The consent decree settling the suit provides that Ready Mix will pay a total of $400,000 in compensatory damages to be apportioned among the seven class members. Each party will bear its own litigation costs and attorneys’ fees. The two-year decree enjoins Ready Mix from engaging in further racial harassment or retaliation and requires that the company conduct EEO training. Ready Mix will be required to modify its policies to ensure that racial harassment is prohibited and a system for investigation of complaints is in place. The company must also report certain complaints of harassment or retaliation to the EEOC for monitoring.

“Employees have a right to expect that harassment based on race will be kept out of the workplace,” said Delner Franklin-Thomas, district director for the EEOC Birmingham District. “This case involved not only racist language, but a noose, a threatening symbol of cruelty that has no place in any American workplace.”

EEOC Birmingham District Regional Attorney C. Emanuel Smith said, “We are pleased that Ready Mix has taken these steps to address this very alarming situation and improve its work environment. We encourage all employers to help make workplace race discrimination a thing of the past.”

SHRM’s complaint was part of its comments submitted on February 21 to the Office of Federal Contract Compliance Programs (OFCCP.) In its comments, SHRM said that “[m]easuring progress through onerous paperwork requirements and inherently unreliable data does not advance the OFCCP’s stated goals.” SHRM also called the proposal a “departure” from the DOL’s previous view that “affirmative action plans should be a useful management tool.”

The proposal modifies affirmative action regulations under Section 503 of the Rehabilitation Act. The regulations apply to all federal contractors and subcontractors employing 50 or more employees and holding one or more federal contracts valued at $50,000 or more. The proposed changes seek to strengthen the affirmative action provisions, and provide specific actions a contractor must take to satisfy its obligations. The changes would also increase the contractor’s data collection obligations, and establish a utilization goal for individuals with disabilities to assist in measuring the effectiveness of the contractor’s affirmative action efforts. The rule also proposes to revise the non-discrimination provisions to implement changes necessitated by the passage of the ADA Amendments Act of 2008.

“Replacing that flexibility with a checklist of very specific ‘gotcha’ items is not likely to encourage employment of individuals with disabilities and instead only will serve to undermine the underlying premise of Section 503 — which is that the capabilities of any individual with a disability be examined on a case-by-case basis and not be based on stereotypes or common misperceptions about a condition or impairment,” SHRM said.

On December 21, 2011, the NLRB finalized a number of previously introduced amendments to its election procedures, and Chairman Mark Gaston Pearce has indicated that he hopes to finalize the remaining amendments to the procedures this year. The changes were vociferously opposed by Congressional Republicans and, under the CRA, the Republicans could block the reforms. The CRA gives House or Senate joint resolutions, if approved, the force of law to prevent an agency rule from taking effect. Senate resolutions only need to be passed by a simple majority if acted upon within 60 days of introduction, and cannot be filibustered. Given the current Democratic majority in the Senate, it is unlikely, although not impossible, that the Resolution will pass. The House version is almost certain to pass. Should both chambers pass the resolution, it would almost certainly be vetoed by President Obama.

Senator Enzi has argued that the changes reform a system that was working. “It is important to note that the current system is not broken,” he said in a statement. “Unions already win more than 70 percent of secret ballot elections, and the median time period from petition-filing to election is just 38 days . . . There is no justification for ambushing employers with elections in as few as 10 days.”

Representative George Miller (D-Calif), the ranking member on the House Education and the Workforce Committee, countered that the reforms are needed to prevent “frivolous litigation” that delays secret ballot elections. Miller called the reforms “modest steps” and accused his Republican colleagues of trying to “to defund the agency…and take away any effective remedies the NLRB can use to enforce laws protecting workers from retaliation, and [interference] with ongoing enforcement actions.”

The election rule is slated to take effect on April 30, 2012.

Source: CCH Editorial Staff.

The role moms play at work. But moms aren’t content with feeling “mommy tracked” in the office. In fact, nearly six out of ten working moms (58 percent) aspire to move higher in the professional ranks. And promotion feels possible. Nearly eight in 10 (78 percent) do not feel that they have been passed over for a promotion because of a perceived lack of commitment to work.

