Tag: harassment

Happy Employees

Happy Employees Don’t Sue

I’ve been representing companies regarding employment law matters for almost 13 years now. Based on this experience, I want to share an observation. It’s a relatively obvious, simple, and practical one. Yet, I believe it will help many employers if they take it to heart. So, here it is: happy employees seldom make legal trouble for their employers!

There is a staggering number of laws that regulate the employment relationship and work environment. My job is to help organizations follow those laws as well as possible, but perfect compliance probably isn’t feasible. However, substantial compliance is. And that may be sufficient to stay out of trouble as long as you generally treat your employees well.

Unhappy Employees

Most companies have many happy employees. If nothing else, most of them are grateful to be working there. They are either lucky to have a job in the first place (if they have low skills or the economy is bad) or they had job options and chose your company (e.g., marketable skills, good economy). But various circumstances can sour an employee’s mood.

Of course, employers don’t have complete control over their employees’ happiness. Personal, family, and other outside influences play a role in their overall attitude, demeanor, perspective, etc. But the employees’ feelings about their job go a long way in determining how likely they are to bring a claim against the company.

Employee A

Take the case of Employee A. She is a productive office worker who has been with the company for five years. She has received regular salary bumps each year and likes her co-workers.

Employee A has two young children at home. One day she asks for the afternoon off to go to a school function. Her boss says no without any good reason. Being a good employee, she stays at work and luckily her husband can attend the school event that day. The same situation arises a few more times over the school year. Then, one day, Employee A learns from a co-worker that their company was misclassifying them as exempt, such that Employee A (among others) should have been receiving overtime (in her case since she started working there).

Employee A is a generally happy person, but hasn’t liked missing her children’s events. She is particularly frustrated that she never received an explanation for why she had to work. In her mind, the office would have been fine those few afternoons without her. We wouldn’t be shocked if Employee A now takes out that frustration on her employer by calling the Department of Labor or an attorney to complain about unpaid overtime, would we?

Employee B

Now let’s consider Employee B. He’s a part-time employee in his 60s. He just joined the company last year. He doesn’t talk much, but gets his job (data entry) done accurately.

A new, much younger, female employee asks Employee B to lunch one day. Surprised by the sudden invitation, he declines, but agrees to eat with her another day. She asks again the following week, and he confesses that he’s not sure his wife would like it if he went to lunch with her alone. The woman finds this shocking and complains to management. The next day Employee B’s boss tells him he must eat lunch with the other employee or else he could get in trouble for violating the company’s anti-harassment policy. Employee B explains that it would make him very uncomfortable, but the boss persists.

Employee B relents and goes out to a local restaurant with the younger co-worker. They eat, make small talk about their jobs, and return to work.

The next week, the young woman tells co-workers that Employee B is dull and old school. She says she tried to be nice and get to know him out of pity for “the old man,” but that he’s so miserable, she’s sorry she tried. Hearing about what she was saying, Employee B asked his boss to look into it. The boss just told him he needs to be friendlier and people won’t complain about him.

A month later, Employee B applies for a full-time opening with the company. He doesn’t get the position. His boss tells him that the (younger) person promoted was more qualified because he (unlike Employee B) had graduated college. Under these circumstances, would we expect Employee B to accept that explanation? Even if he really should have been more personable at work, the way his boss treated him probably increases the chance that he would file an age discrimination claim against the company.

Happy Employees

Now let’s change the two scenarios above to show how better managers may have handled them. Subtle shifts in approach could yield substantially different outcomes.

Employee A

Remember the mom who wanted the afternoon off to go to her children’s school? Suppose her boss had allowed her to use vacation time to take a half day the first time she asked, but noted that the company may not always be able to accommodate these requests. The boss perhaps added that more notice would be helpful in the future.

Over time, the employee makes similar requests. Sometimes she is excused from work. Other times her manager explains that it would be a hardship on the company for her to take the time off. And, ideally, the boss gives a logical reason for denying the time off on each occasion.

Now when Employee A learns that the company had made a mistake in treating her as exempt, she doesn’t rush to the Department of Labor or encourage other employees to do so. Instead, she meets with her boss to discuss the matter. She is satisfied to hear that the company will pay her for overtime worked over the past year and will raise her pay going forward so that she properly meets the exemption requirements. Yes, this still costs the company more, but it is less than what the employee might have demanded under applicable laws. Still, Employee A is happy because she has been treated humanely in the past and accepts that the company is trying to balance its needs and hers.

Employee B

Now, what should have happened when Employee B declined his younger co-worker’s lunch invitation? We’ll make some small changes in that scenario in hopes of a better outcome.

Instead of ordering Employee B to have lunch with the female co-worker, his boss could have arranged a team lunch. He could have explained to Employee B that it may be a good idea for him to interact more with co-workers and that this may be a good opportunity to “break the ice.” Employee B agrees that he’s open to being more friendly at work, but didn’t want to be taken the wrong way or to accidentally offend anyone.

