CURRENT Business First Articles

Religion and the Workplace:  Walking on Eggshells

Published:  December 2008 – Business First, Louisville, Kentucky

By Carol Dawson

Oh large green tree, Oh large green tree, Thou tree most fair and lovely!  Oh large green tree…Oh large green tree…

Let’s get back to reality…that beautifully decorated large green tree is a Christmas tree.  This is the time of year when employers get jumpy regarding religion in the workplace. 

Many employees get jumpy also.  They may argue that they should be able to say “Merry Christmas” as part of their telephone greeting while others request a day other than the traditional Christmas day break to observe their personal holy day.  What is an employer to do? 

As in most solutions relating to Equal Employment Opportunity (EEO) concerns, the answer rests on the many factors that relate to each individual case.  There is no one-size-fits-all answer.

After the September 11, 2001 attacks, the EEO community geared up for an increase in religious and national origin discrimination and harassment.  Expectations were on the mark, as complaints have risen steadily since that date, with over 15,000 complaints filed with the EEOC from January 2002 – December 2007 and settlements totaling $35.1 Million. 

It is extremely doubtful many employers are open to payouts of thousands of dollars to defend EEO claims of harassment/discrimination.

A few pointers follow (exceptions are religious organizations, i.e., churches, religious education institutions, etc.): 

• Understand that religion in the workplace is a business issue – especially today.  Dealing with religion within the workplace is no longer an option. 
• Do not treat employees or applicants more or less favorably because of their religious beliefs or practices – except to the extent a religious accommodation is warranted. 
• Do not force employees to participate or not participate in a religious activity as a condition of employment.
• Excuse an employee from compulsory training that conflicts with the employee’s sincerely held religious beliefs, unless doing so would pose an undue hardship.  An undue hardship can include training that provides information on how to perform a job, how to comply with EEO obligations, or other workplace policies or procedures. 
• Provide reasonable accommodation for employees’ sincerely held religious practices unless doing so would impose an undue hardship on legitimate business interests. 
• When asserting “undue hardship,” include proof that the accommodation requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation. 
• Religious accommodations must be requested by the employee.  Employers are not required to presume a need.  Once alerted, discuss the request with the employee to determine the most effective accommodation.
• Religious accommodations are not required if they violate a seniority system or collective bargaining agreement.
• Permit employees to engage in religious expression, unless the religious expression would impose an undue hardship.  Do not place more restrictions on religious expression than on other forms of expression that have a comparable effect on the workplace efficiency.
• Review dress code policies to ensure they are appropriate and necessary for the successful performance of the job.  Be cautious not to prohibit reasonable freedom of religious expression.
• “Customer preference” does not rule, since those customers may have religious biases. 
• Seriously consider any request to use the workplace for religious purposes, i.e., needing a quiet area for prayer during break times.  If an employer allows any non-work related activities to be held at their facility, religious practices should also be given consideration.
• Take proactive steps to prevent religious harassment of employees.  Create an anti-harassment policy that includes religion and disseminate to all employees.  
• Regarding employer holiday displays:  The message from the courts (and our Constitution) is not one of endorsement for a particular religious viewpoint.  Instead, a more diverse and inclusive display is encouraged.

Employees may attempt to connect with their religion during the work day in many ways and the EEOC clearly states, “Employers should not try to suppress all religious expression...”  However, when considering if an employee’s request creates an undue hardship, EEOC adds, “…relevant considerations may include the effect such expression has on co-workers, customer, or business operations.” 

Many seem to think mainstream religion is not covered under the law.  Christianity has the same rights as all other religions.  Therefore, singing “Oh Christmas tree, Oh Christmas tree,” as you walk down the hall would not be illegal…unless you have a dreadfully off-key voice. 

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EMPLOYERS CANNOT HIDE FROM UNCLE SAM FOREVER

Published:  October 2008 – Business First, Louisville, Kentucky

By Carol Dawson

Are you a Federal contractor or subcontractor?  This question continues to haunt many employers throughout the U.S. and since it will soon be Halloween, the timing seems appropriate to convey this information many consider too frightening to discuss. 

A "Federal contract" is an agreement between the Federal Government and any person for the purchase, sale, or use of goods or services.  With this title, come a multitude of obligations, including Affirmative Action (AA) in employment, required by Executive Order 11246.  Specific requirements vary depending upon the dollar amount of the contract and the contractor’s number of employees. 

Prime Federal contractors are typically aware of their obligations; however, jurisdiction is a bit more convoluted when it comes to subcontractor status. 

