Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘EEOC’

The Legal Foundation for Age Discrimination Claims

Friday, January 18th, 2019

In 2009, an Arizona fire department laid off its two oldest firefighters. John Guido, 46, and Dennis Rankin, 54, believed their age played a role in the layoffs. But when Guido and Rankin filed an age discrimination lawsuit, the Mount Lemmon Fire District argued the men weren’t covered by federal age discrimination protections. The department claimed that they employed fewer than 20 people, so the Age Discrimination in Employment Act of 1967 (ADEA) did not apply to their employees.

Nearly a decade later, the Supreme Court weighed in on the case. Their ruling found that all public employees, including those working for local, state, or the federal government, receive protections under the ADEA, regardless of the department’s size.

While this recent ruling clarified the scope of the ADEA, it may do little to stop age discrimination in the workplace. Millions of workers face age discrimination every day. In a recent AARP study, over 60 percent of workers aged 45 and older had witnessed or experienced age discrimination at work. In spite of the prevalence of age discrimination, AARP reports that only 3 percent of older workers report filing a complaint about age discrimination, either internally to their employer or to a government agency.

Many workers may simply lack information about their legal protections. Age discrimination falls into an unusual legal category compared to other forms of discrimination, and recent legal rulings have shaped future ADEA cases. In the 1960s, the federal government passed ADEA and Title VII. Both granted protections from workplace discrimination. While ADEA covered employees over the age of 40, Title VII protected employees from discrimination on the basis of race, color, religion, sex, and national origin.

For its first decade, the Department of Labor enforced ADEA complaints, while the newly created Equal Employment Opportunity Commission (EEOC) handled Title VII violations. In 1979, the EEOC took over responsibility for ADEA complaints, bringing Title VII discrimination under the same agency as age discrimination. Critically, the different legal foundation for age discrimination shapes the protections workers receive.

Victoria A. Lipnic, acting chair of the EEOC, claims that the perception that age discrimination is fundamentally different from other forms of discrimination negatively influences ADEA jurisprudence. Lipnic cites a Fourth Circuit Judge who argued in 2018, “age is different because we are all going to get old … but when you’re talking about gender or race or ethnicity those are immutable characteristics as the Supreme Court has said. But it’s a little bit different because all of us are going to be older or elderly one day.” Lipnic contends, in contrast, that all forms of employment discrimination derive from stereotypes of prejudices about the targeted group. While historic differences shape those prejudices, those differences should not result in fewer protections from older workers.

However, a 2009 Supreme Court decision made it more difficult to prove age discrimination compared with other forms of discrimination. The ruling held that employees filing age discrimination suits must demonstrate that if not for their age, they would have received a job offer or not been laid off. This “but for” standard makes it challenging for employees to prove age discrimination. As Laurie McCann, an AARP Foundation senior attorney, told the Washington Post, “It’s rare for an employer to say, ‘I don’t want to hire you or I am going to fire you because you are too damn old.'”

In spite of the more difficult standard for proving age discrimination, the EEOC has settled multiple ADEA claims for substantial amounts. Sprint Nextel paid $57.5 million to setting an ADEA claim. Texas Roadhouse settled an age discrimination in hiring suit for $12 million, while Livermore National Laboratory settled a class action for $37.5 million. In the largest ADEA suit in the law’s history, the California Public Employees’ Retirement System paid a settlement of $250 million.

In addition to federal laws, many states and local governments have also passed age discrimination protections. These laws may offer additional protections above the federal standard. The New York State Human Rights Law, for example, prohibits discrimination against anyone over the age of 18 on the basis of age. Rather than protecting only workers over 40, as the ADEA does, this law extends age discrimination protections to all adult workers.

Age discrimination is a growing problem for employees. As an Urban Institute report found, in 1998, 33% of workers reported being forced or partially forced to retire. By 2014, that number grew to 55%. These cases, where older workers feel pressured to retire, can violate age discrimination protections.

By understanding the legal environment for age discrimination claims, employees can protect their rights and decide whether to file a claim. As with any other employment violation, employees may wish to consult with an attorney before proceeding.

About the Author: Charles Joseph is an employment lawyer with over two decades of experience. He founded Joseph and Kirschenbaum, a firm that has recovered more than $120 million for clients, and Working Now and Then, a resource on workers’ rights.

EEOC reports (mostly) positive developments on sexual harassment

Monday, October 22nd, 2018

The Equal Employment Opportunity Commission reports that formal complaints of sexual harassment complaints are up significantly from 2017. The EEOC is also litigating substantially more harassment cases.

Amid the uptick in reported harassment, there is evidence that men are changing their behavior – in good and bad ways. While the impact of the #MeToo movement has mostly been positive, some leery men are going to the other extreme and avoiding female co-workers completely.

