Outten & Golden: Empowering Employees in the Workplace

Archive for March, 2006

Would You Riot for Just Cause?

Monday, March 27th, 2006

For the last couple of weeks, the nation of France has been shaken by increasingly violent riots, while today (March 27) it faces a national strike by its citizens. What’s the big hullabaloo about, anyway? What’s remarkable about it is that the rioting has been motivated by a proposed change in the law that would make it less difficult to fire young workers, 26 years of age or less, in their first two years of employment. The French have considered the change such an affront to their national identity that people are taking to the streets in violent protest. Obviously the right to just cause before termination is not nearly as dearly cherished in the United States, since in every state but one, it isn’t a right at all. The French riots do make you wonder whether the American public will ever rally against unfair terminations on a national scale to the same extent the French are currently up in arms.

France has an unemployment problem: the national average is 9.7%, nearly double what it is here in the U.S., and among young workers, it is 22%. (See Bloomberg article.) In some poorer suburbs, where rioting took place last November, the youth unemployment rate is nearly 50%. (See San Francisco Chronicle article.) French Prime Minister Dominique de Villepin therefore proposed as a potential solution changing the country’s labor laws to enable a “First Job Contract.” (CPE)

The First Job Contract (CPE) is supposed to encourage firms to hire more young people by lowering the job protection they would otherwise enjoy under French law. It would allow companies with over 20 employees to fire a worker under 26 years old within the first two years without giving a reason. Once workers stay with the job for two years, they would then switch to a long-term contract with much stronger protection against firing. Workers who lose their jobs within the first two years are not completely without protection: they would receive from their employers eight percent of the salary earned since the beginning of the contract, while the company is also required to contribute a further two percent to organizations that will help the workers find a new job. (See CNN article.)

In contrast, all French workers now have strong protections against termination, known as “licensement.” French workers, after a maximum six-month trial period, have what is known as a CDI (contract of indeterminate duration). (See CNN article.) According to a New York Times article, there are essentially four ways to let workers go once they have a CDI, but all are much more time-consuming and costly than what we are used to here in the United States.

1. Economic Reasons: A worker can be let go for economic reasons, but the company must prove in court that eliminating the position is necessary either because of economic woes or because it is essential to remain competitive. Employers must also show that the worker can’t be transferred to another job, and that they used objective criteria in selecting one employee over another in the same position. If the company has more than 50 employees and wants to fire more than 10, it must create a “social plan” that includes efforts to minimize dismissals and provide for job training or other support for employees who are cut. To utilize this procedure, employers must first summon the workers to a preliminary meeting to warn them that they may lose their jobs. Then they must send a registered letter telling a worker he or she is fired, listing the reasons and explaining the efforts that were made to find him another position in the company and detailing the support he will receive later on — usually a training program. If the procedure is not followed, employees may be entitled to damages.

2. Performance: French workers can be fired for doing their jobs badly, but the company has to be able to prove in court that the grounds are real and serious. Defense lawyers claim that the courts are inclined to favor employees when it comes to the reasons supplied for termination. “For a salesman, for example, you have to demonstrate that his performance is not due to a bad product or market,” said Joël Grangé, a lawyer for the Paris firm Gide Loyrette Nouel. “Judges ask for evidence that is very difficult to gather. They say, ‘When you say he’s a poor performer, are you sure it isn’t due to a lack of organization in your company?’ That’s a very difficult thing to show.” A novel concept for Americans: Instead of offering a “legitimate business reason” for termination which in most cases will carry the day, the employer’s own practices and contribution to the employee’s failure is also examined.

3. Settlement: Like in the U.S., most cases brought by fired workers are settled, as it may take years to try a case. Unlike the U.S., however, settlements are exempt from taxes, so it is usually in both sides’ financial interest to go through the legal process rather than paying the employee directly to resign. Settlements often include payment for a notice period, or the time between notification and actual termination, during which employees continue to draw a salary 2-3 months for blue collar workers, or as long as 6 months for white collar employees. Settlements can also include several months’ salary to pay for job training, a severance payment that is determined by how long employees have worked for the company and which industry they are in, and damages, which can be just a few months’ salary for a young person who has worked at a company less than two years up to several years’ salary for someone nearing retirement with many years of service.

