Outten & Golden: Empowering Employees in the Workplace

Archive for November, 2009

Why Do Ideas Have Such a Hard Time Surviving at Work?

Monday, November 30th, 2009

Image: Bob RosnerAn old UK study found that 81% of people had their best ideas outside of the office (but you’ll have to guess what percentage found them in the bathroom!).

Visit any business web site, read current business magazines or listen to business gurus and it’s all about the “ideas”. In fact, it sometimes feels like “new ideas” are the answer, no matter what the question.

This blog will spend time NOT exploring how to think outside the box. Rather, it will look into how we all got jammed into the box in the first place and why it’s bad for our organizations and really bad for us. And deadly for new ideas.

Okay, let’s give you some additional information on that UK study about where our best ideas are generated. Sony Ericsson conducted the study and found 81% had their best ideas outside of the office. Top places for idea generation? The car, in bed and socializing. At the bottom of the list was in the pub. And finally, as promised above, 6% of us have our best ideas in the toilet.

So why do we have to escape our desk to find our best ideas? I’ve got three reasons why. First is the ubiquitous cubicle. Sure a great idea can come to you while sitting in a cube, but is it because of the cube or in spite of the cube? The cubicle company’s literature emphasizes that cubes foster conversation, bring teams closer together and can be darn good looking. But the reality is that we need less noise and distraction, especially if we are going to wander in that fragile area called idea generation.

Another part of the problem is the tendency of organizations to promote the people who have never had an idea on their own into management positions. Sure it makes sense; people are put into management because they support the status quo. This reminds me of a line I once heard about Al Gore. “Al Gore is an older person’s idea of what a younger person should be.” And people who don’t have ideas have a really weird view of how people with ideas should be treated. Actually weird isn’t the best word to describe it. How about dangerous. Why? Because people who’ve never had a good idea like to pick at ideas, play devil’s advocate and attach timelines and budgets to them much too early.

Instead of giving the idea, and the idea generator, room to maneuver they often force the baby to survive outside of the nurturing cubicle where it was created much too early (okay, the words “nurturing cubicle” are totally oxymoronic and run counter to what I wrote about cubes above. But since this is called a blog, a certain amount of inconsistency comes with the turf.).

Finally the biggest idea killer is the “corporate immune” system. This idea was first described by my friend Gifford Pinchot, best selling author of the book “Intrapreneuring”. He talks about all the ways that organizations seek out and destroy anything that runs counter to the status quo. The challenge is that the corporate immune system is relentless in its ability to remove threats and ensure mediocrity.

I’d love to hear your thoughts on how organizations kill ideas. Unfortunately, I don’t have the time to tell you where I have my best ideas, because right now, I gotta go.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via [email protected]

Hiring Managers are from Mars and Job Seekers are from Venus

Wednesday, November 25th, 2009

Image: Bob RosnerAccording to a survey of hiring managers, 44% reported that they were surprised that workers were different on the job than in an interview. Duh!

This intrepid blogger decided to dig deeper; to explore this disparity from both the point of the view of the hiring manager and from the job seeker to find out why they seem to exist on separate planets. Maybe Rodney King was wrong—that we all CAN just get along.

HIRING MANAGERS. Reading the latest literature (if you can call business books and magazines the “L” word) about how to conduct an interview, the interviewing game seems to be following the path of playing more sophisticated games with the interviewee…often at the price of relevance. Take the ever popular brain teaser questions (please!):  For example, “How many quarter coins do Yankee fans have in their pockets during a sold out baseball game?” (My response, I thought New Yorkers in general wouldn’t be caught dead with anything smaller than a ten dollar bill.) Who cares about this stuff, and how does it predict job performance?

If this is really the criteria that more and more organizations are using to hire talent, we’re getting to a point where the brainteaser expert Jeopardy millionaire is going to get every job. But every person I’ve ever met who is a whiz at quiz shows isn’t necessarily at his or her best when it comes to dealing with human beings. And the last time I checked, most organizations are still full of ‘em.

Maybe the reason that 44 percent of hiring managers said they were surprised at how the person changed when they were in the job is because the art of interviewing has become too technical — all fluff and no substance. More and more effort in an interview is focused on less and less of who the person actually is and what they’ve accomplished.

