Thomas Schiermeyer was already a recruit for the Seaside Park, New Jersey, Police Department, when he applied to the police academy for a promotion to an entry-level Officer.Â
The application process he alleges in his lawsuit is one that Iâve certainly never seen before, and one to which no employee ever should be subjected.
As Schiermeyer was filling out his application, Detective-Sergeant Matthew Brady, who was on duty at the time, came up behind Schiermeyer. He pulled out his firearm and pressed the barrel to Schiermeyerâs left temple.
He then said, âspell one more mother f**king word wrong.â Brady then slowly removed the gun from Schiermeyerâs temple, re-holstered it, and said that it was unloaded. According to Schiermeyerâs lawsuit, however, an on-duty officerâs gun is required to always be loaded, and he certainly thought that it was.
Schiermeyer initially kept quiet about the incident, fearing that he would not get into the academy as retaliation if he complained. He eventually complained about the gun incident after being subjected to subsequent abusive misconduct, and alleges that his employer âghostedâ him â that is, removed him from the on-duty schedule instead of firing him.
He sued for violations of his civil rights, retaliation and assault and battery.
While this lawsuit was just filed, and a complaint is merely one partyâs version of events, if you point a loaded gun at the head of job applicant, 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 Hymanâs blog at Workforce.com/PracticalEmployer.
George Hirmiz, a front-desk clerk at a Travelodge Hotel, was caught on video sleeping in the hotel lobby while a fight broke out among its guests.
After the hotel fired him, he claimed disability discrimination. His disability? An alleged illness that he had contracted from long-term exposure to high levels of electromagnetic voltage at the hotel.
The 7th Circuit had little difficultly affirming the dismissal of his lawsuit:
There is debate in the medical community over whether sensitivity to electromagnetic voltage is a physical disorder or a psychological one.⌠If it is psychological, the symptoms might not constitute a disorder that would entitle Hirmiz to the protections of the Americans with Disabilities Act. A great deal of psychological distress is trivial â fear of black cats, for example. And indeed the district court found that Hirmiz had provided no evidence â medical or otherwise â that he suffers from any âimpairmentâ that âsubstantially limitsâ any of his âmajor life activities,â as required to prove the existence of a disability under the Americans with Disabilities Act.
 I thought of this case after listening to this weekâs episode of the Marc Alifanzâs and Dennis Westlindâs Hostile Work Environment Podcast, in which they discussed, with their guests Jon Thurmond and Wendy Dailey, of the HR Social Half Hour Podcast, the story of a job candidate with triskaidekaphobia, who refused to accept a job on the 13th floor of an office building. The solution was to accommodate her in available space on the 14th floor.
Iâm not sure whether âsensitivity to electromagnetic voltageâ is, or is not, an ADA-protected disability. Iâm also not sure what accommodation a hotel can make for night desk clerk who falls asleep on the job.
Regardless, an employer need not take an employee at their word regarding the need for a non-obvious reasonable accommodation.
Some accommodations, and their underlying supporting disabilities, will be obvious (e.g., a leg amputee requesting a chair). In those cases, it would likely be discriminatory to ask for medical documentation.
When the disability and/or the need for accommodation is not obvious, however, an employer is entitled to ask the individual for reasonable documentation about the disability and its functional limitations. According to the EEOC:
The request of the employee must be for âreasonableâ documentation. An employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. It would unreasonable, for example, to request a personâs complete medical records because they are likely to contain information unrelated to the disability at issue and the need for the accommodation.
An employer may require that the documentation come from an appropriate health care or rehabilitation professional, such as doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. The appropriate professional will vary from case to case, and will depend on the disability and the type of functional limitation it imposes
In requesting documentation, employers should specify the types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation.
An employer can ask the employee to sign a limited release allowing the employer to submit a list of specific questions to the health care professional.
Our sleeping front desk clerk lost his case because he offered zero medical evidence that his electromagnetic sensitivity was an actual medical condition.
