SEVEN TYPES OF DISCRIMINATION MANAGERS MUST AVOID, BY L D SLEDGE, J.D.

The following article was taken fully from HR Daily Advisor, June 23, 2011

Today's HR Daily Advisor Tip:

The 7 Types of Discrimination Your Managers and Supervisors Must Avoid

Topic: HR Policies and Procedures

In yesterday's Advisor, we found out what fairness means to a jury; today, discrimination, the dark side of fairness, plus an introduction to the famous "50/50": the compendium of 50 employment laws in 50 states.

Nondiscrimination is the legal side of fairness. Illegal discrimination comes in many forms, some obvious and overt, some subtle and hard to spot. Here's what to avoid:

1: Overt discrimination (I don't like Xs)

This is the out-in-the-open type of discrimination that most people think of when they hear the word. For example:

• I don't like to work with [women, men, old people, white people, black people, Asian people, disabled people].
• My customers don't like to deal with [women, men, old people, white people, black people, Asian people, disabled people].
• I don't like to hire [young women because they get pregnant and go on leave].
• I'm not promoting [anyone over 40—they don't have enough energy].

2: Stereotyping (Xs can't X)

Stereotyping usually takes the form of "Xs can't X."

• Women aren't strong enough.
• Men aren't compassionate enough.
• Xs aren't smart enough.

3: Patronizing (Xs shouldn't X)

This is a special form of stereotyping that seems well-intentioned, but is, in general, discriminatory. For example:

• Terry is active in the community; he/she won't want to relocate.
• Parents with young children shouldn't travel.
• Women shouldn't travel alone.
• Pregnant women can't [travel, lift, move, be stressed].

4: 'Avoidance' Discrimination

Some managers try to play a game of avoidance discrimination. They say, "If I can get in trouble talking to X, no problem. I'll never talk to X." Don't use this thinking; it is discriminatory and it won't fly.

5: Playing favorites (I always turn to my friends)

All managers have groups with whom they feel most comfortable. But if you always turn to that group when you need to hire, you are discriminating. And you've got friends at work with whom you're comfortable. If they always get the plum projects, bonuses, and promotions, you are discriminating.

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Operate in multiple states? That's a real compliance challenge, but with "The 50-50" (50 Employment Laws in 50 States); answers are at your fingertips. Wage/hour? Leave? Child labor? Discrimination? All there in easy-to-read chart form. Get more details.

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6: De facto (I just never seem to hire Xs)

One of the more subtle forms of discrimination is called "de facto." In these situations, there are never any direct statements against hiring or promoting certain types of people—it just never seems to happen. For example, you're not against hiring women in a certain job, but although many qualified women have applied, of the last 50 hires, all 50 were men.

7: Reverse discrimination

Reverse discrimination means discrimination against someone as a result of your attempts not to discriminate against someone else. You probably don't have significant exposure unless you have a very strong, quota-type program favoring one protected group

WALMART WINS---WHAT NOW? BY L. D. SLEDGE, J.D.

 

  The last blog was written prior to the decision by the US Supreme Court refusing to allow the huge class action involving 1.5 million claimants to proceed.  The lawsuit claimed that Wal-Mart systematically paid women less and did not provide equal opportunity for advancement. It contended that all women employed by Wal-Mart since 1998 should be part of the class.

    The court’s decision was not about the discrimination itself, but around a procedural issue, and whether the technical rules for forming a class were followed. The court decided that the group could not be certified as a class.

   To form a class, you have to have so many members that it is impracticable to have separate trials for all of them. The Wal-Mart women unequivocally met that standard. But the members of the class have to share a well-defined common interest, and it must be clear that resolving the cases of the few actual representatives would effectively resolve all the cases of all the class members.
 

  The Supreme Court just didn’t see that literally millions of separate employment decisions relating to women in many different jobs, could be viewed as meeting the class requirements.
 

