Outten & Golden: Empowering Employees in the Workplace

Archive for May, 2005

Military Sacrifice Shouldn't Include a Job

Tuesday, May 31st, 2005

At the time of year when we’re reminded of the enormous sacrifices those who serve in our military make, it’s also a good time to emphasize that losing a job should not be one of those sacrifices. When most military reservists are seeing more active duty time than they ever expected, they shouldn’t also have to worry about whether their jobs will be there when they returned. So consider it your patriotic duty to share this information with a reservist!

Those who serve in the military reserves (Air Force Reserve, the Air National
Guard, the Army Reserve, the Army National Guard, the Coast Guard Reserve, the Marine Corps Reserve, and the Navy Reserve) are quite likely these days to see overseas deployment, primarily in Iraq and Afghanistan. Of the service members deployed in November 2004 in Iraq and Afghanistan, about 33 percent were reservists. (See CBO Report on The Effects of Reserve Call-Ups). As this recent Congressional Budget Office report points out, “[M]any reservists, when they joined the military, probably did not anticipate the increased frequency and duration of the activations that have occurred during the past several years and may be finding those mobilizations more disruptive than they might have expected.”

As disruptive as the mobilizations are for reservists, they also can be disruptive for employers who lose their reservist employees to deployment. Small businesses, who employ about 18% of all reservists who hold civilian jobs, can be hit harder than other businesses more readily able to absorb the loss of personnel, as the slowdown in production, lost sales or additional expenses required to compensate for a reservist’s absence are likely to be most severe for small businesses. (See Inc.com article.)

As one CEO points out, “It always takes some sort of filling in that doesn’t in any way make up for the person we lose.” Cheryl A. Merchant, president and CEO of Hope Global, a multi-national textile company based in Cumberland, RI, who is currently dealing with the absence of three employees, says that the company has responded by hiring temps and consultants, and having other staff take on the missing employees’ responsibilities, sometimes requiring overtime pay. (See Providence Business News article.)

No matter how disruptive the absence of particular reservists may be, however, there is a law that protects them, in most circumstances, from losing their jobs while they’re away. The law is the Uniformed Services Employment and Reemployment Rights Act (USERRA for short). USERRA offers three key protections for departing reservists:

  • reemployment rights
  • health insurance protection
  • the right to be free from discrimination and retaliation

USERRA applies regardless of the size of the employer, and regardless of the reservist’s length of employment, as long as the job was not one held for a “brief, nonrecurrent period with no reasonable expectation of continuing.” Eligible reservists can expect upon their return:

  • Prompt reinstatement (depending on the length of absence, but generally a matter of days, not weeks).
  • Accrued seniority as if continuously employed.
  • Training or retraining and other accommodations, which may be critical in case of a long period of absence or service-connected disability.
  • Special protection against discharge, except for cause, for either 180 days (following periods of service of 31-180 days) or one year (for periods of service of 181 days or more.)

For more information about the protections offered by USERRA, see our site’s new military leave page.

USERRA is unfortunately a law that an increasing number of reservists have been required to use. Since Sept. 11, 2001, 3,601 reservists have filed with the U.S. Labor Department against civilian employers, while in the time period since Oct. 1, 2004, 236 individuals have filed discrimination cases based on their military obligations; 33 have claimed hiring discrimination; 34 have claimed discrimination due to retaliation. (See Detroit Free Press article.)

A recent article tells the story of two Texas reservists who claim to have lost their jobs due to their military service. Derek Spivey worked for Roadway Express in Irving, and had been in the National Guard for years. When he was placed on alert for possible service in Iraq, he told company officials – and they laid him off. When Roadway let him go, his wife said the company offered him $845, but made him sign a waiver saying he would not sue the company. (See WFFA.com article.)

Similarly, Al Shaw, who worked for salary and commission at a printing company in Carrollton, learned after he got to Iraq that he’d been terminated and wouldn’t be receiving unpaid commissions. The letter informing him of his termination said that “If your employment is terminated for any reason, no commisions will be paid after your last day of employment.” (See WFFA.com article.) After a local news investigation, Roadway launched an internal investigation of Derek Spivey’s layoff, and Business Printing changed Al Shaw’s status from terminated to inactive. However, they’re just two of thousands of reservists who have encountered employment problems, evidenced by the Labor Department statistics listed above.

