Recently in Discrimination and Unlawful Harassment Category
Now, I'll admit it. I didn't read the whole report. Blogging has got me all messed up. I can't read anything that's more than 250 words. So, I just stopped at the part in the report where it said that total charges dropped by 5,000 in FY14. So, I didn't get to the part of the report that credits this blog, in particular, for the drop in charges. But, I assume it's in there somewhere.
I also wanted to give a nice shout-out to the EEOC's national mediation program, in which I participate as a pro-bono mediator. Of the 10,221 mediations conducted in FY14, 7,846 of 'em settled. Based on the math I just did in my head, that's a success rate of 97%. Ok, 77%. But, that's still pretty darn good. Shaq's free throw percentage is jealous.
Overall, the EEOC set 14 targets for itself, of which 7 were met and 7 were exceeded. So, kudos -- kids still say kudos, right? -- to the EEOC.
Finally, here are the results from Monday's WWHRD (What Would HR Do?) where I asked the following question: If your employee posted a racist, angry racist Ferguson tweet, how would you recommend that the company respond?
- Termination 37%
- Suspension 31%
- Warning 17%
- Nothing 6%
- Other 8%
And, I'm pleased to report that 100% of you loved the poll!
Three nights ago...
Eric: How many bags of Halloween candy do you think we need this year?
Wife: Our neighbors said last year they had ten.
Eric: Ten?!? *** rubs belly of golden goose ***
Wife: Yes, and the kids have your costume all picked out. It's a Teenage Mutant Ninja Turtle?
Eric: What's that now?
(Wife leaves room and returns with costume and four different-colored headbands)
Wife: You get to pick which Turtle you want to be?
(Eric squints, rubs temples raw, remembers last year's costume)
Can you believe that I practice law...and get paid for it?
Anyway, here's the The Employment Law Blog Carnival: Halloween Edition, with a collection of the best recent employment law blog posts. Special thank you to Mark Toth, Chief Legal Officer at ManpowerGroup, NA, for hosting this month at The Employment Law Blawg.
No, you can't have my costume.
Coming up during this term, the Supreme Court will decide seven cases relating to HR compliance. To put this into proper perspective, if you were to award a point for every forthcoming Supreme Court decision, that would be seven more points than the entire New York Giants team scored against the Philadelphia Eagles on Sunday night.
[Yep, still basking in the glow].
Anyway, for more on these important cases affecting your workplace, Philip Miles has you covered here at Lawffice Space.
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And speaking of workplace goodies, have I mentioned the free event were are hosting next month entitled, "Social Media @Work, The #BalancingAct between Employer and Employee"? Well, other than the five other times I've mentioned it. Ok, indulge me. Mark your calendars for November 12, 2014 from 8:45-10:00 AM. And get over to the National Constitution Center in Philadelphia. (We'll even feed you breakfast at 8:00). We're talking me and three key decisionmakers from the EEOC and NLRB gabbing away about stuff you can use to proactively protect your workplace.
But you'll need a ticket, and they are limited.
More details here.
I'm just saying, what if you could attend an event -- a free event, with breakfast -- and you get to hear me speak for an hour and fifteen about social media in the workplace and other hot workplace issues, and then grill me during a Q&A?
That would suck, right? Because, apart from the breakfast, who wants to hear me speak for an hour and fifteen minutes?
So, how about something better -- couldn't be worse, amirite?
How about a panel discussion featuring, oh, I dunno...
Well, hey now! Direct access to three of the most influential workplace decisionmakers in our government. And I'm the moderator. (Oh, alright! You get the free breakfast too).
Is your heart racing? Your pulse quickening? That's not the morning coffee you're feeling.
Geared to human resources professionals, business owners, and in-house counsel, this incredible collaboration will dish at an event entitled "Social Media @Work - The #BalancingAct Between Employer and Employee." We'll cover a variety of hot topics such as:
- Establishing social media policies that withstand legal scrutiny
- Exploring the impact of social media on hiring decisions
- Determining how far is too far when it comes to sharing workplace information online
Beyond social media, each speaker will address other emerging workplace issues at their respective agencies and take your questions. And, because I love you guys, this program has been approved for 1.25 HR/General recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.
You want in on this? Yeah, you do...
The #BalancingAct Between Employer and Employee
Wednesday, November 12, 2014
Breakfast: 8 a.m.
Program: 8:45 a.m. - 10 a.m.
National Constitution Center
525 Arch Street, Philadelphia, PA 19106
Both before and during the event, follow along and tweet using #BalancingAct
Halftime of the Eagles-Colts game. So, I only have 15 minutes to crank this one out. Here we go...
Two new bills in the House to watch.
