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.

Credit History as Hiring Criterion? No, No, No. By L D Sledge, J.D.

In December, 2010, the Equal Employment Opportunity Commission sued the Kaplan Higher Education Corporation for using credit history in its hiring process. The New York Times has the story:  http://www.nytimes.com/2010/12/22/business/22kaplan.html?hpwthe story.

Kaplan, a Washington Post Company, operates a string of for-profit colleges and training schools throughout the country.  The commission alleges that Kaplan has rejected job applicants based on their credit history which has a “significant disparate impact” on blacks. “This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity,” the commission said. Private and government surveys have suggested that about half of all employers use credit histories in at least some hiring decisions.

“Disparate impact” is the theory that if a given test or criterion rules out a higher proportion of applicants from one race than from another — which almost any test will, given racial (or in some cases age) gaps in skills and abilities — it’s presumed illegal unless the company can prove it’s “job-related.” And “job-related” doesn’t just mean “significantly correlated with job performance”.   IQ tests may prejudice the ability to perform any given set of tasks, but they are totally verboten.

Justine Lisser, an E.E.O.C. spokeswoman, said that credit histories were often inaccurate and might not be a good indicator of a person’s qualifications for a particular job. “Credit histories were not compiled to show responsibility,” she said. “They were compiled to show whether or not someone was paying the bills, which is not always the same thing.” “This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity,” the commission said. The agency did not specify what types of jobs were involved.

So what can be learned from this? Don’t use credit history as an element of hiring rationale.  Buy and read NO FAIL HIRING, and then schedule a workshop to get the confidential details on how to put this foolproof procedure into application.

EEOC shooting to kill in ADA cases, by L D Sledge, JD

FOR THE WANT OF A STOOL, A BUSINESS GETS SUED

Small business must be alert to an overall attack by the Equal Employment Opportunity Commission (EEOC) to enforce the American Disabilities Amendment Act, which requires employers to hire disabled personnel if the person can perform the job.

“The contributions of people with disabilities to the workplace ought to be valued, not rejected based on myths, fears and stereotypes,” said EEOC Chair Jacqueline A. Berrien. “The ADAAA made clear what the EEOC had always asserted: people with a range of disabilities are protected from unlawful discrimination. We hope that these cases send a clear message that the Commission will vigorously enforce the ADA.”

In September, 2010, the EEOC charged Eckerd Corporation, a nationwide drug store chain doing business as Rite Aid (EEOC v. Eckerd Corporation), for refusing a reasonable accommodation---a stool to sit on. The employee, Fern Strickland, had worked as a cashier for Rite Aid for seven years and had severe arthritis of her knees. She was given a stool to sit on, and was able to carry out her work with satisfaction until a new manager “didn’t like the idea” that Strickland used a stool. She was terminated because the manager refused to accommodate her disability “indefinitely.”

This violated Title I of the ADA. The EEOC filed suit after first trying to reach a voluntary settlement, and is seeking back pay as well as compensatory and punitive damages, as well as injunctive relief designed to prevent such violations in the future.

Compensatory damages compensate the claimant for things actually accountably lost---wages, past, present and future, mental and emotional anguish, pain and suffering, etc. Punitive damages are where companies get fried through “punishment” or to make an example. Juries have zero tolerance of such incidents as in the Strickland case and a large damage award is expected. Could this manager have kept the stool? Was this an error in hiring this guy? You bet!

DISCRIMINATION 101

DISCRIMINATION 101, by L D Sledge, JD

President Lydon, B. Johnson signed title VII of the Civil Rights Act in 1964 which prohibits discrimination on the basis of sex, race, religion, color and natural origin. This act is enforced by the Equal Employment Opportunity Commission, (EEOC), which may initiate a complaint on its own, or it may receive complaints from individuals or groups and take action on it.

Over the years, the act has been expanded to include age discrimination, disability and genetic information. A large body of jurisprudence (cases), based on lawsuits in this area, has created the guidelines to follow and there are guidelines established by the EEOC in each of these areas. They have expanded into areas such as retaliation for filing claims or whistleblowing and harassment, all of which have produced substantial damage awards for the plaintiffs. It is a minefield for the unwary. The small business must have a competent employment attorney on board or available if questions arise.

Huge awards have been granted to complainants against businesses for violating these guidelines. Every small business must learn how to avoid these problems, for they can literally destroy one's business. I will particularize these problems and their solutions in future blogs.

At Will Employment

AT WILL EMPLOYMENT, By L D Sledge, JD

Most employers feel secure because they think they have the right to fire any employee at will for any reason. Wrong. With Title VII of the Civil Rights act gone virile with discrimination law suits for sex, age, race, religion, and a plethora of other “rights violations”, no employer is safe. Should you decide to offload an employee, for reasons you feel are necessary, the employee, feeling injured or in some way mistreated, will inevitably consult with the Equal Employment Opportunity Commission (EEOC) for a shot at bringing you down and making some nice pocket (or retirement) money. If that employee feels mistreated, the remaining employees may feel the same and this impacts morale and productivity. It has that ripple effect.

