Category: Commentary & Opinion

Posted on

The Intelligence Test’s Place in Hiring

Andie Burjek, Working Well blog

Conference season is in full swing, and I’d love to share some takeaways with you! I attended a Society for Industrial and Organizational Psychology conference in Chicago on April 19 and 20, and the speakers I saw and topics they discussed were fascinating.

I-O psychology, also known as workplace psychology, is “a branch of psychology that applies psychological theories and principles to organizations,” and a major focus of this field are areas like increasing workplace productivity and improving the mental and physical well-being of employees. It also strives to best match an employee with a job role. That’s what I’d like to explore in this blog: the role of the IQ test in recruitment.

To me there’s something inherently interesting to me about the potential tension between science and practice. That is, a researcher can discover some objective scientific fact (or at least a very well-supported hypothesis that could technically be disproved at some point in the future), and how that discovery is put into practice might be questionable.

I’ve mentioned before a fantastic book called The Gene: An Intimate History by Siddhartha Mukherjee, who explores the history of genetic discoveries, including the inception of the IQ tests and the inquiries from researchers on whether or not intelligence is genetic. According to the book, Stanford psychologist Lewis Terman created this IQ test in 1916 to determine whether someone’s mental age was equivalent to their physical age. It’s important to note that he was a supporter of the American eugenics movement, which posited that certain races were inherently superior and more intelligent than others.

This brings me to two speakers at the SIOP conference. Dr. Thomas J. Bouchard, professor emeritus, University of Minnesota, won the SIOP’s Dunnette prize for his 20-year study MISTRA — the Minnesota Study of Twins Raised Apart. His speech focused on the findings of this research, which found a strong genetic link in IQ test scores. Joel P. Wiesen, meanwhile, gave a lecture on the limitations of using IQ tests only to rank police officer applicants and suggested 15 alternative ways police departments could rank applicants — along with pros and cons of those alternative options.

To me, these two represented the theory and the practice sides of psychology.

Bouchard’s research in the twin studies was extensive and impressive. He launched the study in the 1970s in a very anti-IQ environment. One argument was that IQ tests equal racism, which he wanted to disprove. Another argument stated that a person’s abilities, activities and attitudes cannot be measured; Bouchard disagreed. A notable debate at the time was if intelligence was influenced by genetics or socioeconomic status and the opportunities that came with the status.

What Bouchard ended up finding was a strong link between IQ scores and genetics. Twins growing up apart in very different environments did not change the similarity that had in general intelligence.

I came out of the sessions with several questions: Since the IQ test was man-made by a person who had certain beliefs and who lived in a certain time and place in history, aren’t there inherent biases within it? Isn’t that true with any man-made assessment? How significant should a person’s IQ be in their job prospects?

I learned a lot about the science behind IQ, but what are the limitations of IQ in practice? What if what one person considers a trait of an intelligent person is not what another person considers a trait of an intelligent person? I also thought of kids with whom I attended to high school who were very intelligent but did badly on standardized tests because they were nervous or bad at taking tests. Could the same principal apply to IQ tests?

Bouchard did not address these. The focus of his presentation was his research, so as an attendee I do not know his point of view on how IQ tests should be used in a professional setting or how much weight we should give the IQ score in evaluating the fitness of a person for a job. Wiesen’s lecture on IQ and hiring in police departments did, however, provide many answers for me.

When police departments rely on a narrow IQ test to rank applicants, they often find that white applicants have higher scores, on average, than other applicants, which ends up decreasing the diversity of the police force. He also brought up the fact that, long ago, psychologists were at the forefront of the eugenics movement [See: Lewis Terman], which brings up a moral issue. How could psychologists have been so wrong, he asked, and isn’t it technically possible for them to be making similar mistakes now?

He made alternative suggestions for how departments could rank applicants instead. One of my favorite suggestions was the “Greatest Strength Method.” That is, when applicants take a variety of tests of different competencies, they’re considered for what they performed best on. That way, you get a workforce that is not cookie cutter and has a variety of strengths.

