Outten & Golden: Empowering Employees in the Workplace

Archive for January, 2003

Friday, January 31st, 2003

Uninsured pay higher health care costs

The results of a new study may come as no surprise to those who have ever had to pay doctor or hospital bills during a time they have been without health insurance. In a story featured in the Chicago Tribune, a study conducted by the Service Employee International Union’s Chicago-based Hospital Accountability Project showed that uninsured patients in Cook County (Chicago) paid more than twice as much for hospital medical care than those without insurance. Hospitals claim that federal rules prohibit them from charging higher rates to uninsured individuals; however, insurance companies often limit reimbursement rates for various procedures and prevent an uninsured patient from being charged the difference, which leads to uninsured patients being charged more. Some hospitals also claim that a high percentage of the total rates charged uninsured patients is uncollectible debt and that often lower payments are negotiated for those who are unable to pay the full amount, but some patients have reported being hounded by collection agencies and hospital staff to pay the entire amount they were billed, even though the amount billed to an insurance company would have been much smaller. Since an estimated 14.6 percent of the U.S. population is without health insurance–a number that may increase as more people lose their jobs or accept lower-paying positions without health benefits–this problem, although identified in the Chicago area, is likely to happen across the country.

Thursday, January 30th, 2003

Identity theft–from your employment records

We’ve all been hearing a lot about the rise in identity theft, where someone takes your name, social security, birthdate, or other identifying information to establish credit, rent apartments, make large purchases, etc–it may have even happened to you. What you may not have heard is that the thief may have obtained your identifying information at work, from supposedly confidential personal files. As reported in USA Today, anyone with access to personnel files can use that information to carry out identity theft, and often that access is relatively widespread. (See USA Today article.) The thief may be a disgruntled employee with a vendetta, someone who works in the HR department with widespread access to personnel information, someone seeking revenge against the company or certain employees, or a contractor, temp employee, or cleaning person who obtains a job specifically to gain access to the company’s records. Companies can contribute to the problem by leaving sensitive information in paper files in unlocked file cabinets, allowing computer files to be accessed by more individuals than is necessary, and even by requiring widespread use of an employee’s Social Security number, such as on a security badge. Some companies go to great lengths to protect client and business-related data, but do not use the same standards to protect employee data, even though a just-released Federal Trade Commission study indicates that 90% of business record thefts involve payroll or employment records, while only about 10% are customer lists. (See FTC report, January 22, 2003). While it may seem like there’s little you can do to combat identity theft, this report may be helpful in encouraging your employer to take extra precautions to keep personnel information private, especially since some companies are now being sued for negligence over the way personnel records were handled. Try to use your social security number and other identifying information as little as possible at work, and be sure not to leave credit card receipts in desks or wastebaskets. If you have been the victim of identity theft, the FTC maintains a web site on identity theft at www.consumer.gov/idtheft, where you can learn more about identity theft and how to file a complaint if you have been victimized.

Wednesday, January 29th, 2003

I apologize for the failure to post the last several days–I was moving both home and office, and the time I thought I could take to post never materialized. I’ll try over the next few days to make up for lost time.

Wednesday, January 22nd, 2003

Is Hollywood ageist?

Some would say that’s akin to asking whether the sky is blue or the Pope is Catholic. However, challenging Hollywood’s practices in court may be more difficult to accomplish, as was demonstrated in two recent cases. It was announced today that a California state court judge has dismissed a class action lawsuit, Wynn, et al. v. National Broadcasting Company, et al., brought by more than 175 writers who claimed that television networks, Hollywood studios and talent agencies discriminate against those over 40. (See AP story.) The lawsuit, brought by Minneapolis-based law firm Sprenger & Lang, targeted six television networks, including CBS, NBC, ABC and Fox, 12 production companies and 11 talent agencies. The suit claimed that the networks, studios and production companies rejected individuals for writing opportunities or gave them less favorable terms and conditions of employment based upon their age, while talent agencies either declined to represent older writers or provided less effective representation. (See www.writerscase.com, a web site devoted to information about the case.) The dismissal does not necessarily mean the end of the cases, however, as it is still possible for the cases to proceed individually, instead of as an industry-wide class action. However, any case which proceeds individually will require the plaintiff bringing suit to show how he or she was personally discriminated against–a much more difficult legal battle.

