Tag: discrimination

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The 6th nominee for the “Worst Employer of 2020” is … the Working Mom Sacker

remote workers, stressed out

Let this woman’s Instagram post sink in, and then let’s talk about why it’s wrong to fire a mom working from home (allegedly) because she has to spend some time tending to her children.

 

 

View this post on Instagram

 

| 28 days ago I finally had enough of the 𝗱𝗶𝘀𝗰𝗿𝗶𝗺𝗶𝗻𝗮𝘁𝗶𝗼𝗻 that my boss was giving me for him not being okay with hearing my kids in the background on calls.|😭😡😖💔 . He wanted me to figure out a way to keep the kids quiet 😣. I went to Human Resources with proof of what was going for the last 3 months and 7 days later AFTER that 𝗜 𝗴𝗼𝘁 𝗳𝗶𝗿𝗲𝗱!!!! 😭 They told me that I should be happy that the outcome to my career there could have been worse. I’m crying as I type this…😭 I was told I had a bright future. That I was doing very well in my position! 💔💔💔😭💔😭 . The last 3 months I have worked around the clock from home while watching my two toddlers😭. I have met all the deadlines they have asked me for, even the unrealistic ones. The situation that I had endured the last 3 months is beyond stressful😭. How does a company that says that they understand and will work around the schedule of parents do the complete opposite with their actions? 😭 I’m devastated. I have poured hours, tears, sweats, delayed giving my child a snack when he wanted one because my boss needed me to do something right away. And what did I get in return? 𝗙𝗜𝗥𝗘𝗗!!! 😭😭😭😭😭 😭😭😭😭😭😭😭😭😭😭😭 . They can keep the 𝗵𝘂𝘀𝗵 money they offered to not bring this up🚫🛑✋! No working mother should be discriminated against , especially during these times for not being able to keep my 𝟭 𝘆𝗲𝗮𝗿 𝗼𝗹𝗱 𝗾𝘂𝗶𝗲𝘁 for a business call 😡For not being able to turn something around in 5 minutes when my baby wants a snack😡. We are in tough times right now. This situation would have been temporary. None of my clients had issues with my kids in the background. 𝗜’𝗺 𝗴𝗼𝗶𝗻𝗴 𝘁𝗼 𝗳𝗶𝗴𝗵𝘁 𝗳𝗼𝗿 𝗲𝘃𝗲𝗿𝘆 𝗺𝗼𝗺 𝘁𝗵𝗮𝘁 𝗵𝗮𝘀 𝗴𝗼𝗻𝗲 𝘁𝗵𝗿𝗼𝘂𝗴𝗵 𝘁𝗵𝗶𝘀 ! 𝗜𝘁’𝘀 𝗻𝗼𝘁 𝗼𝗸𝗮𝘆!!!💪. IT’S NOT OKAY to have to feel that your boss is making you pick your work over your kids during these times!!!𝗜𝘁’𝘀 𝗡𝗢𝗧 𝗢𝗞𝗔𝗬!!! #justice

A post shared by Hi, I’m 𝗗𝗿𝗶𝘀| MODERN CALI MOM (@moderncalimom) on

10 News San Diego fills in the details:

A San Diego mother says working from home during the coronavirus pandemic cost her her job. She claims she was fired because her kids were making noises in the background of her teleconference calls …

Like many parents, Rios was unable to find childcare for her four-year-old daughter and one-year-old son. Despite juggling parenting and working from home, Rios claims she was able to complete all her tasks. She adds that her clients never complained about her kids being in the background of her conference calls. The only complaints, she says, came from her male, direct superior.

“I said, ‘Do you want me to lock my kids in the room? My one-year-old in the room? Do you want me to do that?’ And… he responded and said, ‘Figure it out.’” Rios said.

She says she tried to arrange calls to be during her children’s afternoon naptimes but claims her boss continued to ignore and demean her.

“He would purposely overlap schedules,” Rios said.