In the case of the triskaidekaphobic applicant, the employer could have requested medical proof that the âconditionâ was a diagnosed phobia, as opposed to a mere superstition. Or, it could have done what the employer did in that case â ignored the ADA issues entirely and took the path of least resistance by placing the employee in an open spot on a different floor.
The point is that if you are faced with an individual with a non-obvious medical issue, you are within your rights to require that the employee submit reasonable documentation about the disability and its limitations before you engage in the interactive process and consider reasonable accommodations.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Itâs a normal learning process for humans to apply our latest discovery to everything we encounter for a while.
When my former neighborâs young daughter learned about the physical differences between boys and girls, for days she did nothing but talk about anatomy and ask adults in the supermarket about theirs. When my dad learned about the cultural differences between generations, he processed everything he observed from that perspective for several weeks. An incessant social scientist, I chuckle every time I notice the way I filter the latest current event through the lens of my âlatest religionâ with the zeal of a recent convert.
Typically, we integrate our latest discovery into a richer, more balanced worldview. But when it comes to diversity and inclusion, too many organizations stay stuck in their own âlatest religionâ with potentially dire consequences. They embark on the well-intended mission to create a more inclusive culture, and soon find themselves off the path hitting landmines or sinking in quicksand because theyâre indiscriminately inclusive.
Creating a more inclusive culture is not about including everything and everyone. To obtain meaningful results that matter without causing more problems than it solves, inclusion must be strategic, rooted in your existing organizational identity, values and business goals. High-performing organizations and teams are effective because they have a clear sense of purpose, expressed in clear goals. Having a clear identity is necessary to fulfill those goals, and identity is influenced by values. Whether conscious or not, every organization has values that are expressed in rules that dictate which behaviors are rewarded and which are rejected.
Organizations should not abandon their values, identity or goals for the sake of inclusion; in fact, being serious about inclusion will hone them. This may result in new rules. Just as itâs OK to exclude employees who come to work inebriated or who punch customers in the face, itâs not just OK to exclude employees who speak and act in alignment with white supremacist, misogynistic or homophobic belief systems (if those are counter to your values). Itâs necessary. Expecting employees to share a certain set of values and behave in a particular way is effective leadership and is not oppressive or exclusive. While itâs always critical to review policies with legal counsel, in general youâre not depriving anyone of their freedom or right to work by taking a clear stand on whatâs acceptable in your organization, just depriving them of their freedom or right to work for you. Youâre also depriving them of their ability to disrupt your culture and interfere with your goals. To allow such disruption and interference is poor leadership that lets down your high performers and loyal customers!
While taking a clear stand on what and who you will include, there are three important considerations.
Be clear and honest about your purpose, identity, values and goals. Such clarity allows you to be strategic in deciding which behaviors are acceptable and which arenât, instead of making fear-based, knee-jerk decisions based on the latest media frenzy or trendy fad. It will also help you communicate the business-critical rationale for why certain behaviors arenât acceptable. Be honest about your culture in the process. Many organizations espouse one set of values and goals, yet live another, leading to conflict, low morale, poor talent retention and reduced productivity. Have the courage and curiosity to see what your culture really is, and choose to either operate accordingly or commit to changing it.
Use a scalpel instead of a carpet bomb to differentiate what and who you will include. Conservatives are sometimes right to criticize liberals for our hypersensitivity to language. Even progressive darlings like Chimamanda Adichie experience what she terms the âcannibalism of the leftâ in how we excommunicate allies over petty, rigid notions of correct vocabulary. While words should be taken seriously for their power to shape reality through thoughts and behaviors, censoring all ânon-PCâ speech or controversial ideas not only reduces diversity, it creates a mistake-intolerant culture that interferes with the learning and relationship-building necessary for true inclusiveness. Too many incidences of one-time inappropriate behavior are mishandled by firing the person responsible instead of using the situation to reflect, examine the big picture, learn, and create more accountability and trust. Of course there are behaviors that require serious and immediate consequences for the actor. Even then, leaders should pause to consider the roles and identities of all actors, identify root causes, seek patterns and ponder consequences.