A "Federal subcontract" is an agreement or arrangement with a Federal prime contractor for the furnishing of supplies or services or for the use of real or personal property.

If either the prime or sub-contract equals $50K or more and the business has over 50 employees (50/50), there are more in-depth obligations such as preparing an Affirmative Action Plan (AAP).

Many Federal contractors and subcontractors are playing the ostrich game of burying their heads in the sand.  If they do not acknowledge their contractor status, they feel invisible to the government, or more specifically, the Office of Federal Contract Compliance Programs (OFCCP), the enforcement agency for Executive Order 11246.  Until now, this has been somewhat of an accurate thought process.

All employers with 100 or more employees, along with Federal contractors who meet the 50/50 threshold must file an EEO-1 Report form annually.  The EEO-1 is an employer-compiled report that provides the Federal government with workforce profiles by gender and defined race/ethnicity groupings in defined job categories.

In the past, if an employer missed checking the box on the EEO-1 form (Section C/Question 3), indicating receipt of Federal contracts or sub-contracts, they were often invisible to Uncle Sam. 

The OFCCP is currently utilizing alternative methods to identify those contractors who do not acknowledge they are players in the Federal system.  

President Bush signed “The Federal Funding Accountability and Transparency Act of 2006,” which created a searchable database enabling the public to access information on Federal spending.  OFCCP’s Director, Charles James has indicated this system will significantly improve OFCCP’s ability to determine who is doing business with the Federal government…for compliance audits.  Does this send shivers through your personnel database? 

For those employers who may still be hiding, some examples are provided (subcontracts can be several layers deep): 

If an employer manufactures the bags that are used to hold pet food that are sold to large pet food manufacturing companies and those bags of pet food are sold to the Army and Air Force Exchange Service (AAFES) Commissary, the bag company is likely a Federal subcontractor. 

If your employer is a large manufacturing or construction company; they very well may be a subcontractor because of supplies or services sold to other Federal prime contractors. 

Banks are typically considered Federal contractors, if they serve as a depository of Federal funds, or are an issuing and paying agent for U.S. savings bonds and notes in any amount.

The OFCCP has an interactive link on their web site which assists employers in their quest to determine status with the government and subsequent EEO/AA requirements (it has also worked well for scaring away hiccups): http://www.dol.gov/elaws/

If the Human Resources Director of your company has not met the Contracting Director, encourage them to schedule a long lunch.  Federal contractors are required to include EEO/AA language in all applicable contracts. 

During a keynote address, OFCCP Director James indicated that the single largest violation OFCCP uncovers during compliance reviews is contractors’ failure to comply with Federal recordkeeping regulations.

In FY 2007, OFCCP enforcement efforts resulted in a record $51,680M in back pay and annualized salary and benefits for a record 22,251 American workers who had been subjected to unlawful employment discrimination.  Of that record enforcement result, 98% was collected in cases of systemic discrimination (large statistical cases).  Remember the term “systemic discrimination” because it is hot-hot-hot with both OFCCP and the EEOC (and costly for the contractor). 

Employers should know their EEO and AA obligations before they hear the OFCCP’s trick or treat knock at the door.  If you wait until the audit notice arrives, you may wake up to find your front lawn has been papered with court documents. 

Even employers who do not have Federal contracts can benefit from knowing how to analyze personnel activity statistics.  A few years ago, the EEOC looked around and saw that the OFCCP was acquiring serious financial settlements from systemic discrimination cases and when possible, they now expand their complaints into systemic cases.  Find out if your statistics reveal discrimination, before being required to spill your guts to the feds.

BUSINESS OPPORTUNITY TO SUPPORT OUR TROOPS

By Carol A. Dawson

The military often uses the term, “tour” to reference overseas travel to war zones.  Even as a twelve year old, I was keenly aware that my father was not packing his bags for a “tour” of Viet Nam.  After his deployment, my mother, two brothers and I never missed Walter Cronkite’s Nightly News, in hopes of hearing that the war was over and our father, would be coming home.  

There is a fear and anxiety that dependent children feel when their parent(s) are stationed in war zones such as Iraq and Afghanistan.  Positive distractions and being around others who are facing the same challenges would be most helpful in easing the loneliness and fear of the children who wait, hope, and pray.

There are many organizations assisting the military and their families deal with the difficulties associated with war and I would like to point out a couple of unique groups who are appealing to the Kentucky and Southern Indiana business community.   

The Cedar Ridge Camp (CRC) and Retreat Center is a nonprofit organization, offering a week long summer camp for military dependent children.  They are an accredited camp (started in 1957) and are looking for business sponsors for the children to attend a new camp, designed to ease the stress of military dependent children. 

