RSS Feed!

Archives

Archive for August, 2012

$3.5 Million in Punitive Damages: Hostile Work Environment Based on Race, Religion, and National Origin

Saturday, August 25th, 2012

On August 23, 2012, in May v. Chysler Group, LLC, Case No. 11-3000, the Seventh Circuit Court of Appeals upheld awards of $300,000 in compensatory damages and $3.5 million in punitive damages stemming from an employer’s insufficient actions to address Mr. May’s allegations of a hostile work environment based on race, religion, and national origin. As set forth by the court, to prevail in a hostile work environment claim, Mr. May must demonstrate that (1) he was subjected to unwelcome conduct based on his race, religion, or national origin, (2) it was sufficiently “severe and pervasive” to create a hostile or abusive work environment, and (3) there was a basis for employer liability. The court noted that Mr. May, a Cuban Jewish pipefitter, was subjected to 70 incidents of hostility over more than two years that included repeated punctures of the tires on his car and bike, derogatory graffiti in the company elevator, and written death threats in his tool among a number of other such incidents. While stating that an employer is not required to know exactly how to stop the harassing conduct at the time it is occurring, it must demonstrate that it took steps to put an end to the conduct and, when initial steps proved insufficient, it must demonstrate that it ramped up its efforts to stop the harassing conduct. To that end, the court observed that there was “scant” evidence that the company engaged in remedial efforts during this time period, such as possibly installing a camera near Mr. May’s tool chest or interviewing suspected employees. The court stated that the employer’s “response was shockingly thin as measured against the gravity of May’s harassment.” As a result, the court upheld the significant compensatory and punitive damage awards.

By contrast, the First Circuit Court of Appeals denied a race-based hostile work environment claim in Espinal v. National Grid NE Holdings, LLC, ___ F.3d ___, Case No. 11-1682 (1st Cir. Aug. 23, 2012). The court stated that, to impose liability on an employer in a hostile work environment claim, the plaintiff must demonstrate: (1) his co-workers’ harassment was sufficiently “severe or pervasive”; and (2) despite having notice of the harassment, the employer failed to take “prompt and appropriate remedial action.” In denying Mr. Espinal’s claim, the court held it was “clear” that the employer “took reasonable steps to address the alleged co-workers harassment based on the limited information Espinal was willing to provide.” Specifically, the court found:

The November 2006 incident occurred off-site and after company hours, and there were no National manager in attendance. Espinal’s direct supervisor only learned of the ‘rough night’ through Plaintiff’s co-workers, and he met with Plaintiff immediately after he learned of it. Plaintiff refused to disclose any details of the incident. Espinal’s direct supervisor then contacted his superiors, who scheduled and held a meeting at which two National managers, two union officials, and plaintiff were in attendance. This meeting ended when Plaintiff walked out, after refusing to disclose the names of his harassers. At the meeting following the December 2006 vandalism, a National manager of industrial relations provided Espinal with his personal cell phone number in case any other incidents occurred. Espinal never called, reported any additional incidents, or disclosed the names of any responsible parties. He also declined to meet with National following the filing of his harassment charge in January 2007.

Nonetheless, National managers did respond to plaintiff’s allegations. They met with union members and officials to discuss these incidents and reiterate National’s zero tolerance policy. National warned that any employee caught engaging in harassment would be terminated. The meeting was a prompt and appropriate response.

Thus, in both cases discussed in this paper, the employer held a meeting—National’s meeting constituted “prompt and appropriate” action because (1) Mr. Espinal would not divulge the names anyone allegedly harassing him, and (2) at a meeting, the employer emphasized its “zero tolerance” policy regarding harassment in the workplace and it notified employees that any person caught harassing Mr. Espinal would be terminated. On the other hand, in the meeting held by Chrysler’s management, there was no notification of a “zero tolerance” policy against harassment in the workplace, nor did the company lay out specific disciplinary steps it would take if an employee was caught harassing another employee. Moreover, unlike Mr. Espinal who refused to provide the names of alleged harassers, Mr. May did provide names of alleged harassers to Chrysler, but the employer never followed-up to interview the named individuals. Finally, National’s manager of industrial relations provided Mr. Espinal with his personal cell number in case any other incidents occurred. The management at Chrysler, on the other hand, did not present evidence of similar conduct with regard to Mr. May.

Seena Foster, award winning author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.

“Unemployed Need Not Apply”: The Road to Nowhere For Our Economy

Saturday, August 25th, 2012

The following article was originally published last year, yet it remains relevant today. Currently, some employers continue to post job ads stating that “unemployed” persons need not apply for any opening. These employers will only consider applicants who are currently employed. Since the time this article was originally published, some state and local governments have taken action to bar discrimination against unemployed persons in hiring practices. Notably, as of now, the District of Columbia, New Jersey, and Oregon have such legislation in place and California, Connecticut, Missouri, Maryland, New York State and New York City are considering similar legislation. The original article is as follows:

Amazingly, in an economic climate that rivals the Great Depression, some employers have made clear that “unemployed” persons need not bother to apply for job openings.

