Sexual Harassment - Game Over - January 2018

 
More recent business articles are found under Business Articles below~

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Our Nation's Heroes:  March 15, 2013: http://www.bizjournals.com/louisville/print-edition/2013/03/15/are-your-doors-open-to-our-nations.html  

Disrespect and Sexual Harassment: Jan. 13, 2013:  http://www.bizjournals.com/louisville/print-edition/2013/01/25/employers-should-create-policy-to.html  

Harassment by non-employees:  April 6, 2012: http://www.bizjournals.com/louisville/print-edition/2012/04/06/dont-ignore-harassment-by-non-employees.html  

Pick up the Darn (my title was "Damn") Phone and Dial:  November 11, 2011: http://www.bizjournals.com/louisville/print-edition/2011/11/11/pick-up-the-darn-phone-and-dial.html  

Obesity Discrimination:  Is it Illegal:  Jan. 21, 2011:  http://www.bizjournals.com/louisville/print-edition/2011/01/21/eeoc-acts-on-questions-about-obesity.html 

Interviewing from EEO perspective (contributor):  Sep. 14, 2009:  http://www.bizjournals.com/louisville/stories/2009/09/14/focus4.html  

Age Discrimination:  Apr 27, 2009:  http://www.bizjournals.com/louisville/stories/2009/04/27/editorial5.html  

Religion in the workplace:  Dec 15, 2008: http://www.bizjournals.com/louisville/stories/2008/12/15/editorial4.html  

Can't hide from Uncle Sam:  Oct 20, 2008:  http://www.bizjournals.com/louisville/stories/2008/10/20/editorial6.html  

Pregnancy:  May 12, 2008:  http://www.bizjournals.com/louisville/stories/2008/05/12/editorial4.html  

Equal Pay and Ledbetter:  Jul 30, 2007:  http://www.bizjournals.com/louisville/stories/2007/07/30/editorial1.html  

Sexual Harassment/Nowak:  Apr 23, 2007: http://www.bizjournals.com/louisville/stories/2007/04/23/editorial2.html  

Diversity to River City:  Jul 24, 2006: http://www.bizjournals.com/louisville/stories/2006/07/24/editorial1.html  

Reasonably Know about Harassment:  Jan 2, 2006: http://www.bizjournals.com/louisville/stories/2006/01/02/editorial2.html  

Glass Ceiling:  Jun 6, 2005: http://www.bizjournals.com/louisville/stories/2005/06/06/editorial2.html  

Learn Mistakes/EEOC:  Feb 28, 2005: http://www.bizjournals.com/louisville/stories/2005/02/28/editorial2.html  

​Business Source:  September - October 2016

https://www.yumpu.com/en/document/fullscreen/55920588/southern-indiana-business-source-sept-oct-2016  (go to pages 9-10)

DOES SEXUAL HARASSMENT TRAINING REALLY MAKE A DIFFERENCE? 

By Carol Dawson  (please see link)

Business Source:  July - August 2016

Can Extremely Small Business get by with Discrimination?
By Carol Dawson, CCDP/AP, EEO GUIDANCE, Inc.

While working for the Department of Labor/Office of Federal Contract Compliance Programs (OFCCP), I often received calls from employees who believed they were being discriminated against by their small employers.  A call may have gone like this:

Caller (from Kentucky):  My boss just fired me and I think it is sex discrimination because I am a woman. 

Me:  Would you provide some information about your employer? 

Caller:  Sure, what do you need to know?  I can tell you that it is a small machine shop. 

Me:  How many employees worked for the company, including part time or temporary at the time of your termination? 

Caller:  They only have four employees now, but I’m sure they will replace me.  Why? 

Me:  I am so sorry, the OFCCP does not take individual complaints of sexual discrimination and the Equal Employment Opportunity Commission (EEOC) cannot accept sex discrimination complaints against employers with less than 15 employees.  There are Kentucky civil rights laws; however, they exclude employers with less than eight employees for sex discrimination complaints.  Just in case you live in Indiana, their exemption would be less than six employees. 

Caller:  You have got to be kidding!  This stinks, big time!  <foot stomping heard in the background>  Why are smaller employers allowed to discriminate? 

Me:  Federal, and often the state, laws/regulations consider the very small businesses to be “Mom and Pop” establishments. They are typically family owned and often hire only family and friends to run the business.  Also, it seems the government likely took into consideration that very small businesses may not have comparable revenues as large corporations, to work with in defending claims.  

Caller:  So not fair.  <sigh>  Are you saying that my employer can get by with any form of discrimination because it is a smaller business? 

Me:  Yes, at least some forms of discrimination.   We have to take a look at each basis of discrimination and understand the employee threshold in order to know whether a very small employer would be exempt. 

Caller:  What do you mean?   

Me:  Title VII of the Civil Rights Act of 1964, as amended (Title VII), is a federal law enforced by the EEOC that protects individuals against employment discrimination.  If any employer has less than 15 employees, they are not covered under the Act.  Exclusions are age discrimination, where the employee headcount to be exempt is less than 20 and the Equal Pay Act, which makes it illegal to pay different wages to men and women if they perform substantially equal work applies to any employer with more than one employee.   The EEOC also enforces the Americans with Disabilities Act (along with the Amendment), and the headcount to be exempted again is less than 15. 