“Camp Hope” will be offered at no cost to the military family.  The cost to sponsor a child is $350 and for each child sponsored, the business (or individual) will receive a personal thank you letter from a child attending Camp Hope. 

Adam Moneypenny, Operations Director of CRC, states, “Camp Hope is a really good idea…especially now.  There are many people and businesses who want to ease some of the problems caused by this war.”  Moneypenny added, “This is something people can wrap their arms around and support.”  

The Blue Star Mothers of America, Inc. (Blue Star Mothers) is another nonprofit worthy organization.  The Blue Star Mothers are mothers who now have, or have had, children honorably serving in the military.  They are a non-partisan, non-political organization.

The Blue Star Mothers will be on hand during Camp Hope to assist the children in making care packages for their parent(s) abroad.  They will also make a yellow ribbon fence and write notes on yellow ribbons to hang on the fence.

Vanessa Coulter, the Southern Indiana Blue Star Mothers #2  Chapter President, explained, “Blue Star Mothers work diligently to honor and serve those heroes who have chosen to protect our country.   One of the main ways we provide support is by supporting and protecting the families they leave behind.” 

Coulter adds, “We fully support and encourage businesses and individuals to sponsor military dependent children to attend Camp Hope, starting June 22.”  The Blue Star Mothers are also looking to local businesses for assistance with their “Care Packages,” which are sent to deployed troops. 

Businesses interested in sponsoring a child to attend Camp Hope should contact Andrew Hartmans, Executive Director, at (502) 267-5848 or email:  infocedarridgecamp@gmail.com. 

If you wish to make a donation to Blue Star Mothers, contact Vanessa Coulter at (502) 572-5914 or e-mail: inbluestarmom@insightbb.com.  Contributions for both organizations are tax deductible. 

Herbert Hoover (our 31st US President) once said, “Children are our most valuable natural resource.”  Southern Indiana and Kentucky, your part in the cultivation can start today. 

Serious Warning:  Do Not Ask A Women If She Is Pregnant!

Article #6

Submitted April 2008

By Carol A. Dawson

After passing out scenarios, I eavesdrop as individuals in a training class act out their assigned roles.  Two individuals in each group have scripts and the others are taking notes.  One person is assigned the part of a job applicant who is 8 months pregnant.  Another person is a hiring manager, interviewing applicants for a management position.   

As the female applicant walks in for the interview, the manager is aware that she is the best qualified.  The manager also knows the job requires the applicant selected to immediately go into a 3-month training program out of state. 

The “applicant” knows she is highly qualified in her field; however, she has been turned down for numerous jobs since becoming pregnant.   Her husband believes she will not get a job while pregnant and has encouraged her to stop applying until after the birth.  She may file an EEO complaint if she doesn’t get this job. 

As I walk around the room listening to the interviews, there are many disturbing comments being made by the participants who were assigned to be the hiring managers.  In several groups, the hiring managers begin their interviews with a direct question such as, “So, I see you are pregnant…congratulations, when is your baby due?”  I also hear, “Do you know if it is a boy or girl,” and even, “Wow, what are you, eight, nine months along?”  Both males and females are making these potentially perilous comments.  Only two hiring managers conduct their interviews without generating the discussion of pregnancy.  One hires the woman and the other does not.  Both are correct. 

Let’s break it down:  Each hiring manager had the liberty to be creative in their interview.  The hiring manager who rejected the applicant began the interview by describing the job and detailing the three-months of training required out of state.  In this manager’s version of the interview, the training was only available annually and the job required the education be completed prior to performing the job. 

The applicant then indicated she was pregnant and would not be able to leave the state until several weeks after her baby was born.  The manager completed the interview and advised that the company did not expect openings in the near further; however, they would be pleased to consider her again when job openings occur.  A+    

The only manager who hired the female applicant, created a different job situation.  This manager also did not mention the pregnancy, but instead talked about the qualification requirements of the job.  The manager then discussed the mandatory out-of-state training program and timeframes. 

The applicant advised she was pregnant and couldn’t leave the area for at least four months.  The hiring manager then indicated the training program was offered every quarter and the company would be able to get her started on other duties until her delivery.  She could be sent her to training after she returned from maternity leave.  A+ 

All other hiring managers in the class asked the applicant up front about her pregnancy and once confirmed, advised she could not be hired because of the training requirement.  Some asked her to apply again after the baby was born and she was ready to return fully to the workforce. 

