Commentary & Opinion Archives - Page 36 of 85

October 31, 2018June 29, 2023

When You Employ a Satanist

“Rosemary’s Baby,” the classic 1968 horror film, tells the story of a pregnant woman who (spoiler alert: correctly) assumes that a satanic cult wants her baby.

What does “Rosemary’s Baby” have to do with employment law?

In honor of Halloween, I bring you the story of Irving Cortez-Hernandez, a “Catholic-Satanist” who prayed to the Devil for his pregnant co-worker to miscarry, and as a result lost both his job and his religious discrimination lawsuit.

Cortez worked as an inside sales representative for Centennial Puerto Rico, selling wireless and broadband telecommunications services to customers in one of its mall stores.

During his employment, Cortez complained to HR that one of his co-workers, Lymarie Torres, had skimmed commissions from his sales. During HR’s investigation of the theft allegations, Torres unloaded about behavior by Cortez that one could only describe as downright frightening.

He would speak in a weird language and, when questioned, would explain that he was praying to Satan, or that the Devil had ordered him to speak in tongues.
He would threaten Torres with satanic rituals, including during her pregnancy to induce a miscarriage.
He told employees that Satan protected him, and that they should not mess with him.
He threatened Torres with comments such as, “Today I feel like killing you,” and others with, “Today I [feel like/would/will] kill someone.”
He would tell co-workers that “when the Devil is inside of him, there is no stopping him.”

Not surprisingly, Centennial fired him. Slightly less surprisingly, Cortez sued for religious discrimination.

In Cortez-Hernandez v. Centennial Puerto Rico (D.P.R. 11/18/2010), the district had little difficulty dismissing Cortez’s lawsuit. He claimed that Centennial terminated him because of his satanic religious beliefs. The court didn’t buy it, concluding that Centennial fired him because of his offensive and threatening comments and behavior, not his religion.

That said, there is no rule that Title VII only protects traditional religions. Indeed, quite the opposite is true. According to the EEOC:

The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.

Thus, if Satanism is a “sincerely held religious belief” (and, by all accounts, it appears to be), then Title VII protects from workplace discrimination those who practice it. What Title VII does not protect, however, is using your religion as a justification for harassing or threatening others. Hence, Cortez’s lost-cause lawsuit.

Happy Halloween, y’all.

October 30, 2018June 29, 2023

Abortion Discrimination = Pregnancy Discrimination

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.

October 24, 2018June 29, 2023

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

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.

October 19, 2018June 29, 2023

OSHA Softens Stance on Safety Incentive Programs, Post-incident Drug Tests

It’s been two years since OSHA announced its hard-line interpretation of its then newly announced anti-retaliation rules — that using incentive programs to penalize workers for reporting work-related injuries or illnesses, and that conducting post-incident drug testing without a reasonable possibility that employee drug use could have contributed to the reported injury or illness, constitutes unlawful retaliation under OSHA.

Last week, OSHA published a memo that specifically clarifies that it “does not prohibit workplace safety incentive programs or post-incident drug testing.” [emphasis in original]

What does this mean?

Incentive Programs

One example of an incentive programs is one that rewards workers for reporting near-misses or safety hazards. According to OSHA, “Positive action taken under this type of program is always permissible.”

Another example rewards employees with a prize or bonus at the end of an injury-free month, or evaluates (and bonuses) managers based on their work unit’s lack of injuries. According to OSHA, these programs are also permissible, “as long as they are not implemented in a manner that discourages reporting.”

According to OSHA:

If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer [for retaliation] as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

What are “adequate precautions to ensure that employees feel free to report an injury or illness?”

An incentive program that rewards employees for identifying unsafe conditions in the workplace;
A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

Post-Accident Drug Testing

According to OSHA, “most instances of workplace drug testing are permissible.” Examples of permissible drug testing include:

Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Employers no longer need a nexus between the possible or suspected drug use and the reported injury or illness.

If you have questions about implementing or modifying a workplace safety incentive program, or a post-accident drug testing program, contact your Occupational Safety & Health team.

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

October 18, 2018June 29, 2023

When Dealing With D&I Naysayers, Avoid These 3 Pitfalls

It’s tempting to focus on the naysayer. It’s easy to give those loud voices of dissent all our attention. It’s not our fault.

