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Category: Commentary & Opinion

Posted on April 27, 2018June 29, 2023

What I’m Reading Now: A Lesson in Geography, Genetics and American Values

Andie Burjek, Working Well blog

The benefits and wellness world is so rich that it’s hard to dig deep into every topic that comes up. That said, here are the stories that struck my interest recently.

Health Risks and Health Benefits of Genetic Tests: The genetic testing space fascinates me for many reasons, especially from an overall ethical standpoint. It’s such a recent area of scientific advancement that I find it curious to read about new innovations and trends and the larger moral questions they bring up.

I’ve written before about employees’ concerns about HR 1313 and how some feared they’d be coerced into taking tests they don’t to, and I’ve written about why employers should take issues like genetic discrimination in life insurance into account when they try to market genetic testing benefits to employees. But a recent New York Times article brought a much more basic angle to mind: genetic testing’s actual impact on public health.

The article highlighted many employers like Levi Strauss & Co., SAP, OpenTable and Salesforce that offer genetic testing as an employee benefit. There are many positive effects that can come out of this, the author acknowledges, but we should also consider some basic scientific facts about genetics before we hail genetic testing too enthusiastically as some flawless health innovation.

Many parties — including employers, the Food and Drug Administration and many genetics companies — are embracing broader consumer use of genetic tests, but groups like physicians, doctors and federal health agencies are uncertain if these tests are ready for public adoption. The reasoning? In a generally healthy population or group of people, there’s no evidence that systematic screening has “a net benefit in terms of health outcomes.”

To reiterate, there can definitely be value to genetic testing for certain people, but I wonder, could the same logic about on-average healthy public populations be said about on-average healthy employee populations? Would broad systematic genetic screening truly have a significant impact on the workplace, in terms of overall health or health care costs?

Work-Life Harmony and American Values: The Washington Post just published what I found to be a fascinating op-ed, “America is Obsessed with the Virtue of Work. What About the Virtue of Rest?” Given all the talk about work-life balance or work-life boundaries, many of the ideas in this piece were especially relevant.

Pro-work policies and rhetoric are common on both the left and right, the author writes, but meanwhile there are few pro-rest policies. For example, paid parental leave is lacking for most employees; more than half of workers leave vacation days unused either because they can’t afford to take time off or because they don’t want to look bad to their employers; and retirement isn’t a certainty for many older individuals.

In a time when burnout, balance and holistic well-being are common corporate talking points, companies should consider that employees deserve to have time to take care of themselves, rest or go on vacation. This picture of Walden Pond is from a vacation I took last fall.

The article also argues that although there is dignity and value in work, the majority of one’s life should not be made up of work. For example, the labor movement of the late 1800s championed the eight-hour workday so that workers could have time to get the proper amount of sleep and to pursue their own interests.

None of this is to say that people should be lazy or that work isn’t important. But in a time when burnout, balance and holistic well-being are common corporate talking points, it’s worth pointing out that people do deserve to have time to take care of themselves.

An excerpt from the article: “… Trump isn’t wrong, after all, in identifying work as a cardinal American virtue — and infractions against virtue are the stuff of vice. But in terms of our wider cultural context, it doesn’t appear to me that a lack of respect for work is the No. 1 threat to American dignity. If we undervalue anything to the detriment of dignity, it is the virtue of rest.”

Geography and HDHPs: The prevalence of employers offering high-deductible health plans varies by geography, reported news site HealthPayerIntelligence.com. The site was referring to findings from the BenefitFocus report State of Employee Benefits 2018 — Regional Edition.

I found this report valuable because with so much media attention given to diversity now and how different benefits might appeal to different people depending on age, gender, etc., rarely do I see geography as part of the definition of diversity. But, obviously, people who live in different regions will have different problems or issues that require different solutions, and health care plans are no exception.

An excerpt from the article: “Regional insights may help employers identify the gaps in value of their health plans. Employers could capitalize on these gaps by redesigning health plan offerings, financial contributions and additional benefits to fill these gaps in value.”

Final Read: Last week I wrote about the impact of art on employee stress. So this week I was happy to see the Chicago Tribune publish something about the impact of art on loneliness.

The loneliness epidemic is a talking point in the wellness community (Workforce writer Rita Pyrillis, explored this topic more deeply in the latest issue of the magazine), and although the Tribune article focuses on student mental health and loneliness, the same ideas apply to the workplace. For example, the article mentions that there is a biweekly support group for students with disabilities and their allies. That’s the college version of an employee resource group!

