Posted by marykeating on April 30, 2011 under Economic situation, Government contractors, veterans' discrimination | 
This week the Office of Federal Contract Compliance Programs issued regulations and inviting comments. The rules are intended to improve the rate of hiring of veterans by contractors receiving government funds above a certain threshold. The law already prohibits discrimination against veterans and against people in the military reserves.
Still, it is always difficult to prove that the reason someone was not hired is discriminatory. It’s extra hard when the economy is still weak, and there are many applicants for each opening. The unemployment rate for veterans remains stubbornly high.
A mandatory listing of jobs with several employment services is one way that the Department of Labor expects to improve the employment of veterans by contractors. Veterans languishing at state unemployment offices will get access to job listings that may give them a hiring preference. Even if no preference is given, information about openings is helpful. The contractors are also expected to maintain goals for increasing their veteran hiring rate, and of course must report their progress. Reports would have to include “a statement of reasons explaining the circumstances for rejecting protected veterans for vacancies and training programs.”
These proposals impose additional work on contractors, certainly, but by requiring more focus on finding veterans to apply, and scrutinizing why they were overlooked, the end result should be an increase in hiring.
Posted by marykeating on April 27, 2011 under Race-based discrimination |
Yesterday the Fourth Circuit overturned, partially, an employer win at the trial court. The case came up in the context of a racial harassment case involving several African-American employees. In the Equal Employment Opportunity Commission v Xerxes Corporation, The EEOC sued on behalf of several named employees and a class of people affected by the hostile work environment. In reading about the company’s response, the frustration of dealing with such a workplace becomes clear. Various people called employees offensive names, but as the company’s discipline ratcheted up, the harassment became anonymous and more sinister. The black employees received anonymous messages, drawings of figures in nooses, references to the KKK, and general hostility. Although the local sheriff got involved, no one discovered who had delivered the messages. When anyone specific was called on the carpet, though, he or she dutifully apologized and took anti-harassment training. Some were suspended, and more were warned that any further incidents would lead to termination.
The Fourth Circuit held that once the company did get involved, its response was acceptable. While the best outcome, of course, is for all of the harassment to stop, when an employer promptly investigates and takes steps designed to stop the racially charged behavior, it is insulated from a lawsuit. Here, though, the company took too long to respond to the first complaints, and will have to go to trial.
While this reversal permitting a trial is a welcome departure from the Fourth Circuit’s usual affirming of summary judgment, there is some troublesome language in the decision. Several racial epithets are referred to as “isolated” remarks, code for “we are not going to worry about a little bit of discrimination, just a lot.” Yet another employee’s testimony was discounted for being too general. The court faulted him for not having detail, context, examples, and time frames.
Posted by marykeating on April 22, 2011 under Interesting cases, Religious discrimination |
The Supreme Court has decided to hear a case involving the extent to which religious employers are free from the laws forbidding discrimination. In a number of cases, charges of religious discrimination have failed where an employee’s duties have been held to be central to the church’s mission. For example, preachers have been unable to ask a court to put them back in their jobs. Other church employees, such as chaplains and directors of church choirs, cannot seek redress in the courts if their duties are too directly linked to the church’s teachings, because then the courts of the United States would get too entangled in religion, in violation of the First Amendment. Teachers in religious schools, however, often are permitted to sue, since their primary duties relate to non-religious subjects.
In the new case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an elementary school teacher was fired after she took leave under the Americans with Disabilities Act. Upon her attempted return, the school decided that she may not be ready, and reqeusted her resignation. She refused to resign, as instructed, and threatened to sue. She and the EEOC claimed her termination was illegal retaliation; the employer stated it was her insubordination, which violated church doctrine. The teacher contends that her job did not involve any pastoral or missionary duties, and her religious teaching duties were minor compared with the rest of her job. Importantly, the job she did was not required to be held by a Lutheran. In the Fourth Circuit, the court long ago decided that churches’ “t]heir employment decisions may be subject to Title VII scrutiny, where the decision does not involve the church’s spiritual functions.” Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985)
It will be interesting to see if the Supreme Court draws a line between the kinds of discrimination alleged in deciding when to offer insulation to a church. Contrast these two situations: a religious teacher complains about sex discrimination because she had a baby out of wedlock, contrary to church teachings. A church organist is told he is too old to do the job anymore. In the first case, it makes sense for the court to stay out of the way. In the second case, it makes less sense to link age discrimination with a church’s right to determine its own doctrine.
