What Lessons Can Employers Learn From The Kavanaugh Hearings?

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

Last week, millions watched the Senate Judiciary Committee hearings with Dr. Christine Blasely Ford and Supreme Court nominee Brett Kavanaugh. The hearings were reminiscent of the Senate Judiciary Committee hearings in 1991 with Anita Hill and then Supreme Court nominee Clarence Thomas.

To be sure, the Senate hearings were radically different from sexual harassment investigations routinely conducted at workplaces across the country. The challenges presented at the hearings nevertheless provide important lessons for employers. As most employers already know, the stakes in such investigations are (1) employee well-being and productivity, (2) employee turnover, and (3) potential legal exposure under federal, state and local employment laws.

Take All Reports of Sexual Harassment Seriously

Upon receipt by an employer, a report of sexual harassment may immediately appear to be of questionable credibility. Such questionable credibility may be due to (1) the age of the conduct reported, (2) an ulterior motivation by the alleged victim or other employees, (3) memory gaps, or (4) the absence of corroborating witnesses or other evidence.

There are inherent risks for an employer, however, in a rush to judgment as to a questionable report of harassment. First, the report may prove to have more credibility with further investigation. It is more prudent that the employer to conduct such an investigation than a government agency or plaintiff’s counsel.

Second, the report may be part of a greater sexual harassment problem which exists at the employer. An investigation of the report may be the only means of promptly addressing the greater problem, before it becomes worse.

Finally, the manner in which an employer handles a report of sexual harassment can encourage or discourage future reports of harassment by the alleged victim and other employees.  An employee who feels discouraged from reporting harassment may opt to (1) withhold information thereby allowing a bad situation to become worse, (2) quit, or (3) report such harassment in the form of a charge of discrimination or lawsuit.

Mitigation of these risks thus dictates that all reports of sexual harassment be taken seriously.

Take the Time Needed

Since federal and state employment discrimination laws mandate that prompt remedial action be taken by an employer in response to a report of sexual harassment, a sense of urgency must exist in any investigation. The danger of an artificial deadline, at the expense of a more thorough investigation, however, is that the employer will deprived of information necessary to mitigate the risks associated with sexual harassment.

Completeness is thus always a more prudent goal than expediency in any sexual harassment investigation.

Be Thorough

There are certainly times when an investigation presents hurdles for an employer. Such hurdles include (1) less than cooperative witnesses, (2) unreliable memories, and (3) witnesses represented by legal counsel.

Without reasonable efforts to be thorough, however, a sexual harassment investigation is vulnerable to a claims of bias.  The goal of an employer, therefore, should be reasonably diligent efforts to obtain any relevant information regardless of its evidentiary value.

Be Objective During Investigation

At the outset of a sexual harassment investigation, an employer may be predisposed to believe the accuser or the accused. The reasons for such predispositions include (1) prior dealings with the accuser or accused, (2) the relative values to the employer of the accuser and accused, (3) fear of litigation, and (4) the predominant gender of the employer’s leadership.

A less than partial investigation of a report of sexual harassment, however, can undercut rather than support an employer’s defense to a claim of discrimination or retaliation. An employer must thus be proactive in making sure the investigation is objective.  This means taking steps to (1) neutralize any predispositions during the investigation, (2) ensure that the investigation looks for all relevant information regardless of whether the information supports the accuser or accused, (3) evaluate objectively information learned during the investigation, and (4) otherwise preserve the integrity of the investigation.

Be Objective After Investigation

After an impartial investigation is concluded, the employer still risks legal action for discrimination and retaliation by (1) openly commenting on the credibility or motivation of the accuser, (2) openly commenting on the hardship suffered by the accused and the accused’s family, (3) leaking information learned during the investigation, or (4) lamenting the time and resources spent on the investigation.

Prompt remedial action in response to a report of sexual harassment does not mean that the employer must necessarily take a side. Such action need only be limited to remedial steps, which generally do not entail attacks on the accuser or accused.   

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Unconscious Bias In The Workplace

The Summer 2018 Edition of Professional Liability Defense Quarterly, published by the Professional Liability Defense Federation (PLDF), features an article by Robert G. Chadwick, Jr., entitled “Unconscious Bias In The Workplace.”

