THINK BIG, BUT START SMALL: Helpful
Tips for Implementing a Workplace Diversity Initiative
by
Candice S. Wooten
In corporate board rooms and human resources
departments across the country, employers are contemplating the
benefits of creating and implementing various diversity initiatives
in their workplaces. From diversity training to employee affinity
groups, from Women’s
History Month celebrations to management and leadership training
for diverse employees, programs are being rolled out by employers
in response to employee and consumer demand, and pressure from
competitors.
Although the surge in such programming speaks
volumes about employers’ increasing
awareness, many programs are being implemented haphazardly and
could ultimately create more problems than they address. How can
an employer put into place successful diversity initiatives that
meet the needs of the workforce and customers without running afoul
of state and federal laws? Here are six simple-but-critical tips.
No. 1: Set
goals. Really. Sad, but true.
Before you can implement any diversity program, you must first
decide why you want it in the first place. Are you interested
in increasing cultural awareness in your workforce? Are you responding
to a complaint of discrimination or harassment? Are you working
to improve employee relations? Are you responding to customer
demands? Are you simply hoping to improve company loyalty? First
examine the motivation behind your push to implement diversity
programming, and then set goals designed to accomplish those
purposes. Those who fail to plan, plan to fail-—make
sure you don’t doom your diversity initiative before it starts.
No. 2: Make
those goals realistic. The phrase “shoot for
the moon” is inspirational, but employers implementing diversity
programs should keep at least one foot on the ground. For example,
making employees more aware of cultural differences in communication
styles may be a very achievable and laudable goal. Eliminating
all racist and sexist attitudes in the workplace after two workshops
. . . laudable, but probably not achievable.
Realistic goals allow an employer to reasonably assess its programming
needs, marshal its resources, and create programs and initiatives
that address the needs of the workplace. Perhaps more importantly,
a little realism prevents employees from becoming disillusioned
because the employer failed to achieve its lofty goals.
No. 3: Know
your audience. Diversity programs
are not “one
size fits all,” and must be tailored to fit the needs of
a particular group of employees. If they don’t, they will
be ineffective. As part of goal setting, an employer should take
a look at its workforce, and understand the “audience” for
its workplace diversity initiative. Catholic employees may not
respond favorably to a pig pickin’ on a Friday in Lent, and
Jewish employees may not respond favorably to a pig pickin’ at
all. Employers have to tailor their diversity programs to their
audiences so that they will reach as many employees as possible
with the message of diversity and inclusion.
No. 4: Diversity
is for everyone, not just the “diverse.” Oftentimes,
in our haste to address an issue of concern to our employees, we
fail to assess how the proposed diversity initiative will be received
by those outside the “target” audience. Diversity programs
should be about education and unification – not alienation.
If you’re celebrating Black History Month, for example, you
should examine ways to give all of your employees a chance to participate.
If you have an affinity group dedicated to issues of a particular
group, you will have to plan how to allow the group members to
have free and frank discussion while leaving membership open to
all employees. It’s impossible to please everyone, and it’s
a bad idea to water down a diversity initiative, but it is wise
to do what you can to avoid making some employees feel left out
of your initiative.
No. 5: Just
being “diverse” isn’t enough. Employers
have been known to select someone “diverse” to relay
the company’s diversity message, with little attention paid
to that individual’s qualifications in the area of diversity
programming and counseling. Although a “diverse” individual
may have useful life experiences and perspectives, that is not
enough. Nor is it wise to use someone who may be interested in
diversity issues but who lacks “people” skills or effective
communication skills. An employer should search for an individual
who is current on diversity issues, who is an effective communicator
and problem solver, who has a record of providing diversity counseling
and guidance, and who understands the employer’s business
and workforce. And because diversity issues are often sensitive
and emotional in nature, it helps to have an individual who can
laugh at herself, and can resolve issues in creative and innovative
ways.
No. 6: Never
forget that diversity is a process. Many employers assume that implementing a few diversity
programs will address every societal ill in their workplace.
