There are two primary messages employers need to know regarding the EEOC suspension of case closed and right-to-sue notices.Continue reading
Written by Amanda G. Kassis
The 2019 EEOC numbers regarding workplace discrimination charges were recently released and show a 5% decrease from 2018. This is a promising improvement but don’t be so quick to let your guard down. We have a long way to go. The EEOC still reports 72,675 reported cases of discrimination (including harassment) in the last year. And that doesn’t include claims made to state agencies or through private legal counsel. So, there is still a lot of work to be done. Retaliation, sexual harassment, race, and disability are still the leading reasons for discrimination charges followed by age and national origin. So how do we improve? How do we get these number down? We work on our company culture. Make changes that lead to inclusive, respectful, unprejudiced, work environments. Implement a fair investigation process to increase the chances of every party feeling that a fair resolution can be met before resorting to litigation. And, we teach our employees the meaning and practice of civility.
Unemployment is down to 3.5% and it is changing the way people look for jobs. Job seekers are becoming more critical of the companies they want to work for, and expectations are high. With so many options available the incoming workforce is focusing more on company culture, values, and priorities. Job seekers are above all looking for a company who puts their people first.
Hello Heart reports than half of U.S. employers have implemented wellness programs to meet a growing demand that has emerged from employees who are prioritizing their mental and physical health. To sustain a healthy culture, employers need to be actively listening to employees about what it’s like to work for their company, and what they’re experiencing. It is also important to be aware of how communication is changing. Many companies are implementing online portals where disputes can be worked out or complaints can be lodged. The younger generation of employees may be more inclined to deal with conflict though these resources, rather than in person.
It’s all about the people. Foster relationships with your employees as you would with any other important relationship in your life. Create a trusting rapport with your employees. You want them to feel like they can go to their HR team in times of turmoil and be treated fairly and with compassion. They want to feel appreciated and listened to. Employees want to know that even their smallest concerns are being addressed and taken seriously. As Aretha Franklin once so eloquently put it, it’s all about R-E-S-P-E-C-T. Create a respectful environment and, most importantly, model the behaviors you want to see. Most often good patterns of behavior start at the top. Employees will look to management to see how they are expected to act and handle conflict. And the difficult but most important part, hold yourself and others accountable for their actions and communications. Don’t be afraid to admit where your company is lacking, make an effort to change it, and be transparent about the process with your employees.
A company’s culture is the sum of many parts and is ever changing and growing. Employees spend a large amount of their lives at work, so do your best to create a place they can enjoy and feel safe. If we can create a culture within our companies that doesn’t just respect but celebrates people for their unique and diverse backgrounds and experiences, not only will business thrive but it is without doubt that we can continue to drive discrimination out of the workplace.
If you want to review the amount and types of cases prevalent in your state you can find it here.
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I recently had the pleasure to meet a wonderful woman who has spent the majority of her career putting programs and processes in place in higher education that allowed women an equal opportunity education. What I love about her story is the fact that an unlikely hero made a decision to stand up for her, and changed her career path as well as those of all the women in the company in which they worked. Maggie Annschild, Ph.D., thank you for sharing. Here’s her story.
That’s just how men were in the 60’s and 70’s (add 80’s and 90’s). It was a different culture back then – you know – locker room stuff – how they were brought up. You can’t fault them.”
Hearing several men in the last six months, and sometimes their wives and daughters use this excuse for crude language and gestures – sexual harassment – , brought back a memory I’d like to share with you.
It was the 1960’s. I was seventeen, starting my first job out of High School as a librarian for an Engineering Company in Minneapolis. The youngest of the two hundred employees and certainly the most naïve, I was taken under the wings of the older secretaries and assistants, all of whom were women. The building was divided into two sections; about fifty professionals and support staff on one side and about one hundred fifty assemblers on the other. This production side was putting together tiny probes for the space program. It was an exciting time for the United States and for this innovative startup company.