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What San Antonio Employers Need To Know About New Paid Sick Time Ordinance

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On Thursday, August 16, 2018, San Antonio became the second Texas municipality (Austin) to enact a paid sick time ordinance applicable to private employers. There is no corresponding Texas state law which mandates paid sick time in the private sector.

What Employers Are Covered By The Ordinance?

The ordinance applies to any “person, company, corporation, firm partnership, labor organization, non-profit organization or association that pays an employee to perform work for an employer and exercises control over the employee’s wages, hours and working conditions.”  The ordinance does not limit its coverage to employers with a minimum number of employees.

The ordinance does not apply to (1) the United States; (2) a corporation wholly owned by the government of the United States; (3) the state or a state agency; or (4) the City of San Antonio or any other political subdivision of the state, or other agency that cannot legally be regulated by City ordinance.

What Employees Are Covered By The Ordinance?

The ordinance covers any “individual who performs at least 80 hours of work for pay within the City of San Antonio in a year for an employer, including work performed through the services of a temporary or employment agency.” The ordinance does not apply to independent contractors or unpaid interns.

How Much Paid Sick Time Is Mandated By The Ordinance?

An employer must grant one hour of earned sick time for every 30 hours worked for the employer. Earned sick time is available to an employee as soon as it is accrued. Earned sick time accrues only in hourly increments.

The ordinance does not affect employer policies which allow an employee to donate unused accrued sick time to another employee.

Are There Any Caps to Paid Sick Time Mandated By The Ordinance?

An employee of an employer with 15 or fewer employees , excluding family members, can accrue up to 48 hours of earned sick time in a calendar year. An employee of a larger employer can accrue up to 64 hours of earned sick time in a calendar year. All available earned sick time up to the applicable limit shall be carried over to the following year.
An employer is not required to allow use of earned sick time by an employee for more than 8 calendar days in a calendar year.

For What Absences Can Paid Sick Time Be Used By An Employee?

An employee is entitled to available paid sick time if the employee makes a timely request for used of earned sick time before the employee’s scheduled work time. There is an exception for unforeseeable absences.

Available paid sick time can be requested by an employee for an absence caused by:

  1. the “employee’s physical or mental illness or injury, preventative medical or health care or health condition”;
  2. the “employee’s need to care for a family member’s physical or mental illness, preventative medical or health care, injury, or health condition”; or
  3. the “employee’s or their family member’s need to seek medical attention, seek relocation, obtain services of a victim services organization, or participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or employee’s family member.”

The term “family member” is defined as an employee’s “spouse, child, parent, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.”

Can an Employer Require Verification Before Paying For Sick Time?

It depends. An employer may adopt reasonable verification procedures to establish that an employee’s request for earned sick time for more than three consecutive work days is for a qualifying absence. The ordinance makes no mention of absences of other durations.

How Is Paid Sick Time Calculated?

The employer shall pay earned sick time in an amount equal to what the employee would have earned if the employee had worked the scheduled work time, exclusive of any overtime premium, tips, or commissions, but no less than the state minimum wage.

What Does The Ordinance Proscribe?

An employer may not:

  1. require “an employee to find a replacement to cover the hours of earned paid sick time as a condition of using earned paid sick time”;
  2. erase earned paid sick time upon “an employee’s transfer to a different facility, location, division, or job position with the same employer”;
  3. “transfer, demote, discharge, suspend, reduce hours, or directly threaten these actions against an employee because that employee requests or uses earned sick time, reports or attempts to report a violation of [the ordinance], participates or attempts to participate in an investigation or proceeding under [the ordinance], or otherwise exercises any rights afforded by [the ordinance]; or
  4. “adopt verification procedures that would require an employee to explain the nature of domestic abuse, sexual assault, stalking, illness, injury, health condition or other health need when making a request for earned paid sick time.

What Records Are Mandated of Employers By The Ordinance?

On at least a monthly basis, an employer must provide electronically or in writing to each employee a statement showing the amount of the employee’s available earned paid sick time.

An employer that provides an employee handbook to its employees must include therein a notice of employee rights and remedies under the ordinance.

Each employer must display a sign in an conspicuous place or places where employee notices are customarily posted.

