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Appeals Court Rules Single Incident Triggers Harassment Law

Just a single incident of sexual harassment, if severe enough, can violate federal civil rights law, a federal appellate court said in a decision Monday, August 23.


The decision by the Chicago-based 7th U.S. Circuit Court of Appeals in Cynthia Berry v. Chicago Transit Authority involved a dispute by Berry, who was a carpenter with the CTA, with a fellow worker over a card game in January 2006.


Berry said that after she refused to get up so that a co-worker, Philip Carmichael, could partner with another worker in a game during a morning break, Carmichael grabbed her breasts, lifted her up from a bench and rubbed her buttocks against the front of his body. Berry said that when she landed off-balance with only one leg on the ground, Carmichael pushed her into a fence.


When Berry reported the incident to a manager, he told her he did not care what happened because she was a “pain in the butt,” predicted she would lose her job if she filed charges, and promised he was going to do “whatever it takes to protect the CTA,” the opinion said.


Berry filed suit against the CTA in July 2006, claiming Carmichael’s actions and the manager’s response created a hostile work environment and constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964. A district court subsequently granted the CTA’s motion for summary judgment dismissing the case.


The appellate court said with respect to Carmichael’s actions, “Berry has provided enough evidence to allow her hostile work environment claim to go forward. As the district court noted, a single act can create a hostile environment if it is severe enough.”


The court also said Berry’s testimony “would allow a reasonable fact finder to conclude” that the manager “maliciously thwarted any legitimate investigation and that the CTA was therefore negligent or worse in responding to her report of harassment.”


The three-judge panel, however, upheld the lower court’s dismissal of Berry’s discrimination and retaliation claims. The case was remanded for further proceedings.


Plaintiff attorney Paul Mollica, a partner with law firm Meites, Mulder, Mollica & Glink in Chicago, said that although the civil rights law establishes that a severe-enough single incident of harassment violates the law, most lawsuits charge either pervasive or severe and pervasive harassment.


“There aren’t a lot of cases like this where a solitary act is evaluated,” he said.  


 Filed by Roberto Ceniceros of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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Analysis COBRA Premium Subsidy Doubled Enrollment

The percentage of laid-off employees that opted for COBRA coverage after the government offered a premium subsidy for the health care coverage was double the percentage that opted in during five months prior to the subsidy, according to a study.


Under the subsidy program, which was embedded in an economic stimulus measure Congress passed in February 2009 and later extended and expanded, the federal government pays 65 percent of the COBRA premium for up to 15 months for involuntarily terminated workers.


From March 1, 2009, when the subsidy first generally became available, through May 31, when the program ended for employees laid off after that date, monthly enrollment rates for laid-off employees averaged 38 percent, according to the Hewitt Associates Inc. analysis of COBRA enrollments among 200 large employers.


By contrast, from September 1, 2008, through February 2009, an average of 19 percent of involuntarily terminated employees enrolled in COBRA.


With the end of the subsidy, COBRA enrollment rates now are falling. “Enrollment rates will likely decline over time as workers can’t, or aren’t willing to, afford the high premiums associated with COBRA coverage,” Karen Frost, Hewitt’s health and welfare outsourcing leader in Lincolnshire, Illinois, said in statement.


In addition, employees who were laid off in June and enrolled in COBRA expecting that Congress would retroactively extend the subsidy—as it previously did—may drop the coverage as it has become clear that legislators will not extend the subsidy, Frost said.


Congressional support for extending the subsidy has dwindled amid concerns by Republican and some Democrats about the cost of the subsidy.


Congressional budget analysts estimated that the initial subsidy law, in which laid-off employees were entitled to the subsidy for nine months, would cost the government nearly $25 billion.  


Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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Chambers of Commerce Unite to Urge Congress to Repeal Health Care Laws 1099 Provision

The U.S. Chamber of Commerce and 1,099 other chambers of commerce, associations and businesses representing all 50 states sent an open letter to Congress on Tuesday, August 17, calling for the repeal of a provision in the new health care law that would greatly increase the tax paperwork burden on some 40 million entities in the U.S.