This case will not be decided before the Court breaks in June for summer hiatus.
Posted by marykeating on April 21, 2011 under Discrimination in employment, sexual harassment |
The Institute for Women’s Policy Research published a report analyzing more than 500 consent decrees in discrimination litigation. Most of these were negotiated by the EEOC or the Department of Justice and focus on court ordered changes to the workplace. Unlike many private settlements, the terms of consent decrees are often (but not always) public, and are intended to alter workplace dynamics or policies to prevent future discrimination or harassment.
The report describes several large class action consent decrees in detail, including one intended to end systematic pay discrimination in the aerospace industry, endemic sexual harassment, including rape, of undocumented farm workers, and sex discrimination in uniformed services, such as prison guards. It concludes that the best decrees require objective criteria for hiring, assignments and promotions; monitoring of the effectiveness of the programs put in place to end discrimination; and a mechanism to hold management accountable. It also suggests that having an external monitor is important, particularly with smaller employers, and with systemic sexual harassment.
This report makes fascinating reading. The authors demonstrate a deep understanding of the nuances of a workplace in which the employees are suspicious of the motives of management, wary of retaliation, but hungry for fair treatment. The resources they bring to bear, and suggest adding, create the potential for settlements which create long-lasting change.
Posted by marykeating on April 20, 2011 under Economic situation, Unemployment compensation |
The Baltimore Sun today reported that while employers in the state shed nearly 6,000 jobs, more people were working.
This does not seem to be the same phenomenon we’ve seen before, that many people give up looking for jobs, so they are no longer counted in the potential workforce. Maryland’s unemployment rate is now a respectable 6.9%. The article said instead that more people were commuting out of state, or had started their own businesses.
Posted by marykeating on April 13, 2011 under Discrimination in employment, Economic situation, Employment benefit issues, Maryland wage law, Pending legislation |
The Maryland General Assembly closed on April 11 for the year. The Governor signed a few bills of interest to employers and employees yesterday; a few more are expected to be signed shortly.
“An agreement to work for less than the wage required under this subtitle is void.”
I believe this is already implied in the law. Yet, it is helpful to state it outright, since not everyone understands that minimum wage is required.
As of October 1, 2011, Maryland employers may not inquire into the credit of an employee or an applicant for employment. Exceptions include banks, credit unions, investment advisor positions, or any other job in which another law requires a credit report, such as someone needing a security clearance. Another large exception involves an employer pulling a credit report for jobs in which there is a realistic concern about the employee’s access to money. The exceptions are listed, and include management position, access to money or a corporate credit card, or has access to trade secrets.
The most unfortunate compromise is that the enforcement mechanism for violations is limited to filing a written complaint with the Commissioner of Labor and Industry. Still, the knowledge that in most cases an applicant’s credit history is off-limits should help the chances of people with poor credit. The persistent recession has hurt many people financially, and credit ratings have suffered. That does not mean that they would not be ethical, diligent employees.
- Change in disability benefits law. This is an enormous change in disability insurance practice. Effective for policies sold or renewed beginning on October 1, 2011, an insurance company may not reserve sole discretion to itself to interpret the terms of the policy, or to provie standards of review that are inconsistent with the laws of the state.
The law as originally proposed would have made all discretion illegal. That kind of change would have made an enormous difference in fights over coverage, but this is a step in favor of the person who has made a claim for disability coverage.