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

Posted on April 26, 2018June 29, 2023

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

Jon Hyman The Practical Employer

Kayla Edwards worked as a cashier for Aramark at its location in Gettysburg National Park.

In February 2017, Edwards became pregnant with her third child.

That’s when her troubles at work began, at least according to Edwards’ lawsuit [pdf] (filed earlier this week in federal court in Pennsylvania).

Immediately upon hearing of the pregnancy, Edwards’ supervisor, Suzanne Curtian, is alleged to have called her “dumb.”

The alleged harassment when downhill from there:

  • While Edwards was experiencing pregnancy-related complications, Curtian allegedly expressed: “Well hopefully it’s just a tumor or something and you were wrong about the pregnancy. Nothing cancerous, just something they can remove and you can move on.”
  • As the complications progressed, Curtian allegedly commented, “Maybe you’re miscarrying. If so, that’s just God’s will and what’s best. And then you won’t have to worry about another kid or having to leave [work].”
  • Approximately nine weeks before Edwards’ scheduled C-section, Curtian allegedly instructed her to “keep [her] legs crossed,” so that she could continue working as long as possible.

Two weeks later, Curtian accused Edwards of theft and fired her.

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

If you call an employee’s pregnancy a “tumor” and tell her “keep you legs crossed” to remain at work longer, you might be the worst employer of 2018.
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 April 25, 2018June 29, 2023

Nearly Half of American Workers Admit to Engaging in Workplace Revenge

Jon Hyman The Practical Employer

And every time I scratch my nails
Down someone else’s back I hope you feel it

Alanis Morissette

Revenge. So natural, and yet so wrong. “Turn the other cheek” is always the preferred practice, and, yet, often life is more “smack you in the cheek” as you turn away.

Even at work.

According to a recent study, 44 percent of workers admit to partaking in some type of workplace revenge.

The top 10 acts of revenge range from the silly to the diabolical to the downright nasty:

  1. Cause a purposeful decline in the quality or quantity of work.
  2. Spreading an unflattering rumor about a co-worker.
  3. Quit a job in an unconventional manner.
  4. Hide a co-worker’s possession(s).
  5. Get a co-worker fired.
  6. Sabotage a co-worker’s work.
  7. Tamper with a co-worker’s computer or work equipment.
  8. Eat a co-worker’s lunch
  9. Disseminate private information from a co-worker’s social media.
  10. Delete work from a co-worker’s computer.
Here’s the most troubling part. Of those who admitted to taking revenge, 83 percent got away with it, and of those that got away with it, 83 percent had no regrets. Also, of those caught, 55 percent suffered no repercussions whatsoever, and only 11 percent were fired.
Moreover, this conduct might not be unlawful. Generalized workplace bullying is generally legal. Mistreatment against co-workers is only rises to the level of unlawful harassment if it’s because of some protected class (e.g., sex. race, religion, age, national origin, disability, etc.), and to the level of unlawful retaliation if the target had engaged in some protected activity.
Yet, just because an act of revenge isn’t illegal doesn’t mean that you shouldn’t handle it just the same. For starters, whether or not an act of revenge is “because of” some protected class is very much in the eye of the beholder, one person’s non-discriminatory act of revenge is another’s unlawful harassment. Do you want to take that risk?
And, regardless of whether an act of revenge is or is not actionable, it nevertheless impacts your employees the same—increased absences, high turnover, low morale, lost productivity, greater health insurance costs, and the expensive legal bills if it turns into a lawsuit.
In other words, there is no excuse for an employer to turn a blind eye toward one employee’s act of revenge against another employee.
So, what can an employer to do prevent employees from exacting revenge on each other?

For starters…

Foster a culture of kindness.
More specifically, you should be implementing these three steps:

1. Review policies. Do you have an anti-bullying policy? Do you have an open-door policy? Does your anti-retaliation policy cover all workplace complaints? If you are missing any of these components, the odds are that your employees will not feel the necessary level of comfort to come forward to complain.
2. Encourage complaints. Do you promptly and thoroughly investigate all complaints of inappropriate misconduct, or just those that could rise to the level of a lawsuit? If you’re not taking all complaints of misconduct seriously with prompt and thorough investigations, you are sending the wrong message to your employees, which could lead to them not complaining at all.
3. Take action. It’s appalling that 55 percent of those caught taking revenge against a co-worker suffered zero consequences. If you conclude that the act of the revenge happened, do something. That something need not be termination, but it should be proportional to the severity of the act and the recidivism of the actor.