Does The Ordinance Provide Employees With A Private Right Of Action?

No. For violations, the ordinance only provides for a civil penalty assessed by the City.

How Is The Ordinance Enforced?

The ordinance is enforced by the Director of the San Antonio Metropolitan Health District (“District”). A complaint alleging a violation must be filed with the District by or on behalf of an aggrieved employee within two years from the date of the violation.

What Is The Civil Penalty For Violation Of The Ordinance?

No civil penalty for a substantive violation may be assessed prior to April 1, 2020. Thereafter, an employer which fails to cease a violation by the end of the 10th business day after the employer receives notice of the violation by the District is liability to the City for a civil penalty of up to $500 for that violation.

Civil penalties of $500 per violation for retaliation, however, can be assessed on and after the applicable effective date.

Are Any Affirmative Defenses Available To Employers Under The Ordinance?

The ordinance does not expressly provide any affirmative defense for a failure to pay an employee earned paid sick time. Presumably, however, the District will consider any lawful reason for any adverse employment action taken against an employee who has (1) requested or used earned sick time, (2) reported a violation of the ordinance, or (3) participated in an administrative proceeding under the ordinance.

What is the Effective Date of the Ordinance?

The ordinance is effective January 1, 2019.  The anti-retaliation provisions are enforceable on the effective date. For employers with less than six employees, the other provisions of the ordinance are not effective until August 1, 2021. For all other employers, the other provisions of the ordinance are effective on August 1, 2019.

What Must San Antonio Employers Be Doing Now?

Depending on the applicable effective date, San Antonio employers have time to develop policies and procedures to conform to the standards set forth in the ordinance. For planning decisions which must be made long before August 1, 2019, however, larger employers must be cognizant of the unique requirements which will soon be applicable to employees working within the city limits of San Antonio.

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Should Employers Include “No Rehire” Clauses In Separation Agreements?

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

When terminating an employment relationship, a separation agreement can be a prudent strategy for managing the risk of a subsequent lawsuit. Such an agreement typically offers monetary or other consideration in exchange for a waiver or release of all claims, including claims of harassment and discrimination.

A waiver or release, however, generally cannot lawfully discharge future claims, including claims based upon denials of applications for re-employment. To manage this risk, it is common for separation agreements to include “no rehire” clauses. Such a clause can include an agreement by a former employee to (1) refrain from applying for or seeking employment, reemployment or reinstatement, (2) waive any  right to such employment, reemployment or reinstatement, or (3) termination of employment if rehired.

Recent developments have nevertheless raised two important questions for employers as to “no rehire” clauses: (1) Are such clauses legal? (2) Should employers include such clauses in separation agreements?

Are “No Rehire” Clauses Legal?

For at least a decade, the Equal Employment Opportunity Commission (“EEOC”) has warned that “no rehire” clauses can be viewed as retaliation against employees who come forward with claims of harassment or discrimination. Despite this warning, federal case law has routinely upheld such clauses. See Jencks v. Modern Woodmen of America, 479 F.23d 1261 (10th Cir. 2007)(employee’s waiver of any right to reemployment or reinstatement was legitimate nondiscriminatory reason for employer’s refusal to subsequently consider former employee for sales position).

Not all states, however, view “no rehire” clauses favorably.

Effective July 1, 2018, a new Vermont law provides: “An agreement to settle a claim of sexual harassment shall not prohibit, prevent, or otherwise restrict the employee from working for the employer or any parent company, subsidiary, division, or affiliate of the employer.” Such a clause is rendered “void and unenforceable” by the new Vermont law.

Section 16600 of California’s Business & Professions Code states, subject to certain exceptions: “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” On July 24, 2018, the Ninth Circuit in Golden v. California Emergency Physicians Medical Group addressed the legality under Section 16600 of a provision of a settlement agreement whereby a physician waived “any and all rights to employment with CEP or at any facility that CEP may own or with which it may contract in the future.” The Court held the clause survived to the extent it prevented the physician from working at facilities owned or operated by CEP, but failed to the extent it (1) prevented the physician from working for employers that have contracts with CEP, or (2) permitted CEP to terminate the physician from existing employment in facilities not owned by CEP.

