Monday, February 27, 2012

Implicit bias? Iowa?

When you think of Iowa, you think of things like corn and caucuses, but not necessarily employment discrimination.  There is a case, however, in state court that may give Iowa something else to be known for---implicit bias.

News reports concerning the case have brought attention to the theory of implicit bias which is being used to support the claims of discrimination of over 6,000 individuals against the state and its various agencies.  The theory has gained a lot of attention and support from academicians.  It is based on a test--Implicit Association Test--which supposedly has revealed that there is a preference for whites over blacks in up to 80 % of the test takers who did not consider themselves to be racist.

One unique aspect of the case is that the attorneys for the plaintiffs compiled a report concerning their investigation and conclusions.  In discussing hidden bias in the report, the attorneys gave the following example:  A supervisor who interviews an African American may make stereotyped or unfair assumptions about the individual's ability(at a subconsciousness or slightly conscious level.) The supervisor then allows the negative perceptions to influence or filter decision making during the interview or during the decision on whom to select.  (Report, p. 18)  The report goes on to state that this type of discrimination is a "formidable barrier" that all African Americans face in Iowa every day of their lives. (p. 18)

These are pretty strong words.  A finding of discrimination can apparently be based upon this area of social science coupled with statistics to prove discrimination.  Merriam-Webster defines subconscious as follows: existing in the mind but not immediately available to consciousness

What is the impact of the implicit bias theory of discrimination for employers?  Are they responsible for the subconscious motivation of supervisors and other managers?  Is there a duty to test decision makers to identify and to uncover bias that they may not even be aware of?  Assume an employer has policies against discrimination; a procedure for employees to report conduct believed to be discriminatory; training of supervisors about recognizing and avoiding discrimination; and a review of the patterns in hiring and other personnel actions, is testing to explore the subconscious necessary?  How would such testing be received by decision makers?  Is this really indicative that more than one person has acted on the subconscious motivation?  What about the actual manifestation of discrimination as encompassed in the disparate impact and disparate treatment theories?

Fortunately, the theory has not yet been accepted by any court.  Nevertheless, it serves as a reminder to employers to continue to monitor their personnel actions and to give support and meaning  to the nondiscrimination policies they have.  A decision in the Iowa case recognizing the implicit bias theory  would give new meaning to the line from the movie  Field of Dreams...Is this heaven? No, its Iowa.

Friday, February 24, 2012

On the EEOC radar: Pregnancy and caregiver discrimination

On February 15, the EEOC held a hearing where speakers addressed the issues of pregnancy and caregiver discrimination. It was the Commission's first hearing of the year. EEOC Chair Berrien stated that discrimination based on pregnancy persists in the 21st century workplace and that the EEOC is committed to insure that applicants and employees are not subjected o unlawful discrimination based on pregnancy or because of their efforts to balance work and family responsibilities.

Regarding pregnancy discrimination, the EEOC's General Counsel stated that many employers do not have policies against pregnancy discrimination. and noted that there is more direct evidence in this area than any other area.  It was noted that more pregnancy related conditions will be covered under the Americans with Disabilities Act Amendment Act,  and more people will seek and expect accommodation. The EEOC is likely to challenge policies which exclude pregnant  such as light duty under the disparate impact theory.

Caregiver discrimination is encompassed in the EEOC's concept of family responsibilities discrimination.  The focus in caregiver discrimination is whether caregivers are treated differently than employees without children or ill family members.  According to the EEOC, caregivers are comprised of pregnant women and men and women who care for spouses, children, parents, or other individuals or friends.

Caregiver discrimination cases can involve disparate treatment of caregivers based on gender, race or national origin under Title VII.  Under the ADA, the EEOC views discrimination as encompassing situations where a worker is treated less favorably because of caregiver responsibilities for an individual with a disability

One panel at the hearing addressed the topic: "The Way Forward: Implications for the Future."  Noticeably absent from the panel was any representative of employers to give that  perspective or to discuss challenges faced by employers.

There is no federal statute that recognizes caregivers as a protected class.  The EEOC hearing and the speakers' focus on the need for protection of caregivers raise the prospect that the EEOC will adopt broad interpretations of Title VII and the ADAAA,  emphasizing disparate treatment, to expand protection for individuals in this group.

Employers need to be aware of the emphasis placed on caregiver and pregnancy discrimination.  A review of policies and procedures is a must.  If there is no inclusion of pregnancy discrimination under prohibited practices, it should be added.  Policies which may be scrutinized include light duty assignment, attendance, personal time off, and other policies that impact the circumstances where an employee may request time off during the day for purposes of caregiving.  Employers need to see if they apply these policies equally to all employees, or if they make exceptions.  If exceptions are made, employers need to determine why and the basis for the exceptions.

Whether or not the EEOC's expansive interpretation of caregiver protection will ultimately be adopted by courts remains an open question.  Nevertheless, employers need to be aware that these two areas are now  on the EEOC's radar.  Between the FMLA obligations and the EEOC's expansive interpretation of its concept of family responsibilities discrimination, employers must be aware of this evolving area.  Consistency in the application of policies will remain important.

Tuesday, February 14, 2012

Welcome to the Carnival of Employment Blogs: Motown Edition

Motown; say the word and try not to have a song come to mind.  For over a decade, Motown embodied a spirit which lifted a city.  This month's edition is inspired by and dedicated to the Motown legacy.

Ball of Confusion, The Temptations

Jon Hyman of the Ohio Employer's Blog tries to help unravel the NLRB's latest venture into the realm of social media.

Come See about Me, The Supremes

Dawn Lomar at Customer Expressions examines criminal background checks and need for employers to make sure that they are comprehensive and nondiscriminatory.

