Category: Discrimination

Should Halloween Give Employers Nightmares?

Published by Brett Holubeck on October 26, 2018

Picture of a lighted jack-o'-lantern to show that Halloween is scary. — Photo by NeONBRAND on Unsplash

It is that time of the year again. The time when some companies will have Halloween celebrations that involve employees dressing up in costumes or engaging in office antics. Halloween is one of the most dangerous times for employers because of the possibility of various forms of liability that they may face. The celebrations can cause issues related to religious discrimination, racial discrimination, sexual harassment, and other office problems.

Halloween May Contribute to Religious Discrimination

Halloween is one of the most interesting holidays for religious discrimination claims. Some groups may view Halloween as involving demons and claim that they cannot participate in any Halloween parties because they are Christian. On the other hand, Wiccans (of which there are approximately more than 700,000 in the US) may feel that any office celebration is a way to make fun of their religious beliefs.

Some Christians may Refuse to Participate

Some, not all Christians, may view Halloween as a demonic activity that is completely against their beliefs. If the employee is a Jehovah’s Witness or some other religion that does not celebrate Halloween, then you should not force an employee to participate. Forcing an employee to participate could cause a religious discrimination case. While Title VII, the law protecting employees from discrimination, only applies to companies with 15 or more employees, many state laws have a lower employee threshold. However, even if a company’s employees are not protected under the act, does any company really want to be known for engaging in religious discrimination?

Wiccans may View Some Office Banter as Discrimination Against Them Based on Their Religion

Some groups may view the holiday as an important day for their religion and request the day off. If an employee is Wiccan, then you should allow them to have October 31 off. You also need to be careful and sensitive to how other employees treat Wiccans around Halloween. It is important to be sensitive to the needs of these employees. If anyone makes fun of an employee for their beliefs, then you need to react and protect those employees. Many people are not familiar with the Wiccan religion, which can cause other employees to make fun of them. It does not help that Wiccans use the pentagram/pentacle as a holy symbol and the inverted pentagram/pentacle is associated with Satan by Christians. The similarity between the two makes it easy for Christians and others to feel attacked because they misunderstand the beliefs of the Wiccans. It is imperative to act quickly to defuse a situation regarding this or other misunderstood Wiccan beliefs. There is at least one instance where this has caused a lawsuit against a company.

Halloween, Racial Discrimination, and Megyn Kelly

Many people are not aware of what is and what is not appropriate to wear during Halloween. Take Megyn Kelly’s comments about blackface. Here is what Megyn Kelly said:

But what is racist? You truly do get in trouble if you are a white person who puts on blackface at Halloween or a black person who puts on whiteface for Halloween. That was OK when I was a kid, as long as you were dressing like a character.

Don’t listen to Megyn Kelly. It’s not ok. No employee should use blackface for their costume or otherwise purposefully dress themselves up to look like another race for a Halloween party.

There is one case (Nichols v. Grand Trunk W. R.R., 1999 BL 5415 (Mich. Ct. App. Dec. 21, 1999)) that used employees dressing up in blackface and chains to support the plaintiffs’ claims of racial discrimination. The plaintiffs were ultimately not successful because their claim had passed the statute of limitations (it was too late for them to sue). However, both the case and the incident involving Megyn Kelly clearly demonstrate the danger of allowing employees to dress with blackface to look like a member of another race for Halloween. They could seriously offend someone and subject them to an environment where they would experience racial discrimination.

What to Do If Your Office Has A Halloween Party

Can you still have an office Halloween party if someone could be offended and sue? Yes, you can have a party, but you should take certain steps to minimize the risks of a lawsuit or offending employees

If the company allows employees to dress up, then you should prohibit employees from wearing anything that has naughty or slutty in the title. No one needs to come dressed to work in anything inappropriate. Participation in dressing up or the party should always be voluntary. The normal workplace dress code that employees are expected to dress professionally and avoid anything that can be deemed offensive should still apply. In today’s current environment, I would also prohibit employees from bringing plastic guns or other items that could appear threatening to an employee. Employees should also be prohibited from dressing as anything political as this will cause office problems. Halloween and any holiday should be a time for employees to have some fun at work. It should not be a time for additional issues.

Some employees will always view a party as a way to test the boundaries of what is permissible. They may make inappropriate jokes to employees. Supervisors and managers must be aware of any instances where an employee makes any statements that could be considered to be sexual harassment and take immediate corrective action.

When given a chance to have some light fun, some employees will abuse the opportunity. If an employee is caught playing a trick on another employee or otherwise engaging in inappropriate workplace behavior, then you need to discipline the employee.