Have you ever enacted workplace revenge, been the victim of workplace revenge, or had it occur in your business? And, if so, how did you handle it? Share your experiences 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.
Posted on April 19, 2018July 30, 2018

If You Weren’t Angry About Fired Saints Cheerleader Before, You Will Be Now

Jon Hyman The Practical Employer

Remember Bailey Davis? She’s the New Orleans Saints cheerleader fired for violating the team’s social media policy.

Her offense? This photo, which she posted to her personal Instagram.

She’s already filed a civil rights complaint, and now she’s speaking out about her alleged discriminatory treatment and discriminatory policies in professional cheerleading in general.

 She spoke to The Daily on April 18.

This 25 minutes is well worth your time.

If you think your male employees are “predators,” the answer isn’t to punish your female employees, or apply to them a different set of rules intended to protected them. Instead, you simply should deal with the predators.
I understand that we are talking about professional sports, and the predators are the money makers and meal ticket, but that in no way justifies condoning their behavior, or discriminating against your female employees.
If you weren’t angry about this issue before, you will be now.
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 April 19, 2018June 29, 2023

Sending All Employees to Racial Bias Training Unlikely to Solve Starbucks’ Problem

Once again, someone in an organization made a poor behavior choice whose harmful consequences were recorded and made public.

This time it was coffee giant Starbucks, and once again, people are freaking out. Starbucks is freaking out so much, the company is investing millions of dollars to close 8,000 stores and send 175,000 employees to racial bias training the afternoon of May 29.

This is what happens when the ancient “downstairs brain” is running the show. While this part of the brain is very effective at “fight or flight” in situations of imminent physical danger, it should not be in charge of leadership decisions. While the danger to Starbucks’ brand is clear, and their leadership is right to take responsibility and respond quickly, spending millions and losing millions in revenue to send employees to a half-day training is a knee-jerk reaction likely to produce few results.

Effective leadership is usually more about responding well than reacting quickly. Responding well in crisis requires two things: (1) pausing and (2) using that pause to bring the more sophisticated “upstairs brain” back online to critically examine the data.

Here are the data: On April 12 two African American men were waiting in a Philadelphia Starbucks for a third person to arrive for a business meeting. They asked to use the restroom and were denied because they hadn’t purchased anything. The manager asked them to leave and when they refused, she called 911. Police arrived and arrested the men for alleged trespassing, even after the third party showed up for their meeting.

Based on these data, here are five reasons why racial bias training won’t help.

We don’t really know the problem. Einstein once said, “If I had an hour to solve a problem, I’d spend 55 minutes thinking about the problem and five minutes thinking about solutions.” As a culture we have this backwards, especially when the “downstairs brain” is in control. Some questions that need to be answered are, what are Starbucks’ policies for public restroom use? Why? Are those policies working? How are they to be implemented? What is their protocol for when to call police? To call 911? Why? How are managers and staff trained on those policies and protocols? Is that training effective? How are they held accountable to those expectations? Did the Philadelphia manager know the policies and protocols? If not, why not? If so, did she follow them? If not, why not? What is the protocol for police to follow when called to a situation like this? Why? Why were police compelled to make an arrest in this situation, instead of de-escalate? Are these police procotols working? Having answers to these questions gets us to the root cause of the problem, and professionals in process improvement and root-cause analysis are the experts to engage.

Training is a solution only when lack of knowledge and skills is the problem. I’ve written often about the costs when leaders just throw training at “diversity” problems (see “When Diversity Training Is a Waste of Time and Employers’ Money”). If the Starbucks manager and police lacked necessary knowledge and skills, was this a glitch, or does it point to a systemic flaw or gap? If so, then training may be an effective solution. But if they were correctly following policies and procedures, the policies and procedures need to be changed. Then those must be hard-wired in the organization’s processes, modeled by leadership and integrated into systems of accountability.

Systems drive behaviors much more than individuals will. U.S. culture is highly individualistic, so we fixate on eliminating or “fixing” individuals instead of addressing how the larger environment sets us up for success or failure. Mahzarin Banaji, the co-creator of the 20-year-old, scientifically robust Implicit Association Test, says the test picks up on “the thumbprint of the culture on each of our minds” and cautions against focusing on individuals as the problem or the solution to bias. Banaji herself has said she doesn’t think implicit bias training makes a difference. What the research shows that does make a difference are individual practices like pausing for 20 to 30 seconds before acting and getting enough sleep to exercise “cognitive control” in the moment. (I cover six other research-based practices in this 2014 article). But systemic approaches tend to be easier, cheaper and more reliable. Examples include automated reminders at key decision points (like a computer notifying a doctor of racial disparities in how a drug is prescribed, before they prescribe that drug), eliminating bias triggers (removing names from resumes to eliminate racial bias in hiring practices) and prompting supervisors to ponder their biases before conducting a performance evaluation.