In fact, working mothers are seeing themselves more as mothers who work, and the benefits at home and the workplace are evident in the survey. Since becoming a working parent, four out of ten working moms (40 percent) feel that working makes them more creative as a parent and that being a parent has added perspective that enhances their contributions at work. Thirty-two percent feel that they are more motivated to work and take on new roles since becoming a parent, and three out of ten (29 percent) feel that they are more productive now than they were before children.

And they have partners who help: Moms are making it work because they have support at home. More than three-quarters of working moms (77 percent) have a spouse or partner who participates in the raising of their children. Among those, nine out of ten (89 percent) feel that their spouse/partner supports their career goals. And the feelings of “mommy guilt” appear to be abating, as sixty-four percent don’t feel that the demands of their job interfere with their ability to be a good parent.

The problem at work. But increasingly, as more women enter (or re-enter) the workplace, and professional aspirations continue, businesses need to catch up to the new normal of the motherhood workforce. Nearly three out of four companies (73 percent) where working moms are employed do not offer any child care benefits. Less than 20 percent (18 percent) offer flex-spending accounts; 6 percent offer on-site child care; 5 percent offer emergency back-up care; and, 4 percent subsidize child care.

Ambition and support at home is limited without workplace support. According to the survey, about four out of ten working moms (39 percent) had to miss work during the last year because of a childcare issue.

Source: Care.com; www.care.com.

EEOC meeting. At a public meeting on February 15, experts told the EEOC that, at a time when more workers struggle to balance work and family, discrimination against pregnant women and workers with caregiving responsibilities remains a significant problem. Even though the Pregnancy Discrimination Act was passed more than 30 years ago, women still often face demotions, prejudice, and even job loss when they become pregnant. Additionally, both men and women face obstacles in their work lives because of their roles as caretakers. Panelist Lynn Friss Feinberg, Senior Strategic Policy Advisor at the AARP Public Policy Institute, told the Commission that the aging of the population and changing demographics mean that “42 percent of US workers have provided care for an aging relative or friend in the past five years,” and almost half of US workers expect to provide eldercare in the next five years. And the numbers do not include workers who care for children.

The EEOC meeting was a follow up on Commission meetings in 2007, when the EEOC issued its groundbreaking Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities and in 2009 when the Commission issued Employer Best Practices for Workers with Caregiving Responsibilities. Unfortunately, as Chair Barrien put it, the Commission is still seeing things that could have been seen before the PDA was enacted. Several witnesses pressed for stepped-up enforcement and greater guidance on the subject, as well as closer coordination between the EEOC, which enforces laws prohibiting discrimination based on sex, pregnancy, and disability, and the DOL, which enforces the FMLA and the FMLA’s provision for break time for nursing mothers.

Lawsuits. Meanwhile, in late January, female sales reps at Quest Diagnostics filed a $100 million class action in a federal district court in New Jersey, alleging gender and caregiver bias. According to the complaint, Quest engages in companywide, systemic discrimination in the selection, promotion, and advancement of sales reps at Quest Diagnostics and AmeriPath, including discrimination on the basis of pregnancy and caretaking responsibilities, in violation of Title VII and other federal statutes.

Similarly, the EEOC announced on February 16 that it filed a lawsuit against the Washington, D.C. law firm James E. Brown & Associates, PLLC, alleging that the firm violated Title VII when it rescinded its offer of employment to an attorney when it learned that she was pregnant. “Working women who choose to have children cannot be penalized or treated differently from other employees simply because they are pregnant,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, which has litigation authority in the District of Columbia.  “Employers must remember that refusing to hire a woman because she is pregnant violates federal law, and the EEOC will enforce that law.”

Pointers. Employers can learn more about avoiding claims of gender or caregiver bias by reviewing the EEOC’s publications, including its best practices. Generally, however, it is good to keep the following in mind:

• Train managers to be aware of legal obligations that may impact employment decisions about workers with caregiving responsibilities.
• Develop a policy that describes common stereotypes (e.g., assuming female workers with families are less committed or that their responsibilities will interfere with work; assuming male workers do not have significant caregiving responsibilities) and prohibits certain conduct related to caregiving responsibilities (e.g., treating workers without caregiving responsibilities more favorably or promoting them over more qualified caregivers).
• Promptly investigate complaints of caregiver bias and take corrective action.
• Protect employees who complain or provide information related to complaints of caregiver bias from retaliation.
• Review work policies that limit employee flexibility (such as mandatory overtime) to ensure they are necessary to business operations.

