Employment Discrimination Report

"When Men And Women Get Sexually Harassed, They Take It Out On Their Bodies"

Richard B. Cohen — Wed, 22 May 2013 15:19:53 -0500

Both men and women experience strong bodily reactions to sexual harassment, found a new study – the first of its kind which includes men.

Published in the journal Body Image, the researchers examined how men and women react to sexual harassment. They discovered that “women reported greater weight/shape concerns, eating pathology, dietary restraint, eating concerns, and binge eating compared to men,” and that as sexual harassment increased these effects increased.

The interesting new finding was that the main gender difference was that women reacted more with worrying about their body image, binge eating, or restricting their diets, while men responded more with "compensatory behaviors" – by attempting to control their bodies by vomiting, and taking laxatives and diuretics.

Very interesting, but disturbing.

West Pointer Responsible For "Health, Welfare and Discipline" Charged With Videotaping Showering Female Cadets

Richard B. Cohen — Wed, 22 May 2013 12:04:18 -0500

Another military sex scandal is unfolding – this time at West Point. The New York Times just broke the story that Sgt. Michael McClendon videotaped showering female cadets. He is a staff adviser “responsible for the health, welfare and discipline” of a company of 125 cadets, and was therefore expected to “assist each cadet in balancing and integrating the requirements of physical, military, academic and moral-ethical programs.”

The Times stated that “If proven, the violation of privacy and trust alleged in the filming of female cadets could have a significant negative impact on whether the Army is seen as an inviting career for young women.”

Said an Army spokesperson, “The Army will ensure the military justice system works through to its proper conclusion.”

As we have posted many times recently, the military justice system seems to be part of the problem, not the solution.

One More Opinion On Sexual Assaults In The US Military

Richard B. Cohen — Wed, 22 May 2013 08:02:40 -0500

“It’s true, as the military is fond of saying,” writes Margaret Carlson for Bloomberg View, “that the great majority of military officers are law-abiding. But when a fellow service member is accused, the law-abiding tend to side with the accused.”

Let’s give her opinion a read as she addresses the explosive increase in sexual assaults in the US military, and the growing scandal of sexual assault prevention officers being arrested for sexual assault. (See our latest post on the subject on May 22d).

“Sexual violence in the military is so pervasive, even some of those who have been charged with rooting it out are themselves violent.

The military just can’t seem to curb the epidemic on its own. It’s more important to pretend nothing has happened when a complaint is lodged; many are never relayed to military criminal authorities, while others are swept under the rug. …

Reporting a rape is never easy, but it’s much harder when the perpetrator is of higher rank than the victim (50 percent of the time) and when the perpetrator is in the victim’s chain of command (23 percent of the time). … [M]embers of Congress have dozens of reports that superiors are more interested in finding reasons to intimidate the victim than in helping her get out of the line of fire.

Sen. Gillibrand introduced legislation last week that would essentially remove commanders from the legal process. If passed, complaints would have to go to a parallel system of military prosecutors outside the command structure. No more commanders overturning guilty verdicts (emphasis added).”

Is A Single Use Of The "N-Word" Enough To Make Out A Hostile Work Environment?

Richard B. Cohen — Tue, 21 May 2013 13:43:49 -0500

The answer is “yes,” according to a recent federal appeals court decision.

Plaintiff, an African-American, worked for Fannie Mae, and when he was given a promotion without a raise, he was allegedly told “For a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot of money.”

The Court found that given this backdrop, when a VP allegedly later told him to “get out of my office nigger,” this latter statement (if indeed made) was severe enough to in and of itself be considered a hostile work environment.

The appeals court denied summary judgment to Fannie Mae, and held that the “young black man” comment is arguably direct evidence of discrimination. A hostile work environment arguably existed based upon the single use of the “N-word,” a racial epithet that the Court said was “deeply offensive,” and, quoting other courts, noted “perhaps no single act can more quickly alter the conditions of employment” than “the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor.”

The Court concluded that “This single incident might well have been sufficient to establish a hostile work environment,” especially in light of the “young black man” statement.

"The Skill For The HR Person Is Trying To Bridge The Gap When Cancer Strikes"

Richard B. Cohen — Tue, 21 May 2013 10:35:13 -0500

RoseMarie Loft, an HR consultant in the UK, has commented on our post which disclosed the results of a survey in the UK which found that 37% of cancer patients have experienced some sort of discrimination.