4. Put Them In the Cupboard: Here we call it “constructive termination,” which is doing everything you can to force an employee’s resignation without saying the magic words, “You’re fired.” In France, they have a phrase for it which translates to “put them in the cupboard,” which usually means moving them out of the way and leaving them alone in hopes that they eventually quit. That can be expensive too, as employees continue to draw a salary as long as they show up and don’t give the company cause to fire them. And workers who have been set aside with nothing to do can ask the court to declare that they have been effectively fired without due process and then can claim damages. Workers who have been constructively terminated here can do that too, but only if they were fired for illegal reasons. (See our site’s “Leaving Your Job” page for further information.)

So those are the protections that young workers are facing tear gas and riot police to maintain. Not that we’re condoning violence, mind you, but it is pretty impressive that these rights are held so dearly that students are fighting in the streets to maintain them. Since Montana is the only U.S. state where employers are required to have just cause to fire an employee, it’s hard to imagine what effort it would take to get such laws passed, much less to maintain them. (See our site’s Classifications page for further information.)

One of the founding principles of our allied organization, the National Employment Lawyers Association, is to support the ultimate passage of just cause legislation. Each year, at the NELA Convention, attendees can purchase t-shirts proclaiming the “Just Cause Conspiracy.” NELA members — or anyone else for that matter — haven’t been flocking to the streets to start riots: it’s not a criminal conspiracy. Even if they did, it’s unclear who would join them, as most employees aren’t aware of their lack of job protections, and are often very surprised and dismayed to learn that in many cases, there aren’t any remedies available to terminated employees.

If American workers were as acutely aware of their lack of job protections as young workers in France seem to be, would they take to the streets? Or would they blithely accept the rationale that our unemployment rate would be as high as in France if we instituted similar protections? (The French people don’t seem to be listening to that, by the way: recent polls indicate nearly three-quarters want the proposed law changed or withdrawn.) It’s not a surprise that some American newspapers — even the New York Times — are buying that one, calling the riots a “a knee-jerk defense of the job security that the French, or at least those who have a job, hold sacred.” (See New York Times editorial.) Perhaps one day Americans will have some job security they can hold sacred, but don’t hold your breath. At least not until you’re ready to rumble.

More Information:

Know The Law: Termination; Leaving Your Job; Classifications; At-Will Employment
Short-Changed: Here Today, Gone Tomorrow

Should Business Execs Meet at Strip Clubs?

Friday, March 24th, 2006

Do we even need to ask this question in 2006? Apparently we do, as USA Today reports today that some business executives haven’t gotten the memo that meeting in strip clubs subjects their firms to liability for sexual harassment and discrimination, and still end up providing strippers with a significant percentage of their income. (See USA Today article.) And to make matters worse, all the fun and hilarity is a tax-deductible business expense. How many millions in disgorged assets will it take for some dummkopfs to learn that having meetings in places where some of your colleagues feel more than a little uncomfortable is a bad idea?

The article begins with stripper Nicolette Hart explaining how she can make up to $2,500 a night with investment bankers and their clients in a Manhattan strip club’s private rooms. Hart, who once worked for a venture-capital firm before apparently fulfilling her true ambition, says she always asks what brought the men together. They often respond that they’re having a meeting. Her response to that? “I say, ‘You’re having a business meeting in a strip club?'” (See USA Today article.) See, guys, even the stripper knows it’s a bad idea — why don’t you?

Adult entertainment is a tax-deductible business expense allowed by the IRS. However, Wall Street, stung by a number of high-profile sexual harassment and discrimination verdicts, is finally taking the lead in cracking down on the practice. According to the USA Today article, the NASD and the New York Stock Exchange both recently proposed rules that would force firms to adopt business entertainment policies that cap amounts and specify appropriate venues, which will rule out company-paid or work-related strip club jaunts at the more than 5,000 brokerage firms in the USA.

