Posted by marykeating on June 26, 2011 under Sex-based discrimination | 
In the wake of the Supreme Court’s refusal to allow an enormous class action to proceed against Wal-Mart, representatives of employees and employers are evaluating its message. Justice Scalia’s pointed criticism of the plaintiff class’s approach intrigues some management representatives. The plaintiffs argued that by giving almost unfettered discretion to male managers to hire, pay and promote, Wal-Mart ensured an old boy’s club to flourish. The Supreme Court rejected this idea completely, saying that without a company-wide policy of discrimination, the class could not prove its case.
Now some advisers are contemplating whether to recommend more discretion and less top-down control, in the interest of avoiding class discrimination complaints. Others are not so sure.
A healthy corporate culture is imposed from, and rewarded from, the top. Nicely worded statements in the employee handbook are worth nothing if they have no backup. A manager who is permitted to discriminate, treat his employees like dirt, and look the other way when racial or sexual harassment pervades the workplace has no incentive to change his ways. If the behavior goes too far and the company is sued, however, the particular victims of this person’s discrimination do not have to mount a class action. One, two, or five people suing the company for discrimination costs less than a class action to defend, but is not something any employer courts. A maverick manager defying the company does more harm than simply inviting lawsuits. Morale suffers, some good employees leave the company, and sick leave usage rises as the miserable employees take time off for stress-related ailments. Fettered discretion is much smarter.
Posted by marykeating on June 24, 2011 under Sex-based discrimination |
By a 5-4 decision, the Supreme Court reversed the certification of a class action against Wal-Mart brought by women claiming to have been deprived of promotions and raises. The class of women affected numbered about a million and a half. The Supreme Court rejected the Plaintiff class’s theory that a culture of discrimination pervading Wal-Mart, and the discretion that individual managers were given over pay and promotions, worked together to keep women employees on the lower rungs of the ladder. The majority opinion denied that there was enough evidence to show that the company had a policy of discrimination; therefore, there was not enough commonality to allow the case to proceed as a single class of similar people. Justice Scalia held; “Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.”
While a decision in favor of Wal-Mart was expected, the majority opinion went out of its way to deride the statistical evidence that starkly showed the disparity between male and female advancement and pay. When a court hears an appeal, it is ordinarily supposed to decide the legal issue before it. Sometimes the legal issue is whether the judge below had enough evidence to rule in favor of one side. More often the legal issues focus on whether the jury was properly instructed on the law, or whether the wrong done to the plaintiff is something that a court can remedy.
Activist judges are often criticized for “legislating from the bench.” Instead of rendering a decision on the one issue before them, activist judges use a case as a stepping stone to announce new theories of law, when that announcement was unnecessary to the decision.
The current Supreme Court has certainly been engaging in activism as when, for example, it decided that corporations had free speech rights. In this Wal-Mart case, too, Justice Scalia attempts to undo long-standing discrimination proof standards. A well-known Supreme Court watcher noted the pro-corporate stance of the majority, indicating a possible constitutional right to a jury trial of each claim for damages. It is of course too early to know if the words will be adopted by courts when they are hearing cases not involving class action suits.
Posted by marykeating on June 18, 2011 under Race-based discrimination |
A recent case from the local District Court, just affirmed by the Fourth Circuit (the opinion was by retired Justice O’Connor), emphasizes the difficulty of establishing discrimination in workplaces where the discrimination takes the form of “death by a thousand cuts.” A Haitian worker, Geraldine Lauture, alleged that she was disciplined more severely than white employees for her infractions, particularly after an altercation with a white worker. But the employer hospital showed that some white employees had been given the same discipline for the same infraction, and therefore a finding of discrimination was impossible. The District Court stated it this way: “a consideration of the whole record, and not simply of individual cases within it,” allowed the employer to show that certain white employees, who may not have been known to the plaintiff, were also disciplined with the same measures.
The Court further refused to engage in a factual inquiry whether the errors the hospital said the employee made were really made. The hospital “is not required to conclusively substantiate her poor performance, only that it reasonably believed her performance to be deserving of discipline.”
