From CNN.com:
For the first time, the U.S. Senate approved legislation that would protect gay, lesbian and transgender employees from discrimination in the workplace.
The Employment Nondiscrimination Act, or ENDA, passed the Democratic-led chamber on Thursday, 64 to 32.
Unless House Speaker John Boener has a change of heart, however, those (including me) who favor amending Title VII to include protections for sexual orientation and gender identity will have to keep waiting.
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By now, you’ve likely read about Miami Dolphins offensive lineman Richie Incognito and the abusive voicemails and text messages he sent to teammate Jonathan Martin.
Among the voicemails is this gem (per ESPN):
Hey, wassup, you half n----- piece of s---. I saw you on Twitter, you been training 10 weeks. [I want to] s--- in your f---ing mouth. [I’m going to] slap your f---ing mouth. [I’m going to] slap your real mother across the face [laughter]. F--- you, you’re still a rookie. I’ll kill you.
ESPN also report that Incognito did not limit his use of racial epithets to that lone voicemail, and that he also sent Martin a series of texts that included derogatory terms referring to the female anatomy and sexual orientation.
Meanwhile, Fox Sports reports that Dolphins coaches encouraged veterans to toughen up Martin, and knew that some were using hazing as a means to that end.
I’ve never played organized football at any level, and I’m not going to pretend to know of the culture that exists inside its locker rooms. What I do know something about, however, is corporate culture in general. Your company cannot turn a blind eye to hazing and other bullying-related misconduct.
Unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin…) bullying is probably legal. As the U.S. Supreme Court has famously said, our workplace discrimination laws are not meant to be “a general civility code for the American workplace.” In layman’s terms, our laws allow people to be jerks to each other at work.
Just because it’s legal, however, doesn’t make it right. The question is not whether the law protects the bullied, but instead how you should respond when it happens in your business. If you want to lose well-performing, productive workers, then allow them to be pushed out the door by intolerable co-workers. If you want state legislatures to pass workplace bullying legislation, then ignore the issue in your business. If you want to be sued by every employee who is looked at funny or at whose direction a harsh word is uttered, then continue to tolerate abusive employees.
The reality is that if companies do not take this issue seriously, state legislators will. The high-profile case of Jonathan Martin will only help the cause of those who believe we need workplace anti-bullying laws.
What can you do now to protect your employees?
Review current policies. Most handbooks already have policies and procedures in place that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards-of-conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.
Take complaints seriously. These policies are only as good as their enforcement. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.
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Two months ago I wrote the following, concerning whether employers should be thinking about implementing bans on employees using recording devices in the workplace:
If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy? Unless, of course, the NLRB gets its way and renders these policies per se illegal.
At least as to the last point (the legality of such bans under the National Labor Relations Act), we now have the beginnings of an answer, via the decision of an NLRB Administrative Law Judge (the finality of which depends on whether the union appeals the decision to the full Board in Washington D.C.).
In Whole Foods Market, Inc. (NLRB Case No. 01-CA-096965 10/30/13) [pdf], the union challenged the following no-recording policy:
It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.
Violation of this policy will result in corrective action up to and including discharge.
The ALJ concluded that this policy did not violate the rights of the employees of Whole Foods to engage in protected concerted activity under the National Labor Relations Act:
I have found no cases, and none have been cited, in which the Board has found that making recordings of conversations in the workplace is a protected right…. Even if recording a conversation is a protected right, the Respondent is entitled to make a valid rule, such as the one in question here, to regulate its workplace, and in doing so, prohibit such activity….
The rule does not prohibit employees from engaging in protected, concerted activities, or speaking about them. It does not expressly mention any Section 7 activity. The only activity the rule forbids is recording conversations or activities with a recording device. Thus, an employee is free to speak to other employees and engage in protected, concerted activities in those conversations….
There is no basis for a finding that a reasonable employee would interpret this rule as prohibiting Section 7 activity.
In light of this decision, what is an employer to do?
Review any existing workplace recording policies to ensure that the stated reasons for the policy is clear. For example, in Whole Foods, the company relied on the protection of “candor and forthrightness in employee opinions.”
Do not institute a new recording ban, or amend an existing policy, in response to union activity.
Do not apply a recording ban to limit or prohibit the recording of protected Section 7 activity (wages, benefits, terms and conditions of employment, union issues, etc.).
This case offers hope to employers that there exists a more reasonable analysis of the application of Section 7 rights to workplace policies other than suggested by the Board’s recent actions.
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ABCNews.com is reporting that a CNN reporter, Josh Levs, has filed an EEOC charge against Time Warner challenging its family leave policy as discriminating based on sex.
Levs, whose wife just gave birth to their third child, claims that his employer treats biological fathers differently. He claims that Time Warner’s policy permits 10 weeks of paid leave to women who give birth to children, or male and female parents following adoption or surrogacy. Biological fathers, on the other hand, are limited to two weeks of paid leave. This treatment, Levs says, discriminates against him as a man.
On his Tumblr, Levs makes a compelling argument for the unfairness of Time Warner’s policy:
If I were a woman, but other elements of my situation were the same — I was still with the same woman (so that would be a same-sex relationship), and she gave birth to our child, legally I would have to adopt in order to be co-parent. I would then have the option of 10 weeks off, paid.