   Having been involved in several class actions myself, I am aware of the difficulty in getting a group with similar claims certified as a class. In this case, I am sure there were political and social-economic considerations. The ramifications of a lawsuit of this magnitude being permitted to continue to jury trial are beyond comprehension, for a possible judgment could be in the billions, and like locusts these suits would proliferate through every large corporation in the US, creating more economic disruption than the losses to individuals by not being treated properly.  But it did teach Walmart a lesson and now they have largely corrected these errors, and other big companies have taken that lesson seriously as well. So all is well that ends well--I guess it ended well for Corporate America—what’s good for the duck isn’t necessarily good for the hunter.  Here the duck won. The hunter will have to reload.

   My question is now what can employees do when seeking redress as a group against a large company. For the time being, the companies are safe if they watch their step. For more, read the following link

http://hrdailyadvisor.blr.com/articles/HR_Policies_Procedures_WalMart_Decision_Supreme_Court.aspx?Source=HAC&Effort=15

THE WALMART JUGGERNAUT, BY L D SLEDGE, J.D.

THE WALMART JUGGERNAUT

Betty Dukes, a Walmart greeter, far right in the above picture, filed a sex discrimination suit against Walmart in 2,000 saying she had been denied training she needed to receive promotion. It is now before the US Supreme court for a decision if it should be allowed to proceed as a class action involving millions of female employees. Her lawsuit says Walmart systematically discriminated against female employees who were underrepresentated in management positions and were paid less than male colleagues.

Earlier court’s decisions let the case proceed after a judge aid that there was “significant proof of a corporate policy of discrimination.” The case can cost Walmart billions if allowed to proceed. Corporate America is watching nervously from the sidelines. Twenty major firms, including GE and Microsoft, filed in support of Walmart. If Duke wins, lawyers expect a whole new set of discrimination class actions will be brought, not just on behalf of women, but also for minorities and those with disabilities. A win for Walmart would be a major blow for nationwide job-bias lawsuits, making it harder for employees who work in different stores and hold different jobs have enough in common to be a class.

Duke’s lawyer argues that women comprise 37.6% of assistant managers, 21.9% of co-managers, and 15.5% of store managers. The standards are the same whether it is a huge company like Walmart or a small business. So this decision could be far reaching and touch the pocketbooks of thousands of small businesses.

FOR THE WANT OF AN OUTHOUSE---BY L D SLEDGE, JD

I promised last blog, on the definition of disability under the ADA, that I would give a case on point, to demonstrate what may be considered disabled. Here is a recent matter that didn’t go to court, but reached the outhouse door before settling.

EEOC guidance has made it clear that employers have to follow the ADA even when it contracts with temporary workers.  (The exemplary rule of this case would apply to permanent as well as temporary)

Recently, the EEOC settled a case in Illinois against R.R. Donnelly & Sons for failing to accommodate a temporary worker who experienced incontinence problems. The employer permitted the worker to go home to address the problem, but it also called the temp agency and informed it that the worker would not be permitted to return.  Because the employer decided to terminate the worker without considering possible accommodations, the EEOC alleged the employer violated the ADA.  The case settled with the worker getting $150,000.

DEFINITION OF DISABILITY UNDER THE ADA AS ENFORCED BY THE EEOC,BY L D SLEDGE, JD.

The following is extracted from the policy of the U. S. Equal Employment Opportunity Commission, section 902 Definition of Disability. (http://www.eeoc.gov/policy/docs/902cm.html)

     Title I of the Americans with Disabilities Act,(ADA), prohibits employment discrimination on the basis of disability. The ADA protects a qualified individual with a "disability" from discrimination in job application procedures; hiring; advancement; discharge; compensation; job training; etc. To be protected by the ADA, a person must meet the definition of the term "qualified individual with a disability".

     A major part of the inquiry in an ADA charge often will be the determination of whether the charging party is protected by the Act. This determination frequently requires more extensive analysis than does the determination of whether a person is protected by other nondiscrimination statutes. It is often unclear whether a person's physical or mental condition constitutes an impairment of sufficient degree to establish that the person meets the statutory definition of an individual with a "disability."

     The purpose of the ADA is to eliminate discrimination that confronts individuals with disabilities.

     Since the definition of the term "disability" under the ADA is tailored to the purpose of eliminating discrimination prohibited by the ADA, it may differ from the definition of "disability" in other laws drafted for other purposes. For example, the definition of a "disabled veteran" is not the same as the definition of an individual with a disability under the ADA. Similarly, an individual might be eligible for disability retirement but not be an individual with a disability under the ADA. Conversely, a person who meets the ADA definition of "disability" might not meet the requirements for disability retirement.

