Women in the workplace and positive discrimination

By Squire Patton Boggs on Posted in Discrimination

For every indication that workplace equality between the sexes is getting closer, there seems to be another that the glass ceiling is still very much in place in all walks of working life. In the same week that France’s Finance Minister, Christine Lagarde, became the first woman to be appointed Head of the International Monetary Fund, multiple tennis champion Serena Williams suggested that Wimbledon operated a bias towards men in the allocation of matches on the top courts.

It was recently reported that Michel Barnier, Europe’s Internal Markets Commissioner, would like to impose mandatory quotas dictating that membership of the managements boards of banks should be at least a third female.  However, if UK companies were to introduce such quotas at present they would certainly fall foul of discrimination laws. So, if employers wish to increase the representation of women, even to positively discriminate, how can they best go about this without discriminating against men?

The Equality Act 2010 introduced new rules dealing with positive discrimination, which apply where certain groups are under-represented in the workforce.  Since April 2011, employers have been able to take positive action in recruitment and promotion. Where there are two applicants for a role or promotion who are of equal merit or are equally qualified – this is sadly undefined – the employer is entitled (but not obliged) to choose the person from the under-represented group for the role.

Of course, it very is unlikely that an employer will ever have two candidates between whom it has no preference at all, especially at senior levels where the inequalities are said to be greatest. Therefore selecting on the basis of sex (or race, religion, etc.) will almost always carry a risk that the person not selected claims discrimination even if he comes from an over-represented group and even if the selection of the other was with the best possible motives. The new rules do not permit you to boost your diversity statistics by recruiting a minority candidate (whether by virtue of his race, age, religion, etc.) whom you do not believe to be the best person for the job.

So, be clear on your reasoning before you make your decision – am I recruiting this woman because she is equally as qualified as the man but women are under-represented or because she is actually the better candidate? The two positions are totally incompatible, so no jumping from one horse to the other mid-claim is possible.

At present, the steps UK employers can safely take are therefore limited and unlikely to make a significant difference. It may be that, above all, it is a cultural change that is needed.  It is hoped that Lagarde’s appointment is evidence that such a change is taking place (albeit slowly). As sage of our times, Lady Gaga, said: “Some women choose to follow men, and some women choose to follow their dreams. If you’re wondering which way to go, remember that your career will never wake up and tell you that it doesn’t love you anymore.” If only it were true.

What’s in a name? Potential for race discrimination

By Squire Patton Boggs on Posted in Discrimination

“Effortless communication” is the tagline for Teachers 2 Parents Ltd, a Leicester-based company marketing bulk text message services to schools. Who could fault that as an ambition? And who would disagree that ease of communication between your Sales team and your actual and prospective customers would be integral to your success? And would you in turn not prefer to deal with someone whose name you can visualise and spell and be sure of emailing accurately? Tell you what, why not just guarantee that effortless communication by making sure that all your staff have conventional “English” names? Not by only recruiting people with those names, because that would be discriminatory obviously. No, by making those with ‘foreign’ names use an English equivalent instead. So that will be ok, then?

According to the recent Employment Tribunal case of Jain v Teachers 2 Parents Ltd, and to no-one’s very great surprise, asking employees of ethnic origin to anglicise their names for business usage is capable of amounting to race discrimination. The case was brought by Indian-born Rahul Jain. On his first day of employment as a telesales operative for Teachers 2 Parents Ltd, Mr Jain and other inductees of ethnic origin were asked by the manager to change their name whilst at work to make them more anglicised. It was explained that emails to employees with names that were more difficult to spell had apparently gone missing.

Mr Jain reluctantly agreed to be called Rob. Other Asian employees at the company also adopted aliases: Mehul became Max; Faizal became Fred; Sarbjit became Sally; and curiously, Prankhash adopted the moniker of Terry. When he was dismissed for redundancy, Mr Jain brought a claim for race discrimination as a result of his being required to change his name in this way.