An employer cannot refuse to hire a woman because of pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers. This is the law.  It is not so black and white to say that every hiring manager who asked about the pregnancy during the interview (and didn’t hire the applicant) discriminated.  There are many details and facts that could change the outcome, as evidenced in the two outcomes mentioned earlier where one hiring manager hired the applicant and one did not. 

Pregnancy Discrimination complaints with the Equal Employment Opportunity Commission (EEOC) rose significantly from 2006 to 2007 (from 4,901 to 5,907 - up approx. 13%).  This is by far the largest increase in ten years.  Monetary benefits tripled, totaling $30M.  When contemplating these numbers, keep in mind that for every person who actually files a complaint, there are most certainly thousands who believe they have been discriminated against and do not file.  The EEOC’s call center statistics revealed they received over 20,000 pregnancy bias inquiries in 2007.  Many women believe filing an EEO complaint can quickly turn a glass ceiling into a titanium fortress. 

The Pregnancy Discrimination Act is an amendment (October 1978), to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

BOTTOM LINE:  If you are a selecting official, be sure to keep the conversation and questions focused on the position, the duties of the position, and requirements of the job.  Don’t presume a woman is pregnant just because she carries weight in her belly – some of us are still trying to work off our baby-weight gain, even 22 years after the birth.  So knock it off. 

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COURT DECISIONS FURTHER DEFINE EEO LAW - Article #5

PAYROLL DISCRIMINATION – WHAT YOU DON’T KNOW CAN COST YOU!

By:  Carol A. Dawson

Submitted July 10, 2007

I have been increasingly concerned about Supreme Court decisions in the past few years; however, a May 29 decision, (Ledbetter v. Goodyear Tire and Rubber Company) should alarm anyone who believes in equal pay for equal work.   The decision added insult to injury to an already victimized employee.  In a narrow 5/4 decision, the Court ruled that employees who suffer pay discrimination can not file a suit after the 180 day timeframe set for filing an EEO complaint with the EEOC, even if the discrimination is on-going. 

Victimized employees typically don’t discover a pay inequity until well beyond the 180 day period after the discriminatory pay is established. The Ledbetter decision, if left unchecked by Congress, will set our quest for equitable pay practices back decades.   

Lilly Ledbetter, a female manager at a Goodyear plant, filed a charge with the Equal Employment Opportunity Commission (EEOC) asserting a Title VII claim of sex discrimination. Ledbetter filed after receiving an anonymous letter informing her she had been paid considerably less than her male counterparts for several years.

Ledbetter was 60 years old and close to retirement when she learned of the illegal pay practices.  She had presumed through the years that she was being paid equal to the men for the work they were performing.   She discovered her pay had been consistently lower then her male co-workers, including recent male hires with far less on the job experience.   Ledbetter filed her complaint with the EEOC within 180 days from the time she was made aware of the pay disparity, which began “years” earlier.

The Supreme Court’s interpretation in the Ledbetter case is disturbing on many levels; primarily, there is the presumption that employees somehow have insights into how their pay has been established and have a vehicle to determine if there is inequity.  While many private sector employers have “open” pay structures, this generally provides only broad salary ranges or bands for various jobs, and certainly does not provide a mechanism to identify discriminatory pay practices.  Consequently, an employee is unable to file a complaint of discrimination if he or she has no clue it has occurred until much later, in many cases, years later.  Sadly, during this time the employee can suffer severe financial consequences. 

Most who file EEO complaints do so after evidence shows possible discrimination; however, this decision may encourage employees not to wait. 

In this case, the Justices were asked to decide whether the 180-day filing period for a pay claim can be extended as a result of some of the factors outlined earlier in this article. There was a firm line of disagreement with the final decision.  Justices Ginsburg, Breyes, Stevens, and Souter argued in vain to allow flexibility in the 180 day timeframe.

Speaking for the minority, Justice Ginsburg stated, “The majority’s decision is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.”  She added, “In our view, this court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.” 

After much debate, the Court majority agreed with Goodyear, holding that an employee must specify a discrete unlawful practice within the required 180-day time period, i.e., if the aggrieved employee cannot specify a distinct discriminatory action within the 180-day filing period, the complaint is time-barred, even though the discrimination continues. 

Justice Ginsburg called upon Congress to create legislation to counter the Supreme Court’s decision and several members of Congress have taken up her call to action.  Several members of Congress introduced legislation addressing the Supreme Court's decision.  The U.S. House Education and Labor Committee approved a bill titled the Lilly Ledbetter Fair Pay Act (HR 2831).  The bill would change the current statute of limitations on pay discrimination claims filed under Title VII, the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act, and the Americans with Disabilities Act (ADA).  If this legislation is passed, a discriminatory-pay action would occur each time a discriminatory paycheck is issued.