Conclusion

Halloween can be a great time for employees to relax and prepare for the upcoming holiday season. Employees still need to be aware that the normal rules apply to the workplace and they cannot engage in behavior that would be sexual harassment, racial discrimination, or religious discrimination during the holiday.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

One in Five People Have a Disability: How Do Workplaces Accommodate Them?

Published by Brett Holubeck on September 28, 2018

Nearly one in five people in the US (approximately 56.7 million people) have a disability. Only 18.7% of people with a disability had a job compared to 65.7% of those without a disability. Disability issues are increasingly critical for companies to understand especially as the workforce continues to age. One out of every 4 US workers will be over 55 by 2024, which is important because 48% of persons over 65 have a disability. People are also working longer and nearly 40% of people aged 65-69 are still working. As the working population ages, more people in the workforce will have a disability.

What is A Disability Under the ADA

The Americans with Disabilities Act (ADA) protects employees from being discriminated against because they have a disability or their employer regards them as disabled. It applies to any company with more than 15 employees. Under the law, a person has a disability when they meet one of three conditions (not every medical condition is protected). Here is a helpful breakdown from the EEOC (a government agency that enforces workplace discrimination laws):

A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
A person may be disabled if he [or she] is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Is Obesity a Disability Under the ADA?

Obesity is not only a major medical problem in the US, with nearly 40% of adults meeting the criteria for obesity and 7.7% being severely obese, it is also an evolving and changing area of disability law.

The 7^th Circuit (covering Illinois, Indiana, and Wisconsin) will decide whether severe obesity (formerly known as morbid obesity) is a disability under the ADA. Generally, the standard has been that severe obesity is not a physical impairment (meaning it is not protected under the ADA) unless it is caused by an underlying disease or medical disorder. The 2^nd, 6^th, and 8^th Circuits have all found that severe obesity is not a disability without some associated medical issue or disorder. If the 7^th Circuit finds that obesity is a condition that is protected under the ADA, then numerous workplaces would need to prepare to accommodate these employees.

No matter what happens in the 7^th Circuit, if you have an employee like Al Bundy, who actively insults customers and just about anyone around him, then you should probably consider terminating him or her.

The Interactive Process or Providing a Reasonable Accommodation to Disabled Workers

If an employee informs their employer that they have a disability (note the employee does not need to say the magic words of disability or ADA) or the need for an accommodation is obvious, then the employer needs to begin the interactive process to determine what accommodation it should provide. The company should also document that it received a request to accommodate the disability and provide a copy to the employee to show that the company is committed to accommodating the employee.

The law requires employers to provide a reasonable accommodation for an employee unless providing an accommodation would cause the employer to suffer an undue hardship (it is too difficult or expensive, which is a high standard to meet) or the person cannot perform the essential functions of the job. For example, the nurse in last week’s article could not perform one of the essential functions of her job: lifting patients.

During the process, the employer asks the employee questions to determine what accommodation the employee wants and what is the problem that needs to be corrected (what tasks the disability is hindering or preventing the employee from doing). Employers should stay away from questions about the exact medical condition that the employee has and medical details (usually).

An employer does not need to give the employee the exact accommodation that the employee wants but may choose which accommodation to provide as long as it engages in the interactive process with the employee and considers the employee’s needs. To accommodate an employee, an employer may need to purchase a device to help the employee complete their job, modify the employee’s work schedule, or offer them a vacant position. Courts also generally require companies to continue to assess the accommodation and make changes to the accommodation as needed (assuming that this is a condition that will change, or the employee informs the company that his or her condition changed). Some conditions need only a one-time accommodation. The employee or their doctor may also have informed the company that the employee’s condition will not change. Companies do not need to continue seeking information from the employee in these situations.

Employers should document the discussion about the accommodation that they provide and how the employer determined which accommodation to provide. The interactive process is never the same because workplaces, jobs, and disabilities are all unique. However, when done right, the employee and the company can both win. The employee is more productive, less stressed, and a better, more loyal member of the team. The employer shows its employees that it cares for them, it gets a more productive employee, and employee morale improves.