You Keep me Hangin' On, The Supremes

Heather Bussing from HR Examiner explores the  issue of disparate impact and the use of cell phones in the hiring process.

Motown consisted of an original house where a photography studio was transformed into a recording studio.  Ultimately, seven neighboring houses were purchased and housed the company's various departments including its "charm school" which trained the singers how to dance and to perform.

Get Ready, The Temptations

Jewell Lim Esposito at Employee Benefits Unplugged alerts employers about the IRS pilot project to target company's with more than 2500 employees for the audit of their retirement plans.

I Heard it Through the Grapevine, Marvin Gaye

Dan Schwartz of the Connecticut Employment Law Blog examines a recent federal court decision involving First Amendment rights in the workplace.

Reach Out, I'll be There, The Four Tops

Jessica Miller-Merrell at Blogging4Jobs discusses the challenges that HR professionals face as they perform their jobs.

110 Top Ten hits were recorded in Studio A in the 1960's. The Marvelettes had the first #1 hit for Motown with "Please Mister Postman."

Knocks Me off My Feet, Stevie Wonder

Randy Enochs at the Milwaukee Employment Lawyer Blog examines a recent decision addressing whether a migraine headache is considered a disability under the ADA.

Mercy, Mercy Me, Marvin Gaye

Ari Rosenstein at CPEhr Small Biz HR Blog addresses how employers avoid the surge of discrimination suits.

Too Busy Thinking About My Baby, Marvin Gaye

Bob Fitzpatrick at Fitzpatrick on Employment Law examines a decision from the 11th Circuit concerning whether FMLA protection applies to a pre-eligibility request for post-eligibility maternity leave.

The Funk Brothers--Motown's studio musicians--played on more #1 records than the Beatles, the Rolling Stones, Elvis Presley, and the Beach Boys combined.  They were awarded a Lifetime Achievement Grammy in 2004.  James Jamerson was inducted into the Rock and Roll Hall of Fame in 2000; he is considered to be the greatest bass player.  Benny Benjamin(drummer) was inducted in 2003.

Treat Her Like a Lady, The Temptations

Robin Shea from Employment and Labor Insider presents a bouquet of Valentine's Day sexual harassment cases.

Nothing's Too Good for My Baby, Stevie Wonder

Donna Ballman at Screw You Guys, I'm Going Home attempts  to understand a federal judge's explanation of how lactation and nursing cannot be subjects of sex discrimination.

I'll Be Doggone, Marvin Gaye

Phil Miles from Lawffice Space examines  unpaid interns and the scrutiny which is occurring under state and federal wage and hour laws.

Don't You Worry "Bout a Thing, Stevie Wonder

Eric Meyer of The Employer Handbook reviews the so-called privacy of employee emails.

Motown truly was the "Sound of Young America."    Motown had a number of different labels including Motown, Tamla, Gordy, Soul, and Rare Earth.  The company left Detroit in 1972 for L.A.  The company regained the heights it had while in Detroit.

That's it for the February Carnival of Employment Law Blogs.  It's time to get back to work; halftime's over.

Sunday, February 5, 2012

Limitations period in employment contracts in Michigan

In an unpublished decision, a panel of the Michigan Court of Appeals has upheld the validity of a six months limitations period in an employment contract.  Donald v. Wolverine Human Services, No. 301184, 12/27/11.

The clause provided:  Employee agrees that no action, including claims of discrimination, will be brought more than 180 days after it arises, and that any longer statutes of limitation are waived.

The employee argued that the provision violated federal law and specifically argued that it violated her rights under 42 U.S.C. section 1981.  The panel disagreed and noted that the statute said nothing about prohibiting a shortened period of limitations within which to sue.  Since the provision is applicable to all persons who sign the employment contract without reference to race, it is not discriminatory.

The courts in Michigan have consistently upheld the employer's inclusion of a limitations period in contracts shorter than that established by statutes covering state law discrimination and employment claims.  In Clark v. Daimler Chrysler, 268 Mich App 138 (Mich App 2005), the court held a six month limitations period is neither inherently unreasonable nor so extreme as to shock the conscience.  As a result of this line of decisions, many employers are adopting the six month limitations period.

A word of caution:  the EEOC does not share the Michigan courts acceptance of the shorten limitations period as it may pertain to Title VII claims.  As the EEOC has become more aggressive in its enforcement of the various federal statutes, employers should expect a challenge to any attempt to bar a Title VII actions on the basis of shortened limitations period.

Saturday, February 4, 2012

The birth of a retaliation case: oops, we didn't really mean that...

ABC News has reported the interesting case of an employee who asked to have time off because of a pregnancy and was told that since she did not have leave available under the FMLA, she would be treated as a voluntary resignation when she did not report to work.  The employee recorded the conversation without the company's knowledge.   Her attorney contacted the company which changed its position and granted her leave to have the baby.  The women has filed charges with the EEOC and the Connecticut Commission on Human Rights.

So, the woman had her baby in January and presumably is back to work.  Now from the company's perspective, it is looking at a very delicate situation. There are not too many employers who would be happy with employees who secretly tape conversations.  Absent a policy/rule prohibiting secret recordings, what recourse does an employer have?  States are not uniform in the approach to this issue: some states require the two parties to the conversation to consent while others require consent from only one party.  Connecticut is a state that requires consent two parties.

Do they take action based on the recording in the absence of a policy prohibiting it?  Is this an invitation to a retaliation case?  What is the realistic prospect for everyone to simply start over and to be "friends?"

This facts highlight why there has been such a dramatic increase of retaliation charges and cases.   An employee has filed a charge, and an employer is in a difficult legal position.  While filing a charge does not give an employee immunity from having to perform or unlimited job security , it often has that effect.  It would not be surprising to hear that the employee has left the company after settling her charges.