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NLRB Rejects Employer’s Code of Conduct

May 5, 2016 by Leave a Comment

NLRBThe National Labor Relations Board (NLRB) recently rejected several “anti-bullying” provisions in a hospital’s employer handbook after finding they could interfere with workers’ rights to act to improve their working conditions.

A three-member NLRB panel ruled 2-1 that the questioned questioned provisions were so over-broad and imprecise that they could be used to penalize workers who engaged in lawful conflict under the National Labor Relations Act (NLRA), such as expressing a concern about working conditions or questioning the professional capabilities of a physician or nurse.

The case involved the termination of two nurses by William Beaumont Hospital in Royal Oak, Michigan, for allegedly bullying and intimidating new nurses. The nurses, Jeri Antilla and Deanna Brandt, argued their complaints were protected by the NLRA and involved under-staffing and patient safety.

The NLRB majority ruled the following prohibitions in the hospital’s employer handbook were unlawful :

  • Conduct that “impedes harmonious interactions and relationships”
  • Verbal comments or physical gestures directed at others that exceed beyond the bounds of fair criticism.
  • Negative or disparaging comments about the professional capabilities of an employee or physician made to employees, physicians, patients, or visitors.”
  • “Behavior that is. . . counter to promoting teamwork.”

The dissent contended that the NLRB has made employers “afraid of articulating work rules (to the detriment of employees, patient safety, and a wide range of legitimate employer interests).”

The board upheld several challenged provisions in the hospital’s handbook, finding them to be lawful. These include prohibitions against “[w]illful and intentional threats, intimidation, harassment, humiliation, or coercion of employees, physicians, patients or visitors;” “[p]rofane and abusive language directed at employees, physicians, patients or visitors;” “[b]ehavior that is rude, condescending or otherwise socially unacceptable;” “[i]ntentional misrepresentation of information;” and “[b]ehavior that is disruptive to a safe and healing environment.”

Neither Antilla nor Brandt were reinstated. The NLRB upheld the lower court’s finding thatruled they  would have been fired regardless of their protected complaints for  “negative, intimidating and bullying behavior.”

The case is William Beaumont Hospital and Jeri Antilla, Case 07–CA–093885 (April 13, 2016).

Filed Under: NLRB

‘Transgender’ Now Accorded More Protection than ‘Age’

April 20, 2016 by 1 Comment

There is a national movement going on right now to boycott states that force transgendered individuals to use the restrooms of their biological sex rather than their chosen identity.

Many companies, including  Target, have denounced  laws that restrict  a transgender individual’s choice of bathroom as sex discrimination.  Some major American corporations  have threatened to withdraw from North Carolina because it has limited the right of transgendered individual to use their bathroom of choice. Moreover, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit recently voted 2-1 to uphold the  U.S. Education Dept.’s position that it constitutes illegal sex discrimination to exclude transgender students from the bathrooms of their chosen gender identities.

According to the most frequently cited estimate, 700,000 people in the United States, or about 0.2 to 0.3 percent of the population, identify as transgender.

Compare this to the millions of older workers who each year are subject to epidemic and overt age discrimination in employment with nary a hint of protest or outrage from anyone, including organizations that purport to advocate for older Americans and civil rights.

 Indeed, at this point, transgender people technically have greater rights under the law than older workers to be free from invidious discrimination.

The U.S. Equal Employment Opportunity Commission contends that trangendered individuals are protected by Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, sex, religion, national origin and color. By contrast, age discrimination falls under the Age Discrimination in Employment Act of 1967, (ADEA), which permits “reasonable” age discrimination by employers.   Title VII also contains penalties that are far more onerous than those of the ADEA.

Why have the rights of millions of older Americans to be free from irrational and harmful employment discrimination been ignored for 50 years?

The rights of transgendered individuals are at issue today because advocates in  the gay and lesbian communities and in the entertainment community have taken a public stand to combat ignorance and prejudice against transgendered individuals. This has essentially forced major corporations to adopt policies prohibiting discrimination against the transgendered so as not to be seen as endorsing transgender discrimination.

Alas, the same is not true for older workers.

No one is demanding that Congress  or the courts accord equal rights to older workers under the law, including the AARP, the EEOC  and the American Civil Liberties Union.  Meanwhile, the same corporations that demand rights for the transgendered are engaging in systemic age discrimination.

The plight of older workers began in 1964  when Congress refused to include age as a protected class in Title VII.  After three years of lobbying by business interests, Congress passed the ADEA, a severely watered down version of Title VII that  has exposed generations of older Americans  to wholesale and perfectly legal age discrimination in employment, especially in hiring.