The Tribunal ruled that putting pressure on an employee to change his name to something “English” did indeed amount to direct discrimination. It found that the Company would not have required an employee with a ‘tricky’ Western name (such as Siobhan or Ian/Iain or any one of the multitudinous permutations of Alistair/Alasdair/Alisdair etc.) to change his/her name. Therefore the Asian employees were being singled out for less favourable treatment only because of their ethnic origin. The practice of requiring staff of ethnic origin to adopt an anglicised name could also amount to indirect discrimination as, on similar grounds, it was not thought by the Tribunal to be a proportionate means of achieving a legitimate aim, i.e. of reducing the number of emails that went astray.

The correct use of an employee’s name is vital to building the employer/employee relationship. Getting that name repeatedly (and perhaps deliberately) wrong, asking him to change his name or imposing a ‘convenience nickname’ could in some circumstances cause a breakdown in trust and confidence, entitling the employee to resign and claim constructive dismissal. If race, sex or any other protected characteristic under the Equality Act 2010 is a causative factor, as in Mr Jain’s case, the employer may also face discrimination claims. It is no defence that the employer meant no offence with this practice or did it only “for the good of the business”.

The blame game – competence and capability

By David Whincup on Posted in Termination

Sick of having to chase your staff to perform?  Don’t see why they claim to be so stressed?  Ever thought it might all be your fault?

A recent survey by the Chartered Management Institute provides some statistics which should at first sight have managers everywhere clutching for their laurels.  The survey of over 2,000 employees across the UK concluded that 55% consider that their boss lacks the competence to do his job properly.  40% believe that this lack of competence has gone unnoticed by the managers in question, suggesting that a significant proportion of bosses believe themselves to be more competent than do their staff.

40% of the survey respondents believed that their bosses’ behaviour increased their stress levels, over a third that their boss prejudiced their enjoyment of the job, and about 10% that their boss was actively bad for their health.

These statistics would be much more concerning if they were not drowned out by the shriek of axes being ground (CMI provides management training and no on-one can resist an anonymous poke at the boss), and if it were not a racing certainty that a survey of 2,000 UK bosses would say exactly the same things about their staff – how being a manager would be a much nicer job without them, etc.  Indeed, the CMI survey said that only 40% of employees were willing to acknowledge any weaknesses at all in their own job performance.  The other 60% are of course beyond criticism, meaning that any boss who takes a different view will necessarily increase their stress levels, impair their enjoyment of the role and make them ill.  Clearly.

Ultimately what the statistics recognise is simply the eternal truth that a significant proportion of any workforce at any level will inevitably consider their own workplace issues and reversals to be somebody else’s fault.  However, one serious question does arise from the survey – how far can fretting under the reins of an over-confident and under-competent manager give rise to claims against the employer?  Though the argument is often run, it is practically impossible for an employee to move successfully from his boss being less than every mother’s dream to a constructive dismissal, stress or other personal injuries claim. A judicial finding that employers must only employ managers who are both able and modest with it (or conversely, staff with a proper degree of self-awareness) could have devastating consequences for British industry.

Bullying, discrimination or dishonest dealing is one thing, but just being frustrated at work, even with some objective justification, is simply what the Courts have traditionally seen as the fair wear and tear of office life.  While serial complaints about a particular boss may indeed indicate an underlying problem with him, therefore, there is no harm in admitting in response to a grievance against a manager that something could indeed have been better handled.  That is not by itself an admission of legal liability, it gives the employee no further right of recourse, and it may certainly be preferable in Tribunal credibility terms to defending the clearly indefensible.  After all (many apologies if this comes as a surprise) no one has the right to be happy at work.