Section 16600 of California’s Business & Professions Code is not dissimilar to the laws of other states.  It is safe to assume, therefore, that other states have taken notice of the broad interpretation by the Ninth Circuit of Section 16600.

Should Employers Include “No Rehire” Clauses in Separation Agreements?

The risk of omitting a “no rehire” clause from a separation agreement is not limited to a single failure to hire claim from a former employee. A disgruntled former employee can conceivably file a new claim as to each open position for which an application is denied.

Certainly, the new Vermont law provides few options for Vermont employers. Otherwise, the risks currently presented under state law, and to a lesser extent federal law, do not yet dictate the abandonment of “no rehire” clauses.  What these risks do mandate is that broad and overreaching clauses be avoided in favor of skillfully and carefully drafted clauses.

So, to answer the question presented by this article’s headline, most employers should include “no rehire” clauses in their separation agreements. What form these clauses should take depends upon the advice of experienced legal counsel.

Combating Sexual Harassment In An Open Office Environment

By Robert G. Chadwick, Jr, Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

For the past several years, studies have debated the benefits and detriments of open offices as viable working spaces. One of the benefits touted by open plan proponents is the deterrence of employee misconduct, such as sexual harassment, that privacy often enables.

Even in an open office, however, the risk of sexual harassment persists, albeit in forms unique to the work environment. The absence of walls and barriers may even provide more, not less opportunities for subtle forms of harassment. After all, open floor plans are specifically designed to facilitate close interaction among employees.  

A new study entitled “Doing gender in the ‘new office’” published in the journal Gender, Work and Organization, for instance, shows that open areas may subject female employees to increased leering or staring by male employees, and more comments regarding their personal appearance.

Other risks of an open layout include looming, crowding, brushing and stalking. Seemingly innocuous gestures, words and phrases by employees may actually have sexual connotations.

The formation of employee cliques is also a danger of an open office. Employees huddled together and whispering and giggling may seem innocent to some, but may actually be perceived by others as a form of harassment.

The more open an office environment, moreover, the greater the threat of ostracization of an employee or group of employees. Ostracization can be a powerful form of harassment or retaliation for a complaint of harassment. Fear of ostracization can also deter complaints of harassment.

In some respects, an open office environment may even be more hostile to an employee than a traditional office environment. Without walls or barriers, the employee is constantly sensitive to the surroundings. With no office or cubicle to which the employee can retreat, the affect of harassment can be constant throughout the work day.      

In implementing strategies for combating sexual harassment, employers must thus be mindful of the unique risks presented by an open office. Harassment and retaliation policies and training should address not only overt forms of harassment, but also subtle forms of harassment. Supervisors should be trained to detect and redress subtle forms of harassment. Employees should have private avenues for reporting harassment without fear of retaliation. Without a strategy tailored to an open office environment, the employer risks poor work performance, attrition and legal liability.

Predictive Scheduling: Yet Another Type of Law For Employers To Worry About

By Robert G. Chadwick, Jr., Seltzer, Chadwick, Soefje & Ladik, PLLC.

In recent years, the rights of applicants and employees have been expanded significantly through new state and local initiatives. These initiatives have included ban-the-box laws, which protect the rights of applicants with criminal conviction records, paid sick time laws, harassment training laws, and laws which ban inquiries about the salary history of job candidates.

In 2014, San Francisco became the first jurisdiction to adopt another new type of employment law. The Formula Retail Employee Rights Ordinances addressed predictive scheduling for employees in the retail industry. As with most new initiatives, other jurisdictions, including Seattle and New York City, quickly followed suit. On July 1, 2018, Oregon became the first state with a predictive scheduling law.

So, what are predictive scheduling laws?

Predictive scheduling laws vary from jurisdiction to jurisdiction. Common components, however, include:

* Advance written notice to an employee before the employee’s work shift.

* Rest periods between work shifts.

* The right of an employee to decline any work shift not included on the employee’s written schedule or which encroaches on a rest period.

San Francisco, Seattle and Oregon allow for variances, but subject to compensation schedules favorable to employees. New York City has completely banned the practice of on-call scheduling.

Which employers are subject to predictive scheduling laws?

For now, predictive scheduling laws apply only to employees of retail, hospitality and food services establishments. Some legal scholars, however, are predicting the laws could expand to other industries.