According to research conducted by Stanford economist Nicholas Bloom, 42 percent of the U.S. labor force is currently working from home full-time. It an ideal way to stay safe and promote physical distancing during the COVID-19 pandemic, but it’s less than ideal for other reasons, especially if you have young children at home. For example, we’ve all seen more than one viral video of a child interrupting a Zoom meeting. (Personally, I had one interrupted by my dogs loudly fighting over a toy. After my apology, my clients said it was the best distraction they had all week.)

worst employer of 2020

Work from home calls for understanding, compassion, and flexibility, not hard lines in the sand, deceit, and termination. If an employee is working well from home, being productive and timely, and putting out a quality work product (as Ms. Rios says she was), let it be. There will come a time when everyone could return to the office, but now is not that time. Work from him is going to be the “new normal” for many for the foreseeable future. If we can’t work with it, we are going to lose too many good employees.
Moreover, it’s just plain illegal to fire a woman based on her parental responsibilities if you don’t hold similarly situated male employees to the same standard. As Suzanne Lucas writes at Inc.com: “If you enforce hours and quiet backgrounds for females but not for males, you’ll violate sex discrimination laws. So, you can’t call it cute when Joe’s baby shows up on film but unprofessional when Caroline’s toddler shows up. It’s all or nothing.”
No working mother should be discriminated against. That’s called sex discrimination. It’s also flat-out wrong to fire an employee in these circumstances, and it might just make you the worst employer of 2020.
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Does Title VII protect employees whose spouses are pregnant?

maternity, paternity, pregnant, baby
A male Disney employee has filed suit against his former employer, claiming that Disney unlawfully discriminated against him because of his wife’s pregnancy.
According to Steven Van Soeren’s complaint, Disney fired him after he took two weeks of paternity leave following the birth of his child, and after supervisors advised him during his wife’s pregnancy on the wisdom of having a child. (As an aside, Van Soeren claims that his supervisors learned of the pregnancy by hacking his computer.)
The Pregnancy Discrimination Act (enacted in 1978) amended Title VII’s definition of “sex” to make clear that it also includes “pregnancy, childbirth, or related medical conditions.” Disney is now arguing that Van Soeren’s lawsuit should be dismissed because Title VII doesn’t protect a male employee because of his wife’s pregnancy. Yet, the statute does not say “a woman’s pregnancy”; the definition is gender-neutral. Thus, Disney has an uphill battle to establish that the Pregnancy Discrimination Act doesn’t equally cover dads as moms.
Further, consider the following passage from Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County—

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.

Bostock says very clearly that an employer discriminates on the basis of sex if “changing the employee’s sex would have yielded a different choice by the employer.” Would Disney have made the same decision relating to a woman’s choice to have a child, or did it rely on outdated and illegal stereotypes about a man’s role as a provider instead of a caregiver? It’s doubtful, based on the comments Van Soeren claims his supervisors made after they learned of his wife’s pregnancy.
Bostock leaves open a lot of questions: Can religious employers claim an exemption from Title VII’s prohibition against LGBTQ discrimination, and if so, how broadly?
Does Title VII’s prohibition against LGBTQ discrimination moot the Trump Administration’s plan to roll back protections for transgender people from discrimination in health care and insurance coverage? Add to this list the question of just how broadly Bostock’s causation standard will apply, and if it applies to other forms of sex discrimination such as pregnancy discrimination?
I believe it does, and I believe Disney will lose its effort to have Van Soeren’s lawsuit dismissed.
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Everything you need to know about the LGBTQ discrimination decision in 5 quotes

lgbtq, legal, discrimination, diversity and inclusion

June is Pride Month. If you thought the month’s biggest LGBTQ news was Nickelodeon tweeting that SpongeBob was part of the LGBTQ+ community, you have another thing coming.

On June 15, in Bostock v. Clayton County, the United States Supreme Court clearly, decisively and unequivocally held:

An employer who fires an individual merely for being gay or transgender violates Title VII.

The Bostock majority opinion is 33 pages long. I’ll break it down for you in five key quotes.

1. “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long­time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

2. “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

3. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

4. “There is simply no escaping the role intent plays here: Just as sex is necessarily a but­-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

5. “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.… ‘Sexual harassment’ is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Same with ‘motherhood discrimination.’ Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.”