Formal harassment complaints and lawsuits have increased

The EEOC says it is leading the way in combating workplace sexual harassment. Through outreach and education, as well as through investigation and enforcement, the agency believes it’s making an impact:

  • Formal sexual harassment charges in fiscal year 2018 increased by more than 12 percent from 2017.
  • Reasonable cause findings increased by 23 percent and successful conciliations by 43 percent.
  • In complaints not resolved through mediation, the EEOC has filed 41 sexual harassment lawsuits, a 50 percent increase.
  • The EEOC recovered $70 million for victims in FY 2018, an increase of 47 percent.

In the aftermath of #MeToo, traffic to the EEOC website doubled in the past year as both employees and employers sought information on dealing with workplace harassment. The agency conducted hundreds of outreach events to educate individuals and employers

Some men are taking the wrong message from #MeToo

Overall, the #MeToo movement has affected real and positive change. More women (and men) are confronting abuse and reporting sexual harassment rather than quietly tolerating it. Employers, including government agencies, are re-examining their policies and doing more trainings. Habitual and egregious offenders are being fired or otherwise suffering real consequences.

At least anecdotally, males in the workplace are changing their behavior, out of self-preservation if not because they genuinely “get it.” From sexual come-ons and inappropriate touching and to sharing sexual jokes or pictures, men appear to be getting the message.

But there has been some unexpected backlash from the #MeToo campaign. Some men in positions of power are intentionally avoiding or excluding female counterparts to avoid being accused of harassment. For example, women may not be invited to key meetings or after-hours events. Some men say they will no longer mentor women or hire female assistants. Some go so far as to avoid riding in an elevator or vehicle with female co-workers.

This overreaction has the unintended consequence of limiting opportunities for women and creating barriers. Such behavior can rise to the level of retaliation, sex discrimination or creating a hostile work environment.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 22, 2018. Reprinted with permission. 

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

One year after the Weinstein story broke, sexual harassment claims are up 12% nationwide

Friday, October 5th, 2018

Exactly one year ago today, the New York Times published its first investigation into sexual harassment allegations against Harvey Weinstein.

Given the number of think pieces written about the public’s ever-shrinking attention spans and the ever-rising churn of the news cycle’s speed, it is astonishing that anyone is still talking about Harvey Weinstein at all, let alone that the revelations about his alleged behavior — coercive, manipulative, violent, tyrannical — would spread so far beyond the confines of Weinstein and his accusers.

Much of the change catalyzed by the Weinstein story, and this past year of a reinvigorated #MeToo movement, is still ongoing and impossible to quantify. But some preliminary data points are emerging. On Friday, the Equal Employment Opportunities Commission reported that sexual harassment claims were up 12 percent this year, compared with the 2017 fiscal year.

The EEOC also announced via press release that it had filed 66 harassment lawsuits in the last year — an increase of 50 percent from the year before.

As Variety reports, only a fraction of the total number of harassment claims in the U.S. are ultimately reported to the EEOC. Still, “the trend lines are telling. Over the previous seven years, harassment claims had declined from 7,944 in 2010 to 6,696 in 2017. The EEOC’s preliminary data shows an increase to about 7,500 claims in 2018, the highest level since 2012.” And state data released by California and New York shows an “even more pronounced” pattern.

Even with the dramatic uptick, we’re not quite at post-1991-Anita-Hill-hearings levels just yet: EEOC data has the number of claims rising 52% in 1992.

This blog was originally published at ThinkProgress on October 5, 2018. Reprinted with permission. 

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.

Walmart sued for alleged discrimination against pregnant workers

Monday, September 24th, 2018

Federal regulators have filed a lawsuit against Walmart claiming the retailer forced pregnant workers to take unpaid leave and refused their requests for less physically demanding duties.

Companies are required by law to accommodate employee pregnancies the same way they would disabilities, according to an article on the lawsuit published by Reuters. The suit was filed Friday on behalf of Alyssa Gilliam and several other female employees.

In her complaint, Gilliam said she became pregnant in April 2015, at which point she requested “light duty or transfer to a less physically demanding job” to avoid any heavy lifting that might endanger her pregnancy. She said she was told “light duty” was only available “to employees on workers’ compensation.”

Gilliam claimed her requests for a chair, shorter work days, or additional breaks were also denied. She said that eventually, she was forced to transfer to a part-time job within the company, resulting in a pay cut and loss of benefits.

In November 2015, Gilliam said she submitted a doctor’s note to the company identifying a five pound lifting restriction. Walmart, in response, immediately placed her on unpaid FMLA (parental) leave, two full months before she was due to deliver.

The company allegedly denied requests for accommodations for other pregnancy-related medical restrictions made by other pregnant employees at the distribution center, the suit argues.

By contrast, Walmart “accommodated non-pregnant employees who were similar in their ability or inability to work.”