You might think that common sense would obviate the need for such a rule, but apparently not. According to Hydie Sumner, someone who’s been there,

There are two levels of discrimination: the frat house environment in the office and the deeply embedded practices that are just starting to be uncovered, like the distribution of accounts, business leads and promotions. When ‘business activities’ involve the strip club, golf course or hunting ranches … discrimination is often perpetuated as those in power support and advance those with like minds and tastes.

[Sumner is a financial consultant who was awarded $2.2 million in 2004 after suing Merrill Lynch for gender discrimination. See Registered Rep Magazine article.]

Echoes Piper Hoffman, who represented Morgan Stanley plaintiff Allison Schieffelin, says that on Wall Street, “Who you know can translate into how much business you bring into your company.” [Piper is with Outten & Golden, a NELA-member firm headed by WF’s co-founder, Wayne Outten, who is pioneering the use of WF’s new product, WF Works. She has also generously assisted Workplace Fairness a great deal recently with editing the content on our website’s “Know the Law” area, so consider this a personal shout-out and thank you.]

Hoffman and Outten’s client Allison Schieffelin in 2004 spearheaded a sex discrimination lawsuit against Morgan Stanley, which ultimately settled for $54 million. One of the incidents Schieffelin raised in her lawsuit was a time when two clients were invited by male colleagues to attend a weekend in Las Vegas approved by their manager. When Schieffelin asked why she wasn’t included, she was told it was “because the men would be uncomfortable participating in sexually oriented entertainment with a woman colleague present, especially one who knew their wives.”

No one is trying to say that business executives — or anyone else for that matter, male or female — cannot go to strip clubs, on their own time and own dime. But when some employees are having tax-deductible “business meetings,” at a location where some of their colleagues are clearly not welcome, they shouldn’t be surprised when bad things like lawsuits, terminations, and NASD rules result. As one lawyer quoted in the article recommends, let’s just make it a relic of how business was done in the past, like the three-martini lunch.

More Information:

Workplace Fairness: sexual harassment; practical information on sexual harassment

Who's Really a Threat to the American Family?

Wednesday, March 22nd, 2006

Surely not Barbara Ehrenreich. But at least one author (whose other employment includes work for the National Review and Fox News Channel) seems to think so. So Ehrenreich, fresh from a trip to Atlanta to see her son, nephew and their respective families, felt compelled to respond, in a funny essay published in Alternet, “Those Corporate Homewreckers.” There Ehrenreich deflects the criticism aimed at feminists, and by extension, herself, to focus on just who’s keeping working women and men away from their families. You guessed it: corporate America.

Kate O’Beirne, National Review Washington editor and Fox News pundit, has written a book called Women Who Make the World Worse: and How Their Radical Feminist Assault Is Ruining Our Schools, Families, Military, and Sports. (I’d link to where you can buy it through our partner, Powell’s Books, but I don’t want to make it that easy, and I’d rather earn our commission off some other books, like some of Ehrenreich’s work that I link to below.) Ehrenreich looked up her name to find she was listed on page 4 of O’Beirne’s book, for ruining our families. (Apparently James Dobson of Focus on the Family also once deemed her a threat, describing Ehrenreich as “a woman who’d dedicated her life to the destruction of the American family.”)

If you know anything about Barbara Ehrenreich and her work, including such influential books as Nickel and Dimed: On (Not) Getting By in America, and her latest, Bait and Switch: The (Futile) Pursuit of the American Dream, you’d probably quickly realize that she’s hardly a threat to the American family. It’s hard to see how calling attention to the plight of the American worker — and just how difficult it is to make ends meet in a decent job these days — threatens the family, unless you deem merely calling attention to a problem in a persuasive way a threat.

Ehrenreich attributes her inclusion to the rightwing tendency to call any leading feminist a threat to the family, just as Pat Robertson in the 80s claimed feminists were all busy “becoming lesbians, killing their children, and advancing Marxism.” Ehrenreich claims to have never killed any family members, “even one of the more irritating ones,” and expressly disclaims traveling to attend a “convention of lesbian, Marxist, child-killers.” (See Alternet essay.)