(Bonus wishy-washy quote, from Justice Kavanaugh’s dissent: “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”)

There has not been a more significant employment law decision in over 22 years. It might be that long or longer before we see another of this import. Bostock is worthy of celebration because it finally puts to rest any open issue that employers can insidiously and intentionally discriminate against their LGBTQ employees.

June 15 is a day worth celebrating because it will forever be the day that our LBGTQ brothers and sisters finally gained their civil rights at work. It was long overdue.

Employers, take heed. If you are still among the group of businesses that discriminate against LGBTQ employees, you are violating the law. This is no longer an open question. Case closed.

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COVID-19 is not an excuse for age discrimination

workforce management software; hr tech
Consider these headlines:
While there’s still a lot we don’t know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above.
Indeed, according to the CDC, 80.6 percent of all coronavirus deaths are in that age bracket. These fatality rates might explain why you might want to protect your older workers by forbidding them to come into work or by placing them on leaves absence.
Here’s the thing, however. Employment discrimination laws hate paternalism. While you might be acting from a place of good intentions to protect your older workers from a potentially deadly exposure of COVID-19 by keeping them away from the workplace, that’s not your choice to make. Only the employee can make that choice.
The EEOC confirmed this guidance in an updated FAQ on COVID-19 and antidiscrimination laws it published late last week.

The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

If you force older workers to stay away (even if it’s for their own protection), you are almost certainly committing age discrimination. Their health, their choice. Don’t make it for them.
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How do parents return to work without available child care?

Samsung service, child care, parent

Child care is the issue that has gotten the least attention in discussions about employees returning to work.

As states begin to slowly reopen and return employees to work, working parents are left wondering who will care for their children if schools, day cares and camps are closed.

The Families First Coronavirus Response Act provides working parents with some relief with its 12 weeks of paid child care-related leave. But that law has limits.
  1. It does not apply to businesses with 500 or more employees, and businesses with less than 50 employees can exempt themselves from the childcare-related leave provisions.
  2. It limits an employee’s leave allotment to 12 weeks, meaning that if an employee started taking childcare-related paid leave when the FFCRA took effect on April 1, he or she will exhaust their paid leave on June 24.
  3. It does not apply if there is anyone else available to care for an employee’s child(ren) during the employee’s working time.

And the FFCRA does not account for parents who are stretched the point of exhaustion, working their full workdays remotely, and then working another full workday managing child care-related responsibilities. Consider the following hypothetical from the New York Law Journal.

Maya is an investment banker in New York City and typically works a 10-hour day. Maya has a nanny care for her infant daughter while she is at the office. During this pandemic, Maya is forced to work at home and her nanny is unable to help. Maya now has to handle a 10-hour/day job using less-than-ideal remote access technology—her remote desktop does not operate as smoothly as her office computer; she has one screen on her home computer as opposed to three in her office; she does not have direct access to her assistant or her other staff; she does not have the full panoply of office supplies and other corporate-level printing and copying, etc. With all these hindrances, Maya must work 12 hours to accomplish the same work she previously did in 10. On top of that, she must care for her infant daughter all day, which conservatively involves approximately eight hours of direct, hands-on attention. For Maya to cover her responsibilities (minus any time for even a short break), she must work a 20-hour day. And, she must do this every day, indefinitely, until the circumstances of this pandemic change.

Or consider, for example, Ohio Gov. Mike DeWine, who on May 5 said that some K-12 schools are considering starting the 2020–21 school year on a split schedule. Half of a school’s students would attend in-person classes on Mondays and Tuesday, and the other half of Thursdays and Fridays. Students would distance learn on the days they aren’t in school in person.

This plan is great for helping schools manage social distance, but it’s terrible for working parents who are left scratching their heads figuring out who will help manage distance learning and otherwise watch their children on the days they aren’t in school, and who will provide child care after school.

What’s an employer to do?

