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Image by Max Goldberg via Wiki Commons
Yesterday morning, NBC News released the complete report into its months long investigation of Matt Lauer.

I was astounded by NBC’s transparency. It is extraordinarily rare for a private company to release an internal investigative report of one of its employees. In fact, it runs counter to conventional wisdom that harassment investigations should be kept as confidential as possible under the circumstances. Perhaps the combination of NBC’s status as a news agency and the high profile nature of the allegations spurred its decision.

According to the report:
  • “The investigation team found credible the four complainants’ allegations that Lauer engaged in inappropriate sexual behavior in the workplace.”
  • “The team also found credible the statements of NBC News and Today Show leadership, News HR and others in positions of authority in the News Division, as well as numerous other News and Today Show employees, that they did not know about his behavior.”
  • “The investigation team also found that Lauer frequently engaged in sexual banter or joking in open working environments with other employees present or in a position to overhear his comments. While the nature and frequency of that conduct did not rise to the level of creating a hostile work environment, and no witnesses described it as such, it may have contributed to an atmosphere where some employees who may have had concerns assumed nothing would be done to address them, particularly given Lauer’s perceived importance to the News Division.”
  • “The investigation team does not believe that there is a current widespread or systemic pattern of behavior that violates Company policy or a current culture of harassment in the News Division.”

Despite the lack of a “systemic pattern of behavior” or a “current culture of harassment,” the report made the following three recommendations, each of which falls under the category “Best Practices” for any employer:
  1. Improve Training  — “Although a vast majority of the News Division completed the mandatory online “Preventing Workplace Harassment” training when it was last offered, the investigation team recommended interactive in-person training for the entire News Division shortly after the investigation began in order to jump start a shared knowledge of behavioral expectations in the workplace and a deeper understanding of complaint reporting channels and investigation procedures.”

  2. Improve Communication from Management — “It is also important that News Division leadership consistently set the tone from the top by emphasizing as often as possible the Company’s commitment to a safe and respectful workplace, a willingness to take appropriate action no matter who is involved, and no tolerance for retaliation.”

  3. Improve Use of Reporting Channels — “Within the News Division, steps should be taken to improve the visibility of News HR and their familiarity with the employee base. Employees need to develop confidence that News HR offers a safe space to report concerns and will act as employee advocates when necessary and appropriate. We also recommend considering whether additional independent reporting channels should be established for the News Division specifically until the level of comfort with existing internal channels improves. Of course, the investigation team will remain available to hear concerns from News Division employees at any time.”

You can read the full report here [pdf].
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Photo by Pexels on Pixabay
Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.
When an opinion starts with this quote, you know that the plaintiff is not going to have a good day.

What happened in Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. 4/30/18) to garner this tough life lesson from the court?

Victor Sepúlveda-Vargas worked as an assistant manager in a Puerto Rico Burger King owned and operated by Caribbean Restaurants. While making the nightly bank deposit, Sepúlveda was robbed at gunpoint, hit over the head, and had his car stolen. As one might expect, Sepúlveda did not come out of the incident mentally unscathed. In fact, he suffered post-traumatic stress disorder and major depression.

Caribbean Restaurants requires its managers to work rotating shifts, and considered the requirement an essential function of the job—to spread among all managers the burden of working undesirable shifts.

Those rotating shifts would have required Sepúlveda, upon his return to work, from time to time to work the night shift on which he was robbed and assaulted. Instead, he requested a set schedule as a reasonable accommodation.

Initially, the employer granted Sepúlveda’s request. A couple of weeks later, however, it reconsidered and retroactively denied the accommodation, informing Sepúlveda of the essential nature of the rotating schedule.

Sepúlveda sued, claiming that that Caribbean Restaurants failed to reasonably accommodate his disability in violation of the ADA.

As you’ve likely gathered from the lede, Sepúlveda lost, based on the rotation as a essential function. The court was not only un-persuaded by Sepúlveda’s story, but also by the fact that the employer had initially granted the accommodation.
While … Caribbean initially granted Sepúlveda the accommodation on a temporary basis, that fact did not mean that it conceded that rotating shifts was a non-essential function.… To find otherwise would unacceptably punish employers from doing more than the ADA requires, and might discourage such an undertaking on the part of employers.

Essential functions are called essential for a reason. And while I can see an argument that waiving one by granting an accommodation lessens its essentialness, this court saw it differently. An employer may (but is not required to) go above and beyond that which the ADA requires. And to punish an employer for doing so will only serve to deter employers from exceeding the ADA’s requirements in the future.

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Never in my life did I think that I’d ever attend a biker rally. Yet, four days from tomorrow, I’ll be in Sandusky, at Ohio Bike Week.

Why?


I’ll be watching Norah and her bandmates warming up the crowd for 80’s hair band Great White.

If you’re attending, please say hi. I’ll be the one without the motorcycle.

Here’s what I read this week.

Discrimination

Technology

HR & Employee Relations

Wage & Hour

Labor

OSHA & Safety

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I’m thinking of starting a religion
“Onionhead” teaches people to direct their emotions in a truthful and compassionate way. It is central to the teachings of the Harnessing Happiness Foundation, a 501c3 nonprofit organization dedicated to emotional knowledge and intelligence, conflict resolution, and life handling skills.

Onionhead is also central to a religious discrimination lawsuit brought by the EEOC against United Health Programs of America and its parent, Cost Containment Group. The aunt of the defendants’ CEO is the creator of Onionhead.