Section 9006 of the Patient Protection and Affordable Care Act requires businesses, local governments and nonprofit organizations to file Form 1099s for virtually every non-credit card purchases totaling $600 or more with any vendor in a tax year. The provision is scheduled to go into effect in 2012.


“If this provision is implemented, the 1099 reporting mandate will impose substantial paperwork and reporting burdens on the backs of governments, nonprofits and businesses—especially small businesses,” the chamber wrote in the letter.


The 1099 provision would impose dramatically higher accounting costs on businesses, as well as make them much more vulnerable to tax audits, the letter said. It could also wreak havoc on small and startup companies, it said, because those who have to report their purchases could consolidate those purchases with larger vendors to cut down on paperwork.


Currently there are bills before Congress to repeal the 1099 provision, but such bills should not seek to make the repeal revenue-neutral by increasing taxes or removing tax incentives from business, according to the letter.


“At a time in which we have seen an unprecedented growth of the federal government, it is imprudent for lawmakers to saddle any one segment of the business community with the obligation to pay for the repeal of this ill-conceived, expanded information reporting mandate,” it said.  


Filed by Tire Business, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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Dear Workforce How Do We Establish Realistic Goals for New HR Metrics

Dear Shooting High:

Setting up metrics for human resources is a big step toward becoming a high-performing organization. Research shows that companies using talent management metrics are far more likely to perform well in the marketplace.

But what things do you measure? It depends on your company’s size, its ability to capture meaningful data, and the goals established both for HR and the organization as a whole. Finding out from your internal customers where you stand, and then setting goals to strengthen the perception of HR as a service provider, is a logical place to start.

It also pays to think more broadly about measuring your company’s overall talent management. You can learn a lot by looking at your hiring process. How quickly positions are filled is only one way to look at hiring. Take it up a level and examine how well you fill open positions. To determine this, check the performance ratings of newly hired workers at 12 months. Then set a goal to improve the performance of new employees through more effective hiring processes, and measure new-hire ratings periodically to see how the company is faring. This takes the perspective off HR as a business partner, and gets the rest of the organization to “own” the process and align itself behind talent management.

Or you could look at turnover rate. It is easy enough to see changes in this number over time, but tracking “regrettable” turnover—employees who left whom you longed to retain—and setting goals to reduce that number through better management of talent will produce better organizational results.

To use metrics to become a top-performing company, keep in mind a few guidelines:

• Start by looking at your current workforce metrics. Can you organize your measures so they support one another and work together to create a coherent story? Can you explain how things work now by looking at the trend lines? Can you explain how improvements in one area lead to improvements in other areas?

• Determine what you want to accomplish. Work with senior management to help them understand HR metrics. Get their input to be sure your metrics align across the company. You will need to put resources behind the task of calculating the metrics you intend to watch, such as quality of hire or “regrettable” termination rate, so be sure to explain what you will measure and how you will measure it. Help your management to understand and buy into the concept of metrics.

• Put a plan in place to improve your metrics over time. Be aware that setting goals is rarely a 100 percent proposition. More likely, your goals should be based on where you are now, and where you reasonably hope to be as a result of planned improvements. This implies goals for continuous improvement. By working with senior management at the front end, you will be more successful in engaging managers across the organization in reaching improvement goals.

• Communicate results in a way the people can understand. Skip the heavy quantitative charts and paint a clear, simple picture so your metrics have meaning and impact. Publish success stories in your company newsletter. Focus on programs and actions that are making a positive difference to the company’s success. Show how things are changing for the better through the use of measurement.

SOURCE: Patsy Svare, managing director, the Chatfield Group, Northbrook, Illinois, July 6, 2010

LEARN MORE: Please read how to compare your company’s HR metrics against numerous widely respected benchmarks.

Workforce Management Online, August 2010 — Register Now!

