Tag: equality

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Avoiding Pregnancy Discrimination in the Workplace

pregnant employee

News broke in early 2018 that Walmart was facing a potential class-action lawsuit in New York for allegations of pregnancy discrimination.Pregnancy Discrimination in the Workplace

This lawsuit is one of several nationwide that claim that some of the nation’s largest businesses are systematically punishing pregnant employees with discriminatory policies.

Employers are facing increased exposure and liability for pregnancy discrimination in the workplace claims. The number of pregnancy discrimination claims filed annually with the Equal Employment Opportunity Commission has been steadily rising for two decades and is hovering near an all-time high. In 2017, more than 3,174 cases of pregnancy discrimination were filed with the EEOC.

The federal Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964, and it makes discrimination based on pregnancy, childbirth or related medical conditions unlawful. The act covers employers with 15 or more employees, including state and local governments. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. The law’s protections include:

Hiring and working conditions: An employer cannot refuse to hire a woman because of pregnancy, pregnancy-related conditions, or based on the prejudices of co-workers or customers. The act prohibits discrimination when it comes to working conditions, including pay, job assignments, promotions, layoffs, training, firing and any other condition of employment.

Pregnancy and maternity leave: An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. For example, if an employer does not require its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may not require employees affected by pregnancy to provide this documentation.

Pregnancy and temporary disability: An employee that is temporarily unable to perform her job due to pregnancy must be treated the same as any other temporarily disabled employee.

Health insurance: Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions.

Fringe benefits: Benefits must be the same for pregnancy as other medical conditions. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions, including accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits.

Further, it is unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under Title VII.

Although pregnancy itself is not considered a disability, some pregnant workers may be eligible for additional protection under the amended Americans with Disabilities Act Amendments Act due to conditions related to pregnancy. The ADAAA applies to employers with 15 or more workers.

Affordable Care Act

Under the Affordable Care Act, employers must provide two things to employees for one year after a child’s birth: (1) a reasonable amount of time to express milk each time that she needs to express milk; and (2) a location to express breast milk (not a bathroom) that is shielded from view and free from intrusion from co-workers and the public.

Employers are not required to compensate nursing mothers during breaks to express milk, but if an employee has compensated breaks and she uses them to express milk, then she must be compensated in a similar way.

The ACA provides an “undue hardship” exemption for certain employers that employ fewer than 50 employees. An undue hardship will be found if the requirement imposes on the small employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Importantly, the ACA provides a “floor” not a “ceiling” for regulation in this area. States remain free to adopt laws that provide additional protections beyond those provided in the ACA.

Best Practices

In some instances, employers may claim that excluding pregnant or fertile women from certain jobs is lawful due to a bona fide occupational qualification defense, or BFOQ. This defense, however, is extremely narrow and the employer must show that pregnancy actually interferes with an employee’s ability to perform the job based on objective, verifiable skills required by the job.

Employers have rarely been able to establish a pregnancy-based BFOQ. Liability under the federal and state laws can be avoided with the following best practices:

• Effectively train managers on applicable laws, workplace policies, and how to respond to requests for assistance and accommodation.

• When complaints occur, respond promptly.

• Implement strong policies against pregnancy discrimination and harassment.

• Evaluate leave policies to ensure restrictive provisions or practices do not discriminate on the basis of pregnancy or related medical conditions.

• Evaluate any workplace accommodation policies and ensure they are available to workers with pregnancy-related impairments.

• Never require — explicitly or constructively — a pregnant employee to take leave, light duty or other work accommodations that she does not want or did not request.

• Make sure policies and facilities comply with breastfeeding requirements under the ACA.

• Check state and local laws for additional requirements.

Jay Starkman is the CEO of Engage PEO, a professional employer organization providing HR outsourcing to small and mid-sized businesses across the United States. Camille Cooper is the assistant general counsel and HR consultant for Engage PEO.

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Do You Know? English-only Workplace Policies

Jon Hyman The Practical Employer

White Americans, what?
Nothing better to do?
Why don’t you kick yourself out?
You’re an immigrant too!

– White Stripes, Icky Thump (2007).

Estefany Martinez-Gonzalez and Imelda Lucio Lopez, both crew members at a McDonald’s restaurant in Grand Rapids, Michigan, and both Hispanic, claimed that their employer discriminated against them by requiring them to speak English at work (as opposed to their native Spanish).

In Martinez-Gonzalez v. Lakeshore Staffing (6th Cir. 11/9/18) [pdf], the appellate court disagreed.