United States Supreme Court Limits Class Actions

By Meghan Hill on Posted in Discrimination

In a landmark victory for employers, in Wal-Mart Stores, Inc. v. Dukes the United States Supreme Court threw out a sweeping sex-discrimination lawsuit against Wal-Mart Stores Inc., ruling Monday that the 1.6 million women allegedly victimized had too little in common to form a single class of plaintiffs.  As Jess Bravin and Ann Zimmerman state in Justices Curb Class Actions “[t]he decision is sure to reverberate in other employment class actions, with lower courts scrutinizing more carefully the factors that constitute a class for the purpose of bringing mass claims.”

The plaintiffs in the case alleged that Wal-Mart discriminated against women and sought to certify a company-wide class.  The plaintiffs must identify a “specific employment practice,” such as a biased testing procedure, that unlawfully discriminates.  Writing for the majority, Justice Scalia wrote:  “Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.”

So is this the end of employment class actions?  Although this decision will not stop employment class actions, it will halt the potential floodgates that could have opened had the Supreme Court ruled against Wal-Mart.  Keeping class actions limited and not company-wide is key to employers having a legitimate chance at fighting the claims as opposed to being forced to settle.

There Ain’t No Cure For The E-Verify Blues

By Gregory A. Wald on Posted in Business Immigration

It’s summertime and the immigration debate is heating up again.  On the heels of a recent Supreme Court decision upholding the mandatory E-Verify provision of Arizona’s Legal Arizona Workers Act (A.R.S. §§23-211 to 23-214) (LAWA) (see our recent client alert for details), two competing business oriented immigration bills were introduced in Congress this week.

Shortly after the Court’s decision was published, House Judiciary Committee Chairman Lamar Smith announced that he would introduce a mandatory E-Verify bill. This bill, titled the “Legal Workers Act” (H.R. 2164), was rolled out this past Tuesday.  It would modify the voluntary E-Verify program by mandating a new Employment Eligibility Verification System (EEVS) nationwide. The largest employers would be required to use EEVS within six months from enactment while most employers would have to comply within two years. Agricultural employers would be given a three year reprieve from compliance after enactment. This bill would also make significant changes to the I-9 compliance and employer sanctions laws including a tenfold increase in some fines, criminalizing misuse of a social security number or other documentation, expanding the Social Security Administration’s enforcement duties, and providing safe harbor protections for employers from liability for unauthorized employment if actions were taken in good faith reliance on EEVS.

A second bill, introduced by Representative Zoe Lofgren who hails from Silicon Valley, California, would foster highly skilled immigration and entrepreneurial investment.  Entitled the Immigration Driving Entrepreneurship in America (IDEA) Act 2011(H.R. 2161), this bill would help U.S. companies attract and retain highly skilled foreign graduates from U.S. universities who studied in the “STEM” fields of science, technology, engineering and math by easing current restrictions to applicable nonimmigrant and immigrant visa categories.  The bill would also establish a new green card program for entrepreneurs who are able to secure venture capital funding or who establish a business that creates jobs for U.S. workers.  It would also free up  more green cards by exempting dependents and outstanding researchers and professors from the current quotas while eliminating employment-based per country limits and recapturing hundreds of thousands of green cards that went unused in prior fiscal years.  On the flip side, it would implement additional restrictions to the H-1B and L-1 visa categories by imposing new prevailing wage, attestation and recruitment requirements.

What should employers do while Congress engages in the proverbial backyard squirt gun fight over immigration and employer sanctions policy?   If you do business as a federal contractor or in one of the states which mandates E-Verify such as Arizona, Utah, Mississippi, South Carolina (and soon to include Alabama and Georgia), then consult with counsel to determine if your organization should register in E-Verify.   Otherwise, get ready to weather the Summer “ICE” storms.  The Department of Homeland Security, Immigration Customs Enforcement (ICE) just announced that another 1000 companies will be audited for I-9 and immigration compliance.  Therefore, employers should ensure their “house in order.”  For more information on preparing for and responding to an ICE Notice of Inspection (NOI), see our March 3, 2011 post.

Is there an accent on race discrimination?

