Guest blogging at the Connecticut Employment Law Blog

I'm pulling double duty today. In addition to my regular posts here, I'm also guest blogging at the Connecticut Employment Law Blog to cover for Dan Schwartz while he's in trial. Click on over to Dan's outstanding blog (and I'm not just saying that because of my guest post) and take a look at my thoughts on the federal Healthy Families Act. While your there, be sure to subscribe and add Dan to your feed reader.

Avoiding more discrimination traps

Last week I talked about avoiding common traps in the questions that are asked during job interviews. The questioning, however, is not the end of this story. John Phillips' Word on Employment Law points out that even if the right questions are asked, the notes that interviewers take during the process can prove just as damaging. Interviewers always take notes. The notes enable the interviewer to remember key points about candidates and make pertinent comparisons at the end of the process. The key word, though, is "pertinent." John's point, which is an important one, is to make sure that any notes that are taken are job related and deal with a candidate's experience and skills, and not a protected class:

So, you would never write "black," "AA" (even if your explanation is that this stands for Alcoholics Anonymous instead of African-American, remember that alcoholism is a disability), "Asian," "Hispanic," "crippled," etc. You'll never be able to satisfactorily explain why you made those notes. If the applicant has a name that is used by men and women, don’t write "female," because if you don't hire her, you'll be accused of giving yourself a reminder that this applicant was female. If the applicant is female, don’t write "appears to be pregnant" (pregnancy discrimination is a form of sex discrimination). If the applicant is obviously in his/her 60's, don't write "too old for job."

These ideas don't only apply to interview notes, but any other notes that a supervisor, manager, or HR employee might take -- whether in an investigation, disciplinary meeting, termination meeting, or any other setting that might bear on one's employment. An HR professional might write "discrimination" in her notes taken during a meeting terminating a 60 year old employee. That note could be an admission that the employee was being discriminated against, or an innocent explanation that because the employee is 60 years old the possibility of a claim of discrimination exists. If it's in writing, though, that employee will have to explain what it means during a deposition or to a jury. I guarantee that an employer does not want it left to a jury to decide which interpretation of that note is more believable.

The bottom line -- think before anything is committed to paper. If you have any doubt about whether something can be used against you, omit it. Education about the employment discrimination laws is key to this process. If you don't know what is illegal, it's impossible to know the traps to avoid.

What else I'm reading this week #21

It seems no matter where you turn these days, you just can't escape the presidential campaigns. John Phillips at The Word on Employment Law has been doing a great series on where the presidential candidates stand on various pieces of pending employment legislation and other labor and employment issues. I highly recommend checking out John's thorough posts if you want a sense of what a Clinton or Obama administration might look like to employers.

Childrens' lit is all the rage with bloggers lately. The HR Capitalist blames a Dr. Seuss book, I Am Not Going to Get Up Today, for the mess of FMLA intermittent leave.

Rush Nigut, better known as Rush on Business, draws some lessons from a case on deleted emails.

The Labor & Employment Law Blog gives some pointers on a topic I've touched on quite a bit, preventative and corrective actions for workplace harassment.

Finally, The Laconic Law Blog reports that the District of Columbia has approved legislation for mandatory paid sick leave. In all likelihood, we will see a similar measure, the Ohio Healthy Families Act, on the ballot in Ohio in November.

EEOC posts huge gain in discrimination charges

According to this EEOC press release, discrimination charges filed with the EEOC increased by 9% in 2007. The 82,792 private sector discrimination charges filed last year was the highest volume of incoming charges since 2002 and the largest annual increase since the early 1990s.

Race was the most frequently filed claim, with retaliation a close second and having the greatest percentage increase:

Basis of Charge Filing	2007	2006	Percentage Increase/Historical Comparison
RACE	30,510	27,238	Up 12% to highest level since 1994
RETALIATION	26,663	22,555	Up 18% to record high level, double since 1992
SEX/GENDER	24,826	23,247	Up 7% to highest level since 2002
AGE	19,103	16,548	Up 15%, largest annual increase since 2002
DISABILITY	17,734	15,575	Up 14% to highest level since 1998
NATIONAL ORIGIN	9,369	8,327	Up 12%, above 9,000 for second time ever
RELIGION	2,880	2,541	Up 13% to record high level, double since 1992

EEOC Chair Naomi C. Earp believes that companies' failures in combating workplace discrimination explains these numbers: "Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively. To ensure that equality of opportunity becomes a reality in the 21st century workplace, employers need to place a premium on fostering inclusive and discrimination-free work environments for all individuals."

