VANNOY:
Title VII compliance for Employers practical Steps to take. My name is Mike Vannoy, vice President of Marketing at Asure, and my guest today, if you’re regular watcher of the show, you know Brian, Brian Schenker. He’s an attorney at the Long Island New York office of Jackson Lewis. Brian’s practice focuses on representing employers in a wide range of workplace matters, as well as preventative advice and counseling. Brian, his extensive experience defending class and collective action lawsuits under federal and state wage and hour laws. He has successfully defended wage and hour audits conducted by the US and New York State Departments of Labor, and Brian regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment, and retaliation. Welcome to the show, Brian.
SHENKER:
Thanks for having me again, Mike.
VANNOY:
All right. So title seven, I think everybody knows if they don’t remember the exact year, so 1964, the Civil Rights Act, I think people generally know the gist of, of the Civil Rights Act. They might not know, they may have heard the term Title seven, but what, what specifically is Title vii? What, how does that overlap relate to the Civil Rights Act of 1964?
SHENKER:
Right. So, you know, title VII was basically a part of the act that was more or less at the time, a reminder to employers not to discriminate against employees under who, who had certain, you know, protected characteristics. And it also created the EEOC, the equal Employment Opportunity Commission to enforce the act the Title VII rather. And then, you know, it was given much more teeth, you know, years later, a couple decades later, with amendments in 1991 that added damages provisions, jury trials. And that’s really when I think that employers, you know, took notice of of Title vii. But really, you know, a lot of the enforcement of it comes through the EEOC as well as private actions. And, you know, it’s it’s about discrimination. It’s about pr treating employees similarly, regardless of, you know, for instance, you know, their race.
And so, you know, that’s, that’s the main focus. As I mentioned, there are damages available under Title vii. You know, that depends on employer size in terms of the emotional distress and punitive damages. But, you know, there’s back pay and potential front pay damages if, for instance, an employee is terminated in a discriminatory manner. And so, you know, it is something that employers need to take notice of. And obviously, with a lot of these things, there are you know, state laws that apply, but these federal requirements under title, title vii, you know, apply you know, to employers all across the nation.
VANNOY:
So, I wanna go down that path in a bit talking about how states are adopting their own versions of, say, the, the Civil Rights Act in, in elements of Title vii. But, but hold off for a second. I am curious and I, I don’t necessarily not looking to explore a whole history lesson here, but you say teeth were added, like starting in 1991. So clearly civil rights movement was huge in the sixties, legislation passed. So it became law. What, what, what happened prior to 1991? Was it, was it just more civil action for violations? You know, what, what, what was the lack of enforcement that happened way back when?
SHENKER:
Right. Well, you know, that was the thing. It was still on the books. There were, there were these requirements not to discriminate but there were damages provisions later added. So Okay. That that was the real big difference. You know, the EEOC was created to enforce it. And, you know, I believe there were, you know, potential remedies you know, such as, you know, injunctive relief but you know, the damages. And again, you know, when it comes to businesses, often time it’s, you know, money is a big motivator. Right. And I think that was one of the you know, reasons for the 1991 amendments to add those damages so that, you know, there would be more reason to
VANNOY:
Comply. Got it. And, and EEOC Equal Employment Opportunity Commission. Right, right. When did, when did the EEOC come along? Did that come along in 91 with, with the, with these, the, the teeth that came along to enforce title?
SHENKER:
So, so the EEOC was actually created in, in the same Civil Rights Act back in 1964. So they’ve been around, they’ve been the enforcement arm for, you know, title vii. And obviously as time has gone by the EOCs you know, ability to enforce, you know, has increased obviously with, you know, damages. That’s a, that’s a big enforcement mechanism. Also, you know, injunctive relief such as, you know, reinstatement and, you know, for instance, when there are discriminatory policies, you know, they can also seek other types of relief, whether it’s, you know, training or implementing, you know, different policies. So the EEOC is, is still very much involved. You know, when employees have a Title VII claim or are looking to assert one they need to go file the EEOC first before they can go to, you know, to court to assert their Title VII claims.