Shaw was assisted by Employer Support of the Guard and Reserve (ESGR), a volunteer group designed to help employers and military reservists resolve any differences over compliance with USERRA. ESGR is a valuable resource for reservists with USERRA questions, or whose employers seem to have problems complying with USERRA. ESGR also recognizes employers who, like their employees, go above and beyond the call of duty when it comes to facilitating military service. Some even have salary replacement to cover the difference between a reservist’s military and civilian employment, although it isn’t legally required by USERRA.

Reservists with questions about their jobs should take advantage of one or more of the resources below, to educate them about their rights. All of us should make sure that our employers have posted the new USERRA poster, required to be posted in every workplace to educate reservists of their USERRA rights. And if you know a reservist, make sure he or she is aware of their legal rights under USERRA. With all that those newly activated for military service have to worry about, having a job when they return should be the least of those worries.

More Information:

Workplace Fairness: military leave (newly added to our site)

Employer Support of the Guard and Reserve

Department of Labor: E-Laws USERRA Advisor

The Filibuster is Safe, But Is the American Worker?

Tuesday, May 24th, 2005

The constitutional chaos known as the “nuclear option” was averted at the last possible minute Monday evening when a group of 7 moderate Democrats and 7 moderate Republicans in the Senate coalesced around a solution. The filibuster is safe, for now at least. While the greater harm to our democracy may have been averted, workers still have much to fear from the three judges whose nominations will now move forward: Priscilla Owen, Janice Rogers Brown, and Bill Pryor.

The suspense had gripped our nation’s capital for weeks now: would Senate Majority Leader Bill Frist have the votes in the Republican caucus to strip the Democratic minority of its ability to use the filibuster? Last week, the process was set in motion when the Republicans filed a motion to force a vote on Priscilla Owen’s nomination to the 5th Circuit. Since Owen’s nomination had previously been filibustered, if it was not allowed to move forward this time, the Republican majority was expected to move ahead with efforts to change the rules to limit the use of filibusters on judicial nominations.

Instead, the moderate middle coalesced around a proposal that would forestall the elimination of the filibuster for now. (See Washington Post article.) The seven moderate Democrats (Sens. Ben Nelson (NE), Robert Byrd (WV), Joseph Lieberman (CT), Daniel Inouye (HI), Ken Salazar (CO), Mary Landrieu, and Mark Pryor (AR) would agree to allow votes on Owen, Brown and Pryor, while the seven moderate Republicans (Sens. John McCain (AZ), Mike DeWine (OH), John Warner (VA), Lincoln Chafee (RI), Lindsey Graham (SC), Susan Collins (ME) and Olympia Snowe (ME) would refuse to support efforts to invoke the nuclear option. Since the Senate has been so divided along partisan lines, each seven votes is necessary for each party to accomplish its respective objectives, so this bipartisan agreement, so these senators could reach an agreement to avert the crisis, even without the support of their own parties. (See Memorandum of Understanding.)

Each side got part, but not all, of what it wanted, which of course, is the nature of a compromise. Democrats preserved their ability to filibuster in “extraordinary circumstances,” while Republicans got their votes on the most controversial nominees. And while other nominees were not explicitly part of the deal, it seems more likely now that they will get their vote. No one seems terribly happy about the outcome, although liberal groups such as People For the American Way (PFAW) and MoveOn.org seemed happier than their conservative counterparts.

PFAW gushed in its announcement “First thing’s [sic] first: we defused the ‘nuclear option!'” MoveOn jubilantly announced: “The power grab has failed!” Not all liberal groups praised the solution, however: Nan Aron of the Alliance for Justice responded, “Is there anybody on our side who is happy?” and added “We are very disappointed with the decision to move these extremist nominees one step closer to confirmation.”