Executive Order (EO) 11246, enforced by OFCCP, prohibits federal contractors/subcontractors from engaging in employment discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. Not sure why, but age was left out of the EO.  While OFCCP can investigate class action race and sex/gender complaints, they refer individual complaints to the EEOC or other local civil rights agencies, unless the discrimination is found during an audit.  They also enforce the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), which only requires that the employer have $25K in federal contracts/subcontracts, and the Rehabilitation Act, which requires the employer to have $10K in federal contracts/subcontractors for compliance. 

Then there is the often forgotten Civil Rights Act of 1866, 42 U.S.C. 1981. Section 1981, with no employee limit, but it was written to primarily protect on the basis of race/ethnicity. 

Caller:  My head hurts. 

Me:  Sorry.  I realize it can be complicated to understand all the various thresholds; however, your take-away from this call should be that no employer is completely immune from employment discrimination related liability.  Small Mom and Pop businesses do get a considerable break; nonetheless, most do the right thing by conducting themselves according to the laws regardless of the exemptions.  I’m sorry that is possibly not true for your previous employer.    

Caller:  And I pay my tax dollars for this?!

Me:  <sigh> Yes.

Carol Dawson, formerly the Area Director for the US Dept. of Labor/OFCCP, is president of EEO GUIDANCE, Inc., a national EEO/AA/diversity training and consulting business in Jeffersonville. Send comments to cdawson@eeoguidance.com

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It’s Time to Address the Problem with ‘Girls’

Published Business First – January 2014
By Carol Dawson

Instead of abstract thoughts and dreams, musings in my head are formed into articles, columns and books, and sometimes these words make it to the printed page.  This article has been floating about in those dreams for years and since they appear to have set up camp long term, I am forcing their eviction today. 

While conducting a federal affirmative action audit of an underwear manufacturing company several years ago, the Plant Manager made this comment, “Over here we have our girl jobs and in that area over there are our jobs for the men.”  He was pointing to the sewing operators when referencing the “girl jobs,” and the higher paying jobs were reserved for the men. 

Stunned, the Corporate Human Resources Manager responded that the Plant Manager was joking; however, it was obviously not a joke since there were no men in the sewing department and no women found elsewhere in the company.  There was the immediate and obvious possibility of discrimination in pay and job assignments, but the reference to the “girl” jobs was also a concern.  He didn’t refer to the men as boys, so why refer to the women as girls. 

There are women (predominately Baby Boomers or older) who are just fine with being referred to as a “girl” in or out of the workplace and they have that right.   I should add that using what some consider endearing terms such as sweetie, honey, darling, girl, etc., often does not bother me - when used in non-work, non-professional settings. And I often use the term “girls” when referencing female friends. 

Conversely, any time I am working, whether as an employee, contractor, or volunteer; I find references to the “endearing” terms, including being called a “girl,” to be patronizing. 

The dictionary definition of a girl is, “a human female from birth until the age at which she is considered an adult.”  Using unprofessional terms of endearment, including the term “girl,” to reference a woman in the workplace could diminish her role as a professional and ultimately be placing her on a different and lower playing field than her male colleagues. 

Although I do not think most men (and some women) in the workplace intentionally refer to their female co-workers or employees as being “girls” as a destructive or demeaning tool, that doesn’t make the term any less offensive.  Intention is not the point.  The point is to ensure a level playing ground for both men and women in the workplace.

If you are in this situation and find a co-worker or manager’s terminology to be offensive and demeaning, talk to them about it.  If you are afraid of confronting that person, show them this article.  It is vital to let your superiors and peers know when a term is offensive; otherwise, it will continue to roll around in your gray matter (or dreams) until it becomes a point of resentment and frustration.  And gentlemen, if you hear the term being used in the workplace, be a change agent and suggest a change in terminology. 

Forget about responding to this article with, “I just can’t say anything to anyone these days because it might be politically incorrect.”  How difficult is it to change your reference to another person in the workplace?  Also, refrain from replying, “You are so easily offended,” as this is a common response when one is attempting to diminish a person’s voice.  

Oh yes…the manufacturing plant with the “girl” jobs no longer exists, although it was not because of the audit results, which did not end well either. 

Now, on to other dreams…

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Jan 25, 2013, 6:00am EST Updated: Jan 28, 2013 - Business First, Louisville, Kentucky

Success In The Workplace: Employers should create policy to address disrespectful behavior
Carol Dawson

This is a true story and names were omitted to protect the guilty party who might otherwise choose to litigate.

A top-level manager of a local company enjoyed coming into work and making various negative statements toward and against women, such as, “A woman’s place is in the home, caring for her family — not in the workplace,” and “Women have no place here unless they are cleaning the floors and bathrooms.” At least one or two negative comments were directed at female employees each day, and the remarks clearly were unwelcome.

Although the women feared retaliation, they eventually decided to enact change. And in an effort to stop the negative comments, they filed an Equal Employment Opportunity complaint. The EEO basis for this class-action complaint was sexual harassment. Sexual harassment, part of Title VII of the Civil Rights Act of 1964, is a form of sex discrimination.

Charges don’t always mean illegal activity has occurred

Despite what many believe, a sex-based harassment charge of discrimination does not have to involve illegal activity of a sexual nature, e.g., comments about anatomy, requests for sexual favors, or other sexually explicit verbal or physical behavior.

