Maybe a long, long time ago, in a far, far away place, folks used to tell women, “Oh, you can’t do that … it’s a man’s job.” And for whatever reason, it was acceptable. Maybe the work was too heavy, muddy or risky? But welcome to 2008, where jobs are no longer classified by gender. Better check to make sure your hiring managers understand that, too …

Case in Point: Gloria Sims was a substitute lunchroom worker at an Alabama school when a full-time position opened up. Her supervisor, however, informed her that it was a “man’s job” because it involved lots of heavy lifting.

Plus, he said, the school was looking to add a “little color” to the lunchroom. So it decided to hire a black male candidate with a high school diploma.

Sims sued, alleging race and gender discrimination. The school denied the claim, arguing that Sims didn’t hold a high school diploma as required for the position. Sims argued that the school didn’t consistently stick to that diploma policy.

Two weeks after Sims filed her claim, she applied for a position outside the school district. According to Sims, when her supervisor was contacted by the potential new employer, he gave her a negative and untruthful reference. She didn’t receive the offer. So Sims tacked on a relation claim to her race- and age-bias lawsuit. (Sims v. Coosa County Bd. of Educ., M.D. Ala., 9/2/08)

What happened next and what 3 lessons can be learned?

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Employers often feel cornered when poor-performing employees take job-protected FMLA leave. Can you terminate such employees while they’re out on leave? It often comes down to one question: How well have you documented the poor performance? …

Case in Point: Jerilyn Lucas was hired to be a branch executive officer at a local bank in Wisconsin. While she had 14 years of marketing and sales experience, she’d never run a bank branch. Her supervisor initially gave Lucas a good performance review, but noted that she needed to improve her knowledge in basic branch operations within two months.

A few months later, Lucas’s supervisor began hearing complaints from bank employees that Lucas didn’t understand banking operations, was unavailable to answer questions, came late and left early. In her semi-annual performance review, Lucas was given a “2” out of “5” in staff performance management, branch client services and internal client services. (She did receive high marks for sales.)

Shortly afterward, Lucas experienced stroke-like symptoms and took one month off. Her temporary replacement was Robert Cooper, who had 15 years experience as a branch executive officer. Under Cooper’s leadership, staff morale improved and Cooper had an excellent attendance record.

When Lucas returned to work, three employees sought transfers to other branches. Her supervisor feared that Lucas’s negative attitude, unexcused absences, and lack of banking knowledge would cause “a mass exodus” of employees from the branch. The result: The bank fired her.

Lucas sued for gender discrimination under the Civil Rights Act of 1964 claiming her male replacement, Robert Cooper, was treated more favorably. The bank held up its documentation as evidence that the firing was based solely on performance. (Lucas v. PyraMax Bank, 7th Cir. 8/22/08).

How did the case end … and what lessons can be learned?

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You’re a tolerant, open-minded person. You’ve hired people of all races and religions, including a woman who wears a head scarf (hijab) in accordance with her religion. But what do say when that woman seeks a promotion to a more visible position? A few unwise words coupled with foot-dragging on the promotion and you’ll be wrapping your head around a religious discrimination lawsuit …

Case in Point: Angela Harper was a 20-year-old African American Muslim who wore a hijab for modesty in respect of her religion. An Ellensburg, Washington, restaurant hired her for a dishwasher job. Eventually, she asked a restaurant manager to be promoted to waitress. She was permitted to work only the less lucrative shifts of breakfast and lunch.

Harper asked to work the better dinner and cocktail shifts but was told no openings were available. However, over the next two years, the restaurant hired eight white employees as cocktail and dinner waitresses. Harper was eventually allowed to cover the dinner shifts for other employees as needed, but wasn’t give a full-time dinner shift.

The restaurant owner tried to justify her decision and insisted she was “not a bigot.” The owner told Harper, “it wasn’t about your race, it was more about your scarf thing. You know how people in Ellensburg are? They’re not gonna want to see, you know, a girl like that on the cocktail shift … It was a business decision, it was nothing against you.”