Conclusion

Accommodating an employee with a disability can and should be done. Most of the time, it can even be done with little or no cost to the company. The Job Accommodation Network has conducted surveys showing that 59% of respondents stated that accommodating their employee cost nothing, and 36% had a one-time expense which cost $500 on average. Working with an employee to find the right accommodation also can show the employee that the company cares about the employee, which increases the employee’s morale. Rather than something that HR dreads, accommodating a disability can be a chance for HR to do one of its primary tasks: supporting employees and making them more productive by putting the “human” back in Human Resources.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Pitfalls in Hiring Employees

Published by Brett Holubeck on September 21, 2018

One of the most difficult tasks that managers, HR, and business owners face is hiring new employees. According to a survey by the Society for Human Resource Management, the average cost of hiring a new employee is $4,129 and the average time to fill a position is 42 days. This is not a process that you want to do more than you have to (at least for the same position). In addition, employers often hire their problems by not taking the hiring process seriously. Oftentimes companies will hire haphazardly for an ill-defined position. Companies can save themselves a lot of trouble in the future by carefully planning their hiring.

Before Hiring New Employees Assess Your Needs

The first step in hiring a new employee, even if it is to replace a current employee, is to determine what need you are trying to fill. If you do not know what the employee will be expected to do, then neither will the applicant. Moreover, you will not know what the requirements are for the position.

By outlining the duties of the position, a company understands what is expected of any applicant. A good job description includes duties that the employee will perform that are essential but may not be performed on a day to day to basis. This could include climbing a ladder or carrying a certain amount of weight. If you leave this information off, then it may indicate that these are not essential functions of the position. For example, one nurse did not have an ADA claim that could be pursued when she was unable to perform one of the essential functions of her position: lifting up to 100 pounds on occasion. She needed to be able to lift patients on occasion but was restricted from lifting more than 50 pounds for 6 weeks after returning from 12 weeks of FMLA leave. Her employer escaped an ADA claim because she could not fulfill one of the essential functions of her position: being able to lift patients.

Another mistake that managers and others make is that they believe that they know all the job duties and the requirements of the position. They do not talk to any other employees that may have more information. Employees that are already in the same position or anyone that works closely with the position are good resources. They may have guidance on what is actually required for the position, what the new hire will do, and any job requirements that you may not have considered. Companies benefit by involving these employees in the hiring process.

Finally, if you are determining whether you need to hire someone for a new position, then you need to spend even more time carefully considering what you are looking for in the position. Review where employees (or you) are spending your time. Are you doing work outside of your regular duties? For example, if you are a dentist and are spending a lot of time answering the phone, calendaring appointments, and completing office paperwork, then it may be time to get an office manager. If you are hiring your first employee, then it is often a good idea to track your time to figure out how much time you are spending in activities that someone else (a new hire) could do.

Legal Oh-No-No’s

Some quick reminders of what is absolutely illegal in an interview (and elsewhere in the process) and yet still appears every year in news articles, announcements from the Equal Employment Opportunity Commission (EEOC), and Jon Hyman’s annual worst employer of the year nominations.

This is some publicity that you want to avoid:

Refusing to Hire an Applicant Because She is Pregnant

Inc. has a great article on a woman that was fired one week after she started her job because the boss found out she was pregnant. Chris Matyszczyk also posed a great question in the article. “How much training does it take to tell a manager that they can’t fire a woman because she’s pregnant?” Training is an important step to reduce the likelihood of discrimination. The EEOC even offers guidance on training employees and managers.

However, training alone is likely not enough to combat discrimination in the workplace. Culture is often one of the key differences in having an effective team and minimizing harassment and discrimination. David Minze lists five steps on how to improve culture and reduce discrimination at work. He recommends that companies 1) develop values, 2) create a culture of feedback, 3) lead with courage (i.e. do not protect high performers just because they are valuable to the company), 4) build connections (treat employees as humans, which means that you or their manager should ask them how they are doing and genuinely be interested in their well-being), and 5) provide guidance to managers. These are simple steps that all companies can take.

Asking an Applicant Whether She Has Children

The EEOC does not look kindly on this question. Employers that ask this and similar questions get sued because the employer may be (is probably) discriminating based on the applicant’s sex.

Asking Questions About a Candidate’s Race, Religion, Sex or Any Other Protected Characteristic

Don’t refuse to hire people based on these characteristics. That’s just illegal. Well, it is usually illegal. Someone’s religion or sex may be a Bona Fide Occupational Qualification (BFOQ) in certain jobs. For example, a Christian church may require that the pastor it hires be Christian. Another example is hiring only women for jobs that require close contact (e.g. strip searches) with female prisoners. The BFOQ defense is very narrow and many companies have been sued for potentially violating the policy (especially restaurants like Hooters and Twin Peaks).

Conclusion

Hiring is one of the most important issues that companies undertake. Employers that have a plan in the hiring process, seek help from their staff, and avoid major legal issues are generally more successful than those that hire employees without any plan.

The information provided is my own and does not reflect the opinion of my firm or anyone else.