The gender gap for pay continues to be a seemingly uncontrollable issue for women in the workplace and the Ledbetter decision perpetuates this practice.   Most employees who suffer pay discrimination are not aware the disparity exists until an extended period has expired.  This decision adds another deterrent for filing legitimate claims; while many individuals are already fearful of retaliation when raising the issue internally or talking with government.   

After many years enforcing EEO laws with large and small employers in a variety of industries, I am convinced that most want to pay employees in the proper manner.  All employers should be cognizant of their continued obligations to ensure all employees are being paid according to non-discriminatory factors such as knowledge, skill, ability, effort, and responsibility level. 

Prudent employers are encouraged to regularly analyze pay practices and make appropriate adjustments if signs of discriminatory practices are found.  Don’t wait until you are squinting under the bright lights of the federal investigators.

Business First Article #1

EEOC TALES OF TOP MISTAKES MADE BY EMPLOYERS

Have You Felt the Power of Uncle Sam’s Equal Employment Opportunity Commission (EEOC)?

By Carol A. Dawson, EEO GUIDANCE, Inc.

When the White House decorators shifted from Razorback Chic to Texas Traditional, did you think the EEOC wouldn’t have the necessary striking power to enforce equality laws? By this term, the answer should be obvious. Lost class action discrimination cases and large dollar settlements have been plentiful. EEOC Chair Cari Dominguez, attempting to create less stress during an EEOC complaint investigation, decided to provide employers with their top ten typical mistakes when dealing with EEOC. After polling legal staff, just nine “judgment lapses” were found. Think of these recommendations as nine nifty ways to minimize conflict with EEOC. Come…as we explore this EEO ZONE.

1. Employer underestimates EEOC. Chair Dominguez indicates that many employers and their legal representatives underestimate the professionalism and ability of EEOC staff. Although no federal agency can rightfully make the comprehensive statement that all employees are knowledgeable and professional, it must be understood that the EEOC does have “the power.” Do not misjudge the knowledge, ability, and motivation of their investigators and legal staff. Be prepared – don’t scrimp on proper record maintenance – from shift assignments to terminations, then stay out of EEOC’s line of vision by playing fair and having a respectful work environment.

2. Employer doesn’t communicate. Chair Dominguez said many employers and their legal staff fail to stay in touch with the EEOC during investigations. Maybe this is a case of “what goes around, comes around,” since this is an area for improvement also for the EEOC. Notwithstanding that fact, employers should place investigations as top priority when EEOC comes knocking. Once the complaint has been made, the employer has the burden to show actions were nondiscriminatory.

3. Employer is dismissive. Possibly these are the same employers who believe the White House will not provide adequate budget for the EEOC to escort the bad guys to court. No doubt litigation by EEOC is not the norm. Most cases end with either a dismissal or notice of rights; however, do not disregard the number of cases that have made it to and through the litigation process (do I hear consumers chanting, “guilty until proven innocent”). Class action cases are the quickest way to make it to court and if you make it there, be prepared for a grueling fight. The EEOC is generally a hard-working and effective rival for any employer when they believe discrimination exists.

4. Employer retaliates. If an employee files a charge, testifies against an employer, etc., or if an employee opposes discriminatory activity, the employer cannot retaliate. An act of vengeance should be an antique thought; however, it is not. Retaliation charges make up approx. 28% of all of EEOC’s charges. Revenge can be a strong motivator…don’t let it motivate you in court. Even if the original charge is unfounded, the employer could still be found guilty of retaliation discrimination.

5. Employers don’t mediate. As a Lead Mediator, I can tell you this dispute resolution process, if appropriately administered, can be very effective. Passing up mediation, when offered, can suggest that you have no intention of resolution…or to even listen to the employee(s).

6. Employers wait. Chair Dominguez references delay tactics some employers use in an attempt to weaken the EEOC. If this is your tactic, now hear this: If found guilty, the liability, e.g., back pay, continues to accrue until the case is closed. It is hard to imagine that this is one of the top nine judgment lapses, since it appears most employers want the case completed and closed as quickly as possible. Get the lead out and respond timely.

7. Employers act inappropriately. Do you have an effective EEO Policy? Do you have a procedure to process EEO complaints of discrimination? Do your managers and employees know and understand their legal obligations under the EEO laws? Do you act quickly and appropriately when allegations of discrimination are made? If an employer can answer yes to these questions (without crossing fingers), it very well may be that there is no liability assessed. If you are guilty, correct it sooner than later.