We evolved to be somewhat anxious and pessimistic since hedging our bets and lowering our risks kept our ancestors safe. We focus on the loud voices of dissent because they might be right, and heeding their warnings might avert disaster. But sometimes the naysayers are simply afraid, and not only is there no significant danger in the valley beyond, its abundance could sustain us for generations to come.

When it comes to leading diversity and inclusion efforts in an organization, there are three major pitfalls in the way D&I champions treat D&I naysayers.

Allowing efforts to be distracted or derailed by the naysayers. Change theorists have found about 14 percent of people are “early adopters” who immediately jump on board with a new idea, while up to 15 percent resist. D&I changemakers who focus most of their attention on converting the small minority of D&I naysayers allow early adopters to languish with no direction for their crusading energy. Meanwhile, the undecided or neutral majority stays neutral — or worse, begins to be swayed by the naysayers. Either way, precious time and opportunities are lost.
Ignoring the naysayers’ voices completely. Depending on who the naysayers are and what they’re saying, ignoring their voices completely can stall or destroy progress. When I was the internal D&I changemaker in a former organization, I made a critical error by trying to minimize and circumvent a naysayer who also happened to be the chief human resources officer. While his political influence was waning, and that of my C-suite boss was on the rise, the CHRO still had the ear of the CEO, and he was the ultimate decision maker regarding personnel policies and the training and leadership development department. If I had been more strategic in my relationship building and more patient with the pace of power shifts in my organization, we could have gained traction more quickly and I could have increased my credibility and influence more easily.
Dismissing or shutting down naysayers during trainings. An unskilled facilitator may minimize the questions or opinions of a person pushing back on D&I concepts during training, communicating indirectly (sometimes directly) that their point of view is less important than others in the room. The facilitator may try to convince the naysayer to “get on board,” wasting precious time proselytizing to the D&I naysayer while neglecting the session objectives and ignoring other participants’ learning needs. Both tactics are ineffective because they are not inclusive behaviors and therefore lack integrity with D&I principles. The first is disrespectful to the naysayer; the second is disrespectful to the entire group. Both are unwise because D&I naysayers are often bright, caring people who raise valid concerns, or important fears that must be taken seriously and addressed to ensure the success of the initiative, especially if the naysayer is a major stakeholder!

To avoid these three pitfalls, implement the following best practices for easier, quicker D&I success:

Harness the enthusiasm of the early adopters. Give formal and informal D&I champions something to do right away. Make sure these tasks are meaningful and aligned with broader strategic D&I goals so you don’t waste energy and lose momentum.
Focus on converting the undecided middle. Harnessing the early adopters will do much of this work for you. In addition, determine what the barriers are for the undecided. Are they overworked? Tired of flavor-of-the-month initiatives, waiting to see if this one is for real? Unsure why the organization is launching a D&I initiative? Unsure what it has to do with their job? Invest in internal marketing and communication to ensure your messaging is simple, accurate, inspirational, aligned and addressing the barriers of the undecided. Tell people what to expect, why it matters, and how they can contribute. Also, give change time!
Listen to, and involve, the D&I naysayers. This may be especially difficult for D&I changemakers if the naysayers represent a demographic or political affiliation the changemakers find difficult or threatening. But naysayers typically express their concerns because they care about the organization and want to make a difference, and inclusion includes everyone. Listen openly and with curiosity to their concerns — one-on-one, in training sessions, and in meetings. Role model inclusive leadership by checking your assumptions and seeking to understand. The naysayer may give you the gift of identifying a misperception that can be clarified, a valid concern that must be addressed, or a blind spot you missed. I’ve found that some naysayers become powerful allies once they’ve been heard, taken seriously and included in problem solving.

Leverage the skills and energy of your natural champions, focus most of your efforts on the undecided middle and don’t ignore the power of the D&I naysayer. Because while any change requires fired-up champions equipped with the proper tools, there are few with more zeal than the convert!

Susana Rinderle is a principal consultant with Korn Ferry, and a coach, speaker, author and diversity and inclusion expert. The postings on this website represent my own personal views and do not necessarily reflect the opinion of Korn Ferry International or any other organization with which I may be affiliated. Comment below or email editors@workforce.com.

October 17, 2018June 29, 2023

Timing of Retaliation Is Key Factor to Reinstating Employee Suit

“See something, say something” is one of the most important elements of any workplace intent on stopping harassment.