The lunch goes off fine. Employee B interacts with the co-worker who originally invited him to lunch among others. Nothing inappropriate or remarkable transpired. Nonetheless, the young woman still complains about Employee B to other employees, including references about his age. When Employee B reports this to his boss, he is asked to ignore it and just try to develop better relationships with other employees for now. The boss adds that he knows she shouldn’t be saying these things, but that she is brilliant in her field and, frankly, just not that good with interpersonal relationships.

Later when Employee B does not get the promotion, the boss again explains that younger person who received the full-time position has better credentials, but that the company will be happy to consider Employee B for openings in the future. Even though Employee B’s boss probably should have taken further action regarding the co-worker’s negative comments, Employee B feels like his manager is listening to him, and they’re more or less on the same page. So he doesn’t gripe about being passed over and keeps working hard so he can pursue the next opportunity that arises.

What’s Different?

What’s fundamentally different about the happy and unhappy employees in these scenarios? The happy employees feel their managers respect them as people. They don’t always see eye-to-eye, but the employees’ feelings are at least weighed before decisions are made.

We can’t actually say which of these employees are “happy” or “unhappy” in the big picture. We’re looking at a relative feeling about their jobs. The point here is not that companies should always do what their employees want in every situation. That wouldn’t work in the long run and would end up alienating many employees (like the ones who are not comfortable asking for what they want). But companies, through management, can and should demonstrate a commitment to respect and a pursuit of fairness. Most employees–at least, good ones–perceive those qualities and thrive off of them.

Don’t Take This Too Far

When I say happy employees don’t sue, it’s not a guarantee. You can treat someone well 100 times and then cross the line once to your peril. People can more easily forgive some transgressions than others (e.g., payroll errors vs. sexual harassment). And some people are just harder to please.

But in my experience representing employers, how employees generally feel about their jobs, co-workers, managers, and the organization is usually relevant in weighing risks of grievances, administrative charges, litigation, etc. It just makes sense that treating people well is better for business overall.

Takeaways

Employment law compliance is a monumental task that grows more complex with larger workplaces. However, it doesn’t take much employment law expertise to try to do the right thing.

Employers who focus solely on the bare minimum they can get away with legally are probably more apt to make compliance mistakes. Or at least to be taken to task for those mistakes.

Conversely, employers who focus on treating employees with respect can probably get away with more technical errors or even complete misapplication (or inapplication) of the laws.

But, not surprisingly, organizations with the strongest commitment to showing respect to their employees often do the best job at legal compliance. And they usually have happy employees.

 

For more best practices and updates on labor and employment law, please subscribe to the Horton Law email newsletter.

EEOC Discrimination Charges in 2017

EEOC Discrimination Charges in 2017

On January 25, 2018, the U.S. Equal Employment Opportunity Commission released its Fiscal Year 2017 Enforcement and Litigation Data. The agency reports that it resolved 99,109 EEOC discrimination charges in the year ending September 30, 2017. The EEOC had a remaining charge workload of 61,621, the lowest year-end level in 10 years.

Among other raw statistics of note, the EEOC received over 540,000 calls and 155,000+ inquiries in its field offices.

The EEOC recovered nearly $400 million on behalf of victims of alleged discrimination.

Bases of EEOC Discrimination Charges

In FY 2017, retaliation was the most common grounds for EEOC discrimination charges. Nearly 50% of all charges included an allegation of retaliation (48.8%).

Three protected characteristics each appeared in nearly one-third of all FY 2017 EEOC discrimination charges: race (33.9%), disability (31.9%), and sex (30.4%). Age discrimination was the next most prevalent allegation, appearing in 21.8% of charges.

Five other categories protected by laws that the EEOC enforces each appeared in less than 10% of the charges:

  • National Origin – 9.8%
  • Religion – 4.1%
  • Color – 3.8%
  • Equal Pay Act – 1.2%
  • Genetic Information – 0.2%

Sexual Harassment Charges

Sexual harassment is only one subset of the 25,605 sex discrimination charges that the EEOC received in FY 2017. Most cases were claims of disparate treatment (favoring one sex over the other), such as regarding employment, promotion, or compensation.

The EEOC received 6,696 charges alleging sexual harassment. It obtained $46.3 million on behalf of sexual harassment victims.

Perhaps surprising given recent media attention, the number of charges alleging sexual harassment declined in FY 2017. They have steadily gone down over the past decade. But the Harvey Weinstein report (followed by others) did not break until the end of the last EEOC fiscal year. So, it will be interested to revisit this statistic next year.

