EEOC Releases Report Addressing Workplace Harassment

June 2016

Thirty years after sexual harassment was recognized as a form of illegal sex discrimination in Meritor Savings Bank v. Vinson, workplace harassment remains a persistent problem: in fiscal year 2015, approximately one-third of charges of discrimination filed with the EEOC included an allegation of harassment, and likely most instances of harassment are not reported, either internally or to a government agency.  To address this issue, the EEOC released a report on harassment in the workplace, stating the business case for preventing and stopping harassment—including legal costs; employee morale, health, and productivity; turnover; and reputational harm—and provides some recommendations for doing so. 

The report addressed a number of issues relating to harassment prevention and correction, including trainings, policies, leadership and accountability.  It is important to both clearly define prohibited behavior, and create an environment in which employees feel comfortable coming forward to report any harassment before it gets to the point where legal action may be taken.  According to the report, harassment trainings that focus too much on avoiding legal liability have not been effective in preventing and stopping harassment, but suggested new and different approaches to training, such as bystander intervention and general respect and civility trainings, which may prove more successful.  Of course, any training should take into account the specific workforce and workplace, as what may be effective for one employer, may not be for another.

The report goes on to identify environmental risk factors that may lead to harassment.  Of course, every workplace will have at least some of these characteristics, but if a company has several, it might want to focus on minimizing the risk that these situations can create.  The identified risk factors include:

·         Homogenous workforces;

·         Workplaces where some workers do not conform to workplace norms;

·         Cultural and language differences in the workplace;

·         Coarsened social discourse outside the workplace;

·         Workforces with many young workers;

·         Workplaces with “high value” employees;

·         Workplaces with significant power disparities;

·         Workplaces that rely on customer service or client satisfaction;

·         Workplaces where work is monotonous or consists of low-intensity tasks;

·         Isolated workplaces;

·         Workplace cultures that tolerate or encourage alcohol consumption; and

·         Decentralized workplaces.

For assistance in preventing and stopping workplace harassment, including reviewing policies and procedures, conducting trainings, or minimizing risk factors,  contact James B. Sherman at jasherman@wesselssherman.com or by phone at 952-746-1700.

EEOC, Department of Justice Make Transgender Equality a Priority

June 2016

Discrimination against transgender individuals in their workplaces, as well as in the public, is an issue many companies are currently dealing with.  Especially with the issue of bathroom access, many employers struggle to balance the privacy concerns of cisgender employees, some of whom may be wary about sharing restrooms, with the rights of transgender employees, for whom using a restroom that conforms with their gender identity is an important aspect of their transition.  Although Title VII of the Civil Rights Act of 1964 does not explicitly outlaw discrimination on the basis of gender identity, both the EEOC and the Department of Justice have taken the position that companies and laws that restrict transgender individuals’ access to public restrooms such as North Carolina’s controversial bathroom law, violate the law.  North Carolina and the Department of Justice have both filed federal lawsuits to determine whether the law is discriminatory. 

The EEOC has been actively seeking to protect lesbian, gay, bisexual, and transgender employees under federal anti-discrimination law’s sex discrimination provisions, as part of the its 2013-2016 Strategic Enforcement Plan.  Recent actions include extracting a $140,000 settlement from a Minnesota employer for allegedly complying with a client’s request to remove an employee from the client’s account on the basis of the employee’s gender identity, as well as publishing a new fact sheet reminding employers of its position that it is a form of sex discrimination to deny an employee equal access to a common restroom corresponding to the employee’s gender identity, under Title VII. 

The fact sheet clarifies that a person does not need to undergo any sort of medical procedure in order to be considered a transgender man or a transgender woman.  It also explicitly states that contrary state law, such as North Carolina’s bathroom law, will not be a defense to a discrimination case under Title VII.  The Minnesota Supreme Court has previously held in Goins v. West Group that the Minnesota Human Rights Act—which specifically prohibits discrimination on the basis of “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness”—does not require or prohibit restroom designation according to self-image of gender.  However, the legal landscape has changed considerably since the Goins decision, and employers wishing to avoid the wrath of the EEOC are well advised to allow employees to use the facilities that correspond with their gender identity.  The EEOC would not find it acceptable for employers to restrict transgender employees to a single-occupancy restroom instead of common restrooms available to other employees, but an employer may certainly provide a single-occupancy restroom for any employee who might choose to use it.

For assistance in dealing with this emerging area of workplace law, contact James B. Sherman at jasherman@wesselssherman.com or by phone at 952-746-1700.

EEOC Releases Proposed Rule Governing Workplace Wellness Programs

April 2015

By: James B. Sherman, Esq.

On April 16^th the Equal Employment Opportunity Commission issued proposed amendments to its ADA regulations to address the growing use of workplace wellness programs. The EEOC will now entertain comments submitted by any interested parties, before issuing its final rule on the subject.  Therefore, employers currently using such programs to promote employee health while reducing insurance costs, as well as anyone contemplating the use of a wellness program in the future, should familiarize themselves with the proposed rule and take issue with them through timely submitted comments. 