Employers are supposed to empower employees to report any harassment they witness, whether or not they are the target. Key to this idea is ensuring that employees who report harassment do not suffer retaliation as result. Retaliation of any kind will chill efforts of employees to say what they see.

With this background in mind, consider Donley v. Stryker Sales Corp. (7th Cir. 10/15/18) [pdf].

Kelley Donley, a manager for a medical technology firm, learned from co-workers that a manager had sexually harassed a subordinate. She exercised her right to file a harassment complaint against the manager with Stryker’s human resources director. That complaint triggered an investigation, which resulted in the manager’s termination.

Approximately one day after the manager’s firing, Stryker launched an investigation into Donley. The investigation focused on an incident six weeks earlier at a team meeting in Colorado, in which it was alleged that Donley had photographed the intoxicated CEO of one of Stryker’s vendors, and shared the photos with co-workers. The company fired Donley because “taking photographs of a valued partner while intoxicated was unacceptable.”

The 7th Circuit ruled that the trial court had improperly dismissed Donley’s retaliation lawsuit.

Donley’s timeline … exposes inconsistencies and contradictions … of why Stryker began the investigation that ended with Donley’s discharge. If the disputed facts are resolved in Donley’s favor, a reasonable jury could interpret the suspicious timing as evidence (a) that one or both decision‐makers initially found Donley’s actions in the Vail incident to be tolerable, and (b) that they decided only later, after she had filed her internal complaint, to use that incident as a pretext to fire her for retaliatory reasons.

What lessons can we learn from this case?

1. Do not sit on allegations of workplace misconduct. If something is inappropriate today, the passage of time will not make it more inappropriate tomorrow. Indeed, waiting to take disciplinary action raises questions as to why you did not take action sooner. If protected conduct intervenes, the inference will be (as it was in this case), that retaliation motivated your ultimate (and untimely) decision to act.
2. Adverse actions taken on the heels of protected activity is very dangerous. This is not to say that you can never discipline or fire an employee shortly after they engage in protected activity. Yet, if you are going to terminate an employee on the heels of any protected activity, you best have all of your ducks in a row. Employees who engage in protected activity aren’t bulletproof from termination. But, you better be sure you’re using the right ammo. If there can be any doubt about your motivation, you take a huge risk in firing an employee on this timeline.

October 10, 2018June 29, 2023

#HimToo Is Dangerous to Your Workplace

#HimToo

A hashtag started as a reaction to #MeToo, put forth by those who believe that false accusations of rape and sexual assault against men are common and happen way too often.

Employers, #HimToo is dangerous to your workplace.

If you believe that allegations of sexual harassment and sexual assault are presumptively false, your investigation is doomed to fail before it even starts. (Of course, the converse is also true; you cannot presumptively believe that allegations are true, either).

You must engage in a full, fair, and impartial investigation into all allegations of unlawful harassment. And, if you cannot do that, hire a third party to do it for you.

#MeToo has done an amazing job of creating an atmosphere of understanding for complaints of harassment and other sexual misconduct. Let’s not undermine all the good it has done with knee-jerk reactions in the other direction.

It’s not only the right thing to do; it’s also what is legally required.

Also read: Assessing the Impact of #MeToo on its First Anniversary

Employers: Take Advantage of the IRS’ Paid Leave Tax Credit

When Congress reformed the tax law earlier this year, one key change that might have flown under your radar is an employer tax credit for paid family and medical leave.

The IRS has a helpful Q&A available here.

The quick and dirty is that if:

You have a written policy that provides employees with at least two weeks annually of paid family and medical leave (that is, leave for a reason that would otherwise qualify for unpaid leave under the FMLA, whether or not you are covered by the FMLA or the employee is eligible for FMLA leave); and
The written policy applies to all full-time employees, and, on a prorated basis, to all part-time employees; and
The paid leave is not less than 50 percent of the wages normally paid to the employee; and
The written policy is separate from your vacation, sick leave, or general paid-time-off policy; and
The employee worked for you for more than a year, and earned no more than $72,000 in 2017

Then you are eligible for a general business tax credit equal to a percentage of the amount of wages paid to a qualifying employee while on family and medical leave for up to 12 weeks per taxable year.

If you have questions about whether you can take advantage of this tax credit, and if so, how, speak with your employment and tax counsel, as well as your accountant.