And the EEOC either you know, does not investigate and issues a right to sue letter, giving the employee the opportunity to go out on their own to court. Or if it’s a case that presents some, you know, issues that are of interest to the EEOC, the EEOC can actually take up a case on its own and file in court and proceed on behalf of of employees. And so, you know, the EEOC, you know, they also focus a lot on mediation and resolving cases. So if you’ve ever received a e O C charge alleging, you know, some Title vii violation one of the first things the EEOC will do is look to see if, you know, the employer is interested in resolving the matter. And they offer, typically, free of charge mediation services to resolve the claims, you know, understanding that it’s typically in the employers and employees interests, you know, to resolve matters and, and not engage in, you know long and costly litigation.
VANNOY:
Got it. So, so I think most are obvious, most everybody’s heard of them, but just rattle off for me, if you could, what were in 64, what were the protected classes, which employees were could, could you not discriminate against, and then maybe talk about how that is evolving? Right. there’s certainly been an evolution around sexuality, gender that’s, you know, obviously a, a bit of a lightning rod politically to talk about, but certainly employers need to understand. So maybe start at the beginning, what were the protected groups defined, and then how has that evolved? And I think it didn’t evolve much until, you know, rather recently.
SHENKER:
Yeah. so great question. So right Title vii prohibits discrimination or harassment on the basis of race, color, religion, sex, and national origin. Now what you were pointing to is, I, you know, sex discrimination, that definition has evolved over time to include both pregnancy discrimination as well as much more recently in the last 10 years or so. Sexual orientation and gender identity. Right. so I’ll, I’ll get into that you know, in a moment. But, you know, there are some other, you know, federal statutes that are not Title vii, but they, you know, interact, we can say with Title VII for instance, you know, thEEOC enforces some other federal statutes that provide protections to other categor characteristics such as, you know, the Americans with Disabilities Act, right? Right. That prohibits employers from discriminating on the basis of disability, and it adds a requirement to make reasonable accommodations for individuals who suffer from a disability.
You also have the Age Discrimination in Employment Act, the A D E A similar to Title VII prohibits discrimination, but on the basis of age against people who are age 40 or over you know, there’s the Equal Pay Act, which Right. Very similar to the, you know, sex or gender discrimination. It’s technically part of the Fair Labor Standards Act, but it targets wage disparities between men and women requiring equal pay for equal work. Right. But getting back to, to your question, you know, I think sexual orientation and gender identity is something where in the last, you know, 10 years, there’s been a sea of change, right? So, until roughly 10 years ago, it was pretty much settled that sexual orientation and gender identity claims were not within Title VII’s reach. Right. But this all changed with the US Supreme Court’s decision in Bostock, the Clayton County, Georgia where the Supreme Court held that Title vii bards discrimination based on sexual orientation and gender identities.
So where the mo there, you know, where waters might have been muddied before it’s been cleared up. And just to be very clear, you know, discrimination based on sexual orientation and gender identity is not permitted. Yeah. And so, right. Regardless of, you know, the politics of this, it is something that employers should take note of because it’s a requirement. Right. And so basically the courts, you know, the Supreme Court has said that gender identity and sexual orientation, they, they deal with sex. So that’s sex, you know, part of sex discrimination. Yeah. and so it, you know, it’s very important to, for employers to understand these, these terms. Right. So, you know, gender, I, when we talk about, you know, gender, right? That’s relate, you know, the concept of gender really refers to, you know, someone’s, you know, attitudes, feelings, behavior that may be associated in that culture with, you know, biological sex.
Yeah. but, you know, gender identity, that’s someone’s, you know, inner sense of their own gender. Right. Which may or may not match, you know, the sex they were assigned at birth. Yeah. and so, you know, gender expression can be, you know, expression of gender identity can be through a number of ways, right? Through, through dress grooming, mannerisms, speech patterns, social interactions. And, you know, it runs the gamut. It runs a range from masculine to feminine. And then certainly some transgender people, you know, express their gender consistent with how they feel, which, you know, may or may not be with, you know, in accordance with the sex they were, you know, signed at, assigned at birth.