But then her musings turn serious and as insightful as her usual work: “If anyone is ‘ruining’ the American family, it’s all the employers who refuse to recognize that their employees have family responsibilities, as well as jobs. I’m thinking of two categories of employers, which often overlap: 1) Those who don’t pay enough for their employees to live on, thus forcing them to work second jobs, and 2) those who abuse their salaried employees with expectations of 10 or more hours of work per day.” Ehrenreich knows what she’s talking about: in Nickel and Dimed, she proved that it was impossible to make ends meet on a single low-paying job.

People can talk about work and family balance all they want, but it’s not going to happen until we start moving back in the direction of the 40-hour work week and get serious about a living wage. As long as employees are afraid to leave their desks at a reasonable hour, there’s no incentive to raise wages or to hire more workers. And until employers have to pay higher wages to all their workers, whether because it’s legally required or because the market commands it, there are going to be people who have to work two or three jobs to make ends meet.

Surely Lou Dobbs isn’t the only conservative commentator unafraid to take on corporate America. But when books focus on people like Barbara Ehrenreich as a threat to the American family, you have to wonder who will be next.

More Information:

Short-Changed:
Work-Life Balance
The Income Gap

Good Advice for Employers: "Legalities aside, workplace shouldn't put up with hostility."

Monday, March 20th, 2006

A recent employment advice column in the Boston Globe dealt with the question of what to do about an abusive manager who “has a rather difficult personality and is prone to yelling and publically criticizing his staff.” The heading to this column read, “Legalities aside, workplace shouldn’t put up with hostility.” In this column is an important lesson for employers, in that it may not always matter what the law is in a particular situation, if the environment for workers is one that affects morale. But is the letter of the law all that’s important?

A manager writes the weekly “Job Doc” column with the following query:

I am the operations manager for a small manufacturing business. We recently hired a new department manager who is extremely qualified technically, but has a rather difficult personality and is prone to yelling and publically criticizing his staff. Production levels for the department have never been higher, but the new manager’s approach has clearly had a negative impact on department morale. There have not been any formal complaints, but I suspect it is only a matter of time. What are the company’s legal obligations when this happens? If the situation continues, might the company get sued for having a hostile work environment?

(See Job Doc column of March 19, 2006.) The Job Doc authors are Beth Kelly, president of HR Alliance Group, an HR consulting firm, and Thomas M. Ciampa, who runs Ciampa & Associates, a law firm representing employers and executives in employment law matters. Neither one are individuals you would expect to be pro-employee, given their perspective, which is why their response was noteworthy.

They start by reminding us that “[m]uch to the disappointment and genuine surprise of many an employee, there is presently no law against mean bosses, or even bosses who single out certain employees for particularly bad treatment, so long as the bad treatment is not discriminatory, i.e., based upon or due to the employee’s membership in a protected class.” That’s a speech that all employee advocates have had to give more times than they can count: with our present system of “at-will employment,” it’s simply not against the law to be a jerk at work.

So ordinarily that might end the manager’s inquiry: the operations manager who wrote in doesn’t have to worry about the new manager’s conduct violating the law, assuming that he’s not selecting employees to yell at due to their race, color, religion, national origin, sex, age (over 40), sexual orientation, ancestry, genetic information, and disability. (Those are the categories under Massachusetts law that are protected — check our site’s filing a harassment claim page to see what’s covered in your state.)

There’s one little quibble I have with their advice: they say, “Employees who are not members of a protected class cannot be victims of a ”hostile work environment.” That’s not exactly true: we all have a race, a sex, a national origin, a sexual orientation, a disability status, etc., even if we’re members of the majority. A straight white male might not ordinarily think of himself as a member of a protected class, but if he’s being persecuted because of his race, sex, and/or sexual orientation, he could be a victim of a hostile work environment. But aside from this, their advice in this column seems pretty sound.

The Job Docs go on to say, “However, just abiding by the legal definition of a ”hostile work environment” will not necessarily prevent the company from being sued for discrimination.” Why is that? Because “[o]ften, mistreated employees perceive that the mistreatment results from their being members of a protected class, even when this is not the case. These employees will sometimes file lawsuits alleging that their employer has discriminated against them. If the claim is properly pled it can be extremely costly to defend.” Now the Job Docs are sounding a little more pro-business.

