Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.
DâMarius Allen worked as an EMT for Ambu-Stat, owned by husband and wife Santos and Rita Ortiz. During the four months Allen worked for Ambu-Stat, she claimed that Santos subjected her to sporadic instances of verbal sexual harassment. For example, he told her she was âprettyâ and âfine as hell.â She also alleged he made three sexually suggestive comments to her.
Three months into Allenâs employment, Rita called her into her office and accused her of discussing her sex life with Santos. Allen demurred that Santos started any sexual conversations between them. Rita ended that meeting by warning Allen that it was inappropriate to discuss her personal life with Santos, as he was her employer. One week later, Rita delivered a disciplinary employee correction form to Allen for having had an âinappropriate conversationâ with Santos while on duty. The form stated that âhaving such conversations while on duty with co-workers (or especially with my husband) is extremely inappropriate and unacceptable.â
Allen responded by explaining to Rita, in writing, that Santos had asked her if her boyfriend was good at oral sex, in response to a lyric in a song on the radio. Allen also wrote that she did want to be âinvolved in any sexual harassment.â Finding Allenâs explanation to be âoutlandish,â âdisturbing,â and âfull of lies,â Rita terminated her.
The 11th Circuit Court of Appeals affirmed the district courtâs dismissal of Allenâs retaliation claim. The court differentiated between bona fide opposition to unlawful discrimination or harassment (protected), as compared to an attempt to apologize and mend fences (not protected). The court concluded that Allen had engaged in the latter. Case dismissed. Employer wins.
This decision is baffling. Allen was in an extraordinarily difficult situation, harassed by one owner-spouse and having to justify her action to the other owner-spouse. She should not have to use âmagic wordsâ to express her discomfort in the situation. (Never mind that she actually did use the magic word âharassmentâ.)
An employer has the same anti-harassment and anti-retaliation obligations to an employee whether the accused harasser is a line worker or an owner. Take the allegations seriously, investigate, correct and do not retaliate. Ambu-Stat failed on each of these steps and is very lucky to have walked out of this case free and clear.
Many American companies are missing out on employees who have the potential to transform their perspectives and increase their profits. Specifically, theyâre overlooking a significant swath of the U.S. population â the 70 million Americanswho have a criminal record.Â
This isnât to say progress hasnât been made to re-integrate this group back into the working world. Recently,the Fair Chance Act was signed into law by President Donald Trump as part of the National Defense Authorization Act. The law prohibits the federal government and federal contractors from asking about an applicantâs criminal history prior to the conditional offer stage.Â
With this recent law, the White House is joining the 35 states and over 150 cities with similar âban the boxâ policies. Such âban the boxâ policies help remove barriers for people with criminal records during the hiring process by delaying questions about oneâs criminal history from the initial part of the hiring process.Â
This is a part of a larger criminal justice trend taking shape across both the public and private sectors. Many organizations and corporations, including Coca-Cola, American Airlines, Google, Facebook, and others, signed on to theFair Chance Pledge launched by the Obama Administration.Â
Slack, in partnership with the Kellogg Foundation and others, launchedNext Chapter, a pilot program designed to help formerly incarcerated individuals succeed in tech. Providing these opportunities to qualified candidates adds stability to workersâ lives and, by extension, helps strengthen communities. Thatâs a message companies want to get behind, and with good reason.Â
After all, fair chance hiring is built on the premise that everyone, regardless of their background, should be fairly assessed for a role they are qualified for, including those with criminal histories. Candidates that fall into this category are often eager and driven but overlooked for past infractions that may or may not have any connection to the role for which they are applying.Â
Fair chance hiring lowers recidivism and enables individuals with arrest or conviction records â and their families â to get back on their feet and reintegrated into society. But in my experience, it benefits employers just as much, if not more.Â
Take my employer, for example. At Checkr, fair chance hiring is deeply embedded into both our culture and our process, which is fulfilling to me on a personal level as a former public service attorney for the Department of Justice and the Federal Trade Commission. In terms of hard numbers, about 6 percent of our employees are fair chance, and 72 percent have moved up at Checkr or gone on to new positions elsewhere.Â
If fair chance hiring is something youâd also like to consider at your organization, here are a few benefits you can expect.Â
Develop a competitive edge through a broader talent pool. Given how tight todayâs job market is â the Bureau of Labor Statistics reports that the current unemployment rate is hovering around 3.5% â employers canât afford to turn away qualified applicants. And becauseone in three American adults has a criminal record, automatically excluding anyone in this category necessarily means that you are missing out on good people. A broader talent pool means better, stronger hires, which in turn gives you a valuable competitive advantage.