Eventually, the owner offered Harper a cocktail server position but the employee felt the offer was insincere and quit. She filed an EEOC claim for religious discrimination. The Civil Rights Act of 1964 prohibits discrimination in the workplace based on protected characteristics, including religion. (EEOC v. Starlight LLC, 8/04/08)

What happened next … and what lessons can be learned?

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When one of your employees confides in her manager that she’s being harassed by a co-worker, what will that manager say? Hopefully, it’ll be something more constructive than “Go along with it,” as in the following case …

Case In Point: Sheryl Bjornson was a used car salesperson for a dealership in Idaho. Her general manager allegedly swore, made comments about her body, shared his sexual exploits, cracked sexual jokes and repeatedly touched female employees. Bjornson complained to her immediate supervisor. His response: “Go along with it.”

So Bjornson turned to HR. She showed them her daily journal in which she was recording every incident. HR responded by conducting an investigation but never interviewed all the involved parties. Eventually, HR simply disciplined the general manager by giving him a warning to curb his lips.

Bjornson sued for sex harassment under the Civil Rights Act of 1964, which prohibits harassment based on sex. In such cases, employers can assert an affirmative defense against liability if they can show they exercised reasonable care to prevent and stop the unwanted conduct. They can defend against punitive damages if they can show they made a good-faith effort to educate their managers on the issue.

The dealership tried to defend itself by saying it had an anti-harassment policy in place. It also claimed it had done sexual harassment training, but it couldn’t show evidence of that training. (Bjornson v. Dave Smith Motors, July 31, 2008).

How did the case end, and what lessons can be learned?

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Asking your administrative assistant to fetch you coffee may be old-school, but is it sex discrimination? In a recent case, a female employee got in such a froth about her bosses’ demands for coffee that she said, “Get your own coffee and see you in court!” ...

Case in Point: Tamara Klopfenstein was hired as a part-time receptionist for a Pennsylvania sales company. But things went wrong right away. Her supervisors discussed her performance problems, such as failing to pass along phone messages and putting the wrong labels on packages.

But the real trouble began when Klopfenstein received an e-mail from a company vice president who said one of her “many responsibilities as a receptionist/customer services rep is making and getting coffee.”

He went on to place a reoccurring reminder on her electronic calendar to bring coffee to him and another exec at 3:00 p.m. each day. (When she interviewed, Klopfenstein wasn’t told that coffee service would be part of her duties. But it was mentioned soon after she was hired.)

Klopfenstein quickly e-mailed back, “I don’t have a problem getting coffee/and or water for our guests … I don’t expect to serve and wait on you by making and serving you coffee every day at 3:00. If I would have known that when I took the job, I would have never taken the job.”

Apparently, that was the last straw. Nine minutes after receiving Klopfenstein’s e-mail, the boss fired her. She then sued for sexual harassment, sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. She claimed her bosses created a hostile work environment by requiring her to perform the “degrading” task of getting coffee for male bosses. (Klopfenstein v. National Sales and Supply, LLC, ED PA, 6/5/08)

How did this case end … and what lessons can be learned?

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Judges and juries bring a mental stopwatch to every discrimination and retaliation case. They use it to compare the time between when employees exercise their legal rights (using FMLA, voice harassment complaint, etc.) and when you took action against them. Tick, tick, tick … if you can hear it, don’t do it!

Case in Point: William and Debra Trujillo worked at a power plant in Wyoming. Their son, Charlie, had brain cancer, which required expensive medical treatment. The power plant provided a self-insured health plan, meaning the company paid the bills directly. Each year, the company discussed the past year’s health claims and the possibility of raising employees’ premiums to cover the costs.

Eleven days after Charlie Trujillo started his “high-dollar” medical treatments out of state, the company began an investigation against his father for timesheet fraud. Mr. Trujillo stated that he was suffering from depression and taking anti-depressants, which affected his memory. Therefore, he couldn’t remember the details of his time sheets from months before. He was eventually fired.

Shortly after, Mrs. Trujillo was investigated for timesheet fraud. Six weeks later, she was fired for the same reason. Their son died the following year of his cancer.