It will be less frustrating if you visualize planting a garden
rather than waving a magician’s
wand. Go slowly, and keep in mind the unique needs of your organization
and its workforce. As your diversity initiative develops, you will
see a flowering in the quality of your programs, and will ultimately
reap the harvest of a successful diversity program through an increasingly
diverse and culturally aware workforce.
Candice S. Wooten (Winston-Salem, NC) practices
in the areas of litigation prevention and defense, is a certified
mediator, and is co-chair of Constangy’s Workplace Diversity
Initiatives Practice Group.
FROM
THE EDITOR’S DESK:
"100% RECOVERED" MAY MEAN 100% TROUBLE
by
Robin E. Shea
Some employers require that employees
be “100 percent recovered” as
a condition to returning to work after a disability leave or workers’ compensation
injury.
A federal judge in Pittsburgh recently certified a nationwide
class of more than 36,000 employees in a lawsuit alleging that
such a policy (in this case, allegedly, an unwritten one) violated
the Americans with Disabilities Act.
What exactly is the problem with a “100% recovered” policy?
The ADA reasonable accommodation obligation
requires that employers accommodate employees in the performance
of “essential” and “marginal” job
functions. If an essential function cannot be accommodated, then
the employer may consider alternatives, such as transfer to a different
job, a reduced work schedule, medical leave, or (ultimately, and
only as a last resort) termination. If a “marginal” function
cannot be accommodated, the employer is required to forgo it. (That
is, the employer might have to assign the marginal function to
another employee or dispense with it altogether.)
The problem with a “100% recovered” policy
then becomes clear. Essentially, an employer with such a policy
is refusing to make reasonable accommodations, which is a violation
of the ADA.
So, employers who don’t want to be the targets of ADA lawsuits
should allow employees to return to work with restrictions, provided
that the restrictions can be accommodated, do not prevent performance
of an essential function, and do not affect the safety or health
of the employee or co-workers. Even if the restriction might have
an impact on safety or health (also known as a “direct threat”),
the employer has the obligation to explore reasonable accommodations
that would eliminate or reduce the direct threat.
The reasonable accommodation obligation
is here to
stay.
Robin Shea, Editor
GOT DIVERSITY? CALL US!
Constangy is a top provider of legal services to employers on the
full range of employment-related issues, and has recently established
a Workplace Diversity Initiatives Practice Group to provide both
legal and practical guidance to employers on workplace diversity
issues. This group will offer training and consultation to employers
but will also keep you up to date on legal developments in this
often volatile and rapidly changing area. For more information,
contact Randy Loftis or Candice Wooten at 336-721-1001.
CALLING ALL IN-HOUSE COUNSEL!
The Association of Corporate Counsel will hold its annual meeting this
October in Chicago. If you plan to attend, please join us for our fifth
annual dinner for clients and other friends. Contact Victoria Whitaker
for more information. vwhitaker@constangy.com or 404-230-6730.
WHEN DIVERSITY INITIATIVES ATTACK!
If you don’t believe that a poorly-done diversity program
can cause a raft of problems for an employer, here are a few true-life
horror stories to prove it:
- During a diversity program, a
supervisor told the group that she’d had to overcome an initial negative reaction to one
of her employees, who was very overweight. The overweight employee
was in attendance. She was later terminated, and used the statement
as evidence of her supervisor’s discriminatory intent.
- An
employer required all employees to “affirm” the
lifestyle of lesbian-gay-bisexual-transgendered employees as
part of its diversity initiative. A Christian employee believed
that the lifestyle was sinful, although he had agreed to treat
his co-workers non-discriminatorily and with respect. He was
fired for refusing to sign the affirmation. A federal court found
that the employee had been a victim of religious discrimination.
- The hyper-confrontational
manner of a “boot-camp style” diversity
trainer alienated virtually all of the white males in his class.
