Wednesday, April 27, 2005

Not Man Enough?

Although some states and cities have seen fit to include homosexuals, bi-sexuals and trans-gendered individuals as a protected class and provide a prohibition against discrimination on based on those characteristics, most believe that federal law (Title VII of the Civil Rights Act of 1964) does not prohibit discrimination on those bases.  However, the times, they are a-changin’—especially for employers in Oregon and states within the jurisdiction of the Sixth Circuit Court of Appeals.

As our society has become more accepting of sexual orientations other than heterosexual, and of transvestitism and transexualism, it is no surprise that some jurisdictions have passed state and local laws prohibiting discrimination on those bases.  For example, Maine will add sexual orientation, defined as a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression, to its list of protected categories as of June 2005.

In addition to law changes brought on by legislative bodies, the Federal Court of Appeals for the Sixth Circuit and the Oregon Federal District Court have interpreted Title VII to prohibit discrimination against a homosexual male (Oregon) and a pre-operation trans-sexual male (Ohio) under the theory that the prohibition against sex discrimination also prohibits employers from discrimination on the basis of sexual stereotyping.  In other words, the courts found that discrimination or harassment against an individual because his behavior or appearance is seen as effeminate or not manly enough can support a claim for sex discrimination in these two jurisdictions.

In the Oregon case, Kevin Turner, who is homosexual, alleged he faced constant harassment, including co-workers who put bananas in their pants and rubbed up against him. He also alleged his supervisor picked up a purse and called him “Kevina” during an employee morale-boosting event.  In the case decided by the Sixth Circuit (pdf), Phillip (now Philecia) Barnes alleged that his promotion to Sergeant of the Cincinnati Police Department was revoked in part because he was a male-to-female transsexual living as a male while on duty but as a female when off-duty.  (Barnes had a French manicure, arched eyebrows, and sometimes wore lipstick and makeup to work.  Witnesses for the Cincinnati Police Department testified that Barnes did not have the respect of subordinate police officers.) 

Both plaintiffs sued using the theory that sexual stereotyping—discrimination because a person’s conduct or appearance does not fit that traditionally expecte for their gender—is a type of sex discrimination under Title VII.  The Oregon district court and the Sixth Circuit Court of Appeals agreed that Title VII provides this cause of action.  (This is not the first case from the Sixth Circuit interpreting Title VII in this way.  The same Court decided Smith v. City of Salem (pdf) in June 2004.)

What does this mean for employers?  Just because you are not in a jurisdiction that has legislatively designated sexual orientation as a protected class, it is not safe to assume that you can base employment decisions on things like, say, a male employee wearing lipstick and a dress to work.  When issues of sexual stereotyping come up, you’d better call your lawyer—preferably BEFORE taking any action—to learn the current status of this issue in your jurisdiction.

Thursday, April 21, 2005

The Baser Basics

Laurie R. Jones’ posting of April 12 (see below) references “commonsense” warnings that are, for some reason, “necessary to repeat . . . and repeat . . . and repeat.”  For human resource professionals and employment attorneys, the need to repeat these warnings over and over again may well lead to the conclusion that common sense is, unfortunately, not very common.

Okay.  At the risk of (and for the benefit of) repetition, let’s say this again.

Speaking of sex . . .

. . .  in the workplace, or with coworkers outside the workplace is NOT a good idea.

It doesn’t matter if a person doesn’t mean harm, means the comments to be a joke, or is even just referring to a Seinfeld episode, talking about sex with a co-worker or other business associate is a very bad idea.  It can lead to discipline, termination, litigation, and other less-than-desirable results.  Picture any discussion about sex as placing your future in the hands of the hearer.  Remember, and remind others—before telling that sexual joke, or otherwise talking about sex, think about whether it is really worth risking your job over.  Think about how it would feel to have to explain that one to friends and loved ones.  If you choose to talk about sex, keep it far away from work and any connection to your employment. 

‘Nuff said?  (sigh)  Probably not . . . .