Meanwhile, James Dobson of Focus on the Family grumbled, “This Senate agreement represents a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats…The rules that blocked conservative nominees remain in effect, and nothing of significance has changed.” (See Dobson statement.) Tony Perkins, head of the Family Research Council, talking about the seven Republicans who were part of the compromise: “There were a few defectors, a few sellouts and that’s troubling.” (See Washington Post article.)

As our allied organization NELA points out, “Although a crisis has been averted, we must remain steadfast in opposing nominees to the federal circuit courts of appeals and the Supreme Court who do not have a demonstrated commitment to upholding workers’ and civil rights.” For now, American workers in the 5th (Texas, Louisiana & Mississippi), 11th (Florida, Georgia & Alabama) and DC Circuits will most likely be stuck with nominees Priscilla Owen, Bill Pryor, and Janice Rogers Brown (although their nominations have not been voted upon yet, and each senator remains free to vote his or her conscience.) And given that no deal was reached upon other nominees, yet the filibuster is reserved for “extraordinary circumstances,” it remains to be seen whether the deal is simply a vehicle for expediting all of the remaining nominations, or whether Democrats have only delayed the ultimate showdown, which is likely to happen if — or as many think — when an objectionable Supreme Court nomination takes place.

While workplace issues generally haven’t been at the forefront of the judicial nominations debate, with votes soon to occur on Owen, Pryor and Brown, it’s not too late for workers to speak out about these nominees. Regardless of any deal, constituents’ voices are extremely important, and with these nominations foreshadowing a Supreme Court nomination debate that could take place within the next year, if not sooner, Senators have to believe that voters, especially those who work for a living and are not by and large major campaign donors, are paying attention.

More Information:

Workplace Fairness Action Center
Will the Senate Go Nuclear?

NELA Action Center
NELA Judicial Nominations Page
NELA Position Statements: Priscilla Owen; Janice Rogers Brown; William (Bill) Pryor

Alliance for Justice: Independent Judiciary
People For the American Way (PFAW)


News Articles:

New York Times: Deal Draws Criticism From Right and Left
Washington Post: Hard to Tell Winners From Losers in Filibuster; An Unwelcome Compromise
Christian Science Monitor: From Senate Strife, A Center Takes Hold

Is It the End of the AFL-CIO as We Know It?

Monday, May 23rd, 2005

The reports are increasingly alarming: there’s a major disagreement these days amongst the leading unions in the AFL-CIO, which could lead to a major schism as the labor federation turns 50 this year. Will major internal reforms and/or the election of a new AFL-CIO leader be enough to prevent a major breakup from happening? No one seems to be terribly clear on how it’s all going to work out, and whether the next few months will lead to the establishment of a new separate organization comprised of the leading dissidents. What is clear, however, is that unions are more needed than ever, so it’s extremely critical that whatever happens ultimately strengthens the labor movement, rather than marginalizes it into oblivion.

When things aren’t going well, all eyes are on those in power, and things are not going very well for the union movement right now. Fewer Americans than ever are union members: around 10% of the private sector at last count. The political clout once wielded by the AFL-CIO, a federation of 58 major labor unions, is waning: we all know who the major unions spent hundreds of millions to support in the last election, and how that turned out. And just last week, the labor federation announced that it would be laying off nearly 25% of its staff for financial reasons, 167 of over 400 employees. (See New Standard article.)

Things came to a head last week when a coalition of four dissident unions, the Teamsters, Service Employees International Union (SEIU), the Laborers’ International Union and UNITE HERE, issued their proposal for reform, Restoring the American Dream: Building A 21st Century Labor Movement that Can Win. (See Washington Post article.) Together with the United Food and Commercial Workers (UFCW), the unions comprise 40% of the AFL-CIO membership. Here are some highlights of the joint proposal:

• Specific and significant investments of a billion dollars a year to help
millions of working people form unions and begin to restore the American
dream.
• Specific incentives and changes in structure and rules to unite the
strength of everyone who works in the same industry.
• A $25 million initial investment in making companies like Wal-Mart
respect our communities and provide health coverage and a paycheck
that will support a family.
• The dramatic changes it will take to increase the number of union
families and build broad community alliances so we can win access to affordable,
quality health care and retirement security for everyone in America.
• A real commitment to help millions of working women and people of color
win higher living standards, and to ensure that our movement at all levels
reflects the diversity and commitment to change of today’s workforce.
• A change in AFL-CIO leadership to a team committed to these
principles.