Focus on behavior. Cognitive diversity is what causes diverse teams to outperform non-diverse teams, and millennials are particularly keen on âdiversity of thought.â People can, and should, have differing beliefs and ideas (religious, political, etc.) at work. Inclusiveness is not about thought policing. Itâs also not about turning everyone into a liberal, since science shows diversity plus inclusion gets better results regardless of peopleâs political beliefs. The key is finding a balance between difference and similarity, with enthusiasm for the organizationâs purpose and values held as an essential similarity. Ultimately, a personâs thoughts and beliefs only become problems once they translate into unacceptable behaviors. Having clarity around which behaviors are unacceptable and why (from a business standpoint) will allow you to think, speak and act more effectively. Then you can move beyond mere zeal and find success on your mission to create a more inclusive culture without losing yourself in the wilderness.
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.
Former New Orleans Saints cheerleader Bailey Davis has filed a complaint with the EEOC accusing her former employer of having one set of rules for its male players, and another for its female cheerleaders.
The Saints fired Davis after it claimed she violated a rule prohibiting cheerleaders from appearing in photos nude, semi-nude, or in lingerie. She had posted a photo of herself in a one-piece outfit to her private Instagram.
The New York Times reports that the Saints maintain two sets of work rules, one for it all-female cheerleaders, and and other for its all-male players.
Cheerleaders must avoid any contact with players, in person or on social media. The players, however, are not similarly prohibited from initiating engagement with cheerleaders.
Cheerleaders must block players on social media and can not post photos of themselves in Saints gear. Players have no such restrictions.
Cheerleaders must not dine in the same restaurants as players, must leave a restaurant if they enter and a player is already there, and must leave if they are dining and a player subsequently enters. The Saints, however, impose no such limits on the players.
The Saints argue that the rules are necessary to protect the cheerleaders from harassment and other predatory behavior of the players.
According to Davisâs lawyer, Sara Blackwell, âIf the cheerleaders canât contact the players, then the players shouldnât be able to contact the cheerleaders. The antiquated stereotype of women needing to hide for their own protection is not permitted in America and certainly not in the workplace.â
There is nothing inherently illegal about having different sets of work rules for different classes or groups of employees. The law merely requires that you apply similar treatment to similarly situated employees. And the Saints will argue that its cheerleaders and its players arenât similarly situated.
However, oneâs discrimination Spidey-sense should be going off when one of those groups is all male, and the other all female. Is there a legitimate business need to apply different work rules for these groups, or is it based on a outdated (and sexist) notion that women cannot protect themselves? Itâs 2018; women are quite capable of managing their own inter-personal relationships without their employerâs interference.
No-fraternization policies are one avenue for an employer to limit its harassment liability. That avenue, however, cannot be one-way. The ban should apply equally to both genders. Otherwise, the liability limitations you think you are creating are being swallowed up by the gender discrimination problem you just created.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
According to Kenneth Bird, regional attorney for the EEOCâs Indianapolis District Office, âDecember 2017 marked the 50th anniversary of the ADEA, Five decades later, the EEOC remains committed to vigorously enforcing that all-important law. Private employers need to understand that mandatory retirement policies run afoul of the ADEA and will be met with challenge.â
Heâs absolutely correct.
Itâs still a fairly popular misconception that businesses can force employees to retire at a certain age.
In truth, with the exception of a few limited circumstances, mandatory retirement ages are about as close to a slam-dunk case of illegal age discrimination you can find. The exceptions permit â but do not require â mandatory retirement:
at age 65 of executives or other employees in high, policy-making positions.
at age 55 for publicly employed firefighters and law enforcement officers.
Forcing an employee out is the same as requiring an employee to retire. While lessening duties and responsibilities, demotions and reductions in pay could cause an older employee to retire, it could also cause that same employee to claim a constructive discharge.
Yet companies do need to plan for their futures. This planning is becoming more difficult as more employees are working older. According to the 18th Annual Retirement Survey (conducted by the Transamerica Center for Retirement Studies):
53 percent expect to retire after age 65 or do not plan to retire at all.