Tuesday, April 12, 2005

Killing Litigation with Kindness

A new book is getting a lot of buzz among the Human Resources ranks and is even discussed in the April 11, 2005 edition of Time magazine:  The Likeability Factor, by Tim Sanders, a Yahoo! executive.  What is The Likeability Factor and why should management care? “A person who gives others ‘a sense of joy, happiness, relaxation or rejuvenation,’ says Sanders, is more likely to be hired, promoted and retained. According to research, he says, likeable bosses, rather than inconsiderate or feared ones, get the best work out of employees. Nastiness, which he says is rampant, translates into less productivity, higher turnover and a culture of unhappiness.” (Time magazine, “Animals, Behave; A New Book Tells Why Likeability Not Intimidation is the Real Key to Conquering the Workplace”).  “The basic rules are pretty, well, basic: No screaming, hanging up phones, slamming doors and expressing biting sarcasm. The bottom line for really slow learners: ‘Just be quiet and stop being so unfriendly.’” (Id.). 
Something we in HR have espoused for years and certainly something employment attorneys wish for:  the jury loves a likeable boss!  So why all the hoopla? 

“Play nicely!” It’s interesting that such a commonsense warning is necessary to repeat…and repeat…and repeat.  But any seasoned employment attorney or HR executive will confirm:  many employment disputes reach costly litigation simply because the boss was a jerk.  Employees will put up with a lot from a boss (and an organization) that is friendly, caring, and respectful.  Put an employee with a screamer, and you are sure to hear the EEOC knocking at your door.  Bottom line?  Sanders’ advice holds true not only for increasing productivity, promotability and reducing turnover.  It will also lower the organization’s legal bills. 

Friday, April 08, 2005

Beauty in the eye of the beholder

I thought I should provide a link to the analysis that forms the basis of the AP’s article on the relationship between good-looks and pay.  I guess the “beauty premium” is just an ugly fact of the American workplace.

Monday, April 04, 2005

Non-Pregnant Employee Covered by the PDA?

Riddle me this:  When is a non-pregnant woman permitted to bring a claim under the Pregnancy Discrimination Act of 1978 for pregnancy discrimination???  Just ask the 6th Circuit Court of Appeals who recently heard the case of Nurse Suzanne Kocak. (Kocak v. Community Health Partners of Ohio Inc., 6th Cir., No. 03-4650, March 11, 2005.)

In 1999, Ms. Kocak worked for Community Health Partners of Ohio, Inc. and resigned because of medical complications associated with her pregnancy.  In 2000 and again in 2001, she applied to work on a part time basis with her old employer and was turned down both times.  Apparently, Nurse Kocak was not unlike the infamous Nurse Ratched: Community Health asserted that Nurse Kocak was turned down for employment because she was “avidly disliked” by her peers, difficult to work with, and had been involved in frequent conflicts at work. Ms. Kocak, while admitting to these performance issues, maintained her denial of employment was motivated by considerations in violation of the PDA.  The District Court held that Ms. Kocak was not covered by the PDA as she was not pregnant at the time of her reapplication, and no medical condition related to pregnancy manifested itself during this time.

This is when you should scratch your head and wonder, “Where’s the lawsuit here?”  Enlightening you with two facts I omitted should solve this confusion:  1.) Ms. Kocak testified that a personnel manager at Community Health asked Ms. Kocak during her 2001 reapplication process if she was pregnant or planning on having any more children; and 2.) Ms. Kocak also testified that her former supervisor said she would not agree to rehire Ms. Kocak because of the complications of her 1999 pregnancy. 

Not surprisingly, the 6th Circuit found the District Court erred in determining that Ms. Kocak was not covered by the PDA; instead, the Circuit Court opined that Ms. Kocak is protected by the PDA and cannot be refused employment on the basis of her potential pregnancy.  Interestingly, the Court declined to comment on whether a plaintiff who had never before been pregnant could assert a claim under the PDA.  So, while a previously pregnant, but not currently pregnant, employee can find protection under the PDA, the riddle remains as to whether a never before nor currently pregnant employee could do the same.

In the end, Community Health was successful in their defense, offering “substantial evidence” that it would have decided not to rehire Ms. Kocak absent any illegal motive.  (Remember the Nurse Ratched similarities?  Enough said.)  It appears, however, that this case went all the way to the 6th Circuit because of the two awkward statements made by Community Health management regarding Ms. Kocak’s plans for more children.  Who isn’t groaning loudly after hearing of this completely avoidable debacle?

My two cents for employers: 
1. Every supervisor (including HR) should understand the implications of federal, state and local employment laws.  Do they know what the PDA is and what it means? 
2. Inform those responsible for interviewing and hiring how to properly conduct an interview.  The loose lips of the personnel manager and the hiring supervisor could have easily sunk Community Health’s ship. 
3. Document performance concerns of every employee.  It was only the uncontroverted evidence of Ms. Kocak’s poor performance that saved Community Health.