Diversify your employee base. In America, the burden of incarceration isborne disproportionately by underrepresented minorities. When companies hire from this talent pool, theyâre not just bringing on racial diversity, theyâre also opening their doors to people who are likely to have different abilities, education levels and economic statuses. A more diverse team means different perspectives and new ways of looking at challenges, which ultimately lead to creativity, innovation and disruption.Â
Get a better return on investment. Fair chance hiring practices offer a significant return on investment, both from a performance and retention perspective. In fact,a study of John Hopkins Health Systems & Hospital (which has employed hundreds of people with criminal backgrounds since 2000, making up 5 percent of their workforce) found that, over a four-year period, fair chance employees had a 43 percent higher retention rate than employees without a criminal record.
If you truly incorporate fair chance hiring as part of your corporate mission, the positive effects will astound you. Not only is it the right thing to do, but you will reap rewards far in excess of what you sow through a diversified, loyal, and passionate employee base.
Crescent Metal Products in Ohio fired Donald Tschappatt for a variety of instances of poor work performance.
He made “negative comments” about co-workers. He stood around doing nothing and disappeared from his work area. He took extended bathroom breaks. And he made various assembly and packing errors.
After the company fired the 55-year-old Tschappatt, he sued for age discrimination.
The problem with Tschappatt’s claim? Crescent Metal Products replaced him with someone 6 years older. That’s not a great fact for an employee claiming age discrimination.
Tschappatt fails ⌠to show that he was replaced by someone younger. All of the competent and relevant evidence indicates that the company replaced him with Bob Hunter, who was 61.⌠Crescent put in plenty of evidence that Bob Hunter, age 61, replaced Tschappatt. Crescent reassigned Hunter to Tschappattâs position, and Hunter has been “able to successfully reach the same production goals” and “perform all of the duties” of the position “without incident.”
The law protects older workers from discrimination favoring younger workers. An employee cannot establish this if replaced by someone older. Case closed.
If thereâs a better way of starting 2020 than with the first nominee for the yearâs worst employer, Iâm not sure what it is.
Meet Dru DiSilvestro, the manager at an electrical contractor in Elmer, NJ, accused of sexually harassing Kimberly North, a 23-year-old employee, while in the midst of litigation brought by another employee accusing DiSilvestro of flashing his penis and leaving a dildo on her desk. And that wasnât even the first lawsuit accusing DiSilvestro of harassment. His employer settled another even earlier suit accusing him of sexually crude language.
According to the New York Post, âNorth says DiSilvestro for years made comments about her âhot body,â grabbed his crotch while making lewd faces at her and asked her about her sexual preferences.â Further, when she broke up with her boyfriend, âDiSilvestro allegedly sent her a text ⌠of a porno video and a GIF of a woman performing a sex act on a man.â Her lawsuit includes screenshots of the alleged text messages.
Worse yet, when North complained to DiSilvestroâs bosses they did nothing, even though they were already in the middle of defending the penis-and-dildo lawsuit. Eventually, North took a leave of absence because of the anxiety of working with DiSilvestro, and quit a month later. Her lawsuit soon followed.
If you ignore complaints of egregious sexual harassment brought by an employee while already litigating similarly awful claims of sexual harassment brought by another employee against the same supervisor, you might be the worst employer of 2020.
The 20th (and final) nominee for the Worst Employer of 2019 is Alki David, heir to the Coca-Cola bottling fortune and owner of several media firms.
The evidence?
This week, a jury awarded over $58 million to a female employee who accused him of thrusting his pelvis into her face, simulating oral sex, moaning and zipping up his pants and walking away saying, âThanks, M.K.â
Itâs the third massive sexual abuse verdict leveled against David just this year.