“For example, Defendant accommodated [distribution center] employees who had restrictions due to work-related injuries by providing them with light duty,” the suit reads.

“Defendant deprived Gilliam and a class of female employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their sex and pregnancy.”

Julianne Bowman, the EEOC’s district director in Chicago, said in a statement Friday that Walmart’s alleged refusal to accommodate the pregnant workers amounted to a violation of federal law.

“What our investigation indicated is that Walmart had a robust light duty program that allowed workers with lifting restrictions to be accommodated,” she said. “But Walmart deprived pregnant workers of the opportunity to participate in its light duty program. This amounted to pregnancy discrimination, which violates federal law.”

The EEOC said it is seeking “full relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Walmart’s practices going forward.”

In a statement Friday, Walmart spokesperson Randy Hargrove responded to the suit, saying the company’s anti-discrimination policies were in full compliance with the law.

“Our accommodations policy has been updated a number of times over the last several years and our policies have always fully met or exceeded both state and federal law,” he said.

The nation’s largest private employer, Walmart is reportedly facing similar lawsuits in other states, including Illinois and New York. In May last year, Hargrove issued a statement insisting the company was “a great place for women to work.”

According to Reuters, the company requested to have the Illinois suit tossed out earlier this year, but was denied. The New York suit is currently pending.

This article was originally published at ThinkProgress on September 22, 2018. Reprinted with permission. 

About the Author: Melanie Schmitz is an editor at ThinkProgress. She formerly worked at Bustle and Romper. Send her tips here: mschmitz@thinkprogress.org.

What activities are protected from whistleblower retaliation?

Monday, July 30th, 2018

Federal employees have strong — but not unlimited — whistleblower protections. There is too much at stake if you have built a career working for the U.S. government. Before you report wrongdoing or exercise employment rights, you of course want to be sure you won’t jeopardize your job, your benefits and your career.

Namely, it is important to know which activities are specifically protected from retaliation. Some protections are universal for all federal employees, and other whistleblower rules are agency-specific.

Protected whistleblower activities under federal employment law

The follows actions and activities are protected from termination and other forms of whistleblower retaliation:

  • Reporting to your employer a criminal act, law violation, fraud, waste or mismanagement of government funds, abuse of authority, substantial and specific danger to public safety, or threats to the integrity of scientific research such as censorship or manipulation of data
  • Refusing to engage in an unlawful practice, if you have informed your employer that you believe it violates the law
  • Cooperating with internal investigations, including testifying, assisting the investigation or preparing to do so.
  • Testifying before Congress, the EEOC or any federal or state proceeding (or preparing to)

Up to one-third of whistleblowers experience some retaliation

This is a simplified and not exhaustive list of protected activities under the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act. An attorney who specializes in federal employment law can advise on the procedures and protections specific to your agency and your circumstances.

Under the WPEA, you are protected if you report wrongdoing to a supervisor or coworker who participated in the unlawful activity. You are also protected if others have previously reported the same or similar wrongdoing.

You are not protected from adverse employment actions that are unrelated to your disclosures. But all too often, demotions, revocation of security clearance or other adverse actions are veiled and trumped-up retaliation for bringing scrutiny to unlawful activity. And that is exactly what the federal whistleblower laws are designed for.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

This is why workplace harassment training is so ineffective

Wednesday, July 25th, 2018

It’s a scenario that has become familiar to almost anyone who works in an office.

After “recent events around the country,” a well-meaning sexual harassment educator comes in to teach the letter of the law. The mandatory training provides information on “each and every sexual harassment law,” but the effects fall somewhere between useless and detrimental. The trainer comes at a large financial cost and proves to be of questionable value. Ultimately, the trainees leave discouraged and the hostile climate remains.

This all-too-familiar scene was demonstrated by the arrival of Petey the Sexual Harassment Panda on South Park, way back in 1999. His song-and-dance approach before a class of fourth graders was obviously a caricature. But sexual harassment experts say the problems he demonstrated — overly legalistic trainings that are more about liability protection than culture change and that come without proven results — have become ubiquitous, even as America reckons with the #MeToo moment. Trainers and training companies make a mint off of these trainings, more and more places are mandating them, and there is a built-in disincentive for trainers and employers to ever really explore whether they are helping to reduce harassment.

Fran Sepler, a consultant and trainer who has worked in sexual harassment prevention for more than 30 years, says that trainings that focus mostly on what the law says are not productive and may actually convey that “anything short of illegal behavior is tacitly acceptable.”

“Even though unlawful harassment is a terrible thing and a problem, your odds of being [illegally] harassed are relatively small, say 20 percent for women and less for men,” she explained. “Rude and uncivil behavior — close to 100 percent experience that at some point.” Yet the typical workplace harassment training video shows unrealistic situations that don’t match up with real life. “I show clips of about 50 videos,” Sepler said, “All show people putting their hands on the backs of colleagues.”