Other Trends in EEOC Discrimination Charges

The EEOC received fewer charges in FY 2017 (84,254) than it had in any year since FY 2007 (82,792). Last year’s total was down 7.9% from FY 2016.

The number of charges alleging discrimination based on race, sex, national origin, religion, age, and genetic information all reached the lowest levels in at least 5, and in several cases 10+, years.

On the other hand, EEOC charges alleging discrimination based on color reached a 20-year high. Retaliation claims reached their highest proportion of total claims during that same period, continuing a steady upward trend. Disability claims also continued to increase as a percentage of total EEOC discrimination charges.

Geographic Origin of EEOC Cases

Employees of all states may file discrimination charges with the EEOC. In many states, employees also have the option of filing with a state agency that investigates claims under state employment discrimination laws. The varying procedures and substantive grounds for claims under respective state laws may affect the frequency of EEOC cases in a state. The EEOC’s reported statistics do not include charges filed with state or local Fair Employment Practices Agencies.

In FY 2017, 10.5% of all EEOC discrimination charges were filed in Texas. Florida had the second most charges at 8.1%. California was third with 6.4% of charges. These are the also the three most populous states (though California has by far the most residents).

Despite being the fourth largest state by population, New York only accounted for the 8th most EEOC discrimination charges (4.4%). In part, this may be because many employees pursue their claims under the New York State or New York City Human Rights Laws instead of federal law.

EEOC Litigation

Though it has litigation authority, the EEOC does not go to court over many of the charges it receives. The agency filed 184 discrimination lawsuits in FY 2017. This included 124 cases alleging discrimination against an individual, 30 cases involving multiple victims or discriminatory policies, and 30 systemic discrimination cases. The EEOC reports a “successful outcome” in 90.8% of its resolved cases. The agency ended the year with 242 active court cases.

How to Avoid or Prepare for EEOC Discrimination Charges

Employers who learn of possible discrimination, including harassment, must act promptly. This usually involves investigating the circumstances and taking remedial action where warranted.

Click here to download my free Guide to Investigating Workplace Harassment Complaints.

Employment-Discrimination-Complaints

Responding to Employment Discrimination Complaints

Many state and federal laws prohibit employment discrimination across the United States. While it is ideal to prevent discrimination before it occurs, sometimes employers do receive complaints and have to deal with them. How you handle complaints of employment discrimination can have a significant impact on your organization, for better or worse. Hopefully by reading this it will be for the better!

[Click here get my FREE step-by-step guide to Investigating Workplace Harassment Complaints!]

What Laws Prohibit Employment Discrimination?

At the federal level, some of the key employment discrimination laws are:

  • Title VII of the Civil Rights Act of 1964 (race, color, sex, national origin, religion)
  • Americans with Disabilities Act (disability, perceived disability)
  • Age Discrimination in Employment Act (age: 40+)
  • Genetic Information Nondiscrimination Act (genetic information)
  • Equal Pay Act (sex: compensation)

Across the State of New York, the New York Human Rights Law also provides protection based on the following categories:

  • Race
  • Creed
  • Color
  • National origin
  • Sexual orientation
  • Military status
  • Sex
  • Age
  • Marital status
  • Domestic violence victim status
  • Disability
  • Pregnancy-related condition
  • Predisposing genetic characteristics
  • Prior arrest or conviction record
  • Familial status

For employees in the five boroughs  of New York City, the New York City Human Rights Law also provides protection based on the following characteristics:

  • Age
  • Alienage or citizenship statue
  • Color
  • Disability
  • Gender (including sexual harassment)
  • Gender Identity
  • Marital status and partnership status
  • National origin
  • Pregnancy
  • Race
  • Religion/Creed
  • Sexual orientation

What Is Employment Discrimination?

Generally speaking, discrimination under the above laws is an adverse or negative impact that is based, at least in part, on one of the legally protected categories. Discrimination may occur with respect to hiring, firing, promotion, compensation, or other terms and conditions of employment. Discrimination also includes harassment.

Unlawful harassment consists of unwelcome conduct that becomes a condition of continued employment and is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

The employment discrimination laws also prohibit retaliation for opposing unlawful discriminatory practices.

Internal Employment Discrimination Complaints

Investigating Workplace Harassment Complaints
Click for your FREE copy of this valuable reference guide!

Sometimes employees will make employment discrimination complaints to their employers directly. They may first complain to human resources, a supervisor, or perhaps an owner of the company. These complaints should always be taken very seriously. Under the various employment discrimination laws, employers may sometimes have legal defenses based on whether they have been made aware of alleged discrimination and how they responded to the allegations. Obviously, evidence that legitimate complaints were ignored will not help the employer’s case!