JOB SEEKERS. According to my e-mail, given all of the layoffs and turbulence in the job market today, job seekers are increasingly defensive about the gaps in their resumes — the layoff that they don’t know how to explain, or bosses who they are sure are giving them terrible references. Rather than accepting that the odds are pretty good that the person interviewing them has either experienced one of these things or knows someone who has. And with all the interviewing self-help books out there, they’ve become experts at covering up their own perceived shortcomings.

Sure it’s always been true that job seekers aren’t always as focused on telling the employer who they really are, but rather who they think the employer wants to see. But workers today are becoming as adept at spin as the average political candidate.

So with interviewers focusing more and more on the clever questions and job seekers spinning and spinning, is it any wonder that there are more and more surprises at work? Get out your soapbox and tell me what you think about this topic below.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via [email protected]

One Shocking Incident Of Disability Discrimination Supports Verdict For Employee

Tuesday, November 24th, 2009

Judgment For Employee Due To Employer’s Failure To Accommodate

I don’t remember ever reading a case quite like this one. The facts are quite graphic so be prepared. The story revolves around an incident of a store’s failure to accommodate a disability which led to a tragic result.

What Happened In The Case

A woman identified only as A.M. came to America in 1981 from El Salvidor after civil war broke out. She started working at Albertsons in 1987. She worked in various jobs, but at the time of the incident giving rise to the case, she was working as a checker. 

In 2003, A.M. underwent chemotherapy and radiation for cancer of the tonsils and larynx. The treatment affected her salivary glands which caused her to drink large volumes of water and urinate repeatedly.

While at work, A.M. was required to have water with her at all times and needed to go to the bathroom frequently — sometimes as often as every 45 minutes.

Most managers accommodated her but on the evening of February 11, 2005, A.M. encountered a horrific problem.

She worked a shift that day which began at 1:00 p.m. and was scheduled to end at 10:00 p.m.

By 7:00 p.m. there were only three employees in the store – A.M. who was working as checker, another woman who acted as courtesy clerk (and was not allowed to relieve a checker), and Kellie Sampson – the person in charge.

At 8:00 that evening, A.M. told Sampson that she needed take a break. Sampson asked A.M. to wait because a delivery truck was coming

Some time later, A.M., who had a line of customers waiting to check out, called  Sampson and told her again that she needed to go to the bathroom. Sampson told her that she was unloading the merchandise and that she had to wait.

About 10 minutes later, A.M. still had customers in the line. She called Sampson once more and told her that she really had to go. Sampson said that she was busy and unable to come to the front of the store.

Unable to control herself, A.M. urinated while standing at the checkout stand. She was having her menstrual cycle, and so she was drenched with both urine and blood.

Understandably, A.M. was shaky and humiliated though she did not think the customers saw what happened. When Sampson finally got to the front of the store, A.M. went into the bathroom to clean herself.

Sobbing, she called her husband to tell him what happened. A customer observed her crying, asked what was wrong, and A.M. explained that she had wet herself because no one let her go to the bathroom.

The customer helped her to her car. She had a horrible drive home and thought about killing herself.

When she got home, still nervous and crying, she took a long shower and tried to scrub the smell off her. She wouldn’t get out of the shower and her husband had to remove her.

After that, she was unable to return to work and began to deteriorate psychologically. She became listless and withdrawn. She refused to see family and friends. She feared that people would be able to smell the bad odor she sensed about herself.

She had crazy dreams and couldn’t sleep. Each day, she took multiple showers to try and remove bad smells from her body. She shaved off all of her body hair, hoping that the bad smell would go away.

Eventually A.M. told a doctor that had thoughts about killing herself. She was committed to a psychiatric hospital for several days.

She began receiving individual and group therapy and eventually improved. She took fewer showers and began to be less concerned about her smell. She still was withdrawn but eventually was able to go back to work.

The Lawsuit

A.M. filed for damages claiming that Albertsons failed to provide her with a reasonable accommodation for her disability in violation of California’s Fair Employment and Housing Act (“FEHA”).