In April a jury ordered David to pay another employee more than $11 million, fired after she refused to have sex with him. And in October, yet another jury awarded another employee over $5 million for allegations that David put his hands on her throat and pushed her chair into a wall, and for telling her that she needed to get supplies for his ârape room.â
For his part, David does not seem to have learned his lesson. âThis trial proves that not only is the system broken. Itâs in a state of emergency.â
Quite a worthy nominee to end this yearâs list.
Come back one week from today, when voting will open to name this yearâs Worst Employer. I have a feeling Alki David will have a very nice showing when the votes are counted.
Wesley Wernecke, an ex-employee of New York event planning company Eventique, claims in his recently filed suit that the company intentionally alienated him, ostracized him and shut him out of the business after its CEO learned Wernecke was gay.
NBC News shares the details of the allegations in Werneckeâs lawsuit.
Wernecke had just begun to work for Eventique âŚwhen [CEO Henry Liron] David began to push him out of his role ⌠.
A week after he was hired, Werneckeâs co-workers commented on his âgirlyâ engagement ring. When a co-worker asked if his wife wore a similar ring, Wernecke replied that his partner, Evan, did.
From that point on, tension developed between Wernecke and his co-workers and David that had not existed before, according to the complaint.
In the interim months, the complaint alleges, Wernecke was ostracized and excluded from professional meetings and office social events, passed over for assignments with large commissions and subject to discriminatory remarks.
David ⌠would exclude Wernecke from company lunches and frequent after-work drinks with âthe fellasâ in his office, the lawsuit states, and at one point, David gave an account Wernecke had been working on to another employee without consulting Wernecke.
These allegations, however, are the least of Eventiqueâs problems. According to Werneckeâs lawsuit, David significantly cut his salary (from $145,000 to $58,000.) Davidâs justification (again, according to the lawsuit): so that Werneckeâs pay would be on par with âthe other females in the office.â
Thatâs not just an admission of sex discrimination against Wernecke, but also an admission of wage discrimination against the companyâs female employees.
My advice to Eventique? Get out ahead of this issue, conduct a pay equity audit as soon as possible, and adjust salaries and wages as needed. Because if Iâm a woman working at Eventique, Iâm interviewing employment lawyers this week.
My gut, however, tells me that if a CEO is brazen enough to (allegedly) make those statements, heâs brazen enough to take this lawsuit head on.
Nov. 11, 2019 is the last day for employers to submit reports detailing their employee compensation data to the Equal Employment Opportunity Commission.
Under the new reporting requirement, employers with at least 100 employees must report information to the EEOC regarding employee wages and hours worked by job category, race, ethnicity and gender. The EEOC is continuing to collect this data for 2017 and 2018 in advance of the Nov. 11 deadline, but the new requirement appears to be short-lived. On Sept. 12, 2019, the EEOC announced that after this yearâs deadline, employers will no longer be required to submit compensation data, also known as âComponent 2â data.
The EEOC first proposed this additional collection of pay data in 2016, and the reports were slated to be due Mar. 31, 2018. In announcing the new requirement, EEOC Chair Jenny R. Yang explained that the collection of pay data was meant to âassist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws.” The EEOC ultimately reversed course, explaining that the âunproven utilityâ of the pay data collection is âfar outweighed by the burden imposed on employers that must comply with the reporting obligation.â
After Nov. 11, covered employers can return to the EEOCâs previous data collection practices, in which it has required employers to report demographic information (now called âComponent 1â data) using the EEO-1 form. Since 1966, employers with more than 100 employees have been required to report the number of individuals employed by job category, race, ethnicity, and gender.
For federal agencies like the EEOC to collect information from the public, they need approval from the Office of Management and Budget, so the EEOC sought approval from the OMB to collect Component 2 data using a revised EEO-1 form.
In 2017, the OMB stayed the requirement to report Component 2 data. Thereafter, several advocacy organizations brought an action against the OMB to end the stay and reinstate the revised EEO-1 reporting requirements and collection of Component 2 data. On Mar. 4, 2019, the U.S. District Court for the District of Columbia ruled that the OMB failed to demonstrate good cause to uphold the stay and permitted the collection of Component 2 data using the revised EEO-1 form. While the Department of Justice filed an appeal on May 3, this did not stay the reporting requirement.