Following these suggestions and the other best practices outlined by the EEOC has the potential to help employers avoid costly lawsuits and to benefit all employees, not just those with caregiving responsibilities. It can also enable an employer to recruit and retain talented and loyal employees.

According to an agency announcement on February 16, the EEOC’s suit alleged that Shannon Fantroy answered an online advertisement for a customer service position at Convergys’s call center in Hazelwood, Missouri (EEOC v Convergys Customer Mgmt Group, No 4:11-cv-00395-AGF). Fantroy’s religious beliefs as a Hebrew Israelite require him to observe the Sabbath from sunup until sundown on Saturday. A recruiter for Convergys interviewed Fantroy and told him that he would have to work weekends. The Commission said that Fantroy informed the recruiter that he was unable to work on Saturdays due to his religious beliefs. The recruiter then told Fantroy that the interview was over unless he could work Saturdays, the EEOC asserted.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace and employers are required to make reasonable accommodations to employees’ and applicants’ sincerely held religious beliefs as long as this does not pose an undue hardship.

The consent decree settling the lawsuit, which must be approved by the court, provides injunctive relief, including training for recruiters on religious discrimination and accommodation law, and a new procedure for recruiters that will allow applicants to request a religious accommodation once they are offered a job, and will require the interview/application process to be completed even if the applicant informs the recruiter about the need for a schedule adjustment. In addition, all applicants during the decree’s two-year term will receive written notice that they may be entitled to an accommodation.

“Mr. Fantroy never had a chance to discuss accommodation options because the recruiter simply cut him off once he stated that because of his religious beliefs he could not work on Saturday,” said Barbara A. Seely, regional attorney for the EEOC’s St. Louis District Office. “Giving an employee an alternate schedule where hundreds of employees are available to cover the shift was not an unreasonable request,” she said.

More than 400 working couples, in both blue- and white-collar occupations, participated in Hochwarter’s research. Those who reported high levels of stress but strong spousal support — as compared to stressed-out employees without such support — experienced the following positive benefits:

• 50 percent higher rates of satisfaction with their marriage;
• 33 percent greater likelihood of having positive relationships with co-workers;
• 30 percent lower likelihood of experiencing guilt associated with home/family neglect;
• 30 percent lower likelihood of being critical of others (spouse, children) at home;
• 25 percent higher rates of concentration levels at work;
• 25 percent lower likelihood of experiencing fatigue at home after work;
• 25 percent higher rates of satisfaction with the amount of time spent with their children;
• 20 percent higher views that their careers were heading in the right direction; and
• 20 percent higher level of job satisfaction.

The number of employees who returned to the workplace even more agitated because they were unable to generate coping support at home is particularly distressing to Hochwarter. Further, Hochwarter identified key factors distinguishing favorable from unfavorable support. “Some attempts to support your stressed-out spouse can backfire, actually making the situation much worse,” he said. Support that had a deep and far-reaching impact had several common characteristics, which included:

• Awareness of one’s spouse’s daily work demands (i.e., time pressures, lack of resources, deadlines, and supervisors).
• Not “forcing support.”
• Understanding that communication lines are open regardless of the circumstances.
• Recognizing that distancing oneself from the family or lashing out is not a practical way to foster help. In fact, it tends to bring out the worst in others — and even causes the supporting spouse to become distant and act out as well.
• Being able to bring one’s spouse back to the middle — up when down in the dumps and down when overly agitated.
• Not bombarding the family with complaints about minor workplace irritants.
• Not trying to “one-up” one’s spouse in terms of who has had the worse day.
• Not being complacent — continuing to work at it.
• Remaining rational and not automatically casting the spouse as the “bad guy.”
• Not keeping a running tab on who is giving and who is getting.