VANNOY:
Yeah. And, and, and I just wanna be crystal clear, we are painfully aware at how divisive this topic can be. The, this show is not about pros, cons, my beliefs, Brian’s beliefs. This is about what the Supreme Court says is enforceable under Title vii. So as an employer, I think everybody gets, I mean, there’s nobody with their, you know, there’s, there’s nobody with their, you know, head in the sand on race, religion country of, or origin. I mean, we, we get, we can’t discriminate these things. And I think largely probably most people understand, you know, homosexuality. Okay. You know, that, that is newly enforced and made clear by the Supreme Court, but people, I think, get it, there’s obviously this whole hot button topic around transgenderism. And just to be crystal clear, I don’t care where you stand on this topic, everybody has opinions, but the law says you can’t discriminate based on it. So just crystal clear, not a political show. We’re just simply explaining the law to small business owners and entrepreneurs, because you can’t choose to file the law whether you love it and embrace it, and you think finally about time, or you think this totally violates my sense of whatever this is the law and anything else without going into, you know,
SHENKER:
Yeah. No political water. Right. And, and, and that’s right. You know, this is, these are things to know so that you don’t violate the law. And really the focus should be on an employee’s ability to perform their job. And so, not just, you know, gender identity, but any characteristic, like you mentioned, race, age country of origin, all these things, characteristics, like those are irrelevant to job performance and should have no bearing on workplace interactions. Right. so that’s, you know, a lot of what we’re discussing today, regardless of what characteristic
VANNOY:
We’re, we’re, and Brian, you and I have talked about it, Mary Simmons, also a regular guest on the show, she and I have had talked about this, I don’t know, 50 times in the last year on shows for best practices for hr. It, it always kind of points back to, you know, employee handbook, job descriptions, competencies required to perform those jobs. And if you document these things and really focus on what are the competencies required to perform a job, and you only post job openings that list those job descriptions and the skills and competencies required, and you focus your interviewing process on that, your performance management process on that, it really kind of takes care of itself about helping you to stay away from any gray area when it comes toti, title vii. But nonetheless, this, especially in this merging emerging area around what the Supreme Court would call sex, which includes sexual orientation and gender identity, employers need to know.
So okay. Let, let, let’s, let’s come back a little bit. What’s the, there are have, there have been a couple pieces of major legislation. I don’t think anything recent necessarily, but it’s and I think you alluded to it, but I think like Americans with Disabilities Act they, they are, there are separate laws federally than Title vii, then the Civil Rights Act, but they build upon and reinforce. Do you, what do you think the trend is there, federally? Do you think we should expect to see more Americans with Disabilities Act equal Pay Act? I think you mentioned a third. Do you expect more at the federal level, or do you think this is just gonna increasingly expand at the state level?
SHENKER:
You know, I think it’s something we’re really going to see more expansion at the state level before we might see things come federally. And I think, you know, that, that’s typically the trend, right? But, you know, it’s much harder to, you know, you know, our, a diverse country like ours, right? To get, you know, sufficient agreement you know, to pass, you know, certain protections on a federal level. So, you know, a lot of what we’ve seen over the last, you know, five, 10 years is state and local governments taking up you know, various, you know, protections and laws, and look, a lot of them, to some extent relate to protections, you know, on the books at the federal level, right? For instance, recently we’ve seen a whole lot of activity when it comes to, you know, the pay gap between men and women as well as, you know, other you know classes of individuals and, you know, states are taking up laws, whether it’s you know, transparency in, you know, job postings and salaries or, you know, salary history bands.
Right? You know, those are, again, tied closely to certain protections. So I think that eventually we, we might see these things creep into federal law. But I think for now we’ll see more and more states take these issues up. And then, you know, if there’s widespread support, you know, enough, then, then we might see the federal government, you know, add that they, you know, add to their requirements right there, you know, as I mentioned, equal pay, there’s equal Pay Act, but compared to a lot of state and local laws, you know, it’s a much tamer version of what we see out there right now.
