“Color” Discrimination Claims are on the Rise!

September 29, 2014

We have had a few inquiries as to what exactly is “Color discrimination” and how that is different from “Race Discrimination.” More importantly, Color discrimination is on the rise. The EEOC gives us some guidance in its Compliance Manual on Race and Color Discrimination. “Color” is defined as:

“…pigmentation, complexion, or skin shade or tone. Thus, color discrimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person.”

Even though race and color clearly overlap, they are not synonymous. Thus, color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.

The EEOC also provides some hypothetical examples of color discrimination:

An African American employer violates Title VII if she refuses to hire other African Americans whose skin is either darker or lighter than her own. For example, it would be an act of unlawful color discrimination for an employer to refuse to hire a dark-skinned person to work at a cosmetics counter because the vendor prefers a “light skinned representative.”

A dark-complexioned African American manager violates Title VII if he frequently makes offensive jokes and comments about the skin color of a light-complexioned subordinate. This example is based on the EEOC’s settlement of a claim against Applebee’s restaurant.

Color discrimination in employment seems to be on the rise. In Fiscal Year 1992, EEOC received 374 charges alleging color-based discrimination. By Fiscal Year 2006, charge-filings alleging color discrimination increased to 1,241. A recent study conducted by a Vanderbilt University professor “found that those with lighter skin earn on average 8 to 15 percent more than immigrants with the darkest skin tone — even when taking into account education and language proficiency. This trend continued even when comparing people of the same race or ethnicity.” Similarly, a 2006 University of Georgia survey revealed that a light-skinned Black male with only a Bachelor’s degree and basic work experience would be preferred over a dark-skinned Black male with an MBA and past managerial positions. However, in the case of Black female applicants seeking a job, “the more qualified or experienced darker-skinned woman got it, but if the qualifications were identical, the lighter-skinned woman was preferred.”

While these claims are still rare, it is significant that EEOC charges of color discrimination have risen more than 330% between 1992 and 2013. Now, as a result, the EEOC has initiated a stepped up enforcement in this area.

It may not be a defense to a discrimination claim that two African American employees were treated differently if one is light complexioned and the other is dark complexioned. For employers, it’s important to keep in mind that color discrimination is illegal, and is different than race discrimination.

NOTE: THE PODCAST ALLTHIS WEEK IS DISCUSSING WHAT SHOULD OR SHOULD NOT BE IN A PERSONNEL FILE. ARE YOU IN COMPLIANCE?


New Law Requires Training on “Abusive Conduct”!

September 22, 2014

Since 2005, California has required employers with 50 or more employees to conduct sexual harassment training of supervisors within 6 months of assuming a supervisory position and biennially thereafter.  Last week, Governor Brown signed AB 2053 into law, expanding the mandated content of this training to include training on prevention of “abusive conduct.”  The statute defines “abusive conduct” as conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.  The statute further provides that abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.  However, “a single act shall not constitute abusive conduct, unless especially severe and egregious.”

The new law does not further specify the content of the training on prevention of abusive conduct, nor does it mandate that any specific amount of time be allotted to this topic within the 2-hour sexual harassment training.  The new law takes effect January 1, 2015

To be clear, this new training requirement does not create a private right of action by an employee against the employer to seek damages for workplace bullying.  It is a training requirement only.  That said, if an employee is “bullied” because of a characteristic protected under California’s Fair Employment and Housing Act (e.g. race, gender, religion, disability, age), the employee could bring a claim for harassment or discrimination under that law.  Additionally, even if bullying is not directed at an employee because of a protected characteristic, it is still possible for a bullied employee to pursue a claim for intentional infliction of emotional distress.  For these reasons, employers (regardless of whether they are covered by the new training requirement) may wish to include language in their employee handbooks making it a violation of company policy for employees to engage in workplace bullying/abusive conduct toward other employees.  Employers should also take workplace complaints of abusive conduct/bullying seriously by conducting prompt investigations and taking appropriate remedial action.

NOTE: Jim’s podcast throughout this week is regarding pregnancy. The podcast can be found on iTunes (search for “Listen Up with Jim Potts), Facebook (“Listen Up”) or by going to our website (www.pottsandassociates.com).