This proposal came in response to a more modest proposal set forth by the AFL-CIO in April called “Winning for Working Families.” This proposal focused primarily upon creating an organizing fund of $22.5 million dollars, without abandoning the expenditures for political organizing for which the labor movement is well known, but increasingly criticized, given the most recent round of ballot box failures.

Underlying these competing proposals is the future of John J. Sweeney‘s tenure as head of the AFL-CIO. Sweeney’s term as president ends in July, and he is poised for a bruising re-election battle. The reform-minded group unions had proposed that John W. Wilhelm, of UNITE HERE, succeed Sweeney; however, it appears that the dissident group does not have the backing of enough AFL-CIO member organizations to guarantee Wilhelm’s election over Sweeney. (See Business Week article.) Should Sweeney be re-elected in July, the five unions are considering whether to leave the AFL-CIO to create a new labor federation.

It’s not clear yet what will happen in July at the AFL-CIO’s Convention in Chicago. However, it’s already clear that the union movement needs many more working Americans to be part of it, regardless of what happens at the leadership level. If we are to preserve the middle-class way of life, so cherished in this country, especially for those without college educations, strong unions are an essential ingredient.

Whether or not union federations have access to the money necessary to organize and bring new people into the fold, there’s nothing to stop individual workers, on their own initiative, from affiliating with the appropriate union for their industry, and identifying workplaces ripe for unionization. It is also key for workers to support efforts such as the Employee Free Choice Act, which makes it easier for individuals to support unions without fear of losing their jobs.

It’s hard to choose sides with the ultimate outcome so uncertain. As Business Week comments, “A splintered labor movement would be a boon to Corporate America and the GOP,” so let’s hope that labor doesn’t hand this conflict to big business on a plate. We also hope that individual workers will see beyond the institutional conflict to recognize that being part of the labor movement, in whatever form that takes, is essential to having their interests protected in America today.

More Information:

Workplace Fairness: retaliation/union and other concerted activity (new site page!)
American Rights at Work: Employee Free Choice Act
AFL-CIO: Out Front (John Sweeney’s Column)
Unite to Win (Reform Union’s Website)

Pensions Going the Way of the Eight-Track?

Monday, May 16th, 2005

If you’re planning your financial future around a pension from your employer, these days you better have a backup plan, as the traditional pension is about to become as ubiquitous as the Betamax or the 8-track. Employees of United Airlines are the latest, but most certainly not the last, to see their retirement security shattered when their employers were no longer able to honor their pension obligations. By the time our next generation of workers (will it be “Generation Z?”) starts thinking about retirement, there won’t be anyone left to remember actually having a pension, just as no one still plays those 8-tracks either.

One headline reads Why pensions are becoming even scarcer, while another talks about Retirement’s Unraveling Safety Net. For United retirees, no longer “fly[ing] the friendly skies,” instead, it’s “the sky is falling.” (See United’s Pension Debacle.) Panicked workers nearing retirement wonder if there’s anything they can do, short of “increas[ing] income or decreas[ing] spending,” as one financial planner said, noting “There is no guarantee of that money.” As an incredulous teenager might say, “well duh!”

Those who have carefully planned over the years and have already retired now rely on what financial planners call a “three-legged stool,” of personal savings, Social Security, and pension benefits. The Washington Post tells the story of 80-year old Junior Paugh, whose “predictable world,” largely a result of working for one employer for 41 years, is described this way:

He never is short of money, thanks to Social Security and his company pension that will last as long as he does. Health care costs him next to nothing, thanks to Medicare and retiree health insurance. His Baltimore County home is long paid for, thanks in part to a below-market price of $4,400, a result of wartime subsidies for defense-related housing construction.

(See Washington Post article.)