How do you avoid this and assure that your status of AT WILL will be maintained in a lawsuit? The nemesis of the AT WILL status is always the Implied Contract. Never let it be implied by your words, deeds, writings or actions that the employment is permanent. (You will love it here? You have a great future with our company…etc.” On the contrary be very positive in language in your business profile, job description, employment contract, your application, your employee handbooks, and in every writing that it is unequivocally AT WILL, and have the new hire sign every document that this is totally understood. Even define any terms, including AT WILL.

Avoid any probationary period. This can be interpreted as made permanent once the period has passed.

What is Negligent Hiring and Retention?

Hire or retain an employee whom you know or should have known had a criminal record or a tendency to injure another and you are risking all you have ever worked for. Tallahassee Furniture employed a man in the yard and let him drive the truck. Then they sent him out to delivery furniture, which required that he enter the homes of the customers. He delivered a sofa to a customer who gave him a TV. Later that night, after work, he returned under the pretense to get a receipt for the TV to prove he didn't steal it. She let him in, for he had been a representative of the trusted store. He attacked and raped her. Judgment against Tallahassee Furniture for $2.7 million. He had a record of violence.

Juries have zero tolerance for employers who are careless in hiring, allowing high risk people to enter the homes of customers, resulting in injury. Juries give compensatory damages (award those damages that are provable such as lost income, medical bills, even pain and suffering, etc.). On top of that, if the offense is particularly shocking, they award punitive damages to punish the defendant and set an example. Most states have punitive damages, and aggressive lawyers inflame juries to award monstrous verdicts. Witness the multi-million punitive damage award in the infamous McDonald's spilled coffee case. The largest punitive damage award in negligent hiring I have seen was for $40 million.

How can you avoid the possibility of this happening to you? We can guide you through this minefield. Go to www.nofailhiring.com. Buy the book No Fail Hiring, and schedule a workshop where you will learn to become a hiring master.

L D Sledge, JD

Why No Fail Hiring

CEO's and upper management often delegate the time consuming business of hiring to a junior, with little guidance or plan in mind except just to hire a person competent to do a job, they hope. Management doesn't have time. They fail to realize that quality employees = quality production.

Most CiEO's innately know the vital importance of the task, and usually have no clue that there is a specific technology in hiring that will spot the good ones and the bad ones. It is a daunting task, and a dangerous one.

When a business starts, the entrepreneur hires the first employee--himself. The goals, purposes, plans and polices and ideal scenes must be clear to start. Then, to expand, he/she hires someone to take on duties that must be delegated so that attention may be put on creating the business. From there the success of the business depends on these employees not just doing their job, but being loyal and having the company's success as a primary consideration. This factor depends on more than leadership and orders. It depends on the quality of the employee. One who will do a stellar job and not sue you.

Suppose the employee is lazy, or even criminal. How can you tell at the time of the hire?

Have you ever heard of Negligent Hiring and Retention? Did you know that the average jury verdict is $1.6 million dollars? Did you know that the lawbooks are filled with huge judgments against small business for sex, age, pay, and disability discrimination, as well as sex harassment cases? Later blogs will lay these problems out clearly.

This is where No Fail Hiring comes in. Buy the book, take a workshop, remove the guesswork and become a hiring master. Check www.nofailhiring.com.

L D Sledge, JD

Let me introduce myself

I am L. D. Sledge, co-author of No Fail Hiring with Patrick Valtin. As a successful attorney for forty three years, I have the experience needed to assist small businesses in hiring the just right employee and avoiding the disaster of having the wrong employees. I have personally had employees who turned on me and as a result I lost my practice. It is my goal to teach, in blogs, workshops and consultations, how to pick winners and sidestep the legal dangers all too prevalent in hiring and managing employees.

Today's litigious environment is a minefield for the unwary businessperson who wants to make an honest living by applying skills, resources and energy in this risky entrepreneurial world. There are enough worries just handling the day to day business without having to sweat legalities and the possibility of violating some federal or state law. Today the business terrain is littered with the bones of entrepreneurs who ran afoul of bad employees who sued and obtained horrendous judgments from juries using the punishing tool of punitive damages, often damaging the business beyond repair.

My blogs will hopefully shed some light in these difficult areas. I will never give legal advice in these blogs. Consider my viewpoint that of a realistic teacher who wants you to succeed. Stay tuned. I hope to make it interesting as well as informative.

Go to www.nofailhiring.com. Buy our book, No Fail Hiring, go to a workshop and become a hiring master.

L D Sledge, JD