They go on to note, “Indeed, defending a lawsuit of this type, even a frivolous one, can cost an employer tens of thousands of dollars in legal fees (if not more), as well as countless hours of lost productivity while company employees meet with counsel, develop information in response to written discovery, and appear as witnesses for deposition.” Employers should worry about abusive bosses, because they can cost the company money in defending lawsuits, even frivolous ones.

They conclude by saying, “Given the substantial cost of defending litigation of this kind, employers are well advised to weigh both the benefits and potential costs of allowing managers to act antagonistically, and to endeavor to treat their employees even better than they are required under the law.” (Emphasis mine.) Hear that, employers? Focusing just on the letter of the law may not help that much when it comes to litigation, if employees perceive they’ve been treated unfairly. How much litigation could be avoided if employers were to go just a little above and beyond what they’re legally required? How much lost productivity and declining morale are the result of managers acting antagonistically, who may not technically be violating the law, but nonetheless cause significant problems in the workplace?

While we at Workplace Fairness certainly care about the law (with 150+ pages of content advising employees about their legal rights), we also care about fairness. We applaud managers like the one who wrote Job Doc, who recognized a problem, and was concerned about making things right before the situation got out of hand. We also applaud those who take the Job Doc’s prescription to “endeavor to treat their employees even better than they are required under the law.” If every employer did that, we probably wouldn’t need so much law, lawyers and litigation, and there would be a lot more workplace fairness. And it would also probably cost employers less money — how’s that for a win-win?

Slack Your Way to the Top?

Friday, March 17th, 2006

As we’re smack dab in the midst of the Season of Slack, otherwise known as March Madness or the NCAA Tournament, a new article conveniently appears saying slack may not be so bad after all. In fact, as one author puts it, “the notion that busyness is the essence of business can only do us long-term harm.” (See CNN Money.com article.) It’s a good article to share with all the bosses hoping to get some work done while everyone is obsessed with bracket-busters, their performance in the office pool, and whether their alma mater or favorite team will make it to the Final Four.

Whether you’re a sports fan or not, it’s hard not to get sucked into the drama of the NCAA Tournament, where over the next three weekends, sixty-four teams will be reduced to the Final Four, and ultimately, the national champion. On the first day alone, there were three upsets, with the most noteworthy that of Syracuse, who slayed some giants on its way to a Big East Tournament victory, but had no gas left to beat Texas A & M, winning its first Tournament appearance since 1980. (See Associated Press article.) There will be undoubtedly be more schools that no one but alums can identify geographically (where is Northwestern State, anyway? Who knew it was in Louisiana?) knocking off top-ranked teams, and other such stories captivating tournament watchers before it’s all over on April 3 in Indianapolis.

Every year, we hear what a major scourge to productivity the tournament is. This year, the tournament will cost the economy more than $3.8 billion in lost productivity, according to John Challenger, who frequently tracks such workplace trends. (See Washington Post article.) Companies have special reason to fear excessive slacking this year, as CBS Sportsline.com will feature live action streaming Web video, which will allow individuals to watch all of the opening weekend games (yes, even those taking place during the work day) online. The service comes complete with a “Boss Button,” which mutes the sound and switches the screen to a spreadsheet, so it looks like you’re working instead of watching basketball. Pretty clever, huh?

But how do you quantify the productivity gains and morale boosting that focusing on something other than work for a change can cause? Working longer and harder isn’t necessarily benefiting anyone, according to an increasing number of experts. For the U.S. economy to thrive, we need to be innovative and creative, and it’s difficult for that to happen when employees spend so much time multitasking and juggling that they don’t have time to think. (See CNN Money.com article.) As Wharton management professor Peter Capelli notes,

The physiological effects of tiredness are well-known. You can turn a smart
person into an idiot just by overworking him….On the organizational level,
what you get is, everyone is so focused on running flat-out to meet current
goals that the whole company is unable to step back and think.