The Trujillos sued the power plant under the Americans with Disabilities Act (ADA) for “association discrimination.” The ADA prohibits employers from discriminating against a qualified individual “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

The power plant argued that it had a legitimate, nondiscriminatory reason for firing: the fraudulent timesheets. But the Trujillos said the timing was too suspicious. (Trujillo v. PacifiCorp, 5/7/08)

How did this case end … and what lessons can be learned?

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You may trust your employees to not harass female colleagues. But do you trust Howard Stern? The growth of XM and Sirius radios have brought uncensored programming into cubicles, warehouses and breakrooms. And as a new court ruling proves, employees who overhear such sexual banter—even if it’s not directed at them—can sue for harassment…

Case In Point: Ingrid Reeves, a transportation sales rep, was the only woman working in an otherwise all-male work area. She complained that she was deluged on a daily basis by sexually offensive language about women. She was also made to listen to a satellite radio station that featured frequent talk about women as sexual objects. She’d change the channel, but the men would change it back.

The branch manager talked to the male employees at a company meeting about their language and behavior. But it never ceased.

Eventually Reeves quit and filed suit, claiming she was subjected to a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964. The law says behavior must be “severe or pervasive” enough to warrant a hostile environment. Employees only have to prove one.

The company argued that Reeves shouldn’t be allowed to bring such a lawsuit because she wasn’t the target of the conduct. A lower court agreed and dismissed her case, saying none of the talk—either from co-workers or the radio—was directed at Reeves. Reeves appealed. What did that court say? (Reeves v. C.H. Robinson Worldwide, Inc., 4/28/08)

How did this case end … and what lessons can be learned?

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It’s nearly futile to try to deflect Cupid’s arrows. Still, many organizations do set policies to minimize the potential legal fallout from co-workers’ romantic relationships. UPS recently got sued over its policy that bans supervisors from dating ANY hourly employee—regardless whether the employee is a direct report. So, do love relationships trump house rules? In this case, the court sighed, “Love and marriage are the losers; something doesn’t seem quite right about that.”

Case In Point: Gerald Ellis worked for UPS for 21 years, successfully rising from driver to management. Ellis, who was black, fell in love with a white female hourly employee in the company call center. They kept their relationship secret for three years because of the company’s strict nonfraternization policy.

UPS’ policy makes it a firing offense for managers to engage in a romantic relationship with any hourly employee, even if there’s no direct reporting relationship. UPS says the policy eliminates any chance of favoritism. Plus, the company moves employees around so often that it’s likely a supervisor will end up being the boss of his or her paramour.

Ultimately, the HR manager found out and told Ellis to either end the relationship or leave UPS. However, the pair secretly got engaged and married the next year. No one knew. But, the following summer, the HR manager saw Ellis at a concert “acting affectionately with a white woman.” He confirmed it was the UPS hourly employee. Ellis was fired for violating the nonfraternization policy and for “dishonesty.”

Ellis sued for race discrimination under Title VII, claiming that UPS only sporadically enforced the nonfraternization policy and that his black couriers were outwardly angry at him for being romantically involved with a white woman. He cited co-workers’ comments, such as "there were plenty of good sisters out there (to date).” UPS countered that its policy was consistently enforced without regard to race. (Ellis v. United Parcel Services, 4/29/08).

How did this case end … and what lessons can be learned? Read More

That’s a trick question. The answer is none. Still, courts hear it all the time. “We’re an exception to harassment/discrimination laws because … We’re in a gritty industry …We’re doctors …. We have an extra-friendly workplace.” Whatever. One company just wrote a $1.5 million check trying that defense. It doesn’t work in 2008.

Case In Point: A group of black employees complained that they were subjected to racial harassment from co-workers at a power plant construction project in Massachusetts. The workers complained of racist graffiti, demeaning language and having their tools stolen.

The employees complained to the on-site project management team. But no action was taken and the graffiti was allowed to remain. Then it got worse. The complainers soon faced retaliation and eventually were fired.

The black employees filed a race discrimination and retaliation claim with the EEOC. The employer tried to shrug it off because construction sites are rough-and-tumble workplace. (EEOC v. Washington Group Int’l Inc., consent decree approved 3/17/08)

How did this case end … and what lessons can be learned?