Taking the record as a whole, no reasonable finder of fact could find that Lakeshore had a policy and culture of requiring its employees to speak only English. Lakeshore … filed seven declarations demonstrating that the so-called English-only policy could not exist because employees attested that they speak Spanish in the workplace or know of employees who openly speak Spanish in the workplace without reprimand. Martinez and Lopez do not contest either the factual veracity or the legal significance of the declarations. Instead, in support of their argument, Martinez and Lopez cite to two instances where Martinez stated she was told to speak English and one instance where Lopez testified she was told to speak English. Martinez and Lopez cite no disciplinary records in which they were reprimanded because they were speaking Spanish.

Thus, there was no evidence to support the existence of an English-only policy. That said, English-only policies certainly raise legal red flags. 

As immigration and immigration reform continue to be hot-button political issues, employers take a big risk when they require all of their employees to speak only English at work.

The EEOC’s position is that a “rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment” and presumptively “violates Title VII.” According to the EEOC, an “employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.”

The majority of federal courts, however, have shown slightly more tolerance of “English-only” rules. Generally, courts will uphold an English-only rule if the employer can show a legitimate business justification for the requirement. Examples of legitimate business justifications that have been found to justify an English-only requirement are:

  • Stemming hostility among employees.
  • Fostering politeness to customers.
  • Promoting communication with customers, coworkers, or supervisors who only speak English.
  • Enabling employees to speak a common language to promote safety or enable cooperative work assignments.
  • Facilitating a supervisor’s ability monitor the performance of an employee.
  • Furthering interpersonal relations among employees.

Thus, employers should be careful to limit the reach of an English-only requirement only as far as is necessary to reach the articulated business rationale for the policy. For example, English-only requirements have been struck down as discriminatory where the policy included lunch hours, breaks and even private telephone conversations.

If you are considering an English-only requirement for your business, you should not do so without consulting with employment counsel to ensure that the policy is not discriminatory as written or as applied.

 

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Sexual Harassment Prevention 101: No Strip Clubs

Jon Hyman The Practical Employer

Last month, the EEOC held a public meeting on preventing workplace harassment.

Titled Revamping Workplace Culture to Prevent Harassment, it’s the agency’s second meeting since forming its Select Task Force on the Study of Harassment in the Workplace, and its first in the #MeToo era.

The EEOC discussed the need for employers to take a holistic approach to change workplace culture to prevent harassment.

Somehow, the EEOC missed “No strip clubs for employees” as one of its anti-sexual harassment talking points.

Under Armour did not get this #MeToo memo until very recently.

According to The Wall Street Journal, earlier this year Under Armour sent its employees an email advising that the company was ending its longstanding practice of employees charging visits to strip clubs on their corporate credit cards. It appears that over the years, executives and employees, including its CEO, took athletes or co-workers to strip clubs after some corporate and sporting events. Not surprisingly, according to the WSJ, “some top male executives violated company policy by behaving inappropriately with female subordinates,” and “women were invited to an annual company event based on their attractiveness to appeal to male guests.”

The Journal goes on to quote Under Armour Chairman and CEO Kevin Plank, “Our teammates deserve to work in a respectful and empowering environment.… We can and will do better.”

No kidding. 

Bravo, Under Armour, for taking such a brave stance on your anti-sexual harassment, pro-female culture. Prohibiting employees from using expense accounts at strip clubs is not something about which a company should need reminding. It’s something it should have been doing all along.

Employers, you better “do better,” because we are all watching.

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How to Decide When to Make Political Statements in the Workplace

These days, particularly in the United States, it feels like the divided nature of our politics makes it almost impossible to keep from choosing sides.

Whether you’re a person, a business or a politician, you almost certainly know what you support and what you oppose. For organizations and their leaders, that means the more difficult issue often becomes whether to say anything publicly about what you support or oppose.

From a business perspective, the issue of whether to make political statements is critical — and it’s more complex and risky than ever. In the past, CEOs, boards or businesses that took some sort of activist stand used to be able to draw a fairly bright line between social activism and political activism.

Today those lines are far more blurred. Whether we’re talking about the #MeToo movement, education policy, health care, immigration or trade issues, these debates frequently fall into both the social and political spheres.

These are deep and roiling waters for business leaders who personally feel obligated to communicate which side they’re on regarding hot-button issues. Given that there are essentially no people in the middle, coming out on one side or the other comes with significant business risk.