Also read: The Price of a Family-friendly Workplace

Also read: Tax Reform Trickle-Down is Drip-Filling Employee 401(k) Plans

October 2, 2018June 29, 2023

‘I’m Going to Need Every Saturday Off; Is That Gonna Be a Problem?’

Darrell Patterson had worked in Walgreens’ 24/7 call center for six years without incident.

He claims Walgreens fired him for skipping an emergency training session held on a Saturday.

He’s a Seventh-day Adventist, and it’s against his religion to work on the Sabbath (from sundown Friday through sundown Saturday). Until his firing, they had worked cooperatively to schedule around this religious prohibitions, without incident.

Patterson’s religion and Walgreens’ scheduling came to a head in 2011, however, when Walgreens asked Patterson to cover an emergency Saturday training session. When he missed the training class, Walgreens fired him.

In Patterson v. Walgreens, the 11th Circuit Court of Appeals upheld the dismissal of Patterson’s religious discrimination lawsuit.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

In Patterson, the 11th Circuit held in Walgreens’ favor because it had tried to reasonably accommodate Patterson’s religion.

Walgreens shifted the regular training schedule to Sunday through Thursday for Patterson. That minimized conflicts. For unusual training sessions that were conducted on his Sabbath, Walgreens allowed Patterson to find other employees to cover his shifts, and he did so on several occasions. Patterson conceded that his supervisor had never refused one of his requests to swap a Sabbath shift with a willing employee.

Regarding the Saturday, August 20, 2011, emergency training session that Patterson was assigned to conduct, besides his supervisor, he called only one employee, who advised him that she could not cover for him because of her childcare obligations. Although Patterson thought that several other employees could have covered the training session for him, he did not attempt to contact any of them.

Walgreens met its obligations under Title VII by allowing Patterson to arrange a schedule swap with other employees when they were willing to do so.

What is the lesson for employers? A documented history of accommodating an employee (whether it’s religion or disability) will go a long way to defeating that employee’s discrimination claim if you are compelled to deny an accommodation request.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

October 1, 2018June 29, 2023

5 Steps to Take When an Employee Sues Your Company

I’ve written a lot over the years about best practices to prevent lawsuits by employees.

The fact remains, though, that no matter how good a company’s HR practices are, and no matter how proactive a company is with its legal compliance, a certain percentage of terminations and other employment decisions will turn into lawsuits. It’s the simple the cost of doing business.

The following are five things a company should be actively thinking about when it receives the inevitable lawsuit:

1. Relevant documents should be identified and preserved. Employment lawsuits are not as document intensive and some other disputes in which businesses are involved. Nonetheless, the documents are crucial. They provide a roadmap to the justification for the termination or other employment action, and the reasonableness of the employer’s actions. Key documents (personnel files, handbooks, other policies, investigative reports, emails, and other communications) should be gathered and set aside. Also, a litigation hold should be put in place to ensure that no relevant documents are accidentally destroyed.
2. Under Ohio’s discrimination law, managers and supervisors can be personally liable for their own individual acts of discrimination. Often, they are sued in their individual capacity along with the company. Potential conflicts of interest among any individual defendants and the company must be evaluated very early in the case to ensure that conflicts of interest do no exist. If they do, one attorney cannot represent all defendants. If conflicts are not identified until well into the case, the lawyer may have to withdraw, which could irreparably damage the defense.
3. Fight the urge to take it personally. When an ex-employee claims discrimination, companies can lose sight of the fact that lawsuits are part of doing business. Employer often shift into attack mode because they are accused of being bigots. There is a huge difference between aggressively defending a case and attacking for the sake of attacking. The former is smart strategy; the latter often leads to greater costs by losing focus. It also risks taking action that could be viewed as retaliatoryand bring further claims. Extra care must be taken when the plaintiff is current employee, as opposed to an ex-employee.
4. If your company has Employment Practices Liability Insurance, timely file a claim with the insurer. If you have purchased a rider that permits you to select counsel, make sure you enforce that right. If you have not purchased that protection, consider having a candid conversation with the insurance company about the counsel they will choose for you.
5. Hire experienced employment counsel to defend the claim. Employment law is highly specialized. Retaining counsel that knows that ins and outs of this area of law is the best way to keep costs down as much as possible, while at the same time doing everything possible to aggressively defend the company.

What key steps have I missed? Is there anything your company does when it’s sued that you think others should also be doing? Share you thoughts in the comments below.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.