EEOC Reports Nearly 100,000 Job Discrimination Charges

The Equal Employment Opportunity Commission reported that it received nearly 100,000 workplace discrimination claims during its 2012 fiscal year. These claims do not include those filed through state agencies. Retaliation, race and sex discrimination which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The Commission further reported that it obtained $365 million for those who brought forth these claims.

To prevent discrimination from occurring in your company, you should do the following:

Zales: Guilty of Discrimination

Would you buy from a firm found guilty of discrimination? Probably not and that’s the fear of Zales jewelry store today.

Claims of discrimination can severely damage an organization’s reputation and brand. Consumers who have options would rather buy from those who have sterling reputations—not from companies’ accused of illegal discrimination toward their own customers.

In this case, a woman accused Piercing Pagoda, a division of Zales Delaware, of discrimination and the Maine Human Rights Commission and the Cumberland County Superior Court agreed, ordering the company to pay $100,000 in damages.

Zales has denied the claim, but the damage is done. People have been hurt, reputations harmed, and the company must now deal with the ugly headlines and long term impact on its business, workforce and customer base.

Advice for Employers: Adopt a zero tolerance policy on discrimination. Be clear to your workers that any act of discrimination—whether in your employment practices or how you deal with others, will never be tolerated. Foster a respectful environment and only hire quality staff. Train your employees and be vigilant in ensuring that you maintain a respectful workplace. And if claims are made, rapidly address it.

For more information on preventing discrimination, click here.

HARASSMENT PREVENTION TRAINING: RECENT CASES REMIND US OF THE IMPORTANCE

(Guest post was written by the attorneys at Mirick O’Connell)

Despite stringent state and federal laws prohibiting sexual and other illegal harassment in the workplace, many employers and employees continue to be faced with situations and litigation involving such conduct.  In 1996, Massachusetts General Laws c.151B (“Chapter 151B”) was amended to require employers to distribute written sexual harassment policies (with specific required provisions) to all new employees and to every employee on at least an annual basis.  That law also encourages employers to provide sexual harassment training to all of their employees on a regular basis.  Unfortunately, many employers still fail to take those steps, exposing themselves to legal liability and the prospect of substantial damages awards, including back wages for terminated employees, emotional distress, punitive damages and attorneys’ fees.

Discrimination Laws: Massachusetts Protects Gender Identity

(This post was written by attorney Karen Aframe of Bernstein Shur)

Effective July 1, 2012, “gender-identity” will become a protected status under Massachusetts anti-discrimination laws. This means that private employers with at least six employees in Massachusetts, even if headquartered elsewhere, will be prohibited from considering gender identity when making decisions regarding hiring, promotion, termination, or any other terms and conditions of employment. The new law also prohibits harassment on the basis of gender identity.

The Massachusetts law defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” As a result, this statute will protect persons who have undergone sexual reassignment surgery, as well as persons who behave or appear in a manner that is not traditionally associated with the person’s physiology or sex at birth.

Employers familiar with Massachusetts anti-discrimination law may wonder if this is actually a change in the law; in 2001, the Massachusetts Commission Against Discrimination ruled that sex discrimination included discrimination on the basis of gender identity and gender expression. While some Massachusetts courts issued similar decisions or found protection for transgender persons on the basis of disability or sexual orientation, other courts have declined to do so. The new statute clears up any confusion in the court cases. Massachusetts now joins Maine, Vermont, Connecticut and Rhode Island and 11 other states and the District of Columbia which provide workplace protection to transgender and transsexual persons.

While New Hampshire has not enacted similar legislation, New Hampshire law suggests that transsexualism is protected by N.H. RSA 354-A. At least one New Hampshire court held that transsexualism is a protected “handicap” under the state discrimination law, N.H. RSA 354-A. Thus, employers with New Hampshire employees also should adopt practices to avoid discrimination and prohibit harassment of trans-gendered and transsexual persons to avoid potential litigation. In light of these developments, employers with employees in any New England state, other than New Hampshire, should update their equal employment opportunity and harassment policies to make sure that they include gender identity and/or gender expression as a protected status. All New England employers should consider the impact of these developments on other employment practices such as dress codes, access to bathrooms and reasonable accommodations. Employers who learn of an employee’s transgender status, even through a simple application question such as “other names used,” will need to take precautions to ensure that gender identity is not considered in the hiring process, just as employers have learned to do with age, race, religion and any other legally protected status.