A lead investigator (often a human resources professional) should then investigate the allegations in the complaint. This will usually begin with interviewing the complaining employee. If applicable, other witnesses and the alleged discriminator(s) should also be interviewed. Once the investigator has completed the investigation, he/she should prepare findings and recommend an outcome. The outcome should usually be conveyed to the complaining employee. Sometimes additional employees, such as alleged harassers and relevant supervisors will also need to be notified.

If warranted, the employer may take disciplinary action against one or more employees as a result of the allegations. In some cases, appropriate corrective action will instead involve making changes to workplace policies, procedures, etc. In other cases, the aggrieved employee may receive a job change, compensation correction, or other modification to remedy the perceived discrimination.

Employment Discrimination Complaints to Governmental Agencies

In many cases New York employees have a choice of filing employment discrimination complaints with either the New York State Division of Human Rights (State Division) or the U.S. Equal Employment Opportunity Commission (EEOC). There are also some local civil rights agencies within the state, such as the New York City Commission on Human Rights. In many cases, a complaint filed with one of these agencies will be cross-filed with another. Usually, however, one agency takes the lead in investigating a particular complaint.

Once the State Division or EEOC receives a complaint that is valid on its face, they usually send a copy of the complaint to the employer involved. Employers are first given the opportunity to submit a position statement and relevant documents in response to the allegations made in the complaint. Employers should take this step very seriously, as it sets the basis for their defense to the claims made. Most employers should involve legal counsel familiar with responding to employment discrimination claims at this stage.

The position statement will explains the employer’s side of the story. Sometimes the employee’s account is accurate, but incomplete. Other times, it is inaccurate in the first place. Either way, the reality is that the employer may know more about the circumstances than the employee does at this stage.

Once the agency receives the employer’s position statement, they typically send it to the complaining employee for review and comment. Therefore, a complete, well-written position statement can be used not only to show the government investigator that no discrimination occurred, but also to demonstrate to the employee that they weren’t wronged in the way they thought they were. This can sometimes persuade the employee to either withdraw or at least lose interest in their complaint.

After receiving the position statement and any rebuttal statement from the complainant, the agency may conduct further investigation. This can include a request for additional documents or other evidence or interviews with individuals involved. When interviewing (non-complainant) supervisory employees, the State Division and EEOC will usually permit an attorney representing the employer to be present. The investigators may seek contact information to be able to speak to non-supervisors directly, without employer representatives present.

Sometimes the agencies will hold investigatory conferences where both the employer and complainant will be present together. These may occur either by phone or in person. Typically, the investigator asks all of the questions, and the parties do not get to cross-examine each other. Nonetheless, employers should have legal representation at this stage. Attorneys can help ensure that all of the helpful information is presented, such as by subtly suggesting that the investigator may want to ask a particular question. Plus, it best that the attorney have the opportunity to observe all witnesses present for the investigative conference in case the matter proceeds to a hearing or further litigation.

Often investigators will conclude an investigatory conference by requesting additional information from either or both parties. After all information is submitted, the State Division or EEOC will make a determination as to whether to proceed with the case.

Possible Outcomes of Agency Investigations

After completing its investigation, the New York State Division of Human Rights will issue either a “Probable Cause” or “No Probable Cause” finding. If they find Probable Cause, then the case will continue to a public hearing. The hearing is similar to court trial, but is somewhat less formal and usually held in a conference room rather than a court room. A No Probable Cause finding ends the administrative case in favor of the employer; however, employees can appeal the State Division’s determination through the courts.

In most cases the EEOC will issue a Notice of Right to Sue to the employee regardless of its investigatory findings. This Notice gives the complaining party 90 days to file a lawsuit in court under the applicable federal employment discrimination statutes. The Notice of Right to Sue will further identify the basis for the dismissal, essentially again indicating whether the EEOC found any basis for the charge of discrimination. However, the EEOC’s finding does not determine the outcome of a possible court case.

If it finds a case particularly worthy of pursuing, the EEOC can file a lawsuit on its own behalf against the employer on the basis of an employee’s discrimination claim. Given limited enforcement resources, the EEOC only takes a small percentage of charges to litigation. Often these are cases affecting numerous employees or featuring especially egregious examples of discrimination.

If an employment discrimination case ends up in either an administrative public hearing or in court, then employers will particularly benefit from having had legal counsel involved throughout the process.

Don’t Forget This Part

It’s not the end of the world if your business receives an employment discrimination complaint. With the proliferation of laws protecting employees, any organization with employees can be hit with a complaint at any time. Sometimes there is just a misunderstanding that needs to be worked out. Other times, the process will take longer to resolve, but employers often prevail in these matters.

As a starting point, download my free Guide to Investigating Workplace Harassment Complaints!

And please do obtain legal advice, especially once an administrative agency like the New York State Division of Human Rights or the EEOC gets involved. Experienced employment lawyers can offer various levels of assistance with the process depending on your needs and circumstances. If you think I would be the right person to assist you, let me know.