While most cases of sex-based harassment include some form of lewd or vulgar conduct or conduct of a sexual nature, harassment based upon sex can exclusively include offensive remarks about a person’s sex/gender, if the behavior meets other definition standards.

Both harasser(s) and victim(s) can be either a man or a woman and they also can be the same sex. The charging federal agency tasked with enforcement of sex-based harassment is the Equal Employment Opportunity Commission. The EEOC has made it clear that the law was not meant to make a one-time negative comment about another gender illegal.

The EEOC Web site explains further, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”

Differences in type of disrespect

Let’s change the scenario slightly and the manager now makes an occasional statement such as, “You people get on my last nerve. If I didn’t need you to get this production work done, I would never have hired the first lazy one of you … you are all dirty bums.”

Since there were no comments or behaviors of a vulgar or sexual nature and both sexes were equally debased, the statements likely would not be considered illegal sex-based harassment. The employees who work for this manager are dealing with a demeaning, rude, equal opportunity jerk of a boss.

Although there is no justification for generally rude or disrespectful conduct in the workplace, the EEO laws were not written to protect workers from this behavior. Any form of harassment in the workplace should never be tolerated and should be dealt with in a serious manner by employers.

However, when specifically dealing with sex-based harassment, the courts expect swift action to be taken to investigate and resolve the issue. It all appears rather simple. However, there is nothing simple about interactions between employees as it relates to gender or sex. Curious to know how the class-action sex-based harassment charge turned out? The women never made it to court as the employer settled by paying up and terminating the manager.

Employers, don’t wait until it is too late. Create a detailed EEO policy to address disrespectful sex-based behavior in the workplace, whether the dirt is tossed about consistently or occasionally and whether it is directed to humiliate one gender or both. Teach employees and managers to keep it clean and save your business considerable resources in cleanup costs.


Carol A. Dawson is president of EEO Guidance Inc., a national EEO, AA and diversity/inclusion training and consulting company based in Jeffersonville. She can be reached at www.eeoguidance.com.

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ARE YOUR DOORS OPEN TO OUR NATION’S HEROES?

February 2013 - Published by Business First - Louisville
By Carol Dawson

My brothers and father were able to fully retire after a career in the Army and obtaining a job after their retirement was not as critical as it is for those in the military who serve only a few years and then are honorably discharged into civilian life.

Life in the military is vastly different than life as a civilian and the transition is rarely a simple one. We have military veterans in large numbers coming home from Iraq and Afghanistan and they are returning to a county with a bleak economy. In turn, most are finding the job hunting venture to be grim.

The Bureau of Labor Statistics reveals all veterans (not just those currently returning from war) have an unemployment rate slightly less than average (6.9%). However, if those statistics are broken down to isolate the younger veterans, the unemployment rate is considerably higher (9.7% in September 2012). The unemployment problem can be even more of an issue for National Guard members who may be coping with repeated deployments.

Our country is expected to have more than one million military men and women returning from service and looking to enter the workforce by 2016. According to a report submitted by the Department of Labor and Bureau of Labor Statistics in March 2011, there were 23,647 veterans unemployed in Indiana and 16,950 unemployed in Kentucky.

The Federal government and many local states are offering tax cuts and benefits to employers who are hiring our veterans. For more information about employing veterans and the incentive programs, a few organizations and sites that can provide guidance are:

· US Chamber of Commerce: Hiring our Heroes: http://www.uschamber.com/hiringourheroes

· VETJOBS: http://vetjobs.com
Telephone: 1-877-VetJobs (1.877.838.5627)

· US Dept. of Labor: http://www.dol.gov/vets

· Employer Support of the Guard and Reserves:  http://www.esgr.mil

· U.S. Department of Veteran Affairs:  http://www.va.gov

Many businesses and organizations have federal contracts and subcontracts that require affirmative action to employ and promote qualified veterans. The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), enforced by the Department of Labor/Office of Federal Contract Compliance Programs (OFCCP), requires covered federal government contractors/subcontractors to take affirmative action to employ and promote specified categories of veterans protected by the Act and prohibits discrimination. In addition, VEVRAA requires contractors/subcontractors to list employment openings with the appropriate state employment service system and that covered veterans receive priority in referral to such openings.

From institutions of higher education to construction companies, from local school systems to hospitals – what are you doing to ensure our veterans are finding employment? Consider creating an employment policy within your business or organization that includes affirmatively seeking qualified veterans for open positions.

Also, keep this in mind, while military and civilian life may be different; the skills and education our veterans gain through military service are easily transferrable to most any business. And if this fact is not enough incentive, in November 2011, the federal government created the Veterans Opportunity to Work to Hire Heroes Act. This Act allows considerable tax credits for hiring qualified veterans.

While standing along the parade route, waving the American flag and cheering on our men and women into battle, begin thinking about their future and how you or your employer can best welcome them home. Saying thank you is a nice start; however, it just that – a start. We must give our veterans the best opportunity to find gainful employment and quickly become productive members in civilian life. America – we can do this.

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INAPPROPRIATE BEHAVIOR WITH THE SEXES
By Carol Dawson

Published in Business First – January 2013

This is a true story and names are omitted to protect the guilty party, because those guilty parties have a tendency to litigate such things.

A top level manager of a local company enjoys coming into work and making various negative statements toward and against women, such as, “A woman’s place is in the home, caring for her family; not in the workplace,” and “Women have no place here unless they are cleaning the floors and bathrooms.” At least one or two negative comments are directed at female employees each day and the remarks are clearly unwelcome.