Ms. Earp's statement would be more telling if the EEOC also released data on the percentage of charges on which the EEOC found probable cause as compared to how many were dismissed. This increase is much more likely the result of the economic downtown and more job losses, instead of companies avoiding their EEO responsibilities.

The uselessness of the Working Families Flexibility Act

WorkplaceHorizons has tipped me off to a recently introduced Senate bill, the Working Families Flexibility Act.

This bill, sponsored by Senators Obama and Clinton among others, would provide employees with the right to request, once every 12 months, that his or her employer modify the employee's work hours, schedule, or location. The Act would then require the employer to meet with the employee to discuss the requested modification within 14 days. Within 14 days of that meeting, the employer would have to provide the employee with a written decision regarding the requested modification, stating the grounds for any denial and any proposed alternative modifications. If the employee is still dissatisfied with the employer's decision, the bill would allow the employee to request reconsideration and require the employer and the employee to meet to again discuss the request. The Act covers employees who work at least 20 hours per week and 1,000 hours per year, and employers with 15 or more employees.

The Act also would make it unlawful for an employer to interfere with an employee's attempt to exercise his or her rights under the Act or to retaliate against an employee. Aggrieved individuals could file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor. Violations could result in civil fines of up to $5,000 per violation and equitable relief such as reinstatement, promotion, back pay, and changes to terms and conditions of employment.

Last I checked, the employer sets the terms and conditions of employment, especially on the core issues of work hours, schedules, and locations. Do employees really need federal legislation to go to a supervisor and ask for such an accommodation? Will this legislation change employers' responses to reasonable requests? Won't employers still guide their responses by the specific needs of their businesses? Further, as long as an employer goes through this interactive process, where is the harm to the employee, who is granted no right to any modification? However, every time an employee's request is rejected, he or she will scream interference or retaliation to the DOL, creating an administrative nightmare. Talk about worthless legislation. This bill is currently sitting in the Senate Committee on Health, Education, Labor, and Pensions, where I hope it dies a quick death.

Department of Labor publishes new FMLA poster for Military Family Leave Amendments

On January 28, President Bush signed into law the National Defense Authorization Act for FY 2008. Section 585(a) of that Act amends the FMLA to provide eligible employees working for covered employers new leave rights related to military service. Because of these amendments, the Department of Labor has published an insert to its FMLA poster that all employers should add to their compendium of workplace postings.

Common stereotypes to avoid during job interviews

Yesterday, we took a look at some general dos and don'ts to keep in mind when conducting job interviews. Today, we'll delve a little deeper on the same topic, and examine some unconscious stereotypes that can unwittingly taint the interview process

The following are some examples of general stereotypes that could unintentionally pervade an interview and create liability problems under the employment discrimination laws:

• Stereotypes in the advertising for candidates (i.e., "young grad").
• Applicant's appearance makes him/her seem unable to do the job.
• Not hiring or promoting married women because they are not "primary earners".
• Refusing to hire or promote pregnant women, unwed mothers, or women with pre-school age children.
• Minimum height and weight requirements.
• People with disabilities and women will be absent more than other workers.
• Older workers have "peaked" or run out of gas therefore do not hire or promote.
• Younger people have high energy levels and are very open to learning new technology.
• She was "macho", needs to take a course in charm school. She should walk more femininely, and talk more femininely.
• Disabled individuals should be deemed candidates for short term employment only.
• Assuming women don't have physical strength.
• Women and minorities cannot do a job or do not want certain jobs.
• Candidates who are shy during the interview, will not perform well on the job.

Some of these examples are more obvious than others. Educating interviewers about yesterday's and today's pointers will go a long way towards preventing unconscious biases from tainting an interview and making what could have been an otherwise lawful hiring decision appear unlawful.