VANNOY:
Yeah, I, I, I’m seeing it the same way. It’s, it’s it feels like, and, and I don’t know if this is simply I mean, obviously things changed directions at the national level from the 2008 election and then coming out of 2008 into, you know big, big events, big recession and then really this dichotomy of styles and, and policies at the presidential level from 2008 to 2012 to two, excuse me, to 2016, enter a, a pandemic. I, I think, I think those big events have maybe temporarily tamped things down at the federal level in, but the states, it feels to me like they’re just taking matters more into their own hands every single day. And so I don’t see that trend changing and it, whether, whether it’s Title VII examples or it’s leave types it’s their own expansion of F L S A, you know, overtime rules, minimum wage laws. This just seems, it’s not even states, it’s counties, it’s city municipalities within counties. The, I I don’t see where this tips back towards being federal. I see this continuous fracturing of local versions of these laws. Is that, is that how you see it?
SHENKER:
Yeah, I, I see it the same way. And I think, you know, look for some employers, if you have a single work site that doesn’t become too complicated. You know, what county, you know, what city, you know, what state you’re in but the way this is gone for employers that have, you know, multiple sites within the same state, for instance, if you’re in California, but you have, you know locations in different counties, you might have all sorts of laws apply different laws applying to your company. So, you know, it does, this patchwork of laws does create some compliance issues for you know, employers with multiple work sites or Yeah. You know, within a state or even without a, you know, outside of the state. So it’s an added compliance element for employers for sure. But yeah, I think for the foreseeable future, it, it’s probably what’s going to continue.
VANNOY:
Yeah. And I think, I think, and we don’t have to go too super deep, we can kind of come back to Title vii, but I, I think for, for employers, one of the biggest challenges it’s not, it’s not just if you’re a small business with multiple locations, cuz so many small businesses, you start out with one location, whether you, maybe you end up with many. But in a world where I certainly advocate to, you know, the, the internet has flattened everything in the, the, the available work workforce and your ability to find talent that is perfectly aligned to your product, to your mission, to your culture is it’s the greatest opportunity for talent in, in our history. And so we should be seeking outside, you know, the traditional, you know, five radius of our brick and mortar building and finding talent wherever it sits mm-hmm. <Affirmative>. but in a world where legislation probably mandates where the work is performed, whether that’s payroll taxes, sales taxes leave types, minimum wage and certainly discrimination when the laws are different in the different locations, and it’s not just the states, it’s cities and counties. This just gets more and more complex for, I’d say those more progressive employers who are tapping into the talent pool that by definition is geographically dispersed. Okay.
SHENKER:
Yeah. I think you make an excellent point there, right? Even one location, but you’re hiring employees from other places, depending on the law, you might have different laws applying to them. It’s, yeah. Yeah, absolutely.
VANNOY:
So I, I guess our guidance to employers would be, man, tap into that global, at least tap into the national, if not global labor pool. But do so eyes wide open that compliance, it’s not just where your headquarter, your quote unquote headquarters is, or your main office or whatever, however you think about your business. Many, if not most of HR oriented laws are driven by where the work is actually performed in a work from home employee. That means where they live, not where your business is. All right, let’s, let’s come back to, to Title vii Brent, let’s maybe ex explore. So, so what would be, so I think everybody gets the major categories you can’t discriminate on. It makes sense that we’ve continued to pass federal versions that I think kind of put some tighter rails around those protected groups where, you know, it’s expanding to states and municipalities. Where do people get in trouble the most? Cuz for the most part, entrepreneurs are just hardworking folks trying to build a business. They’re not trying to discriminate. And so whether they’ve done anything wrong or didn’t do anything wrong, people still get in trouble every day. In, in all these categories of Title vii, it, it, what, what are the biggies that we can explore so people can, can, you know, see around corners in this area?
SHENKER:
Right? So yeah, there are a few different types of claims we, we commonly see under title vii. And again, these are going to be the same type of claims, more or less that you’d see under, you know, the, the state or local versions of of anti-discrimination laws. The first one, and quite a common one is a disparate treatment case claim, right? So disparate treatment as it sounds right, involves allegations that the employer discriminated against an individual of a certain protected group, right? Because of their race, color, sex, religion, or national origin. And that essentially what they’re, the employee is saying, I was treated less well than others who are similarly situated outside of my protected group. And the reason for the treatment is because of, you know, for instance, my race or my sex or my religion. And so, you know, this type of claim requires someone to allege, of course, that they’re within one of these protected categories that they were, you know, qualified for the job, or in the case of an applicant, they applied for the position and then that they were subject to an adverse employment action.