Junior’s children, in their fifties, and grandchildren, in their twenties and thirties, will not have it nearly so predictable. The children worry that the lifetime health benefits and solid pension that their father now receives (and they expect) is dependent on the financial health of their employer, which has thus far survived several mergers and reorganizations, but could still fail in their lifetimes, as many other seemingly profitable companies have. They worry about the future of Social Security, and whether it will maintain the level of benefits that they expect. But the value of the houses they were able to purchase will also help them through retirement, as they can sell their homes and downsize, if needed.

The youngest generation of Paughs don’t expect to remain with a single employer for decades, and don’t expect any pension benefits, except for 401(k)’s. It’s difficult for them to save anything, and they don’t expect to own homes either. Their strategy, to date, is to put their trust in the “Ownership Society,” hoping that their investments, not the government, will take care of them. One grandchild, who struggles financially, says “I see how my grandparents were able to get by, but my husband and I just struggle from paycheck to paycheck. I don’t have a pension and I’m not expecting Social Security to hold up long enough for me. Where is all the government’s money going? Who is it benefiting? Nothing is benefiting me.”

It’s clear that Junior’s safety net is soon going to be obsolete, as the Baby Boomer generation hits retirement. Only half of American workers have any kind of retirement plan at work where they work at all. Well under half of those (only 20% of all workers) have traditional defined-benefit plans (based upon years of service or another formula instead of the amount of contribution made). You might call those 20% the lucky ones, until you learn that 75% of them are relying on underfunded plans: plans like the ones at United Airlines. (See Christian Science Monitor article.)

Last week, when it received a federal bankruptcy court’s permission to terminate its pension plans, United Airlines became the biggest pension defaulter in the history of corporate America. When the court’s decision is finalized, United will unload $6.6 billion of obligations onto the Pension Benefit Guaranty Corporation, the federal agency that insures corporate pensions. For some employees, it won’t make much of a difference, but for pilots and other employees planning their futures around six-figure pensions, the change will be devastating, due to the PBGC’s upper insurance limits, currently up to $45,614 this year for someone retiring at age 65.
Jerry Jedynak, a customer service agent at Chicago’s O’Hare International Airport since 1974, describes it this way: “Imagine being with a woman for 31 years and having that relationship shattered one day to find out you’ve been lied to and cheated. You’re going to ask yourself, were you a fool? Why didn’t I see it coming?” (See Associated Press article.) Furious United employees, already bitter after having given up $2.5 billion a year in wage and benefit cuts over the last several years, may be going on strike soon. (See Chicago Sun-Times article.)

Some former and current United employees, however, are taking a different approach to call attention to their plight: posing for a calendar called “Stewardesses Stripped (Of Their Pension?)” (See Associated Press article.) Each calendar page, of the five women in various stages of undress, is accompanied by commentary on the flight attendants’ plight, “Coffee, tea, or me without a pension?” reads one. “Marry me, fly free — but don’t expect anything from my pension,” says another. And the cover shot: “Are your butts covered? We thought ours were too.”

The project’s creator, Connie Baker, was inspired by the movie “Calendar Girls,” and decided to “create a little humor in people’s lives, make it fun, while at the same time getting our message across.” She’s serious about pointing out, however, that she “wanted to raise awareness for people out there that it can happen to you, and you have to take care of yourself. You have to take an active role in your retirement. Don’t depend on a company to do it for you, even if you’ve worked there your whole career.”

While the PBGC is bailing out United, it remains to be seen how long that agency will be a viable safety net. With the United default, the pension agency’s deficit will rise to $23 billion, while as recently as 2001, it had a surplus of $7.7 billion. As the New York Times points out, “If the pension agency itself was pushed toward bankruptcy, some 40 million Americans who are covered by traditional corporate pensions would be more vulnerable to catastrophic losses. In addition, taxpayers would be called upon to rescue another failing federal institution, as in the savings and loan bailout of the 1980’s. ” (See United’s Pension Debacle.)

As the PBGC’s Executive Director, Bradley Belt, points out, “When these losses are incurred, ultimately somebody is going to have to pay for them. The question is who is that going to be? Will our current premium payers get left holding the bag? Do we cut back benefits to participants? Or ultimately will the taxpayer get left holding the bag?” (See Christian Science Monitor article.)