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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Wear a White Shirt and a Dark Suit: Clear Rules for Corporate Boards and Executive Leaders

Every organization should have a few clear and unambiguous rules and principles that are followed and enforced at every level. These principles build culture and set standards that can readily and credibly spread throughout any organization.
A string of executive controversies during the summer months has brought this issue into stark contrast. Two bewildering examples drawn from the headlines include recent firings:
ï The University of Georgiaís athletic director following a DUI arrest (when part of his responsibilities involved encouraging fans not to drink at the collegeís sporting events).
ï Hewlett-Packardís CEO for breaches of trust and conduct after pledging to ethically lead his business.
In setting standards, I suggest leaders and boards figure out whatís really important. If you donít live up to these rules, youíre gone, no matter what position you hold or who you are.
If you are the Georgia athletic director, you need to follow the behavioral rules that you are telling students to follow. And if you are the CEO of HP, you must provide accurate expense reports and other information.
I learned my lesson about following the rules at my first real job as a part-time salesperson for Baker Shoes in September 1967. Back in those days, there was no orientation, no employee handbook and no training.
Before my first day of work, my boss, Joseph Silverman, told me how much I would be paid, what I would do and what hours I would work. Finally, he said, ìBe here at 8:30 a.m. Saturday. Wear a white shirt and a dark suit.î
I got up on Saturday, ready to go to work for eight hours on what was already a muggy day in East Liberty, an urban neighborhood in Pittsburgh. But there was one problem: I had only one heavy gray wool suit, which had been given to me by my friend, David Kalson, for a role in the prior yearís class play. If I wore that suit, I knew I would burn up, sweat and itch on a sweltering day in the un-air-conditioned shoe store.
So I came up with a better plan: I would wear my solid lightweight dark-blue blazer with matching blue slacks. The blazer buttons were gold, but it looked just like a suit, and I would be more comfortable.
I arrived at work on time, greeted by Mr. Silverman, who wore dark suit and white shirt. His first reaction before I entered the building: ìWhereís the suit?î
I replied, ìBut itís hot and this is just like a suit.î
Mr. Silverman said, ìI said a suit, not just like a suit. Go home and come back in a suit if you have one. Otherwise, forget it.î
I went home and told my dad. Without hesitation, he ordered, ìPut on your suit and get down there now.î
So I did. I sweated that first day and first month until I could save enough to buy a lighter-weight suit.
Bakerís did not spend a lot to get its message out. But the companyís dress code was embedded in its culture. Mr. Silverman always wore a suit, he communicated the rule to every employee before they started, and he enforced it.
It was clear and important, and he brooked no exceptions. And that was the rule in the other stores across the nation.
Some organizationsí boards and leaders fall back on complex and wordy rules and codes of conduct. Itís easier than figuring out whatís really important, universal and essential to the business.†
But itís a vital exercise if you want to draw clear lines that canít be crossed. You still have plenty of room for discretion to deal with ìgray-areaî exceptions.
But where basic principles, values, cultural, legal and reputational risks intersect, the rules need to be as clear and unambiguous as Mr. Silvermanís ìWear a dark suit and a white shirtî was back in 1967.
Stephen Paskoff is president and CEO of Atlanta-based ELI Inc., a provider of ethics and compliance learning solutions. He can be contacted at info@eliinc.com.

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Worker Can Pursue Pregnancy Bias, ADA Claims for Transfer

A pregnant welder who was transferred from her job can pursue pregnancy discrimination and Americans with Disabilities Act claims, a divided federal appeals court has ruled in largely overturning a lower court decision.


However, a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati upheld the lower court’s ruling in Heather Spees v. James Marine Inc. and JamesBuilt L.L.C. that dismissed Spees’ claim that her subsequent termination also constituted pregnancy discrimination.


According to the 2-1 ruling Tuesday, August 10, Spees was hired in 2007 to work as a welder at Paducah, Kentucky-based JMI’s JamesBuilt facility, which focuses largely on building deck and tank barges, towboats and dry docks for the river-shipping industry. At the time, only four of JMI’s 935 nonoffice positions were female and Spees was the only female assigned to the JamesBuilt facility.


She discovered she was pregnant shortly after she started the job. First she was transferred to the tool room on the day shift, which, unlike welding, does not require special training. About a week later, she was transferred to nights in the tool room. After her doctor said she needed bed rest for the remainder of her pregnancy, she was terminated and told the reason was “for being pregnant,” according to the opinion.


Spees sued in April 2008, alleging pregnancy discrimination on the basis of her transfer and termination, as well as disability discrimination.