In another case involving Hollywood and age-based discrimination, a Florida professor says he’s challenging the audition policy of the Fox program “American Idol,” claiming that Fox’s practice of requiring participants to be between the ages of 16 and 24 is discriminatory. (See People story.) Drew Cummings, a 50-year-old visiting professor of film and TV at Florida’s Miami-Dade Community College, was turned away from a Nov. 2 casting call for the show for not meeting the show’s age requirements. However, before filing a lawsuit, Cummings must first go to either the federal or state agencies handling discrimination cases, the Equal Employment Opportunity Commission (EEOC) or the Florida Commission on Human Relations, and both agencies have said they are not investigating and would not investigate this type of complaint. (See Naples Daily News story.) An FCHR spokesperson said, “In order for a case to come our way, it would need to have something to do with employment, housing, public accommodations or certain private club memberships,” and that the FCHR generally does not investigate claims generated in connection with television programs. The EEOC reacted with similar skepticism, as one of their attorneys responded, “This doesn’t sound like he’s alleging employment discrimination and those are the laws that we enforce.” It appears that both of these cases face uphill battles in challenging the status quo in Hollywood, but they have at least succeeded in drawing additional attention to the issue of ageism in Hollywood.

Wednesday, January 22nd, 2003

Civil Rights Advocate & Pioneer Dies

The life of a fierce civil rights advocate and pioneer ended all too soon last Friday as San Francisco attorney Mary Dunlap lost her battle with pancreatic cancer. (See her obituary here.) Mary, 54, most recently the director of San Francisco’s police watchdog agency, the Office of Citizen Complaints, will also be remembered as one of the founders of Equal Rights Advocates, the San Francisco-based public interest law firm that works on behalf of women subjected to sex discrimination, one of the attorneys who litigated the landmark discrimination case against the San Francisco Fire Department, and as the attorney who argued the “Gay Olympics” case before the U.S. Supreme Court. Mary also taught sex discrimination and sexual orientation discrimination classes at several Bay Area law schools, and her teaching and writing has influenced countless numbers of law students over the years. She will be remembered by many as a tenacious advocate, vivid storyteller, and extremely wise person who persevered in taking some of the most difficult and controversial discrimination cases of her time. She is survived by her partner of 18 years, Maureen Mason.

Tuesday, January 21st, 2003

In light of yesterday’s observance of the Martin Luther King Day holiday, here are some quotations from Dr. King that continue to guide and inspire workplace advocates. They are compiled from various online sources, and include when the statement was made if that information was included by the source.

Injustice anywhere is a threat to justice everywhere.

Now, I say to you today my friends, even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: – ‘We hold these truths to be self-evident, that all men are created equal.’

(Speech at Civil Rights March on Washington, August 28, 1963)

If a man is called to be a streetsweeper, he should sweep streets even as Michelangelo painted, or Beethoven composed music, or Shakespeare wrote poetry. He should sweep streets so well that all the host of heaven and earth will pause to say, here lived a great streetsweeper who did his job well.

I can see nothing more basic in the life of an individual that to have a job or an income. I can never forget that our nation signed a huge promissory note back in 1776—’We hold these truths to be self-evident, that all men are created equal. That they are endowed by their Creator with certain inalienable rights. That among these are life, liberty, and the pursuit of happiness.’

(Why We Must Go To Washington, DC: January 15, 1968)

Equality means dignity. And dignity demands a job and a paycheck that lasts through the week. (1963)

Discrimination is a hellhound that gnaws at Negroes in every waking moment of their lives to remind them that the lie of their inferiority is accepted as truth in the society dominating them.

(Speech, Southern Christian Leadership Conference, Atlanta, Georgia: August 16, 1967)

Dr. King’s widow, Mrs. Coretta Scott King, participated in yesterday’s observances at Ebenezer Baptist Church in Atlanta, where Dr. King was a minister. Her words, appearing in an AP story prior to Monday’s holiday, empower us as well. (See Mercury News article.)