56 percent plan to work at least part-time in retirement.
Of those employee who plan to work past age 65, more than three-fourths are motivated by financial reasons or health reasons (such as âbeing active,â and âkeeping my brain alertâ).
Despite the aging nature of our workforce, many employers are unprepared, ill equipped or unwilling to accommodate its needs. Indeed, 38 percent of baby boomers report that their employers do absolutely nothing to help facilitate their transition to retirement.
What steps can employers take to help facilitate the transition of aging employees out of the workplace, without committing age discrimination? Consider the following four suggestions, culled from the tips offered by the Transamerica Center for Retirement Studies):
Help with retirement planning. Offer a retirement plan (to include part-time workers, if feasible). Consider auto-enrolling your employees to increase participation, and escalating contribution rates to increase salary deferrals. Structure matching contributions to promote higher salary deferrals (i.e., 50 percent of the first six percent instead of 100 percent of the first three percent).
Educate your employees about saving and investing. Any 401(k) provider worthy of your (and your employeesâ) investment will help with this task. Offer guidance and information on how to calculate a retirement savings goal and on the basic principles of saving and investing. Most importantly, ensure that your employees understand that taking loans and premature withdrawals from their retirement accounts is an absolute sin.
Offer benefits to enhance employeesâ long-term financial security. Consider disability insurance, life insurance, employee assistance programs, workplace wellness and financial wellness programs, long-term care, and other insurances, all of which can help protect employeesâ overall financial security as they age.
Create employment opportunities to assist employees to phase into retirement. Consider offering voluntary flexible work schedules and arrangements, transitions from full-time to part-time, and shifts of aging employees to work in different capacities
And, most critically, get rid of your mandatory retirement policy.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Bloomberg reports that demand for anti-harassment training videos has surged in the #MeToo era.
Hereâs the problem, however. The Bloomberg article talks about training videos, the absolute worst kind of training.
Anti-harassment training is all about creating an anti-harassment culture in your workplaceâabout employees understanding what harassment is, how to complain about it, and that your company does not ever accept it.
If you plop your employees in front of a video, it sends the message that you do not prioritize anti-harassment training, which sends the absolute wrong message to your employees. How can you expect them to take this issue seriously when your training creates the impression that you donât take it seriously?So, how should you use your anti-harassment training to help create a #MeToo appropriate anti-harassment culture?
Training should be supported at the highest levels. âEmployees must believe that the leadership is serious about preventing harassment in the workplace.⌠The strongest expression of support is for a senior leader to open the training session and attend the entire training session.⌠Similarly, if all employees at every level of the organization are trained, that both increases the effectiveness of the training and communicates the employerâs commitment of time and resources to the training effort.â
Training should be conducted and reinforced on a regular basis for all employees. âEmployees understand that an organizationâs devotion of time and resources to any effort reflects the organizationâs commitment to that effort. Training is no different. If anti-harassment trainings are held once a year (or once every other year), employees will not believe that preventing harassment is a high priority for the employer. Conversely, if anti-harassment trainings are regularly scheduled events in which key information is reinforced, that will send the message that the goal of the training is important.â
Training should be conducted by qualified, live, and interactive trainers. âLive trainers who are dynamic, engaging, and have full command of the subject matter are the most likely to deliver effective training.â
Training should be routinely evaluated. âEmployers should obviously not keep doing something that does not work. Trainers should not only do the training, but should evaluate the results of the training, as well.⌠The evaluation should occur on a regular basis so that the training can be modified, if need be. Similarly, training evaluation should incorporate feedback from all levels of an organization, most notably, the rank-and-file employees who are being trained.â
Employers should consider including workplace civility training and bystander intervention training as part of a holistic harassment prevention program. âEmployers have offered workplace civility training as a means of reducing bullying or conflict in the workplace. Thus, such training does not focus on eliminating unwelcome behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally.⌠Bystander intervention training ⌠could help employees identify unwelcome and offensive behavior that is based on a co-workersâ protected characteristicâŚ; could create a sense of responsibility on the part of employees to âdo somethingâ and not simply stand by; could give employees the skills and confidence to intervene in some manner to stop harassment; and finally, could demonstrate the employerâs commitment to empowering employees to act in this manner.â
Employers, letâs not just âcheck the boxâ with harassment training. Letâs make it real and meaningful for your employees. If you donât appear to take it seriously, how can they?