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If employees ask for Sunday off work for religious reasons, must they attend services on that day? A new court ruling clarifies that the answer is no. And you could face a religious discrimination lawsuit even if you try to accommodate employees by allowing them to find their own replacement for Sunday shifts ...

Case In Point: Kimberly Bloom, a cashier at an Aldi grocery store in Pennsylvania, asked for Sundays off work for religious reasons. Aldi’s shift rotation system required Bloom to work only one Sunday every two months. It also provided a voluntary shift-swap system so employees could trade days with co-workers who could work Sundays.

Bloom told her boss that her religious convictions as a Christian prohibited her from working Sundays or from asking her co-workers to work in her place. The company offered to let her come in later so she could attend church services, but she said she didn’t go to church. Instead, she read the Bible, watched TV services at home and spent time with family.

When Bloom failed to show up to work on two Sundays, the store fired her. She filed a Title VII religious discrimination claim with the EEOC, which backed her lawsuit. On its web site, the EEOC says employers must “reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer.”

In court, Aldi lawyers argued that the company’s voluntary shift rotation policy was a “reasonable accommodation.” And it said that working on Sundays was an “essential job function” for cashiers and that if Bloom were exempt, it would cause undue hardship.

The grocery store also claimed that since Bloom didn’t go to church, her desire not to work the Sunday shifts was personal, not religious. (EEOC v. Aldi Inc., 3/28/08).

How did this case end…and what lessons can be learned?

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Do you have to treat transgendered job applicants differently? Which box, if any, do you check on the application—male or female? And what special laws must you know about?

Federal workplace anti-discrimination laws don’t specifically extend protection to transgendered people (those who present themselves as members of the opposite sex). However, 13 states—California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington—plus several cities and counties have passed such laws.

A new court ruling shows that even if your state or city doesn’t have such a law, your organization may still face liability for discriminating against transgendered people. That’s why it’s wise to handle interviews with transgendered people just as you would with anyone—focused on job-related information only.

Case In Point: Raul Lopez is a biological male who presents himself in public as Izza Lopez, a female. Lopez applied for a position as a telephone scheduler at a Houston medical clinic. He submitted his application using both his male and female names and was open about being transgender.

Two people interviewed him for the position. He thought they both knew he was transgender because he had friends at the clinic who shared that information. Lopez used both names for his background check and drug test. He was eventually offered the position.

But the HR director demanded to know what Lopez’s biological sex was and later rescinded the offer, saying Lopez “misrepresented” himself as a female in the interview. The clinic has a written policy that refuses to hire people whose background checks reveal they misrepresented themselves to get hired.

Lopez sued for sex discrimination under Title VII of the Civil Rights Act of 1964. But he didn’t sue because he was transgendered (remember, that’s not protected under the law). Rather, he sued because he was allegedly discriminated against because he was perceived as not conforming to traditional gender stereotypes of how a male should look. (The Supreme Court has said Title VII cases can be based on an employer’s perception that an individual fails to conform to traditional gender roles.)

The clinic argued that Lopez couldn’t purse the case because transgender people aren’t a protected class under Title VII. (Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 4/3/08)

How did this case end … and what three lessons can be learned? Read More

Sometimes it just seems like good old-fashioned ribbing between co-workers. But when does insensitive teasing turn into an illegal hostile work environment that violates Title VII of the federal Civil Rights Act? One court said that while individual incidents may be viewed as singular events, courts will view all incidents “as a whole” when deciding if they add up to unlawful harassment.

Case in Point: Gloria Nieves was of Colombian origin and worked at a deli in Delaware. Her co-workers ridiculed her because of her limited English skills. They suggested that she knew a lot about drugs because she was from Colombia. They frequently joked about the status of her green card. She was allegedly called “stupid” by a co-worker. Another co-worker admitted that Nieves was called racial slurs behind her back and given the nickname of “Chihuahua.”

While Nieves complained to her managers, they took no action. Management even denied that Nieves ever notified them about the incidents, even though a co-worker testified that she overheard Nieves complaining at least once.