Legislative Updates (new and pending laws)!

September 15, 2014

The California Legislature has passed the following notable labor and employment bills, which are now awaiting approval or veto by Governor Brown:

AB 1897 – This bill would expand liability for a contractor’s wage and hour violations to make the hirer of the contractor jointly liable for the contractor’s wage and hour violations.  The bill applies to businesses that obtain workers from labor contractors but excludes businesses that have less than 25 workers (including those obtained from a labor contractor) as well as businesses that have less than 5 workers supplied by a labor contractor at any given time.  The bill excludes certain employee leasing entities and also excludes workers who are exempt from overtime under California laws.

AB 1522 – Paid sick law-UPDATE

As expected, Governor Brown signed the paid sick leave bill (AB 1522) into law, making California the second state to mandate that employers provide paid sick leave to their employees (Connecticut was the first).  This means that starting in July 2015, California employers generally will have to provide their employees with at least 3 paid sick leave days per year. California employers who already provide paid sick leave to their employees will want to review their policies against the requirements of the new law to ensure compliance.  Employers who currently do not provide paid sick leave will want to review the new law and adopt a compliant sick leave policy.

This bill now mandates that private California employers provide paid sick leave for employees, beginning in July 2015.  Employees will be entitled to one hour of paid sick leave for every 30 hours worked.  Employees will be able to use sick leave for their own illness or for preventive care, to care for a sick family member, and/or to recover from certain crimes.  Employers will be able to cap annual sick leave use at 3 days (24 hours) per year, however unused, accrued sick leave will roll over from year to year (this rollover can be capped at no less than 6 days (48 hours).  Employers will be able to set a minimum increment for use of sick leave, but the minimum increment cannot be greater than 2 hours.  Employees will not be entitled to pay for unused sick leave at the time of separation of employment.  Employers will be required to provide notice to employees of their accrued sick leave on their itemized wage statements or on a separate document provided at the same time as wages.  Employers will also be required to post a paid sick leave poster to be prepared by the Labor Commissioner’s office.  The bill also prohibits retaliation against an employee for using sick leave and establishes a rebuttable presumption of such retaliation if adverse action is taken against an employee within 30 days after the employee’s use of sick leave.  Employees covered by collective bargaining agreements with paid sick leave provisions and other enumerated criteria will be exempted from the new law.  Employers that already have paid sick leave policies that comply with at least the minimum leave rights provided under the bill will not be required to provide additional leave.

AB 2074In addition to the foregoing, Governor Brown already signed into law AB 2074, which increases employer liability in actions alleging the employer paid the employee less than the minimum wage.  Under AB 2074, employees will now be able to recover liquidated damages for violations going back three years (4 years under the Unfair Competition Law).

AB 2416If there is any positive news for California employers, it is that AB 2416 was not passed by the Legislature.  AB 2416 would have provided a procedure for an employee with a wage claim against his or her employer to record a lien against the employer’s real and personal property in the state.

Governor Brown has until September 30 to sign or veto the bills pending before him.  Employers who wish to voice opposition should direct comments to the Governor’s office.

There will be further updates as the year begins to close. Typically a number of laws get passed with an effective date of January 1.


Mandatory Sick Leave: An Update!

September 8, 2014

This is an update on a previous blog whereby I informed you that California was on the brink of requiring employers to provide sick days to their employees. Over the holiday weekend, California became only the second state to guarantee at least some annual paid sick leave for most full and part-time employees. Assuming Governor Brown signs the bill, California’s law would require employers to provide paid sick leave. The bill, entitled the “Healthy Workplaces, Healthy Families Act,” passed with hefty majorities in the Assembly and Senate, and Governor Brown has indicated that he plans to sign it.

Beginning in July 1, 2015, the bill requires public and private employers to provide eligible employees – those who work 30 or more days within a year after their hire date – with sick leave “at the rate of not less than one hour per every 30 hours worked.” Salaried, exempt employees are deemed to work a 40 hour workweek. The only significant exemptions are for employees with certain collective bargaining agreements, some construction industry workers, home healthcare workers, and certain airline employees covered by the federal Railway Labor Act.