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.Â
I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.
In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.
With tattoos becoming more prevalent, it appears employers are becoming more accepting. The same poll revealed that tattoos are on the rise in professions ranging from teachers to doctors to judges.
Yet, your attitude may differ. You may demand a more traditionally professional look, and may not want someone with a tattoo representing your business or your brand.
There is nothing discriminatory on its face about refusing to hire someone with a tattoo. It may simply be a decision of the type of image that your company wants to project. Of course, it matters that such a policy is applied non-discriminatorily. In other words, a company canât have two standards to visible body artâone for men and one for women, or one for whites and one for blacks.
Indeed, employers have gotten themselves in some legal trouble for using a tattoo as a proxy to reach an employment decision based on a protected class.
For example, in one case, a restaurant was alleged to have violated Title VII when it refused to hire a practitioner of Kemeticism (a religion with roots in ancient Egypt). The applicant he had tattoos on each wrist signifying the Egyptian sun god Ra. He argued that it would be a sin for him to hide the tattoos because of their religious significance.
In another case, an African-American employee claimed he was denied a promotion, and later fired, by his white supervisor, who bore a Confederate flag tattoo.
In yet another, UPS was accused of sexual harassment based on employeesâ mistreatment of the plaintiff with a âlesbian tattoo.â
The first of these cases settled on the eve of their respective trials; the third resulted in a plainiffâs verdict.
So, what does all this mean? It means that while employers do have discretion in hiring or firing because of tattoos, they must be careful to ensure that such actions are (1) not because of a protected class, and (2) grounded in a legitimate business reason. Otherwise, the tattoo in question might be the employer getting tattooed with a big, fat verdict.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
For almost as long as Iâve been writing this blog, Iâve been preaching the proactive benefits of wage and hour audits for employers (e.g., here and here).
It appears that the Department of Labor agrees.
Last week, it announced a nationwide pilot programâthe Payroll Audit Independent Determination (PAID) programâwhich will permit employers to self-report FLSA violations to the Department of Labor without risk of litigation or enforcement proceedings. It enables employers to resolve inadvertent minimum wage and overtime violations without litigation.
At times, employers may be the first to uncover violations of overtime or minimum wage laws. Many employers prefer to correct their mistakes and voluntarily pay their employees the wages they are owed. Our current laws, however, preclude employers from simply paying the wages due to conclusively settle overtime or minimum wage violations. Fearing full-scale federal investigations or costly litigation, employers may choose to not address the violations at all â resulting in losses to employees, employers, and taxpayers.
Some of PAIDâs key features:
Itâs open to any FLSA-covered employer to redress any FLSA overtime or minimum wage violations.
Itâs only available for claims that are not yet subject to investigation or litigation.
It requires that employers review WHDâs compliance assistance materials, carefully audit their pay practices, and agree to correct the at-issue pay practices moving forward.
It permits the resolution of violations without liquidated damages or civil monetary penalties.
It fosters cooperation between employers, employees, and the DOL for employers to find and correct pay errors and ensure employees are paid what they are owed as quickly as possible.
It fosters voluntary settlements of FLSA claims without employees incurring legal expenses or attorneysâ fees.
Critics refer to this program as a âget out of jail freeâ card for wage-and-hour scofflaws. That argument only holds water, however, if you assume that most employers are intentionally violating the FLSAâan argument with which longtime readers know I absolutely disagree. Plus, if youâre an employer intentionally stealing wages from your employees, are you really going to blow the whistle on yourself to the DOL? Or is it more likely that you will keep right on stealing until someone catches you?