As generally happens where damages for emotional distress are being considered, there was conflicting testimony was presented from from the psychologists and psychiatrists.

For the plaintiff, an expert in psychological treatment and injury testified about A.M.’s post traumatic stress disorder . The expert’s opinion was that A.M.’s emotional distress occurred as a direct result of the February 2005 incident and that she would likely suffer some effect of this disorder for many years.

Two psychiatrists testified on behalf of the defense. Their opinion was that her depression was a result of events that predated the February incident and that  A.M. had been depressed and anxious for most of her life.

The jury returned a verdict in A.M’s favor and awarded damages in the amount of $200,000:

  • $12,000 for past lost wage
  • $40,000 for future medical expenses
  • $148,000 for past emotional distress

The Appeal

Albertsons made several arguments on appeal.

Under the FEHA (like the Americans With Disabilities Act) an employer that fails to make a reasonable accommodation for an employee’s known physical disability engages in an unlawful employment practice.

Albertsons main contention was that its failure to accommodate was trivial, because it constituted a single incident in the context of a much longer period of successful accommodation (which began in 2004 when A.M. came back to work after her cancer treatment).

In other words, the defense argued that one incident of a failure to accommodate is not enough to violate the law.

The Court of Appeals strongly disagreed and had this to say in its opinion:

The employer’s interpretation would be inconsistent with the statutory purpose to require employers to make reasonable accommodation for their employees’ physical disabilities …

As is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated.

When construing a statute, we seek to interpret it in a manner that promotes wise policy, not absurdity. ….

The judgment is affirmed.

Lessons To Be Learned

I don’t remember ever reading a case that turned on the question of whether a single incident of accommodation could support a disability claim and verdict —  so for that reason, the case is both interesting and important.

The case is also a sad and disturbing illustration of what can happen when managers at all levels are uninformed about the consequences of a failure to accommodate the disabled.

image: www.tempe.gov

www.carlsonzone.com

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Your Boss Swears Your Job is Perfectly Safe

Monday, November 23rd, 2009

We’re accustomed to reading statistics from the federal Occupational Safety and Health Administration about workplace injuries. Every year, for instance, there are 4 million work-related injuries.

But ever wonder where OSHA gets those numbers?

According to a new report by the Government Accountability Office, the Department of Labor and OSHA may not be doing enough to make sure these numbers reflect reality. For one thing, inspectors don’t always talk to the workers they’re supposed to be protecting.

OSHA gets its information about workplace accidents and injuries from employers. Employers have incentives to downplay injuries on their job sites. A high injury rate makes a company look bad. Reporting too many injuries could open the door to a lawsuit or an investigation. (See below for a new video from Brave New Foundation on the fatal effects of lax enforcement of OSHA regulations.)

Most people are honest, but realistically, there will always be a certain number of bad actors who game the system and slackers who only make a half-assed effort. The bias is toward underreporting: cheaters could be artificially driving down injury statistics or the whole country.

To help keep employers honest, OSHA audits about 250 of the 130,000 high-hazard worksites that it monitors. The auditors check to make sure that the auditee’s reports to the government square with the companies’ internal records. But those audits won’t catch employers who don’t record injuries in the first place. Maybe workers aren’t telling their bosses about incidents because they’re afraid of being penalized. Or maybe they are telling management and management isn’t writing it down.

GAO found that OSHA doesn’t routinely interview workers. This is partly because there is a two-year lag between the audit period and the time the inspectors show up. By that point, workers may not remember, or they may no longer be working at the same job.

The report recommends that OSHA routinely interview workers about safety and minimize the lag between the time an incident is reported and the time OSHA inspectors show up.

The recommendations section doesn’t specifically address what OSHA should do to make random audits more effective. All the advice is geared toward investigating incidents that have been reported. You’d think that they’d be at least as worried about employers that haven’t reported injuries.

And here’s “16 Deaths Per Day,” the new five-minute video from Brave New Foundation about the weak laws protecting U.S. workers from on-the-job injuries—and death:

*This article originally appeared in Working in These Times on November 17, 2009. Reprinted with permission from the author.