It’s not to say that by focusing on the Tournament, workers are necessarily freeing up their brains for anything much other than basketball and more basketball. And Coach K’s reputation as a management guru notwithstanding, watching Duke (or any other team, for that matter) isn’t going to immediately boost your business acumen. But companies who worry less about their workers slacking off, and more about whether their workers have enough slack time to thrive, might just find themselves pleased with the results.

And speaking of being pleased with results, best of luck in your office pool! (This is of course not meant to encourage illegal gambling, no sirree.)

Ultra Vigilant? Or Ultra Creepy?

Wednesday, March 15th, 2006

Whether it’s due to concerns about terrorism, theft, or workplace violence, more and more jobs are requiring a background check these days. While it may not be so surprising that certain jobs, such as elementary school teacher, bus driver, or bank teller, require background checks, especially when checks may even be required by law, it may surprise you that some companies now require checks for all employees, from CEO on down. And the extent of the checks may also surprise you, as a new company, Verified Person, now offers employers the ability to conduct new checks every other week. One company using the service claims they’re just being “ultra vigilant,” but some might find the pervasiveness of the checks just as creepy as the stalkers and criminals their employers are hoping to ferret out.

In a recent Business Week article, Background Checks That Never End, the magazine reports that one company is hoping to distinguish itself from others in the growing field of background checks for employers by providing perpetual checks. Every two weeks, those who have hired the screening service Verified Person can expect an updated background check on each of their employees, at a cost of $1 – 2 per employee. One of Verified Person’s founders has a background that doesn’t require much checking — John Sculley was formerly the chairman of Apple Computer, and the ex-CEO of PepsiCo. Trying to find a way to be more innovative than their competitors, Sculley and his co-founder, Tal Moise, a former chief information officer at IU Health in Indianapolis, marketed Verified Person as the first company offering the perpetual screens.

At first blush, Verified Person’s approach might make a lot of sense. Just because employees can pass one background screen doesn’t necessarily mean their history will be clean forever, and employers may be very interested in slip-ups that occur after employees are hired. One company who engaged Verified Person’s services, Fresh Direct, an grocery delivery company, did so after one of its drivers pled guilty to stalking and harassing female customers. Even though the driver had previous misdemeanor and felony convictions on his record, that hadn’t turned up in the investigation conducted by Fresh Direct’s prior screening firm.

You can question whether Fresh Direct’s problem was just a faulty investigation to begin with, or actually caused by the failure to have a continuous screening process, but it’s hard to argue with companies like Fresh Direct who want to do everything in their power to keep their customers from experiencing stalking or harassment. In the words of their spokesperson, Jim Moore, “We want to be seen as being ultra-vigilant.” Anyone from CEO Dean Furbush to the company’s drivers and food packagers is subject to the search.

But where does it end? There’s no requirement that companies limit their background checks to what is job-related, so even if you sit behind a desk instead of behind the wheel, your employer could learn about your driving record, such as that DUI you earned after one too many drinks. And even if you have no access to your employer’s checkbook, your employer could learn about your bounced checks or bankruptcy filing. That’s assuming the information is accurate, but what if it’s not? With so much information available online and immediately accessible, will companies slow down and take the time to get it right, and resolve any discrepancies in the data?

These perpetual background checks are only one way that employers can keep close tabs on their employees, according to a recent Chicago Tribune article: ID Chips Get Under Privacy Experts Skin. Another company, also hoping to distinguish itself through innovation, has some employees wear radio transmitting chips, transplanted under the skin, which can be scanned to open and close doors to secure areas. “We wanted a way to say, ‘Hey, we are a little different in the way we take our security,'” explained Sean Darks, chief executive of CityWatcher.com in Cincinnati, who along with two of his employees has an implanted chip.

While everybody knows that microchipping your pets is a good idea, is it really such a good idea for employees? Lee Tien of the Electronic Frontier Foundation doesn’t think so: “This may be appropriate for cattle, pets or packages, but for humans it is a very different issue.” Here’s what I had to say about it when the reporter, Stephen Franklin, called me: “This is incredible. It raises something out of `1984.’ It is a very invasive way of keeping tabs on your workers.” (See Chicago Tribune article.) For those of you who thought drug testing, with monitored urination and required blood draws, was invasive, welcome to a world where your employer can ask that you be implanted with a microchip.