Racial bias training is only effective if created and delivered by people qualified to do so. Starbucks bringing in famous people like Bryan Stevenson, Sherrilyn Ifill, Eric Holder Jr., Heather McGhee and Jonathan Greenblatt is impressive. They are brilliant pundits, lawyers, business people and thought leaders on policy. All but Greenblatt are African American. But these qualities and qualifications don’t make them experts in implicit bias, adult learning, organizational development or change management. No one would ask a surgeon to do their taxes, or an accountant to do their knee surgery. And yet it’s common for organizations to invite respected but unqualified people to conduct mission-critical employee trainings instead of those who are less famous, but actually possess the required expertise. Highly ethical subject matter experts are best qualified to conduct a rigorous needs assessment, identify organizational gaps, make recommendations, define goals, conduct necessary training and leadership coaching, and assess results.

Racial bias training is only effective if focused on clear, concrete actions that are supported back in the office. I’ve seen firsthand how even some well-known firms providing unconscious bias training do not define clear, measurable training goals; do not provide concrete tools or clear action plans during training; do not assess training results and don’t work with clients to ensure their systems and office culture support the knowledge and skills employees gain in training. Awareness and knowledge alone don’t move change or shift cultures. (For more, read Six Ways to Set Up Training for Success.)

I applaud Starbucks for taking the community’s concerns seriously. I hope the millions of dollars and thousands of employee hours invested in their racial bias training produce results beyond good PR.

Perhaps participants will gain some skill in cognitive control so they can disrupt their downstairs brain next time it hijacks their decision making ability under perceived threat. But training won’t change the culture imprinted on all of our minds — a culture where people of color are perceived as threats when they’re just going about their lives, where it’s acceptable to call 911 whenever their presence is deemed inconvenient, and where it’s common for police intervention to exact life-altering tolls on those people of color.

Until we all commit to doing the long-term, un-sexy tasks of clearly defining the problem, doing what actually works to increase equity and inclusion and being dogged about accountability and broader systems change over time, we will see incidents like this again and again.

What will you do today to ensure your organization won’t be next?

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 April 17, 2018June 29, 2023

Art Therapy and Employee Stress

Art Therapy Lochness Muenster Working Well
Recent acrylic painting of the “L” stop near my grandparent’s house.
Recent acrylic painting of the “L” stop near my grandparent’s house.

My company recently announced that it’s hosting a wine and paint afternoon for employees this spring. It’s an opportunity to eat some cheese, make anything you can hang up and appreciate your coworkers’ artwork. I’m looking forward to this because one of my coworkers and I regularly talk about paintings we’re working on and art shows she’s planning to attend.

It’s also good for us because our walls are boringly off white, blank and a general bummer to look at. We need something for those walls. I think back to when I interned at a news station and found a painting stashed in a supply closet. It was an image of Rod Blagojevich’s face on a rat’s body with some dark, underworld-esque backdrop. Even that would be better on our walls than nothing.

This got me thinking about the impact creating art can have on your brain, stress levels and overall health, and there’s a lot to be optimistic about.

According to one article on the benefits of art therapy — “a form of expressive psychotherapy that uses the creative process of making art to improve a person’s physical, mental, and emotional well-being” —  the benefits of creating art include a general sense of relief, overall better mental health, decreased stress and the chance to process complicated emotions. It’s a tool that individuals can use for their own benefit or a legitimate type of therapy that professionals use to treat people with a variety of emotional or mental disorders like cancer, PTSD, emotional abuse and bipolar disorder.

The art studio from my figure drawing class during college.
The art studio from my figure drawing class during college.

I’ve been through this myself. I took a figure drawing class in college while I studied abroad in Rome, and it’d often be my favorite part of the week. After sitting on some ancient church’s steps nearby for half an hour and people-watching, I’d get three hours in a quiet, dusty studio. There’d be nothing to listen to but the rustling of my classmates’ sketchbooks or the sound of their charcoal breaking. It was a wonderful opportunity to focus on one task for three hours straight and clear my head of to-do lists and obligations.