1. Don’t discriminate. Family responsibility discrimination remains unlawful under Title VII. While federal law does not expressly include “family responsibility” as a protected class, the EEOC has long held that Title VII’s prohibits discrimination against parents as parents if you are treating some more favorably than others (e.g., dads better than moms, or men better than moms). There are also, a few states that expressly prohibit parental discrimination. If, for example, you have to make decisions about layoffs, you should be considering whether working parents are disproportionately included.

2. Consider accommodations to aid working parents. Work from home is already an accommodation, but there are others that could help here. Modified work schedules (which the Department of Labor favors in its FFCRA guidance), designated breaks, and the provision of additional work supplies such as laptops and printers could all ease the burden on parents working from home. Our goal here should be helping employees figure out solutions to get their job done, not harming employees (and the business) by erecting barriers that prevent it.
3. Finally, and most importantly, flexibility is key. Ohio’s Stay Safe Order mandates that manufacturers, distributors, construction companies, and offices allow employees to “work from home whenever possible.” If employees can work remotely, let them work remotely. Flexibility, understanding, and compassion is the best answer I can offer for the foreseeable future.
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HR needs to build employee trust to address sexual harassment

sexual harassment prevention requirements

While the #MeToo movement has brought some high-profile results including the imprisonment of Harvey Weinstein and Bill Cosby, the reality is that in general there have been few consequences for harassers. 

This is especially true for populations of employees especially vulnerable to sexual harassment, including low-wage workers in the retail and service industries. Looking at data from 1995 to 2016, the Equal Employment Opportunity Commission received more complaints of sexual harassment from the restaurant industry than from any other industry, according to Time. Retail employees, meanwhile, occupy the No. 2 spot in number of sexual harassment complaints filed. 

trust, HR, sexual harassmentAccording to digital media company Racked, what makes service workers vulnerable to sexual harassment includes low wages and complicated, ineffective complaint processes that rarely lead to any consequences. Further, harassers know they can prey on vulnerable workers who are often women or people of color because they can use these vulnerabilities against the person they’re harassing and take advantage of a power imbalance, according to Racked.

As rampant as sexual harassment is, offenders often get away with it and victims don’t believe their complaint will go anywhere. Meanwhile, HR may get the reputation of being more interested in protecting the company than protecting the victim. 

Fifteen percent of employees have been sexually harassed according to “The State of Humanity at Work,” a spring 2020 report from software company Workhuman, which surveyed 2,613 full-time employees. But that number is probably higher given the sensitivity of the topic, the report noted. Of these people, 39 percent said they don’t trust their HR department. Only 47 percent of women and 66 percent of men who have been sexually harassed reported it.

“This mistrust is further manifested in low numbers of people reporting harassment. Changing these numbers is going to take work building up trust and showing commitment to listening and respect,” according to the report. 

What employees can do after being sexually harassed

File a formal complaint: Despite employee concerns that HR will do nothing, filing a formal complaint is still a good idea. 

If your company has a specific procedure for handling sexual harassment complaints, employees should follow it to the letter, taking note of every detail, like any time limits set out in that policy, advises law firm Allred, Maroko & Goldberg. In the case where a company has no formal procedure, an employee can start by reporting the harassment to their immediate supervisor, and, in the case where the supervisor is the one doing the harassing, report it to that supervisor’s manager. “It is important, particularly in hostile environment cases, to make sure that your company’s management knows of the harassment,” the law firm’s blog noted. 

Keep records of everything: If an employee has any uncomfortable incident with their harasser, they can keep a log of times, dates and exactly what the person said or did for reference. They can also note witnesses who may be able to corroborate the incident. When they have digital evidence like texts, emails or instant messages to screenshot, that is further evidence to bring to HR with their complaint. 

Being thorough and detailed is important here. The more details and evidence someone has, the better.

Further steps an employee can take: Sometimes a harassment victim is unable to resolve your harassment complaint by using your employer’s internal procedures, the law firm blog noted. If they still want to pursue the complaint, they can turn to the Equal Employment Opportunity Commission or their state’s human rights or civil rights enforcement agency next. 