Right now, the practice seems to be limited to CityWatcher and the company that makes the chips, VeriChip (who coincidentally is represented on a panel taking place today in Cambridge, Massachusetts, called Tagging Living Things.) But with the attention the practice is attracting, you can be sure there will be more employers who think this is a good idea, just like the bandwagon started when one company, Weyco, publicly announced that it would subject its workers to nicotine tests and fire anyone caught smoking, even off-the-clock. (See blog entry of February 3, 2005, and a recent Wall Street Journal Online article, highlighting Scott’s Miracle-Gro’s similar new policy.)

Similar concerns abound about GPS tracking, where employers require their employees to carry GPS devices which indicate their location at all times. It’s already standard practice with transportation employers, such as UPS, which use the technology to track their drivers’ locations in the field, so that they can pinpoint drivers close to a customer’s location. (See Monster article.) It may make things more efficient, but what about a situation where an employee stops during lunch hour to go to an Alcoholics Anonymous meeting or to a bone cancer specialist — concerns raised by privacy expert Jordana Beebe of the Privacy Rights Clearinghouse.

It’s becoming rather creepy just how much your employer can know about you and track your every move. Don’t believe that commercial about Las Vegas: What happens here, stays here. If you thought that weekend in Vegas, or anywhere else for that matter, was not your employer’s business, just wait until two weeks later when whatever happened there shows up on your background check.

More Information:

Workplace Fairness:
Know the Law: Privacy
Short-Changed: Privacy

National Workrights Institute

Privacy Rights Clearinghouse

Electronic Frontier Foundation

Oscar-Nominated Films Tell Real-Life Workplace Stories

Tuesday, March 7th, 2006

Now that the Academy Awards have all been awarded, the suspense has ended, as the movie Crash surprisingly took home Best Picture, and the eight-times nominated Brokeback Mountain earned its director, Ang Lee, the Best Director Oscar. This year was nonethless remarkable for the number of nominated movies that educated us about important social issues. As Workplace Fairness was most pleased to observe, the workplace was not excluded from Hollywood’s lens this year, as the movies North Country and Brokeback Mountain both featured the kinds of stories that are all too real to far too many workers.

In Workplace Fairness’ Oscar report, following in the tradition of features such as our Super Bowl report and Short-Changed, my colleague Eva Silverman reminds us that amid the flash and fame of the Oscars, which celebrates an industry of story-telling, it pays to step back and acknowledge the truth often reflected in fiction. What makes a story so powerful or an actor so believable in a role? What moves us to empathize with a film? Often it is the reflection of our own struggles, or the depiction of injustices we know to be truths in real life.

This year’s contenders included films about the trauma of and subsequent triumph over workplace harassment and the pain of discrimination based on sexual orientation. Sadly, these themes are much more than storylines for the cinema. For all too many of us, these Oscar-nominated films portray the reality of our own experiences.

North Country is based on the 1984 landmark sexual harassment class-action case Jenson v. Eveleth Taconite Co. The fictional Josey Aimes, played by Oscar nominee Charlize Theron, was “inspired by” the real-life story of Lois Jenson, a Minnesotan iron miner who faced horrible sexual harassment at her job. Frances McDormand’s character, Glory, was based on the real-life story of Patricia Kosmach, a union leader who ultimately joined the class-action depicted in the movie, but who died before seeing the results of her efforts.

According to a survey conducted by New York Women in Film and Television, North Country was voted the most important film for women to see in 2005, and it’s no wonder why. With as many as 1.6 million women participating in a sex discrimination class action suit against Wal-Mart, and over 35,000 charges of sexual harassment and sex discrimination filed with the Equal Employment Opportunity Commission last year, North Country mirrors the kind of unfairness in the workplace that women still face 15 years after the Jenson v. Eveleth Taconite Co. case was settled.