I found this to be especially relevant considering the current political climates surrounding police officers and civilians, and the discussions around #BlackLivesMatter and #BlueLivesMatter.

So, what do you think? How large should the role of intelligence testing (or really any formalized testing) be in recruitment?

Other Observations: One speaker brought up a term that’s new to me: psychological capital, described as a combination of hope, resiliency, self-efficacy and optimism that leads to positive workplace outcomes like higher performance and better job satisfaction. This speaker connected psychological capital with practicing mindfulness, but I’m curious: What do you do to develop psychological capital in your organization?

In a panel discussion about the positive and negative impacts of technology, the panelists brought up an interesting point of view. They believed people aren’t addicted to their phones (they’re just dependent) and seemed pretty annoyed that the media likes to ask questions about phone addiction. (I was entertained by that comment.) One panelist mentioned how people aren’t addicted to their phone because this dependency is more of a sign that people inherently need to connect with other people.

My reaction: Sure, the word addiction is probably overused but I can think about a lot of people who could be much less dependent on their phones. Also, I wonder if there’s room in this workplace discussion about social connection, teamwork and collaboration to also acknowledge the value of knowing how to be alone, work alone and disconnect from technology once in a while.

What do you think? Do you think this talk about phone addiction hype is all hype? Do you see technology as more of a tool or a crutch at your organization?

Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.

Posted on

Harassment Prevention Must Start at the Top

Jon Hyman The Practical Employer

If you did not watch the May 20 edition of 60 Minutes, you should. 

The last segment detailed pervasive and rampant sexual harassment by famed chef and TV personality Mario Batali.

And it laid much of the blame at the feet of the CEO of one of the restaurants in which Batali invested, The Spotted Pig, and its owners, Ken Friedman and April Bloomfield. The segment argues that Friedman and Bloomfield turned a blind eye to years of Batali’s sexual harassment of the female employees of their restaurant and knowingly allowed it to continue.

In the report of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, the agency suggests four pillars to any effective anti-harassment program. Its first pillar is that harassment prevention “starts at the top.”

According to the EEOC:

Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment.… Organizational cultures that tolerate harassment have more of it, and workplaces that are not tolerant of harassment have less of it.… If leadership values a workplace free of harassment, then it will ensure that harassing behavior against employees is prohibited as a matter of policy; that swift, effective, and proportionate responses are taken when harassment occurs; and that everyone in the workplace feels safe in reporting harassing behavior. Conversely, leaders who do not model respectful behavior, who are tolerant of demeaning conduct or remarks by others, or who fail to support anti-harassment policies with necessary resources, may foster a culture conducive to harassment.

If you believe the 60 Minutes report (I have no reason not to), none of this occurred at The Spotted Pig.

If you want ensure you are doing everything you can as an organization, start by taking a hard look at yourself and your leadership and answering these key questions:

  • Do you foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted?
  • Does you behavior communicate and model a consistent anti-harassment commitment?
  • Have you devoted sufficient resources to effective harassment prevention efforts?
  • Have you nurtured an environment in which employees are comfortable coming forward with complaints of harassment that will be taken seriously, investigated, and corrected, all free from retaliation?
  • Do you impose swift, proportional, and consistent discipline (without playing favorites or showing favoritism) when you have found harassment to have occurred?
  • Do you hold managers and supervisors accountable for preventing and responding to workplace harassment?

Unless you’ve answered “yes” to each of these six questions, then I suggest that you are not doing everything you can to create a top-down, holistic, anti-harassment strategy. Which means that you are not doing everything you can to protect your most valuable asset … your employees.

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.

 

Posted on

7 Things Employers Must Know About the I-9 Form

Jon Hyman The Practical Employer

Earlier this week, the Trump administration announced that it has doubled the number of worksite investigations and audits conducted by Immigration and Customs Enforcement.

Its express goal is to make sure businesses are not employing people who are in the U.S. illegally.

What is such an audit? Simply, it’s a review of business records, specifically I-9s.

