Norma Melgoza, a longtime employee of Rush University Medical Center in Chicago, is suing her employer for sex discrimination and equal-pay violations stemming from a denied application for a promotion.
In support of her claim of glass ceiling gender bias, Melgoza points to certain misconduct of the interviewing physician. Iâll let the district court explain.
During an interview with one of Defendantâs doctors, she alleges the doctor wore âa Donald Trump maskâ (the âDonald Trump Maskâ), an act she described as âhumiliating and offensiveâ to her, insofar as she inferred from this alleged act that the doctor (and, by extension, Defendant) âdid not take her or her position seriously and thought nothing of impersonating a man who publicly antagonized Melgozaâs community [Mexican-American] and many members of her gender.â
For its part, the employer seized a Donald Trump mask from the physicianâs office during its internal investigation of Melgozaâs allegations (although it claims that the actual look of the mask differs from Melgozaâs description of it).
Suffice it to say, if you wear a Donald Trump mask to conduct a job interview of a Mexican-American, female applicant, you might be the worst employer of 2019.
Also, thanks to this case I think Iâve discovered the trophy to present to this yearâs winner.
âI know it when I see it.â These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).
I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? Itâs hard to define, but I know it when I see it.
For example, consider the case of Curtis Anthony, an African-American quality inspector for Boeing at its North Charleston, South Carolina, plant, sued his employer for allowing a racially hostile work environment.
According to ABC News, his allegations include white co-workers urinating in his seat and on his desk, leaving signs with the ân-wordâ near his workspace, and ultimately leaving a noose above his workspace. Boeing, for its part denies the allegations, stating that Boeing spokesperson wrote, that Anthony âis a valued Boeing South Carolina teammate, [and] there is no validity to his allegations.â
Bingo. Hostile work environment. I canât necessarily define it, but I know it when I see it.
Regardless of whether an employee can hold you legally responsible for, letâs say, another employee peeing on his desk, why would let this misconduct go unchecked? Even if you think itâs just horseplay, you canât ignore it.
If an employee complains about misconduct, your reaction should never be, âWell, I understand, but itâs not that bad, or at least not bad enough for you to sue us; now go back to work.â Your obligations as an employer-recipient of a complaint of workplace harassment never changes. Investigate and take prompt remedial action to reasonably ensure that the harassment stops and does not repeat.
Otherwise, you are setting yourself up for a very difficult and expensive lawsuit. In other words, urine trouble (sorry ⌠not sorry).
When a client calls me to ask for advice about firing an employee, the first question I always ask is, âWhat does the employeeâs file look like?â
I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.
I ask these questions for two reasons:
Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if itâs lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.
Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.
Jason Anderson, African-American, claimed that GCRTA discriminated against him because of his race by denying him a promotion, issuing excessive discipline and ultimately terminating him. He lost. Why? Because his employer had a long and documented history of his performance and discipline issues.
On April 17, 2012, Anderson received a coaching for being involved in a preventable motor vehicle accident in an unmarked RTA Transit Police Vehicle.
On March 5, 2013, Anderson received a coaching for making disrespectful and unprofessional comments about a fellow officer over the police radio.
On August 14, 2014, Anderson received a coaching for failing to report to work for an overtime shift that Anderson had volunteered to work.
On January 1, 2015, Anderson received a coaching for neglecting his responsibilities as a first responder after witnessing a motor vehicle accident involving an RTA coach. Anderson continued driving rather than stopping to provide assistance to injured passengers.
On August 5, 2016, Anderson received a coaching for allowing a person to ride without proof of payment purchase or validation of fare and failing to take any enforcement action.
On August 5, 2016, Anderson received a First Written Warning for a disruptive, disrespectful and unprofessional outburst directed at Andersonâs supervising officer during the Republican National Convention. He yelled, among other things, âYou disgust me. The very thought of you is disgusting to me and your presence sickens me.â
On January 25, 2017, Anderson received a coaching for failing to address the resistive and disorderly behavior of a fare violater at the Tower City Rapid Station.
On April 12, 2017, Anderson received a coaching for failing to attend to scheduled court appearances.
On May 30, 2017, Anderson received another First Written Reminder for violation of Employee Performance Code for failing to maintain control of a suspect following an investigative detention.
On June 13, 2017, Anderson was charged with multiple misdemeanors following an off-duty incident with his girlfriend during which he allegedly assaulted her while he had his loaded service weapon unsecured in their hotel room.