Many courts have found that
statements made during diversity training programs or in relation
to diversity initiatives may be used against the employer. Recently,
in Sino v. McDonald’s Corp., a federal
court in Illinois allowed a discrimination case to go to trial
based on the fact that the employer had affinity groups that were
open only to African-American employees.
Skilled diversity programmers are aware
of the fine line between effective diversity programs, on the
one hand, and discrimination against the “non-diverse,” on the other. They have
the legal savvy, knowledge of the employer’s non-discrimination
and no-harassment policies, and decorum necessary to stay on the
right side of the line. They’re also respectful of all individuals
and able to facilitate diversity training exercises without alienating
or being hurtful toward anyone.
Carefully select the individuals designated
to design your organization’s
diversity programming, as well as those tasked with disseminating
your message. Cutting corners in this area could have drastic consequences
in the long term.
Candice S. Wooten (Winston-Salem, NC)
GETTING TO KNOW US
FRED RICHARDSON (Atlanta,
GA, labor relations;
employment litigation prevention and defense) received both his bachelor’s degree
in American Studies, and his law degree, from the University
of Alabama. Before joining Constangy, Fred was a Field Attorney
for the National Labor Relations Board, and he now handles defense
of unfair labor practice charges, union campaigns, contract negotiations,
and arbitrations. Fred and his wife have three grown children
and one grandchild.
WRIGHT MITCHELL (Atlanta,
GA, labor and employment litigation prevention and defense) received his bachelor’s degree from
the University of South Carolina, where he played varsity football.
He then went to Argentina to study Spanish before obtaining his
law degree from Emory University. While in law school, Wright was
a member of the Moot Court Society and was President of the Phi
Delta Phi legal fraternity. He is on the boards of the Atlanta
Preservation Center and the Georgia Trust. He has also been appointed
to Governor Sonny Perdue’s Executive Fine Arts Committee
and is a member of the Buckhead Heritage Society. Wright currently
serves as a Special Assistant Attorney General to the State of
Georgia, defending the state against claims brought under the Georgia
Tort Claims Act. Wright enjoys running, reading, and playing squash. He
and his wife, Antonia, have a son and a newborn daughter.
MARY DOHNER
SMITH (Nashville, TN, wage and
hour; employment litigation prevention and defense) received
her bachelor's degree in political science and history from the
University of Wisconsin-Whitewater and her law degree from Marquette
University. Before attending
law school, Mary worked in Human Resources in both unionized and
non-unionized environments. Mary is a member of the National Association
of Women Business Owners, the Middle Tennessee Society for Human
Resources Management, the Stones River Society for Human Resources
Management, and the Veterans of Foreign Wars Ladies' Auxiliary. Mary
volunteers with the Employer Support of the Guard and Reserve,
and with her church. When she is not practicing law, Mary enjoys
boating, scuba diving, playing golf, reading, or traveling with
her husband, Travis, and their one-year-old son.
TOBY DYKES (Birmingham,
AL, employment litigation prevention and defense) received his bachelor’s degree in English, with
a minor in political science, from Bates College and his law degree,
cum laude, from Cumberland School of Law, where he was a member
of the Order of the Coif, the ABA National Trial Team, and the
American Journal of Trial Advocacy. Toby is an avid tennis player
and a patron of the Birmingham Museum of Art. When he is
not practicing law or engaged in community activities, Toby enjoys
playing golf, reading, and spending time with his wife, Melanie,
and their two children.
LORI MANS (Jacksonville,
FL, labor relations; employment litigation
prevention and defense) received two bachelors' degrees,
cum laude, from the University of North Florida. She earned her
law degree, magna cum laude, from the University of Florida and
was a teaching assistant in Appellate Advocacy, and Legal Research
and Writing. Lori was also on the board of the Florida Journal
Of Law And Public Policy, which awarded herthe Barbara W. Makar
Writing Award. Lori currently serves on the Board of the Jacksonville
Chapters of the Federal Bar Association and the Society for Human
Resource Management. Lori enjoys camping, running, reading, and
Gator football.