A typical wellness program can include things such as nutrition classes, gym access, and weight loss or smoking cessation programs.  Some of these programs include health risk and biometric screening.  Additionally, some employers provide incentives to encourage participation, or for reaching certain health goals.  Although many employers who provide these programs are mindful of the Affordable Care Act when designing them, they may overlook other laws that can be implicated. In particular the Americans with Disabilities Act (ADA) generally prohibits employers from making disability-related inquiries or requiring medical examinations.  However, there is an exception for voluntary medical examinations and medical histories that are part of an employee health program available to employees at the work site.  The proposed regulations assume that at a certain point employer incentives for participating in a wellness program may be so substantial that they render an employee’s submission to disability-related inquiries or medical examinations as part of the program, involuntary and therefore unlawful under the ADA.

The EEOC states that its proposed regulations attempt to strike a balance between allowing some employee incentives for participating in their employer’s wellness program, while limiting the extent of the incentives so as to prevent what it terms “economic coercion” that could essentially force employees to disclose medical information involuntarily:

·         Incentives for voluntary participation in a wellness program that includes disability-related inquiries or medical examinations are capped at a maximum of 30% of the total cost of employee-only coverage (as a reward or a penalty).

·         “Voluntary” means that (1) employees are not required to participate; (2) coverage under any group health plan will not be denied or limited for non-participation; and (3) no adverse action or retaliation will be taken.

·         Notice regarding the medical information must be given to employees.

·         Medical information can only be disclosed to employers in the aggregate, except as needed to administer the health plan.

This proposed rule will be published officially in the Federal Register on Monday, April 20, and public comments will be accepted for 60 days, until June 19, 2015.

For a copy of this proposed rule, or for assistance with assessing any impact these regulations would have on an existing or planned wellness program, contact Attorney James Sherman, at (952) 746-1700, or email jasherman@wesselssherman.com.

Preferential Treatment of Minority Workers Is Still Unlawful Workplace Discrimination

November 2014

By: James B. Sherman, Esq.

When people think of workplace discrimination, they imagine an employer that disfavors applicants or employees on the basis of any number of legally prohibited grounds – e.g. race, sex, color, creed, religion, age, disability, etc. However, a recent class action lawsuit brought against household retail giant Bed Bath & Beyond, goes against these conventional notions of discrimination. The complaint accuses Bed Bath & Beyond of giving preferential treatment to its warehouse workers who are young, male and Hispanic. While the lawsuit may ultimately be found by the court to be without merit, the theory on which the plaintiffs base their case holds lessons for employers.

Some may think that giving favored treatment to minorities, or to a particular minority, would not violate workplace discrimination laws but would actually promote the objective of eliminating discrimination against minorities. But favoring any group always has the side effect, whether or not intended, of disfavoring other groups. This point is easy to grasp in the case of younger employees being favored over older individuals. After all, other than in Minnesota (where younger individuals between the age of majority and 40 are equally protected from age discrimination as are persons 40 and older), the age discrimination laws are not aimed at protecting younger individuals. The same can be said of favoring males over females – it is clearly gender discrimination.

But in a case such as that against Bed Bath & Beyond where it is also alleged that Hispanics (a minority) are given preferential treatment over others, if the allegations are proven true, the side effect would be that all other races, genders, persons of other national origins, etc. would necessarily be disfavored or excluded in relation to Hispanics.

In the 1990s the infamous Daniel Lamp case involved the EEOC in Chicago, bringing a class action race discrimination lawsuit against a small manufacturer, whose workforce was comprised of roughly 98% minorities. The problem for the EEOC was that the vast “majority of the minority,” if you will, were Hispanic individuals whereas the demographics of the area leaned more toward an African American populous. At the time, the case of an employer being accused of discrimination when nearly all its employees were “minorities,” was so novel that it received national media coverage on 60 Minutes. All these many years later the Bed Bath & Beyond case seems no less novel, other than its allegation of gender and age bias.

Of course employers rarely go intentionally looking for such troubles when it comes to hiring, etc. However, if not careful they can wind up in the same pickle as Daniel Lamp and Bed Bath & Beyond. For example, imagine that you have two employees and one turns out to be a superstar while the other barely manages to keep from being fired for poor performance. When an opening occurs, if both employees recommend an interested relative or friend, common sense tells you that you prefer more employees who are like your superstar, not your dud. Just as NFL teams all started drafting offensive lineman who looked (and weighed) like the dominant Washington team, famous “hogs,” you look to replicate that superstar employee. This may be perfectly fine unless your ideal employee begins to come from the same age group, gender, race, nationality, etc.

In sum, preferring one group – even a minority group – amounts to unlawful discrimination because it necessarily excludes or disadvantages other, equally protected groups. While few would consciously give preferential treatment to any class of people due to age, race gender, etc., it can sneak up on the unwary.  It is much easier to follow the practice of not treating any class of individuals poorly, than it is not giving preferential treatment to those with whom your experiences have been favorable. The best practice, then, is always to pursue equal treatment.