In the 1990s, a series of Supreme Court rulings had the effect of giving companies an incentive to do sexual harassment training: liability protection. Linda Seabrook, general counsel and director of legal programs for the non-profit Futures Without Violence said that this was a big factor in the growth of the industry. [Full disclosure: Futures Without Violence has previously provided its programming for ThinkProgress staff and other employees at the Center for American Progress. ThinkProgress is an editorially independent project of the Center for American Progress Action Fund].

“The reason they do sexual harassment training is not prevention,” Seabrook told ThinkProgress. “It’s so they can avail themselves of a certain defense: Faragher-Ellerth.” The term refers to a pair of judicial precedents (Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth) that suggested employers who do trainings can be protected from liability for some sexual harassment that might occur among their employees.

Alas, she said, these trainings on what is prohibited do not solve the problem at all. “I don’t understand how people think that type of training will lead to prevention. It trains you on the law and the employer’s policy. It does not and cannot at all train or educate you on what fosters or facilitates this type of conduct and/or what type of workplace doesn’t allow for this type of conduct.”

A lucrative industry

In 1998, the Los Angeles Times predicted court rulings would soon spur employers to spend big to protect themselves from future liability by providing sexual harassment training to their employees. It cited a projection that “U.S. employers will spend $10 billion annually on employment-law-related training by 2000, up from $5 billion in 1995, with sexual harassment prevention one of the main topics.” Two decades later, one training company told the paper it had received 2,150 requests for its programs in January — over 8 times more than the previous January.

Seabrook said Futures Without Violence has seen a significant increase in the number of “workplace education” sessions it it has been asked to do since the start of the #MeToo movement. But to be successful, she noted, the focus really has to be on building a thriving workplace community: the “deep-seated gender norms,” the sexism, the misogyny, and the anti-LGBTQ sentiments in our society require more than “a one-hour training or a two-hour training once a year.”

Jocelyn Frye, a senior fellow at the Center for American Progress, is an expert on sexual harassment policy. She said there’s growth in the demand for harassment training: “People who do trainings are getting a significant uptick,” she said. And she believes trainings can be a good thing, “but it has to be good training.”

“Nobody funds research”

One of the biggest obstacles to culture change is ignorance — sometimes willful — about what the problems are and what actually helps to solve them. In the past, Frye said, “employers historically have been unwilling to do certain types of assessments because they feared it could be used [against them] in litigation.” And few employers’ harassment training providers have had the ability or volition to find out if their methods are working.

That’s why so few businesses have embraced an evidence-based approach to figuring out what actually works.

“The fact that there isn’t info is itself sort of the news,” said U.S. Equal Employment Opportunity Commission Commissioner (EEOC) Chai Feldblum, who co-chairs the commission’s Select Task Force on the Study of Harassment in the Workplace. She co-authored a 2016 report for that task force, asking, essentially, why the problem remains so pervasive and what can be done about it.

In a telephone interview, she told ThinkProgress, “The fact that the evidence hasn’t shown that the type of training done for a decade [to be effective] doesn’t say training isn’t important. It just says training — in a vacuum — doesn’t seem to have much of an impact.” What limited research there is suggests that some things do help: leadership can change office culture, management can hold people accountable, the organization can set clear policies that go beyond the legalistic, and workplaces can have meaningful training. “We have a sense of what can work… [But] we don’t yet have solid evaluations of each of these things. Certainly not of them as a total package.”

As with all research, money is a factor. “Nobody funds research,” Futures Without Violence’s Seabrook observed. Social scientists “don’t have the resources to do that kind of work,” she said, noting that the EEOC has no research arm and is historically a low-priority department for administrations. Still, she explained, legislation will soon be introduced in Congress to fund research into all types of workplace harassment.

Feldblum agreed and noted another challenge: “We’ve always had two issues: one was get the funding, two was get the subject of the research (the employer) to say yes” to research into their workplace. Unless an employer is willing to let researchers examine the climate of a workplace before and after trainings and other interventions, there is no way to really know if they worked.

Legally, companies could be held liable for holding trainings they know are ineffective, creating a disincentive. But Frye says “it’s better to know your problems than to feign ignorance.”

According to Sepler, a lot of researchers would be “delighted” to do those kinds of examinations if they had the funding. “What if they evaluate a training model and and it shows it is ineffective?” she asked rhetorically. Despite the desire for evidence of results, “no one wants to be the organization where there is data [proving] you’ve been doing something demonstrably ineffective.”

Vicki Magley, a professor of psychology at the University of Connecticut, is one of the few people who has studied which interventions actually succeed at reducing harassment. She observed that most of the assessment of training is done by the vendors themselves — and it is less-than-rigorous data. “I’ve talked to many, many training companies over the past few months who want to tell me all the wonderful things they’re doing with their training. They don’t sound terrible…” she said. “But when I ask, ‘how do you evaluate whether this is doing anything?’, they have no answer.”