**For more information on workplace health and safety issues visit our Workplace Fairness resource page.

About the Author: Lindsay Beyerstein, a former InTheseTimes.com political reporter, is a freelance investigative journalist in New York City. Her work has appeared in Salon.com, Slate.com, AlterNet.org, The New York Press, The Washington Independent, RH Reality Check and other news outlets. Beyerstein writes a daily foreign affairs bulletin for the UN Foundation’s UN Dispatch website and covers healthcare for the Media Consortium. She is the winner of a 2009 Project Censored Award. She blogs at Majikthise.

National Day of Action to Stop Wage Theft

Friday, November 20th, 2009

Image: James Parks

Workers, community leaders and religious activists are holding rallies, prayer vigils and other actions in more than 40 cities around the country today as part of a National Day of Action to Stop Wage Theft.

Wage theft is a national epidemic, which robs millions of workers of billions of dollars they’ve worked for but never seen, says Kim Bobo, executive director of Interfaith Worker Justice (IWJ) and author of the book Wage Theft in America.

During a Capitol Hill press conference this morning, Bobo said:

Too many workers can’t buy a Thanksgiving turkey because employers have stolen their wages. Wage theft is not a small, isolated situation. It’s a national epidemic.

Wage theft affects workers like Cleve Williams, who worked for a city contractor in Cincinnati. Williams told the press conference he was fired after he organized his fellow workers to fight for a living wage. The city’s law required the comapny, which holds a city contract, to pay a minimum wage. But Williams says it took three years to get the wages raised to the legal level.

Bobo cited a study by the National Employment Law Project, which shows how widespread wage theft has become. Drawing on in-depth interviews with 4,387 workers in Los Angeles, Chicago and New York City, a group of respected academics estimates that 68 percent of the workers surveyed are routinely denied proper overtime pay and often are paid less than minimum wage. The average low-wage worker lost more than $2,600 in annual income due to the violations, 15 percent of their annual earnings. Click here to read the report, “Broken Laws, Unprotected Workers.”

AFL-CIO Executive Vice President Arlene Holt Baker, speaking to the press conference by phone, said the nation’s economy suffers when millions of workers are denied their just pay. Unions are the first line of defense against wage theft, she added. With a union contract, workers don’t have to worry about not getting paid for overtime or not getting a decent, living wage and other benefits.

Wage theft is not only an economic issue, but a moral one, says Thomas Shellabarger, of the Department of Justice, Peace and Human Development at the U.S. Conference of Catholic Bishops.

As we pause this Thanksgiving to remember all that we are thankful for, we also remember the workers across the nation whose wages are stolen and struggle to put a meal on their holiday table. We must put an end to this national scandal of wage theft.

*This article originally appeared in AFL-CIO blog on November 19, 2009. Reprinted with permission from the author.

**For more information on unpaid wages visit our Workplace Fairness resource page.

About the Author: James Parks had his first encounter with unions at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He has also been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections. Author photo by Joe Kekeris

Big Business And Republicans Downplay Threat Of H1N1 Spreading Due To Lack Of Paid Sick Leave

Thursday, November 19th, 2009

Image: Pat GarofaloYesterday, the House Education and Labor committee took a look at sick leave policies and their contribution to the spread of the H1N1 virus (swine flu). Public health experts have been voicing concerns that H1N1 is going to be transmitted by ill employees attending work, so Rep. George Miller (D-CA) has crafted a bill that would give employees five paid sick days if their employer sends them home due to H1N1.

Earlier this month, the Chamber of Commerce downplayed the extent to which lack of guaranteed paid sick leave could spread disease, saying that “the problem is not nearly as great as some people say.” And now the rest of the big business community is piling on:

Testifying on behalf of the National Association of Manufacturers Tuesday, A. Bruce Clarke, who runs his own 1,000-member business lobby in North Carolina, told Miller’s committee that most businesses already have comparable or more generous paid leave programs, so why bother? “While some employers may not have taken specific action in response to the H1N1 outbreak, these employers are clearly the exception to the widespread practices taking place today,” Clarke said in his prepared testimony.