My job was to file all paperwork and keep track of all the technical books in the library as well as going to the University to get more books requested by the engineers and inventors. All was going well until about six months into my job. Like I’d done many times when I needed clerical supplies I entered the production side of the building to walk down a corridor to the supply cage at the end. Standing by the window waiting for my order I suddenly felt a hand swat/grope my butt. Without a second’s pause I pivoted on the ball of my foot and backhanded someone across the face. That someone was Mr. S., the Vice President of Sales and Marketing. Stunned, I walked as fast as I could past the curious, incredulous workers who had observed or heard the slap, and hid in the library.
Within ten minutes Mr. S’s administrative assistant was at my desk. She could not believe what she had been told; that I had slapped her boss across the face in front of all the assemblers. She said, “I like you but you have gone way out of line. You’ve embarrassed a very important person and I’m afraid there is no saving your job. You should have known better. This is just how it is. You have to learn to smile and pretend nothing is happening.”
The president’s secretary came next. She said, “I really like you and would like to help you but this might be too serious. I’ll talk to Dr. W. but he doesn’t like this kind of thing and I’m not sure I can save your job.”
I left at five o’clock, sneaking out the side door. I was so confused, so scared, so embarrassed. I slept little that night wondering how I’d find another job.
The next morning, I went in to work and was immediately called to the office of the head of HR, former military, buzz cut, never smiling, big guy. He said he’d heard what had happened from several sources and he’d like to hear the story from me. So I told him: I was waiting in front of supply cage, a hand grabbed my butt; I pivoted and slapped not knowing who had done it. A very short story. He said he’d have to write a report but that this was too serious for him to make a decision.
About an hour later I was told to report to Mr. H’s office. He was the Vice President and seemed to answer only to the President. He said he’d heard the story that the whole company seemed to be telling but that he’d like to hear it from me. I retold my very short story. He said, “I believe you. A hundred workers saw it. I’ve listened to Mr. S. and I believe you. I will tell Mr. S. that if he wants to save his position here, he needs to go to you and apologize, and the apology must be good enough, sincere enough, that you accept it. When you tell me that has happened, this incident will be closed.
Back in my library, about two hours later Mr. S.came with hunched shoulders barely able to look at me, with his apology. It included that he couldn’t afford to lose this position as he was Catholic and had eight children! I still remember his three piece navy blue serge suit as he left with an accepted apology.
In the l960’s SOME MEN harassed, abused their power, and took advantage.
And in the 1960’s SOME MEN listened, investigated, believed, and defended the women brave enough to claim their space and dignity.
I can’t claim bravery as my reaction to being groped inappropriately was not premeditated. I’m sure that instant slap was made possible by my Mother’s and teacher’s words, “Remember, no one touches you without your invitation.”
In looking back on this I marvel at Mr. H’s wisdom and leadership. The Company and all the women who had warned me I’d be fired, and all the men who harassed those women would never be the same. The climate had changed. No tolerance for harassment was the new air we all breathed. And all two hundred of us knew it at the same time and did our jobs with renewed appreciation of OUR company.
On January 25th, the Equal Employment Opportunity Commission (EEOC) released their Fiscal Year 2017 Enforcement and Litigation Data Report. Although the numbers are a bit lower than in 2016, the message is still clear. Employers must put more effort into prevention.
The EEOC reported 695,000 complaints called in reporting discrimination of all kinds, including sexual harassment. But the top reported complaint continues to be retaliation after reporting a claim which totaled 48.8 % of all claims filed. Keeping in mind that most of the claims called in, and those settled, were prior to the MeToo and Time’sUp movements, it is likely that the numbers will increase in 2018.
Six ways employers can best protect the company AND the employees.
- Change your open-door policy to an open communications policy. And start communicating.
- Change annual company harassment prevention training to shorter learning and messaging that is reviewed and discussed frequently in the workplace.
- Teach employees and managers how to communicate respectfully and comfortably about the difficult topics.
- Always investigate. Every time. Even if you are not sure if an incident rises to the level of breaking the law.
- Hold everyone accountable to the same set of rules. Civility plus accountability equals trust in the workplace.
- Commit to #NoRetaliation.
Not sure if your current investigation process is consistent, compliant and unbiased? InvestiPro can help! Request a demo at www.investipro.com.