Nieves reported experiencing chest pains and crying spells because of all the comments. Eventually, she filed discrimination claims with the EEOC and state labor department and a lawsuit under Title VII for harassment based on national origin.

The deli responded by arguing that the co-workers’ conduct wasn’t severe enough to be unlawful under Title VII. That left the court with this question: How much harassment is enough to tip the scales into being unlawful? (Nieves v. Acme Markets Inc., D. Del., March 7, 2008)

How Did This Case End … And What Lessons Can Be Learned?

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If your organization leases temporary employees from an agency, what should you do if one of them complains she’s being harassed? Who should do the investigation—your organization or the temp agency? A new ruling says that even though temps aren’t your employees, you’d better take quick action to investigate the situation and stop the conduct—and the agency should do the same.

Case in Point: Kristen McGee worked as a temp for Kelly Services. The agency contracted McGee out to a General Motors parts plant. Right away, the plant manager allegedly began subjecting McGee to non-stop harassing conduct. He asked her about her sex life, made suggestive comments and put his arm around her frequently.

After several months of putting up with it, McGee finally approached a GM manager to ask if she could use the GM hotline to report the harassment. The manager alerted HR and within one day GM initiated an investigation, which included contacting Kelly Services. Kelly Services initiated its own investigation as well.

McGee wasn’t given a copy of the GM harassment policy, but she was given the one from her employer, Kelly Services. Also, she did know about the GM hotline because it was communicated in postings throughout the plant.

McGee filed a claim with the EEOC against GM alleging sexual harassment and retaliation. She also claimed that GM never completed the investigation, which it had not. But GM countered by saying that it shouldn’t be liable because it stepped up and investigated right away. (EEOC vs General Motors Corp., SV. Miss.)

How Did This Case End … And What Lessons Can Be Learned?
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Every school has a class clown. So, it seems, does every workplace. Sometimes, those jokesters cleverly craft their double entendres so they can be taken either way … sexual or not sexual. But a new court ruling says enough of those coy games. “If a reasonable juror could find that in context such comments took on a sexual meaning,” the joke will be on you in the form of a sexual harassment lawsuit.

Case in Point: Ray Stark and Brian Paonessa worked together at a Florida car dealership. Paonessa allegedly propositioned Stark constantly, using vulgar language to describe his sexual fantasies of them together. Stark complained to a supervisor of Paonessa’s ongoing comments and conduct, which included zipping and unzipping his pants in front of Stark. However, the supervisor felt the behavior was “innocuous” and took no action to stop it or report it up for an investigation.

Stark eventually filed a sexual harassment claim with the EEOC. The employer denied the charges, claiming Paonessa was only engaged in “horseplay and roughhousing” and Stark took his comments “the wrong way.” The employer argued, for example, that when Paonessa told Stark he’d “enjoy the ride,” Paonessa was really referring to “carpooling” to work together, not sexual activities. (EEOC v. Belle Glade Chevrolet, Inc. S.D. Fla. 1/3/08).

How did this case end … and what lessons can be learned? Read More

Memories fade and employees come and go.

That’s why it’s crucial to retain certain records for future reference. Among the records you should keep forever are past organizational charts that show who had supervisory authority over other employees. As this case shows, they can come in handy in court.

Case in Point: Stephanie Goebelbecker filed a sex discrimination lawsuit, arguing that she was constantly passed over for promotions. Her smoking-gun evidence: She claimed her supervisor told her that she’d never be promoted because she is a woman.

The company’s response: That “supervisor” was not a supervisor at all. The company argued that the man who made the anti-woman remark really had no supervisory authority over Goebelbecker. So his comment couldn’t be used as evidence of job bias.

To prove its point, the company produced an organizational chart that showed no supervisory relationship. The problem: the org chart was dated Dec. 27, 2006. The year in question was 2002. The company didn’t retain its previous org charts. (Goebelbecker v. Plastipak Packaging, No. 1:06-CV-576, ND OH, 2007)

How did this case end … and what lessons can be learned?

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