Harassment Claim: 1st Circuit States Employee’s Failure to Notify Employer of Repeat Harassment Fatal to Claim

( Moulison North, a Dacri & Associates ,client, was successful in this case because, when faced with an employee complaint of harassment, the CEO, Ken Moulison, did all the right things to address the problem. Having in place an anti-harassment and discrimination program, developed by Dacri & Associates and following the guidelines set forth in the program, resulted in a winning verdict for the company).

 An oral reprimand was an adequate response to an initial report of racial taunting, and a complaint of continued harassment made to a nonsupervisory leadperson did not trigger a duty in an employer to take further action or render it liable for harassment, according to the 1st Circuit Court of Appeals.

Employers may be held liable under Title VII of the Civil Rights Act of 1964 if they are responsible for creating or tolerating a hostile work environment. To recover for employee harassment by co-workers, an employee must show the employer knew or should have known of the harassment and failed to take prompt, appropriate remedial action. The answers to the questions of when knowledge is imputed to an employer and what constitutes appropriate remedial action depend on the circumstances.

Shortly after Arthur Wilson began working for the electrical utility contractor Moulison N. Corp., his co-workers began taunting him with racial epithets. The leadperson on the crew overheard and told them to stop, but the conduct continued.

Following the company policy as stated in the employee handbook,Wilson reported the conduct to the company’s owner and chief executive officer. The next day, the CEO visited the work site and berated the harassers, who did not deny making the racial slurs. The CEO warned them that repeat conduct would result in their dismissal. The CEO then apologized to Wilson for their conduct and told Wilson they would be dismissed if the conduct continued and to report any further problems to him without delay.

One of the employees continued to taunt Wilson, and his work relationships with others deteriorated. However,Wilson reported this only to the leadperson, and the leadperson took no action in response.

Wilson brought suit alleging a racially hostile work environment and retaliation. The district court granted summary judgment for the employer, and Wilson appealed only the hostile environment claim.

Wilson argued first that a verbal reprimand and warning was too mild given the nature of the conduct. The 1st Circuit held that an employer must be accorded some flexibility in selecting appropriate sanctions for particular instances of employee misconduct. The court offered that, “barring exceptional circumstances (not present here), a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct.”

In this case, the court had before it no evidence that the perpetrators were repeat offenders, that racial discrimination was a long-standing problem for the employer or that the employer had a history of inconsistent discipline. The employer’s response was consistent with its anti-harassment policy and the punishment fit the crime. The employer’s action need not be such as will satisfy the complainant. The court rejected plaintiff’s argument that the warning was inadequate because it was ineffective as “nothing more than a post-hoc rationalization.”

Wilson’s second argument—that his second complaint to the leadperson put the employer on notice and created a basis for liability—failed because the court found the leadperson was not a supervisor. The policy directed employees to report harassment to a supervisor or an owner, and neither the CEO nor the policy had designated the leadperson to receive such complaints.Wilson had many opportunities to complain to the CEO and offered no explanation for failing to do so when the CEO had specifically directed him to report any further problems to him without delay.

Wilson v. Moulison N. Corp., 1st Cir., No. 10-1387 (March 21, 2011).

Professional Pointer Adequate steps to prevent and correct harassment include addressing the possibility it may continue, despite disciplinary action. In addition to the steps described above, employers should check back periodically with employees who report harassment to ask if it has recurred, follow through on any further complaints and document these efforts.

This article was written by Susan M. Schaecher, an attorney with Stettner Miller PC, for SHRM.

Unemployed Need Not Apply

Discrimination against the unemployed is angering a lot of people. President Obama may soon introduce legislation against it. Some states are promising to follow. With high unemployment and people desperate for work, the notion that employers would have a hiring practice of not even considering a candidacy of someone who is between jobs is not only repugnant, but a dumb business practice. Nevertheless, we don’t need new laws banning stupidity.

Employers make decisions every day that make no sense to outsiders—some good, some not. Either way, it’s their business. The carte blanche practice of not considering someone because they may be between positions eliminates potential star performers who find themselves without work for a variety of reasons, often without regard to their ability, experiences and skills. When an employer chooses to not even look at a resume or candidate, they cut themselves off from a likely strong candidate.