Many of the HR professionals we talk to begin their budget planning for next year in September. And we want to help! We understand that projects such as budgeting, open enrollment, and performance reviews are time consuming. And the regular, everyday work performed by HR doesn’t stop when a project is due. Not to mention the employee relations issues that suddenly arise. So when it comes to writing a proposal for workplace investigation automation, we have done the work for you.
At InvestiPro, we know that the idea of conducting workplace investigations using automated technology is a new concept. And although you want it, it may be difficult to explain why to those with budget authority. So we have created a budget proposal template that you can use to explain the cost savings and liability protections associated with using InvestiPro.
Feel free to pass it directly on to your CFO, modify the template to meet your needs, or copy and paste the text into your company proposal template. This is not rocket science, but we hope that it saves you a lot of time, and frees you up to handle more pressing matters. And remember, if you have additional questions, were just a phone call away at 800-779-4062.
Simply download the free template below.
InvestiPro Project Proposal Template
Personal liability is nothing new to HR professionals. Since 2012, it has been very clear that both managers and HR employees can be held personally liable for retaliatory measures related to discrimination and harassment claims. This information is generally included in our Discrimination and Sexual Harassment training. But in case you don’t know why, here is the case that made it clear.
On May 24, 2012, the Seventh Circuit Court of Appeals concluded that an employee who does not directly make the decision to terminate another employee, but who influences that decision on the basis of an impermissible bias, may be held individually liable under 42 U.S.C. § 1981 in a subsequent lawsuit. In this case, https://casetext.com/case/smith-v-bray, Darrel Smith was an African-American process technician who filed suit for discrimination and retaliation against his employer and two individual employees – his immediate supervisor and the HR manager. By the time the suit was filed, the company had filed for bankruptcy protection and was discharged from liability. As a result, the suit proceeded against the supervisor and the HR manager, as individuals. Although individual employees cannot be held personally liable for discrimination or retaliation under Title VII, an individual may be held personally liable under Section 1981, which prohibits race discrimination in contractual relationships such as employment and under which Smith’s suit was brought.
Although this is a well-known fact, many HR professionals are still under the impression that if a claim was filed against the company, and them personally, the company would defend them and/or they would be protected under the corporate umbrella. This is not always the case. As in the Smith case, the company may file bankruptcy, may choose not to pay for the defense of the HR employee or the Employer Professional Liability (EPL) Insurance doesn’t cover the HR employees’ personal charges. And, of course, 7 out of 10 businesses don’t even carry EPL insurance.
The good news is there are steps that can be taken to protect HR from personal claims. The first and most important is to investigate all claims that have a potential relation to discrimination or harassment. Not just the blatant claims, but also the rumors, side remarks and observances that may be a precursor to a claim. If the company would rather avoid investigations, make it clear in writing to the CEO or GM that you are advising that an investigation be done. The second step is to be involved in in the investigation. If this is not possible, review every step to ensure that no bias has taken place and that every potential source of information needed to make a fair determination has been uncovered and reviewed. And finally, compare any potential corrective or punitive steps proposed against other outcomes for similar matters to ensure consistent and legally defensible adverse actions.
For this and other articles for HR professionals involved in conducting workplace investigations, see the HR Investigations Newsletter Q2 2017.
I rarely refer to a post from another blogger, but Suzanne Lucas @RealEvilHRLady really nailed this one. I encourage you to read her post and watch the video. Yes, it’s a Heineken beer commercial from the UK, the but I guarantee it will change your thoughts for a day, a week, and maybe for life. http://www.evilhrlady.org/2017/04/the-beer-commercial-everyone-needs-to-see.html. Cheers!
On December 15, 2016, The California Court of Appeal ruled to reverse a sexual orientation discrimination claim, allowing the case to now proceed to trial. In Hardy vs. Watts Healthcare Corp., Hardy alleged that her supervisor treated gay men, men in general and lesbians more favorably than heterosexual women, including her. It is not often that these claims arise, but they are becoming more prevalent. Hardy sued on Feb. 8, 2013, claiming her supervisor discriminated against her based on her sexual orientation and gender, and retaliated against her for opposing his discrimination. As such, isn’t this discrimination and not what is continually being referred to as reverse discrimination?