We often see employers papering the files of employees before terminating them. This is good practice, it forces employers to deliberate over their decisions, and ideally precludes discriminatory decisions on demotions, discipline and termination. On the flip side, it provides a safety hatch for biased supervisors. All they have to do is write up the employee for infractions, real or imagined, and they insulate themselves from charges of bias, as federal courts routinely shrink from investigating too deeply. With the recent Supreme Court decision on the “cat’s paw,” there is still an avenue to investigate the bias of the person providing the write-ups, but it is not enough to show that the allegations were untrue.
Posted by marykeating on June 14, 2011 under disability discrimination |
Last week the EEOC held a meeting to discuss employers’ accommodations of disabilities by offering leaves of absence or more lenient sick time policies.
Before Congress amended the Americans with Disabilities Act to counter extremely narrow court interpretations, it was commonplace for courts to hold that attendance was an essential function of most jobs. Therefore disabled employees who could not meet the standards for attendance, especially those not covered by the Family and Medical Leave Act, were often denied a remedy in court. This result held despite the EEOC’s guidelines urging employers to offer paid or unpaid leave as an accommodation to a disabled worker.
Given the accelerating use of technology, and the strides taken to separate employees from a central workspace, the requirement of on-time attendance is no longer essential to many jobs.
Indeed, attendance in a specific place is often not required; many employees have no office other than their homes or cars, and many others can competently perform their jobs at least at times from home. Depending on whether the employee works in a team or mostly alone, the on-time requirement may be arbitrary, where the disability itself, or the need to attend doctor’s appointments, prevent regularly arriving at 9:00 a.m. The use of across the board pronouncements about attendance therefore has to be replaced with an in-depth look at the actual job requirements, and the ability to accommodate a disabled worker’s needs.
The EEOC takes a critical look at employers using “no fault” attendance policies, in which a certain number of occurrences, or strings of absences, leads to termination, no questions asked. While the policy itself does not contravene the law, a refusal to reconsider it for a disabled worker can be an ADA violation. In addition, the EEOC considers that policies that automatically sever an employee who cannot return to work within the 12 weeks allowed under the FMLA may be violating the ADA. The ADA’s requirement of discussing the issue, and trying to arrive at a “reasonable” accommodation trumps the hard and fast rules.
Posted by marykeating on June 4, 2011 under Discrimination in employment |
Here is an enlightening collection of amazingly blatant incidents of workplace discrimination. Good for a few gasps, this was written from the point of view of a managing consultant pointing out how costly discrimination can be.
http://rapidlearninginstitute.com/hrcafe/top-5-criminally-stupid-managers/?utm_source=The+HR+Cafe+Blog&utm_medium=email&utm_campaign=8bb3862d9b-RSS_EMAIL_CAMPAIGN_HRCAFE
Posted by marykeating on June 3, 2011 under Wage and hour issues |
High school and college students often search out internships as a way to break into a field. Some schools require internships, as a way of preparing their students better for “the real world.” These days, lots of people are offering their services as “interns,” whether they are associated with schools or not, in the hopes of turning unpaid labor into a real job.
Taking advantage of these offers is tempting, but a private sector employer has to offer an educational opportunity to the intern, not just take advantage of free labor. A person’s offer to work for free does not insulate the employer from the obligation to pay at least minimum wage, unless certain criteria make the job a true internship.
The Department of Labor’s fact sheet offers guidance:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
The Department of Labor is concerned about employers bringing on an “intern” who is in reality a probationary employee, or someone who allows the employer to lay off a paid worker to do the same work. The intern may not complain, since he or she probably volunteered for the resume value of the internship, but the Department of Labor does have some enforcement teeth, and has been hiring investigators.
Employers can use interns to increase the enthusiasm level of the workplace, allow employees to enjoy the process of instructing young people in the world of work and the specific workplace, and engender good will with the interns themselves and the schools they come from. Although the interns can accomplish some necessary tasks, though, the truly exempt intern will probably cost as much as he or she contributes in the short run.