1. The Litigation Oversight Act of 2014: This bill would amend Title VII of the Civil Rights Act of 1964 to require the EEOC Commissions to decide by "majority vote whether the Commission shall commence or intervene in litigation involving multiple plaintiffs, or an allegation of systemic discrimination or a pattern or practice of discrimination."
I give this somewhere between between a snowball's chance in hell and hell freezes over chance of passing.
2. The Certainty in Enforcement Act of 2014 would also amend Title VII to allow employers "to engage in an employment practice that is required by Federal, State, or local law, in an area such as, but not limited to, health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties." The intent here is to hamstring the EEOC from scrutinizing background checks of current and potential employees.
Like my daughter in a bumper car, this too shouldn't get far.
Over the weekend, I read this CareerBuilder poll, which found that the majority of workers don't aspire to leadership roles. Here are the numbers:
One in 5 workers (20 percent) feel his or her organization has a glass ceiling - an unseen barrier preventing women and minorities from reaching higher job levels.
However, when looking only at workers who aspire to management and senior management positions, the percentage increases to 24 percent and is even higher among females (33 percent), Hispanics (34 percent), African Americans (50 percent) and workers with disabilities (59 percent).
The kicker is that only 9% of white men think there is a glass ceiling for women and minorities at their organization. The disparity in perception is startling. The actual numbers aren't any easier to swallow. According to this 2013 Forbes article, "only 1% of the nation's Fortune 500 CEOs are black. Only 4% are women. And not a single one is openly gay."
Does overt discrimination have something to do with it? I can't point to a particular study, but I'd be foolish to say no. But, this more recent article from Jonathan Segal, highlights the effect of subtle bias on the relative lack of female and minority business leaders.
More after the jump...
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*** whistles ***
The word on the street according to Kevin McGowan at Bloomberg/BNA (here $$$) is that U.S. Equal Employment Opportunity Commission Chair Jacqueline A. Berrien (D) has decided not to seek renomination to the EEOC.
Originally an Obama recess-appointment, the Senate confirmed Ms. Berrien as EEOC Chair in December 2010. Her term expired on July 1, 2014, but she is permitted to retain her seat until September 1, 2014.
With Ms. Berrien's departure, the EEOC will be left with four Commissioners: two Democrats (Feldblum, Yang) and two Republicans (Lipnic, Barker). And a kick-ass pro-bono mediator named Meyer who--- oh yeah, right, back to people who matter...
Recall that the most recent guidance on pregnancy discrimination, viewed by some as overreaching, passed 3-2 along party lines.
What will a 2-2 split mean for future EEOC guidance and enforcement? Frankly, I have no idea. I'm shocked you've made it 147 words into this blog post.
So, your Friday reward is The Cure (the band, although I did partake in the ALS Ice Bucket Challenge) and my recent "TLNT Webinar - EEO Compliance: Avoiding Discrimination in the Workplace" PowerPoint presentation.
Just email me and the EEO slide deck is yours.
The third week of April ushers in several holidays: Passover, Good Friday, Easter.
But no matter what your religion or god -- even a sacrilicious ceiling waffle -- we can all agree that the Employment Law Blog Carnival, which you can find this month at Tim Eavenson's blog: Current Employment, is the workplace glory.
This month, Tim has more posts about HR-compliance than you can count on your ten fingers. So raise your hands up to the sky and shout Hosanna! The power of the #ELBC compels you!
Or, just forget my blasphemy and enjoy the carnival.
P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. Almost as fun as a carnival. I'm still working on getting a Tilt-A-Whirl*
(*By Tilt-A-Whirl, I mean life.)
Recently, several local lawyers and I participated in a labor and employment law roundtable for The Legal Intelligencer.
Actually, the table was rectangular. But, the coffee and muffins were free, so I didn't complain.
Well, not until I dropped my pants and mooned the employee-rights lawyers on the panel. Trust me, they had it coming.
Actually, they were quite polite and articulate. So, fortunately, they edited my butt-cheeks out.
I'm a real peach.
What were we talking about again?
Right, the roundtable. We debated several topics:
- background checks
- social media in the workplace
- employee leave issues
- dating in the workplace
my 28 inch blog pythons
Here is the transcript.
Whatcha doin' two weeks from today?
Want to grab some breakfast with me? Maybe hear about what's hot at the EEOC and get a legal roadmap for managing the aging workforce?
In you're in the Philadelphia area and would like to learn more about these topics, then come on down to our offices on Thursday, April 24 at 8:30 AM for a free presentation with a complimentary continental breakfast. Lawyers can get CLE. HR credits will also be offered.
The only bad news is that you'll have to hear me flap my gums for an hour about best practices to avoid becoming an EEOC target. And since I can't seem to blog my way out of a paper bag, you can imagine how (in)articulate I'll be. Fortunately, my co-presenter from the EEOC, Mary Tiernan, will rock thy world.