The court stated that “Taken together, the preferential treatment of males and homosexual individuals, along with the negative treatment of Hardy, might allow a fact finder to infer that Carmichael was motivated by discriminatory animus based on her sexual orientation or gender.” You can dive into the details of the case if you wish via the link provided. The point here is this, discrimination is discrimination.
Elizabeth Marvin, an attorney with Lewis Baach in Washington, D.C. stated it best when she said, “Complaints brought by employees belonging to what is traditionally the majority group should be taken as seriously as complaints brought by employees belonging to historically disadvantaged groups”.
Over the weekend, I came across an interesting article in the Harvard Business Review titled, Why We Fail to Report Sexual Harassment. The article addressed the fact that despite employer efforts to train staff and investigate complaints, the majority of employees affected by harassment, whether victims or bystanders, do not report the incidents. That fact did not surprise me. Nor did the fact that 75% of the women they interviewed stated that they had at some point been sexually harassed at work. What did get my attention was this:
“Researchers estimate that sexual harassment costs organizations $22,500 a year in lost productivity for each employee affected.”
Let’s look at an example. In this case, there is a company with corporate headquarters in the front half of the building and manufacturing in the back. At the entrance to a testing section in a back area that is predominantly male, there is a poster of a seductively posed woman, with very little clothing. Managers rarely have a need to enter this small area and have failed to notice or decided that this is not harmful. What they do not realize is that there is a female working in shipping that enters that area daily and she is quite uncomfortable. One day she asked the Lead in the testing area to take it down. He responded by laughing and making a loud comment that “The boys need a reason to come to work, but if you would give us a picture of you to look at, we’ll take the other one down.”
Based on the findings of the study, this employee is likely to experience stress each day when she needs to go into that room, become sick more often and miss work, lose interest in doing her job well in order to progress with the company, and spend additional time each day doing other things to keep her mind off of work. Yes, over a year that could easily amount to $22, 500 in lost productivity.
However, this is not where it stops. If this employee is experiencing that type of harassment, she will likely talk about it with 2-3 other employees who then are likely to feel uncomfortable as well. And then we need to consider the employee from Quality Control that goes into the work are daily. And the fill-in tester that works in the room at least once per week. And the Accounting Clerk that goes into that area to check serial numbers. That’s six additional employees – with a total productivity loss of $155,500 per year. And this does not take into account the cost of replacing these employees when they decide to leave.
When you look at the monetary effect of harassment in the workplace, it becomes very clear that companies need to take a more active role in preventing harassment from happening. Here are a few ideas.
- Make sure managers are walking around and interacting with all of their direct and indirect reports on a regular basis.
- Establish and communicate clear rules against posting of pictures, sending improper emails, or using unacceptable language in the workplace.
- Enforce the rules at all levels.
- Investigate – Not just when a complaint arises, but anytime there are signs of harassment in the workplace.
Remember, the law holds employers accountable when they knew, or should have known, that harassment was taking place.
When it’s time to investigate, www.GoInvestiPro.com!
No one likes conducting workplace investigations. Not Managers or HR Professionals, not attorneys, not even most Private investigators. Why? Because they take a great deal of time and resources. Both human and financial resources. There is always a bit of fear involved. Fear of saying something wrong and creating more liability. Fear of the chaos it will cause in the workplace. Fear of the budget getting out of control based on new information that is brought forth along the way.
Using new technology to conduct your investigation brings forth a better option for the following 5 reasons.
- To defend the unbiased nature of a workplace, employers must use a consistent process for every investigation. Using an online platform makes it easy to prove that the process is consistent.
- When technology provides the progressive investigation steps, including interview questions, and direction through the assessment and decision making processes, any manager or HR professional can conduct a complaint investigation without training or experience.
- Accessing the right technology that drives every step in order, locking down competed steps, ensures a consistent outcome, every time.
- Technology can ensure complete documentation of every step of an investigation, without having to go back and re-scribe the notes from the complaint and interviews.
All five steps lead to saving time and money.
Need to investigate? www.GoInvestiPro.com!