By Squire Patton Boggs on Posted in Discrimination

Judging from the Press, the good people of Great Britain have been up in arms over the past month after news broke of national treasure Cheryl Cole’s axe from the US X-Factor, apparently because her Newcastle accent would be too pronounced for the American public to understand.

Many Twitter pages and celebrity gossip columns have subsequently been devoted to conspiracy theories about the real reason for the “sacking”, (a gigantic publicity stunt, a tragic failure in due diligence, that frightful orange and purple combination, etc) but if it turns out that the decision was indeed linked to Cole’s accent, could that, in principle at least, be unlawful discrimination?

There is no specific legislation preventing discrimination on the basis of accent alone.  That said, an employee’s nationality is a characteristic protected from discrimination under the Equality Act, so we need to distinguish between accent on the one hand and racial background on the other (and to beware of action under the disability provisions of the Act if the issue is not accent but speech impediment). You also need to bear in mind that however impenetrable the accent at the time you dismiss, the disappointed victim will probably sound like something out of Brideshead Revisited by the time of the Tribunal hearing.

An employer may be able to justify this form of discrimination, depending on the nature of the business. There will be many questions of degree in this – how far is the “right” accent necessary, as opposed to merely desirable?  Is it legitimate for the employer to seek to boost its image by an “aspirational” rather than regional intonation?  How urgent or important is the information being conveyed?  Where nationality is a key part of the employer’s identity, does it have a right to project that via the accents of its switchboard?

To many of these subsidiary queries and therefore to the main question of justification also, the answer is sadly “It all depends”. However, if as employer you make the necessary justificatory notes of your thinking in these respects, focussing exclusively on ease of comprehension rather than accent, an Employment Tribunal should be reluctant to look behind this.  However, do keep a sense of proportion – some years ago a branch of well-known UK chain Halfords failed to justify the dismissal on “brand protection” grounds of an employee who had dyed his hair yellow (not blond, yellow) – clearly the tonsorial equivalent of a “difficult” accent – on the grounds (said the Tribunal) that it was ultimately just “a bicycle shop in Mansfield”.

The argument goes that if you are going to be a bus driver, you’ve got to be able to drive. Similarly, if your job is to entertain millions of people on national television with your cutting criticism/tearful praise of wannabe singers, then you’ve at least got to be understandable. The big question in our Cheryl’s case is therefore how on earth did the producers not spot Ms Cole’s glaringly obvious accent before signing her up? OMG, it must be a gigantic publicity stunt, a tragic failure, etc. [Repeat until convinced or bored with the whole lot of them, whichever comes first].

Arizona Legislature Helps Clear the Smoke Created by Arizona Medical Marijuana Law

By Lew Clark on Posted in Employment Policies, Termination

In March, we blogged about the new Arizona Medical Marijuana Act and the confusion the new law was sure to create for Arizona employers who have employees who are medical marijuana users. Arizona’s legislature responded to the concerns and enacted House Bill 2541, which clarifies when employers may terminate or take other adverse actions against medical marijuana users. Governor Brewer signed the bill on April 29. The bill will go into effect on July 20, but retroactive to April 12.

Under the new law, which amended Arizona’s drug testing statute, Arizona employers may refuse to allow workers to perform safety-sensitive jobs based on a good faith belief that the employee is currently using a drug that could cause an impairment or decrease the employee’s job performance or duties and may discipline or terminate medical marijuana users when there is a good faith belief that the employee improperly possessed or was impaired by marijuana while at work or during work hours.

The statute defines terms like “good faith” and “impairment” to help employers understand better the extent of their discretion. An employer may base a “good faith” belief that an employee was either impaired while working or during work hours or used or possessed drugs while on the employer’s premises or during work hours on several factors, including observed conduct, information reported by a reliable person (including a person who witnessed the use or possession of drugs at work), written, electronic or verbal statements, lawful video surveillance, drug test results or other information reasonably believed to be reliable or accurate. 