In light of this news, over the next two posts I’ll be taking a deeper look at employers’ obligations to comply with immigration laws. Today, we’ll examine the I-9 itself, and tomorrow we’ll discuss what to do (and, maybe more importantly, what not do) if ICE or another agency shows up at your door asking about I-9s.

What do you need to know about the I-9 Form? Here are seven important things that should be front of mind:

    1. I-9s are low-hanging fruit for any employer. The government makes the form available online, complete with instructions to how to fill it out.
    2. You must complete an I-9 at the beginning of employment for every employee you hire (except for employees hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times). It does not apply to independent contractors (but be wary of who is, and is not, a bona fide independent contractor).
    3. An employer’s I-9 obligations do not depend on the citizenship of the employee. All employees means all employees, regardless of citizenship or nationality.
    4. All employees also means all employees regardless of tenure or length of service. The obligation to retain an I-9 for each person hired applies from the date of hire, even if the employment ends shortly thereafter or if the hired employee never completes work for pay.
    5. Employers must retain I-9s for the later of three years from the date of hire, or one year from the date of termination. You can choose to retain them on paper, microform (really), or electronically.
    6. You may choose to copy or scan documents an employee presents when completing an I-9. Making photocopies of an employee’s document(s), however, does not take the place of completing or retaining the I-9 itself. If you choose to retain copies of an employee’s documents, to avoid a Title VII violation you must do so for all employees regardless of actual or perceived national origin or citizenship status.
    7. The Department of Homeland Security, the Department of Labor, and the Immigrant and Employee Rights Section of the Department of Justice are all authorized to inspect an employer’s I-9 forms.

Also read: Raids on 7-Elevens a Stark Lesson in I-9 Immigration Compliance

And this is where we’ll pick up tomorrow: What do you do when then feds show up at your door?
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.
Posted on

Sympathetic Does Not Always Equal Protected Under the ADA

Jon Hyman The Practical Employer

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.

When an opinion starts with this quote, you know that the plaintiff is not going to have a good day.

What happened in Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. 4/30/18) to garner this tough life lesson from the court?

Victor Sepúlveda-Vargas worked as an assistant manager in a Puerto Rico Burger King owned and operated by Caribbean Restaurants. While making the nightly bank deposit, Sepúlveda was robbed at gunpoint, hit over the head and had his car stolen. As one might expect, Sepúlveda did not come out of the incident mentally unscathed. In fact, he suffered post-traumatic stress disorder and major depression.

Caribbean Restaurants requires its managers to work rotating shifts, and considered the requirement an essential function of the job — to spread among all managers the burden of working undesirable shifts.

Those rotating shifts would have required Sepúlveda, upon his return to work, from time to time to work the night shift on which he was robbed and assaulted. Instead, he requested a set schedule as a reasonable accommodation.

Initially, the employer granted Sepúlveda’s request. A couple of weeks later, however, it reconsidered and retroactively denied the accommodation, informing Sepúlveda of the essential nature of the rotating schedule.

Sepúlveda sued, claiming that that Caribbean Restaurants failed to reasonably accommodate his disability in violation of the ADA.

As you’ve likely gathered from the lede, Sepúlveda lost, based on the rotation as a essential function. The court was not only un-persuaded by Sepúlveda’s story, but also by the fact that the employer had initially granted the accommodation.

While … Caribbean initially granted Sepúlveda the accommodation on a temporary basis, that fact did not mean that it conceded that rotating shifts was a non-essential function.… To find otherwise would unacceptably punish employers from doing more than the ADA requires, and might discourage such an undertaking on the part of employers.

Essential functions are called essential for a reason. And while I can see an argument that waiving one by granting an accommodation lessens its essential-ness, this court saw it differently. An employer may (but is not required to) go above and beyond that which the ADA requires. And to punish an employer for doing so will only serve to deter employers from exceeding the ADA’s requirements in the future.

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.

Posted on

Think You Need Cultural Sensitivity Training? Think Again

I’ve been getting more requests for cultural sensitivity training lately.

The scenario is almost always the same: Manager has a habit of saying inappropriate things to staff or customers. One day, one of those staff members or customers files a complaint, or shares evidence of the bad behavior on social media (or both). The organization then launches a frantic search for “cultural sensitivity training” for the offending manager.