8. Employers prevaricate. I want to believe that employers who act illegally through cover up, destruction of evidence, or threatening witnesses are few and far between; however, my Pollyanna side may be showing. As a federal EEO Compliance Officer, I have witnessed this behavior. Trust me when I say that things will only get worse if you are not open and honest with the feds.

9. Employers don't calibrate. This is the EEOC’s top complaint. Many employers are not proactive with EEO laws, waiting until the risk becomes the problem. If you are a medium to large employer (over 50), it would behoove you have an EEO plan of action. This should be include (but not be limited to) an understanding of the recruitment area minority and female employee representations, the impact personnel actions may have against minorities or women, and the recommendations found in #7. The Civil Rights laws have been on the books for over 40 years – there is no excuse for ignorance.

A final note: A concern for the employer should be the neutrality of the investigation. Plain and not so simple – most federal agencies have to show numbers and dollars to justify their existence. If settlements aren’t collected, how can Congress justify a budget? I refer to this as quiet quotas. There is motivation to find violations…so don’t give the reason to look. Respecting the EEOC’s abilities, knowing your legal requirements, and treating all employees equally will go far in keeping you away from the dark side of the EEO Zone.

Carol Dawson is the President of EEO GUIDANCE, Inc., a national consulting and training company based in Jeffersonville, Indiana and former Louisville Area Director of the Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor. She can be reached via e-mail at Cdawson@eeoguidance.com or website: www.eeoguidance.com.

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Note:  The below article was picked up and published as the lead story in the Pros Communications Entrepreneurial Magazine (dated November 2005)

Business First Article #2

Can Somebody Please Stop that Pesky Pecking Noise?!

By Carol A. Dawson, EEO GUIDANCE, Inc.

A cartoon shows a mother leaning close to her distraught young daughter. She is advising, “Honey, listen to me, there is no such thing as a glass ceiling for women in the workforce. That is simply a myth.” In the next frame the little girl seems consoled; however, as the mother straightens up she bonks her head on the proverbial piece of clear resistance.

There can be no doubt that women have progressed considerably during the past several years and breakthroughs are being made every day as we work to shave away the glass ceiling until it is nothing more than a few shards of glass at the feet of the Fortune 500. This said, I have some information which may be shocking for many who believe there is no glass ceiling. Recently, my web developer, Toni Steinhauer, was searching for keywords to enhance my website and stumbled across a startling discovery. Toni tracked keywords within the field of equality that pull in the most internet inquiries. Words and phrases are assigned scores according to frequency of use, with 100 being a good score. Toni found several high scoring words/phrases, i.e., “diversity issues,” scored 432 and “affirmative action” hit 264, but one phrase and score took my breath away. “Glass ceiling discrimination women,” scored 6889. Toni advised, “I was so astounded with this information that I double checked.” Toni may have uncovered a huge sinister secret among women who have bumped their heads.

Complaints filed with the Equal Employment Opportunity Commission (EEOC) for gender/sex discrimination have slightly decreased in the past year. In 2004, mostly women filed 24,249 complaints of gender/sex discrimination, with $100.8 million in non-litigation monetary settlements (up slightly). There may be conflict between the number of complaints being filed and the number of people who have questions about glass ceiling discrimination against women. Are women gently pecking on the glass ceiling and retreating in silence when there is no response?

Depending on where you turn for information, opinions vary on the apposite progress of women in management within a multitude of industries. In 2004, EEOC published study results, “Glass Ceilings: The Status of Women as Officials and Managers in the Private Sector,” citing that women have seen a seven percent increase in official and manager positions over a 12-year period. This forward movement may not be commensurate to the availability of highly qualified women. The report also lists industries promoting women quickly into management positions and those lagging behind.

Government studies cannot truly expose the thickness of our management glass ceiling without knowing availability. Women interested in moving up need to start pounding the seemingly impermeable barrier and follow up when ignored. After years of enforcing EEO laws and investigating discrimination, I discovered that most qualified and upwardly mobile women believe they will eventually break through the glass ceiling if they hang on long enough, perform consistently at the top, and remain supportive of their employer. To some, being supportive may mean quietly getting passed over for a position in which they are the best qualified.

The individuals scanning the internet for “glass ceiling discrimination women” guidance are not filing huge class action complaints or even large numbers of disparate treatment complaints. However, the numbers are simply too high to be passed off as term paper research or curiosity. Most women today understand gender discrimination and EEO reprisal is illegal. Still, many women who may be overlooked for top management also know it could be career suicide to pick up the phone and call the feds. Some employers will put a screeching halt to the forward movement of a person who tattles.

