Thursday, July 28, 2016

Diversity Pays Off

According to Inc’s online magazine, “diversity is a profit-generator.” In support of this assertion, studies by McKinsey and other research firms were cited. The result was that, “Diverse companies simply perform better than companies that are less diverse.”

A cite from the Chief Diversity & Inclusion Officer for the tech company SAP supported Inc’s conclusion. She was quoted as saying that, “Companies with the highest rate of racial diversity brought in nearly 15 times more sales revenue on average than those with the lowest levels.” Notwithstanding this apparent fact, the corporate world has remained mostly homogenous. Just four of the Fortune 500 CEOs are black, which amounts to less than 1%. Even Google, a more progressive company, has a workforce that is just 2% black.

The article explored why in the face of clear evidence about diversity, corporations are not making the necessary changes. It concluded that institutional racism was ingrained in the corporate culture and may be very difficult to overcome. Most of these companies have diversity programs that are not moving things forward. In fact, these same corporations seemed to be backsliding in the amount of diversity within their ranks. To make inroads toward remedying the situation, the writer at Inc. recommended racially blind recruiting, paying minorities more than whites, and compensating CEO’s based on financial improvements that are tied to diversity.

Wednesday, July 27, 2016

Job Descriptions Key Part of ADA Ruling

To be a truck driver for Domenico Transportation Co., a truck driver must: hold a Class A commercial driver’s license; have three years of recent and verifiable mountain driving; have no moving violations within a three-year period; and be able to drive year-round in the Colorado mountains.

Mark Kilcrease applied for the truck driver position. He disclosed that for the past several years he had not been able to work because he had cancer. Mr. Kilcrease’s cancer was currently under remission. His application was rejected because he did not have the three years of recent driving experience. His lack of recent experience was due to his cancer. Prior to being ill, Mr. Kilcrease did have the necessary driving experience. Mr. Kilcrease sued Domenico under the Americans with Disabilities Act (“ADA”).

The Tenth Circuit Court of Appeals upheld Domencio’s right not to hire Mr. Kilcrease. Mr. Kilcrease had to establish that he was qualified for the position in order to be protected by the ADA. However, he did not have the requisite experience laid out in the advertised job description. The court of appeals accepted that the elements of the company’s job description were essential functions of the position. Mr. Kilcrease was unable to provide evidence to refute the company’s position. Mr. Kilcrease’s inability to meet the necessary job criteria meant that he was not a “qualified” individual under the ADA. Therefore, Domenico was not protected by the ADA.

Tuesday, July 26, 2016

Keep Your Password To Yourself

The Ninth Circuit Court of Appeals has upheld the conviction of a former employee who used a friend’s password to access confidential information.

David Nosal used to work for Korn/Ferry, an executive search firm. After leaving his position, Mr. Nosal set up a competing business. He wanted access to Korn/Ferry’s database. He tried to gain that access in two ways. First, he tried his own user name and password to download the information before he left. Second, after Mr. Nosal left his job, his former assistant willingly used her own user name and password to download information from the database.

Mr. Nosal was convicted for violating the federal Computer Fraud and Abuse Act (“CFAA”), which prohibits “access[ing] a protected computer without authorization.” His use of the system prior to his leaving the company did not “exceed authorized access” as permitted and was thus lawful. The fact that company’s computer policy was violated by his act did not make the conduct illegal. However, Mr. Nosal’s access of the database through other employees, after his own use had been revoked, was “without authorization” and a violation of the act. The big question left: Is the sharing of passwords criminal conduct under the CFAA? The Ninth Circuit’s decision left unclear the line between criminal hacking and the innocent sharing of passwords.

Thursday, July 21, 2016

Google’s Land of Youth Being Challenged

Several media outlets have reported that the Equal Employment Opportunity Commission (“EEOC”) is investigating Google. The reason for the investigation: alleged age discrimination. A lawsuit filed in federal court revealed that Google was accused of not cooperating with the EEOC’s investigation. Google has apparently denied that allegation but does acknowledge that it is under investigation in the court documents.

Cheryl Fillekes is a plaintiff in the lawsuit. She was a systems engineer who interviewed with Google when she was 47 years of age. She claims that she interviewed for four different positions within the company over a seven-year period, and Google had reached out to her for some of those positions based on her qualifications. She joined another age discrimination lawsuit filed in April 2015 by Robert Heath. 60 year-old Mr. Heath was not hired although he had significant experience at other tech companies. Mr. Heath’s lawsuit cited a survey of Google employees showing that the company’s median employee age was 29 in 2013.