This can lead to several outcomes. The agency may decide not to proceed with the complaint but issue the victim a “right to sue” notice, allowing them to bring the case to court. The agency may also choose to file their own lawsuit against the employer.

A lawsuit is not the route an employer wants to take. That’s one reason it’s important to HR to step up and take sexual harassment cases more seriously. 

“HR is like the CIA — when we do the right thing (like getting rid of a harasser) employees might never know about it, but when we screw up (like protecting a harasser), everyone knows,” said Kate Bischoff, an employment attorney at tHRive Law & Consulting LLC. This only magnifies the reputation of HR as a department that ignores critical culture issues like sexual harassment. 

If this is the reputation of HR — and at times it is the reputation HR departments have earned, Bischoff said — then HR professionals must work harder to build trust with employees. They can get to know employees, ask them how they’re doing and find out what HR can do to help with any issues they’re having. 

Building these relationships may help people feel like HR is trustworthy and will take sexual harassment seriously.

HR’s role in building employee trust

“The best way to build a connection with employees is to create a human-centered culture. Leaders can do this by keeping the line of communication open and providing frequent check-ins,” Bischoff said. “[And] good HR professionals build trust and take action to prevent and stop harassment.”

The report stressed the importance of a “human workplace,” defined as an environment where people are allowed to be human, make mistakes and treat each other with empathy, Bischoff said. “If we see each other as humans, we’re more likely to speak up when things are not right, when there are problems, and when we believe we’ve been harassed,” she added. 

Not addressing sexual harassment has a clear negative impact on employees, but it can also adversely affect employers through turnover. Of the 21 percent of employees who are actively looking for a new job, 33 percent have been sexually harassed at work, according to the survey. This number is probably higher, the survey stated. 

The “lawyerly” reason organizations should take sexual harassment more seriously is because of the risks they face due to bad press, lawsuits, charges of discrimination and the costs of settlement. But there’s much more to consider than reputational and financial damage. “Good organizations hear the lawyerly response more clearly, but great organizations hear the human response more clearly,” Bischoff said.

When sexual harassment occurs, a company is not providing an environment for employees in which they can do their best work and voice their concerns, she said. The company is treating their employees poorly, and it’s not providing the best services or products to its clients and customers as well. 

The Workhuman report found that of the women who reported being sexually harassed, 29 percent did not get their claim investigated, Of the men reporting sexual harassment, 12 percent did not get their claim investigated.

This may also contribute to mistrust in HR, Bischoff said. “There’s no good reason for harassment not to be investigated,” Bischoff said. “Serious allegations of harassment should always be investigated.”

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Not every mistake amounts to actionable employment discrimination

employment law, labor law, overtime records

Mistakes happen. Including in the context of employment decisions. But not every mistake amounts to actionable employment discrimination. That’s the lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she had been stealing from one of the company’s clients.

So starts the 6th Circuit’s opinion in Smith v. Towne Properties Asset Management Co.

The Practical Employer, employment law blogRobyn Smith worked as a community manager for apartment complexes. As part of her compensation, she lived rent-free on site.

Several years into her employment, Smith developed pseudotumor cerebri — a condition caused by spinal fluid pressure on the brain — the symptoms of which include migraines, blurred vision, vertigo, and short-term memory loss. She took several leaves of absence under the FMLA, all without incident.

Thereafter, a co-worker complained to management that Smith had been embezzling money by coding her gas and electric bills to vacant apartments. Following an investigation, Towne Properties fired her.

As it turned out, prior ownership had permitted Smith to have free utilities, a fact that no one had bothered to disclose to new ownership. Even after discovering its mistake, however, the company refused to reconsider its termination decision.

The appellate court concluded that the district court had properly dismissed Smith’s discrimination lawsuit. Why? Because, even though the employer’s reason for firing her turned out to be incorrect, it had an honest belief about it when it reached its decision.

To win on her claim, Smith must show (among other things) that Towne’s explanation for firing her was pretext for disability discrimination. In other words, that the neutral explanation is simply cover for a discriminatory motive. Smith can’t show a trialworthy dispute about pretext if Towne honestly believed that she was misappropriating utilities even if that belief turned out to be mistaken.