And the last one being that there’s some inference of discrimination, right? That they were treated differently than others or that, you know, others were treated more favorably. Something that indicates they were, you know, that a protected category played a role in the decision. And so again, when we’re dealing with disparate treatment, we’re only dealing with, you know, material adverse changes in employment, right? So you know, one of the things we see here, and I’ve litigated, you know, many cases involving this, that, you know, someone might complain, you know, they were left off of certain emails or, you know, not included in meetings. You know, so, you know, some, some things that might cause someone to be upset and might very well be because of a protected category. But those types of things, right? Being left outta meetings, not being included on emails you know, are considered minor things that don’t raise to the level of an adverse employment change.
So for the purposes of disparate treatment, right, we’re talking about, you know, termination from employment, you know you know, discipline, perhaps maybe a suspension a change in benefits or compensation, right? A a decrease in, in salary, you know, a, a substantial change in you know, in workload or, or job duties or, you know, in the case of an applicant, you know, not hiring the individual. No. so again, you know, it, title VII doesn’t regulate, you know, all discrimination necessarily, especially in a disparate treatment when you’re saying, you know, someone’s claiming to be treated unfairly. It has to do with, you know, a material term of employment. And then really, can
VANNOY:
We, can we go down that path for just a second? Mary and I have talked on this show, on this topic before about bias, right? In like, perhaps one of the most common areas of bias is height or beauty or weight. Does Title vii, you know, protect, you know, people who are short, overweight, not attractive, I mean, <laugh> cause cause they’re clearly bias that happens in the workplace
SHENKER:
There. Absolutely. But it
VANNOY:
So protected under Title VI seven.
SHENKER:
Yeah. So you, you make a great point. And so my response would be <laugh>, the, the, the lawyer, the lawyerly answer that, that one might expect it, it depends, right? But let me explain. So you
VANNOY:
Lawyers
SHENKER:
<Laugh>, so you know, those height for instance, you know, that’s not a protected category. But it, it almost, it brings me right into my next topic of, of the next type of claim, a disparate impact claim. So you could see a situation where an employer might have a facially neutral policy of you need to be, you know this tall, six feet tall for this position. Or, you know, and then let’s just pretend that has nothing to do with the actual, you know, requirements of the job. Just an arbitrary decision. You have to be six feet. So that is going to have a negative impact, a disparate impact on women, right? Who are generally shorter than men. So that would, you know, a policy that, you know, requires people to be six feet for a certain position, Asureming there’s no business necessity
VANNOY:
Got it. That,
SHENKER:
That, that could then implicate, you know, sex discrimination. So, okay. You know, I, I guess it’s great. You know, let me then explain what a disparate impact claim because this is a claim that people don’t necessarily think of when they think of discrimination, right? People tend to understand disparate treatment better. It’s saying, you know, if employee a is of, you know, a protective category and employee B is not, I’m treating them equally, disparate impact goes beyond that in that it doesn’t require the employer to intentionally discriminate against anyone, right? A disparate impact claim basically alleges that a neutral policy has a negative impact on a protected class. Yeah. so, you know, we often see that there’s a lot of litigation regarding, you know, aptitude tests, right? Some, you know, federal agencies and some employers will have applicants take, you know, a certain test to measure you know, their, their skill or, or whatnot for a position.