Plus, my Dilworth Paxson colleagues will school you on the legal issues of which you should be aware when dealing with your older employees.
If you are interested in attending, click here for more details and to RSVP.
Mention this blog and I'll get you an extra pat of butter to go with your continental breakfast.
After all, I take care of my VIPs.
Yesterday, I read with interest Jon Hyman's post at the Ohio Employer's Law Blog about how Target has employed a 14-minute training video to help keep its workplace union free. Gawker has posted a copy of the video here. Like a bear crapping in the woods, Gawker pokes fun of the Target video. Cheesiness aside, I find it to be pretty effective.
Subaru of Wichita - 1
Local Carpenters Union - 0
And before I tell you to have a nice weekend, I'm going to ask you to save April 24 for me. On that date, along with Mary M. Tiernan of the U.S. Equal Employment Opportunity Commission, I'll be headlining a breakfast briefing at Dilworth Paxson in Philadelphia. After a few of my colleagues offer a legal roadmap for managing your aging workforce, Mary and I will address what's hot right now at the EEOC, and offer up some best practices to stay out of the crosshairs of employment litigation.
For more information about the event, click here.
Now, go on and have a nice weekend!
Has the Supreme Court's 5-4 decision in Vance v. Ball State been keeping you up at night?
*** logs IP numbers; obtains restraining orders ***
Well, ok. I can see why some of you are sour on the 2013 Supreme Court decision holding that an employee is a "supervisor" for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only if he or she is empowered by the employer to take tangible employment actions against the victim.
(See my post on Vance here).
Whether a harasser is a supervisor matters because if the harassing supervisor fires, suspends, or takes some other similar action against the victim, the employer ends up writing a huge check. Otherwise, the employer has some outs arising from the same affirmative defense discussed in yesterday's post.
deliver a proverbial football to the Vance decision groin undo the Court's decision in Vance, last week, Democrats in both the U.S. Senate and House of Representatives proposed legislation (Senate - here; House here), which would define "supervisor" to include those with authority to direct people's day-to-day work. And, according to this fact sheet, the bills would extend coverage to all federal anti-discrimination statutes.
Whether this legislation passes, take the opportunity to remind supervisors and non-supervisors alike that violations of your respect-in-the workplace will result in discipline, up to and including termination of employment.
Ah, it was a good year at the ole Handbook.
Total web traffic was up over fifty percent from 2012. And average time per visit was down over 20%, which is fine by me. I pad my important stats, while discouraging loitering.
And we got our first visitor from Uzbekistan. And the fifth most common search phrase that brought visitors to the site was "Kenny Powers."
(6th was "excuses for missing work" -- yikes!)
And, thankfully, our servers have recovered from the beating you
pervs HR/Lawyer laureates administered on the recent Facebook groping photo post. Yeah, don't worry. A little hair of the dog, and the blog is back in business.
And, to think, that post didn't even make the Top 5 from 2013. Here's what did:
5. "Feeling 'maybe overworked' is not an FMLA 'serious health condition'"
4. "Court holds that anxiety from possibly getting fired is an ADA disability."
3. "New federal bill would expand FMLA to cover part-time employees"
2. "Employee gets fired for tweeting complaints about discrimination"
1. "When a hostile work environment isn't a hostile work environment"
Dudes, thank you for making 2013 a banner year for The Employer Handbook.
Wishing you all a happy and prosperous 2014!
Yesterday, I read this opinion about a white man who claimed that he lost out on a middle school boys basketball coaching job because the school didn't like the fact that he was married to an Asian ethnic Chinese woman and they have seven mixed race children.
The plaintiff claimed that the school violated Title VII of the Civil Rights Act of 1964. The school filed a motion to dismiss, claiming that the man could not state a claim under Title VII. The school prevailed because, well, I'll let the court tell you:
The plaintiff alleges that he was discriminated against, not because of his own race, but because of the race or his wife and children. He is basing his discrimination claims on his family status. Viewing the allegations in the light most-favorable to the plaintiff, it is possible that he was treated differently from white males who did not have mixed race families. However, discrimination based on family status alone is not actionable under Title VII. Simply stated, Mr. Blasi is not a member of a protected class for Title VII purposes. Because he is not a member of a protected class, he cannot establish a prima facie case of direct discrimination under Title VII. His claims under this legal theory have no merit.
Therefore, the answer to today's QATQQ is fact.
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It's also a fact that this blog -- the one you read religiously for the compliance content, humor
and hidden satanic messages is hella-awesome! So, please vote for it today in the ABA Journal's Blawg 100 Amici contest. You can cast your vote for The Employer Handbook here, by clicking the banner to the right, or tweeting your support.