Bertelson Law Office

Working Pregnant Women Face Rampant Discrimination

2012-02-21T10:36:00.001-06:00

From the Chicago Tribune: 6:27 p.m. CST, February 15, 2012

WASHINGTON (Reuters) - More than three decades after Congress passed a law trying to protect pregnant women in the workplace, discrimination is still widespread and needs to be combated with publicity and clearer guidelines, according to testimony Wednesday at a federal hearing.

The Equal Employment Opportunity Commission's legal counsel, Peggy Mastroianni, said the agency had resolved 52,000 pregnancy cases since 2001, with $150.5 million paid out in damages.

Discrimination against pregnant women includes firing, forced leave without pay, being denied a place to pump breast milk and being barred from some work, witnesses told the five-member EEOC panel at a hearing on the issue.

Decades after the passage of the 1978 Pregnancy Discrimination Act, discrimination ranges from the shop floor to the executive suite, with sexual stereotyping a major factor. It is found in every state, but is more likely to hit women in low-income jobs, they said.

"This many years after the Pregnancy Discrimination Act, we still have employers who still don't understand the basics. Are we getting the word out on fundamental issues?" said Commissioner Constance Barker.

The issue of workplace discrimination was highlighted two weeks ago when a federal judge in Texas ruled against a Houston mother who said she was fired after asking for a place to pump breast milk.

The EEOC helped litigate the case. General Counsel David Lopez said the agency was weighing whether to appeal the ruling.

The Pregnancy Discrimination Act forbids discrimination by employers based on pregnancy, including hiring, firing, pay, job assignments and promotions. Under the law, pregnancy is considered a temporarily disabling condition.

Witnesses said overlapping laws and rules, such as the Pregnancy Discrimination Act, the 1990 Americans With Disabilities Act and the Family and Medical Leave Act, had created gray areas that left employers uncertain about how to deal with pregnancy.

One issue was how to compare treatment of a pregnant woman with that of other employees, they said.

"In our view, the current laws are a little confusing and in some cases contradictory," said Deane Ilukowicz, a human relations executive with Hypertherm Inc, a Hanover, New Hampshire, maker of metal cutting gear.

Witnesses and panel members said the commission needed to provide clearer guidelines for workers and employers, work more closely with the Labor Department and carry out publicity campaigns, including through social media such as Twitter.

The hearing came ahead of the scheduled September release of the EEOC's four-year strategic plan, which is expected to give direction on how to combat pregnancy discrimination.

(Editing by Greg McCune and Doina Chiacu)

EEOC found reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964; Pepsi to pay $3.13 million settlement

2012-01-11T13:14:00.000-06:00

From the Star Tribune, January 11, 2012:

Pepsi Beverages will pay $3.13 million and provide job offers and training to resolve a race discrimination charge filed in the Minneapolis office of the U.S. Equal Employment Opportunity Commission (EEOC), government officials said Wednesday.

The settlement will be divided among 300 black job applicants who had applied for positions at Pepsi between 2006 and 2010. A portion of the settlement will go toward covering claims processing costs.

EEOC officials said in a statement Wednesday that their investigation found "reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964."

Pepsi Beverages, formerly known as Pepsi Bottling Group, reportedly applied a criminal background check policy that "disproportionately excluded black applicants from permanent employment," the EEOC document said.

Under Pepsi's former policy, job applicants who had been arrested but were never convicted of any offense were not allowed to be hired for any permanent jobs at the factory.

EEOC officials also said that Pepsi's former policy also denied employment to applicants who had been arrested or convicted of minor offenses.

While officials said that the use of arrest and conviction records to deny employment "can be legal" under Title VII of the Civil Rights Act of 1964, it is not legal when the records are not relevant for the job because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.

EEOC Chair Jacqueline A. Berrien said that the agency has a longstanding policy on the use of arrest and conviction records in employment. She went on to commend Pepsi's "willingness to re-examine its policy and modify it to ensure that unwarranted roadblocks to employment are removed."

Minneapolis EEOC spokeswoman Julie Schmid said she has never seen a conciliation agreement that large in Minneapolis the six years she has worked at the agency. "For our district, this is unusually large," she said.

The settlement is also "unusual," she said because Pepsi not only agreed to pay the cash, but agreed to offer previously affected black applicants jobs. "Usually the settlement just involves money. So this is unusual," she said.

Dee DePass • 612-673-7725

Advice for employees

2012-01-05T12:27:00.000-06:00

The following was taken from Workplace Fairness Weekly:

http://www.workplacefairness.org/weekly:

Your Future at Work: Lessons for 2012:

They're still the boss.
Manage your stress.
Internot.
Break through the clutter.
Show, don't tell.