Although the women fear retaliation, they eventually decide to enact change and in an effort to stop the negative comments, they file an Equal Employment Opportunity (EEO) complaint. The EEO basis for this class action complaint was sexual harassment. Sexual harassment, part of Title VII of the Civil Rights Act of 1964, is a form of sex discrimination.

Despite what many believe, a sex-based harassment charge of discrimination does not have to involve illegal activity of a sexual nature, e.g., comments about anatomy, requests for sexual favors, or other sexually explicit verbal or physical behavior. While most cases of sex-based harassment include some form of lewd or vulgar conduct or conduct of a sexual nature, harassment based upon sex can exclusively include offensive remarks about a person’s sex/gender, if the behavior meets other definition standards. Both harasser(s) and victim(s) can be either a man or a woman and they can also be the same sex.

The charging federal agency tasked with enforcement of sex-based harassment is the Equal Employment Opportunity Commission (EEOC). The EEOC has made it clear that the law was not meant to make a one-time negative comment about another gender illegal. The EEOC website explains further, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”

Let’s change the scenario slightly and the manager now makes an occasional statement to all employees, such as, “You people get on my last nerve; if I didn’t need you to get this production work done, I would never have hired the first lazy one of you…you are all dirty bums.”

Since there were no comments or behaviors of a vulgar or sexual nature and both sexes were equally debased, the statements would likely not be considered illegal sex-based harassment. The employees who work for this manager are dealing with a demeaning, rude, equal opportunity jerk of a boss. Although there is no justification for generally rude or disrespectful conduct in the workplace, the EEO laws were not written to protect workers from this behavior.

Any form of harassment in the workplace should never be tolerated and should be dealt with in a serious manner by employers. However, when specifically dealing with sex-based harassment, the courts expect swift action to be taken to investigate and resolve the issue(s).

It all appears rather simple; however, there is nothing simple about interactions between employees as it relates to gender or sex. Curious to know how the class action sex based harassment charge turned out? The women never made it to court, as the employer settled by paying-up and terminating the manager.

Employers should start the new year out right by checking policies in relation to sexual harassment. Be sure your business, institution, or agency has a detailed EEO policy to address disrespectful sex-based behavior in the workplace, whether the dirt is tossed about consistently or occasionally and whether it is directed to humiliate one gender or both. Teach employees and managers to ‘keep it clean’ and save your business considerable resources in damage control and clean-up costs.

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Can Employers Discriminate Based on Obesity?
By Carol Dawson, CCDP/AP, EEO GUIDANCE, Inc.

Published in Business First – Louisville – July 2012

As the business world ushers in 2011, many employers are offering incentives to their employees to get fit. According to the Centers for Disease Control and Prevention (CDC), obesity statistics reveal Kentucky is not faring well in the battle for healthy citizens.

According to the CDC, thirty-three states have prevalence equal to or greater than 25%; nine of these states (Alabama, Arkansas, Kentucky (31.5%), Louisiana, Mississippi, Missouri, Oklahoma, Tennessee, and West Virginia) had a prevalence of obesity equal to or greater than 30%. Indiana citizens, stop snickering…you are right behind Kentucky with an obesity rate of 29.5%.

Obesity is defined as a body mass index (BMI) of 30 or greater. BMI is calculated from a person's height and weight and provides a reasonable indicator of body fatness and weight categories that often lead to health problems. Obesity is a major risk factor for cardiovascular disease, certain types of cancer, and type 2 diabetes.

During Americans with Disabilities Act Amendment Act (ADAAA) training workshops, a classic disability related question is, “Does the law protect individuals who are overweight or obese from being discriminated against by their employers?” Until now, the somewhat convoluted answer went something like this: While obesity or being overweight has not specifically been determined to constitute a disability, resulting medical limitations from the obesity could place the employee in the category of being covered by the ADA as a person with a disability.

Late in 2010, the EEOC clarified the proper response to the obesity question by taking an employer, Resources for Human Development, Inc. (RHD), to the courthouse for a little discussion relating to their firing of an employee because of her obesity. Former RHD employee, Lisa Harrison, claimed RHD fired her because of her disability (severe obesity).

The ADA defines "disability" as a physical or mental impairment that substantially limits a major life activity (such as walking, breathing, learning, or working), a record of such an impairment, or being regarded as having such an impairment. "Substantially limits" means that an impairment prevents a person from performing a major life activity or significantly restricts the person's ability to perform the activity as compared to the ability of the average person in the general population.

The EEOC has stated that morbid obesity is an impairment, but this does not automatically mean it is a disability. Whether a person with morbid obesity has a disability depends on whether that particular person is substantially limited in a major life activity, has a history of being substantially limited, or is regarded as being substantially limited.

The EEOC claims, “…basic obesity, without any other underlying condition, sufficiently impacts the life activities of bending, walking, digestion, cell growth, etc., to qualify as a disability or perceived disability.”

The EEOC revealed RHD perceived Harrison as being substantially limited in a number of major life activities, including walking, because of her obesity. It is important to note that Harrison, at the time of the termination, was able to perform all of the essential functions of her position.

Employers should take careful note of this case. For years, overweight and obese individuals have suffered harassment and discrimination in the workplace. The EEOC is on a mission to reverse this trend through the enforcement of the ADAAA.