Workplace Discrimination in Hollywood

Hollywood itself isn’t exempt from workplace discrimination. According to a report entitled “The Celluloid Ceiling,” by the Fund for Women Artists, “women comprised only 16% of all executive producers, producers, directors, writers, cinematographers, and editors working on the top 250 grossing films of 2004.” And while 21% of the films released in 2004 employed no women for these top level jobs, not a single film failed to employ a man for at least one of these jobs.

The firm which represented the real-life Lois Jenson and her coworkers, NELA-member firm Sprenger + Lang of Minneapolis, now represents a class of screenwriters over 40 who are suing Hollywood studios for age discrimination. The lawsuit alleges that the studios “graylist” older writers, with statistics showing that 31% of all writers are over 50, yet they only hold 5% of the jobs. Statistics like this only make movies like North Country more relevant and compelling to today’s audiences.

The class-action case that spawned North Country was focused on sexual harassment, but as the movie showed us, working conditions for miners can be grueling and dangerous. While theater audiences were applauding Charlize Theron’s character Josey, twelve hard-working men died in a Sago coal mine in West Virginia. Reports show that an explosion trapped the miners underground and they eventually ran out of oxygen.

Even more atrocious than these twelve miners’ deaths is that they could have been prevented. The Federal Mine Safety and Health Administration cited the mine for 208 violations in 2005, on top of 144 violations cited by the West Virginia Office of Health and Safety. While many of us think of mining as a historically obsolete occupation, it isn’t. In North Country, we witnessed the threat to female miners’ safety from their co-workers. Today’s miners, regardless of their gender, still risk their lives on an ongoing basis. It makes you wonder how much has changed.

Sexual Orientation Discrimination Still a Threat

Another film that was up for Oscar nominations this year was Brokeback Mountain. Hailed as the story of two gay cowboys, Brokeback Mountain captures the pain and hardship of two men who fall in love and try to conform to a straight world while remaining true to themselves. The story focuses on two decades of their lives after they meet in an employment office and are sent out together as sheepherders. We all know what happens next—Jack Twist and Ennis del Mar find in each other more than they had expected, resulting in a lifelong connection and deep, but anguished love.

In a brief but poignant scene, Jake Gyllenhaal’s character Jack returns to the employment office the following year looking for work. After his former boss (played by Randy Quaid), who knows Jack’s “secret,” calls him a ‘faggot’ and denies him the job, Jack leaves the office feeling deeply sickened and saddened—and without the job he was counting on. This short scene is important because it reflects the discrimination that gay, lesbian, bisexual and transgendered workers face off the screen as well. Talented, dedicated, hard-working men and women are harassed and denied jobs and promotions everyday, all over the country.

While Brokeback Mountain portrays a fictional Wyoming in 1963, in a sizable majority of states, including Wyoming, Jack wouldn’t fare any better today. More than 40 years after the anguish depicted in Brokeback Mountain, there is still no federal law against employment discrimination based on sexual orientation, and only 17 states have passed laws prohibiting it. There has been progress since Jack Twist’s time: recent polling has shown that 85% of Americans oppose sexual orientation discrimination in the workplace. But for those with bosses like Jack’s, there is often no legal remedy.

North Country and Brokeback Mountain: Both Movies Win!

North Country and Brokeback Mountain show us just how important it is to have state and federal laws that protect the rights of all employees. As we watched in North Country, Josey Aimes and her fellow female co-workers had a legal remedy against their employers for the sexual harassment they faced. (Workers who want to do even more to fight sexual harassment can join the movie’s activism campaign, Stand Up.) In contrast, Brokeback Mountain shows us how the absence of such laws prohibiting workplace harassment and discrimination empowers employers to keep gay employees out of the workplace.

Regardless of who won this year’s Oscars, movies like North Country and Brokeback Mountain remain winners for educating the public about the reality of workplace fairness issues. Movies have the potential not only to bring in record millions of dollars at the theaters, but to bring pertinent issues like workplace harassment and discrimination to the public.

North Country and Brokeback Mountain help us realize that great art often reflects reality and that reality remains riddled with injustices. More than that, they succeed in empowering thousands of people who connect the films to their own lives and who will take steps to create a more just workplace for themselves and others.

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