Experts in the field report that age discrimination is rampant in Silicon Valley, where 35 years of age may be considered old. The two individuals are seeking to have the case certified as a collective action so that other individuals may join.

The EEOC spokesperson stated that it is barred from confirming, denying or discussing ongoing investigations. Google also did not provide a comment for reporters. In court filings however, Google asserts that the two plaintiffs were not hired for reasons other than age.


Wednesday, July 20, 2016

One “Butt Grab” Equals One Million Dollar Lawsuit

Phil Romano, founder of Macaroni Grill and Fuddruckers, has been accused of sexually harassing an assistant manager at a restaurant that he owns in Dallas, Texas. The sexual harassment is based on one incident; an incident caught on tape.

According to the assistant manager, Ichel Cook, Mr. Romano “walks into the market, turns his hand like this, grabs me, laughs, takes a few more steps, stops, turns around and stares at me for at least five seconds.” He purportedly grabbed her rear end. The incident occurred during a manager’s meeting. When Ms. Cook realized who had grabbed her, she felt uncomfortable saying anything. However, later on that day she approached him. His response was that women are “too sensitive” and that he just thought of her as “one of the guys and didn’t think that this would upset” her. Ms. Cook has direct evidence of the incident via the videotape; something that few people alleging sexual harassment have.

Under Title VII, sexual harassment can be established for conduct that is frequent or severe enough to create a hostile or offensive work environment. One incident has previously been held to be sufficient. It is unknown whether the incident in this case will be enough but it is a good cautionary tale. Mr. Romano has denied the accusations.

Tuesday, July 19, 2016

ADA Did Not Protect Employee Who Posed Safety Risk


The Wisconsin Division of Motor Vehicles was sued by a former employee with a mental health condition. This employee had worked for the DMV for 15 years as a drive test examiner. It was known to the DMV that she had an anxiety disorder that required her to take breaks in the restroom when she anticipated that a panic attack was coming. In those instances, she was successfully able to calm herself down and return to work.

One day, this employee said that she needed a break. The supervisor next heard screaming. She found the employee on the floor of the public lobby with cut marks on her right wrist; kicking and rolling around on the floor while stating that she wanted to die. An ambulance was called, and she was taken to the hospital. Following the incident, she was placed on Family and Medical Leave. The DMV required that the employee be examined by an independent medical examiner to see if she was fit to come back to work. In the end, the DMV decided that the incident, coupled with the results of the exam, necessitated that she be fired. She filed suit.

The Seventh Circuit Court of Appeals upheld the DMV’s right to terminate her. In reaching its decision, the court of appeals praised the DMV for seeking a professional assessment of the situation and taking the time to reach a thoughtful decision. An employer was not required to ignore intolerable behavior, even if that behavior arose out of a disability. “[W]hen an employee engages in behavior that is unacceptable in the workplace…the fact that the behavior is precipitated by her mental illness does not present an issue under the ADA; the behavior itself disqualifies her from continued employment and justifies her discharge.”

Thursday, July 14, 2016

New EEOC Report On “Rebooting” Harassment Prevention

The U.S. Equal Employment Commission has issued a 130-page Task Force report on harassment in the workplace. The Task Force impaneled an outside group of experts to study the causes, effects, and prevention of harassment. Workplace harassment continues to be prevalent and hard to eradicate.

In addition to current statistics on harassment in the workplace, the report provides a toolkit that lays out steps to assist employers with compliance. It gives tips for “rebooting” sexual harassment prevention training. Emphasis must be placed on preventing harassment before it begins, with training being part of a “holistic, committed effort to combat harassment, focused on the specific culture and needs of a particular workplace.” Training provided through live interactive delivery was identified as the most impactful method. Any training should be tailored to specific workplaces and provide for different learning styles; it should clarify what conduct would not be considered harassment; it should educate employees on their rights and responsibilities if they experience or witness harassment; it should lay out the ways in which to report the unwelcome conduct, and it should identify the procedure that will happen once a formal complaint is made.

A three-pronged strategy was proposed to reduce harassment, which would start at the top with “leadership and commitment to a diverse, inclusive, and respectful workplace in which harassment is simply not acceptable”; making “policies, reporting procedures, investigations, and corrective actions… essential components” of the effort; and conducting effective compliance and prevention training. A list of “situational” risk factors is identified for employers to use to monitor their workplaces. The report may be found on the EEOC’s website.