FINAL NOTE: You have heard it before, but let’s start out 2011 right by making all employment decisions strictly on non-discriminatory factors such as knowledge, skills, and abilities and avoid meeting the EEOC or other Civil Right agencies in the courtroom.

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Ignoring Harassment by Non-employees Could Jeopardize Your Next Promotion
Business First Louisville – Published February 2012

By Carol Dawson

A bank customer is standing in line waiting for a teller. He is scruffy and his clothes are soiled. Others in line have pulled away to allow the Pigpen cloud of dust to settle somewhere other than their own clothing. Finally, the young man is the next in line and the teller asks him to step up. The man loudly proclaims he has no intention of allowing an illegal immigrant to handle his financial business. He then adds, “I will wait for one of the American tellers.” The bank manager is walking by and hearing his comments, quickly asks the customer to step into her office and explains that his actions were disrespectful and possibly discriminatory.

The young man clarifies his attitude regarding immigrants in the US. The manager stops his excuses by handing him a copy of the bank’s EEO policy statement. She advises, “We will not tolerate inappropriate or illegal behavior toward any employee of this bank; all tellers are legally in the country and equally qualified to do their jobs.” The manager ascertains the customer’s intended business at the bank and performs the transaction herself. Before the man leaves, she reminds him to act respectfully if he is to continue doing business with the bank and escorts him to the door. She then apologizes to the tellers for the disrespectful behavior and explains how the issue was handled. The manager contacts HR to find out if further action is necessary. She receives a promotion.

Fast forward a few months. At the same bank, a well-dressed elderly woman who everyone at the bank knows only deals with the male tellers comes in to check her account. She has the bank’s largest account and typically comes in when there is no crowd; however, this day there is a long line and a female teller is first open to assist her. The woman states, “Sorry, I would rather wait until one of the guys are available…they are just better with finances…you understand, don’t you, honey?” She smiles politely and waits for the male teller. The bank manager does nothing and walks back to her office. Later, she finds out her promotion was temporary.

While employers typically know they are liable for EEO related harassment by their own employees, many are unaware of their liability by non-employees. Employers are being held liable in the courts for EEO related harassment by individuals outside of their organization, such as customers, subcontractors, or clients.

Harassment (sexual) by non-employees is specifically addressed in the Code of Federal Regulations (CFR) 29 § 1604.11(e), “an employer may be responsible for sexual harassment by nonemployees, such as customers or vendors, if two conditions are satisfied. First, you must either have actual knowledge of the harassment or reasonably should have known about the problem. Second, you must have failed to take immediate and appropriate corrective action.”

Title VII of the Civil Rights Act of 1964 provides employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. That includes those customers or clients who are crucial to your business. Actually it is often the prominent or most influential customers/clients who have the impudence to dip their toes into the illegal waters and even diving in if there are no foreseen consequences.

While this can be a difficult issue, especially when the non-employee is vital to your business income; keep in mind how much more difficult it may be to explain your actions (or non-actions) in court and to the media.

Tips to help avoid harassment:

• Ensure all employees are fully aware of company EEO harassment/discrimination policies.
  
• Employee orientation and follow up EEO training should include necessary actions should employees witness or experience EEO harassment by co-workers or non-employees.
  
• Post the EEO (anti-harassment) policy throughout the business, including areas where non-employees visit.
  
• Ensure managers are aware of actions they should take when made aware of EEO related harassment (by anyone).
  
• Teach employees to stop inappropriate behavior or report it at the first sign.
  
• If an investigation is needed, have procedures in place to do so immediately and when necessary, take prompt action.
  

Now get back out there and enforce those EEO policies consistently…and keep that promotion.

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PICK UP THE DAMN PHONE!
Business First Louisville – Published October 2012
By Carol Dawson

As a person with a birthday smack dab in the middle of the Baby Boomer group, I realize those under 40 consider me somewhat of a relic. Okay, using the term, “smack dab” may justify their beliefs.

A friend’s daughter recently advised, “You really need to get rid of your land line…nobody has them anymore,” and last week my personal trainer said, “One day soon there will be no computers.” Before I could disagree, he quickly added, “Virtually all work and correspondence will be handled through a cell phone or something similar that you will hold in your hand.”

While sweating on the treadmill, I confidently argued that most cell phones were too small for many business functions. Trying desperately to hold on to the thought that the recently purchased PC on my desk was not already a dinosaur, I defiantly added, “How in the world would you create or even read a spreadsheet on a tiny cell phone screen?!” He responded, “They are creating cell phones now that can flip out and convert to a larger screen.”

I could see it was now time to quicken the pace and feign being too winded to continue the conversation.” It worked.

I realize we have quickly moved into the age of instant information via the web, texts, and Skypes that transport the current status of our relationships, deep philosophical discussions, and even business transactions. However, I am deeply disturbed (don’t stop reading here) about the current trend that emails have taken in the business world. The problem does not simply live within the younger generation…the Baby Boomers have fallen into this relaxed form of communication.

Several months ago I volunteered to provide professional training for a local agency. The details were all synchronized with ease via email. The organization’s coordinator and I even joked about how undemanding it was to coordinate the entire speaking engagement through emails.

For certification purposes, the PowerPoint slides were requested a month early, via email. I agreed (again via email) to complete the presentation in advance and late that same evening, the slides were sent electronically and I looked forward to the session.