She writes:

“I find this quite difficult to accept at face value, based on experience. Perhaps, as it's an on-line questionnaire, we are really saying that 37 per cent of those that felt strongly enough to log in and answer the questionnaire felt this way. I'm not suggesting that those affected were being untruthful nor suggesting that their feelings are invalid. However, in all of the organisations I've worked in - and it's a fair few across a number of sectors in senior interim roles - I've yet to come across a single one that doesn't suspend all normal sickness management processes, make accommodation for additional sick pay (I've often authorised extended sick pay through to end of life, and rightly so in my view), provide flexible working through treatment if the employee wishes to work, make home visits and so on. That's not to say that there can't be some dreadful ones out there.

But I have experienced a good few colleagues that find it difficult to deal with serious illness on a personal level, especially when the illness is terminal. This can often make them distant and appear uncaring. It's also been my experience that when someone suddenly becomes ill with a potentially life-threatening illness, then they can lose trust of those around them. The skill for the HR person is trying to bridge that gap.”

"Blacks To The Back Of The Pizza Place!"

Richard B. Cohen — Tue, 21 May 2013 09:56:45 -0500

Rosa Parks refused to sit in the back of a bus – and helped to usher in a new world of integration. She didn’t have to deal with pizza places, though, at least not in Mississippi.

Clarksdale’s Stone Pony Pizza was just sued by the EEOC, which alleges that the pizza place maintains a racially segregated workforce, and that it “hired only whites for front-of-the-house positions such as server, hostess, waitress, and bartender, and hired African-Americans for back-of-the-house positions such as cook and dishwasher."

An EEOC attorney said that "Applicants should be evaluated based upon their qualifications, not the color of their skin."

Why do we still need a reminder like this half a century after Rosa Parks refused to move to the back of the bus?

The "NEW IMPROVED" DSM-V -- Prescription For More ADA Suits?

Richard B. Cohen — Mon, 20 May 2013 14:15:16 -0500

With the recent, long-awaited publication on May 18th of the 900-plus page DSM-V, the so-called "Bible" of the American Psychiatric Association (its $100,000,000 publishing baby), there has been the usual battle between and among psychiatrists, psychologists and other mental health professionals over its content. It adds many diagnoses and deletes others. It renames some ("Gender Idenity Disorder" has become "Gender Dysphoria" with a flick of a pen, or a click of a keyboard).

Should "caffeine-withdrawal" be classified a psychiatric disorder? Should "parental alienation syndrome?" "Sluggish cognitive tempo?" "Excoriation" (i.e., skin picking)?

The answers are found below.*

The National Institutes of Mental Health will no longer use the DSM-V's diagnoses in its research projects. Some critics say that it has become a sales manual for the drug companies, and others, such as The Daily Kos, says of the DSM-V: "Psychiatric junk science based on subjective 'diagnoses' represents a form of medicine that went out in the 20th century in every other part of medicine."

So why do we write about it here? Well, think about it. With the addition of "caffeine-withdrawal syndrome," will limiting an employee's trip to the coffee machine be a violation of the ADA? Will every new diagnosis become a court case?

The next interesting ADA case is limited only by the imagination of a shrink, or plaintiff's lawyer.

*Answers to quiz: The first and last of the above disorders were included in the DSM-V. The second and third were not. Give yourself a point for each correct answer.

Texas Businesswoman Of The Year Fired For Performance Reasons -- After She Discloses Breast Cancer

Richard B. Cohen — Mon, 20 May 2013 11:50:25 -0500

Irrespective of the merits or legitimacy of the performance issue, is there an employer who has read our blog who cannot critique this action by the company?

Kathleen Mason told her company, Tuesday Morning Corp. (which sells closeout housewares and home décor in 850 stores around the US), of which she was president and CEO, that she had been diagnosed with breast cancer “so they wouldn't be alarmed if she began losing her hair or growing gaunt as a result of treatment.”

She was fired a few months later for alleged performance reasons, even though she was the 2010 Women's Chamber of Commerce of Texas Businesswoman of the Year, and even though her board of directors had approved a $50,000 salary raise in 2011, along with stock options. She just sued alleging disability discrimination.

The Huffington Post reports that her attorney claims that “the board's attitude toward her began to change soon after [she revealed her condition], with members contacting her subordinates directly. At one point when Mason was wearing a wig ... one board member made a sarcastic comment about how nice her hair looked.”

Her complaint states that “When you put the board’s actions into chronological context, the motivating factor for the board’s decision to fire her was the fact that it had concern about her future performance because it regarded Kathleen as having a disability (cancer). … It’s clear that Tuesday Morning’s board overreacted when it learned of Kathleen’s cancer and regarded her as being disabled and wrongfully fired her.”

When it comes to disclosure of a disability, is chronology destiny?