Yet, if you know that youâve violated the FLSA in how youâve paid your employees minimum wage or overtime, itâs best to self correct by making employees whole for the wages they lost. You are always free to do this on your own, though, without involving the DOL.
I worry that participating in this program may fast-track an employer onto some super secret DOL list for future FLSA audits. As the DOL itself flags, âBy allowing employers to participate in the PAID program, WHD does not waive its right to conduct any future investigations of the employer.â
Unless and until the DOL confirms that it will not use violations resolved under this program against employers in future audits to find repeat violations and willfulness, I have some concerns about employers using this program.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
I recently was reminded of just how new the field of genetics is and how the discussions about genetic privacy are fascinating and relevant in the workplace. Thatâs where genetic-testing benefits or perks are sometimes touted as a way for employees to learn about genetic risks they have and plan for them accordingly.
I finally started reading The Gene â a New York Times bestseller by Siddhartha Mukherjee from 2016. The Gene is about the history of genetic theory and history from Aristotle and Pythagoras to Charles Darwin and Gregor Mendel and beyond. It also explores darker parts of genetic history like the eugenics movement in America and Nazi Germanyâs attempt to create a so-called genetically superior race.
This 550-page-long page-turner was in part a celebration of significant scientific discoveries in genetics and in part a warning that people are capable of using these discoveries and theories to do major harm.
In 1976, Herb Boyer and Robert Swanson founded biotech company Genentech and created many important medicines out of genes, including insulin, and patented these creations. But their contemporaries wondered, is it right to patent a method you discovered while funded by public research money? Also, can you patent something that naturally is a part of every personâs body? Even now, many people have ethical objections to patenting genes.
In the 1800s Charles Darwin observed different-looking finches of the same species. He was fixated on their similarities, not their differences. This led to important discoveries in hereditary theory, mainly that these different-looking birds came from the same ancestor and adapted over time to different environments. The same could be applied to people, who were more similar than different and came from the same common ancestor.
On the other side of the coin, Darwin had a cousin, Francis Galton, who was also a scientist. He was more fixated on peopleâs differences than similarities and coined the term âeugenicsâ in 1883, according to The Gene. This was the idea that some peopleâs genes were better than otherâs and that through selective breeding, humankind could keep only the best genes in its genepool. His idea eventually led to a eugenics movement in America in which undesirable people were forcibly made infertile so that their inferior genes were not continued. These âundesirablesâ included African Americans, white European immigrants and anyone deemed âfeeblemindedâ by the courts, the book notes.
These are older examples from the book, but obviously a lot has happened from the 1980s on, like the Human Genome Project, experiments (some more successful than others) in gene therapy and many services that offer easy-to-use genetic testing kits like 23andMe, Ancestry DNA and Vitagene.
Genetic tech has entered the workplace. Some companies are offering genetic testing as a perk. Last March, Rep. Virginia Foxx introduced a bill, HR 1313, which would allow employers to offer health insurance premium rebates to employees who take part in workplace wellness programs, many of which include genetic screenings.
This led to some controversial reactions when some people worried that their companies could financially coerce them into genetic testing. News site Vox reported that those who opt out would have to pay $5,400 more a year for the average family plan than those who opt in, based off 2016 insurance price data. This sum might make opting out not viable to some employees. Advocates of the bill stressed that employees would have the option of opting in or opting out.
Letâs take this scenario above. The fundamental question, it seems, is that if this participating employee pays $5,000 less than a non-participating employee, is it truly optional? Is there a difference between a penalty and a reward in this context?
Iâm inclined to say no, especially if genetic information is involved. Others would strongly disagree.
Hereâs the most recent news on HR 1313 I could find, according to the DNA Geek:
âThe bill has been lingering in various committees in the House of Representatives since it was introduced in March [2017]. It passed the Committee on Education and the Workforce back in the spring, but itâs been stagnating in the committees on Ways and Means and on Energy and Commerce since then. ⌠On 11 December 2017, both committees âdischargedâ the bill, meaning that they released it to be considered by the full House of Representatives without voting on it themselves. The bill is now on the House schedule to be considered for passage.â
The next steps would be passed by the House, passed by the Senate and then signed by the president.