In reversing the lower court’s ruling on pregnancy discrimination for the transfer, the majority on the appeals court panel said, “As a whole, the evidence is sufficient to raise a genuine issue of material fact as to whether JMI management, rather than undertaking an objective evaluation to determine whether Spees could perform the welding job while pregnant, instead subjectively viewed Spees’ pregnancy as rendering her unable to weld.


“This would allow a reasonable jury to find that JMI’s decision to transfer Spees was made out of concern for her pregnancy and the well-being of her unborn child rather than because Spees was unable to perform her job as a welder. Such concerns, though laudatory, do not justify an adverse employment action,” the majority said.


However, the court agreed that the summary judgment dismissing her claim that she was terminated because of her pregnancy was proper, because Spees voluntarily submitted a doctor’s note to her employer advising her to have bed rest for the rest of her pregnancy.


On the ADA claim that the lower court had dismissed regarding her transfer, which the appeals court overturned, the 6th Circuit said there was “evidence that JMI regarded Spees as having an impairment.”


The case was remanded to the lower court. 


Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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Illinois Bars Job Discrimination Based on Credit History

Illinois Gov. Pat Quinn has signed into law a bill that prohibits employers from discriminating against employees on the basis of their credit history.


H.B. 4658, the Employee Credit Privacy Act, takes effect January 1, 2011. It says employers can neither inquire about nor refuse to hire, discharge or otherwise discriminate against workers on the basis of their credit reports.


The bill the governor signed into law Tuesday, August 10, also forbids retaliation or discrimination against those who file a complaint under the law. Individuals injured by violation of the law can file a civil action in circuit court.


Businesses that are exempt from the law include insurers, banks and law enforcement agencies. In addition, the law does not apply if a satisfactory credit history is an “established bona fide occupational requirement,” such as jobs in which state or federal law requires bonding or in which duties include access to cash or assets valued at $2,500 or more.


“A job seeker’s ability to earn a decent living should not depend on how well they are weathering the greatest economic recession since the 1930s,” Quinn said in a statement. “This law will stop employers from denying a job or promotion based on information that is not an indicator of a person’s character or ability to do a job well.”  


Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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Stressed JetBlue Attendant Apparently Not Flying Solo

The JetBlue flight attendant who cursed out a belligerent passenger before sliding down the plane’s emergency chute Monday, August 9, has become something of a folk hero to stressed-out workers as well as worn-out and ticked-off frequent fliers across the country.


Stephen Slater, the 38-year-old JetBlue steward, has been charged with several felonies, including reckless endangerment and criminal mischief for his impromptu escape from the aircraft shortly after his flight landed at New York’s John F. Kennedy International Airport from Pittsburgh. Slater was arraigned in Queens Criminal Court on Tuesday morning and released on bail that evening.


According to his court appointed lawyer, Howard Turman of the Legal Aid Society, Slater said a passenger had been verbally and physically abusive and openly defied flight-attendant instructions. Slater also alleged that the passenger intentionally hit him in the head with the lid of an overhead baggage compartment, and that he fled the aircraft to avoid further conflict.


Following his expletive-filled rant over the plane’s loudspeaker, Slater grabbed his bags—and a couple of beers—and slid down the inflatable slide.


“It’s the kind of thing you dream about doing,” said Brett Snyder, founder of the travel blog CrankyFlier.com. “It wasn’t professional behavior at all, but flight attendants are people too. He was obviously having a really, really bad day.”


Slater’s antics were extreme, but the incident is by no means isolated, according to industry experts.


“There are more people reacting to anger triggers now than ever before, in every part of the airline industry,” said Alan Sirowitz, director of clinical services at JFK Advanced Medical, a health center at the airport. “There are people who intentionally annoy flight attendants, and have an attitude of taking advantage of them because of their own stress factors.”


Sirowitz said that he did not witness the incident so he could not speak to particulars of this case. But he said that there are plenty of incidents that occur and are not reported because flight protocol is followed correctly and the situation is diffused.


JFK Advanced Medical recently launched an employee-assistance support services program to provide aviation workers community with counselors and programs for issues such as anger management, anxiety, depression and substance-abuse counseling.