In these times, when our employment levels have suffered a serious down-shift, people who find themselves on the rosters of the unemployed now must navigate the narrow gauntlet of stiff competition for fewer jobs. And, it is counterproductive to our economic recovery for employers to exclude the “unemployed” from consideration for available job openings.

For certain executive level positions, some employers will court high-performers of competitors with the goal of gaining some advantage over these competitors. Often, however, exclusion of unemployed persons from consideration reflects prejudices that unemployed persons have work performance problems, or their skills and contacts must be outdated.

To be sure, some unemployed people are not interested in working. Those intangible qualities such as “work ethic”, nuts and bolts knowledge and experience, up-to-date skills and contacts, and compatibility with others in an organization can be difficult, if not impossible, to ascertain from an interview, resume, and select references.

On the other hand, it cannot be presumed that unemployed persons lack these intangibles by mere virtue of the fact that they presently do not have jobs. In fact, each of us who has worked in any type of job for any type of employer can readily point to one or more co-workers, managers, or supervisors who we would describe as lazy, incompetent, limited, abrasive, or overpaid. And, these people are employed!

Moreover, it is a mistake to assume that an unemployed person has lost his or her skills or contacts. To the contrary, time spent without a job can often be the most productive in terms of skill and knowledge development. Additionally, persons who are unemployed often spend time pursuing additional “contacts”, engage in various training and certification programs to improve skills, and pursue other avenues to stay “current” in the field.

Job loss, for whatever reason it occurred, is devastating financially as well as emotionally, mentally, and physically. If you are an employer with job openings, or if you work for a One Stop Career Center or Job Corps Center focused on getting people to work, consider carefully the day-to-day duties required of an available job and then look closely at any person, employed or unemployed, who demonstrates an ability to perform these duties.

One Stop Career Centers and Job Corps Centers should make sure that unemployed persons are being afforded an opportunity to participate in every educational, training, and/or on-the-job training opportunity for which they meet the essential eligibility requirements. Moreover, participants should be encouraged to include these training and educational pursuits on their resumes so that potential employers may see ongoing skill-building in the field.

Seena Foster, award winning author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.

EEOC Hiring Practices Subject to Discovery in Litigation

Saturday, August 18th, 2012

In EEOC v. Freeman, Case No. 09-2573, the federal district court of Maryland denied EEOC’s motion for a protective order on August 14, 2012 to hold that a defendant-employer being sued by the EEOC may depose EEOC officials regarding the agency’s use of criminal background checks and credit histories in its hiring practices. The court stated that, because the EEOC was suing the employer under Title VII of the Civil Rights Act of 1964 for alleged discriminatory use of criminal background checks and credit histories in its hiring practices, the employer was entitled to find out whether the EEOC utilized similar hiring criteria in filling jobs. In its defense, employer argued that use of criminal background checks and credit histories in its hiring practices was consistent with business necessity, and the United States Magistrate Judge agreed with the employer that it was entitled to learn whether the EEOC utilized similar hiring practices because, if so, “this fact may show the appropriateness of those practices.” The court found that, based on discovery obtained thus far, the employer and the EEOC appear to utilize similar considerations; to wit, with regard to job applicants with criminal backgrounds, both employer and the EEOC appear to consider the nature of the offense, its seriousness, and the requirements of the job to be filled.

CERTIFICATE WEBINARS NOW OFFERED!

Thursday, August 2nd, 2012

We are pleased to announce our upcoming Webinars. Participants completing a Webinar will receive a personalized “Certificate of Completion” documenting the training.

Title: Compliance With Title VI of the Civil Rights Act
and Related Laws: An Overview
Date: Thursday, September 20, 2012
Time: 1:00 pm Eastern Standard Time
Cost: $34.95
Description:
Because of its popularity, this recurring Webinar provides an informative overview of how to comply with the nondiscrimination and equal opportunity provisions of federal civil rights laws that apply to the administration, oversight, and delivery process for federally assisted programs and activities. In this Webinar, we’ll focus our attention on Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and the disability-related nondiscrimination laws at Section 504 of the Rehabilitation Act and Title II of the Americans With Disabilities Act. We will touch on a variety of compliance-related issues such as how far these laws extend, what is required for compliance (including a discussion of reasonable accommodation, environmental justice, and Limited English Proficiency), the concepts of assurances and taglines, differences between program complaints and discrimination complaints, harassment and hostile environment, and data collection.
Developed for:
Whether you are new, or need refresher training, this Webinar is designed for state and local government officials from any size agency or department, including equal opportunity officers, ADA coordinators, disability specialists, Title VI liaisons, agency heads, contracting and procurement personnel, and compliance officials. Similarly, management and equal opportunity professionals for private companies and other organizations that contract with state and local governments to operate federally assisted programs and activities will find this Webinar useful. Whether you receive funding directly from a federal agency, or indirectly through a state or local agency, the laws discussed in the Webinar apply to you.

