March 2018

Why Harassment Training Hasn't Worked (and what to do about it)

While we all have read the studies that emphasize the importance of hiring diverse teams and sensitivity trainings, sexual harassment training was still often considered just another HR box to check. However, “times they are a changing” and training needs to change along with workplace culture.

According to recent research by Frank Dobbin, Professor of Sociology at Harvard, training can fail if it relies too much on legalese or paints attendees as “good or bad.” According to Dobbin, when you interview people who have gone through regular diversity training, some groups who are painted negatively will come away from training feeling like they’ve been blamed for something that isn’t their fault and they become “very defensive about being sexist and racist.” Dobbins believes that when we target training towards good versus bad, we alienate a group of employees, when the entire point of training is to bring people together in a culture of inclusion rather than exclusion.

This is exactly why training should focus more on bystander intervention – the kind of training focused on empowering employees to stop bad behavior when they witness it. According to Dobbins, employees report leaving these kinds of trainings with a sense of positivity, with thoughts on change and “breaking the cycle.”

We all have (or should have) the same goal – to eliminate harassment and discrimination and to create an environment where all feel welcome. How you achieve that goal is a bit up for debate, and what works for one company may not work for all companies. However, we know that culture changes and open-door policies do help. So, let’s use 2018 as the year to get started on new policies and training.

RLG Takeaway
Training should really focus on the positive – what people can do to prevent harassment, as opposed to the old way of training which was teaching people what “not to do.” Civility and communication training can fill that gap. Also, dust off and revisit your harassment policy.

How Interactive is the Interactive Process?

The Americans with Disabilities Act (ADA) and its amendments require that employers (with more than 15 employees) provide a reasonable accommodation to a qualified employee with a “disability.” Disability means (broadly interpreted, of course) a condition that substantially limits one or more major life activities and includes an employee who has a record of a disability. The ADA only protects employees who are “qualified,” i.e., possessing the skill, experience, and education to do the job and able to perform the essential functions of a position with or without any reasonable accommodation.

A reasonable accommodation is a change in the way duties are performed to help the employee perform his or her job duties or enjoy the benefits and privileges of employment. If the employee requests a reasonable accommodation, the employer must provide it unless doing so would cause “undue hardship” – which is defined as significant difficulty or expense for the employer given its size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost, but in truth, most accommodations are relatively inexpensive, so this is usually not an option an employer will use.

Critical to compliance with the ADA is: (1) training managers and supervisors; and (2) understanding and using the “interactive process.” As we all know, the interactive process consists of steps the employer must walk through in order to accommodate a qualified individual with a disability.

I want to emphasize one main point: The “interactive process” is an ongoing duty. It is a continuous conversation, through phone calls, letters and in-person meetings, if possible. Employers often get stuck here thinking one letter or discussion is enough; it’s not. There really must be a process by which the employer walks through to show that they have has this type of continuou conversation with the employee. This includes a variety of letters with questions that should be asked of the employee and looked at internally.

Another place employers get stuck (cue a visit from the EEOC) is maintaining inflexible policies that might restrict medical leave in violation of the ADA and/or the Family Medical Leave Act (FMLA). There is no one size fits all, and employers should examine these policies in their handbooks and internal practices to ensure flexibility in this process.

If an employee requests multiple reasonable accommodations, (s)he is entitled only to those accommodations that are necessitated by a disability and that will provide an equal employment opportunity. In other words, the whole point of a reasonable accommodation is that the accommodation will help the employee come back to work. If the accommodation is not going to help return the employee, then it is not likely a reasonable accommodation.

RLG Takeaway

Determine whether an employee requires an accommodation. Talk with the employee about this, i.e., engage in an “interactive discussion.” Determine what your employee needs and what you, as the employer, can provide without undue hardship to your business.
Once you’ve had this sit-down with your employee and the employee agrees that (s)he would benefit from certain reasonable accommodations, consider whether you need to request information regarding functional limitations caused by the disability from the employee’s medical provider. The idea here is to understand the employee’s difficulties, how accommodations could alleviate an employee’s limitations, and which accommodations may be appropriate.
Document any interactions with the employee and remember that the ADA duty to engage in an interactive process is ongoing.
Check your handbook policies for inflexibility. The last place you want to get stuck is with something that you have in writing and distributed to all employees, even if you are not actually implementing the inflexible policy.

The NLRB Strikes Again (And Again)

Last week the NLRB, at the prodding of Inspector General David Berry, vacated its ruling in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) that had overturned the Obama-era “indirect control” joint-employer standard. The board’s 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015) rewrote 30 years of labor law by holding contractors responsible for their subcontractors’ employees if they exercised indirect control over their employment conditions.

Under Browning-Ferris, any business that utilizes a sub-contractor or temp agency could be deemed a joint employer. Corporations could be on the hook for the employees of their franchisees. One goal was to make it easier for unions to organize workers in fragmented workplaces with multiple subcontractors. Unions could also bring deep-pocketed corporations to the bargaining table.