A different article from Business Insider also listed several benefits of making art for the average person. Noteworthy here is that “making art” doesn’t have to mean painting or drawing; it can be sculpting, dancing, making music or any other creative pursuit. Also, there are many scientific studies that have been conducted to support the potential benefits of creating art.

Doodling Lochness Muenster Art Therapy Stress Relief Working Well
Mindless sketching or doodling can help people pay better attention when they’re listening to something boring, at least in some circumstances, according to an article in the Atlantic.

There’s still further research to be done, but many of these study results show promise. A 2016 Journal of American Art Therapy Association study found that participants who made visual art for 45 minutes saw a reduction in cortisol, a hormone associated with stress. A Journal of Applied Cognitive Psychology study found that when people doodle while listening to dull information, they’re more likely to remember that information and stay focused. And a 2015 study conducted by Gottfried Schlaug, a neurologist at Beth Israel Deaconess Medical Center and Harvard Medical School, found that people who played music regularly saw improvement in academic performance, language skills and memory.

I think the workplace could learn a thing or two from these lessons. Sleeping enough, having a healthy diet and exercising more can help with stress relief, of course, but something on the more creative side can help, too.

The focus of wellness initiatives is so often something physical. Take this many steps; lose that many pounds; take a yoga class this many times a week; track your blood pressure or some other body measurement on this app. There is a trend moving toward mental or emotional well-being in wellness programs, but there’s still more to be seen what happens in that area.

Working Well Art Therapy Chicago Tribune Crossword Chicago Skyline
A collage of the Chicago Skyline made from parts of Chicago Tribune’s Sunday crosswords my family and I have completed.

I once asked a wellness professional I met at a conference if employees could use funds given to them through an employer-sponsored wellness program on activities like art classes. Her response was that although that idea was fine in theory, it’s difficult to measure the impact of the something like that.

So often it seems like corporate wellness programs are much more focused on what can be counted. Of course, there’s a reason for this. That way results can be measured, which allows a company to quantify the impact of the program. But I don’t think we should underestimate the potential of the creative or the qualitative.

Has your company ever incorporated something creative or art-based in your wellness program? Also, feel free to share in the comments some projects you’ve created to relieve stress!

For More Information Related to These Topics:

  • A comprehensive guide to the benefits of art therapy for different types of people. (arttherapyblog.com)
  • Health insurance and mental health services. (MentalHealth.gov)
  • 7 reasons to create art no matter your talent level. (Business Insider)
  •   The cognitive benefits and limitations of doodling. (The Atlantic)

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

 

 

Posted on April 16, 2018June 29, 2023

Must You Pay Employees for FMLA-related Breaks During the Work Day?

Jon Hyman The Practical Employer
Last week, the Department of Labor Wage and Hour Division resumed its practice of publishing Opinion Letters.
One of the first it published answers an interesting question about the intersection of the FLSA and the FMLA.
Must an employer pay an employee for FMLA-approved breaks taken during the work day?
I’ve taken some journalistic license and paraphrased the questions. The answers, however, are verbatim from the DOL Opinion Letter FLSA2018-19 [pdf]
Q: We have an employee who is on an approved intermittent FMLA leave for back issues. When he experiences a flare-up during the day, his FMLA papers permit him to take an unscheduled break. These breaks typically never last more than 15 minutes, and the employee is able to return to work. Yet, they are occurring eight times per day, resulting in only six hours of work during an eight-hour work day. I know that under the FLSA, breaks of 20 minutes or less must be paid. Yet, FMLA leave is unpaid? What do I do? Which law trumps, FLSA or FMLA? Must I pay this employee for his unscheduled medical breaks during the work day?
A: “The specific FMLA-protected breaks described in your letter, however, differ significantly from ordinary rest breaks commonly provided to employees. As you note in your letter, the 15-minute breaks at issue here ‘are required eight times per day and solely due to the needs of the employee’s serious health condition as required under the FMLA.’ Because the FMLA-protected breaks described in your letter are given to accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and are noncompensable.”
Q: Got it. We don’t have to pay this employee for his FMLA-related breaks. Since he’s already taking two hours of breaks during the work day, I assume we do not have to permit him to take the two paid 15-minute breaks we provide all of our other employees. Right?
A: Wrong. “Employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. For example, if an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, an employee needing 15-minute rest breaks every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.”
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 April 12, 2018July 30, 2018

Anti-harassment Anthems

Jon Hyman The Practical Employer

Yesterday, I came across the very cool video for a new Speedy Ortiz song, “Villain.”