“Airports are very stressful places,” he said. “Frustration on both sides—passengers and employees—is part of the equation.”


Crowded planes, extra charges and delays add to passenger frustrations, and flight-crew concessions, pay cuts and concern about their jobs on an everyday basis compound the situation.


“You can be prepared to hear about more of these incidents occurring,” Sirowitz said.


JetBlue Airways, the No. 1 passenger carrier at JFK, issued a statement confirming the incident, adding, “There were no injuries and all customers deplaned the aircraft safely through the jetway. At this time, we are working with the Federal Aviation Administration and the Port Authority of New York and New Jersey to investigate the incident. At no time was the security or safety of our Customers or Crewmembers at risk.”  


Filed by Hilary Potkewitz of Crain’s New York Business, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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Survey Notes Most Health Plans to Lose Grandfathered Status

Ninety percent of employers expect their health care plans to lose their grandfathered status by 2014 under the health care reform law because of changes they expect to make, according to a survey released Tuesday, August 10.


Under the Patient Protection and Affordable Care Act, employer plans are shielded from certain requirements, such as providing full coverage of preventive services, if they meet certain requirements. For example, employers must maintain current co-insurance requirements and cannot raise employees’ premiums by more than five percentage points. Changing insurers also invalidates a plan’s grandfathered status.


According to the Hewitt Associates Inc. survey of 466 employers representing 6.9 million workers, 90 percent of respondents expect their plan to lose its grandfathered status by 2014—the majority in the next two years.


“Most large employers would rather have the flexibility to change their benefit programs than be tied down to the limited modifications allowed under the new law,” Ken Sperling, leader of Hewitt’s health management practice in Norwalk, Connecticut, said in a statement.


Seventy-two percent of employers expect their health care plans to lose their grandfathered status because of design changes. Changing premium subsidy levels, changing insurers and consolidating plans are among other actions employers expect to result in their plans losing grandfathered status.


Fifty-one percent of employers with self-funded plans expect their plans to lose grandfathered status in 2011, and 21 percent expect that to happen in 2012. Forty-six percent of employers with fully insured plans expect to lose grandfathered status in 2011, and 18 percent expect that in 2012.  


Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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Wages for New York Women Outpace National Average

Women in New York state earned a median weekly income last year of $720, or about 84 percent of the $858 earned by men in the state, the U.S. Bureau of Labor Statistics reported Tuesday, August 10.


Women in the Empire State fared better than other women across the country, who earned a median income of $657, or 80 percent of the $819 nationwide median income brought in by men. But the gap between male and female salaries in New York did not narrow from 2008, when it reached a record high. The numbers reflect workers in full-time wage and salary positions.


“In terms of women making strides, the ratios haven’t changed a lot in the last few years,” said Martin Kohli, a BLS regional economist. “Women have not been making additional gains in terms of closing the wage gap.”


Kohli attributed the relative strength of New York women’s wages in part to the mix of industries in which local workers are employed. Men in New York are more likely than men in other states to be employed in service jobs, such as security guards and food workers, which pay a median weekly wage of $470. In New York, 17.2 percent of men are employed in the service sector, versus just 12.9 percent nationwide.


Meanwhile, factory jobs, which pay a median of $610 a week nationally, are much less common among New York men. Just 4.9 percent of men here work in factories, compared with 8.8 percent nationwide.


“The surprising thing is men who live and work in New York just don’t make a lot,” Kohli said. “A lot of the service jobs, like janitors, are just not particularly high-paying jobs.”


One area in which women in New York were less likely than women in the rest of the country to be employed was in high-paying management, business and financial jobs, which pay $1,138 a week. Nationwide, 16.2 percent of those jobs are held by women, versus just 12.7 percent in New York.


Nationally, the median weekly earnings of women ranged from $518 in Louisiana to $938 in the District of Columbia. In the Northeast, women in Pennsylvania and Maine were the only ones to fall below the national average.


Connecticut’s women had the highest median wage in the northeast, at $824. The state also had the highest wage for men, who earned $1,099.  


Filed by Daniel Massey of Crain’s New York Business, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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