“You can ask trainees at the end of a training how well they liked the training, with smiley faces. That doesn’t tell you anything about attitude change, culture change, perceived risk [for reporting harassment],” she said. Instead of a rigorous before/after assessment, participants are mostly asked if the experience was helpful and if the free cookies served were fresh. That sends the message to employees that the company doesn’t take such trainings seriously.

In her own research efforts, she has encountered strong resistance to that sort of before and after study. Recently, she recounted, one organization hired her to evaluate a training but refused to let her evaluate efficacy. “I was being asked to come in and evaluate a training. I was told I couldn’t really evaluate it in the way that was going to be useful because ‘it was going to end up costing too much money and that would just be too expensive.’” With her university bearing the brunt of the costs, she said, she knew “at the end of the day, they just didn’t want to know.”

Magley also noted that many companies use online trainings which are even less evidence-based and can easily be completed by employees with “half an eye and half a heart.”

“If there’s a dearth [of research] on sexual harassment training, there is almost zilch on online training,” she says. “We really don’t know if it does anything.”

A roadmap for employers

Still, state and local lawmakers continue to pass laws making harassment training mandatory, without really taking into account whether it helps. Often these laws require that medium and large employers provide lengthy explanations about the letter of the sexual harassment law. In turn, this increases the incentives for training companies to remain ignorant about whether their in-person or virtual trainings are useful.

Robin Shea, a partner at Constangy, Brooks, Smith & Prophete who tracks state harassment training laws, said in an email that New York State and New York City were the most recent major jurisdictions to enact mandatory training for all major employers. When they go into effect in the upcoming months, New York will join California, Connecticut, Maine, and possibly additional states. “I do expect mandatory harassment training laws to be a hot legislative topic this year and in 2019 because of the #MeToo movement,” she predicted. Earlier this year, Connecticut’s senate, in a bipartisan vote, moved to expand the required two-hour training to employers with at least 20 employees (instead of 50) — though that bill died in the state’s house due to controversy around some other provisions.

But how to actually improve the problem? Feldblum said the EEOC task force report — a series of non-binding recommendations — is a “road map for employers to take.” It recommends an array of steps including greater accountability, new and different approaches to training, and more effective reporting systems.

Among the ideas in the report is a proposal that when employers accused of harassment enter into settlement agreements with the commission, they include requirements that researchers be allowed to work with the employer to assess climate and harassment levels before and after implementations of compliance trainings, civility trainings, and bystander intervention trainings.

So far, she has not seen a huge number of takers. “Even if we find an employer who is willing, we still have to fund it,” she said.

The University of Connecticut’s Magley thinks ultimately the solution may have to come from the judiciary. “Courts need to say, ‘You can do training, that’s a fine thing to do, but if you do that, you need to document that it is effective, that it’s doing what it’s supposed to be doing.’” By requiring that for legal liability protections, organizations would be “held accountable to truly effectively change structures,” rather than “do whatever they can, as cheaply as possible, to check the box.”

With the Trump administration working to pack the federal courts with Clarence Thomases and Sam Alitos who side with businesses over workers in case after case, that shift may not be quick.

“Legal change is a slow-moving train,” she acknowledged, but “hope rests on the shoulders of current law students actively reading this literature and law professors who are training that that type of thinking can start to permeate and change the culture.”

This article was originally published at ThinkProgress on July 25, 2018. Reprinted with permission. 

About the Author: Josh Israel has been senior investigative reporter for ThinkProgress since 2012. Previously, he was a reporter and oversaw money-in-politics reporting at the Center for Public Integrity, was chief researcher for Nick Kotz’s acclaimed 2005 book Judgment Days: Lyndon Baines Johnson, Martin Luther King Jr., and the Laws that Changed America, and was president of the Virginia Partisans Gay & Lesbian Democratic Club. A New England native, Josh received a B.A. in politics from Brandeis University and graduated from the Sorensen Institute for Political Leadership at the University of Virginia, in 2004. He has appeared on cable news and many radio shows across the country.

Workplace Safety: Expect Excellence From Your Employer

Tuesday, June 19th, 2018

You should expect your employer to establish a strong safety culture that results in an injury-free, healthy, non-hostile workplace.

Unfortunately, OSHA can only do so much to establish what “safe and healthy” means, or to enforce those protocols. Many people, like those at Public Citizen, recognize that “government protection of workers is far from adequate.”

This means that more must be done than just meeting government standards.

High Standards for Health and Safety Should Be the Norm

Each workplace is unique, so those in charge of safety must identify and mitigate their specific health and safety issues. Hazards also change over time, so safety protocols must be adapted.

The aim, after all, should be to make sure you stay safe and healthy, physically, mentally, and emotionally. That means no workplace injuries, and certainly no fatalities, nor any disrespectful behaviors: expect respect.

