fees when Plaintiffs utilized Defendants’ referral system, or that Defendants had some involvement, if limited, in rule enforcement among franchisees … In a different case, and with a different record, an entity that exercised similar control over clients, fees, and rules enforcement in ways analogous to the Defendants here might well constitute an employer within the meaning of the FLSA.
In other words, at the end of the day, the key inquiry still remains whether, when examining the totality of the circumstances, the “economic realities” of the relationship dictate that “the workers depend upon someone else’s business for the opportunity to render service or are in business for themselves.” Nevertheless, as the Saleem court makes clear, three of the key factors that you should be examining in making this determination for your workers are entrepreneurial opportunities, personal investment, and flexibility, which clearly help establish the legitimacy of the classification of workers as independent contractors, both in the gig economy and elsewhere.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Dawn Suppo worked at Costco’s Glenview, Illinois, location between 2009 and 2012.
Between August 2010 and September 2011, a customer, Thad Thompson, harassed Suppo by regularly stalking her around the store, remarking on her looks, asking her about the men in her life and touched her at least twice without her permission. Suppo claims that she was vocal about her complaints of discomfort with Thompson and asked her manager on repeated occasions about prohibiting Thompson’s presence in the store.
Suppo left the company after a year of medical leave that she says was spurred by one final incident in which Thompson became angry at her refusal to let him film her. The EEOC brought suit against Costco on behalf of Suppo, seeking to hold Costco liable for failing to act on Suppo’s complaints of harassment and failing to take reasonable steps to prevent it.
Although Costco claimed that Suppo only submitted two complaints, each a year apart, and each time Costco took concrete action to stop the alleged misbehavior, including eventually terminating his membership and prohibiting him from shopping at any Costco location, a jury nonetheless handed down a verdict against Costco for $250,000.
The jury did not, however, find that Costco acted with reckless disregard for Suppo’s Title VII rights and declined to punish Costco by imposing punitive damages. EEOC v. Costco Wholesale Corp., Case No. 14-cv-6533 (N.D. Illinois, Dec. 20, 2016).
Impact: Employers have a duty to protect their employees from the harassment of customers and must take reasonable steps to prevent any such harassment.
Samuel Gompers, founder of the American Federation of Labor, wrote that “[w]herever trade unions are most firmly organized, there are the rights of the people most respected.” But Gompers wasn’t quite right if Tanganeka Phillips’s claims are true; she alleges that one of the largest unions in North America discriminated against her on the basis of race.
When a judicial opinion starts out with a quote such as this, it’s usually not a good sign for the defendant, unless you happen to be the United Auto Workers — the defendant in Phillips v. UAW Int’l (6th Cir. 4/12/17) [pdf], which walked away from some pretty serious allegations of racial harassment.
Tanganeka Phillips, an employee at the MGM Grand Detroit casino and chairperson of UAW Local 7777, claimed that two employees of UAW International, Brian Johnson and Dave Kagels, created a racially hostile work environment toward her. Specifically, over the span of two years, Phillips alleged that she witnessed the following racist misconduct:
Kagels listed three union representatives (all black) by name and said he would fire them all if he could.
Johnson told Phillips “[w]e need to put a black on staff to calm it down, and was [Phillips] interested?”
In addressing Dwight Braxton (another union member) in Phillips’s presence, Johnson said, “Oh, because you’re big and black. You’re her bodyguard, I’m supposed to be afraid of you.”
Johnson once said that the “problem with the union was that there are too many blacks in the union.”
Johnson made frequent racial comments and spoke in a condescending tone when dealing with black union members as compared to white members.
The last straw for Phillips was when she witnessed Johnson separate member grievances into two piles, a “white” pile and a “black” pile, and stated his intention to withdraw those in the “black” pile.
The court declined to address the legal issue of whether Title VII covers hostile environment claims brought against a union by a member. The court noted that Congress wrote Title VII with different language in the relevant employer and union subsections, and only in the employer subsection is there a specific prohibition on discrimination with respect to “compensation, terms, conditions, or privileges of employment” (the statutory underpinning of hostile environment claims).
Nevertheless, the court refused to reach that issue, concluding that regardless, Phillips’s claim falls legally short of constituting a hostile work environment.
These incidents, if true, are offensive and condemnable. But they are not actionable as a hostile work environment. … [T]he incidents were isolated and not pervasive or severe enough to alter the terms and conditions of Phillips’s employment. … [T]his court has established a relatively high bar for what amounts to actionable discriminatory conduct under a hostile work environment theory. The misconduct alleged here — a handful of offensive comments and an offensive meeting over a two-year period — does not clear that bar.
And … the court is probably right. A few incidents of minor to slightly less minor severity spread over a two-year period is not sufficiently severe and pervasive to constitute an actionable hostile working environment. However, just because a working environment (or labor union) is not unlawfully hostile does not mean that you should ignore it if it comes to your attention.
Treat all harassment incidents the same (promptly and thoroughly investigate, consider preliminary remedial steps, communicate will all affected parties, and follow through with remedial action to reasonably cure the harassment) and your workplace will be a better place to work.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