Your Future at Work: Lessons from 2011
Let's face it, 2011 was rough year. An economy going sideways, layoffs, fear of layoffs, foreclosures, a year that many would prefer to forget. If I had to sum up the year in one word it would be "Ooops." Rick Perry said it, but we all lived it. Amidst the wreckage I'm going to offer five of the most interesting stories from 2011, along with specific strategies to help you take to put the lessons to work for you.
They're still the boss. An employee created a Twitter account that had both his name and his company's name in it. He quickly acquired 17,000 followers. When he decided to leave his company it was no big deal, he just changed the name of the blog and thought that the names were his. But his company felt differently and sued him for $340,000, valuing each name at $3.50 a month. When you create something using company equipment and on company time, they are still the boss of you.
Manage your stress. Of all the stress reduction techniques I've heard of, this one is hard to top. Hundreds gathered in Shanghai, China for a big pillow fight recently. Many wrote the names of bosses or professors on their pillow before they started bashing each other. Okay, maybe you can't start a big pillow fight, but you can try to find creative positive addictions to cope with your stress at work.
Internot. I'm as big a fan of the Internet as anyone, but there are some things you just can't do virtually. Like firing someone. Carol Bartz, CEO of Yahoo, doesn't have the greatest reputation. But when she was fired via email it created a wave of sympathy for her. Just because you have all these high tech gizmos, don't forget that some things are still best done face-to-face.
Break through the clutter. Have you heard of Roanald? He applied for a job and his cover letter is easy to find online. From his reference to being Prom King in high school to his gloating about his mastery of Rubik's cube, it's hilarious. The language is probably more colorful than most of us should use, but he is an inspiration to use your creativity to break through the clutter.
Show, don't tell. The Philadelphia 76ers basketball team decided to run an online contest to select a mascot from three possibilities. Jerry Rizzo decided to set up Twitter accounts for each mascot. Initially the team was annoyed and told him to stop. But after seeing all the interest that it generated, they ended up offering him the job as the team's social media coordinator. Everyone can tell an employer what they can do, Rizzo showed 'em. And wowed 'em.
I applaud the creativity and persistence of the stories above. No matter what 2012 throws our way, many of us will rise above it. And I think these stories and lessons could play a key role. Here's to a less volatile and more successful 2012.

Star Tribune article for job seekers

2012-01-05T11:31:00.000-06:00

Job experts suggest a well honed resolution for the 2012 workplace

Blog Post by: Dee DePass
January 3, 2012 - 3:06 PM

Forget about that New Year resolution to lose weight.
What you really need is a resolution to keep your job, say job placement experts who insist that 2012 will be a pivotal year.
This is the year that "Employers are definitely turning their attention toward retention and recruiting," said John Challenger, CEO of the outplacement employment giant Challenger, Gray and Christmas.
While greater focus on employee retention is welcome news, employees shouldn’t relax.
"Companies are concerned about losing talented workers, but they also know that the labor pool is full of willing and able candidates. So if you have a job, your workplace resolutions should be focused on keeping it as well as putting yourself in a position for a possible salary increase or promotion," Challenger said. "Those who want to keep or improve their positions in the new year are not going to do so by flying under the radar."
The problem is that no one knows for sure on which side of the economic sea-saw of employment they will land.
Recent employer surveys from manufacturing associations and the Federal Reserve Bank suggest employers are finally in the mood to hire. But economists say the European debt crisis, weak U.S. housing markets and government spending cuts could bring disaster to the jobs front.
So, job keepers and job hunters need to be resolute and aggressive, job coaches say.
For those looking to keep their jobs, Challenger offers these resolutions:

Seek more responsibility
Meet your boss's boss
Set deadlines for your resolutions
Join a company committee
Find or become a mentor
Align your career objectives with your company's goals
Find ways to save your company money
Become an expert on one aspect of your field.

Hope to nab a new job this year?
Here are resolution ideas from the state, business strategy firm Significant Solutions Inc. and Challenger, Gray and Christmas:

Remain positive
Join LinkedIn, Facebook, Twitter
Volunteer / Join a community service group
Join a professional trade association
Meet 10 new people in your field
Rev up your skills
Conduct mock interviews
Stay in touch. Send New Year’s cards to your contacts
Visit one of the state's 46 Minnesota Workforce Centers

http://www.startribune.com/blogs/136595673.html

"Good Credit Only" Hiring Policies

2011-12-21T11:50:00.002-06:00

Employers’ use of credit checks to screen job applicants is wide spread. A 2010 survey by the Society for Human Resource Management found that 60% of employers now check the credit of at least some applicants. Those candidates receiving poor credit scores are not hired. Employers who use credit checks maintain that how a person has handled his financial responsibilities is relevant to how they will perform in the job. They believe that someone having financial difficulties is more inclined to engage in risky behavior, such as stealing from the company.