The court relied on the company’s investigation, including interviews of witnesses and review of documents, to conclude that “Towne made an informed decision based on specific facts.”

The “honest belief rule” is one of the most effective shields available to employers in discrimination cases. As long as the employer has an “honest belief” in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because, in reality, it is incorrect.

Yet, if you want to be able to argue that your honest belief justifies your decision, you must be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence developed in a thorough investigation, is best. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities. Smith v. Towne Properties Asset Management is a good roadmap for employers to follow in claiming the protections of this rule, in the event a decision later turns out to be mistaken.

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What employers need to know about coronavirus and the workplace

COVID-19, coronavirus, public health crisis

The United States Center for Disease Control and Prevention has been closely monitoring the spread of coronavirus,  a respiratory illness first detected in Wuhan, China. Now that the coronavirus has taken a deadly turn in the United States, many employers are looking for guidance as to how they may protect employees while continuing to adhere to their legal obligations in the workplace. 

Here are some suggestions that employers may take to protect themselves and their employees. 

COVID-19, coronavirus, public health crisisAllow employees to work from home as a precaution

In January, the CDC confirmed that the virus may be spread through person-to-person contact. In light of this information and the understanding that the incubation period is between two and 14 days, employers should consider allowing employees concerned about possible exposure to work from home, to the extent practicable. 

If remote work is not possible, employers could alternatively consider providing paid leave during that incubation period.

Consider alternatives to business trips

At the time of this publication, the CDC has issued a level 3 health travel notice — recommending that individuals avoid all unnecessary travel to China, Iran, South Korea and Italy. For those employers with employees traveling to any of these areas for business purposes, consider whether postponing or moving the location of the trip is a suitable alternative. Other options may include telephone and/or video conferencing. 

Similarly, if an employee expresses concern about business travel to other affected areas, employers should consider reasonable alternatives, mindful of OSHA’s requirement that employers provide “a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to . . . employees.”  

Assess risk on a case-by-case basis

With regard to those employees showing what could be early-stage coronavirus symptoms — which are similar to that of a cold — there is a risk of overreaction and business disruption if employers take a one-size-fits-all approach, requiring all employees with those types of symptoms to stay home. 

Instead, employers should assess risk on a case-by-case basis and encourage employees to seek and follow professional medical advice in a manner consistent with the employer’s usual sick leave policies.  

Similarly, employers should broach the topic of employees’ symptoms carefully as state and federal anti-discrimination laws limit medical inquiries by employers if doing so may reveal an employee’s disability. In light of these limitations, we recommend employers do what they can to ensure a healthy, safe working environment by encouraging any employees showing symptoms of the coronavirus to follow public health guidance and professional medical advice and by reminding employees about applicable human resources policies and procedures.  

Also read: Can an employer require an employee with a serious health condition to take FMLA leave?

Take care to avoid discriminatory behavior or actions

An employer must be mindful of all its legal obligations, balancing the requirement to ensure a healthy and safe working environment with its concurrent obligation to maintain a working environment that is free from unlawful discrimination.  For example, an employer should seek to avoid any stereotyping behavior by employees, such as inquiries related to the coronavirus that can be linked to an employee’s national origin. Such inquiries could result in claims of unlawful discrimination.  

Also read: COVID-19 and the role of businesses in a public health crisis

As another example, if an employee discloses their diagnosis with the virus, employers should work with them to determine what steps to take to prevent the spread to other employees in the workplace, as well as to enable the employee to recover and return to work.  Options may include a remote work arrangement, paid or unpaid sick leave or another form of leave of absence.

Importantly, employers should ensure supervisors are trained to avoid overreaction and are informed about the applicable laws that restrict inquiries into the health status of employees. They should also be trained on the importance of adhering to company anti-discrimination policies (including avoiding stereotyping based on race, ethnicity, and national origin).  

Communicate regularly 

By regularly communicating with employees as to current policies and procedures for managing the virus, employers will be best equipped to balance their legal obligations. If, in accordance with CDC or local health official guidance, an employer decides that any employee showing symptoms of the virus will be encouraged to stay home until they are fever free, this should be communicated to all employees uniformly. 