If your organization is on such a frantic search, or would like to avoid being in that position, these are the inconvenient truths that will actually solve your problem. Usually, “cultural sensitivity training” won’t.

Training is a solution only if lack of knowledge or skills is the problem. Does the manager know what behaviors are appropriate and inappropriate? If they do and they’re behaving inappropriately anyway, then training won’t fix the problem — you need accountability and progressive discipline (or termination). If they don’t, training may actually help. But if this is the case, the manager’s gap in knowledge and skills raises two questions: (1) How were they never onboarded or trained properly in the first place? (2) How were they hired or promoted into a leadership position without first possessing necessary basic skills in empathy, emotional intelligence and effective communication? The answers likely point to systems flaws that must be addressed to avoid similar problems.

Trainers can’t do a manager’s job. Trainers cannot hold your staff or leaders accountable for doing appropriate behaviors in the workplace. That’s their boss’s job.

If a person has been allowed to treat people inappropriately over time with no meaningful consequences, the problem is a lack of leadership and accountability in your organization. Leaders who allow a handful of people, or one person, to bully and disrespect others, bring down morale and put your reputation and revenue at stake are poor leaders. They are stifling productivity and innovation and creating risk and liability for your entire organization.

Take a stand for your excellent employees, your mission, and your future, and put a stop to the inappropriate behavior. It’s a sad fact that many capable people who excel at their jobs are rewarded by being promoted into a new role (leadership) that requires an entirely different skillset. Leadership is difficult, and it’s not a fit for everyone. If you’re struggling with being a fair yet decisive leader who holds people to high standards, examine your willingness to grow and get mentoring and coaching if you are.

“Cultural sensitivity training” is insensitive, insulting and “old school.” Sensitivity should not be your goal. It’s results. Behaviors that disrupt or destroy an inclusive culture get in the way of results. Behaviors that interfere significantly with people bringing their best selves to work should not be tolerated, and only accountability makes this happen. “Sensitivity training” rarely provides people with clear behavioral guidelines and communication skills. It can encourage an eggshell-walking culture that reinforces a power imbalance and the patronizing notion that non-dominant groups (women, people of color, LGBTQ, etc.) are fragile and need special handling. It doesn’t usually invite them into exploring their own power and opportunities to build skills while dominant groups are being taught to be more “sensitive” by confronting their blind spots and negative impacts.

A more effective approach starts with (again) asking the right questions: Did the person know the behavior was inappropriate? If not, what larger issues lead to the gap? How will the person be equipped to be more effective moving forward, and held accountable for doing so? Also, what opportunities does this situation present in terms of our work culture? How can we give each other feedback about a boundary being crossed? How can we all take ownership for our experience in creating an inclusive culture that’s appropriately mistake-tolerant? A skilled facilitator can help you explore these questions together, and an effective trainer can help your team develop more skills to bridge behavioral gaps. “Sensitivity” may be an intention, but should not be the goal.

Cultural sensitivity training doesn’t cure an a**hole. Intent does not equal impact. Sometimes “good” people do and say “bad” things because we weren’t thinking or didn’t realize the negative impact of our actions.

Once provided with feedback about the impact of our behavior, and the reasons for that impact, emotionally healthy and psychologically mature people take in the information, mend the relationship and adjust their behavior. People who are unwilling or unable to see other perspectives, insist on the “rightness” of their bad behavior, demonize those who experienced a negative impact, and respond to solution-oriented feedback with resistance and blame have a bigger problem. Anyone can have a shame-and-blame reaction if they’re blindsided by feedback or under tremendous stress. But if shame-and-blame is their pattern over time or general attitude, the question becomes: Is this person a good fit for their role, or for your organization?

Rehabilitating sociopaths is not your job. Getting meaningful results that matter and supporting your effective team members to create more excellence should be your goal.

Susana Rinderle is president of Susana Rinderle Consulting and a trainer, coach, speaker, author and diversity & inclusion expert. Comment below or email editors@workforce.com.

