Archive for the 'Employment' Category

Will Clinton’s Email Controversy Benefit Whistleblowers?

Is Hilary Clinton any different than Edward Snowden? Well, there’s one major difference between the two—Snowden purposefully leaked top-secret documents on U.S. surveillance programs whereas Clinton claims no such thing in how she handled classified emails.

Despite the fact Clinton may have had no intentional or malicious intent, there are plenty of other government employees who have gotten the axe for much less. Does the fact that Clinton was not indicted for mishandling classified emails mean whistleblowers are off the hook?

If you’re not familiar with the Clinton email controversy, here’s the low down. As Secretary of State, Clinton used her family’s private email server for official communications that should have been used on the official State Department email accounts located on federal servers.  Why the big deal?  Well, thousands of these emails were later marked as classified, posing a potential security threat if on the off chance any of those emails were hacked.

While many seem split on whether Clinton committed a crime, others say it’s likely she violated government procedures and rules but didn’t violate the law in and of itself. Clinton acted “extremely careless”, according to FBI Director Comey, but no laws were broken. Clinton

Contrast with Edward Snowden, a former government contractor who purposefully leaked national security information from the NSA, who is obviously pretty peeved no charges were brought against Clinton considering he’s facing up to 30 years in prison if he steps a foot back into the U.S. In a Twitter post, Snowden’s response to the news was more than unenthusiastic:

“Break classification rules for the public’s benefit, and you could be exiled. Do it for personal benefit, and you could be President”

Whistleblower Protection Act Only Offers Protections to Some

The 1989 Whistleblower Protection Act protects federal employees from agency backlash for whistleblowing.  Even despite the law, many employees were often fired, demoted, reassigned, or lost their security clearances after stepping forward against their government employers.  At the beginning of Barack Obama’s presidential campaign, one thing he promised was to strengthen the laws to better protect whistleblowers from negative repercussions.

Obama promised to speed up the review process of claims and grant whistleblowers full access to jury trials and due process. Although he followed through on part of his promise, one area remains unprotected—free speech protections don’t extend to whistleblowers in the intelligence community.

Obama did, however, pass an executive order appearing to extend the same protections to the intelligence community by allowing them to use internal channels, rather than the media, but many advocates suggest this is merely a façade and doesn’t afford the same protections as a Congressional law.

Does Clinton’s Lack of Indictment Set a Precedent Offering More Employee Protections?

Despite Clinton’s reprieve, the government’s insistence on punishing secrecy violations shows no sign of a change. As with any other criminal case, situations will be investigated on a case-by-case basis, which means Clinton’s lack of indictment isn’t going to offer any sort of blanket coverage, especially when you consider the fact that the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined.

In 2015, David Petraeus, former CIA Director, plead guilty to a felony charge of unauthorized removal and retention of classified information for providing his mistress with classified information. Petty Officer First Class Kristian Saucier used a cellphone camera to take photos in a classified engine room of the nuclear submarine where he worked as a mechanic.  In May, he entered a guilty plea for unlawful retention of national defense information.  These are just a few examples.

Regardless of whether protections are offered under whistleblower laws, none of them would have protected Snowden.  One important thing to remember is that whistleblower protection, whether at the government or private level, are only triggered if employees go through the appropriate channels—not leaks to the media.

Even so, where are the protections when, in cases like Clinton or Petty Officer Saucier, information is simply mishandled without malicious intent?  These kinds of cases where information is mishandled shouldn’t even warrant criminal charges, but nonetheless, they do and there definitely seems to be an imbalance in terms of who gets prosecuted and who doesn’t.

 

Waitress Told to Wear a Skirt and Look More Feminine Wins Sex Discrimination Case

In Scotland, an eighteen-year-old part-time waitress was asked to wear a skirt and makeup so she would be “easy on the eyes” to male customers.

The young woman claims that she was offered a full-time position as a waitress at the restaurant, but was pulled aside by the manager and told to wear a skirt, makeup, and her hair down to look more feminine and attractive to the customers. After she complained, she was told her existing hours would be cut and that she was no longer offered the full-time waitressing position. She decided to file a sex discrimination lawsuit.

A judge at an industrial tribunal, who makes decisions in legal disputes regarding employment law, awarded her $4,372 for discrimination and lost wages.

Would a case like this prevail in America?

What is Sex Discrimination?