Based on this history, the court had little difficulty dismissing Andersonâs claims:
Plaintiff was issued three (3) First Written Warnings and (2) two non-disciplinary coachings, each based on a particular circumstance of Plaintiffâs problematic or violative conduct. Plaintiff provides no direct evidence to support a finding that his discipline or termination were made because of his race. Plaintiff also fails to demonstrate how any similarly situated employee received more favorable treatment. The record does however support a finding that GCRTAâs actions against Plaintiff were made for legitimate, non-discriminatory reasons following Plaintiffâs unlawful conduct the morning of May 26, 2017 at the Double Tree Hotel.
This employer gave this employee a very long leash before ultimately terminating his employment. Your leash may not, and likely need not, be this long.
However, no matter the length of your leash, you must ensure it’s documented and communicated to the employee each step of the way. Otherwise, you are asking for a lawsuit and issues in said lawsuit post-termination.
âItâs 2019. All of our employees have been on Facebook for years. Many are also on Twitter, and Instagram, and ⌠We donât need to do any social media training.â
If youâve had these thoughts or internal conversations, allow me to offer Exhibit 1 as to why you are wrong.
Texas district votes to fire teacher who tried to report undocumented students to Trump on Twitter.
A Texas school board unanimously voted to fire a teacher who tried to report undocumented students in her school district to President Donald Trump through a series of public tweets â that she thought were private messages to the president.
If youâre keeping score at home, the employee believed that her very public tweets were actually private conversation between her and President Trump.
I promise that you almost certainly have at least one employee who thinks that their social media posts are private.
Unless you want to be in position of having to fire that employee at some point in the future after he or she screws up by posting something offensive online (and he or she will screw up and post something offensive), do yourself a favor and schedule some social media training for your employees.
I might even know someone who can do it for you (nudge nudge, wink wink).
âIf one man can destroy everything, why canât one girl change it?â â Malala Yousafzai
Women in India constitute 48.4 percent as compared to 51.6 percent of men in the total Indian population of 1.37 billion people.
A good ratio, right? Moreover, according to international non-governmental organization Catalyst, Indian women access higher education at the same rates as men at 27 percent.
But the ratios are not in favor of women when it comes to their participation in the workplace. Research by Catalyst notes that âonly about 29 percent of Indian women work compared to 82 percent of Indian men.â
Indian women are in order first and foremost supposed to be a devoted wife, a doting mother and then a working professional. Women in India are expected to conform to traditional and societal norms.
Family always has to come before work. Women in India also have to be present and represent every ritual and cultural function conducted. And the older a female gets in India, the more she is bound in a âdouble burden syndromeâ â balancing home and work.
But even women who get to join the workforce are not free of facing stereotypes and harassment. Women are rarely offered C-suite roles and similarly lofty positions.
Thereâs a lot that people hold against women in the workplace. Itâs time to shatter the myths associated with women in the workplace and help increase their workplace participation.
Myth:Women Canât Negotiate
The gender wage gap is the highest in India, according to Indian English-language daily Business Standard. Women in India are paid 34 percent less than what an Indian man is paid in the workplace, according to a research conducted by the International Labour Organization.
The prevailing explanation as to why women donât earn as much as men is that âwomen arenât aggressive enough.â People say that women donât push their employers hard enough to give them a raise or that they canât negotiate.
Thatâs not true. Women are as assertive as men when asking for salary appraisal. More and more studies in 2019 are showing that the rate of women and men asking for salary is the same. But, the conversion rates still favor male employees over women.
Myth: Too Emotional or Too Cold
In higher-level managerial positions, women often face a double bind. When they portray female characteristics, they are termed as emotional or sensitive. But when they follow traditional leadership roles, they are perceived as too difficult or too cold.
Lisa Feldman Barrett, the director of Northeastern University’s Interdisciplinary Affective Science Laboratory, said that emotions are not something that we are born with but are rather created according to circumstances. And in India, women are groomed to be delicate, fragile and sensitive to situations. Therefore, it can be said that portraying high emotional intelligence is not biological but rather a social construct.
Myth: Women Donât Belong in STEM
According to UNESCO, only 30 percent of women in India participate in STEM-related fields in higher education. Whatâs more disheartening is that the dropout rate among women in technology is even higher in junior to midlevel positions. Across Asia, the dropout rate is 29 percent.
Another reason why women continue to remain underrepresented in STEM fields begins very early in childhood.
Women are associated with arts and languages and men with math and science. When given a mathematical examination, women are under a lot more pressure to succeed than men. When applying this institutional fear toward a workplace full of men, it adversely
Myth: Women Are Only Good at Soft Skills
This is a judgment held against women, especially in the engineering field. Soft skills involve communication, creativity, adaptability, flexibility and teamwork. These are skills that every individual who works with other people needs to possess irrespective of profession and gender. To be a successful engineer, one needs to have both technical as well as soft skills.
