Discrimination and Harassment

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A previous post discussed a huge jury verdict for an employee who was harassed and mistreated at work due to her religion.  The lesson:  harassing an employee, subjecting her to a hostile work environment, and retaliating against her for complaining about harassment are all wrong, illegal and expensive.

A decision handed down yesterday by the federal appeals Court covering Georgia, Alabama and Florida has made that point again.  In doing so, it further explained that retaliating by creating a hostile work environment for employees who complain about discrimination also violates Title VII — and is also wrong, illegal and expensive.

Late last week, a jury in Missouri awarded $5 million in punitive damages to a woman who proved she was subjected to a hostile work environment because she converted to Islam.

According to published reports, the woman, who was a network technician for a telephone company, had been in her job for six years when she converted to Islam in 2005.  Soon after converting she was subjected to name-calling (such as “terrorist”) and being told she was “going to hell” by co-workers and managers.  A manager also pressured her to remove the hijab (head scarf) she wore to comply with her religion and even grabbed it off of her head one time.  This behavior went on for 3 years. 

You may have seen that the EEOC recently released new guidance on how employers should use criminal background checks.  Specifically, the EEOC expressed its concerns that use of background checks may, in some instances, violate Title VII of the Civil Rights Act of 1964 (“Title VII”).  Let’s examine the EEOC’s position and explain why this new guidance is a particularly aggressive move.

The EEOC’s guidance shows its concern over whether employer use of criminal background checks creates a “disparate impact” on race and national origin.  As you may know, employers can be liable for discrimination under a disparate impact theory when an otherwise neutral employment practice or policy has a disproportionately adverse effect on members of a protected class.  The EEOC’s position is that criminal background checks might unlawfully “screen out” members of a particular race or national origin.  However, there are at least three reasons why the EEOC’s position is particularly aggressive – and is troubling for employers.

If you think getting a federal agency like OSHA to approve your medical questionnaire form will protect you from violating the Americans with Disabilities Act, think again.  Whirlpool Corporation learned this lesson the hard way – but their hard lesson can be useful to you.

In a recent case in Ohio (Miller v. Whirlpool Corp.), Whirlpool had created a medical questionnaire in response to an accident that resulted in an OSHA safety violation.  It narrowly believed that satisfying OSHA’s requirements and protecting the safety and health of its employees were its only concerns.  However, the questionnaire included invasive medical questions such asking employees to identify specific mental or physical illnesses or accidents, the date of onset, and all medications the employees were taking.  The Ohio court had little trouble concluding that the questionnaire was an improper disability-related inquiry because it intends to reveal or necessitates revealing a disability.

We often hear that certain employer actions are “illegal.”  Sometimes employees think so, sometimes its supervisors, and occasionally its even HR professionals (or even non-employment lawyers dabbling where they shouldn’t.)  While some employer actions are legally prohibited, below are a few actions often thought to be illegal that are actually legal.  Of course, these actions are often terrible ideas — and easy ways to get sued.

Organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to establish federal and state laws that specifically prohibit discrimination in employment based on a person’s weight.  According to a NAAFA report from 2007, the likelihood of weight-based employment discrimination is 12 times more likely for overweight adults, 37 times more likely for obese persons, and 100 times more likely for severely obese adults.  Yet to date, no federal legislation exists that specifically prohibits discrimination based on weight, and only one state (Michigan) and a handful of cities have passed laws that make weight-based discrimination illegal. 

The California legislature recently passed a bill prohibiting employers – with some specific exceptions – from obtaining and using credit reports to screen candidates and employees. Check out this report at Law360. California becomes not the first, but the sixth state to have passed similar legislation, joining Hawaii, Washington, Oregon, Illinois and Maryland. Even more states are considering similar restrictions, and there’s even a proposal before Congress that would do the same thing on a national level. What else? Oh, the EEOC takes the position that the use of credit reports may be biased against minorities and females. Here’s the EEOC’s official take. So, not only may using these reports be unlawful in many states, but you could also face charges of discrimination over the use of credit reports. Finally, don’t forget that the bankruptcy code, which applies nationwide, prohibits an employer from discriminating against an employee on the basis of bankruptcy – basically, you can’t fire someone solely because of a bankruptcy, whether your business is a financial institution or not.

You may have seen a recent news item about a woman who claims her supervisor told her to “change your bra, or you don’t have a job.”  No, this is not one more episode of sexual harassment in the workplace.  Instead, it is a somewhat awkward, perhaps amusing (at least for those not involved), definitely unique workplace situation – another example of why being an HR professional is never boring. 

The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a new strategic plan for 2012-2016, which is designed to maximize its resources.

The new strategic plan contains two aspects that are of particular interest to HR professionals:

(1)    the EEOC will focus its efforts on systemic discrimination cases rather than individual discrimination cases; and

(2)    the EEOC will focus its education and outreach efforts on small and new businesses.