The initial deadline to collect Component 2 data was Sept. 30, 2019, but it has taken a substantial amount of effort for employers to provide the requested pay data information. Before the collection of Component 2 data was officially underway, the EEOC estimated that adding Component 2 data would increase the burden of EEO-1 reporting by 90 percent. Given the difficulty of completing this reporting, it comes as no surprise that the data collection and submission of the revised EEO-1 reports have not been seamless. As of Oct. 8, 2019, only 75.9 percent of covered employers had submitted the requested data by the initial deadline. This is far lower than the response rates for prior EEO-1 Component 1 data collections, which exceeded 90 percent.
It remains unclear how the newly collected Component 2 data will be used, especially since it only includes pay information for 2017 and 2018. The EEOC has stated that, as a general matter, EEO-1 data is used âfor a variety of purposes including enforcement, self-assessment by employers, and research.â The EEOC has also published aggregated EEO-1 Component 1 data, in addition to periodic industry specific reports.
While any potential uses for the data are uncertain, the EEOC has implemented procedures âto ensure the protection of identifiable information of our survey respondents and maintain EEOCâs commitment to protect the data confidentiality.â This should allay concerns that an individual employerâs EEO-1 data could be made public.
As for lessons learned in the aftermath of this extensive data collection, employers could use the information gathered to conduct internal pay analyses. While employers will no longer be subject to this particular reporting requirement, prudent employers will still gather pay data by job category, race, ethnicity and gender to take proactive measures to avoid pay equity lawsuits.
Maryville Anesthesiologists fired Paula Babb, an experienced certified registered nurse anesthetist, because it thought she suffered from a visual impairment.
How do we know why it fired her? Because the day after Babbâs termination, one of her co-workers confirmed it in an email (written at the direction of one of the employerâs owners).
As most of you know, [Babb] has been having major issues with her eyesight and as of late, it has seemed to be getting even worse. We have had numerous complaints from [hospital] staff regarding her inability to read the monitor, etc. Over the past several months the group has given her several opportunities to provide documentation from her eye specialist saying that she was safe to practice. [Babb] was unable to provide this documentation. This, in addition to a few other issues, has forced the group to make a very difficult decision. As of today, she is no longer with our group. Sorry to be the bearer of bad news. This was one of the reasons that our meeting was postponed. See you all tomorrow.
Despite this email, the district court granted the employer summary judgment and dismissed Babbâs âregarded as disabledâ ADA lawsuit.
On appeal, the 6th Circuit had little difficulty in reviving the claim, in large part because of what it described as the âsmoking gunâ email.
Maryville has never tried to defend its termination of Babb on grounds that Babbâs vision created a safety hazard, and has instead insisted that Babbâs termination occurred solely because of clinical errors unrelated to her vision. But, yet, just hours after Maryville decided to fire Babb, Crystal Aycocke wrote an e-mail to her fellow CRNAs essentially stating that Maryville was firing Babb because of her impaired vision. More striking still, far from being mindless office gossip, Aycocke admits that she composed this e-mail at the direction of Dr. Proffittâone of the key players involved in Babbâs terminationâshortly after Dr. Proffitt informed her of Babbâs termination. And, of course, all of this occurred in a context in which Maryvilleâs physicians felt concerned enough about Babbâs vision to discuss it at the meeting at which they decided to fire Babb, and on the official evaluations they wrote about Babb. (âI see her questionable ability to see reflect on how surgeons and the medical staff lack accepting her.â). If this kind of âsmoking gunâ evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.
Employers, if you are short-sighted enough to (a) fire an employee because you believe she suffers from a disability, and (b) confirm that belief in writing, then you deserve whatever fate you suffer in litigation.
James âRandyâ Williams worked as a department manager for Graphic Packaging. In late 2014 or early 2015, Williams told his supervisor, plant manager Eddie Lee, that he had been re-diagnosed with prostate cancer. In September 2015, Williams requested time off for treatment, which the company granted from Sept. 14 through Nov. 23, 2015. During that leave, however, several of Williamsâ subordinates lodged complaints against him of inappropriate treatment. The company investigated, and concluded that âWilliams had been using manipulative and coercive tactics to control his employees and prevent them from communicating with upper management.â As as a result, shortly after Williams returned to work, the company fired him.