If an employee approaches management with specific questions, the employer should proceed with caution and avoid asking questions that may lead to the disclosure of an employee’s disability.  Instead, the employer should focus on the employee’s job duties and what adjustments, if any, can be made to enable the employee to perform those duties.

Balance safety and legal compliance

Employers cannot prioritize OSHA health and safety requirements over state and federal privacy and anti-discrimination laws. The threat of the virus does not excuse the employer from its other legal obligations, and claims are bound to arise if an employer lets one of its responsibilities slip.

Please note that the above information is based upon what is presently known about the coronavirus. This is an ongoing issue and employers should remain informed of further updates from the CDC and other local public health officials.  

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DO NOT use social media to determine applicants’ race and gender

Person on laptop

Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches … provided you don’t use the information unlawfully. For example, to discriminate on the basis of a protected class.

If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.

According to NBC News, McCarrick claims that Amazon fired her after she complained to her supervisor about being made to scour the social media accounts of applicants to determine their race and gender.

McCarrick joined Amazon as a loss prevention manager in July 2018 and was promoted to a regional manager five months later, the suit says.

After her promotion, her supervisor instructed McCarrick to go through the social media profiles of job candidates “for the purpose of ascertaining race/ethnicity and gender,” according to the lawsuit.

In September, she submitted a written complaint raising her concerns about being told to scour applicants’ social media accounts…. Two months later, in November, she was called into a meeting with human resources and the director of loss prevention informing her that she was fired.

I am not going to begin to suggest that employers refrain from searching publicly available information on social media to help screen candidates. Social media can provide a treasure trove of information that could disqualify someone from employment. Wouldn’t you want to know, for example, if a prospective employee trashed a former employer, or shared a former employer’s confidential information, or posted racist comments?

What you cannot do, however, is use social media to screen candidates on the basis of race, gender, or any other protected class. This should be common sense, right? Right?

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The 3rd nominee for the Worst Employer of 2020 is … the Arresting Retaliator

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An African-American employee claims he suffered rampant discrimination at the towing company at which he worked, including being called racial slurs.
But that’s not what qualifies A&B Towing for its nomination as the Worst Employer of 2020. It’s what happened to Michael Fesser after he complained to his boss about the discrimination and harassment that is truly eye-opening and offensive. NBC News has the details:

West Linn police began investigating Fesser in February 2017 after Fesser raised concerns to his boss, Eric Benson, owner of A&B Towing, that he was being racially discriminated against at work. …

After he raised his concerns, Benson contacted West Linn Police Chief Terry Timeus, his friend, and persuaded to look into allegations that Fesser had stolen from the company, according to the lawsuit.

The suit said the theft allegations were false and unsubstantiated.

But with the approval of West Linn police Lt. Mike Stradley, Detectives Tony Reeves and Mike Boyd used audio and video equipment to watch Fesser while he was at work, according to the suit. The surveillance was “conducted without a warrant or probable cause” and did not result in any evidence that Fesser was stealing from his employer, the lawsuit stated.

Regardless, West Linn officers, with the help of Portland police officers, arrested Fesser days later based on Reeves’ and Stradley’s “false representations” to Portland police that they had probable cause for an arrest. …

Fesser spent about eight hours at the police station before he was released on his own recognizance. He was later contacted by West Linn police to come to the station to retrieve some of his belongings. While he was there, officers informed Fesser that he had been fired from his job, according to the lawsuit. …

According to the lawsuit, criminal charges in the arrest weren’t filed until after Fesser sued his employer over his termination and for discrimination. The charges were later dismissed.

If you call in a friendly favor to the chief of police to have an employee falsely arrested after that employee complains of workplace discrimination and harassment, you might be the worst employer of 2020.

Previous nominees:

The 1st Nominee for the Worst Employer of 2020 Is … the Repeat, Repeat Offender

The 2nd nominee for Worst Employer of 2020 is … the Uncaring Chief