Posted on

The 8th Nominee for the Worst Employer of 2018 is … the Age Discriminator

Jon Hyman The Practical Employer

Today’s nominee for the Worst Employer of 2018 is Seasons 52, a national, Orlando-based restaurant chain.

Last week, it agreed to pay $2.85 million to settle a nationwide class age discrimination lawsuit brought by the EEOC. The lawsuit included significant direct evidence of age discrimination.

From the agency:

The EEOC’s lawsuit sought relief for applicants age 40 and older that had been denied front-of-the-house and back-of-the-house positions at 35 Seasons 52 restaurants around the country.

During the course of the litigation, over 135 applicants provided sworn testimony that Seasons 52 managers asked them their age or made age-related comments during their interviews, including: “Seasons 52 girls are younger and fresh,” “Most of the workers are younger,” “Seasons 52 hires young people,” or “We are really looking for someone younger.”

If you reject older job applicants as a matter of corporate policy, you might be the worst employer of 2018.

Previous nominees:

The 1st Nominee for the Worst Employer of 2018 Is … the Holy Harasser

The 2nd Nominee for the Worst Employer of 2018 Is … the Arresting School Board

The 3rd Nominee for the Worst Employer of 2018 Is … the Camera Creep

The 4th Nominee for the Worst Employer of 2018 is … the (in)Humane Society Harasser

The 5th Nominee for the Worst Employer of 2018 is … the Political Pension Preventer

The 6th Nominee for the Worst Employer of 2018 is … the Sadistic Sergeant

The 7th Nominee for Worst Employer of 2018 Is … the Pregnancy Provoker

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.
Posted on

Get Ambitious in Your Hiring

Dissatisfaction is a symptom of ambition. It’s the coal that fuels the fire.”

— Trudy Campbell, “Mad Men”

Ambition. As much as many of us are uncomfortable saying publicly that it’s a value/feeling/potential factor we want in our organization, ambition is needed in your company to get great results.

You know your high-ambition employees. They are the ones that often do great things and occasionally put tire tracks across the back of some teammates in the process. Are you better with or without these people? And if everyone is happy with their current status, who moves the company forward?

A few years back, I was doing a classic “section 2” in performance management at a previous company. As part of that exercise, we were trying to change the traditional company values to rate people to “potential factors,” which are more actionable “DNA” strands your high achievers have regardless of position.

As part of that exercise, we established 51 potential factors to whittle down to the five or six we would eventually live with. The ones you would expect most — innovative, communicator, etc. — were there.

Two members of the leadership team were adamant about including ambition in that list. But as it turns out, the rest of the team couldn’t get past the fact that ambition comes with negative perceptions. No matter how the two leadership team members came back to the positives associated with ambition, the others couldn’t get over the negative attributes.

Fact is, you need ambitious people. You probably don’t have enough of them.

To truly maximize the positive effects of ambition at your company, you’ve got to do two things: hire for the trait and ensure the negative effects of the ambitious FTEs don’t kill your culture.

Here are four ways you can determine candidates with ambition in their DNA:

  1. Find young candidates who spend two years in a job, then jump to another company to get the equivalent of a promotion. If you see this in a 30-year-old, it’s likely they have some form of ambition. Note: I’m not talking about someone who simply switches companies without a promotion. I’m talking about the clear path of changing companies to progress in their career via title, responsibilities and money.
  2. Behavioral characteristics. If you’re into assessments, a good way to see ambition is to look for the combination of high assertiveness and low team. High assertiveness means they’ll take action when needed, including to better themselves in a variety of circumstances. Low team doesn’t mean bad teammate. It means that a candidate is motivated for scoreboards, rewards and recognition that reward individuals, not teams.
  3. They are building a portfolio of work. As they have worked for you or others, high-ambition individuals are creating a book of citable work and they’re pulling it together in a way that’s going to get them the next job or better circumstances in their current job.
  4. High-ambition candidates are always networking. Look at a candidate’s LinkedIn profile and you’ll see the marks of ambition. High-ambition individuals have more connections than others, are sharing content and have fully fleshed-out profiles.