Where else are predictive scheduling laws under consideration?

In New York, a proposed new State Labor Department predictive scheduling regulation was published for comment on November 22, 2017. A predictive scheduling ordinance is currently under consideration in Chicago. Proposed legislation has also been introduced in Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina and Rhode Island.

What should employers take away from these developments?

As noted in a previous article on this blog, states and municipalities are increasingly the new frontier in employment law. For multi-state employers, this reality presents multiple challenges, including (1) understanding new types of laws for which guidance is sparse or nonexistent, (2) keeping up with fast-changing laws in multiple jurisdictions, and (3) compliance with laws which vary from state-to-state and municipality-to-municipality and which frequently have location-specific mandates. Although these challenges are more daunting with the passage of each new law, the price for not facing the challenges can be fines, damages, or worse.

 

Why Your Workforce Should Not Be Debating Roseanne’s Demise!

By Robert G. Chadwick, Jr, Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

The cancellation of the ABC comedy series Roseanne in the wake of allegedly racist tweets by the show’s star, Roseanne Barr, is undoubtedly a hot topic of debate across America. On one side of the debate are those who subscribe to the view ABC did the right thing. On the other side of the debate are those who believe ABC acted precipitously.

So, why should such debates be avoided in the workplace?  The simple answer is the debates may be cited as part of a charge or lawsuit alleging race discrimination or harassment under Title VII of the Civil Rights of 1964 (“Title VII”), the Civil Rights Act of 1866 or state or local law.

To illustrate this point, consider the debate which continues today regarding the 1995 murder trial of O.J. Simpson. Workplace remarks stemming from such debate are still cited as evidence in cases alleging race discrimination or harassment in employment. In Chattman v. Toho Tanex America, Inc., 686 F.3d 339 (6th Cir. 2012), for example, the claim that a human resources manager was racially biased included a joke as to O.J. Simpson’s innocence. A racially-charged disagreement as to the O.J. Simpson verdict was also at the heart of a race discrimination claim in Campbell v. Hamilton County, 2001 WL 1322785 (6th Cir. Oct. 17, 2001).  

Other racially-charged debates have been referenced in race discrimination cases. In David v. Trugreen Partnership, Ltd., 1999 WL 288686 (N.D. Tex. May 5, 1999), it was a debate regarding the trial of police officers who had allegedly beaten Rodney King. In Neal v. Whole Foods Market Company, Inc.,  2018 WL 2219362 (E.D.La. May 15, 2018), it was a discussion regarding Bill Cosby’s alleged sexual misconduct.

To be sure, not all remarks made during a racially-charged debate will support a claim of race bias. As many employers already know, however, even frivolous lawsuits cost money to defend.

Especially as to a newsworthy racially-charged debate, such as the cancellation of Roseanne, the urge to take a side can be overwhelming.  Where the debate spills into the workplace, however, the risk to an employer is a costly claim or litigation.  Employer inaction or acquiescence only increases this risk.

Prudent risk management thus dictates that an employer include debates rooted in race amongst prohibited activities in the workplace. Better yet, such a prohibition should be part of the employer’s discrimination and harassment training program.

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State-Specific Harassment Prevention Mandates: The Emerging Reality For Multi-State Employers

By Robert G. Chadwick, Jr, Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

For more than thirty years, sexual harassment has been a recognized form of discrimination prohibited by federal and state employment discrimination laws. Prudent employers have thus long recognized written policies and training to be essential risk management tools for combating sexual harassment in the workplace.

Recently, the effectiveness of employer policies and training has come into question. A June 2016 Report of the EEOC Select Task Force on the Study of Harassment in the Workplace noted: “Much of the training done over the last 30 years has not worked as a prevention tool—it’s been too focused on simply avoiding legal liability.”

Although the June 2016 EEOC Report set forth only recommendations for effective sexual harassment training, some state legislatures have gone further.  On April 12, 2018, New York joined California, Connecticut, and Maine in prescribing sexual harassment prevention measures which must be undertaken by private employers.

These state prescriptions include not only the content and form of harassment policies, but also the content, form, timing, frequency, length, trainer qualifications, and proof of attendance requirements of harassment training. Although much of the prescribed content can be used in any state, some of the prescribed content is state-specific.