“Most important, though, was the ability for a spouse to offer support on days when he or she needs it just as much,” Hochwarter said. “In many cases, both return home from work stressed. Generating the mental and emotional resources needed to help when your own tank is empty is often difficult. Successful couples almost always kept a steady supply of support resources on reserve to be tapped on particularly demanding days.”

Hochwarter also noted that the men and women differed by gender in terms of what support behaviors worked best for them. In general, wives appreciated getting “cut some slack” in terms of household activities; feeling wanted; and receiving expressions of warmth and affection. The husbands, meanwhile, were more likely to respond positively to offers of assistance with errands and feeling appreciated and needed. Both husbands and wives, however, were especially grateful for their spouse’s help in getting time away from work and home hassles to simply rest and recharge their batteries.

Source: Newswise.

EEOC Chair Jacqueline A. Barrien noted that pregnancy discrimination in the 21st century workplace is persistent and it unnecessarily deprives women of the means to support their families. “Similarly, caretakers — both men and women — too often face unequal treatment on the job,” she said.

Pregnant workers. Even though the Pregnancy Discrimination Act was passed more than 30 years ago, women still often face demotions, prejudice, and even job loss when they become pregnant. According to panelist Emily Martin, Vice President and General Counsel of the National Women’s Law Center, the past 40 years have seen a major increase in the number of women choosing to work while pregnant and during the later stages of pregnancy. Moreover, women currently make up 47 percent of the nation’s work for, according to Bureau of Labor Statistics data cited by Judith Lichtman, Senior Advisor for the National Partnership for Women & Families. They are now the primary, or co-primary, breadwinners in nearly two-thirds of families. Because of this, “women cannot afford to lose their jobs or income due to pregnancy or childbirth,” Lichtman said.

Working caretakers. Additionally, both men and women face obstacles in their work lives because of their roles as caretakers. Panelist Lynn Friss Feinberg, Senior Strategic Policy Advisor at the AARP Public Policy Institute, told the Commission that the aging of the population and changing demographics mean that “42 percent of US workers have provided care for an aging relative or friend in the past five years,” and almost half of US workers expect to provide eldercare in the next five years. And the numbers do not include workers who care for children.

Workplace biases. Panelists provided many examples of the sort of discrimination that pregnant workers and workers with caregiving responsibilities face. Sharon Terman, Senior Staff Attorney at The Legal Aid Society Employment Law Center, described situations in which pregnant women were met with harassment and hostility in response to their pregnancies, or were subjected to decreased hours, forced unpaid leave, or job loss.

Professor Joan Williams, Director of the Center for Worklife Law at Hastings Law School and a leading expert on caregiver bias, recounted the story of a pregnant worker who was not permitted to alter her uniform due to her pregnancy but forced to take leave when it no longer fit her. Williams also pointed out examples of men who were penalized by their employers for requesting to use leave to which they were entitled for caregiving responsibilities, based on gender stereotypes that dictate caregiving should be “women’s work.”

Low-wage workers hit hard. While pregnancy and discrimination arising from caregiving impacts all segments of the workforce, low-wage workers are particularly affected, according to Maryanne Parker, Associate General Counsel of the Service Employees International Union. She noted that there has been a trend away from manufacturing and towards service sector jobs for low-wage workers — jobs which are much more likely to be part-time and low wage. These jobs often entail rigid work schedules with no flexibility or, on the other end of the spectrum, completely unpredictable schedules with no fixed hours from week to week, making it more difficult to plan for caregiving.

Motherhood wage penalty. Professor Stephen Bernard of Indiana University, who testified via video-conference, said that across the board, there is a measurable “motherhood wage penalty” of as much as 5 percent per child, controlling for education, experience, and other factors known to affect wages. He thought this may be due to unconscious stereotyping of the capabilities of mothers. “Motherhood constitutes a significant risk factor for poverty,” Bernard said, and it is possible that “the gender gap in wages may be primarily a motherhood gap.”

The way forward. The EEOC meeting was a follow up on Commission meetings in 2007, when the EEOC issued its groundbreaking Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities and in 2009 when the Commission issued Employer Best Practices for Workers with Caregiving Responsibilities. Unfortunately, as Chair Barrien put it, the Commission is still seeing things that could have been seen before the Pregnancy Discrimination Act was passed.