Sex discrimination includes any unequal treatment on the basis of sex. The treatment must not only be different, but also unequal, and therefore lead to inequality between the sexes. For example, designating male versus female bathrooms for each gender does not rise to the level of sex discrimination. However, an employer who pays a woman less for the same work a man performs does constitute sex discrimination because it is unfair. Waitress

Title VII of the Civil Rights Act of 1964 provides protections against sex discrimination in the workplace. The Act makes it illegal for employers to either:

  1. fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation terms, or privileges of employment, because of that individual’s sex; or,
  2. limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect that person’s status as an employee because of such individual’s sex.

In laymen terms, all employees or applicants must be given equal opportunities for employment and advancement within the company organization. Further, no person can be deprived of any employment opportunity based on his or her gender.

Sexual harassment is also a form of sex discrimination. Generally, sexual harassment may be found if an employee experiences unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.

Can An Employer Require Female Employees Wear Skirts?

The short answer is “yes.” Generally an employer can impose a dress code that requires female employees to wear skirts. However, the employer must have a legitimate business necessity for this requirement and it must be reasonably related to the employer’s business needs.

For instance, if the employer wants to foster a professional atmosphere, the employer may require more formal dress, which includes a requirement that female employees wear skirts while their male counterparts wear slacks. There have been some cases where employers have been found guilty of sex discrimination against women for requiring them to wear skirts and not having any equivalent policy (such as wearing slacks) for men.

While it is generally admissible for employers to impose dress codes, it must be done with sensitivity and strict adherence to the law. A dress code cannot impose a greater burden on one gender than another. Referring back to the previous example, it would be sex discrimination require female employees to wear skirts, but have no formal dress code requirement for male employees.

Further, the employer must be careful about sex discrimination and stereotyping claims. Therefore, it is advised that the employer create exemptions in some cases to the dress code, or to forego a dress code altogether to avoid claims of sex discrimination.

Just as an employer is entitled to establish a dress code that requires female employees wear skirts, they may also require female employees wear makeup. However, the employer cannot pass up a female employee for advancement, or terminate a female employee because she did not wear makeup.

EEOC Reaches First Sexual Orientation Discrimination Settlement

Title VII of the Civil Rights Act prohibits employers from discriminating against employees because of race, color, religion, or national origin. The Act doesn’t, however, specifically protect employers from discrimination based upon sexual orientation.  That didn’t stop the Equal Opportunity Commission (EEOC) from filing its’ first two sexual orientation claims earlier this year. Fortunately for the employee, a settlement was just reached in one of those cases.

Yolanda Boone filed suit on the basis that she was terminated from a Baltimore pallet company after complaining of being harassed because of her sexual orientation. Even though sexual orientation isn’t a protected class under Title VII, Boone had some pretty damning arguments against her former company.  You can read more about Boone’s story here, but she claimed once she complained to upper management, she was asked to resign and when she would not, she was terminated.

The EEOC took hold of Boone’s case and filed suit against her employer. The Baltimore company settled and with no small price either.  The company will be required to develop an employee-training program for LGBT workplace issues, make a $20,000 donation to the Human Rights Campaign’s Workplace Equality Program, and compensate Boone a total of $182,220.  There’s not much doubt that this will create a domino effect with the same result in the other pending matter.

Boone’s Settlement was Warranted Because EEOC Considers Sexual Orientation Discrimination Definitively Sex Discrimination

The EEOC is the governmental entity responsible for enforcing compliance with the Civil Rights Act and they’ve been taking great strides to honor the rights of the LGBT community. Often times, the EEOC will settle cases without filing a lawsuit. Gavel

In these recent cases though, I imagine the EEOC wanted to take a definitive stance on the matter in order to protect LGBT rights as they slowly gain traction, especially in light of all the recent law changes throughout different states that are negatively impacting the LGBT community.

Without an abundance of precedent to stand on, the EEOC took their first official stance on the matter last year when they definitively ruled that discrimination based upon sexual orientation can be classified under discrimination based on sex, which is strictly prohibited.

Courts will soon follow the EEOC’s footsteps. When looking to form a new protected class, courts will look to the history of discrimination, the economic disadvantages to the class, and immutable characteristics.

The LGBT community is discriminated against on a daily basis; just consider all the recent media attention from different states passing laws that allow businesses to refuse service to a patron because of their sexual preference. Economic disadvantages aren’t a hard argument to make either, for the same reasons.  Immutable characteristics?  No problem—there’s plenty of evidence and studies that convey one’s sexual preference is not a choice.