New York

The New York legislation, for instance, requires the adoption by the New York State Division of Human Rights (“DHR”) of a model prevention policy. The model policy must meet certain minimum standards, which include references to “state statutory provisions concerning sexual harassment” and state “forums for adjudicating sexual harassment complaints administratively and judicially.” Employers must either adopt the model policy or establish a policy that equals or exceeds the minimum standards of the model policy.

The legislation also mandates the production by the DHR of a model prevention training program. The model program must be interactive and include references to “state statutory provisions concerning sexual harassment”, and available state forums for adjudicating complaints. Employers must either adopt the model program or establish a program that equal or exceeds the minimum standards of the model program. Under either option, training must be provided annually.

New York’s new law is effective October 9, 2018.

California

Since 2004, California has required that employers with 50 or more employees provide detailed sexual harassment training for supervisors. Such training must be provided within six months of hire and on a biennial basis. The training must be provided in a classroom setting, through interactive learning, or through a live webinar, and must be at least two hours in length. Only attorneys, human resources professionals, harassment prevention consultants and professors or instructors with specific credentials can provide training.

Amongst the prescribed content of training are the definition of “sexual harassment” under the California Fair Employment & Housing Act (“FEHA”), and “FEHA … statutory provisions and case law principles concerning the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment.”

Since 2016, California regulations state that a covered employer in California must have a harassment, discrimination and retaliation policy meeting several minimum requirements. Among these requirements are the protections afforded to employees by FEHA.  Under California regulations, employers also have a continuing obligation to distribute to employees the brochure regarding sexual harassment published by the California Department of Fair Employment and Housing.

Pending Legislation

In the wake of the #MeToo movement, state-specific measures are likely only to gain steam.  In California, bills have been introduced to extend mandated training to smaller employers and non-supervisory employees. Existing bills in Connecticut seek to update that state’s existing mandates.  A bill to require harassment training has also been introduced in Delaware.  

The Emerging Reality for Multi-State Employers

Most multi-state employers already have a national strategy for preventing and redressing sexual harassment. Multi-state employers with workers in California have  long recognized the importance of also having a California strategy for managing the risks associated with sexual harassment in that state.

The New York legislation, and the pending legislation in other states, highlight an emerging reality for multi-state employers. The number of states requiring state-specific risk management strategies as to sexual harassment is growing.  For multi-state employers with workers in New York this emerging reality already has a due date – October 9, 2018.

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Why Employers Need To Provide Training as to “Unconscious Bias”

By Robert G. Chadwick, Jr., Seltzer Chadwick Soefje & Ladik, PLLC.

Last week, two black men were arrested at a Philadelphia Starbucks allegedly for trespassing. In the aftermath of the arrests, accusations of racial profiling have brought unwanted protests and media attention to the coffee chain. In response, Starbucks CEO Kevin Johnson said he will order store managers to undergo training as to “unconscious bias.”

Although the training ordered by Mr. Johnson likely relates to customer service, prudence dictates that the training also encompass employment relations. Courts have long recognized that an employment practice or decision influenced by “unconscious bias” toward one or more protected groups is a form of unlawful employment discrimination.  An employer who does not provide employee training to combat “unconscious bias” thus risks potential liability and defense costs under applicable employment discrimination statutes.

What Is “Unconscious Bias?”

Even if a person does not display overt bigotry or hatred toward a minority group, the person may still harbor assumptions about the group based on cultural generalizations or stereotypes. Often, these stereotypes are inaccurate and unfair, and therefore biased. The person may or may not be aware of the bias, but the bias exists nonetheless.  A bias harbored by a person of which he or she is unaware is “unconscious bias.”

Significantly, “unconscious bias” is common even in persons who profess to be unbiased.  As observed in the Harvard Business Review by Harvard University researcher Mahzarin Banaji:

Most of us believe that we are ethical and unbiased. We imagine we’re good decision makers, able to objectively size up a job candidate or a venture deal and reach a fair and rational conclusion that’s in our, and our organisation’s, best interests, but more than two decades of research confirms that, in reality, most of us fall woefully short of our inflated self-perception.

When Does “Unconscious Bias” Become Unlawful Discrimination?