What Is a Safe and Healthy Workplace?

In order to make sure you are in a safe and healthy workplace, it’s important to understand what that means. Consider some of the most common causes of workplace injuries: stress, fatigue, falling objects, lifting, collisions, and trip and falls. Are your safety managers addressing these issues?

The environment you work in should be healthy. That means clean air, a clean workspace, good lighting, and reasonable noise levels.   

Management should regularly provide information and training about how to stay safe and healthy. They should encourage and facilitate physical fitness, fatigue prevention, mental and emotional well-being, and healthy eating.

Your health and wellness, and that of your co-workers, are the foundation of a satisfying and productive work environment. Consider that your well-being is also contingent on your co-workers’ well-being. A fatigued or distracted workmate is more likely to create unsafe circumstances for others.

The more rested, clear-headed, and healthy the staff, the safer the work environment will be for everyone.

Be Proactive

You play a part in safety, too. Take moments to stretch, rest, and move as needed. When stress is high, reset with some deep breaths. And keep your workspace clean and free of hazards.

Offer help to other employees who are doing something unsafe. Be respectful of others and expect respect from them. If you see hazards, report them to your safety manager. Make suggestions to improve health and safety. Is there a vending machine with soda, candy, and chips? Request that your employer swap some (all?) of that out for healthier options.

Initiate a walking group or encourage others to join you in training for a local 5 km. Ask your employer if they’ll sponsor you. Get creative in helping to make your workplace a thriving environment.

Know Your Rights, Use Your Voice

Of course, the ideal workplace isn’t always possible in the real world. Some employers simply won’t prioritize employee well-being to the degree they should. When you experience a violation of your health or safety at work, write it down and report it to your employer. A paper trail is your best friend if you need to take further action.

If your employer doesn’t remedy the problem, contact OSHA. You can do this anonymously. You have rights and you should be aware of what they are. In his article “The 6 Reasons OSHA Will Inspect Your Workplace,” Gabe L. Sierra, the managing director of Prometrix Safety Consulting, states, “In many industries, employee complaints are the single most common reason why OSHA will conduct an inspection at a workplace.”

Are you afraid of your employer retaliating? Retaliation is illegal. You can report that to OSHA, too. If you experience discrimination or harassment, you can file a charge with the U.S. Equal Employment Opportunity Commission. For extreme cases of health and safety violations, you can consult a lawyer and file a lawsuit.

Just don’t stay quiet. Speaking up can be frightening, but change doesn’t happen if people remain silent. Consider the recent shift toward intolerance of sexual harassment and assault in the TV and film worlds, and beyond, because people spoke up. By saying something, you’re part of the solution, even if that solution takes time to arrive.  

Your Excellent Work Environment

Let’s hope that you have a safety manager who will be receptive to your suggestions and want to work toward an optimally safe environment.

Most of us spend an enormous amount of time at work. Why wouldn’t we expect and contribute to it being as safe and healthy as possible?

About the Author: TJ Scimone founded Slice, Inc. in 2008. His priority has been design, innovation, and safety. The result is a unique line of cutting tools, all of which are ergonomic and feature finger-friendly® blades. Safety is a key aspect of the Slice message and the website features a weekly Workplace Safety Blog.

Failure to Accommodate is Disability Discrimination

Friday, June 1st, 2018

Many people with disabilities face barriers before they even get their foot in the door. But the hiring process is only one form of disability discrimination.

Employers — including federal agencies and government contractors — are legally obligated to accommodate disabilities. But what is considered a “reasonable” accommodation? What if the employer says no?

What does disability accommodation look like?

Under the Rehabilitation Act of 1973 and the Americans with Disabilities Act, employers must provide reasonable accommodations to enable individuals with a disability to (a) compete for a job, (b) access the workplace, (c) perform the functions of the job and (d) enjoy the perks and privileges of the job.

The Equal Employment Opportunities Commission offers these examples of disability accommodations:

  • A wheelchair ramp or handicap-accessible bathroom
  • Specialized equipment or workstation alterations
  • Dictation software for a person with carpal tunnel syndrome
  • An interpreter or TTY software for a hearing-impaired person
  • Changing or eliminating some job tasks
  • Dividing the work day or allowing for extra breaks
  • Working from home (telecommuting)
  • Reassignment to a vacant position

What is the process for requesting accommodations?

Many applicants are hesitant to ask for accommodations during the hiring process. They don’t want to jeopardize their shot, or may not know what accommodations are needed until they start the job.

A request for accommodations can be made at any time, orally or in writing. Once the request is made to a supervisor or manager, it must be forwarded to the agency’s designated Disability Program Manager. The DPM must accept the request and forward it to the appropriate parties. The DPM must respond to the employee within 10 days to discuss viable solutions.