According to the lawsuit, the defendants required its employees to participate in “group prayers, candle burning, and discussions of spiritual texts,” all as part Onionhead, and fired anyone who refused to participate. The EEOC alleged that Onionhead is a religion, and forcing it upon employees violates Title VII.

Last week, a unanimous Brooklyn federal jury agreed with the EEOC, and awarded 10 employees a total of $5.1 million.

According to EEOC Trial Attorney Charles Coleman, Jr., “This case featured a unique type of religious discrimination, in that the employer was pushing its religion on employees. Nonetheless, Title VII prohibits religious discrimination of this sort and makes what happened at CCG unlawful. Employees cannot be forced to participate in religious activities by their employer.”

He is 100 percent correct. If you’re thinking of holding a prayer meeting, conducting spiritual discussions or rituals, or doing anything else remotely related to religion at your company, don’t. Religion has no place at work. Your intentions may be absolutely pure. Your employees however, have the unfettered right to practice the religion of their choice, or not to practice any religion at all.

Whatever you call your deity—God, Jesus, Jehovah, Jehovah, Allah, Buddah, Krishna … or even Onionhead—leave it at home. The workplace and religion do not mix. An employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs. Anything different violates Title VII.

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Three female associates at Morrison & Foerster have filed an alleged $100 million class-action sex discrimination lawsuit against the firm. They claim that their employer “mommy tracks” lawyer moms working at the firm by denying them opportunities for advancement and higher pay.

According to the lawsuit [pdf] (care of the ABA Journal):
Morrison & Foerster discriminates against Plaintiffs and other female attorneys, especially pregnant attorneys and women with children, with respect to compensation and promotions through the use of common policies and procedures. When a female attorney at MoFo is pregnant, has children, or takes maternity leave, the Firm’s standard operating procedure is to hold her back from advancement with her peers, denying her opportunities for greater pay and limiting her progression. This Firm practice reinforces stereotypes that mothers are worse at and less committed to their jobs, and sets in motion a chain of events that leads to the dead end of the mommy track: when female attorneys become mothers, the Firm demands they prove their commitment by working more hours; when they seek additional work, they are denied assignments because of stereotype-driven perceptions that they lack commitment to their jobs. 

No employee should ever face the Hobson’s choice of their career or their family. As long as these employees were performing up to firm standards, the firm’s rules, policies, or stereotypes should not punish them or otherwise prevent them from advancing, period.

But here’s the key: were they performing according to firm standards, or, if not, why not?

Are these employees being held back because they are choosing to work less because of their new families, or because of stereotypes about moms?

Businesses are allowed to apply performance standards (such as billable hour requirements), as long as they are equally applied across protected classes. Thus, for example, if MoFo’s policies say, “To be considered for partner, you must bill 2,000 per year,” and these plaintiffs are falling short because they are choosing to work less to spend time with their families, then they probably have no claim.

If, however, the firm is applying stereotypes about the level of commitment of new parents to deny these moms the opportunity to meet its expectations, then they have something to litigate.

No employee should ever have to choose between their family and their job. But, if an employee voluntarily makes that choice, and fails to meet their employer’s expectations as a result, it is unreasonable to scream discrimination. We all make choices. As long as the employer’s choice is motivated by legitimate non-discriminatory performance standards, and not discriminatory stereotypes, then its treatment of these employees is likely legal.

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Give me a head with hair, long beautiful hair
Shining, gleaming, steaming, flaxen, waxen
Give me down to there hair, shoulder length or longer
Here, baby, there, momma, everywhere, daddy, daddy
Hair, hair, hair, hair, hair, hair, hair, hair
Flow it, show it, long as God can grow it, my hair
– “Hair”
Friday’s tongue in check post about the beauty of baldness got me thinking about hair and employment law.

Or, more to the point, can an employer run afoul of discrimination laws by making an employment decision based on one’s hairstyle?

The answer is likely no.

Not that employees haven’t tried.

For example, Ewing v. United Parcel Service challenged UPS's Personal Appearance Guidelines. With respect to hair color those guidelines stated: “Hairstyles and hair color should be worn in a businesslike manner.” Shenitta Ewing, African American, claimed discriminatory enforcement of the policy to prohibit her from coming to work with fuchsia-colored hair. The court disagreed, citing at least four examples of Caucasian employees fired or discipline because of their “extreme” hair colors.

Or consider Viscecchia v. Alrose Allegria LLC, which concerned a hotel’s “hair policy,” which required that hair “be clean, trimmed, well brushed, and neat at all times, prohibited “extreme styles,” and further prohibited the hair of its male employees from landing below the shirt collar. After repeated warnings, the hotel fired Richard Viscecchia for refusing to trim his long hair. He claimed sex discrimination, based on a policy that required men, but not women, to maintain short hair. The court disagreed, holding that gender-differentiated hair length standards do not violate Title VII, and “employers can prescribe different grooming standards for male and female employees.”

Or EEOC v. Catastrophe Management Solutions, which concerned an employer’s blanket prohibition against dreadlocks, and an African-American applicant’s rejected claim that such a policy intentionally discriminates on the basis of race.

On potential exception that could make hair discrimination unlawful is where an employee's hairstyle is related to sincerely held religious belief. In that case, an employer should consider possible reasonable accommodations to avoid a claim of religious discrimination.

Otherwise, to sum up this potentially hairy issue, as long as you are not intentionally targeting one protected group over another, you are free to regulate hair in the workplace.

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