It should be noted that slow progression of women into upper management isn’t without some level of rationalization. More women than men are stepping out of the career track to care for their families, many have less seniority/experience than male counterparts and some tend to put family needs and flexibility ahead of their career.

If your company or agency would like to know more about how to increase women in top level positions, there are numerous support sites on the internet, such as Catalyst, a research and advisory organization for upwardly mobile women. They provide tips on how to build an inclusive environment within your organization (ironically, most of the recommendations also work to promote minorities). Studies show that having women on top management teams is good business.

Although there are many outstanding employers who fairly promote all employees, we have far to go before I drop the glass ceiling phrase from my website’s keyword listing and businesses employ their X chromosome employees equally to top level positions.

Carol Dawson is the President of EEO GUIDANCE, Inc., a national EEO consulting and training company based in Jeffersonville, Indiana. She is the former Louisville Area Director of the Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, and can be reached via e-mail at Cdawson@eeoguidance.com or website: www.eeoguidance.com.

Business First - Article #3

December 2005

WHAT SHOULD MANAGERS “REASONABLY KNOW” WHEN IT COMES TO SEXUAL HARASSMENT?

With the slamming of a gavel; interpretation of laws change. Equal Employment Opportunity (EEO) laws are no different. Because they are always open to interpretations by the courts, businesses must be aware of changes to ensure compliance. If the feds come knocking on your door, listen closely and hear their whispers, “Ignorance is no excuse…”

The U.S. Ninth Circuit Court of Appeals recently ruled on a sexual harassment case in which the employee notified the employer that something was amiss; however, would not provide details. The employee advised he would deal with it personally and the company decided there was not enough information to investigate.

The appellate court ruled (Hardage v CBS Broadcasting, Inc. - U.S. 9th Cir., 03-35906, 11/1/2005 ), the employer may not be held liable if the employee won't release information with complaint details.  In this case, the employee charged harassment but refused to give “gory” details to the HR Manager.  This ruling conflicts with previous guidance.

Most managers eventually hear this employee statement, "I want to speak with you about something, but can't give you details and I don't want you to do anything or say anything to anyone."  If the employee then describes an EEO concern with few to no details, i.e., omitting names, places, and other directly information, the employer may be at a loss on how to proceed or whether to begin an investigation.

In the above case, the appellate court said, "...an employer's response to a harassment complaint may be deemed reasonable as a matter of law even though the employer conducted no investigation and took no action to address the harassing behavior."  However, in a minority opinion the court wrote, "The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified." The employer sent their corporate HR Manager to speak with the complainant. Although no investigation followed, the alleged harassment stopped.

An important element relating to EEO issues is the “reasonably should have known” theory. Thinking this through intelligently, you may ask, “Say what?!” If an employee speaks to management alleging EEO violations, with few or no details, do investigate

the information provided. If the harassing behavior is commonly known by other employees; most likely management should have “reasonably known” also. Typically the courts expect employers to have a reasonable knowledge of actions taking place in their work areas, especially when the actions are widespread knowledge. Throw in some logic to recognize there are times when management could not have reasonably known about harassment, i.e., codes of silence prevail, employees refuse to “snitch,” or employees are remotely located and indicate everything is coming up roses. Routinely talking to employees about work life should not be a novel idea.

The following suggested steps should be considered during and after basic EEO allegations of discrimination or harassment are made:

• Make every good faith effort to formally investigate and document all allegations
• Take copious notes of all interviews and conversations relating to the allegation(s) – include dates, witnesses, etc.
• Reiterate the EEO and Harassment Company Policies to all employees – post them annually in conspicuous places throughout the facility - have employees read and sign that they understand the policies
• Advise employees that management is required by law to investigate all allegations of discrimination and harassment – include this in the EEO and Harassment policy statements
• Ensure management staff are trained to understand they will be held legally accountable for equality in the workforce and prevention of harassment
• If allegations are found to be true, take immediate and appropriate corrective action
• Use common sense – EEO is about respectful and equal treatment for all employees

Obviously, there are mixed opinions about liability in complaints with limited knowledge by the employer.  The safest approach is to open an investigation, no matter how little information has been provided.  One cannot truly know what information will become available until the investigation is opened and questioning begins.