NEW
REGULATIONS PAVE THE WAY FOR EMPLOYEE WELLNESS PROGRAMS
by M.
Brian Magargle
If your group health plan offers a wellness program, or if your
company is considering implementing a wellness program, you must
be familiar with the recent Final Regulations under the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”),
which apply in plan years beginning on or after July 1, 2007 (or
on January 1, 2008, for calendar-year plans). These Final Regulations
replace the Proposed Regulations that were issued in 2001 and apply
to all group health plans that have a wellness program component. The
Final Regulations were issued by the United States Department of
Labor, Employee Benefits Security Administration, on December 13,
2006.
The Wellness
Craze
As most employers know by now, wellness programs are hot. Wal-Mart
has decided to go nationwide with a “pilot” voluntary
wellness program that began in Denver, Indianapolis, and Tampa,
and received a warm reception from employees. Under the Wal-Mart
program, employees can choose from several personal sustainability
goals related to diet, smoking, and exercise. The program is
expected to be available to all Wal-Mart employees by the end
of this year. A recent survey of 464 employers by the International
Foundation of Employee Benefit Plans found that 62 percent of
employers offered some form of wellness program, and 15 percent
intended to do so in the near future.
But the wellness craze is not just another
fad. Physicians have long emphasized the superiority of prevention
(or “health”)
over curing illness. And now there are numbers to back up that
traditional wisdom. One employer, We Energies, figured that it
could save between $1.80 and $2.38 in medical, drug, and workers’ compensation
costs for each dollar invested in its wellness program. And according
to Employee Benefit News, third-party administrators for self-insured
plans are discussing wellness programs with clients as a cost-reduction
mechanism in addition to provider discounts. As an example, it
was projected that each investment of $500 in a maintenance tool
for diabetic employees could save a plan sponsor up to $5,000 in
future expenses for a diabetic who does not regularly monitor his
condition.
Too Good to Be True?
Another bit of traditional wisdom is that if something sounds too
good to be true, it probably is. Indeed, there are some legal snares
that employers implementing wellness programs need to be aware
of. But they are not particularly burdensome, and the new HIPAA
regulations provide some welcome clarification.
The Americans with Disabilities Act
The ADA sharply curtails an employer’s right to require “medical
examinations” of current employees, and any question that
is calculated to elicit information that could reveal the existence
of a disability constitutes a “medical examination.” However,
there is an exception for information gathered pursuant to a voluntary
wellness program. So, as long as the program is truly voluntary,
there should not be a problem under the ADA with gathering information
necessary to administer the program.
From an ADA standpoint, employers should
not coerce employees to join the wellness program, nor should
they “pressure” employees
to join, or use participation or non-participation as a basis for
employment decisions. Any information gathered should be treated
as confidential. In addition, it is also wise from an ADA standpoint
to reward efforts but not results. For example, an employee who
is morbidly obese but diligently works out every day to the best
of her ability should be treated as favorably as her co-worker
who runs marathons and has no health issues.
HIPAA
More frightening than the ADA is the specter of HIPAA privacy rules,
but the new regulations dovetail nicely with the ADA restrictions.
HIPAA contains several requirements applicable to group health
plans, including privacy and security rules. Another aspect
of HIPAA deals with nondiscrimination rules. Generally
speaking, HIPAA prohibits a group health plan from discriminating
against any individual based on a health-status-related factor.
The Final Regulations provide that a group
health plan may not establish rules for eligibility or benefits
based on a health factor, such as health status, medical condition,
claims experience, medical history, disability, or similar issues. Simply put, any differential
treatment of an individual based on a health factor is prohibited.
This is generally consistent with ADA requirements.
Because wellness programs focus on the health
and medical condition of certain employees, in theory they could
violate the nondiscrimination rules of HIPAA. The Department
of Labor, however, has explained that wellness programs will
not violate the nondiscrimination rules if (1) they are not based
on a health factor, or (2) they are based on a health factor
but meet certain regulatory requirements.