One week prior to the session an email came across my PC screen simply stating the training session had been cancelled. Surprised and curious as to the reason, I contacted the coordinator…on a telephone. What I heard next led me to drop everything and write this article.

I was told by the coordinator that she had not heard from me after her last email and therefore decided I had no interest in giving the training session. Did anyone try to call? Did anyone leave a message? Did anyone send an email questioning an update? Were the PowerPoint slides received?

Apparently the organization’s email system did not accept the larger PowerPoint file.

The response to non-receipt of the slides was to wait a couple of weeks and then cancel the session with no further communication. Nobody bothered to pick up a phone, since reliance on the email system had become absolute.

I admit to leaning heavily on emails myself – they are a quick way to relay information and agreements are automatically and easily confirmed in writing. Change is inevitable and we must constantly evolve when it comes to communication styles and maintaining a respectable level of technological literacy.

However, many in the business world have forgotten that emails and texts do not always reach the intended party and may not always accurately display our intent. Problems strictly communicating via emails and texts should not be overlooked. Computer systems may be inoperative; the internet spirits may decide to repress correspondence, or possibly the intended recipient may simply not be online.

The business world has become far too dependent upon dealing exclusively through these electronic means of communication. If emails are not confirmed or if I do not respond…PICK UP THE DARN PHONE (any phone) AND DIAL! You may be losing clients and opportunities.

P.S. For those who don’t know, this rather antiquated acronym stands for postscript and it means, “an addition to the end of something such as a book, story, or a document.” My son just advised I should have used the term “oovoo” versus “Skype,” if I want to be up-to-date. OMG…really?

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EMPLOYERS CANNOT HIDE FROM UNCLE SAM FOREVER
Business First Louisville – Published December 2011
By Carol Dawson

This article has been on my to-do list of fun activities for several months and today I mark it off. My preference is not to write about dry material such as the definition of a federal contractor. However, the question continues to haunt many employers throughout the United States and since it will soon be Halloween, the timing seems appropriate to convey this information many consider too frightening to discuss.

There are thousands of federal contractors and subcontractors across the U.S. and many are playing the ostrich game of burying their heads in the sand. Their thinking appears to be: If I can’t see my obligations as a federal contractor or sub-contractor, then the federal government, or more specifically, the Office of Federal Contract Compliance Programs (OFCCP) cannot see me. Until now, this has been somewhat of an accurate thought process.

In the past, if an employer did not check the box on the EEO-1 form (Section C/Question 3), indicating receipt of federal contracts or sub-contracts, they were typically under Uncle Sam’s radar – unless there was an Equal Employment Opportunity (EEO) compliant filed.

Currently, an EEO complaint is just one method the OFCCP utilizes to find those contractors who do not report or realize 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. I know, scary, isn’t it?

In a nutshell, a federal prime contractor is defined as, any employer having a government contract or ay federally-assisted construction contract, or any employer serving as a depository of federal government funds. Likewise, a sub-contractor means any employer having a contract with a prime contractor or another sub-contractor for supplies or services required for the performance of a government contract or federally assisted construction contract.

If your company falls into either of these descriptions, there are Affirmative Action (AA) regulations that more than likely pertain to you, predominately Executive Order 11246. These are not regulations that an employer should take lightly.

If you are still hiding, let me explain further with this example: If an employer manufactures the bags that are used to hold pet food, that are sold to large pet food manufacturing companies, they are likely a federal sub-contractor…if those bags of pet food are sold in the Army and Air Force Exchange Service (AAFES) Commissary.


If your employer is a bank, you very well are a federal contractor, if the bank serves as a depository of Federal funds, or is an issuing and paying agent for U.S. savings bonds and notes in any amount.

If your employer is a large manufacturing or construction company; you very well may be a federal prime of sub-contractor. The OFCCP has an interactive link on their web site which assists employers in their quest to determine status with the government (plus it is an awesome cure for the 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. Remember the term “systemic discrimination” because it is hot-hot-hot with both OFCCP and the Equal Employment Opportunity Commission (EEOC).

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 getting some 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 your are required to spillyour guts to the feds.

Compliance truly isn’t difficult once you get started and the treat will be the ultimate benefits for your business and workforce. Really, don’t be so afraid.

------------------------------

Religion and the Workplace: Walking on Eggshells
Business First Louisville – Published February 2011
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.

-------------------------------------------------------

WHAT YOUR COMPANY OR AGENCY SHOULD DO TO AVOID THE DISGRCE OF A SEXUAL HARASSMENT SCANDAL
Business First Louisville – Published January 2011
By Carol A. Dawson

If you did not hear or read about the NASA sexual harassment incident, you very likely were squirreled-away for the winter. In a nutshell, Lisa Nowak, an astronaut and accomplished employee for NASA for more than 10 years, was arrested for alleged kidnapping and battery of a woman she considered a rival for the affections of a co-worker and fellow astronaut.

Since this incident, Equal Employment Opportunity (EEO) trainers and consultants have seen a rise in calls and requests for EEO and Sexual Harassment training. Many believe if this can happen in a federal agency as prestigious as NASA, it can happen anywhere…and it does.

Do you have sexual harassment in your workforce? If you have more than 14 employees, there is a high probability the answer is yes. While no company can be guaranteed a reprieve from sexual harassment in the workplace, there are some things you can do to ensure your company or agency is acting in a proactive manner against this illegal behavior.