Under the statute, “impairment” means symptoms that an employee while working may be under the influence of drugs or alcohol that may decrease or lessen the employee’s performance of his or her job duties, including symptoms of speech, walking, standing, dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, irrational or unusual behavior, negligence or carelessness in operating equipment, machinery or production or manufacturing processes, disregard for the safety of the employee or others, involvement in an accident causing serious damage to equipment, machinery or property, disruption of a production or manufacturing process, any injury to the employee or others or other symptoms causing a reasonable suspicion of the use of drugs or alcohol.

The statute also allows employers to utilize a verification system to be established by the Arizona Department of Health Services to enable employers to verify registry of medical marijuana identification cards. The employer may only use they system to verify a card provided to the employer by an employee or applicant who has received a conditional offer of employment.

Although the new law provides helpful clarification, employers still need to adhere to the medical marijuana law’s nondiscrimination provisions and should be prepared to reasonably accommodate medical marijuana users to the extent they are not impaired at work or do not improperly possess drugs at work.  The new statute also provides employers with an opportunity to update their drug and alcohol testing policies so employers can take advantage of the discretion the new law provides.

No room at the inn – sexual orientation discrimination

By Laura Nelson on Posted in Discrimination

Recent press reports suggest that we can shortly look forward to one of the first cases under the Equality Act 2010 regarding discrimination on grounds of sexual orientation in the provision of services to the public.

The allegation is that a lesbian couple booked a hotel room in Brighton by telephone, but when they arrived they were turned away on the basis that the hotel “only catered for heterosexual couples and families”.

Liberty, the human rights charity, is acting for the couple. Its press release states that despite the couple’s protests, the hotel manager became increasingly aggressive, raising his voice and bundling them out of the hotel. They told him they had nowhere else to stay, but he threatened to call the Police before shouting somewhat ungallantly: “I don’t accept rejects in my hotel”. The couple were unable to find alternative accommodation at such short notice and so had to return home. Liberty has signalled its intention to bring a claim that the couple were discriminated against on the grounds of their sexual orientation in the provision of services by the hotel.

Whilst this may be one of the first instances of discrimination in the provision of public services to hit the headlines under the Act, this form of less favourable treatment has actually been prohibited for four years, since the Equality Act (Sexual Orientation) Regulations 2007. In January this year, a Judge ruled under those Regulations that a Cornish hostel run according to the owners’ version of strict Christian principles directly discriminated against a homosexual couple in a civil partnership by refusing to let a double room to them even though it would happily have hosted a heterosexual married couple. It is hard to think that the outcome will be very different here.

There is an obvious potential tension between the right to religious freedom and the right not to be discriminated against on the basis of sexual orientation, as evidenced by the spate of recent cases concerning Christian registrars refusing to carry out civil partnership ceremonies. Thus far the prohibition on discrimination has generally taken priority in the UK Tribunals, essentially on the entirely sensible basis that you can think or do what you like in pursuance of your beliefs, however bizarre they may be, but only up to the point where it begins to impinge on other people’s own rights and freedoms.

This recent story acts as a timely reminder that businesses must be wary of discrimination not just towards their employees, but also to members of the public, and not only in the arena of sexual orientation. The Equality Act 2010 prohibits such discrimination across all nine protected characteristics (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation). A review of staff training and product descriptions may be appropriate. Does this signify, for example, the end of the traditional “18-30s” holidays? Or perhaps they will just be re-branded as for those who are 18-30 in spirit, whatever the ravages of time upon the body, and thus become open to anyone whose idea of a good time involves excessive alcohol, sunburn and inappropriate sportswear.

Unlucky thirteen – grounds for dismissal

By David Whincup on Posted in Termination

Some illuminating insights into the many and varied ways in which one can come unstuck at work appeared this week in an unattributed survey on transatlantic financial services industry website hereisthecitynews.com.