If Belt doesn’t know the answer to these questions, you can bet that it’s something our politicians needed to start thinking about — like yesterday. Otherwise the letters PBGC are going to soon sound a lot like S&L, pensions are going to sound like 8-tracks, and retirement security will be yet another elusive aspect of the American Dream soon lost to us forever — part of the “good old days” about which previous generations can only reminisce.

Will Corporations Now Take Their Cues from the Right?

Tuesday, May 3rd, 2005

Major corporations — especially those near the top of the Fortune 500 heap — are hardly the vanguard of social consciousness in this country. But they have often recognized that their ability to keep and retain the best and brightest employees often requires them to adopt more progressive policies than the minimum required by law. This institutional support has then been leveraged into legislative support, where, in the opposite of the usual paradigm, legislatures adopt progressive policies to keep businesses and their constituents happy. Microsoft just turned this progression on its ear in the state of Washington. Will other corporations start to play along?

Only sixteen states make it illegal to discriminate on the basis of sexual orientation. There is no federal law prohibiting sexual orientation like there are other federal laws preventing other forms of discrimination: Title VII (race, color, sex, national origin, religion), the ADEA (age) and the ADA (disability). This is despite ongoing efforts for decades to pass federal protections, such as the Employment Non-Discrimination Act (ENDA). While there are several hundred cities, counties and other municipalities with antidiscrimination provisions including sexual orientation, the ability to enforce these provisions varies widely, with some areas having administrative agencies specializing in investigating and deciding claims, to others where there may be a legal right, but there is no remedy when the provision is violated.

Aside from moving to the coasts, some major metropolitan areas, or the few other areas where there are protections, one other significant way employees can be protected is through a company’s anti-discrimination policy. Regardless of the law in a particular state or municipality, a corporation is free to determine what policies best fit the individual corporate culture, and to develop a set of policies that reflect that culture. Whether it’s a top-down decision made by an individual or small handful, or the product of aggressive advocacy by individual employees or employee groups, these policies send a signal to current and potential employees about what they might expect from their employers: an open and welcoming environment, or one that has the potential to be openly hostile towards those who don’t fit in.

Every year, the Human Rights Campaign (HRC), a leading gay rights advocacy group, publishes its Corporate Equality Index, ranking corporations on their commitment to GLBT (gay/lesbian/bisexual/transgender) equality. Hundreds of those companies surveyed by HRC indicate that they have an antidiscrimination policy that includes sexual orientation discrimination. In looking at just the 62 companies that have a 100% rating on the Corporate Equality Index (which goes far beyond merely having an inclusive antidiscrimination policy), over four million employees have these internal corporate protections. (See HRC WorkNet.) Like municipal antidiscrimination ordinances, they vary widely in their enforcement (and few give employees any kind of legally enforceable rights), but the protections nonetheless provide an important signal to employees: both those who might otherwise discriminate, and those who may need protection from discrimination.

Microsoft has been a company that has led the way, in many respects, including its inclusiveness. Its Equality Index ranking of 84% is just one step away from a perfect record, and its recent addition of gender identity to its antidiscrimination policy would have given it a perfect record under the most recent set of criteria. Between offering domestic partnership benefits and supporting its gay employees’ group, most looking at Microsoft would acknowledge its progressive efforts when it comes to its GLBT employees. Until now.

The state of Washington was on the verge of becoming the 17th state to add sexual orientation to its anti-discrimination laws, after 30 years of failed efforts. With the support of the Democratic governor, Christine Gregoire, and a Democratic majority in both legislatures, passage of HB 1515 to change Washington’s Law Against Discrimination seemed reasonably likely to happen, if not assured. However, the measure failed by one vote in the state Senate. (See Washington Gay Rights Bill Defeated.)