For the candidate, faced with what appears to be another obstacle in the endless steam of them that this economy has put up, this action may be the last straw. Though their outrage is justified, one must ask themselves first, “would I really want to work for an employer who makes these kinds of decisions?” Candidates should be laser focused on finding a new job in a company that meets all their needs. Anger and frustration will only hinder the search process.

Bottom line, we don’t need new laws designed to penalize poor management practices. We need an expanding economy that creates enough jobs for all who need and want one. That and only that will cure this wrong.

Discrimination Claims: Seven Ways To Effectively Protect Your Company

You can win claims of discrimination. Ken Moulison, President of Moulison North  in Biddeford, Maine proved that. When one of his employees complained to him that he was being subjected to racial comments on the job site, Ken immediately addressed the problem. That kind of behavior was not tolerated at Moulison—and Ken had a track record to prove it.

 Well before this incident, Ken engaged Dacri & Associates to put in place a comprehensive discrimination and harassment prevention program that included training, polices, a complaint procedure and employee education. Armed with this, Ken knew what to do when faced with an incident. Yet, even though Ken quickly corrected the problem, a fact admitted by the employee, a discrimination suit was still filed.

 Unwilling to settle this case to make it go away, Ken won the initial suit and then won the subsequent appeal. Having a strong anti-discrimination program in place—a fact cited by the judge, Ken wanted to send a clear message that his company does not tolerate discrimination in the workplace, nor would he back down to avoid an unwarranted legal fight—a decision Ken believes saved his company $100,000 in settlement and legal fees.

 So how can you protect your workforce and company against discrimination, similar to what Moulison did? There are seven key strategies necessary to eliminate claims of discrimination:

1. Invest heavily in management training.  Train all your managers annually in employment law basics, communication skills, and how to treat employees with respect.
2. Review all your employment practices.  Focus on hiring, promotion, discipline, layoffs/termination, performance appraisals and documentation. Look for and eliminate systemic practices that could result in discriminatory practices.
3. Have a broad anti-discrimination and anti-harassment policy.  The courts and the EEOC interpret having no policy negatively.  Include a complaint procedure, protections again retaliatory actions, language discouraging inappropriate behavior, and communication alerting employees that all employees should file claims promptly, along with clear procedures on how to file a claim.
4. Investigate all claims. Whenever an employee makes a complaint, investigate it quickly. Never dismiss a claim without a thorough, impartial review. Keep the alleged victim informed of your actions. And if harassment or discrimination does occur, dish out the appropriate discipline, while protecting the victim and any witnesses from potential retaliation.
5. Response mechanism. Train all managers on how to spot discriminatory practices and how to respond to employees who make claims. Eliminating discrimination before it occurs is the key. Properly responding to complaints will mitigate damage and will send a message that you care.
6. Create a respectful culture. Organizations that have a culture that is based on respecting all employees rarely have issues or claims of harassment and discrimination. Employees who respect each other don’t harass or discriminate. Be clear that harassment and discrimination will never be tolerated, but if it happens, it will be swiftly and forcefully addressed.
7. Follow your state law guidelines.  Multi-state employers must know all state laws to ensure compliance.

 Claims of discrimination or harassment can happen. But when companies have in place strong proactive programs and when managers know how to handle these situations, claims can be won. And managers can have the peace of mind that they did the right thing.

Discrimination and Retaliation Claims Set a Record in 2010

(This post was writen by Attorney Glenn Israel  of the law firm Bernstein Shur) 

 The U.S. Equal Employment Opportunity Commission (“EEOC”) recently reported that it received a record number of claims from employees in 2010 – nearly 100,000 new claims. Retaliation claims are the most frequently filed, but disability discrimination claims are on the rise, increasing by nearly 20 percent in 2010, and sex discrimination and religious discrimination cases continue to increase as well. Not surprisingly, the EEOC reports that the cost to employers of resolving these claims also continues to increase. We have seen a similar trend here in Maine. More of our clients are being sued for discrimination and retaliation, and the cost to resolve these claims has steadily increased. We also are seeing a marked increase in claims under the Maine Whistleblower’s Protection Act.

 There are a number of reasons for this disturbing trend. The down economy has caused increased layoffs and decreased job security which has resulted in a loss of employee morale, decreased employee loyalty, and increased employee desperation. These factors have driven more employees to commence litigation over real or perceived injustices in the workplace. Experts predict that this trend is likely to continue for several years.