Title: Sexual Harassment at Educational Institutions: An Overview of Policies and Preventative Measures
Date: Thursday, October 25, 2012
Time: 1:00 pm Eastern Standard Time
Cost: $34.95
Description:
In the course of this Webinar, we will use the sexual harassment case involving Jerry Sandusky and Penn State as an example of some concrete steps any educational institution can take in developing policies and implementing preventative measures to prevent sexual harassment. The events leading up to the conviction of Mr. Sandusky involved use of university facilities to engage in sexual behavior with minors. We will cover The Clery Act as well as Title IX of the Education Amendments Act, which is the federal civil rights law that prohibits sex-based discrimination in federally assisted educational programs and activities.
Developed for:
This Webinar is designed for equal opportunity, human resource, and affirmative action personnel at educational institutions as well as the leadership, policy-makers, faculty, staff, and students at these institutions.

Seena Foster is an attorney, certified mediator, and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” And, she is a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.

Age Discrimination: What It Is and How To Avoid It

Thursday, August 2nd, 2012

Age discrimination is prohibited by federal civil rights laws. The Age Discrimination Act of 1975 (ADA) requires nondiscrimination on the basis of any age in the delivery of federally-funded services, aid, training, and benefits. And, the Age Discrimination in Employment Act of 1967 (ADEA) bars discrimination against folks who are 40 years and older in employment practices.

√ In federally-funded programs and activities.

In federally-funded programs and activities, age discrimination is prohibited regardless of the age at issue. Denying services, aid, training, or benefits because someone is “too old” or “too young” runs afoul of the ADA. That is, if you limit services, provide lesser services, provide segregated services, or deny services based on a person’s age, then you have engaged in age-based discrimination.

The only exception is when the federal funding agency designates dollars for a program geared to a particular age group. For example, Job Corps offers federally-funded educational programs and activities to persons who are aged 18 to 25 years. Here, one of the essential eligibility requirements for participation in this federal program is age-related.

Absent specific age criteria set by the federal agency, as in our Job Corps example, age-based discrimination is prohibited in government programs. For example, let’s say you are operating a project management training program, which is funded by dollars from the U.S. Department of Transportation. Through this program, participants obtain specialized certification allowing them to bid on a wider variety of contracts issued by your agency.

Joan, a 36-year old, was denied entry into the program. She files a discrimination complaint alleging you only selected folks under 30 years of age. This constitutes an age-based discrimination complaint.

Now, when conducting an investigation of this complaint, you’ll want to learn whether Joan met the essential eligibility requirements for the training program, who was selected and who was not, what were the bases of these decisions, and the like.

If you operate a government program to deliver aid, training, services, or benefits to the public, then focus on the following measures to ensure compliance:

● Know the “essential eligibility requirements” for the program. Are there any age requirements? If not, then the ADA applies and age cannot be used to deny access to the program.
● Make sure each and every member of your staff working with this program, including your front line folks who greet the public as they come through the door, knows the eligibility requirements for your program.
● Conduct training so that staff understands the ADA, i.e. what it is, where it applies, and what it means. Everyone needs to be on the same page—you cannot offer less services, segregated services, different services, or no services because someone is “too old” or “too young.”
● Monitor the program. Check census and other demographic data for your service population to make sure you are reaching your target populations, regardless of their ages. Check program data for any disconnects between the ages of folks who come through your doors and those who are actually served. And, finally, track your discrimination complaint log to pinpoint and troubleshoot problem areas in your systems of delivering aid, training, benefits, or services to the public.

√ In the workplace.

Unlike the operations of government programs, in the workplace, we are concerned with the treatment of people who are 40 years and over. The ADEA stemmed from Congress’s concerns over stereotyping of older workers as being less efficient or less productive than their younger counterparts. Congress found that, based on these stereotypes, older workers were treated less favorably.

At this juncture, it is worthwhile to take a brief sidestep and note that a variety of studies that have come out in recent years demonstrate that older persons exhibit sharper minds in some areas and have more stable emotions than their younger counterparts. For example, older air traffic controllers were studied by University of Illinois researchers and found to exhibit expert navigation abilities as well as expert abilities coordinating multiple aircraft at the same time to avoid collisions. So, it is important to instill a workplace culture that does not negatively stereotype older workers.

Less favorable treatment in employment practices includes non-selection, non-promotion, adverse performance appraisal, hostile work environment, and termination. It can also include transfer to a less favorable position or office location, exclusion from meetings, and other less favorable privileges, terms, or conditions of employment.