Whatever your take is on HR 1313, it shows how tricky and messy issues involving genetic security and privacy are. There are others more qualified than me to talk about the controversies and disagreements in the genetics space. But for employers and employees, this debate over personal health and genetic information is noteworthy.
In the United States, the law that governs genetic privacy is the Genetic Information Nondiscrimination Act. GINA makes it illegal to discriminate people based on their genes in certain employment decisions and health insurance, but not outside those realms, like in life, disability or long-term care insurance. There have been cases, for example, where women have been denied life insurance as recently as 2016 because they tested positive for the breast cancer gene, BRCA1.
As LifeInsurance Post, a community of life insurance experts, warns, âThe negatives of genetic discrimination far outweigh the positives. Thus, itâs important that you seriously consider whether you need to go for genetic testing or not. At the end of the day, itâs comes down to choosing between your life and life insurance.â
Even if you take a test in the workplace and your results cannot impact your employment or your health insurance, it could impact other types of insurance.
To get the life insurance industryâs point of view, by the way, read this Economist article, âThe gene is out of the bottle: Genetic Testing Threatens Insurance Industry.â
âAsymmetry of information â when the consumer knows more than the insurer â is the industryâs worst nightmare. If predictive tests further improve and become more common while non-disclosure rules stay in place, some insurance products might eventually die out,â writes the author. This article does a good job at explaining the concerns of the insurance industry, while it also acknowledges what a tricky ethical area this is. Since the role of genes in disease development is still being studied, many people could be wrongly penalized for having a certain gene. The truth is that many other factors, like environment and chance, also impact whether or not a person will ultimately develop the disease.
Genetic privacy isnât a fear thatâs going away; itâll only grow as our capability and understanding of genetics increases. Itâs also not a fear based in fiction. Historically influential forces in society have used genetics to rationalize doing horrific things.
As someone who talks to employers on a regular basis, I believe most companies would not lean toward unethical use of their employeesâ genomes. That being said, even a few bad eggs would be troublesome.
âThis book is the story of the birth, growth, and future of one of the most powerful and dangerous ideas in the history of science,â writes Mukherjee in The Gene. Letâs not underestimate the power of this idea. As employers increasingly see a place for genetic tests somewhere in their organization, some employees may be very enthusiastic to take advantage of them while others may be justifiably weary.
Andie Burjek is an associate editor at Workforce. Comment below or email editors@workforce.com.
Yesterday, the 6th Circuit Court of Appeals joined a growing number of federal appellate courts to hold that Title VIIâs prohibition against sex discrimination expressly covers LGBT employees.
The claimant inEEOC v. R.G. &. G.R. Harris Funeral Homes [pdf], Aimee Stevens (formerly known as Anthony Stephens) was born biologically male, and presented as such when hired. The funeral homeâs owner and operator, Thomas Rost, fired her shortly after she informed him that she intended to transition from male to female and would represent herself and dress as a woman while at work.
“We hold that the EEOC could pursue a claim under Title VII on the ground that the Funeral Home discriminated against Stephens on the basis of her transgender status and transitioning identity. The EEOC should have had the opportunity, either through a motion for summary judgment or at trial, to establish that the Funeral Home violated Title VIIâs prohibition on discrimination on the basis of sex by firing Stephens because she was transgender and transitioning from male to female. âŚ
Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employerâs stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim.”
The court also rejected the employerâs claim that applying Title VIIâs proscriptions against sex discrimination to the Funeral Home would substantially burden Rostâs religious exercise.
Bravo, 6th Circuit, bravo.
I fully expect an appeal to the Supreme Court.
Fingers crossed hard that when SCOTUS finally takes up this issue, it does the right thing, the more thing, the just thing, and decides this issue once and for all in favor of LGBT civil rights.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.