One problem that is universally related to direct reports with high ambition levels is that they can become hated by their peers. It’s simple to see why. The folks with ambition treat life like a scoreboard. Their peers want to do good work but don’t have designs to rule the world. Friction ensues.

The key to control this in my experience is to confront that reality with the high-ambition employee. “You’re looking to do great things. You’re driven. You want to go places and you’re willing to compete with anyone to get there.” Start with that level set.

Then tell them they must get purposeful with recognition of their peers.

If a high-ambition direct report starts a weekly, informal pattern of recognition of their peers, a funny thing happens. They start to look human to those around them. The gift of recognition makes them look less zero sum, less cutthroat and more like one of the team.

If you find all four ambition marks when recruiting, it’s likely you have a high-ambition candidate on your hands. Soften their edges via some direct and prescriptive coaching.

And if you find high-ambition candidates but don’t want to hire them, send them my way.

Kris Dunn, the chief human resources officer at Kinetix, is a Workforce contributing editor. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

Posted on

This Is How You Reasonably Accommodate a Disabled Employee

Jon Hyman The Practical Employer

I’ve spent a lot of time over the past 16 months discussing bad employers — those that so mishandled employees that they earned a spot on my list of America’s Worst Employers.

Today, I thought I’d take a look at the brighter side — an employer that handled a tricky employee issue correctly.

Jablonski v. WalMart (9th Cir. 4/26/18) concerns an issue that often confounds employers and presents many opportunities for mistakes that lead to difficult lawsuits — the sick or injured employee who needs repeated reasonable accommodations.

Lidia Jablonski worked as a supervisor in the dairy, frozen and meat departments of a Las Vegas WalMart. She took 12 weeks of FMLA following a workplace injury suffered from a falling box of frozen chicken.

Here is how WalMart accommodated Jablonski’s injury following her FMLA leave:

  • Near the end of her leave, WalMart reached out to Jablonski to see if she needed an additional leave of absence, which it granted upon her request.
  • When that leave expired, Jablonski’s doctor certified her to return to work under certain temporary restrictions. Accordingly, WalMart offered, and Jablonski accepted, a 90-day temporary cashier position under WalMart’s Temporary Alternate Duty program.
  • Ultimately, Jablonski’s doctor released to permanent light-duty restrictions. Two supervisors met with her and offered the only vacant position at the store at the time that fit her restrictions, as a part-time cashier.
  • Jablonski declined the offer, stating that she could only accept a full-time cashier position. Since there was no such position available, WalMart considered her “voluntarily terminated.”
Jablonski sued, and lost. And appealed, and lost.

As noted by the court of appeals:

WalMart officials corresponded with her about her leave, granted multiple leave requests, and spoke to her about her future position. WalMart offered Jablonski several accommodations: personal leave when she ran out of FMLA leave, a ninety-day TAD position that accommodated her medical restrictions, and eventually a permanent cashier position — which she rejected. Jablonski argues that WalMart should have transferred her to another store. But she did not ask to be transferred at the time, and she has not presented any evidence that there were vacant positions for which she was qualified at other stores.

The lessons?

    1. When you can demonstrate a documented history of accommodating an employee’s disability, you make it that much more difficult for the employee to establish discriminatory animus, even if you later deny an accommodation request or even terminate the employee.
    2. The ADA does not require employers to be mind readers. If an employee does not request a certain accommodation as part of the interactive process, an employer is not obligated to offer it. Thus, even though Jablonski later complained that WalMart did not offer her a full-time cashier position at a different store, she also did not ask for a transfer to an open position.
    3. The ADA also does not require employers to create positions that do not exist as accommodations. It only requires transfers to open and available positions for which an employee is qualified. Thus, WalMart had no obligation to create for Jablonski a full-time cashier position within her store. Because the only open and available position was part-time, WalMart met its obligation.
Next time you are faced with the difficult situation of a disabled employee who needs repeated accommodations, think of WalMart and this case, and ask, have we done all that we could have done for this employee, or is there more we can do? How you answer this question will tell you if you have best positioned yourself to defend a discrimination or reasonable accommodation lawsuit.
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.
Posted on

5.1 Million Reasons to Keep Religion Out of Your Workplace

Jon Hyman The Practical Employer

“Onionhead” teaches people to direct their emotions in a truthful and compassionate way.