The bill also requires employers to carry over unused sick leave from year to year, though they may limit employees’ total use of paid sick leave to 24 hours or three days per year and generally have no obligation to allow any accruals to exceed 48 hours or 6 days. The bill also mandates that employers provide written notice of available sick leave on the itemized wage statement California law already requires or in a separate notice in each pay period.

The bill also clarifies that an employer is not required to provide paid sick leave in addition to existing paid leave policies, as long as those policies provide at least the same benefits. However, it also leaves several open questions. For instance, the bill does not define “30 or more days” or otherwise explain what would constitute a “day” of work. Would it be any time worked, however long? Eight hours? Something else?
The bill also leaves its carryover rule vague. For instance, assume that a California employer voluntarily offers 12 paid time off (PTO) days at the start of every calendar year to an employee and that employee uses all 12 PTO days. Must the employer inquire into whether the employee used that PTO because of one of the covered “sick leave” reasons in Section 246.5 of the bill? Is the employer still required to offer three carryover days (in addition to the 12 it offers in my example) to its employees when its employee takes PTO for vacation and not specifically because he or she is sick? I would expect some novel and unforeseen issues for California employers that additional guidance will need to be worked out. As California laws often serve as a model for other states that adopt similar policies, here’s hoping state agencies can help clarify the paid sick leave law a little bit further.

I will keep you posted on any further developments.


Employer Wins a “Slam Dunk” Sexual Harassment Case Because of Procedures!

September 2, 2014

A recent Federal case was recently decided that confirms that employers need to have an effective complaint procedure in place to investigate complaints of harassment. At a minimum it may help to reduce your liability if you are proactive instead of reactive to such matters. This particular employee apparently had an air-tight case of sexual harassment but sabotaged herself because she did not avail herself of the company’s complaint procedure.

The court in its decision pointed out to key points. One, the employer had a policy banning harassment and an effective mechanism for handling complaints, and second, the victim in this case refused to cooperate in the investigation. Here are the facts.

The employee was hired after a manager saw her at a fast food restaurant and thought she looked like Farrah Fawcett. She went to work starting as a cashier, and worked her way up to Assistant Manager. For most of the time she was there, she did not report to the manager who recruited her initially, but that didn’t stop him (allegedly) from being extremely crude and disgusting on a regular basis.

The company had a policy prohibiting sexual harassment and a hotline number for employees to use to make complaints. The employee called the hotline and made an anonymous tip about the sleazy manager. The company sent a representative to investigate, but the employee was not at work when the investigator came, and because her tip was anonymous, nobody knew to contact her. Meanwhile, she, (the employee) knew that the representative was investigating her complaint and made no effort to get in touch with him.

At the end of the investigation, even without the employee’s help, the manager was reprimanded.

The employee claimed that she had complained to her boss about the manager, and in response the manager brought a district manager in to conduct another investigation. However, when the district manager was on site, the female employee was on medical leave and did not contact him. To make matters worse, she advised a female co-worker, who had a notebook documenting the manager’s alleged harassment, not to share her notebook with the district manager.

According to the U.S. Supreme Court, an employer will not be liable for harassment by a supervisor under Title VII if the harassment does not result in a “tangible job detriment,” and (1) the employer has effective measures in place to prevent harassment and correct it if it occurs, and (2) the employee unreasonably fails to make use of the employer’s remedial measures.

This was a big win for the employer. The federal court granted summary judgment to the employer. First, the court found that the manager’s conduct could very well have been considered sexually harassing. However, the court found that the employer had both a policy prohibiting workplace harassment and an effective mechanism for making complaints. The court also found that the company had conducted “reasonable” follow-up on the employee’s complaints.
Finally, the court found the employee had failed to avail herself of the employer’s remedial measures by failing to present herself for interviews during the two investigations and instructing her co-worker not to provide her notes to the investigator.

The takeaways here are simple. One, have a procedure in place to handle complaints. Second, do not ignore the complaint. Third, conduct an investigation. Fourth, act on the results of the investigation whether it be a warning (written), a suspension, or termination. Finally, if the complaining party refuses to participate, or impedes the investigator in any manner make sure it is well documented.