It then came to light that Microsoft had rescinded its support for the measure, after it had been heavily lobbied by a local evangelical minister, Ken Hutcherson, who threatened to organize a boycott against Microsoft if it did not withdraw its support for the bill. (See New York Times article.) In a company-wide e-mail to employees, Microsoft said that the move was not in response to Hutcherson’s lobbying or boycott threats, but part of a larger reconsideration of the company’s legislative agenda. After Microsoft’s efforts came to light, the company’s founder, Bill Gates, indicated that the company might reconsider its position in the future, but made no promises to do so. (See New York Times article.)

Will Microsoft be only one of many major corporations to cave to pressure from the Right, or to “tighten” its legislative agenda? Will this apparent victory embolden anti-gay activists to increase their pressure on other companies with progressive policies, in the same way their political advocacy has been so successful recently? Or will having this battle played out so publicly discourage other companies from retreating from their progressive advocacy? Many companies in the days ahead will be asking themselves the questions that so troubled Microsoft, as CEO Steve Ballmer wrote:

When should a public company take a position on a broader social issue, and when should it not? What message does the company taking a position send to its employees who have strongly held beliefs on the opposite side of the issue?

(See Seattle Post-Intelligencer article.)

If employees who support inclusiveness and care about the existence of anti-discrimination policies do not speak up, both within their companies, and in wider legislative and political debates, their voices will be outweighed by those who oppose these policies. Instead of continual advances towards greater inclusiveness, we are likely to see many more retreats, as demonstrated by Microsoft’s latest actions.

More Information:

Workplace Fairness: sexual orientation discrimination (newly updated!)
Human Rights Campaign: Letter to Microsoft CEO Steve Ballmer
Equal Rights Washington

Looking for the Superemployee

Monday, May 2nd, 2005

We know how critical it is to be able to work, and we dangle the expectation that those with drive and ambition will be successful in the workplace and will be allowed to advance according to their abilities. The only citizens who are not expected to work are those who are certified as too disabled to work. However, we appear to be moving in the direction of creating new classes of unemployable people who are not disabled. If every employer applied the same standards as some employers are being applauded for upholding, we will soon have a class of people who aren’t disabled, but nonetheless find their job possibilities extremely limited. Is that really the direction in which we want to be headed?

In January, 2005, Weyco, a healthcare benefits company in Okemos, Michigan, had its fifteen minutes of fame, when it announced that employees failing a smoking test which would detect even those employees who occasionally smoked away from work would be fired. (See Flash in the Pan, or Threatening Trend: Workplace Smoking Restrictions). In the 21 states without laws preventing employers from imposing these kinds of restrictions, the default is “employment-at-will,”where employers can fire their employees for any reason, or no reason, as long as the reason is not an illegal one.

As I’ve pointed out before, if every employer adopted Weyco’s lead, then we’d have an astronomically high unemployment rate (of 25% or more, since as many as 23% smoke), and our economy would grind to a halt. Unemployment insurance systems would collapse, all the smokers who need additional medical care would be unable to pay for it, shifting the burden to taxpayer-funded public hospitals, and the stress of being unemployed and broke is hardly conducive to encouraging any smoker to quit. But that hasn’t yet stopped Weyco, and it’s unclear how many other employers may choose to follow Weyco’s lead.

Another employer, the Borgata Hotel Casino and Spa in Atlantic City, New Jersey, has also recently attracted attention for its weight policy. Its female servers, known as “Borgata babes,” are subject to a weight policy designed to ensure that “the best-looking girls [a]re at Borgata.” According to the policy, all new “babes” will be weighed when hired (and only those with a “natural hourglass body shape” are hired to begin with). Those who gain more than 7 percent of their body weight will be put on a 90-day leave. Borgata will offer a personal trainer and nutritionist, but if servers can’t lose the weight, they will be fired. Pregnant servers get 90 days to get back in shape after their maternity leave. (See Star-Ledger article.)

Horror stories from the Borgata babes abound: servers claim that it is nearly impossible to get a larger uniform — in one case, a server in a size 00 has been unable to get a size 0, one waitress said. But if a girl gets breast implants, a larger uniform is allowed, according to two waitresses. They claim a “babe” can’t have mayo on her sandwich or fries on the side without unofficial diet cops asking if she really needs it, while gamblers and dealers have started a new game: guess a “babe’s” weight. As one union official remarks, “The policy sets women back 25 years,” as women had successfully fought in the 70s and 80s to relax these kinds of weight and appearance restrictions in Atlantic City casinos.