Certain types of wellness programs
are not based on a specific health factor and therefore are permissible
under the Final Regulations:
- A program that reimburses all
or part of the costs for membership in a fitness center.
- A diagnostic
testing program that provides a reward for participation and
does not base any part of the reward on outcomes.
- A program that encourages
preventive care through the waiver of the copayment or deductible
requirement under a group health plan for the costs of, for example,
prenatal care or well-baby visits.
- A program that reimburses employees
for the costs of smoking cessation programs without regard to
whether the employee quits smoking.
- A program that provides a reward
to employees for attending a monthly health education seminar.
These programs do not base eligibility
for a reward on satisfying a health-related standard but merely
require some form of voluntary participation or education about
health issues.
Can You Ever Reward Results?
The quick answer is yes. A wellness program can reward good results
(on a limited basis) if it satisfies five general requirements
set forth in the new regulations:
- The reward for the wellness
program must not exceed 20 percent of the cost of the applicable
level of coverage under the plan (employee-only, family, etc.).
- The program must be designed to
promote health or prevent disease. In other words, the
program must have a reasonable chance of improving the health
of or preventing disease in participating individuals and must
not be overly burdensome.
- The program must give individuals
eligible for the program the opportunity to qualify for the reward
under the program at least once a year; for example, during
open enrollment.
- The reward under the program must
be available to all similarly situated individuals. A reasonable
alternative standard for obtaining the reward must be available
to those with a health factor that makes it unreasonably difficult
or medically inadvisable to satisfy or attempt to satisfy the
otherwise applicable standard. For an alternative standard to be “reasonable,” it
must be able to be satisfied without regard to any health factor.
- The plan must disclose in all
plan materials describing the terms of the program the availability
of the reasonable alternative standard for obtaining the reward.
Employers have great flexibility in designing
what health issues a wellness program will target and what the
reward will be. Common
programs focus on lowering blood pressure, lowering body mass index,
and smoking cessation. Rewards can range from reduced premiums
to cash rewards or other prizes. As long as your wellness
program can meet the five factors above, it can cover a number
of issues and change periodically to meet the needs of your workforce.
Wellness programs present an excellent opportunity
to promote the health and well-being of your employees as well
as to help contain health coverage costs which increase every
year. Whether
the program is a simple educational tool or a more complex monitoring
regimen, it will send a positive message to employees, management,
shareholders, and the public about the value your organization
places on its people.
Brian Magargle (Columbia, SC) practices in the areas of employee
benefits and ERISA, and in employment litigation prevention and
defense.
QUARTERLY QUIZ
Zelda begins missing a lot of work because she is taking care of
her elderly mother. Her supervisor, Chlorine, fires Zelda for
poor attendance. As Zelda is cleaning out her desk, Chlorine
comes by to help her pack. Chlorine says, “Zelda, I just
want you to know that this is not personal. You’ve been
a very valued employee, and you’re welcome to come back
after your mother dies. Maybe it won’t be too much longer.
Anyway, we need you at work on a regular basis, and I’m
sure you can understand our position. Stay in touch, m’kay?”
Zelda sues the company under the Americans with Disabilities Act,
the Family and Medical Leave Act, and for sex discrimination under
Title VII because family-unfriendly policies have a disparate impact
on women, who bear primary caretaking responsibility in their households.
Who wins?
ANSWER
Probably not Zelda (unfortunately). Although Zelda has a most insensitive
supervisor, she probably does not have a legal claim against the
company. She has no ADA claim because there is no indication that
her mother is disabled. Even if she were, the ADA would offer no
protection to Zelda for missing work. The ADA “associational” protections
do not require reasonable accommodation.
Zelda also doesn’t have an FMLA claim (assuming she’d
met the 12 months/1250- hour requirement and had leave available)
because there is no indication that her mother has a serious health
condition. Merely being “elderly” is not a serious
health condition. However, Zelda might be entitled to time off
under the FMLA if her mother became sick or needed medical treatment.