And its not only business downplaying the extent of the problem. Rep. John Kline (R-MN), the ranking member on the Ed. and Labor committee, also tried to claim that the “vast majority” of workers have paid sick leave:

“With so many workers already having access to a variety of sick leave options, we need to look very carefully at proposals to add a new layer of federal leave mandates,” the 2nd District Republican said in a prepared statement during a House Education and Labor Committee hearing…According to Kline, the vast majority of workers in the United States already have access to paid sick leave.

Actually, nearly half of private sector workers have no paid sick leave. This includes 78 percent of hotel workers and 85 percent of food service workers, even though they are among the most likely to come in contact with other individuals. 68 percent of workers not eligible for paid sick days say that they have gone to work with a contagious illness.

*This post originally appeared in The Wonk Room on November 18, 2009. Reprinted with permission from the author.

**For more information on H1N1 and swine flu visit this Workplace Fairness resource page.

About the Author: Pat Garofalo is the Economics Researcher/Blogger for WonkRoom.org at the Center for American Progress Action Fund. His writing has also appeared in The Nation, The Guardian, the Washington Examiner, and at New Deal 2.0.

The Senate Has a Health Care Bill. What's in It?

Thursday, November 19th, 2009

Last night, the Senate unveiled their health care bill. You can read the full bill here [pdf], or the summery documents here.

On the whole, the Senate bill looks very much like the House health care bill. It ends insurance company abuses like denying care for those with pre-existing conditions and it sets benefit standards to make sure the coverage people receive – both on their own and through their employer – actually covers the care they need. It gives people the choice of a public health insurance option like the one in the HELP bill, though states would be able to opt-out of the public option if they passed a law saying so. And it sets up a health insurance “Exchange” that would provide tax credits (subsidies) to make health care affordable, as well as helping business afford health care for their employees.

On the budgetary front, the Senate bill would cost $849 billion over 10 years, and reduce the deficit by $127 billion over the same period. You can read the CBO’s projections on the bill here [pdf].

Of course, there are major differences. Igor Volsky at the Wonk Room has a handy comparison chart:

Senate Bill ($849 billion/10 years) House Bill ($894 billion/10 years)
Individual Mandate Yes, penalty of $750 by 2016 for those don’t purchase coverage. ($95 penalty in first year) Yes, penalty of 2.5% of income for those who remain uninsured
Employer Mandate Free rider provision. Employers would have to pay whichever is lower: $3,000 per every employee who receives a subsidy in the Exchange, or $750 for every employee (not just the subsidized worker). Yes, employers who don’t’ offer coverage would pay a fee equal to 8% of their payroll
Medicaid Expansion Up to 133% FPL. 100% federal funding for the first 3 years, then revert to Senate Finance language. Up to 150% FPL
Subsidies Between 133 – 400% FPL on sliding scale; spend 2%-9.8% of income on premiums Between 133 – 400% FPL on sliding scale; spend 2%-12% of income on premiums
Public Option National public plan, states can opt-out by 2014. Co-ops are also available. Yes, HHS secretary negotiates rates
Financing Excise tax on policies above $8,500 (individuals) and $23,000 (families), increases the payroll tax by .5% (increases to 1.95%) on individuals who earn more than $200,000 and families earning more than $250,000 a year, tax on insurers, pharmaceuticals, and medicare devices; Medicare savings 5.4% surtax on individuals earning > $500,000, couples earning more than $1 million; Medicare savings

The New York Times also has a great comparison.

Overall, the fact that Majority Leader Harry Reid did the right thing and listened to the American people by including things like a public health insurance option and a tax credit level that goes a long way towards making health care affordable means that this bill deserves a debate and a fair, majority up-or-down vote.

Republicans and the insurance companies will try to block this bill any way they can, even going so far as to recommend the Senate not even talk about this bill, let alone vote on it. These tactics only preserve the status quo. The American people deserve health care reform – reform that delivers affordable coverage, a choice of a public health insurance option, and fair financing – and this bill deserves a fair vote by the full Senate so it can meet the House bill in conference.

*This post originally appeared in Health Care for America Now on November 19, 2009. Reprinted with permission from the author.