"Another Day, Another Military Sexual Assault Scandal"

Richard B. Cohen — Mon, 20 May 2013 09:59:24 -0500

As officers charged with preventing sexual assaults have been charged with sex crimes themselves, the scandal in the US military is mounting. In an editorial, The Virginian-Pilot, citing a new Pentagon report, noted that “an average of 70 sexual assaults involving military personnel occur every day. … as many as 26,000 military members were sexually assaulted last year but fewer than 3,400 reported the incident.”

Reuters reported that the Chairman of the Joint Chiefs of Staff said that the military is losing the confidence of women members, and the Defense Secretary directed that a plan for training and credentialing those personnel who interact with recruits and sexual assault victims be formulated.

Does the history of the military's response to sexual assaults give us any reason for optimism?

The 1991 Tailhook Sexual Assault Scandal

The Virginian-Pilot reports that a year ago, eight Air Force members, or former members, who were victims of rape or assault sued claiming that they suffered retaliation when they reported it to their superiors. They alleged that the military has a "high tolerance for sexual predators in their ranks" and discourages victims from coming forward. Robin Abcarian, Los Angeles Times columnist, who writes “another day, another military sexual assault scandal,” recalls the 1991 Tailhook sexual assault scandal, where at least 83 military women and seven men were assaulted.

One female pilot testified that "I got attacked by a bunch of men [fellow pilots] that tried to pull my clothes off. I fell down to the floor and tried to get out of the hallway, and they wouldn't let me out. They were trying to pull my underwear off from between my legs." She pleaded for help from a passing pilot, who joined in the assault.

She reported this assault to her superior, Rear Adm. Jack Snyder, who said, "Well, that's what you get for going down a hallway of a bunch of drunken aviators." Rear Adm. Duvall Williams Jr. stated that, given the language used by one female victim, "Any woman that would use the F word on a regular basis would welcome this type of activity."

The Navy Secretary resigned, and Rear Adm. Williams took an early retirement.

As Abcarian says, “The Pentagon sternly vowed it had ‘zero tolerance’ for sexual harassment and assault.” Sound familiar?

Is Education and Training Enough? What Is To Be Done?

Reuters reports that despite years of training, role playing, a video game called "Team-Bound," and the "I Am Strong" sexual assault prevention campaign, all designed to educate about sexual harassment, there was a 37% increase in sexual assault cases in 2012. The Virginian-Pilot says that “Anecdotal evidence is substantial, and it spans years, showing that training, tracking and enforcement efforts aren't working.”

As the Reuters story says, “critics say training may never be enough to do away with the problem.” It quotes former Marine Captain Anu Bhagwati, executive director of the Service Women's Action Network, who helped implement sexual assault prevention training way back in 2004: "The military cannot train its way out of this problem.”

Then story says that Captain Bhagwati “urges the military to take prosecution of sexual assault cases away from the chain of command, making it easier for victims to seek justice, an idea echoed in a Senate bill last week.”

Let’s give Robin Abcarian the last word in this post:

“Tailhook represented the sort of lawless, alcohol-fueled behavior that was never supposed to happen again in an age where increasing numbers of women were in the military. Things have changed since Tailhook, that's for sure. Military sexual assaults no longer occur in raucous hotel corridors. Instead, they're taking place in more private settings, and in record numbers.

Good work, Pentagon.”

Reader Takes Issue With Our Post About Harassment In The Military

Richard B. Cohen — Fri, 17 May 2013 13:06:09 -0500

In our effort to be fair and present all sides of an issue, and to encourage discussion, we print here a comment from a reader, Anthony Vieira, an attorney from LA:

“Mr. Cohen, there are more than 2.2 million personnel serving in our US armed forces. That today we have "Another" sexual assault is an issue for the people and the command involved. Your trying to go further and loop it into some embedded pattern of conduct is lawyer talk and nothing more. This is particularly evident where you make the further claim, as a lawyer, that the issue is the chain of command structure and that it has to go. There are layers of complexity here that you'll never understand because you evidently haven't tried to. Talking without making some minimal effort to comprehend the issues doesn't become us as a profession. We all need to do the hard work of understanding what's set before us before we can begin to talk credibly (and persuasively) on anything.”

Any thoughts or comments on this issue? Please let us know.

"Appalling" Sexual Harassment Suit Settled For $650,000

Richard B. Cohen — Fri, 17 May 2013 11:17:12 -0500

“Harrowing,” “appalling” and “extreme abuse” were words used by EEOC lawyers regarding a series of lawsuits targeting sexual harassment, particularly of farmworkers who are subject to an "appalling abuse of power."