 Now, more than ever, it is important for employers to do everything they can to avoid becoming defendants in discrimination or retaliation suits. There are some basic steps that you can take that do not cost very much and greatly reduce the likelihood that you will find yourself on the receiving end of a law suit. So, what can you do?

 Develop Policies – Every employer should have an anti-discrimination and harassment policy that addresses all forms of discrimination and harassment. It also is advisable to have policies that affirmatively require managers to consider and document objective criteria when making decisions regarding hiring, promotions, discipline, and discharge.

 Support and Follow Policies – Policies are only useful when they are fully supported by senior management and are consistently followed. Middle managers and rank and file employees all should understand that senior management is committed to following the established policies.

 Provide Training – Policies are not always self-explanatory Managers and employees must be educated regarding their roles and responsibilities in following and enforcing policies. This is the area where most employers fail. Once a policy has been developed and is fully understood by senior management, it is vitally important to make sure that all middle managers and employees share that understanding.

 Implement an Effective Complaint Resolution Process – Employees need to know how to bring problems to the attention of management and they need to be encouraged to do so. Managers need to know how to respond to employee complaints and concerns. To accomplish these goals, you need to implement a complaint resolution process and provide training to all managers and employees regarding how the process works.

 Maintain Complete Documentation – In the event that you are sued for employment discrimination, your best defense is a well maintained personnel file. It is important for employers to establish policies and procedures for documenting job performance and discipline issues, and to train all management personnel to follow these policies and procedures.  This is another area where many employers fail to protect themselves, either by not establishing policies and procedures in the first place or by not consistently following them. 

 It is clear that 2011 will be another challenging year for the economy and for employers. Employers may be tempted to avoid spending the time and money necessary to develop new policies or train managers and employees. However, a modest investment in anti-discrimination policies and training now can reduce the risk of costly claims later.

Walmart Sex Discrimination Lawsuit A Wake Up Call

Walmart just got slapped with a sex discrimination class action lawsuit.  The claim is that they paid their female workers lower pay and gave them fewer and slower promotions than their male counterparts—a clear violation of federal antidiscrimination law.

This is bad news for Walmart and a wake-up call for all other employers.  In a case that Walmart vows to fight all the way up to the Supreme Court, if found guilty, this could potentially cost them hundreds of millions.  On top of that, the negative publicity will likely turn off their loyal female shoppers.  Who wants to patronize a store that discriminates against its workers?

 Other employers should take note and immediately look at their pay and promotion practices.  If your female employees are consistently being paid less than males, and if females are receiving fewer promotions than males, then you may have a similar problem on your hands and should begin correcting it now.  For everyone else, regular reviews of your pay and promotion practices will help you avoid landing on the wrong side of a sex discrimination lawsuit.

Six Proven Discrimination Prevention Strategies

A trained management team, clear policy, and a rapid response to an employee complaint resulted in this Dacri & Associates client winning a discrimination claim that could have easily cost them $100,000 in settlement and legal fees. Two years ago, we proactively developed for them a discrimination and harassment prevention program. This year, when an employee complained that he was being harassed, the management knew what to do and swiftly responded to the incident. The program was working: the employee knew how to lodge a complaint; the management responded properly to correct the incident; and the situation was resolved. Unfortunately, the harassing behavior did not completely go away. This time, however, the employee never told the management, so when the employee got a lawyer and filed a complaint, the company was caught by surprise.The U.S. District Court of Maine heard arguments and issued a summary judgment ruling the employer was not liable. The company did everything it could to correct the situation, but because the alleged victim failed to tell them of the second incident, the employer could not be held liable for not correcting it. The employee did not follow the procedures outlined in their handbook. We can learn a great deal from this case: Have a clear compliant procedure in your handbook that all employees receive and acknowledge; Train your managers and supervisors on how to respond to complaints; Investigate immediately all complaints; Firmly address legitimate complaints; Protect employees and witnesses from retaliation; and Communicate frequently with the alleged victim.   When this harassment and discrimination prevention program was put in place, we could never have anticipated this particular incident would occur. Nevertheless, when it did, the management knew what to do and did all the right things, saving them a bundle and winning the case.