Consumer advocates and others opposed to employers using credit checks to screen applicants, argue it leaves those who desperately need a job in dire circumstances. Once someone loses their job and is unable to pay their bills, their credit score plummets. This poor credit leaves them unable to find new work. As they slide deeper into debt, employers find them even less desirable and they are entrenched in circumstances from which they may never escape. Those opposed to using credit scores as a hiring screening tool, say it unfairly penalizes minorities; arguing there is no correlation between an individual’s credit score and their character or any job performance, and that credit reports are unreliable.

While using credit scores in making hiring decisions is not necessarily illegal, employers need to be careful. In some cases, credits checks can be found to be illegal if they have a disproportionate affect on minorities and other protected classes of workers.

As with a “no hire of those unemployed” policy, if an employer’s practice of using credit checks to select job hires is shown to have a disproportionate impact on race or another protected class, the employer must prove that using credit checks is job related and justified by business necessity. And then, even after showing a business necessity, the employer could be required to show that there was no alternative, non-discriminatory way of obtaining the same information.

A recent example of a lawsuit involving credit checks occurred in December 2010. The EEOC sued Kaplan Higher Education Corp., alleging that its use of credit history to screen job applicants discriminates against African Americans. The lawsuit alleges that Kaplan has routinely rejected job applicants because of bad credit and that this practice has an unlawful, discriminatory impact because of race, in violation of Title VII of the Civil Rights Act of 1964. The EEOC maintains the job practice is “neither job related nor justified by business necessity.” The case is currently being litigated.

References:

“Credit History: Is it any of your employer’s business?” The Rights Stuff Newsletter, Winter 2011. http://www.humanrights.state.mn.us/education/articles/rs11_1credit.html

“EEOC Files Nationwide Hiring Discrimination Lawsuit Against Kaplan Higher Education Corporation.” December 21, 2011. http://www.eeoc.gov/eeoc/newsroom/release/12-21-10a.cfm

Goldfarb, Zachary A. “EEOC suing Kaplan over alleged racial discrimination.” The Washington Post. December 22, 2010. http://www.washingtonpost.com/wp-dyn/content/article/2010/12/21/AR2010122105136.html

"Must Be Currently Employed" Hiring Policies

2011-12-21T11:41:00.002-06:00

Millions of Americans are out of work. The national unemployment rate was 8.5% in November 2011. This number does not include the millions of unemployed workers who have simply given up looking for work.

Adding insult to jobseekers, is a growing trend among employers to refuse to hire unemployed workers. Advertisements seeking positions as varied as electrical engineers, restaurant managers, and mortgage underwriters have contained caveats that only currently employed candidates will be considered. Employers use this requirement as a way to distinguish among the many applicants in this economy. Employers theorize that individuals who kept their jobs during the economic recession must be good employees and anyone who did not must be bad. Employers worry that people who are out of the workforce have outdated skills or are poor performers. However, such reasoning does not take into account the myriad of reasons someone may be out of work. During the recession, companies let employees go for reasons that had nothing to do with their skills or work quality. They were likely victims of cost-costing measures, poor management choices, or their company simply failed.

On February 16, 2011, the EEOC (Equal Employment Opportunity Commission) held a public meeting to examine the impact of employers considering only those currently employed for job vacancies. While the unemployed are not a protected class under anti-discrimination laws, an employer’s policy of not hiring anyone that is not current employed, can have a disparate impact on racial minorities, individuals with disabilities, women, and older persons. That is, this seemingly non-discriminatory process of selecting job candidates can have an unintentional, discriminatory effect on protected classes of persons.

Employers should be cautious if using such a policy. If it is shown that the facially neutral policy has a disparate impact on a protected class of persons, the employer must prove the policy is job related and consistent with business necessity. That is, the employer must show that being employed is a necessary qualification for the job. Even if the employer can prove that this is true, the employer may still be liable for using such a policy if the employer refuses to adopt an alternative employment practice that has a less disparate impact and serves the employer’s legitimate business needs.

References:

Hunsinger, Dana. “Long-term unemployed face stigmas in job search.” USA Today. January 23, 2011. http://www.usatoday.com/money/economy/employment/2011-01-23-longterm-unemployed_N.htm

“Out of Work? Out of Luck: EEOC Examines Employers’ Treatment of Unemployed Job Applicants at Hearing.” February 16, 2011. http://www.eeoc.gov/eeoc/newsroom/release/2-16-11.cfm

“Businesses Refuse to Hire Unemployed, EEOC says.” Findlaw. February 19, 2011. http://blog.lawinfo.com/2011/02/18/businesses-refuse-to-hire-unemployed-eeoc-says/

“Firms refusing to hire unemployed, commission told.” Arizona Daily Star. February 17, 2011. http://azstarnet.com/business/local/article_fc59c0d1-b2af-5b7b-a305-2579d955d7c6.html