Several witnesses pressed for stepped-up enforcement and greater guidance on the subject, as well as closer coordination between the EEOC, which enforces laws prohibiting discrimination on the basis of sex, pregnancy, and disability, and the Department of Labor, which enforces the Family and Medical Leave Act and the Patient Protection and Affordable Care Act’s Break Time for Nursing Mothers provision of the Fair Labor Standards Act.

Deane Ilukowicz, Vice President for Human Resources at Hypertherm, a manufacturer that provides much work-life balance to its employees, explained that even when employers want to provide the maximum flexibility possible within the constraints of their businesses, they have trouble reconciling the requirements of the various laws affecting caregiving. She called for greater clarity and interagency coordination in order to help employers comply with the law and implement best practices for work-life balance.

Panelists also cited instances in which attorneys and courts have misapprehended exactly how pregnancy or caregiver discrimination may be proved in litigation, particularly noting the confusion surrounding the proper use of comparator evidence and what constitutes direct evidence of discrimination.

Professor Williams stressed the importance of additional guidance from the EEOC. She urged the Commission to consider issuing guidance that would clarify when circumstances related to pregnancy, such as a lifting restriction or a restriction due to increased risk of miscarriage, would require accommodation under the American’s with Disabilities Act as amended by the ADA Amendments Act. Williams also pressed for guidance on the relationship between the Pregnancy Discrimination Act and the ADAAA. In terms of increasing public and employer awareness of the law, Williams also noted that new guidance would reach the defense bar — this is key because defense attorneys will recognize that this new area of law is important to their clients and also use it in client development.

Comments. The Commission will hold open the February 15, 2012, meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meetings. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.W., Washington, D.C. 20507, or emailed to Commissionmeetingcomments@eeoc.gov.

Conducted in late 2011, Mercer’s survey examines the types of issues that organizations in North America are facing as they expand into emerging markets, and which issues and countries present the most critical challenges. It includes responses from more than 150 U.S. and Canadian organizations.

According to Roger Herod, principal in Mercer’s Global Mobility consulting business, “In addition to the lack of local talent in most emerging markets, attracting and incenting expatriates that can provide the needed technical and managerial skills is a big issue for companies trying to staff operations in often difficult locations.”

While nearly three out of four organizations (73 percent) are in the process of developing business in new and emerging markets, three countries in particular pose the greatest challenge reported by more than one-third of responding organizations — China (52 percent), India (36 percent) and Brazil (35 percent).

“Besides the common difficulties of finding skilled talent and establishing competitive salary structures for local employees, regional complexities around employment laws, local benefits and tax regulations can be particularly troublesome to overcome when operating in these countries,” said Herod.

As a result of many of these issues, more organizations are developing mobility tools facilitated by a global job-leveling framework that serves as a common platform between the home and host country locations.

“Besides helping with consistent pay practices across borders, global mobility tools like job leveling help companies manage the development and career paths of employees,” said Loree Griffith, principal in Mercer’s Rewards consulting business. “This is particularly important as companies strive to quickly establish themselves in an emerging market and maintain their competitive advantage once there.”

HR challenges with expatriates. In addition to the challenges organizations face with local nationals when doing business in emerging markets, they encounter issues with their expatriates in these markets as well.

According to Mercer’s survey, the top three challenges for expatriates in emerging markets, reported by more than one-third of participating organizations, are establishing competitive policies for attraction and retention (38 percent), attracting the right candidates (34 percent) and addressing equity issues between expatriates and local nationals (33 percent). Less common challenges are those associated with housing assistance and establishing pension or health insurance coverage.

“International assignments to developing countries can be very costly because of shortages of suitable housing for expatriates, high cost of goods and services, and often high taxes. Additionally, assignments are frequently ‘hardship’ locations,” said Herod. “As a result, companies must implement policies that will attract employees to take assignments at an affordable cost.”