Borgata is not the only casino to enforce draconian expectations about how women should look. As previously reported here, Harrah’s Reno fired a woman everyone acknowledges was a great bartender, because she refused to wear makeup. (See Have They Ever Shared a Bathroom with a Woman?) What’s worse, a federal appellate court agreed with the policy, saying that the bartender, Darlene Jespersen, did not make an adequate showing that wearing makeup was more of a burden than the grooming standards imposed on male servers. The lone dissenter remarked, “[A] reasonable jury could easily conclude that having to wear approximately as much makeup as one was wearing post-makeover, in addition to teasing, curling, or styling one’s hair every day, constitutes more of a burden than having to keep one’s hair short and cut one’s fingernails.” See Jesperson v. Harrah’s 9th Circuit decision.

Harrah’s weight policy, which has not yet been challenged in court, says that

[Beverage Service Personnel] must be well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform. Additional factors to be considered include, but are not limited to, hair styles, overall body contour, and degree of comfort the employee projects while wearing the uniform.

Similar to Borgata’s, those servers at Harrah’s Reno who gain weight find it difficult to get new uniforms (unless they’ve had breast enhancement surgery), and pregnant mothers, even those who are nursing, have only 90 days to get back to their pre-pregnancy weight. (See Barbwire article.)

You might argue that it’s not unreasonable for casinos to have these kinds of restrictions. After all, as a Borgata representative claims, the babes “are the brand and the image and the ambassadors for Borgata,” likening them to the Dallas Cowboys cheerleaders. (See Star-Ledger article.) That may be true, but where does it end? A recent poll revealed some startling findings:

39% said employers should have the right to deny employment to someone based on appearance, including weight, clothing, piercing, body art, or hair style

33% said that in their own workplace workers who are physically attractive are more likely to be hired and promoted

33% said workers who are unattractive, overweight, or generally look or dress unconventionally, should be given special government legal protection such as that given persons with disabilities.

Of the 39% who said employers should have the right to deny employment based on looks, men outnumbered women 46% to 32%. And whites outnumbered non-whites 41% to 24%.

(See Employment Law Alliance press release) While one-third of those polled think that there should be legal protection against appearance discrimination, they are outweighed, so to speak, by the 39% (including a higher percentage of white men) who think that this kind of discrimination is perfectly acceptable. As one commentator pointed out, “So maybe the hot people do get the jobs, but I sure don’t see a lot of hot CEOs out there strutting their stuff.” (See Indianapolis Star article.)

Will weight and appearance restrictions spread to more jobs? Will their effect be to make it even more difficult for poor people to get ahead? Just one example chronicled by David K. Shipler in his book “The Working Poor,” relates to a woman who, due to poverty, had lost her teeth and could not get properly fitting dentures. As Shipler pointed out, “I always had the sense, I’m sure no employer would admit this directly, but that without that thousand-watt smile that Americans prize so dearly, she was not allowed to work in ongoing contact with the public. So she never got the kind of job that would allow her to move up.” (See PBS interview.)

Perhaps the only thing keeping even more restrictions from happening is the fact that wealthier folks are getting heavier too. A just-released study found that obesity is growing fastest among Americans who make more than $60,000 a year:

In the early 1970s, 22.5 percent of people with incomes below $25,000 were obese. By 2002, 32.5 percent of the poor were.

Just 9.7 percent of people with incomes above $60,000 were obese in the 1970s — a figure that jumped to 26.8 percent in 2002.

(See Chicago Sun-Times article.)

Perhaps all of those white male smokers making $60,000 and up, who used to think appearance and lifestyle discrimination is acceptable in the workplace, will soon find their waistlines interfering with the bottom line. Until then, the number of those — right now at 16% — who said they had been the victim of appearance-based discrimination, is likely to keep growing, and growing, and growing.

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