What does failure to accommodate look like?

If management ignores or flatly refuses a reasonable request, that constitutes discrimination. The law requires employers to make a good faith attempt to work with the disabled employee. If the accommodation is not feasible because of cost or other factors, the employer is obligated to offer alternatives or consider compromises. Under the law, refusing to engage in an interactive process is considered failure to accommodate.

For federal employees, all requests for accommodation go through the EEOC. Sometimes the EEOC authorizes an accommodation that differs from the original request. This is not considered failure to accommodate.

What are the remedies for disability discrimination or inadequate accommodation?

If the EEOC denies a request, it must give a detailed explanation why. The employee can request reconsideration through an informal process. If the decision is still unsatisfactory, or if there has been an adverse action, the employee can initiate a formal appeal or grievance through the EEOC or the Merit Systems Protection Board.

If a government contractor or other private employer denies a reasonable request, the remedies vary. The employee could sue to force the employer to provide accommodation. If the employee was let go, reassigned or harassed after requesting accommodations, they could sue for reinstatement or sue for damages for wrongful termination or retaliation.

People with disabilities want to work and contribute and be valued, just like everyone else. If the accommodations would be effective and would not cause the agency or company undue hardship, the law requires it.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on May 31, 2018. Reprinted with permission.

Toiling Over a “Puddle of Blood”: Why These Warehouse Workers Are Standing Up to Abuses

Monday, April 23rd, 2018

Fifty years ago, Dr. Martin Luther King Jr. lent his support to the historic Memphis sanitation workers’ strike. Today, the safe working conditions that strikers fought for in 1968 remain elusive for low-wage workers in one Memphis warehouse.

Workers at the XPO Logistics warehouse in Memphis announced in early April that they had filed a complaint to the Equal Employment Opportunity Commission (EEOC) alleging rampant abuse, including sexual harassment. On April 3, workers held a rally with the International Brotherhood of Teamsters (IBT) to coincide with the filing of the EEOC complaint.

The complaint was triggered by an XPO worker’s death that co-workers attribute to company policies which restrict workers from leaving the job. In October 2017, Linda Neal, 58, died at work after passing out on the job. Workers allege that a supervisor denied Neal being given CPR by a co-worker. Medical reports confirmed that Neal died of a heart attack caused by cardiovascular disease.

XPO Logistics, based in Connecticut, has warehouses across the country and a market value of nearly $9 billion. The company provides transportation, delivery and logistics for Verizon, Ikea, Home Depot and other retailers. The Memphis warehouse has more than 300 permanent employees and more than 400 temporary workers.

Lakeisha Nelson, who has worked for XPO since 2014 and was close to Neal, tells In These Times, “[Neal] was a mother figure to a lot of us, and we had to become family in that building. We had to work over the puddle of blood that was left behind the next morning, and that hurt me to my core.”

Nelson believes company policy played a role in Neal’s death, recalling that an XPO supervisor would not allow Neal to leave work when she expressed she was feeling ill.

“She told them she wasn’t feeling well and this was just XPO’s policy,” says Nelson. “I don’t blame the supervisor, he was just doing his job. This is what he has to do in order to keep his job—don’t let anyone go home.”

“The only thing that’s important to XPO is them making money, and if it takes our lives to get their money, then our lives are expendable,” says Nelson. “And they tell us all, if you don’t like the way we do things, find another job. It’s very, very easy to get fired there.”

Staff workers have filed multiple complaints regarding safety hazards and dangerous working conditions, but little has been done by management to address them, according to Nelson.

Nelson says the building and ceiling are caving in while workers face harsh temperatures inside that fluctuate with the weather, and that sweaters are only allowed if they are purchased through the company.

The forgotten women of #MeToo

Sexual harassment at the company is another issue that has gone unsolved, despite attempts to get Human Resources involved, according to Nelson.

The warehouse has a history of sexual harassment. In 2015, New Breed Logistics, which was acquired by XPO in 2014, lost a $1.5 million dollar suit after a male supervisor sexually harassed three female temporary workers who were then terminated for refusing his advances.

Elizabeth Gedmark is a senior staff attorney for A Better Balance, an organization that promotes paid leave and other family-friendly policies, and which is supporting the Memphis warehouse workers. She says that low-wage workers are particularly at risk of harassment. 

“The notion that you can just quit and leave your job when you’re faced with sexual harassment or discrimination does not apply to a low-wage worker needing to get by living paycheck to paycheck,” Gedmark tells In These Times. “If she does file a complaint, she faces a very real likelihood of retaliation.

“They’re very much a part of the global #MeToo movement that’s not just about movie stars or wealthy women, it’s really about these women being put front and center, the hard-working, average women who too often go unnoticed.”

Next steps

Restrictive scheduling and time-off policies are also affecting XPO workers’ personal lives. Nelson claims that workers often do not know when their shift will end and have little to no notice of overtime.