About the Author: Jason Rosenbaum is a writer and musician currently residing in Washington D.C. He is interested in the intersection of politics and culture, media consolidation issues, and making sense out of our foreign policy disasters. He currently works for Health Care for America Now and he is also the webmaster for The Seminal.

Sweatshop-Free Gifts For The Holidays

Wednesday, November 18th, 2009

Last month I told you how to buy union-made treats for Halloween. But now Christmas is coming, and that means even more shopping — and for a wide range of stuff beyond just chocolates.

With the rise of globalization and outsourcing, the shopper’s dilemma is especially acute when buying clothes. You don’t want your holiday shopping dollars enriching an absentee CEO who takes advantage of the North Pole’s weak labor regulations to force his workers to churn out product night and day year-round. (His apologists will tell you he’s “jolly.” But there’s nothing jolly about a repetitive stress injury.)

What’s a conscientious consumer to do?

Never fear! The International Labor Rights Forum and SweatFree Communities have stepped into the breach with the latest edition of their Shop With a Conscience Consumer Guide, which lists tons of places you can buy sweatshop-free clothing for everyone on your list. And their 2010 Sweatshop Hall of Shame is a handy list of retail outlets that don’t deserve your business until the way they treat the men and women who make their products moves from “naughty” to “nice”.

They’ve even got these materials available as PDF brochures (Consumer Guide, Hall of Shame), suitable for printing out and taking with you to the mall. Heck, you could even print out some extra copies and hand them out to other shoppers while you’re there, you know?

So this year, don’t give lumps of coal to the men and women who make the gifts you give — shop sweatshop-free!

*This post originally appeared in Change to Win on November 17, 2009. Reprinted with permission from the author.

About the Author Jason Lefkowitz: is the Online Campaigns Organizer for Change to Win, a partnership of seven unions and six million workers united together to restore the American Dream for everybody. He built his first Web site in 1995 and has been building online communities professionally since 1998. To read more of his work, visit the Change to Win blog, CtW Connect, at http://www.changetowin.org/connect.

Hyatt Continues Catching Flack over Fired Boston Workers

Wednesday, November 18th, 2009

Hyatt’s efforts to woo fired housekeepers has been mostly unsuccessful, with only six taking up the hotelier’s offer of employment with the company that replaced them.

Hyatt says the new jobs will extend their pay through 2010 and healthcare through May 2010. But workers aren’t buying the company’s efforts to assuage the public relations disaster they set off when they fired the 98 housekeepers in August. Luz Aquino, who worked at the Hyatt Harborside told Reuters: “Hyatt, I think, is playing games because they think we’re stupid.”

Protesters rally outside Bostons Hyatt Regency hotel in October. Photo by Elizabeth Washburn

A Boston news station reported yesterday that a worker said the hotel had not kept its promise to continue health coverage through March after her son was denied care during a hospital visit. Hyatt said this was just a clerical error and the problem was fixed. But the report also said Emerson College yanked its holiday party from the Hyatt to protest the company’s treatment of workers.

We documented here how the firing has sent ripples within the state and across the nation. On November 12, UNITE HERE kicked off a series of North American solidarity demonstrations in Toronto that was attended by hundreds in an effort to bring attention to the workers’ plight.

Hyatt’s explanation for the firings was that it needed to remain profitable in a down economy. But that’s a hard argument to swallow when Hyatt Hotels Corporation announced it raised $127.3 million at the closing of its initial public offering last week.

Some Money Reversing Flow to U.S. from Mexico

As we reported on ITT Working, the down economy hasn’t sent workers back to Mexico en masse despite the special challenges it poses to migrant workers. Predictably, hard times have led to unemployment for some and the inability to send money home, but anecdotal evidence shows that some money is even reversing course. The New York Times yesterday reported some families are scraping together funds to send to their unemployed relatives in the U.S.

This post originally appeared in Working In These Times on November 17, 2009. Reprinted with permission from the author.

About the Author: Emily Udell is a writer for Angie’s List Magazine in Indianapolis. In 2009, she finished a stint drinking bourbon and covering breaking news for The Courier-Journal in Louisville, Ky. Her eclectic media career also includes time at the Associated Press, Punk Planet (R.I.P.), The Daily Southtown in southwest Chicago, and Radio Prague in the Czech Republic. She co-hosted and co-produced In These Times’ radio show “Fire on the Prairie” from 2003 to 2006.