It is central to the teachings of the Harnessing Happiness Foundation, a 501(c)3 nonprofit organization dedicated to emotional knowledge and intelligence, conflict resolution, and life handling skills.

Onionhead is also central to a religious discrimination lawsuit brought by the EEOC against United Health Programs of America and its parent, Cost Containment Group. The aunt of the defendants’ CEO is the creator of Onionhead.

According to the lawsuit, the defendants required its employees to participate in “group prayers, candle burning, and discussions of spiritual texts,” all as part Onionhead, and fired anyone who refused to participate. The EEOC alleged that Onionhead is a religion, and forcing it upon employees violates Title VII.
Last week, a unanimous Brooklyn federal jury agreed with the EEOC, and awarded 10 employees a total of $5.1 million.
According to EEOC Trial Attorney Charles Coleman, Jr., “This case featured a unique type of religious discrimination, in that the employer was pushing its religion on employees. Nonetheless, Title VII prohibits religious discrimination of this sort and makes what happened at CCG unlawful. Employees cannot be forced to participate in religious activities by their employer.”

He is 100 percent correct. If you’re thinking of holding a prayer meeting, conducting spiritual discussions or rituals, or doing anything else remotely related to religion at your company, don’t. Religion has no place at work. Your intentions may be absolutely pure. Your employees however, have the unfettered right to practice the religion of their choice, or not to practice any religion at all.

Whatever you call your deity — God, Jesus, Jehovah, Jehovah, Allah, Buddah, Krishna … or even Onionhead—leave it at home. The workplace and religion do not mix. An employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs. Anything different violates Title VII.

Posted on

Hair Discrimination: Not a Thing

Jon Hyman The Practical Employer

“Give me a head with hair, long beautiful hair
Shining, gleaming, steaming, flaxen, waxen
Give me down to there hair, shoulder length or longer
Here, baby, there, momma, everywhere, daddy, daddy
Hair, hair, hair, hair, hair, hair, hair, hair
Flow it, show it, long as God can grow it, my hair”

– “Hair”

My recent post about the beauty of baldness got me thinking about hair and employment law.

Or, more to the point, can an employer run afoul of discrimination laws by making an employment decision based on one’s hair style?

The answer is likely no.

Not that employees haven’t tried.

For example, Ewing v. United Parcel Service challenged UPS’s Personal Appearance Guidelines. With respect to hair color those guidelines stated: “Hairstyles and hair color should be worn in a businesslike manner.” Shenitta Ewing, African American, claimed discriminatory enforcement of the policy to prohibit her from coming to work with fuchsia-colored hair. The court disagreed, citing at least four examples of Caucasian employees fired or discipline because of their “extreme” hair colors.

Or consider Viscecchia v. Alrose Allegria LLC, which concerned a hotel’s “hair policy,” which required that hair “be clean, trimmed, well brushed, and neat at all times, prohibited “extreme styles,” and further prohibited the hair of its male employees from landing below the shirt collar. After repeated warnings, the hotel fired Richard Viscecchia for refusing to trim his long hair. He claimed sex discrimination, based on a policy that required men, but not women, to maintain short hair. The court disagreed, holding that gender-differentiated hair length standards do not violate Title VII, and “employers can prescribe different grooming standards for male and female employees.”

Or EEOC v. Catastrophe Management Solutions, which concerned an employer’s blanket prohibition against dreadlocks, and an African-American applicant’s rejected claim that such a policy intentionally discriminates on the basis of race.

One potential exception that could make hair discrimination unlawful is where an employee’s hair style is related to a sincerely held religious belief. In that case, an employer should consider possible reasonable accommodations to avoid a claim of religious discrimination.
Otherwise, to sum up this potentially hairy issue, as long as you are not intentionally targeting one protected group over another, you are free to regulate hair in the workplace.
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.