Elizabeth Howley, 38, is the operational administrator for the Memphis warehouse and has been at the company for six years. Howley has also expressed concerns over poor working conditions, claiming workers have been forced to deal with bugs, snakes and other creatures infesting the workplace. But, she says, the strict hours are what have most driven emotional stress in her personal life.

Howley says that most of the women working at the warehouse are single mothers, and being separated from their families and children for long periods have taken a toll on them. When Howley’s oldest son dropped out of high school, she says, she was unable to get out of work to help get him back into school. 

“I’ve lost so much time with my children in the past five or six years being with this company and it hurts because my kids are in need of me and I can’t be there for them,” Howley tells In These Times. “I had to apologize, saying ‘I’m sorry, son, I don’t have PTO time to get you back into school.’”

The Memphis XPO warehouse workers are currently working with IBT to address these issues and improve the safety conditions and end the harassment that continues in their workplace. They are in the early stages of organizing, and IBT General President James P. Hoffa has pledged to back them in their union drive. They have also earned the support of civil and women’s rights groups such as the NAACP and National Women’s Law Center.

“Maybe by exposing XPO and the conditions that they make these workers work under will bring about a change,” Felicia Walker, an international organizer for IBT, tells In These Times. “These are human beings, not animals. There are laws to protect animals from that treatment, what about humans?”

This article was originally published at In These Times on April 23, 2018. Reprinted with permission. 

About the Author: Mica Soellner is a journalist currently based in Washington D.C. She has written for a variety of global outlets and is interested in pursuing stories about issues in the workplace.

The utterly nonsensical way NFL cheerleaders must live their lives comes out in discrimination suit

Tuesday, March 27th, 2018

It’s no secret that NFL cheerleaders are underpaid, undervalued, and held to ridiculous beauty standards by NFL organizations.

But on Sunday, the New York Times published an infuriating report that reveals that some teams exert almost maniacal control over both the public image and personal lives of cheerleaders — all based on toxic, outdated notions of how both men and women should behave.

The article tells the story of Bailey Davis, a former New Orleans Saints cheerleader who has filed a complaint with the Equal Employment Opportunity Commission. The main issue at hand involves the restrictions that NFL teams routinely put in place barring players from fraternizing with their respective team’s cheerleaders. As it turns out, the Saints are so particularly worried about the matter that they put the impetus fully on the cheerleaders to avoid NFL players in all social situations, be it on social media, at a restaurant, or at a party.

In her complaint, Davis claims she was fired by the Saints for posting a photo of herself in a one-piece bathing suit on her private Instagram and for attending a party at which Saints players may have been in attendance. On the latter charge, Davis denies that she violated any team regulation. But as the report makes clear, undertaking a good faith effort to avoid NFL players in this fashion may simply be an unreasonable thing to expect of anyone.

According to the Times, keeping themselves away from NFL players on social media and in person is a never-ending job for Saints cheerleaders, who are considered part-time, contract employees, and barely earn minimum wage.

Cheerleaders are told not to dine in the same restaurant as players, or speak to them in any detail. If a Saints cheerleader enters a restaurant and a player is already there, she must leave. If a cheerleader is in a restaurant and a player arrives afterward, she must leave. There are nearly 2,000 players in the N.F.L., and many of them use pseudonyms on social media. Cheerleaders must find a way to block each one, while players have no limits on who can follow them.

These rules are offensive on multiple fronts. First of all, they put sole responsibility for behavior on the women, making it their duty to ensure they don’t in any way “tempt” football players. It also insinuates that their mere presence is an enticement of sorts, that they’re inviting sexual attention or even harassment merely by living their lives or posting pictures on social media.

It also paints NFL players as men who lack self-control, the ability to behave properly around women, or the capacity to follow simple rules.

The difference in rules and regulations between men and women is the crux of Davis’s EEOC gender discrimination complaint. In the suit, she argues that she qualifies as “NFL personnel,” which means the NFL’s personal conduct policy applies to her as well as her fellow cheerleaders.

That same personal conduct policy prohibits any discrimination based on race, color, religion, sex, national origin, age, disability, or sexual orientation. Davis asserts that because the rules governing both social media use, as well as who is allowed to be with whom in public, are restrictions that are only placed on cheerleaders. As the team cheerleaders are all women, Davis argues that this is a form of discrimination.

“If the cheerleaders can’t contact the players, then the players shouldn’t be able to contact the cheerleaders,” Sara Blackwell, Davis’s lawyer, told the Times. “The antiquated stereotype of women needing to hide for their own protection is not permitted in America and certainly not in the workplace.”

This article was originally published at ThinkProgress on March 26, 2018. Reprinted with permission.

About the Author: Lindsay Gibbs is a sports reporter at ThinkProgress.

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