Posted by marykeating on April 12, 2011 under Sex-based discrimination, Wage and hour issues |
Today is Equal Pay Act Day, celebrating fifty years of the Equal Pay Act.
The Secretary of Labor issued a statement describing the department’s efforts to identify and redress “persistent challenges” to the pay gap between men and women. It remains puzzling. There are more women than men in colleges, a large proportion of women have been working full-time for decades now, and most people seem to agree that paying the same wage for the same job is only fair. In studies correcting for child care leave, statistics still show that women who work just as hard as men are paid less.
A study published in The Atlantic gives examples of industries in which women are underrepresented, underpaid, and focuses on the lack of women at the highest levels. Women make from 64 to 79% of the males’ pay.
One problem in rooting out the problem has been the courts’ reluctance to tackle equal pay issues unless the jobs are completely equivalent. Proving equivalence is impossible in higher level jobs. While one vice-president may have the same organizational chart level, the same number of direct and indirect reports, and the same level of responsibility as another, courts easily embrace the differences, and hold that the jobs are not equal, so a $40,000 pay differential has some basis other than gender. Even in lower level jobs, small differences (including the fact that the woman does more tasks than the man can spell the end of an equal pay challenge.
Gender discrimination hangs on, sometimes below the conscious radar, and sometimes right out in the open. There will be a lot of work to do so that the next Equal Pay Day is a true celebration.
Posted by marykeating on April 7, 2011 under retaliation, sexual harassment |
The Fourth Circuit recently allowed a woman’s sexual harassment case to proceed to trial. The District Court had entered judgment without a trial in the employer’s favor, which was held to be legally erroneous on appeal.
In Hoyle v. Freightliner, LLC, a worker in a truck plant complained on numerous occasions of her coworkers putting up pictures of scantily clad women in sexually demeaning poses, putting a similar screensaver on her computer, putting a tampon on her key ring, and similar conduct. Although the company said it would “look into” the conduct, nothing seems to have been changed. The worker was first reassigned to janitor duty, then fired for excessive absenteeism, which she claimed was retaliation for making the complaints.
The Fourth Circuit said “A juror could reasonably find that sexualizing the work environment by placing photos of nude women or women in sexually provocative dress and poses in common areas is detrimental to female employees and satisfies the ‘because of sex’ requirement.”
It did uphold the dismissal of the retaliation and discrimination charges relating to her reassignment and discharge, however. Although the treatment of her could reasonably be seen as retaliatory, the employer showed a legitimate nondiscriminatory reason for its actions. Since the employee had failed to show that men had been treated better, when they were in trouble for absences, she cannot bring that claim to trial.
Posted by marykeating on April 2, 2011 under retaliation, sexual harassment |
The Court of Appeals just decided a case involving a claim of harassment and retaliation. The plaintiff worked for a hotel, and reported to a man named Ahmed who had been rehired after having been terminated several years before. According to the complaint, many people had complained about the supervisor’s sexual harassment, assault, battery and discrimination during his first stint with the hotel. Upon his return, he asked the plaintiff to help him identify those who had complained about him, so he could fire them in retaliation. Mr. Ahmed also rehired a manager who sexually harassed the plaintiff. He discouraged her from continuing to complain about the harassing behavior. When she continued, and accused him of retaliating, he fired her.
The case will go back to trial because the jury was given the wrong instruction on retaliation.
The Court also resurrected the plaintiff’s claim that rehiring Ahmed was negligent. The Court of Appeals decided that if retaliation is a motivating factor in the decision to fire someone, it is illegal. The jury had been told that only if retaliation is the determining factor could they decide for the plaintiff.
This may seem like splitting hairs, but the opposite is the case. Most employers come up with some reasonable sounding explanation for a firing. Sometimes they do so right away, and sometimes after suit is filed, but most employees can be accused of something that violates a policy. (In this case it was “insubordination” and a bad attitude among other things – both are consistent with someone frustrated over having her complaints of sexual harassment ignored.) The adoption of the “motivating factor” standard is a big step forward.