If you’re a business leader who represents a brand and you’re considering taking a public stand on a social or political issue, you should first think very carefully about these three constituencies.

political statement workplaceThe first group you have to carefully consider when mulling a public political stand is your employees. And here’s the first big question to ask yourself: Is your stand consistent with your stated and lived corporate values, or do those values just represent those of the CEO or some portion of the C-suite? If your stand is consistent with your stated and lived corporate values, and they’re not just the personal musings of a company executive, then you’ve got a check in the go-forward box.

Next, ask yourself if your stand will alienate employees and exacerbate the line between people on both sides of the issue in a more public way than already exists. Think about whether some employees will leave, or if they’ll instead stay and be more committed. Or perhaps they’ll remain but as alienated employees with reduced engagement and performance across the board.

An organization’s public political or social stand can bring employees together or can tear them apart. It can also significantly affect your ability to attract talent, for better or worse, particularly when the economy is strong. You have to carefully measure these potential impacts before you step into the political arena.

Next, it’s absolutely vital to consider how your stand will affect your customer base. Start by considering whether your public position will be received negatively or positively by customers — and also whether it will make it harder or easier for loyal customers to do business with you. The reality is that your stand could grow or diminish your customer base, while also negatively or positively affecting your brand promise.

Remember that you’re representing a business. If you feel compelled to make a political stand, think through how it will affect your actual business, what will the stakeholders will think about that and how or whether they will support you in the long term.

Also read: How to Manage Emotions in a Post-Election Workplace 

Finally, you have to weigh the impact of your action on your community. No organization exists in a vacuum, whether it’s a one-location business, has 20 locations around the country or is a global organization with hundreds of locations around the world. Consider how your stand will positively or negatively affect your standing in the communities in which you live and operate. Will the community be in agreement or will you alienate your community base?

Particularly if you’re a business with one or a handful of locations, you do business with other businesses in the community and you likely have relationships with policymakers. That means you have important relationships with the larger social environment in which you are living and working, and your business often relies on these connections in nontrivial ways. If your stand will make any of these harder, you need to think through truly what the ramifications are for that action.

When pondering a political stand, the bottom line is to remove the self from your decision and think only in terms of the business. If the stand you’re going to take will put your business at risk, put your employees’ jobs at risk or put your organization’s reputation at risk, then you need to think seriously about whether you’re willing to assume that risk.A

Also read: Talking Politics at Work Shouldn’t Be Taboo 

That doesn’t mean you don’t ultimately take the stand. It just means you have to be knowledgeable about what the effects will be and have contingency plans in place. As business leaders, we have to think through the ramifications for our organizations and the people that make them — and not just for the CEO.

 

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Managing Election Day at Work

Jon Hyman The Practical Employer

As tomorrow is Election Day, I thought I’d share a few tips for employers to keep in mind.

First: Please don’t tell your employees for whom to vote. It may or may not be illegal (depending on your state), but it is certainly a terrible HR practice.

Second: Ohio law requires that employers provide all employees a reasonable amount of time off to vote on Election Day. Deny employees that right, or punish them for exercising it, at your risk. Better yet, embrace the Time to Vote movement and implement policies (like paid time off) to encourage your employees to vote on Election Day.

Finally: After the election is over, think about how we heal at work. Some thoughts (care of The Wall Street Journal): providing meeting space for employees to talk after the election, offering supervisors and managers sample language for opening up a constructive dialogue with employees, and playing soothing music to distract employees from political headlines.

Watch the Video: Voting on the Clock Works as an Employee Engagement Tool

Bonus: While you’re voting on Election Day, don’t forget to cast your ballot for the Worst Employer of 2018.

End of public service announcement.

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Abortion Discrimination = Pregnancy Discrimination

Jon Hyman The Practical Employer

Is there a more controversial topic than abortion?

As controversial and divisive as it might be, the law is pretty clear that an employer cannot fire an employee for having one.

In the EEOC’s 2015 Enforcement Guidance on Pregnancy Discrimination and Related Issues, the agency made its position clear:

Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.… Title VII protects women from being fired for having an abortion or contemplating having an abortion.

The courts universally support the EEOC’s position. It’s been the law of the 6th Circuit for nearly 20 years, and the 3rd Circuit for 10.

Yes, there are limited exceptions. The First Amendment, for example, might protect religious institutions that take adverse actions against an employee because of an abortion.

For the most part, you need understand that whether you agree with a woman’s right to have an abortion, abortion discrimination equals pregnancy discrimination, and firing an employee who has (or expresses an intent to have) an abortion is no different than firing that employee because of her pregnancy.