Big Settlements In Two Male Sex Discrimination Cases

Tuesday, November 17th, 2009

Sex Discrimination Against Men Violates Title VII

Sex Discrimination Against Men Violates Title VII

It’s not often that you see cases involving discrimination against men, but in the last few weeks the EEOC has reported two noteworthy settlements.

The Sex Discrimination Case Against Lawry’s

In early November, the EEOC announced a $1,025,000 settlement of a class action lawsuit against Lawry’s Restaurants Inc., which operates steak houses in Las Vegas, Chicago, Dallas, Los Angeles, Beverly Hills and Corona del Mar, California. 

In the lawsuit, the EEOC charged Lawry’s with maintaining a longstanding company wide policy of hiring only women for server positions.

The policy, which has been in place since 1938, is in violation of Title VII of the Civil Rights Act of 1964 which prohibits discrimination because of sex.

Lawry’s claimed that the policy was based on long standing tradition. The EEOC found that the policy adversely affected a class of men on the basis of sex.

The parties reached an agreement to settle the case in early November. Under the consent decree Lawry’s agreed to:

  • change its practice and actively promote the hiring of men into server positions
  • provide monetary relief including a class fund of $500,000
  • pay over $300,000 to initiate an advertising campaign regarding the hiring of food servers
  • pay $225,000 for training its employees on compliance with Title VII and related laws
  • take additional steps to insure compliance with Title VII and the decree

In its announcement of the settlement, Olophious E. Perry, who managed the EEOC investigation said:

The EEOC will never condone discrimination in the name of so-called tradition. Every individual deserves a fair chance to obtain a job based on their talent and qualifications, regardless of gender.

It seems to me that there are lots of restaurants out there that still have male only, or female only servers. This case makes it clear that this is one “tradition” that has seen its day.

Cheesecake Factory Settles Case Of Male On Male Sexual Harassment

The EEOC announced this week that Cheesecake Factory, Inc, a nationwide restaurant chain, will  pay $345,000 to settle a sexual harassment suit involving six male employees who were subjected to repeated sexual harassment at the company’s Chandler Mall location outside of Phoenix.

The complaint charged that the restaurant knew about and tolerated repeated sexual assaults against six male employees by a group of kitchen staffers.

The evidence included abuse involving the harassers:

  • directly touching the victims’ genitals
  • making sexually charged remarks
  • grinding their genitals against them
  • forcing victims into repeated episodes of simulated rape

According to the EEOC, managers witnessed employees dragging their victims kicking and screaming into the refrigerator. Victims’ complaints were made to virtually every manager in the restaurant but the conduct never stopped. Eventually the police were called and an EEOC charge was filed.

Mary Jo O’Neill, Regional Attorney of the EEOC’s Phoenix office had this to say:

The evidence was clear, and everyone knew about it. Behind the lavish décor that the company boasts on its web site was a horribly dysfunctional workplace where male workers lived in fear.

I would like to think that this situation is unusual, but the EEOC’s Phoenix District Office’s press release points out that it’s currently prosecuting a similar case against Fleming’s Prime Steak House.

What’s with these restaurants?

Lessons To Be Learned

When most of us think about sex discrimination, we think about discrimination against women, and that’s certainly what was contemplated when the “because of sex” language was added to Title VII.

(Interestingly, the addition of “sex” by a southern congressman to Title VII in 1964 was seen by most as a cynical attempt to torpedo the bill which was primarily targeted to address race discrimination)

Likewise, when most of us think about sexual harassment, we think of men as the harassers and women as the victims.

(Not so, said the Supreme Court in the landmark case of Oncale v. Sundowner Offshore Services,Inc in 1998; for more on this topic, see my article: What’s Going On With Male On Male Sexual Harassment )

These recent EEOC cases draw attention to the fact that men can be victims of gender discrimination as well as outrageous sexual harassment.  Both forms of discrimination are against the law and can lead to serious consequences for all involved.

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About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

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