HR policies. While the majority of participating organizations are satisfied with the HR policies established for their local nationals and expatriates in emerging markets, approximately two-thirds are in the process of fine-tuning their policies. Moreover, Mercer’s survey shows that more than one-third (35 percent) of organizations are still trying to put appropriate HR policies in place for local nationals and one-quarter (25 percent) are still establishing the right policies for their expatriates.

Said Mr. Herod, “Establishing HR policies in frequently fast-changing situations in emerging markets is not simple — and clearly an indication of the complexity of dealing with a variety of HR issues.”

Source: Mercer; www.mercer.com.

Leave policy. An Indiana employer lawfully terminated an employee for not following its attendance control program while his FMLA leave request was pending ruled a federal district court in Short v Hartford Bakery, Inc. Because the employer did not discriminate in terminating the employee over his absences, it did not violate the FMLA, determined the court.

When the employee began working as a floater in the employer’s production and sanitation departments, he got a copy of the employer’s attendance control program (program.) The program and the employer’s rules and regulations provided that any employee who failed to notify his supervisor of an absence or tardiness at least one hour before the start of his shift would face termination. Following a shoulder injury, the employee was scheduled to resume work but he was involved in a motorcycle accident that required hospitalization. He called his supervisor on the morning of his scheduled shift and returned to work two days later. On that day, he gave his supervisor a note from his neurosurgeon recommending that the employee not return to work for 30 days due to a brain injury. The supervisor offered FMLA paperwork, but warned the employee that he needed to continue to call in every day until his certification was approved. Despite the warning, the employee failed to report his absences on the next three days and was terminated. He eventually returned the FMLA paperwork after his discharge.

 The court found that the employer’s termination of the employee was neither discriminatory, nor retaliatory. The court noted that employees who request FMLA leave are not entitled to greater rights than employees who do not request FMLA leave and, therefore, if the employee did not comply with the program, the employer was allowed to terminate him. The employee argued that by giving his supervisor the neurosurgeon’s note stating that he could not return to work for at least a month, he complied with the “spirit” of the program. The court, however, found that the employer’s customary practice was to require employees seeking FMLA leave to comply with the program until the leave was granted. The employee knew of the policy, having availed himself of it in the past, and still failed to report his absences. Additionally, the employee failed to present evidence showing that his brain injury caused his non-compliance. Thus, while the employer’s “strict adherence to its attendance policies” was “harsh,” the court found that the employer did not violate the FMLA when it terminated the employee.

Medical certification. In Poling v Core Molding Technologies, an employee who was terminated after failing to provide a medical certification explaining why he had to be absent on a date he called off work, failed to establish his FMLA interference and retaliation claims because he failed to comply with the employer’s valid request for medical certification.

The plant maintenance employee was a union member whose employment was subject to a collective bargaining agreement that had provisions concerning unexcused absences and tardiness. Once an employee exhausted his allotted unpaid days off, further unexcused absences would result in termination. In 2008, the employee was granted intermittent FMLA leave in connection with his Reflex Sympathetic Dystrophy Syndrome (RSD). Initially, he did not take any leave because his medical appointments never interfered with his night shift hours. However, after several months he left a voice mail one afternoon stating, “Terry Poling, Night Shift, FMLA.” He did not identify the FMLA-related reason for his absence, and made the call from his vacation home, where he had traveled the day before.

An HR representative sent him a letter requesting medical certification for his absence. The letter warned that any non-FMLA absences were subject to the attendance policy. This was significant because the employee had already exhausted his available days off. After the employee failed to provide an FMLA certification by the deadline, he was terminated. After meeting with a union representative, the employer allowed the employee to return, and gave him an additional chance to provide documentation. In response, he submitted paperwork from a doctor who mentioned the RSD condition but was silent on the reason for the absence. When asked if the employee could perform the essential functions of his job, the doctor wrote “I don’t know.” When the employee failed to comply with the employer’s last chance directive to supply proper paperwork, he was terminated.

The court found that the employer complied with its FMLA requirements and that it gave the employee specific written instructions on what the certification paperwork had to contain in order to be valid, including stating why leave was required on the date the employee called off work. Based on the undisputed facts, the employee did not comply with the valid request for medical certification and the employer was entitled to treat his absence as non-FMLA leave, which carried with it the consequence of termination.