In December the new Trump board majority with its Hy-Brand decision reversed Browning-Ferris and reinstated the prior “direct control” standard. But after unions and Democratic Senators balked, Mr. Berry launched an investigation into whether board member Mr. Bill Emanuel had violated conflict-of-interest rules by participating in the case.

A White House executive order requires executive-agency appointees to recuse themselves from a “particular matter involving specific parties” that are “directly or substantially” related to a former employer or client. Mr. Emmanuel’s former law firm represented a litigant in the Browning-Ferris case. As a result, the NLRB found there was a conflict of interest with the vote by Mr. Emanuel and vacated its own recent ruling.

Without a permanent legislative fix, the Obama-era Browning-Ferris joint employer standard is once again the rule of law and employers should act accordingly.

RLG Takeaway
Companies should review any contractual agreements they have in the area of joint employer relationships (such as temporary agency agreements). Without resolution in this area, the Browning-Ferris joint employer standard is still a concern for companies around the country. Stay tuned for more action in this area!

The Use of Biometric Technology: Just When You Think a New Process Will Help... It Becomes a Liability

It’s the new hot thing: biometric authentication technology. Fingerprint and facial recognition have become so commonplace that we don’t even think twice about it. Thus, why not use it for tracking employees to avoid the inefficiencies and potential fraud in using manual time cards?

While a great idea, there is a downside – a spike in lawsuits. More than 50 companies are now defending class-action lawsuits under the Illinois Biometric Information Privacy Act (BIPA), which provides rules for the disclosure, retention and protection of biometric data, and permits any person aggrieved by a violation to recover $1,000 for each negligent violation and $5,000 for each intentional violation.

Biometric data generally consists of an individual’s physical characteristics and the associated technology used to compile this data. Biometric data can include fingerprints, DNA, voiceprints or facial recognition technology. This means of tracking individuals has its benefits in terms of employee time management (e.g., in lieu of a traditional punch cards), to provide access to a secure facility, or for other authentication purposes. But it also has its pitfalls.

Several states have proposed or enacted legislation protecting individuals’ privacy rights in the collection of their biometric data. Illinois led the pack by enacting BIPA in 2008. BIPA creates a private right of action for individuals which can result in substantial exposure to an employer, including liquidated damages, attorneys’ fees, costs, and/or injunctive relief. Since enactment of BIPA, similar legislation has been either enacted or proposed in other states including Texas, Alaska, Connecticut, Montana, New Hampshire, and Washington. Because the misuse of biometrics can be damaging to an individual – the legal issues become less about the use of the data as opposed to collection, retention and protection of the data.

RLG Takeaway
While this area is developing, employers who want to use biometrics should work with counsel on the following:

Drafting a written policy regarding collection and use of biometric data, including the company’s process for safeguarding the information, and destruction of data, consistent with state law. Employers should consider including a discrimination disclaimer in their policy and the policy presentation should be made an onboarding and training requirement.
Obtaining express written consent and a release from each employee before collecting or using their biometric data.
Implementing a data breach response protocol that includes biometric data and provides notice to employees that a protocol exists.

The Second Circuit Upholds Protection Against Sexual Orientation Discrimination

On February 26, 2018, a split U.S. Court of Appeals for the Second Circuit broke with precedent in Zarda v. Altitude Express, Inc., finding sexual orientation is covered under federal workplace discrimination protections. The case, argued before a rare en banc hearing last September, saw the federal government split over the question of whether Title VII of the Civil Rights Act of 1964 covered sexual orientation. The decision creates another avenue to bring the issue back to the U.S. Supreme Court, which declined to hear a similar case last year.

The plurality decision in Zarda relied on three main arguments – which are espoused by the EEOC:

Firing a woman who is attracted to women but not firing a man who is attracted to women is on its face discrimination based on sex, because “but for” the employee’s sex, the employer would not have terminated the employee;
Firing an employee because of the employee’s sexual orientation is unlawful associational discrimination—discrimination based on who the employee associates with or has a relationship with—just as firing an employee for being in an interracial relationship is unlawful associational discrimination; and
Firing an employee based on the employee’s sexual orientation is unlawful sexual stereotyping because it is discrimination based on stereotypical notions that men should be attracted to women and women should be attracted to men.

This case received some attention last summer when the U.S. Department of Justice (DOJ) filed an amicus brief urging the Second Circuit to hold that sexual orientation is not protected under Title VII. One of the DOJ’s principal arguments was that since “sexual orientation” was not explicitly written into Title VII when it was passed or when it was amended in 1991, the court should not interpret it to include sexual orientation. The Second Circuit in Zarda noted that Title VII’s prohibitions “often go beyond the principal evil to cover reasonably comparable evils.”

RLG Takeaway
We will continue to see an upswing in sexual orientation claims brought under Title VII throughout the country but certainly now in the Second Circuit (Connecticut, New York and Vermont). Employers outside of these states should remember that the EEOC continues to take the view that Title VII prohibits discrimination based on sexual orientation and should anticipate that the EEOC and/or private litigants are likely to continue pursuing these claims even in jurisdictions where the courts have rejected them.

This newsletter is provided for informational purposes only, not as legal advice. The reader of these materials should seek legal advice before using this or any other materials from this author.