Supreme Court Decisions Lean Towards Favoring EEOC Interpretation

Although it’s up to the courts (or an unlikely law change) to interpret Title VII in the same manner as the EEOC, in the past federal courts have typically given great deference to EEOC decisions. The courts aren’t far behind a similar mindset either when you consider past decisions like Griswold v. Connecticut, Lawrence v. Texas and, most notably, recent decisions like Obergefell v. Hodges.

Griswold established that intimate choices defining one’s personal identity are a fundamental right under the 14th Amendment, while Lawrence struck down a law that tried to prohibit intimate sexual contact between members of the same sex.

Although the latter didn’t deal specifically with workplace discrimination based upon sexual preference, the Justices stressed that a personal relationship is within a person’s own liberty to choose and, again, reiterated that core principle in Obergefell. I can’t imagine the Justices on today’s bench would find workplace discrimination based upon sexual preference acceptable.

Despite the fact that Boone’s case settled, it’s not a step back. The EEOC’s primary mission is to enforce federal laws and make sure individual rights are protected.  It’s more about awareness and making sure companies comply with EEOC policies moving forward.

With the settlement of the lawsuit, the Baltimore company is forced to change their policies and will undoubtedly do more in the future to make sure their employees are protected.  Again, it’s a domino effect and once the EEOC rules start gaining traction, other companies will take note and start complying.

Employers On the Hook for Caregiver Discrimination

Employees are winning discrimination cases against their employees based on family care discrimination, which has increased by 269% in the last decade alone.  Of the lawsuits filed within that time frame, nearly $500 million has been paid out in verdicts and settlements in favor of an employee.

If you’re not familiar with it, caregiver discrimination, or family responsibilities discrimination, is a form of employment discrimination that’s based on an employee’s responsibility to care for family members. Obviously, a mother caring for a sick child is the most obvious case of caregiving responsibility, but many don’t know it also applies to caring for a sick parent or spouse with a disability.

The Equal Employment Opportunity Commission recently published reports that show at least 70% of U.S. households with children have all adults in the household in the workforce, which explains why the increase in caregiver discrimination cases.  Of that workforce, 46% are women and of those women, 81% have children. That’s a significant amount and it’s inevitable that, at some point in time, one of those parents will have to miss work to care for their child. At least 25% of families take care of aging relatives, while 10% take care of both aging relatives and children.

When you consider the fact that, at some point in time, most of us will have someone to take care of, whether it be a child, spouse or parent, employers should be careful with how they handle their employees’ family situations.

Obvious and Intention Discrimination Aren’t the Only Basis for Lawsuits

Discrimination in the workplace can come in many forms and can include:

  • firing pregnant employees because they are pregnant or will take maternity leave,
  • failing to promote an employee based on the fact that they are pregnant or have a young child at home,
  • purposefully giving employees work schedules they know they cannot meet due to childcare reasons while giving other employees flexible schedules,
  • fabricating work infractions or performance deficiencies, or
  • otherwise penalizing an employee because they have legally taken time off to care for a family member.

Caregiver discrimination can be any adverse action taken against an employee because of their caregiving responsibilities. Caregiver discrimination doesn’t have to be as clear as firing a pregnant employeePregnant and Working

According to a report written by Cynthia Calvert, senior advisor to the Center for WorkLife Law at the University of California’s Hastings College, discrimination can be as simple as a supervisor refusing to allow a pregnant employee to take a break as directed by her doctor.

What about a father who occasionally misses work to stay home to care for his child and is excluded from work meetings and subsequently punished for infractions others may commit without any repercussions? How about an employee who requests to miss work to take their parent to a doctor’s appointment and their request is denied?  It can be easy for an employer to commit caregiver discrimination without intending to do so and without knowing that their decisions are illegal.

Employees Can Hold Their Employers Accountable For Caregiver Discrimination

Caregiver discrimination or family care discrimination isn’t specifically spelled out within the Civil Rights Act, but it could fall under employment discrimination based on sex and an employee’s association with an individual with a disability. Some states have their own laws on the books to protect employees, but as stated above, caregiver discrimination isn’t specifically prohibited under federal law.

Employees will need to look to their specific state law for remedies available to them if they’ve been discriminated against. Massachusetts and Pennsylvania have tried to introduce measures that would strictly prohibit employment discrimination based on familial status, marital status, and family caregiver status, while Michigan and North Carolina are slowly introducing measures that suggest a change in the future.