Or how about this: If I gave my child up for adoption, and some other guy at Time Warner adopted her, he would get 10 weeks off, paid, to take care of her. I, however, her biological father, can’t.
The visceral reaction to a story such as Levs’s is to say, “Time Warner is treating men and women differently; therefore, it’s sex discrimination. Case closed.” The question, however, isn’t whether the policy is fair, but whether it’s legal.
There is one key difference between women and men when they welcome a new-born child. Women give birth; men don’t. A women is not medically ready to return to work the day following childbirth; a man is. Indeed, current medical guidelines suggest that women take six weeks off from work following a vaginal delivery, and eight following a C-section. Adoptions also provide different challenges to a couple, including adjusting to new family member without the buffer of a nine-month pregnancy. As Time Warner points out, its policy provides 10 weeks of paid leave, more generous than the medical standards and the FMLA’s guarantee of unpaid leave.
Yes, Time Warner’s policy can lead to absurd results in extreme situations, as Levs points out. But, before we jump the gun and lynch the company from the sex-discrimination gallows, we need to consider that there might be an explanation that justifies its policy other than discrimination.
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Today could prove to be a historic one for civil rights. According to reports, the Senate is likely to vote later today on the Employment Nondiscrimination Act [pdf]. ENDA, as it’s more commonly known, would amend Title VII to include protections for sexual orientation and gender identity. Early reports indicate that it could have enough support to pass in the Senate (even my home-state Republican Senator, Rob Portman, has indicated he may vote for it). Whether it can pass the Republican-controlled House and make it to President Obama’s desk for signature is another story. Trying to do his part, President Obama has penned an article for the Huffington Post urging both houses of Congress “to vote yes on ENDA.”
Those who have read my earlier thoughts on ENDA know that I’ve long preached that I believe it’s shameful that in 2013 there still exist minorities against who the government says it’s legal to discriminate. Critics of ENDA argue that it’s not necessary to impose legislative burdens on employers because most already prohibit this form of discrimination via their own internal policies, or because state and local jurisdictions that have passed similar laws do not report an increase of claims.
To these critics, I say that you miss the point. Anti-discrimination laws that exclude sexual orientation and gender identity suggest that these forms of discrimination are permissible. Additionally, while I look forward to embracing the day that all forms of discrimination cease to exist, I would not argue for the abolition of all anti-discrimination laws if that were to occur. Instead, I would argue that the laws are working, and are needed as a deterrent to maintain the status quo.
Perhaps Apple CEO Time Cook put it best in a Wall Street Journal Op-Ed urging for ENDA’s passage:
So long as the law remains silent on the workplace rights of gay and lesbian Americans, we as a nation are effectively consenting to discrimination against them.
As an advocate for employer rights, it’s rare that I’m in favor of increased regulations on businesses. Yet, this legislation is a no-brainier. As we approach the 50th anniversary of Title VII, now is the time to tell our workers that we, as a nation, support equality among all, including the LGBT community. Otherwise, the very principle upon which our country was founded (that all people are created equal) is nothing but a sham.
I will update the blog after the Senate holds its vote on ENDA.
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Flu season is upon us. Do you know, that according to the Walgreens Flu Impact Report [pdf], U.S. adults missed 230 million work days during last year’s flu season? Some additional findings of note:
What can you do about this? You likely can require your employees to receive flu shots, unless an ADA disability or sincerely held religious belief precludes one from receiving the vaccine. Better yet, offer vaccinations free of charge to your employees, right in your workplace. The cost of the vaccines and a nurse to administer them will pay for itself if it keeps even one employee from missing work.
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
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Today is Halloween. Truth be told, Halloween is one of my least favorite holidays. It always has been and always will be. I never liked it, even as a kid. Sure, all the candy was fun, but I just never got into the whole dress-up thing. As an adult, I like it even less. Not to be a Halloween scrooge, but I can’t even get into the holiday for my kids (this year, going as Mike Wazowski and a rock star), although I trudge though it for them.
A lot of people are into Halloween, and some are really into Halloween. It’s the holiday on which we spend more than any holiday other than Christmas. And, a lot of your workplaces will be having Halloween parties. Some of the parties will request that you dress up for the occasion. If you happen to work in one of the workplaces, you have my sympathies. You also have my top 5 tips to avoid turning your innocent costume party into an HR horror show.
Be appropriate. Racist costumes have no roll anywhere, especially in the workplace.
Be appropriate (number 2). If the name of your costume starts with “Slutty” or “Naughty” or some other similar adjective, pick another costume. Costumes like “Carlos Danger” (aka sexting Anthony Weiner), or anything else overtly sexual, are also really bad ideas.
Can you work in your costume? It may be really cute or clever dressing up as an iPhone, but if it hinders your ability to do even the simplest of tasks (like sitting at your desk), then it’s probably not the right costume for work. Make-up and masks, while impressive and scary, are probably best left at home.
Avoid dangerous costumes. No, I’m not talking about Leatherface with a real chainsaw (although that’s also a bad idea). I’m talking about long wigs, feather boas, or other materials that could get caught in dangerous equipment, for example.
Are you thinking about dressing up like a coworker or your boss? Does that individual have a good sense of humor? Are they going to take it the right way? You better be 100 percent sure before you don that mimicry.
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