The survey, jovially entitled “The thirteen most common reasons why employees get fired”, is more accurately a list of the most common forms of misconduct (it omits dismissal on redundancy or sickness grounds altogether, for example) but there are still some useful pointers here for those keen to do something a little different on the corporate misbehaviour front.

Unexcitingly, the list is headed by simple poor performance.  One then moves down through being caught lying on a job application or CV at number 3, via absenteeism and time-keeping issues to drunken behaviour in the workforce at number 12.  Other popular means of putting oneself out of work apparently include unauthorised use of email or internet facilities, disobedience, sexual harassment, stealing and, at number 6, the more restful but equally terminal “sleeping on the job”.   In days of old we could confidently have expected fighting or insubordination to make an appearance too but neither figures, replaced at the foot of the table by what may be their modern equivalent, “criticising your boss or employer on social networking sites”.

None of these would be hugely controversial as grounds for dismissal but the list also features some less concrete reasons.  How about being dismissed for “bringing your personal problems to work” as the second most common reason, “becoming embroiled in office politics” at number 7 or “engaging in office gossip/complaining about work” at number 8?  Given the degree of prior warning required to give a dismissal on any of those grounds any chance of being fair, plus the presumption that most people would heed those warnings long before the point of no return, the presence of those reasons on the list speaks poorly either of HR practices in the companies surveyed and/or (as a minimum) of the ability of those dismissed to take a hint.   

Even for the more serious matters, however, dismissal cannot be an automatic response.  The employer must still act reasonably in using those circumstances as justifying the termination.  In 1995 UK brewers Whitbread plc held a staff seminar, followed by a free bar for the attendees.  As the evening wore on some of the delegates became a little lairy – one was repeatedly and comprehensively abusive to his manager, a second poured beer over a third and the third, entering fully into the spirit of the occasion, punched the second.  None showed any remorse the next day and all three were dismissed.  In what must rank as a definite podium finish among the all-time least satisfactory decisions for employers, the Employment Tribunal concluded that their conduct was not such as to justify dismissal, largely because by providing a free bar, Whitbread had brought the whole thing upon itself.  And the seminar was titled what? “Improving behavioural skills”.

Have you ever seen The Rat?

By Squire Patton Boggs on Posted in Trade Unions

It’s a giant 16-foot balloon in the shape of a rat, and it is becomingly increasingly common in labor disputes. Unions display the giant balloon as a way of informing the public of their dissatisfaction with the targeted employer, i.e., the “rat employer”. But should it be viewed legally as a picket? The question is quite an important one, as federal law only allows unions to picket primary employers, such as an employer that does not pay the wage scale sought by the union. A secondary employer, which merely does business with the primary, may not be picketed.  By contrast, because of First Amendment concerns, the Supreme Court has long held that unions may voice their displeasure at such secondary employers, so long as they do not actually picket. So, how does the rat stand?  Is it a modern-day form of a picket sign?  Or merely an exercise in free speech?

On May 26, in a case remanded to it from the DC Circuit Court of Appeals, the National Labor Relations Board held it’s free speech.  The Board found that the defining characteristic of an unlawful picket is the “coercion” and “confrontation” it seeks to place upon a consumer. The mere exercise of free speech, on the other hand, is not coercive. By a 3-1 majority, the Board proceeded to explain its view that rat balloons were not coercive, but merely symbolic speech. The opinion of the Democrat-controlled Board was not unexpected, following in the wake of similar cases decided recently on the issue. The vigorous dissent argued that while the balloon might appear innocuous or even comical from afar, to the pedestrian on the ground, the giant balloon, accompanied by the presence of union agents, would surely be confrontational. (The case is Sheet Metal Workers Local 15 (Brandon Region Medical Center.)

Nothing against our red-eyed little friends – we firmly believe The Rats of NIMH will remain an enduring classic of children’s literature – but the presence of “the rat” can mean major headaches on a jobsite. Labor disputes and the delay and litigation that often follow in their wake can be very costly if not handled correctly.

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