Myth: Sexual Harassment Is a Womanâs Issue
The number of registered cases against sexual harassment in the workplace increased 54 percent from 371 cases in 2014 to 570 in 2017, according to the independent Indian English-language news site Scroll.in. But, as it is in most cases, the majority of these reported cases were from women. Due to maximum cases being reported by women, people assume that women are subject to harassment and therefore itâs âtheir issueâ and they should resolve it on their own.
Sexual harassment doesnât limit itself to a gender. While itâs important to understand that, itâs also important for people to stand by each other when such cases are reported. Men and women should be allies when someone reports against a âhigher-upâ or report when they have witnessed something.
Instead of holding their social conditioning against them, letâs all try to build a workplace in India where everyone has the same opportunities and treatment irrespective of their gender.
Well Donna, thereâs no need to terminate these laws; they are already dead. I hear it all the time from clients. âArenât we an at-will employer? We paid you for that handbook that says so. Why canât we fire this employee. This is *!%#*!â
Yes, your employees are at-will. And that and a hill of beans will get you sued.
Employment at-will is dead. Do you have the right to fire an employee for no reason? Absolutely. Yet, if that employee is African-American, Other-American, a woman (or a man), pregnant or recently pregnant, suffering from a medical condition (or related to someone with a medical condition, or you think has a medical condition but doesnât), on a medical leave or returning from a leave, injured, religious, older (i.e., age 40 or above), LGBTQ, serving in the military or a veteran, or a whistleblower or otherwise a complainer, the law protects their employment. Which means that if you fire them, you better have done so for a good reason.
If you look at those categories, most of your employees fall under one of more of them. In other words, while you are an âat-will employer,â that doesnât really mean anything anymore. Employees just have too many protections.
So, how do I suggest you respond? Follow the Platinum Rule of Employee Relations. Treat your employees as they would want to be treated. If you treat your employees as they would want to be treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employerâs favor. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would expect to be treated, the jury will be much less likely to find in the employeeâs favor.
What does this mean for your poor performing employees? Does they understand the performance problems? Were they given sufficient counseling and warnings before termination? And, most importantly, can you prove it via contemporaneous documentation? If so, there is no reason to give poor performance a pass just because of the risk of a lawsuit. Otherwise? Iâd think long and hard before firing.
So letâs all raise a glass and toast employment at-will. It had a good ride.
I spent way too much of a recent Saturday morning at the local department of motor vehicles. My plates were expiring and I had forgotten to take advantage of online registration.
So there I found myself at 10 a.m. waiting in line. To be fair, it was the âexpressâ line, designated for registration renewals only. My experience, however, was less than express, thanks to the patron two spots ahead of me.
On her turn, the clerk asked for information stored in some account on her phone. She did not, however, remember the necessary password. She then removed an inch-thick flipbook of Post-it notes, each containing a login and password to a different account.
I watched her rifle through the stack. Ten minutes of life that I will never regain, with my frustration mirrored on the faces of everyone else in line.
One of the top cybersecurity tips is to maintain proper password security. Storing passwords on a notepad or stack of sticky notes does not qualify as secure. What does?
⢠Using passwords with differing types of characters.
⢠Avoiding the most common passwords (like âPa$Sw0rDâ).
⢠Setting a regular schedule to change passwords (although some research shows that most people use near identical passwords when forced to switch).
Four issues warrant additional discussion.
First, do not reuse the same passwords across multiple accounts. If one account is hacked, youâve exposed every other account for which youâve used the same password.
Recently, for example, Intuit disclosed that its TurboTax product had suffered just such an attack. The criminal accessed TurboTax user accounts by taking usernames and passwords it had stolen from a non-Intuit source to attempt TurboTax logins.
For those with which it was successful, the criminal was able to obtain sensitive tax return information. (If you want to know if one or more of your online accounts has been compromised, check out haveibeenpwned.com.)
If you are not going to reuse the same password across multiple accounts, how will you generate and remember hundreds of different and complex passwords? The answer brings us to point number two. Use a password manager.
A password manager is an online service that stores all of your passwords (encrypted on their end). All you need to do to unlock the password for any given account is to recall the lone master password you have chosen for your password manager of choice. Passwords are also synced across devices.
The top competitors offer variations on the same service. Compare and contrast pricing, what each offers and pick one. The money you spend on an annual subscription pales exponentially to what you will spend undoing the damage caused by an account compromised by a weak password.