Federal employees can contact the U.S. Office of Special Counsel for help.

Employers Need to Implement Proper Policies and Work with Employees

To help curb these types of lawsuits, companies need to make sure they have policies in place to act as a system of checks and balances for the policies they do have. Whether those policies be through their hiring practices, attendance policies, promotion policies, incentive pay and benefit standards, and leave policies, companies need to make sure they aren’t negatively impacting their employees.

The EEOC recommends companies have prevention programs in place that both educate and train management so they’re aware of the legal obligations impacting workers with caregiving responsibilities. Companies need to train managers on what constitutes family responsibilities discrimination and how to handle any complaints.

With the rise in caregiver discrimination lawsuits, if employers don’t begin to work with employees to accommodate their needs to care for a family member, it’s going to keep costing companies big. Besides the financial implications, employers risk the loss of loyal employees to companies that are willing to be more accommodating.

Can You Be Fired for Being “Too Cute?”

It sounds like a plot to a bad TV show, but for one woman in New York City, it was the reason she was fired from her job. Dilek Edwards was a yoga instructor and massage therapist for a chiropractor. Edwards stated that her relationship with her former boss was completely professional. She met his wife, Adams, also the co-owner of his practice, after a year and a half in her position. Her boss mentioned that his wife thinks Edwards is “too cute” for the job.

Over a year later, Adams fired Edwards through text message. In the message, Adams added that Edwards should stay away from her husband and family. It is easy to argue that Edwards was fired due to her attractive appearance. Most people can agree that it is unfair to be fired from your job due to how attractive you are to your boss.

But was it discriminatory? What was Edwards’ claim against her employer for wrongful termination?

“Attractive Females are Not a Protected Class Under Anti-Discrimination Laws.”

Discrimination laws tend to be controlled by the federal government. However, individual states may add state laws, so long as they do not conflict with federal regulation. New York State added protection for groups not protected under the federal law. Under both New York and the federal law, neither has specified protection for individuals due to an attractive appearance. In Edwards’ case, her claim went before the state court. Sexual Harassment

Edwards argued that her claim is based on gender discrimination. She claimed was fired due to her “gender identity, self-image, appearance, behavior or expression.” But the court disagreed. Instead, they found that gender discrimination protection only applies to individuals discriminated due to gender identity or transgender issues. Whether an employer found an employee appealing is not part of gender discrimination.

The court determined that attractive persons are not considered a protected class, so Edwards has no legal claim against her former employer.

Similar cases were brought to state courts across the nation. So far, every outcome has rejected the concept of creating a protected class for attractive persons. If there are some instances of discrimination, why shouldn’t they be protected?

A Class is Protected Due to Inherent and Persistent Disadvantages

The outcome of Edwards’ claim does not sit well with most people. The idea that a person can be fired or discriminated against due to something out of their control seems to be the very backbone of anti-discrimination laws. But at the same time, the idea that being too attractive means you deserve special protection does not sit well with many people.

We live in a world where being attractive is often an advantage. The logic behind anti-discrimination protection is that certain groups of people face regular discrimination due to belonging to that group. It does not seem like attractive people fit the need for class protection.

Also, the protected classes are protected due to an immutable characteristic (except for religion). A person born in a different country cannot change the fact they were born in that country. It’s also not something that can be debated or be something else. A woman born in Australia cannot be interpreted to be born elsewhere. In contrast, attractiveness is mostly subjective and whether one is attractive often differs from person to person. While society may have some sort of standard, it always falls to the perceiver to determine if the other person is attractive.

What will always set attractive persons apart from the protected classes is that it is tends to be a positive quality. Studies show that attractive people are paid more, are considered more persuasive, more trustworthy, and are more likable. While these may seem to be trivial qualities, these are qualities that almost none of the protected classes can share.

So Where Do We Go From Here?

At the moment, the legal system’s definition of gender discrimination is expanding. It has only been recently applied to individuals dealing with gender identity issues or are transsexual. Before, it was applied to heterosexual men or women who faced discriminated due to their gender.

However, for all of the above reasons, it is very unlikely that attractive persons will become a protected class. They faced discrimination due to the insecurities of a small number of people, not because their attraction limits their ability to enjoy and progress through life. Things may change over time, but due to the way society can overly favor an attractive individual, it is unlikely that attractive people can become a protected class.



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