“Unconscious bias” becomes unlawful discrimination when it (a) is tied to a protected characteristic, such as race, color, national origin, age, sex, disability or religion, and (b) influences an employment decision.  Predictably, an employment decision is more susceptible to being tainted by “unconscious bias” when subjective criteria are involved.  Under such circumstances, a stereotype may unwittingly bias how the decision-maker processes and interprets information and how other people are judged.

In The Id, The Ego, and Equal Protection Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 324-25 (1987), Charles R. Lawrence provided an example of unconscious racial bias at work in a hiring decision:

Thus, an individual may select a white job applicant over an equally qualified black and honestly believe that this decision was based on observed intangibles unrelated to race. The employer perceives the white candidate as ‘more articulate,’ ‘more collegial,’ ‘more thoughtful,’ or ‘more charismatic.’ He is unaware of the learned stereotype that influenced his decision. Moreover, he has probably also learned an explicit lesson of which he is very much aware: Good, law-abiding people do not judge others on the basis of race. Even the most thorough investigation of conscious motive will not uncover the race-based stereotype that has influenced his decision.

In The Content of Our Categories: A Cognitive Bias Approach to Discrimination & Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1188-90 (1995), Linda Hamilton Krieger provided another example:

Krieger cites the example of a Salvadoran who was the only nonwhite employee at his workplace. Although he made mistakes, so did the other employees. However, his supervisor uniformly reprimanded him for his mistakes and later declined to promote him and ultimately terminated him while overlooking the white employees’ mistakes. His supervisor also ignored his achievements or attributed them to others, while commending white employees for similar achievements. While the supervisor may have intentionally discriminated against the Salvadoran, he might also have treated him poorly because he viewed him through the lens of an uncomplimentary stereotype, making him less likely to notice the Salvadoran’s achievements relative to those of the white employees and more likely to treat his mistakes harshly.

How Do Employers Combat “Unconscious Bias?”

The use of objective criteria in employment decisions is a partial answer to “unconscious bias”, but subjectivity cannot always be avoided. The ultimate answer is training.  In this regard, the goal of the training should be two-fold.

First, employees should not merely be told about “unconscious bias.”  Remember, many employees will believe their decision-making is unbiased.  Telling them otherwise may fall on deaf ears.

Instead, employees should be shown “unconscious bias.” Such a demonstration can be accomplished through employee testing. The results of testing can unsettling, but the first step toward combatting bias is to turn a hidden bias into a visible one. Once  preconceived beliefs have been dispelled, the employees will be more receptive to training.

Second, employees should be provided the necessary information for combatting “unconscious bias” in decision-making.  This information includes the fallacies behind certain stereotypes and the review of specific situations likely to arise in decision-making.  Once employees know how to fight back these biases, they will be better informed in mitigating the legal risks present in any employment decision.

Supreme Court Rejects Narrow Interpretation of FLSA Exemption

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

Federal jurisprudence under the Fair Labor Standards Act (“FLSA”), which requires employers to pay overtime compensation to covered employers, has historically mandated that exemptions to this requirement be narrowly construed against the employer.  A 5-4 opinion this week from the U.S. Supreme Court, however, may indicate a shift to a more employer-friendly treatment of FLSA exemptions.

The FLSA exempts from its overtime-pay requirement “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a non-manufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.”  The issue in Encino Motorcars, LLC v. Navarro was whether service advisors at a Mercedes-Benz dealership in Los Angeles qualified for this exemption.

The service advisors argued they did not fit within the exemption because they did not sell or service automobiles; instead, they sold repair services. In rejecting this argument, the majority stated: “A service advisor is obviously a ‘salesman.'”

Perhaps more significantly, the majority opinion cited and then rejected the historic axiom that “exemptions to the FLSA should be construed narrowly.”  The opinion elaborated: “Because the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to give [them] anything other than a fair (rather than a ‘narrow’) interpretation.”

To be sure, Encino Motorcars analyzed one of the lesser-used FLSA exemptions.  Considerably more employers rely upon the exemptions applicable to executive, administrative, professional, outside sales and computer employees. Still, if the mandate going forward is that these exemptions be give a fair (rather than a narrow) interpretation, close cases which may have been decided in favor of employees may now be decided in favor of employers.