EEO GUIDANCE : If management knows about it…deal with it immediately. If management doesn’t know about it and everyone else does…teach managers to push away from paper piles and TALK regularly with their employees. Managers should ask how employees are doing in their work environment and if they are treated fairly and equitably. Even if inappropriate EEO harassing behavior appears to be tolerated by all employees involved, management is responsible to stop it.

Carol Dawson is the President of EEO GUIDANCE, Inc., a national EEO/Diversity consulting and training company based in Jeffersonville , Indiana , and former Louisville Area Director of the Office of Federal Contract Compliance Programs, U.S. Department of Labor. She can be reached at www.eeoguidance.com

Business First - Article #4

July 2006

DIVERSITY IS COMING – RIGHT HERE TO RIVER CITY

Written by: Carol A. Dawson

The driver of the airport shuttle van asked if I was in Tampa for business or pleasure. I told him I was there to speak at an Affirmative Action Conference. His response, “A lot of people don’t like affirmative action, but I think diversity is important.” He was correct with both statements; however, he was incorrect to think affirmative action and diversity are synonymous. Seems every diversity speaker has a creative twist on the definition of this still popular word. While the definition is quite simple, the complexities of dealing with our diverse society and workforce seem to be much more of a challenge.

The U.S. Census Bureau estimates by 2050, the U.S. population will be 50% minority and 50% non-minority. Groups who fall into the category classified as minorities (for Equal Employment Opportunity (EEO) and Affirmative Action (AA) legal purposes) are Black , Hispanic, Asian or Pacific Islander, and American Indian or Alaskan Native. All others are non-minorities, e.g., W hite (Not of Hispanic origin)-all persons having origins in any of the original peoples of Europe , North Africa , or the Middle East . To mention just a few…Iranians, Iraquees, Germans, and Lebanese would be classified as non-minoirites for EEO statistical reporting purposes. Armed with this knowledge, now revisit the 50/50 estimate for your future workforce. If your business is not fully on board with understanding and being prepared to work with a culturally diverse workforce (along with many other forms of differences such as class, gender, etc.), there has never a better time for all good men/women to take heed.

After spending many years enforcing compliance of EEO programs for the feds, this I know as fact…EEO/AA laws should be adequately funded to ensure fairness and equality exists within the U.S. workforce. However, being in compliance with EEO/AA laws doesn’t guarantee a business is ready to meet future challenges or that it has an inclusive and respectful workforce. If your company is not giving serious thought to diversity and future growth, be very afraid. Now before you shake off those unwanted pounds, remember it is never too late to change.

Here are a few recommendations for business/agency leaders:

• Give more focus to the diversity of human resources as the topic of conversation in the corporate board room. Make diversity part of the business core values.

• E ncourage collaboration among employees with various backgrounds, cultures, knowledge levels and experiences – harness power achieved through a diverse team.
• P articipate often in diversity activities created to inspire, educate, and motivate employees regarding diversity significance and value.
• C reate a flexible and inclusive work environment where all employees can be successful.
• S eek dialogue and input on important business decisions from those who are different from your mirror reflection.

• Educate the workforce and be an active part of the education effort.

Teach employees that diversity is not just about gender or race…it is about everything that makes each of us unique and different. It is about respecting those differences.

Louisville has a unique opportunity, through a new Bellarmine University program, to have a leg-up on comprehending and dealing with diverse issues. Bellarmine is offering a Diversity Management Certificate Program through partnership with Cornell University. The program provides knowledge, skills, and strategies to succeed in managing a diverse and quickly changing workforce.

Participants will meet a couple of days each month through the Fall 06 & Spring 07 semesters, beginning September25. For information, view web site: www.bellarmine.edu/ce (Certification Programs), or call 502-452-8374.

Not inclined to risk injury, I have suppressed tumbling cartwheels and painful ear splitting cheers; however, I am pumped about this opportunity. Course study includes: Laws of EEO, Fundamentals of Diversity Initiatives, Effective Diversity Councils, Strategic Diversity Recruiting, and more.

Ron Crouch, Director, Kentucky State Data Center , advises that neither Kentucky nor the nation has truly acknowledged the recent shift in the makeup of our country's population. Crouch explains, “That includes fully understanding the fact that all growth in the under-45 age group is from Hispanics, African Americans and Asians in the U.S. into the near future. The country is going through major change. It's not good; it's not bad. It's just change, and we just don't get it. But we'd better understand these changes to stay competitive."

Dick Kovacevich, Wells Fargo President and CEO, recently reflected, “If there's anything I've learned, it's that life in the business world is less about brains at the 99 percent level and more about people—caring, committed, diverse people who reflect the diversity of our markets." See Dick succeed. Run Dick, run.