The sex discrimination theory is creative
but another non-starter. A “family-unfriendly” attendance
policy may (or may not) affect female employees more than male
employees, but it is generally not held to be discriminatory
as long as the employer applies the policy uniformly.
How about intentional infliction of emotional
distress based on Chlorine’s insensitive remarks? Most courts would say that
her remarks, while rude and insensitive, are not so “extreme
and outrageous” as to give rise to such a claim.
EEEEEEK!!!
POLITICAL AGENDA FOR EMPLOYERS COULD BE A NIGHTMARE IN ’08
by
Robin E. Shea
To get an idea of what employers may be
facing in the event of a Democratic victory in 2008, it is interesting
to look at some of the bills that are in the hopper or have already
been introduced by Democrats and a few Repuplicans during the
past few months. Most of the bills have already been defeated
or are not expected to survive, but that could change dramatically
after next year’s
elections.
The following is a mere foretaste:
ADA Restoration
Act. This bill seeks to
overrule Supreme Court decisions that had limited the definition
of “disability” for
ADA purposes. A subtle language shift arguably eliminates the requirement
that the plaintiff be an “individual with a disability.” Sponsors:
Sensenbrenner (R-Wis.) and Hoyer (D-Md.) in the House, and Harkin
(D-Iowa) in the Senate.
Family and
Medical Leave Expansion Act. This legislation would provide at least six weeks’ income replacement (per 12-month
period) to new parents, lower the coverage threshhold from 50 to
25 employees, and allow FMLA leave for domestic violence and children’s
academic activity. Sponsor: Maloney (D-N.Y.).
Family Leave
Insurance Act. This legislation
would create a federal insurance fund that would provide eight
weeks’ pay for employees
who take time off for reasons that would be covered under the FMLA.
Sponsors: Dodd (D-Conn.) and Stevens (R-Alaska).
Healthy
Families Act. This would require
employers to provide seven paid sick days for the employees or
to allow the employees to care for sick family members. Part-time
employees would receive pro-rated coverage. The bill broadly
defines a family member as anyone “whose close association with the employee is the
equivalent of a family relationship.” Sponsors: Kennedy (D-Mass.),
DeLauro (D-Conn.).
Honest Leadership
and Accountability in Contracting Act. This
bill would bar employers from federal contracts if they have a
pattern of non-compliance with tax, labor and employment, environmental,
antitrust, and consumer protection laws. Sponsor: Dorgan (D-N.D.).
Safe Nursing
and Patient Care Act. This bill would prohibit health
care employers from requiring nurses to work overtime unless there
is a declared emergency and would impose penalties of up to $10,000
per violation. Sponsors: Kennedy (D-Mass.), Kerry (D-Mass.).
Employee
Free Choice Act. This passed the House in 2007 but failed
in the Senate; however, it is expected to rear its head again in
2008 or 2009. This bill would have required employers to recognize
unions based on a majority of authorization cards without an election.
Sponsors: Miller (D-Ca.), Kennedy (D-Mass.).
RESPECT
Act. This bill would narrow the
NLRA definition of “supervisor,” requiring
that the employee spend the majority of his time in a supervisory
capacity. It would also remove the words “assign” and “responsibly
to direct” from the definition. The effect would be to expand
the number of employees who would be eligible to join unions. Sponsors:
Dodd (D-Conn.), Andrews (D-N.J.), and Young (R-Alask.).
Fair Pay
Act. This is a “comparable worth” bill.
Sponsor: Harkin (D-Iowa).
Lilly Ledbetter
Fair Pay Act. This bill,
named for the unsuccessful plaintiff in Ledbetter v. Goodyear
Tire & Rubber Corp., would
provide that the statute of limitations in pay discrimination cases
under Title VII, the Age Discrimination in Employment Act, and
the Americans with Disabilities and Rehabilitation acts, is refreshed
each time an employee receives a paycheck that reflects a discriminatory
decision, no matter how old that decision may be. Sponsor: Miller
(D-Ca.).