Sexual tension and resulting inappropriate behaviors are more common than many managers realize. Managers are often aware of the behavior, but consider it commonplace and tend to overlook it until a complaint is filed.

Since the Hill/Thomas hearings, federal agencies are required to have annual Sexual Harassment training for all employees. Initially the training was performed by trainers or facilitators; however, through the years, these sessions have become much too routine.

Most agencies now utilize computer generated training with little or no personal interaction. While this form of training certainly can fill training requirements, it is rarely an effective tool. All too often, employees and supervisors simply go through the motions to get the certificate and mark the task off their “to do” list.

Three states now require annual Sexual and EEO Harassment training: Maine, Connecticut, and California and the Equal Employment Opportunity Commission (EEOC) highly recommend annual EEO training.

What are you to do to avoid the liability of sexual harassment charges? Glad you asked…here is my list of recommendations to comply with EEO harassment and discrimination laws related to sex/gender.

Create and annually update a company/agency policy, specifically addressing sexual/gender harassment and discrimination.
Ensure all employees and managers/supervisors have a copy of the policy on the first day of employment and have someone from Human Resources personally review this policy with the new employee(s).

Have employee’s sign the policy and maintain it in their personnel file.

Consider a policy that supervisors and/or managers cannot date subordinate employees. Companies and agencies are extremely vulnerable to EEO charges of sexual discrimination when managers are allowed to have sexual relationships with employees.

As recommended by the EEOC, provide annual EEO harassment training for the entire workforce.

Separate supervisory and management training sessions from employee workshops. Management training should specifically address possible consequences from inappropriate sexual relationships and the manager’s own personal liability to ensure the workplace is harassment free.

Consider having co-workers in consenting relationships sign a “love contract.” Don’t laugh…they exist and are becoming extremely popular. The love contract confirms that a co-worker relationship is consensual, states the ground rules for office behavior, and reiterates EEO and sexual harassment policies. The contract can protect the employees and the company. Okay, if you still feel the need, go ahead and laugh.
Ensure management fully understands they are liable to take action against sexual harassment if they know (or even should have reasonably known) of the actions. When office gossip regarding sexual or gender issues is heard, it shouldn’t be ignored.

Remember that sexual harassment charges can be made by either gender. Currently 15.4% of all sexual harassment charges with the EEOC are filed by males. Be consistent, no matter the gender.

Educate managers, supervisors, and employees and ensure they are aware of the consequences to inappropriate and illegal behavior. This will go a long way in shooing away the feds when they come knocking on your door.

----------------------------------

Age Discrimination and the Boomers  Published April/May 2009 - Business First
By Carol Dawson

Baby Boomers are currently the age when most of our parents slowed down, took retirement, and started fishing.  The Boomers are not quite following suit.  As we chart out our future business or life plans, few are including the line item “fading into the sunset.”  For those Boomers who had delusions of retiring to a lakefront cottage, the economy swept in with a Louisville Slugger and smashed those thoughts right out of their idealistic heads.  Most Baby Boomers expect to be in the workforce a lot longer than any previous generation…and there are expectations they will be appreciated for their years of knowledge, skills, and abilities. 

That expectation may be as unrealistic as the Florida swamp land deed I have in my file cabinet. 

U.S. employers are seeing an unprecedented number of Equal Employment Opportunity (EEO) complaints being filed and there appears to be no end in sight.  We can speculate all day (and night) about why this is happening; however, the truth most likely lies with multiple explanations.  Blame our economy…blame the onslaught of internet information (employees are simply savvier about the laws and regulations)…blame the current court decisions that have predominantly provided muscle to the EEO laws.

One area with significantly increased complaint filing activity is discrimination on the basis of age.  Several years ago Dan Rather used the phase, “The Graying of America,” during a news program on aging.  Even though I have no immediate plans to go gray, I knew this was a reference to my generation and my response was, “So what?”  I plan to keep working until the brain cells cease to spark and many of my Boomer friends feel the same way about employment.  Our generation has been multitasking since we entered the workforce and slowing down is hardly an option most are choosing. 

Boomers expect employers to appreciate our knowledge, experience, drive, and abilities and to value our contributions until we mutually agree the spark is gone.  For the most part, the law expects no less. 

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age.  The law applies to employers with 20 or more employees, including state and local governments, employment agencies, labor organizations (although that has been recently challenged), and the federal government.  It is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. 

Retaliation against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA is also illegal.

Both ADEA and retaliation claims have been steadily climbing since 2005; however, age discrimination complaints have intensified over the past two years.   

With the protection of the ADEA behind the Boomers, could some employers actually be continuing the discriminatory quest for “young blood,” aimed to infuse their businesses with fresh, new ideas?  You bet-cha,’ and they are on a seek and find expedition that has the ADEA charges filed with the EEOC jumping from 19,103 complaints filed in 2007 to 24,582 filed in 2008.  Conciliation efforts from findings of reasonable cause (findings of guilt) and settlements resulted in monetary benefits totaling $82.4 million for the complainants who filed in 2008. 

Final note:  ADEA applies also to government agencies.  The federal agencies who may be ignoring the abilities of their employees who are over 40 – listen carefully and you will hear the Baby Boomers chant, “We are mad as …” well, you get the drift.  The Boomers are informed and they are not afraid to unite into a class to stand up and fight for respect and their rights in the workplace.