There also is little public sympathy for older workers.  Stereotypes about older people are profoundly negative  (i.e. rigid, feeble, depressed). Older workers often are seen by younger workers as impediments to job advancement and limited resources. Employers, including the U.S. government, treat older workers like an obstacle to a more diverse workforce. Moreover, researchers say many people subconsciously associate aging with death and disease.  There also is little understanding about the long-term and severe impacts of age discrimination, which condemns millions of women  to decades of poverty in their later years.

Of course, these observations are not meant to begrudge transgender individuals their basic human right to be treated with dignity and respect but simply to point out that older Americans too deserve to be free from invidious and harmful  discrimination.  If every type of irrational and harmful  discrimination is treated with the same degree of condemnation and outrage, there will be far less discrimination against all Americans, including transgendered individuals.

Filed Under: AGE DISCRIMINATION, CULTURE, DISPATCHES, EEOC, TITLE VII Tagged With: ,

Sexual Harassment Victims Forgotten in U.S. Supreme Court Appeal

March 28, 2016 by 2 Comments

CRSTOne of the most outrageous court rulings in modern history may be the dismissal of a sex discrimination lawsuit filed by hundreds of female truck driver trainees against CRST Van Expedited Inc., which was then awarded  $4.7 million in attorneys’ fees.

On appeal, the U.S. Court of Appeals for the Eighth Circuit in Missouri upheld the lower court’s dismissal of all but two of the plaintiffs but vacated the attorneys’ fee award. One  of the surviving plaintiffs dropped out of the litigation and the other secured an out of court settlement of $50,000.

This week, CRST asked the U.S. Supreme Court to reinstate the attorneys’ fee award.

The case was a complete train wreck for the EEOC, which initially represented a class of 270 women. Some of the plaintiffs were subject to shocking and violent incidents of  sexual harassment during training runs with CRST male drivers. When they called CRST to complain about the harassment, they were told they had to remain on the truck overnight with the harasser.

After almost six years of litigation, Iowa Chief Judge Linda R. Reade abruptly dismissed the case in its entirety and awarded $4.7 million in attorney fees to CRST.

The 67 alleged sexual harassment victims were denied justice because the EEOC or the U.S. District Court of Iowa (or both) screwed up. Will taxpayers now be forced to pay CRST’s legal bills?

[Read more…]

Filed Under: EEOC, SEXUAL HARASSMENT, TITLE VII, U.S. SUPREME COURT Tagged With: ,

Age Leads in Discrimination Complaints Filed by Federal Employees

March 24, 2016 by Leave a Comment

ObamaMore  complaints alleging age discrimination were filed by federal employees each year from 2010 to 2014 than complaints alleging  race or disability discrimination.

The Annual Report on the Federal Work Force states that age was a basis for 4,697 complaints filed by federal employees in 2014, compared to 3,838 complaints of race discrimination and 3,817 complaints of  (physical) disability.  Age discrimination was, by far, the leading basis for complaints filed by federal employees each year during the four-year period, with a high of 5,314 age discrimination complaints filed in 2010.

Yet, the federal government, which is the nation’s largest employer,  has done virtually nothing – if anything  – to address the problem of age discrimination in federal employment. In fact,  President Barack Obama made the problem considerably worse in 2010 when he signed an executive order  to permit federal agencies to discriminate in hiring on the basis of age in hiring.  The order exempts the federal government from the Age Discrimination in Employment Act of 1967 (ADEA), which expressly prohibits using age as a consideration in hiring.

President Obama couched his order permitting age discrimination in federal hiring as a diversity measure.

The president argued in his executive order that the federal government is at a disadvantage in hiring students and recent graduates because of civil service regulations (that were passed in 1871 to prevent cronyism and to  ensure fairness in hiring). He added that  “students and recent graduates … infuse the workplace with their enthusiasm, talents, and unique perspectives.”  (Does this mean that older workers don’t?)

Underlying President Obama’s executive order is the assumption that America must choose between the worthy goal of nurturing young workers and the ideal of equal opportunity for all.  But is this choice really necessary? The United States has the world’s largest national economy, with a gross domestic product estimated to be $17.914 trillion in 2015. The pie is big enough to make sound policy decisions that boost employment for younger workers without consigning older workers to irrational discrimination, chronic unemployment and poverty. [Read more…]

Filed Under: AGE DISCRIMINATION, EEOC Tagged With: ,