The question I get most often regarding password managers? âArenât you worried about them being hacked?â
Technically yes, but functionally no. At least one has been hacked without the exposure of even a single user password because all of the stored data is highly encrypted.
If you are comparing the security of reusing passwords or using different password but storing them in a notebook or sticky-note flipbook versus a password manager, the security choice is clear.
Third, check your URLs and only input account information on sites that use HTTPS web encryption.
HTTPS provides an encrypted online session between you and whichever site you are visiting. With a non-HTTPS site, everything you send is visible to anyone on the same network. Even safer, use a Virtual Private Network, or VPN, to create a secure channel between your computer and the internet.
Finally, use two-factor authentication for any account that offers it.
Two-factor authentication, or 2FA, requires a user to input a unique code sent to a device of choice (usually by text message) any time they log in to an account from a new device. 2FA is not foolproof.
For example, it does not take much skill for even a low-level cybercriminal to steal a phone number and intercept the code. More complexly, criminals can use social engineering to ape oneâs identity and trick a mobile company to send a new SIM card to the attacker, diverting all 2FA text messages to the criminalâs mobile device.
Thus, while one should not rely on 2FA as the only method to secure oneâs account, itâs added layer of security certainly canât hurt.
No one is immune from being hacked. However, taking a few simple (albeit mildly inconvenient) steps to secure your passwords and accounts will go a long way to mitigating against this very serious and costly risk.
Last month President Donald Trump announced his desire to implement a new merit-based immigration system.
He did not put forward a detailed proposal, but instead described his proposal in broad strokes. The president emphasized that his goal is to change the make-up of U.S. immigrants, envisioning a points system that would provide more green cards to highly skilled, highly educated and younger immigrants, and reducing immigration based on family relationships.
While he did not mention many specifics, the presidentâs proposal bears a striking similarity to the RAISE Act, an immigration bill introduced into the Senate in 2017 by Sens. Tom Cotton, R-Arkansas, and David Perdue, R-Geaorgia. Trump praised the RAISE Act when it was initially introduced in the Senate, but the bill died in Congress.
The RAISE Act would have reduced total U.S. immigration by approximately half and included a points-based permanent immigration system which placed high numeric values on advanced education and extraordinary achievement.
According to the system proposed in the RAISE Act, although an immigrant would score more points with a U.S. job offer, U.S. employers would not be able to sponsor new hires or existing employees for green cards. The point value would be the ultimate determinant in whether a person would be able to secure permanent residence in the U.S.
In light of the presidentâs emphasis on increasing immigration of highly skilled workers, one might assume that his plan envisions higher numbers of temporary work visas for educated and highly skilled foreign nationals. However, neither the presidentâs recent proposal nor the RAISE Act included any discussion of temporary work visas such as H-1B or L-1 visas.
Further, the president laid out his proposal as just that: a proposal. The changes he would like to make are significant and such a radical departure from current law that most of them would have to be implemented in new immigration legislation. This is not likely to occur anytime soon as it would require bipartisan consensus.
In light of the fact that Congress would need to pass new immigration legislation to implement the presidentâs immigration vision, recruiters and hiring managers who rely on foreign talent to fill open requisitions should not expect to see increases to the H-1B visa numbers in the near term.
Further, since Trump has taken office, U.S. Citizenship and Immigration Services denials and requests for additional evidence in H-1B visa cases have risen significantly, reflecting the presidentâs desire to protect the American workforce, as spelled out in his April 2017 Executive Order, âBuy American, Hire American.â
Employers sponsoring H-1B visas should be prepared for the possibility of longer processing times between filing and ultimate approval of petitions, and should budget for potential additional legal fees.
With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.
The exceptions?
1. An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.
   2. An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.
A recently proposed Ohio looks to significantly expand these exceptions by elevating âunvaccinatedâ to the equivalent of a class protected from discrimination.
The misleadingly named Medical Consumer Protection Act would prohibit an Ohio employer from discharging without just cause, refusing to hire, or otherwise discriminating against any person on the basis that the person has not been or will not be vaccinated because of a medical contraindication or for reasons of conscience, including religious beliefs. It would also create a private cause of action allowing an employee to file suit over violations and seek compensatory and punitive damages.