When considering who best should fill a position, look not for the lines on the individual’s face, but instead at what truly matters for any successful business – look for the knowledge, expertise, and ability to best perform the details the job.      

Carol A. Dawson is the President of EEO GUIDANCE, Inc., a national EEO/AA/Diversity training and consulting business.  A former Area Director with the U.S. Department of Labor/OFCCP, Carol spent her federal career enforcing EEO and Affirmative Action laws.  She can be reached via e-mail at Cdawson@eeoguidance.com or website: www.eeoguidance.com.   

------------------------------------------

Incorporating EEO Effectively into Management Performance Evaluations
By Carol Dawson

The Dept. of Labor/Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) advocate inclusion of EEO obligations into all management performance evaluations/appraisals. 

Since we tend to measure what we treasure, it is essential that EEO obligations be considered a critical part of the management evaluation process. 

However, when audits are conducted and discrimination complaints are investigated, it has been difficult to gage the effectiveness of EEO related performance objectives.   In the past, appraisals have typically been addressed in general, non-specific terms that have had little to do with change or progress to ensure there is equality and inclusion in the workforce.  As a previous OFCCP Compliance Officer, I consistently found the EEO specific criteria used by most employers to be random and utterly ineffective.

A few months ago, I read an article written on this subject by Robbie Kunreuther, Director of Government Personnel Services.  Kunreuther understands performance appraisals.  He also knows most appraisal systems do not have an effective method of measuring EEO efforts.  Therefore, Kunreuther came up with a process to give value to the EEO performance standards. 

Kunreuther writes, “EEO is an area where significant achievements in our workplaces have been made over time. More are demanded of us if we are to remain successful and competitive as our nation’s demographics continue to change.”

He suggested that managers should be encouraged to study issues within the EEO field with which they may be unfamiliar.  Kunreuther explains, “As a result of this exploration, managers may develop a deeper understanding of their own beliefs, thoughts, and actions.”  He concludes, “In this way, performance appraisals can help them become more engaged with future strategic goals and improvements.”

Kunreuther’s article explains, “…performance standards have traditionally presumed measurement. Managers focus on the past, using objective metrics or subjective "weasel words” (such as “seldom”, “frequently”, “timely manner”, etc.) to determine the success or failure of the employee over the past year.”

When performance standards focus on the future, Kunreuther believes the emphasis moves from metrics to ideas for improvement. The path to higher ratings then becomes an explicit agenda for the future. In this new format, performance standards are intended to help managers (and supervisors) better understand and commit to EEO. They are both clear and prescriptive.

Kunreuther provides several suggestions found below.  This list should be considered a draft and may be edited to suit differing work environments.

Critical Rating Element:

EEO/Affirmative Employment Action

Performance Standards:

• Formally communicates a personal commitment to EEO policies to all subordinates

• Monthly staff meetings include reports and/or discussions of relevant EEO issues

• At least semiannually, asks employees about their working environment, to ensure the workplace is respectful and free from harassment - acts promptly to issues of concern

• Reviews the employer’s EEO goals and determines if action within his/her scope of authority will be required - Reports findings to supervisor by the mid-year review

• Develops and convenes a team to identify EEO barriers in the work group - if barriers exist, plans changes to eliminate barriers

• Documents ideas for ongoing improvements in EEO education and climate

• Interviews subordinates to determine what, if any, EEO emphasis/training they desire

• Attends at least three internal culturally diverse events and assists in planning one event

• Interviews subordinate employees to identify skills not currently used on the job -develops an actual "skills inventory" to submit for job description revisions

• Reviews at least three significant EEOC and/or court decisions and summarizes their potential impact to the workforce

• Reads a book concerning EEO, discrimination, civil rights or diversity/inclusion -provides rating official a 1-2 page review before the end of the rating period

• Attends/initiates a structured program to learn a second language which is native to co-workers

 
"Outstanding" (Level 5)

Performs as described in any 6 or more items shown above.

"Exceeds" (Level 4)

Performs as described in any 5 items shown above.

"Fully Successful" (Level 3)

Performs as described in any 3-4 items shown above.

"Marginal" (Level 2)

Performs as described in any 2 items shown above.

"Unacceptable" (Level 1)

Performs as described in fewer than 2 items shown above.

Kunreuther and I both agree that establishing these criteria will not turn sexists into advocates for women's rights or racists into civil rights leaders. They may, however, result in a manager becoming more informed and therefore, a better leader. The business of absorbing information and developing new work habits often precedes that of changing attitudes.

For more information about Mr. Kunreuther and performance appraisals, go to www.trainingfeds.com.

Carol Dawson, President of EEO GUIDANCE, Inc., is a national EEO/Diversity training and consulting firm based in Jeffersonville, Indiana. She can be contacted at www.eeoguidance.com.  Send comments on this article to cgreer@bizjournals.com.

--------------------------------------------------

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. 

_________________________

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.

Compliance truly isn’t difficult once you get started and the treat will be the ultimate benefits for your business and workforce.  Really, don’t be so afraid.  Federal contractors come out – come out, wherever you are…BOO!

---------------------------------------------------------

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. 

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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.

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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.

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Business First - Article #3
December 2005
WHAT SHOULD MANAGERS “REASONABLY KNOW” WHEN IT COMES TO SEXUAL HARASSMENT?
By Carol Dawson

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
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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.

Being inclined to not 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.

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