The song tackles issue of harassment, assault, and consent.
Rock music has always tackled the important social issues of the times, and #MeToo should be no exception.

Which got me thinking, what are some other songs that take on similar themes and issues? I came up with five.

War on Women, “Say It”

Sublime, “Date Rape”

Camp Cope, “The Face of God”

Bikini Kill, “Liar”

Liz Phair, “F*** and Run”

So what’s on your #MeToo playlist? Share in the comments below, or hit me up on Twitter with the hashtag #MeTooAnthems.

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 April 11, 2018June 29, 2023

The Other Side of Diversity

Jon Hyman The Practical Employer

Workplace diversity has two sides.

One side says that employers cannot discriminate against minorities. The other says that employers cannot discriminate against non-minorities in favor of minorities.

Some people call this reverse discrimination. I just call it discrimination.

For example, Title VII does not define “African American” or “men” as protected classes; it merely says “race” and “sex.” Thus, if you discriminate against a white person in favor of an African American, or against a man in favor of a woman, you’ve violated Title VII no differently than the converse.

Those who’ve be following me for any length of time know my well documented history of supporting LGBT rights. And, courts have begun to agree, (nearly) universally recognizing that Title VII’s definition of “sex” inherently includes LGBT individuals.

If, however, you are going to include “LGBT” in Title VII’s definition of “sex,” then, just as employers cannot discriminate against LGBT employees in favor of non-LGBT employees, employers also cannot reverse the equation.

In light of all of this, consider Philadelphia’s Mazzoni Center, an LGBT-focused health care and wellness nonprofit.

It recently took some heat in Philly’s LGBT community for hiring a straight woman, Lydia Gonzales Sciarrino, as its new CEO. Some have criticized her lack of LGBT-specific health care experience (which, if true, would be a valid criticism), while others are more pointed, claiming that her hiring is a shameful “act of violence and deliberate silencing of the very communities Mazzoni is funded to serve.”

The Mazzoni Center defends its decision not only on Ms. Sciarrino’s qualifications, but also its non-discrimination policy:

When it comes to matters of employment, Mazzoni Center does not discriminate on the basis of race, creed, religion, color, national origin, ancestry, age, sex, gender identification or gender expression, sexual orientation, disability, marital status or any other protected status covered by federal, state or local law. Thus, all employment-related decisions are made solely on the basis of a candidate’s skills, ability, experience, education, training, and other legitimate factors related to the requirements of the job.The Mazzoni Center’s Board considered Ms. Sciarrino the most qualified person who applied. If Title VII covers LGBT-status as sex (which I, and most courts, argue it does), then neither the Mazzoni Center, nor any other employer, can favor an LGBT applicant over a more qualified straight applicant. That would be illegal sex discrimination.

Diversity is a laudable goal. Let’s strive to make sure we are not taking positions that undermine it.

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 April 5, 2018June 29, 2023

In the Era of #MeToo, Let’s not Lose Focus on the Me’s Other Than Sex

Jon Hyman The Practical Employer

We’ve all done a lot of talking over the past six months about sexual harassment.

We should not forget, however, that our laws make harassment unlawful if it’s based on membership in any protected class.

A federal jury in Detroit just provided employers a very real reminder of this fact.

It tagged Ford Motor Co. with a $16.8 million verdict. The plaintiff, a former Ford engineer, proved that the automaker created a hostile work environment based his Arab background.

The Detroit Free Press fills in the details:

“There was a high-level executive at Ford Motor Co. that my client reported to … that would berate him and criticize him week after week about his English,” said Carol Laughbaum of Sterling Attorneys. Khalaf, who was born in Lebanon, had been with Ford since 1999.
“It wasn’t a matter of ‘Please, can you repeat this?’ but ‘What is wrong with you? Why don’t you understand this?’ ” Laughbaum said, noting that her client’s supervisor, who has since retired, would “literally pound his fist on the table and yell” at Khalaf over his English. …

The trial shed light on other problematic workplace practices, according to Laughbaum. She said Fowler, during a high-level executive meeting, handed her client a note that simply read “S 2+2.” Khalaf, who holds a Ph.D. in industrial engineering, later found out that the note meant: “Small coffee, two sugars, 2 creams.”

We’ve spent so much mental energy and workplace capital focusing on sexual harassment that it’s easy to lose focus on the myriad other classes of unlawful harassment — race, national origin, religion, age, disability, etc.
This large verdict serves as an excellent reminder.
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.

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