One example was an EEOC suit against National Food Corporation, a major egg supplier in Washington. It was alleged that the company allowed a supervisor to physically grab a female worker who worked alone in a henhouse where the harasser was the only management person on site. He made sexual demands upon her several times a week from 2003 to 2010.

She said that "For almost seven years, I tried to just survive these demands from my boss, because I needed to support my mother and my daughter.”

Now the company has settled this action for $650,000.

The EEOC General Counsel stated what we have been repeating for years: "It is one of the EEOC's national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse."

GINA Class Action By EEOC Against Nursing Home

Richard B. Cohen — Fri, 17 May 2013 09:23:53 -0500

Don’t say that the EEOC did not warn you – it included GINA as one of its priorities in its Strategic Enforcement Plan ("SEP"). So now, hot on the heels of its first GINA lawsuit (and settlement), the EEOC announced thatit has filed a GINA class action against The Founders Pavilion, Inc., a Corning, N.Y. nursing and rehabilitation center. Under GINA, employers cannot, in the hiring process, request genetic information and family medical history.

The EEOC alleges that the company conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history.

Elizabeth Grossman, the NY EEOC’s regional attorney said that "GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law. Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women."

That last statement should resonate with health care facilities, who we have repeatedly warned that the EEOC is targeting under the ADA for disability discrimination. Now, it seems, it is targeting them under GINA too.

Another Military Sexual Assault Arrest of A Prevention Officer

Richard B. Cohen — Thu, 16 May 2013 19:12:31 -0500

Once again, despite the express feeling of being "ashamed" about sexual assault in the military by the President, there is a new story tonight about a military arrest - it has been reported that a Lt. Col. at Ft. Campbell who is a sexual harassment prevention officer has been arrested for a sexually-related crime.

This case is distinguishable from our previous posts because his issue was with an ex-wife with mutual restraining orders, not with subordinates. He was removed fom his position by the Army while his domestic dispute is beign resolved.

In any event, the US military has a clear institutional resistance to any change. The "chain of command" model must be changed. Without a change of the culture of the military, these episodes will continue.

This is no joke - it is a serious situation of criminal behavior.

"Top Hats" For A Shy Bladder: A Reasonable Accommodation

Richard B. Cohen — Thu, 16 May 2013 14:41:29 -0500

A number of people have written about our “Shy Bladder” post, questioning whether it is, indeed, a disability. After all, what life function does it impair?

One reader who is a sufferer of paruresis wrote:

“As a person who suffers from shy bladder, I can say that it disables me only by causing me to take forever in the restroom. I can't urinate in a public restroom if I know that anyone else is in the room. I have an awful time when my bladder is really full and I have to go into a store restroom. I take 3-4 times as long as any other woman.

I had to undergo random urinalyses when I was in the Navy, and they were a whole lot worse than in the civilian world. In the Navy, the observer actually had to observe. I was watched from start to finish, and it was very unpleasant. I always had to have the observer turn on the faucet to help me.

I can understand the person being unable to urinate with anyone else in the room, but I think the employer can overcome the problem. Medical providers have what they call "top hats" -- plastic things that sit across the toilet and collect urine. The employer can rig the toilet with one of these. Then, they can pat down the person before leaving her to provide the sample. It'd be more time-consuming, but it can be done.”

So according to our reading of our reader’s comment, even if “shy bladder” is not a disability, nonetheless there is still an easy way to accommodate a person -- a top hat! - so there should never be an issue.

How Does The ADA Apply To Persons With Cancer, Diabetes, Epilepsy or Intellectual Disabilities?

Richard B. Cohen — Thu, 16 May 2013 08:21:31 -0500

In accordance with its Strategic Enforcement Plan ("SEP"), the EEOC is addressing these issues in a new Question and Answer Series. Both employers (and their HR advisors) and employees can benefit from reading this. See: http://www.eeoc.gov/laws/types/disability.cfm.

The EEOC Chairwoman states that "Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability. Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions."

The EEOC press release describes these documents as “ reflect[ing] the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.”

Fort Hood Sgt. In Charge Of Sexual Harassment Prevention Office Arrested For Sexual Assault and Promoting Prostitution

Richard B. Cohen — Wed, 15 May 2013 19:12:46 -0500

In a military where, last year, there were a whopping 26 convictions out of 26,000 charges of sexual assault (and only 3,000 reported charges), the news tonight is that the sexual harassment prevention officer at Fort Hood has been arrested for sexual assault and for forcing a subordinate into prostitution. This is the second such officer arrested in a week.

Seems that the chain of command structure, where it behooves a superior officer to cover up such charges, may be a factor, as well as the entire, engrained culture of the military. This scares victims into keeping silent about such assaults.