Statutory Definition -- With respect to an individual, the term "disability" means

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

      A person must meet the requirements of at least one of these three criteria to be an individual with a disability under the Act.

     The first part of the definition covers persons who actually have physical or mental impairments that substantially limit one or more major life activities. The focus under the first part is on the individual, to determine if (s)he has a substantially limiting impairment. To fall under the first part of the definition, a person must establish three elements:

(1) that (s)he has a physical or mental impairment

(2) that substantially limits

(3) one or more major life activities.

     The second and third parts of the definition cover persons who may not have an impairment that substantially limits a major life activity but who have a history of, or have been misclassified as having, such a substantially limiting impairment, or who are perceived as having such a substantially limiting impairment.

     Confused yet? Will present demonstrative cases in next blog on this subject. Is there a good reason to hire the right people? Reason enough just to avoid ever having to worry about this definition. No Fail Hiring will help you here.  This definition has subtly changed due to Sutton v. U.S. Airlines. But the test still is “is the employee substantially limited in a major life activity”. What does this mean?  Read next blog. I know you are holding your breath.

MY DISABILITY MADE ME DO IT!, BY L. D. SLEDGE, JD.

In Gambini v. Total Renal care, the court held that an employer cannot terminate or otherwise discipline an employee for misconduct if the misconduct is caused by a disability.

Stephanie Gambini worked for Davita, a company providing dialysis. She had a history of health problems and diagnosed with bipolar disorder. She was easily distracted, agitated, was angry and irritable. She was called into a meeting, where she was presented with a written performance improvement plan. She threw the plan across the desk and cursed her supervisors, saying they would “regret this.” She slammed the door on the way out, and kicked and threw items about her cubicle after the meeting. Numerous employees noticed DaVita about their concern. She was terminated.

The 9^th circuit, including California and the Northwest, said that “conduct resulting from a disability is considered part of the disability, rather than a basis for termination.” This is a departure from precedent, for other circuits do not hold tot his viewpoint. It could signal a change that could play havoc with small business. I cannot imagine such a decision unless there are facts not revealed in the report. As a previous employer, this would be totally unsupportable.

Learn to avoid this by buying, reading and applying No Fail Hiring, a manual that shows you how to pick the right employees. Then schedule a workshop to learn how to apply this valuable data.

What is the Pregnancy Discrimination Act? by L D Sledge, JD

The Pregnancy Discrimination Act is one of the progeny of Title VII of the Civil Rights act signed into law by President Lyndon Johnson in 1964.  Initially it covered discrimination because of sex, race, color, creed and national origin. It has been expanded to include age, pregnancy, pay, religion, ancestry, genetic types and a number of other areas have been brought within its embrace.

The Pregnancy Discrimination Act (PDA) applies to employers with 15 or more employees, and is violated when expectant women are not hired, fired, or otherwise discriminated against due to pregnancy or intention to become pregnant.  Employers may be likely to discriminate if they hold prejudices against working women and mothers and fear the productivity loss due to the absence of the employee.  Sometimes employers are unable to find and use temporary employees, unable to afford overtime pay for other employees to fulfill the duties during leave, or fear the employee will require too many accommodations after her return. This is a delicate area, and an employer will do well to avoid the dire results of in this area. Here are just a few of the tens of hundreds of cases.

Cases:

*  A boat captain fired while pregnant refused to abandon ship. she won $85,000 for emotional distress, repayment of all lost wages and the employer was fined $25,000. (Robert Ottinger, New York Employer blog, August, 2009)

* Jury awarded $720,000 in damages to an associate and a paralegal who claimed they were forced out of their New York law firm because of pregnancies. (Article posted in the ABA Law Journal August 22, 2008, by Debra Cassens Weiss)

* A Marin County Judge awarded $113,800 against filmmaker George Lucas for withdrawing a job offer to a San Francisco woman after she disclosed she was pregnant.  (Article by Bog Egelko, Chronicle Staff Writer, July 01, 2010.