If it is determined that less favorable employment policies and practices adversely affect folks 40 years of age and over, then prohibited age-based discrimination is demonstrated, unless the employer demonstrates that “reasonable factors other than age” are at the core of the less favorable employment policy or practice.

Keep in mind, it is not illegal under the ADEA to favor an older worker over a younger worker, even if both employees are over 40 years of age. Rather, as stated earlier, the ADEA was enacted to protect older workers against discrimination in favor of younger workers.

The ADEA applies to your workplace as well as to apprenticeship programs, job notices and advertisements, and pre-employment inquiries. While there is no specific prohibition to asking the age, the date of birth, or the date of high school graduation of an applicant for employment with your organization, such pre-employment questions will be closely scrutinized in any discrimination complaint investigation to determine whether the information was obtained for a lawful purpose.

There is no upper age limit under the ADEA, which means that employers must be careful when imposing mandatory retirement policies. Specifically, if an employer seeks to impose mandatory age retirement, it must demonstrate that such a requirement constitutes a bona fide occupational requirement for the position.

And, sometimes, job requirements will have a disproportionately adverse impact on folks who are 40 years of age and over. For example, a job may require consistent lifting of 50 pounds during the workday and this, in turn, may disproportionately affect some older workers. Such job requirements are permissible so long as they relate to the essential functions of the job.

So, we’ll use two court opinions to help us better understand age-based discrimination in the workplace—when it is established and when it is not. Keep in mind, that discrimination complaints are very fact intensive. There are very few bright line rules and these complaints are resolved on a case-by-case basis.

The two cases that we are going to look at are the 2011 New Jersey Supreme Court opinion, Saffros v. Anaya, Inc., where age discrimination was established, and the 2012 Third Circuit opinion of Vashinder v. Sec’y. Dep’t. of Veterans Affairs, where age discrimination was not established.

The plaintiffs in each of these cases alleged that derogatory age-related remarks were directed at them in the workplace. The Vashinder court found evidence of one “stray remark” about the plaintiff’s age, but concluded that this did not rise to a “severe and pervasive” level so as to create a hostile work environment.

In Saffros, on the other hand, the court found evidence that company managers and supervisors continually made degrading age-related comments directed at, or about, older workers, including the plaintiff. Indeed, the court found that these comments were “severe and pervasive” enough to create a hostile work environment based on age, which constituted age-based discrimination.

Next, in Vasbinder, the plaintiff, who was over 40 years of age, was demoted from Boiler Plant Operator Leader to Maintenance Worker. Although the plaintiff asserted that the demotion stemmed from the fact that he was over 40 years of age, the court found sufficient evidence presented by the employer to demonstrate that he was demoted because he was caught sleeping during his shift. Here, the court noted, “Sleeping while responsible for the boiler plant was a serious offense because of the potential consequences of an equipment malfunction.” Although the plaintiff challenged the employer’s investigation of a report that he was sleeping on duty, the court held that the employer followed its procedures, investigated the report, and took disciplinary action.

On the other hand, in Saffros, the court cited to multiple factors demonstrating age-based discrimination had occurred against employees aged 40 years and older. The court cited to one employee over 40 years of age, who had a history of exceptional work performance, but was terminated under a Forced Management Plan, which employer asserted served a purpose of eliminating positions “to create cost savings.” The plaintiff requested a transfer to another geographical location with the company, but this was denied on the basis that there was “no money for moving.” It was problematic to the court, however, when the company turned around and hired a 33 year old to fill the same position as was held by the terminated plaintiff and the moving costs for the new hire were paid by the company. Based on the facts before it, the court concluded that age-based discrimination was established.

In the end, it is important to ensure that your employment practices comply with the ADEA. Some suggestions include:

● In your employment practices, focus on the bona fide occupational requirements and essential duties of a job, not the age of the applicant or employee.
● Avoid gathering age-related information, such as date of birth, date of graduation from high school, and the like, during the pre-employment phase of the hiring process.
● Do not include age preferences in job notices and advertisements.
● While stray age-related remarks in the workplace may not rise to the level of “severe and pervasive” conduct to create a hostile work environment, any such remarks should be discouraged. And, managers and supervisors must refrain from making such remarks, encouraging others to make them, or ignoring complaints by subordinates regarding such remarks. There is a point at which stray remarks evolve into more intense conduct that violates federal civil rights laws.
● Reductions in force and other “cost saving” measures implemented by an employer should not have a disproportionate affect on older workers. It will be particularly problematic for your organization if terminated older workers are replaced with younger ones.
● Monitor what is happening on the ground. Keep your eyes and ears open. Acts of discrimination may start small, but they can quickly build and create a drain on company resources to correct. It is best to encourage a respectful work environment, top to bottom, from the start.

Seena Foster is an attorney, certified mediator, trainer, consultant, and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” Ms. Foster is a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.