Williams sued, claiming (among other things) that firing on the heels of a return to work after cancer treatment is tantamount to disability discrimination.
The 6th Circuit court of appeals disagreed.
The evidence demonstrates that Graphic Packaging terminated Williamsâs employment after receiving complaints from an employee, which were later corroborated by interviews with fellow employees, an internal investigation, and depositions from Graphic Packaging upper management, Human Resources employees, and employees who reported to Williams. The record reflects that Williams violated Graphic Packagingâs Core Values by mistreating employees both publicly and privately, limiting access to upper management, and propagating troubling and salacious rumors concerning upper management. Williams has even admitted that he committed at least some of the acts which so clearly violated Graphic Packagingâs Core Values.
No employee gets a free pass on workplace misconduct just because he or she suffers the misfortune of having cancer (or any other disability). The company concluded that the allegations against Williams (which its internal investigation corroborated, and many of which Williams himself admitted) merited termination. Those allegations included Williams telling his subordinates that he âownedâ them; spreading an unsubstantiated rumor that Lee had molested his own daughter; cheating on a mandatory safety exam; and forbidding his subordinates from speaking to plant management.
Cancer and other ADA-protected disabilities are not âget out of jail freeâ cards for workplace misconduct. Do your due diligence, and treat the employee the same as you would have treated him or her if the disability didnât exist. If the misconduct warrants termination, so be it. Terminate, and defend your legitimate, non-discriminatory decision. Otherwise, you risk setting a precedent that the misconduct is OK, which will make it that much more difficult to hold others accountable for that same misconduct in the future.
For lack of more artful description, Ohioâs employment discrimination law is an awful mess.
Among other problems, it exposes employers to claims for six(!) years; contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines);Â renders managers and supervisors personally liable for statutory discrimination; omits any filing prerequisites with the stateâs civil rights agency; and contains no affirmative defenses for an employerâs good faith efforts to stop workplace harassment.
There have been several prior attempts to fix this law and harmonize it with its federal counterparts. All have died on the legislative vine.
Welcome House Bill 352 [pdf], introduced on October 1. Itâs yet another business-friendly attempt at comprehensive reform of Ohioâs employment discrimination statute.
Among its key reforms, H.B. 352:
Creates a uniform two-year statute of limitations for all employment discrimination claims.
Unites the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
Eliminates individual statutory liability for managers and supervisors.
Requires individuals file an administrative charge of discrimination with the Ohio Civil Rights Commission as a prerequisite to filing a discrimination lawsuit in court.
Prioritizes conciliation for all charges filed with the OCRC, so that all but the most difficult of cases can be resolved efficiently and cost-effectively.
Establishes an affirmative defense to certain hostile work environment sexual harassment claims, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.
This bill presents a tangible opportunity to fix a very broken law. Ohioâs current employment discrimination statute is so different from both its federal counterpart and the similar laws of other states that it places Ohio at a competitive business disadvantage. By paralleling federal employment discrimination statutes, H.B. 352 restores balance and predictability for Ohio employers, while, at the same time, preserving the crucial right of employees to be free from discrimination in the workplace.
As opponents to these reforms have argued in the past, we can expect to hear that the elimination of individual liability protects sexual harassers. Nothing could be further from the truth. The legislation leaves intact all common-law remedies employees have if they are subjected to predatory behavior in the workplaceâassault, battery, intentional infliction of emotional distress, and invasion of privacyâalong with the possibility criminal sanctions for the most egregious of misconduct. H.B. 352 merely brings Ohio in line with federal law and the law of almost every other state on this issue. It also harmonizes Ohio law on this issue, as the Ohio Supreme Court has already eliminated individual supervisor and manager liability for public officials.
Now comes the hard partâgetting this bill passed into law. If you believe H.B. 352 presents necessary reforms of a broken system, call or email your state representative and urge him or her to support this bill. Passing H.B. 352 is a battle worth fighting for Ohioâs businesses.