“I think that what Martin would be happy with is that every person would follow his teachings and not depend on a leader. What he wanted to do was elevate the whole of human kind and (have) individuals understand that they can make a difference.”

In President Bush’s proclamation commemorating the federal holiday, he stated,

As we honor Dr. King’s accomplishments, we pledge to work for a Nation in which all people of every race realize the promise of America. No government policy can put hope in people’s hearts or a sense of purpose in people’s lives; but we can and will continue to support efforts that seek to secure a Nation of dignity, liberty, and compassion.

However, the proclamation ironically (but not surprisingly) sidestepped any mention of the Administration’s role in attempting to dismantle race-based affirmative action efforts. (See 1/16/03 post below.) This irony was not lost, however, on some Democratic politicians, including two who are running for president, Senators John Edwards and Joseph Lieberman. (See AP article.) Sen. Edwards, who appeared in his home state of North Carolina, said,

“We should support efforts that increase diversity and put an end to systems, like legacy admissions, that give special preference to the most advantaged at the expense of diversity.”

Senator Lieberman, who appeared in Detroit because of the controversy surrounding the University of Michigan’s admission policies, stated,

“Until we reach that day where everyone is truly judged as Dr. King appealed for … by the content of their character, we have a responsibility to take affirmative steps to give everyone an equal opportunity to realize the American dream.”

Good resources for additional information about Dr. Martin Luther King: the website of The King Center and the King Papers Project at Stanford University.

Friday, January 17th, 2003

And now for a lighter note at the end of the week…according to the Wall Street Journal, some office thermostats are fake, and were installed only “to give employees a feeling of control and perhaps to shut them up about how hot or cold it is.” (See Report: Some Office Thermostats Are Fakes.) One specialist estimates that 90 percent of office thermostats are phony, while another believes the number is much lower–perhaps only two percent. It seems that employers who are tired of workers’ complaints about temperature in the office have the fake thermostats installed to make the number of complaints (but not the temperature) go down, while other employers may not know the thermostats were fake. Boy, do I feel empowered knowing this!

Thursday, January 16th, 2003

Family & Medical Leave Act Case Before U.S. Supreme Court

Will the Supreme Court strike down the Family & Medical Leave Act’s application to state employees? Even veteran court watchers had some trouble predicting what the Court might do after arguments Wednesday in Nevada Department of Human Resources v. Hibbs. This case is the latest in a string of cases known as “federalism” or “states’ rights” cases, because they involve the extent which Congress can require states to follow federal laws. In recent years, the Supreme Court has struck down several federal employment laws that previously applied to state governments, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act, because the Court ruled Congress had exceeded its constitutional powers when mandating that states comply with these laws, and some fear that the Court will rule the same way and eliminate FMLA protections for state employees.

William Hibbs, who worked for the Nevada state welfare office, sought to take unpaid leave to care for his wife, Diane, who had been seriously injured in a car accident seven years ago. (See AP story.) The result of Hibbs’ long legal battle has ended up before the Supreme Court, which could be on the verge of eliminating most or all antidiscrimination protections under federal law for state employees. While a 1975 case, Fitzpatrick v. Bitzer permitted suits against state employers for violating Title VII of the Civil Rights Act of 1964, the basic federal law against sex discrimination in employment, the questions asked by one Supreme Court Justice, Justice Sandra Day O’ Connor, indicate that even Title VII might be in trouble if a future case involving Title VII comes before the Supreme Court. (See NY Times story.) Another potential outcome could be drastically reduced FMLA protections that merely prevent states from discriminating against either women or men because of their sex in granting leaves, not accompanied by any actual entitlement to unpaid leave, which many would consider meaningless. It is also possible (although some consider it unlikely) the Court could find the FMLA to be constitutional as applied to state employees. Whatever the outcome, the Hibbs case is unlikely to be the last in the ongoing federalism battle, as Chief Justice Rehnquist and his colleagues have given the green light to rolling back civil rights protections in several previous opportunities, and conservatives emboldened by those victories appear determined to continue bringing more cases to the Supreme Court.