I had a roommate in college who was fond of telling me that my opinion was wrong. I would tell him, âMy opinion is my opinion. It might be misinformed. You might disagree with it. But it canât be wrong.â Itâs Hymanâs Law of Opinions. Today, I decree the following amendment to Hymanâs Law:
* ⌠except in the case of vaccinations. If you oppose vaccinating yourself or your children, your opinion is wrong, period (unless you have a bona fide medical condition or religious belief that prevents you from receiving said vaccinations). Otherwise thereâs no reason not to vaccinate. If you donât care about your own health, care about the health of all of those around you, and the public health risks and costs you are helping create.
So I give a big thumbs down to the Medical Consumer Protection Act. Itâs both unnecessary (by protecting from employment discrimination those whom the law already protects) and wildly over broad (by also protecting those who are unvaccinated âfor reasons of conscienceâ).
Thankfully, this poorly conceived piece of legislative policy will never become an actual law.
Not surprisingly the future of the United States heath care system is already a huge topic of debate for next yearâs presidential election.
Many of the 2020 Democratic nominees for president are supporting a single-payer or Medicare for All solution.
Since the United States has never had this type of health care, itâs helpful to sort out the myths from the facts, which is exactly what one woman did at an employer-centric health care conference recently.
One of the first ideas Berger brought up is key. Every country in the world, including the United States, is having the same health care problems no matter what the financial model is being used, she said. These problems include rising costs and access issues. The only way the U.S. is different, she added, is that weâre the only country that has made health care âpolitical warfare.â Also, in most other countries people donât go bankrupt or homeless because of health care costs.
Meanwhile, Berger also debunked several myths about other countriesâ single-payer systems. One key myth is that âhealth care is socialized medicine.â While some socialist countries do use a single-payer system, many non-Socialist countries do, too. Pulling the socialist card to dismiss the single-payer discussion is âa bullet people use to not discuss change,â Berger said.
Berger listed other misconceptions about single-payer health care:
Single-payer financial models are all the same. (None are the same.)
âSingle-payerâ applies to both the finance and delivery of health care. (Only four countries have fully integrated models.)
Single-payer means no cost to the consumer. (This is very rarely true. There are out-of-pocket costs in almost all countries that use single-payer.)
Single-payer means no focus on preventative care. (This is not true, Berger noted, giving the examples of Cuba, Costa Rica, Israel, Saudi Arabia and Australia.)
Single-payer dictates how doctors treat patients. (It doesnât.)
Single-payer models destroy innovation. (Berger noted many examples of how this is not true. To name a few: The Netherlands, which has one of the most unique memory-care systems in the world; South Africa, with its automated pharmacy teller machine.)
âWe donât have to be somebody else, but we have to learn from somebody else,â Berger said.
One other idea that Berger mentioned was the need to know the definitions of key phrases if youâre going to have a conversation about the different health care proposals. For example, the difference between Medicare and the Medicare For All bills. While Medicare doesnât cover vision or dental, the predominant Medicare for All Act in Congress covers a broader range of services, she said. While the word âMedicareâ is used in this context, by definition Medicare for All does not mean the exact quality and coverage of Medicare expanded to each U.S. citizen.
Itâs also necessary to understand the definition of universal health coverage, which the United States does not have even with the Affordable Care Act. The World Health Organization defines universal health coverage as âensuring that all people have access to needed health services (including prevention, promotion, treatment, rehabilitation and palliation) of sufficient quality to be effective while also ensuring that the use of these services does not expose the user the financial hardship.â It continues, âPeople need to be protected from being pushed into poverty because of the cost of health careââ a milestone the U.S. has yet to reach.
None of this is to say health care should be one way over another. But if weâre debating on what health care system works best for the country, then relying on facts rather than myths for information is a good start.
Itâs possible to admit that the current employer-based health care system is not doing well in certain regards. Almost 24 million Americans enrolled in employer health plans must spend a large share of their income on health care. High-deductible health plans have the power to impact low-wage workers in much more detrimental ways than they impact high-wage workers. Contributing to HSAs like some employers promote just isnât possible for many low-income employees; in fact, Bruce Sherman, medical director at the National Alliance of Healthcare Purchaser Coalitions noted at this same MBGH conference that only 1 percent of low-income employees contribute to HSAs.
Whatever the solution is to problems within employer-sponsored plans currently are, itâs not something that has been solved yet. There are going to be plenty of suggestions from the candidates.
As the 2020 election nears, weâre likely to hear a lot of hyped and a lot of misleading âfactsâ about certain health system proposals, and Iâd encourage you to look at the facts instead of falling too deeply into the âpolitical warfareâ of U.S. health care.
But even women who get to join the workforce are not free of facing stereotypes and harassment. Women are rarely offered C-suite roles and similarly lofty positions.
âWe donât have to be somebody else, but we have to learn from somebody else,â Berger said.