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Anti-Semitism at Work

The devastating events of this past weekend served as a sobering reminder that anti-Semitism not only still exists, but it’s thriving.

The reality is that anti-Semitism never went away. It has always been there, bubbling under the surface. The current climate in our country, however, has given it permission to boil over.

According to the Anti-Defamation League, anti-Semitic attacks have increased 60 percent since 2016. It’s the largest increase since the ADL starting tracking these statistics.

And, you can bet that if anti-Semitic attacks are on the rise in the country as a whole, they are also on the rise in your workplace.

Whether it’s debates among your employees about “the Jewish question” or George Soros, or more blatant attacks like images of swastikas or Adolph Hitler.

When I was in college I worked summers in a warehouse. There were only two Jews in the entire workplace — the company’s owner and me. One of my workers, upset that he had been denied a raise, hanged the owner in effigy on a giant swastika, with the message, “Cheap Jew.” My (not unfounded) fear is that these attacks will rise in frequency given the current state of our country.

What can you do?

Be aware.

Be open to complaints.

Be vigilant in treating any anti-Semitic message or attack the same as any other unlawful harassment in your workplace. Investigate, and take corrective action to ensure that it does not happen again.

 

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How Many N-bombs Does It Take to Create a Hostile Work Environment?

Jon Hyman The Practical Employer

Smelter v. Southern Home Care Services (11th Cir. 9/24/18) answers the question, “How many N-bombs does it take to create an unlawful hostile work environment?”

So as not to bury the lede, the answer is one.

Brenda Smelter was the only African American working in her office at Southern Home Care Services. During her two months of employment, she alleged that she endured racist statements on a daily basis by Connie Raleigh, the office manager, and Catherine Smallwood, a customer service supervisor.

  • Smallwood called black men “lazy” and “the scum of the earth.”
  • Smallwood said that “black women ha[d] babies on welfare.”
  • Smallwood said that President Obama’s “big ears” made him “look like a monkey.”
  • Smallwood told Smelter that her hair made her look like a “mixed monkey” from the movie Planet of the Apes.
  • Raleigh described black people exiting a bus at a Wal-Mart store as looking like they were “chained together.”
  • Raleigh said that she wished she could “send them all back … to Africa.”

On the day of Smelter’s termination, she and Smallwood engaged in a verbal altercation over a schedule change, which ended when Smallwood allegedly “jumped up … in a rage” and said “get out of my office … you dumb black nigger.”

The court of appeals reversed the district court’s dismissal of Smelter’s hostile work environment claim. It held that in the “two months during which Smelter had endured racist comments on a daily basis” was sufficient to create a jury issue over the existence of hostile work environment. “The … comments Smelter endured in the office involved obvious racial slurs conveying highly offensive derogatory stereotypes of black people.”

Yet Smallwood’s lone use of the N-word, directed at Smelter, in and of itself and without more, would have sufficed:

A reasonable jury could conclude that the harassment was severe. Most severe of all and addressed directly to Smelter herself was Smallwood’s calling her a “dumb black nigger.” Implicitly acknowledging the egregiousness of this epithet, Southern Home argues that Smallwood’s “one-time use” of it was insufficient to establish severity as a matter of law. We strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner. Here, Smallwood did not simply use the epithet in Smelter’s presence; instead, she directed it at Smelter as a means of insulting her in the midst of an argument.

Smelter demonstrates a hostile work environment that no employee should endure and no employer should tolerate, period.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.

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One Size Does Not Fit All: A Parable About Equity

WF_WebSite_BlogHeaders-12I’m on planes a lot for business. Recently, on a full Southwest flight, I ended up in the middle seat of an exit row next to a very large man who was seated by the window. He was cordial, but visibly uncomfortable. His long legs extended into the empty space in front of him where a seat would have been had he occupied any other row. He politely tried to retract his substantial arms enough to allow my petite frame to have some room on the arm rest. I thought about what it must be like for him to have to cram his generous body into a “regular” seat, among unfamiliar faces, smiling uncomfortably next to a tiny porthole of a window, for three hours. I wondered how he’d gotten this particular seat — one of only two on the plane he fit into. Did he pay extra for business select priority seating? Did he wait by his computer to check in exactly 24 hours before his flight to win a low boarding position? Did he just hope an exit row seat would be available, or rely on the generosity of an earlier stranger to willingly give one up?

The airline’s well-intended, equal approach to seating was having an inequitable impact on its passengers. And such is the status quo in many well-intended organizations.