Thursday, January 16th, 2003

Bush Administration Mounts Attack on Affirmative Action Policies

The Washington Post’s Howard Kurtz asks: “Is anyone really surprised that George Bush came out against affirmative action yesterday? The only thing we couldn’t figure out is why it took him so long.” (See The Issue Bush Couldn’t Finesse.) As you’ve probably heard by now, the Bush administration has decided to weigh in against the University of Michigan’s undergraduate and law school admissions program currently under review by the U.S. Supreme Court. In the case of Gratz, et al., v. Bollinger, the Court will take a look at Michigan’s affirmative action policies designed to boost minority admissions to determine whether they are constitutional. (the 6th Circuit decision under review) On Wednesday, the President stated that he “strongly support[s] diversity of all kinds, including racial diversity in higher education,” but that “the method used by the University of Michigan to achieve this important goal is fundamentally flawed” and that the policies “amount to a quota system that unfairly rewards or penalizes prospective students, based solely on their race.” (full text of President Bush’s remarks)

The President’s remarks accompany the filing of a brief by the Solicitor General’s office today (1/16/03) in support of the white students challenging the university’s admission policies. While the text of the brief itself is not yet publicly available, an unnamed government official who briefed reporters says the brief will argue that universities should consider “race-neutral” factors, such as socioeconomic background and geography, that could have the effect of benefiting racial minorities, and that Michigan’s programs are unconstitutional because “they do not consider a race-neutral alternative first. . . . What the president has said is, we need to try, if at all possible, to promote the broadest amount of diversity without taking race into account.” (Washington Post article)

Civil rights groups quickly denounced the decision to join the attack on the Michigan admissions program. Wade Henderson, executive director of the Leadership Conference on Civil Rights (LCCR), stated that “[the Bush administration] is playing to its right-wing, anti-affirmative action base, yet trying at the same time to claim it favors diversity in education.” (LCCR press release) Rep. Richard Gephardt (D-MO), recently announced presidential candidate and University of Michigan Law School alum, announced that he would file a brief in support of the Michigan admission policies. (CNN article)

How important is this case? Commentators have noted that “[t]he decision that Bush announced carries enormous legal implications, if the Supreme Court agrees, and political ripple effects regardless. It has the potential to affect the makeup of college campuses at a time when minorities account for an increasing share of the nation’s young people.” (Washington Post article) While the brief in this case does not yet represent a full-frontal assault on all affirmative action policies, including those throughout all levels of government, if the petitioners (students challenging the policies) are successful, a more direct attack may not be too far away.

If you’d like to register your opinion on this issue, there are a couple of polls currently running online. AOL users may participate in AOL’s poll asking the question “should race be a factor in college admissions?” from the AOL home page. (This poll is only open to AOL subscribers.) Anyone can participate in available at FindLaw’s poll, which asks the question “do you support President Bush’s decision to challenge a program of racial preferences for minority applicants at the University of Michigan?” As of mid-afternoon Thursday, opponents of the Michigan policies and affirmative action were prevailing–by a 87% to 9% margin in the AOL poll.

Tuesday, January 14th, 2003

What’s in a name? Plenty, it seems to some employers. According to the results of a new study conducted by the University of Chicago Graduate School of Business and the Massachusetts Institute of Technology, “white-sounding” names, such as Kristen or Brad, routinely elicit 50 percent more callbacks than “black-sounding” names, such as Rasheed or Aisha. See Job Search Harder with ‘Black’ Name. The study was conducted by sending companies resumes in response to open positions advertised in classified ads. Researchers sent four resumes for each posting: two for “high-caliber” applicants, and two for “low-caliber” applicants, with each pair represented by a white-identified name and an African-American identified name. After comparing the callback results for the various resumes, the researchers concluded that for every 10 resumes sent out by an applicant with a white-sounding name, someone with a black-sounding name would have to send out almost 15 resumes to receive the same response. Notably, companies who advertised themselves as “equal opportunity employers” were no more likely than other employers to respond favorably to applicants who could be perceived to be African-American. The researchers concluded that the study results suggest that there is still a “substantial amount of discrimination in the job recruiting process.” While some of us always suspected as much, here’s just a bit more proof.

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