Paycheck
Fairness Act. This bill would limit
defenses to claims brought under the Equal Pay Act; provide for
compensatory and punitive damages; make it easier for claims
to proceed as class actions; authorize the U.S. Department of
Labor with developing guidelines for employers to use in setting
compensation; make it a violation of the Fair Labor Standards
Act to prohibit employees from discussing pay information; restore
the EO Survey that was recently abandoned by the Office of Federal
Contract Compliance Programs; and force the OFCCP to use discredited
statistical methods. Sponsors: Clinton (D-N.Y.), DeLauro (D-Conn.).
Robin Shea (Winston-Salem, NC) practices in the areas of litigation
prevention and defense, wage and hour, and affirmative action.
TIMBERLAND LEGAL DEPARTMENT WINS WORK-LIFE AWARD
Constangy is pleased to announce that the recipient of its second
annual Corporate Counsel Department Work-Life Balance Award is
the legal department of The Timberland Company. Timberland was
a unanimous choice for the award, which is designed to recognize
an outstanding in-house legal department that is committed to
work-life balance. The selections are made by a panel of outside
judges.
Timberland, based in Stratham, New Hampshire,
makes and sells boots, shoes, clothes, and outdoor recreational
gear. The company encourages its employees to be involved in
their communities
and has a strong commitment to preservation of the environment.
As the 2007 honoree, the Timberland legal department will receive
a crystal trophy and a $1,000 donation in its name to the nonprofit
organization of its choice.
Congratulations, Timberland Legal Department!
Reason Prevails...
The. Best. Job. In. The. World. The Sheraton-Four
Points Hotel chain has created a new position of “Chief Beer Officer” to
head the chain’s beer program and write beer-related blogs
for the hotel website. Qualifications included being at least age
21, loving beer, and “a thirst-hand [get it?] knowledge of
this glorious libation.” The advertisement resulted in more
than 6,000 applications from beer-lovers in 31 countries.
Employer need not hire candidate who turned
up nose at job, court affirms. An African-American car salesman
who was specifically recruited for a general manager position
but rejected the proposed salary was not discriminated against
when the company that owned the dealership failed to hire him,
said the U.S. Court of Appeals for the Eighth Circuit (Arkansas,
Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South
Dakota). A friend of the plaintiff had told the president of
the company that the plaintiff was “offended” by
the salary. The president, who in turn said he was “offended” by
the plaintiff’s reaction, did not pursue the offer further.
The court, affirming judgment for the company as a matter of law,
noted that “it almost defies reason” that the plaintiff
would have been recruited only so that he could be discriminated
against.
And Reason Flails...
Long-oppressed MSU Spartans, trust babies
breathe sigh of relief. The city of Lansing, Michigan, which
obviously has more than enough time on its hands, has enacted
an ordinance prohibiting discrimination in employment based on “irrelevant characteristics,” defined
as “any status or condition that is unrelated to a person’s
ability to perform safely and competently specific duties of a
particular job or profession or to qualify for promotion.” Among
the stranger “irrelevant characteristics” listed in
the ordinance are “student status” and “source
of income.”
OK, now, who’s suing the parents? The parents of a
16-year-old girl have sued the Brunswick County, North Carolina,
school system for failing to protect their daughter from a romance
with a 40-year-old track coach. The school system responded
that it monitored a “mentoring relationship” between
the two but found no evidence of a romance until the coach resigned
from his position and married the girl . . . whose parents (aka “the
plaintiffs”) gave legal permission – albeit “reluctantly” – to
their underage daughter to marry the coach.
“Profane and violent” held to depend on your point
of view. An employee who had a “profane and violent outburst” at
work that might have been due to her bipolar disorder was protected
from discharge, according to the U.S. Court of Appeals for the
Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana,
Nevada, Oregon, Washington, Guam, and Northern Mariana Islands),
which was applying the Washington State disability rights law.
In the rest of the world, the disabling condition is protected
but not misconduct that results from same.
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