Law enforcement is failing in the US military.

More as it comes to light.

UK Cancer Patients Report Increase in Employment Discrimination And Harassment

Richard B. Cohen — Wed, 15 May 2013 13:40:35 -0500

Although the UK Equality Act, like the US ADA, prohibits disability discrimination, a Macmillan Cancer Support/YouGov online survey says that 37% of employees who undergo cancer treatment report discrimination, an increase from 23% in 2010. It also found that 9% felt harassed enough to quit, and 13% reported lack of reasonable accommodations.

The Chief Executive at Macmillan Cancer Support noted that:

“As our population grows and ages, and the retirement age rises, cancer will become an increasingly common issue for employees and their managers. It’s vital they are equipped to help people with cancer stay in work. It isn’t difficult and it is likely to be cheaper and easier than recruiting a replacement or defending a discrimination claim.”

"Bashful Bladder" As A Disability? Running Water The Accommodation?

Richard B. Cohen — Tue, 14 May 2013 14:50:09 -0500

Way back on October 4, 2011, we asked whether any of you were ever in a situation where you had to produce a urine sample as part of routine drug testing, or were in a football stadium bathroom with a line of impatient fans behind you who had been drinking beer for hours and were muttering menacingly because you just froze up?

The pressure was on you, that’s for sure. It’s called “paruresis,” also known as “shy bladder” or “bashful bladder.” It is, simply, a bladder that has performance anxiety when the pressure is on, whether in a public situation or with others around. It’s a bummer, but is it a disability for purposes of the ADA if you are not hired because you can’t show a clean drug test because of it? What “major life activity” is substantially limited by possessing a shy bladder – urinating in public? Drinking beer at a Giants game?

The EEOC considered in 2011 “whether paruresis is a disability under the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), and under the regulations implementing the ADAAA published by the U.S. Equal Employment Opportunity Commission (EEOC) on March 25, 2011,” in an informal opinion letter .

We summarized this letter in our blog post at:: http://employmentdiscrimination.foxrothschild.com/2011/10/articles/americans-with-disabilities-ac/is-having-a-bashful-bladder-a-disability-or-merely-a-problem-at-halftime-at-giants-stadium/

The EEOC came to no definitive or clear conclusion, which led us to say: “Stay tuned because we will no doubt see such a fact situation hit the courts soon enough and learn more.”

Well, the case has arrived – an applicant for a position as a an organ transplant financial coordinator at Iowa Methodist Medical Center failed a job-related drug test and was refused hiring because she could not complete the urine test – yep, paruresis. She sued under the ADA claiming that the Medical Center failed to make a reasonable accommodation for her alleged disability.

She claimed that she had always managed this condition by using single-stall restrooms or by running water to cover the sound of her urinating. Her court filing states that if she "cannot flush the toilet or run the water in the sink, she is generally unable to urinate in a public restroom."

Should, or could, she have been accommodated without undue hardship?

Finally, we may get an answer to these weighty issues. In the meantime, don't drink too much beer if the water's running.

Henry's Turkey Gets Early Thanksgiving: $240,000,000 Jury Verdict Reduced to $1.6 Million

Richard B. Cohen — Tue, 14 May 2013 08:07:17 -0500

A jury recently slammed Henry’s Turkey Service for $240,000,000 -- the largest verdict in EEOC history, for exploiting intellectually disabled workers by, among other things, paying them only $65 dollars per month eviscerating turkeys on an assembly line. In an ADA case brought by the EEOC, an expert witness had testified that the company "took advantage of the workers ... knowing that they would not likely be discovered because the workers were disabled."

However, it’s an early Thanksgiving for Henry – the EEOC just filed court papers in which it conceded that under the ADA the verdict must be reduced to $1.6 million. The ADA has a cap on damages: it limits compensatory and punitive damages to $50,000 if the company employs between 14 and 101 for 20 or more weeks during a calendar year.

High Court To Shed Light On "Sex And The Chandelier" Case

Richard B. Cohen — Sun, 12 May 2013 20:47:37 -0500

David Miller, a litigator from Sydney, Australia, helpfully wrote about the workers comp decision from Australia which we discussed last week where an employer was found liable for injuries sustained from a falling chandelier by an employee who was traveling for work and had "wild sex" in her motel room:

"And now the case is off to our High Court - the equivalent of SCOTUS in the judicial hierarchy - http://www.smh.com.au/national/sex-injury-compo-case-goes-to-the-high-court-20130510-2jdcc.html"

For those scholars who want to conduct further legal research into the factual underpinnings of this fascinating case, a click on the above link is a required first step.