Equality does not equal equity. Equality is about being fair by treating everyone the same. It’s centered within the actor and focuses on their intent. Equity is about being fair by treating everyone differently, because people are different. We have different strengths, perspectives, qualities and needs — therefore treating everyone equally (the same) lands inequitably. Equity is centered within the recipient of the action and focuses on the actor’s impact. Equity requires more thought, creativity and collaboration, but equity is superior to equality when it comes to creating an inclusive environment where people can bring their full selves and do their best work.

Good intentions aren’t enough. A well-intended, equal approach can create inequities like suppression of creativity, diminishing of talent, unfair advantages and harmful conformity. Even well-intended organizations with a commitment to inclusiveness run rampant with “covering” — employees downplaying their differences in response to overt or subtle messages of “Don’t be 100 percent you, that will hurt you. Fit in to the dominant group.”

Even equal approaches aren’t always equal. The airline’s “first come, first served” approach still privileges those who know about it, who have a computer and Internet access, and who know how to work the system to their advantage. There are options to bypass the system altogether, such as paying extra money to purchase early boarding privileges.

There’s a common metaphor about organizational and team effectiveness that you have to have the right people in the right seats on the bus to move forward. But how do we determine what “right” means? How can we create an environment that celebrates the myriad ways people are unique and brilliant when all the seats are the same size (and move the same way, face the same direction, are served from front to back, etc.)? And where exactly is this bus going?

Creating a more inclusive environment requires clarity about what is needed to support brilliance and diversity, plus ongoing responsiveness to the diverse needs of individuals. It may be as involved as tearing out all the seats and starting over, reupholstering them in some colorful new fabrics and textures, or charting an entirely new destination. But it may be as simple as just noticing who’s lined up to board, and allowing the larger people to go first or saving them a seat that fits them better than anyone else.

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Is Our Goal Equality or Equity?

WF_WebSite_BlogHeaders-12On Aug. 28, we will mark 50 years since the March on Washington and Dr. Martin Luther King Jr.’s historic “I Have a Dream” speech. With the recent not guilty verdict in the trial of George Zimmerman for having shot and killed unarmed African-American teen Trayvon Martin, racial tensions and familiar questions are bubbling to the surface, and many are questioning how much progress has been made in diversity and inclusiveness since 1963.

One of the ways we can move forward and change the old scripts is to focus on equity, not equality.  Equality, according to Webster’s Dictionary, means “as great as,” “the same as,” or “like or alike in quantity, degree, value, etc.” King only mentioned equality twice in his “I Have a Dream” speech, and while he was likely referring to the “as great as” meaning of the word, it’s the latter definition — a sense of uniformity and sameness — and its lack of desirability that seems to be coming out in many opinions lately regarding race in the U.S.

While most people profess valuing human differences to some degree, and decry any attempt to make us all “the same,” few truly believe or comprehend the real and profound differences in people’s perspectives and lived experiences. We assume that people are like interchangeable machines, believing that the justice system metes out objective decisions equally to all, and that had Zimmerman’s and Martin’s roles or races been reversed, the outcome of the trial would have (should have) been the same.   We assume that the N-word uttered by young black males to each other in friendly social settings is the exact same N-word spoken by white celebrity chef Paula Deen to her husband and employees.

However, these assumptions are naĂŻve at best and dangerous at worst. We are not apples and apples. Even when we speak the same words and perform the same actions, they are not the same. There is a different context, history and impact in those scenarios depending on who the players are. Arguing about whether or not it should be that way is moot.

Equality is a “universalist” approach, centered within oneself, applying one set of rules to vastly diverse people and situations. It focuses on keeping my behavior consistent. It says “I treat everyone equally.”  Equity, defined by Webster’s as “the quality of being fair or impartial” and “that which is just,” is centered on others, on keeping the impact of my behavior on diverse others consistent. For instance, my parents had one set of rules for all three of us kids about how old we had to be before getting our first watch, first bicycle, first bra, etc. The well-intended, theoretically “fair” uniformity (equality) of those rules turned out to be very unfair (inequitable) in their practical application given that we had different needs and maturation rates.

King didn’t mention equity in his speech, but he did mention justice eight times, and injustice three times. I suspect he’d think that fairness and justice (equity) is preferable to sameness (equality). And I suspect he’d believe that regardless of our good conscious intentions, it’s the impact of our words, actions, policies and systems, and whether or not those are equitable, that matter more. Besides, “equity” also refers to a security representing an ownership interest in an investment. And isn’t it time we all held more equity in D&I and its dream deferred of excellence and brilliance?