And the statistics you know, of the results of some of those tests show that, you know, for instance, you know that people of a certain race will score substantially lower than, you know, others that say, Caucasians, who are, you know not in a protected category. So, you know, even a neutral policy or practice can, you know, create liability for an employer. Now there, there are ways to defend against those, as I mentioned before, that, you know, an employer can show that the practice or policy is job related and consistent with their business necessity, right? So you could imagine a situation where there, there could be a height requirement if there, if it had to do specifically with the job being performed, then there was no better way to weed out applicants, you know, who could not perform the job. But you know, that’s, it’s a, it’s a great question because just because you’re not considering a protected category doesn’t mean that, you know, a practice doesn’t actually discriminate against,
VANNOY:
And I wanna be cl so just so understand, we’re talking two separate things. Disparate treatment is one type of a claim, disparate impact is another. The, the disparate treatment is more self-evident, right? It’s like, oh, you didn’t hire me because this, I was punished because of that, and so I’m treated differently. This is, I, I think the area of disparate impact. This, this one, you might be completely blind to it. This, this probably leans more towards the bias oriented conversations. Yeah. but it is still illegal to discriminate if the impact of your otherwise non-discriminatory policies, or maybe not in policies, but just behaviors result in, therefore the impact is disparate. So tell me if this is a good example, Brian, if I, I went to x, y, Z university and I was in such and such fraternity, and so I’ve had a lot of success hiring people from there because, you know, they’re good, good folks just like me. And coincidentally, my workforce looks pretty white and male, because that’s the profile. Now, I didn’t have a policy that said I’m gonna hire white men, but if my primary recruiting platform is a fraternity at a specific university, I mean, the policy could lead to a disparate impact unintentionally. Am I saying that? Right?
SHENKER:
Right. Right. One could say that that’s, you know, become a practice of the company to hire solely out of this fraternity, which then excludes women. And, you know, it’s funny, going back to your you, I think your height or, or weight you know, example before there, there actually was a Supreme Court decision where I believe it was a prison guard a prison, you know, they, they used a test for applicants that, you know, required them to meet certain height and weight requirements. And that the, the prison company, they said, well, this, this relates, this correlates to strength and prison guards need to be strong. That’s a business necessity. And what the Supreme Court found was that height and weight don’t relate to strength. Right. And that there’s a different test that could have actually measured strength directly that wouldn’t have the, the unintended result of Yeah. You know, excluding women who, who might be shorter.
VANNOY:
That’s a great example.
SHENKER:
So, so, yeah. So, you know, I think that’s why when, you know, and look, these can be, you know, all sorts of, of policies. And, you know, I think, you know, one thing to remember is that Title VII doesn’t just apply to your existing employees. It can apply to applicants. And so I think, Mike, your example was great, you know, in, in, you know, the recruiting or applicant stage of the employment cycle, because that’s often where we see some types of disparate impact claims. And, you know, again, depending on, you know, what the company’s requirements are, again, which may not have any racial component or any sex component to it, but that the, you know, the application of this policy or practice, you know, results on in excluding people overwhelmingly from some protected category.
VANNOY:
Yeah. All right. So disparate treatment, we’ve covered that in a while, and how that is, sounds the same, but it’s really quite different from disparate impact. Taking notes before here for, for topics harassment, right?
SHENKER:
Harassment.
VANNOY:
So what, what, what, what does, what is, what what is commonly entailed into a claim of harassment?
SHENKER:
Right? So the typical harassment claim is a hostile work environment claim. And that’s under Title vii, right? That’s unwelcome conduct that basically has the effect of interfering with an individual’s performance or creates an intimidating, hostile, or offensive, you know, work environment. Now let’s remember that unwelcome conduct needs to be related to one of the protected categories under Title vii, because again, you know, courts are very clear, not all harassment is unlawful, right? So this law, you know, only applies to race, color, sex religion national origin, and obviously some of the other federal laws, right? Age, disability you know, and such. But if, you know, it’s not a workplace civility code, right? You know, no one’s saying an employer has to be nice. No one’s saying they, you know, that unwelcome, you know, that inappropriate conduct, you know, based on unprotected categories is unlawful.
It might be unwise. But really we’re talking about prohibiting harassment on that relates to the protective categories and under Title vii, that that conduct, that harassment needs to be so severe and pervasive that it alters the conditions of employment, right? So in reality, what, what does that mean? Yeah. That generally courts will look at situations where an employee might have been subject to a few one or maybe even a few questionable incidents that don’t, doesn’t amount to unlawful harassment. You know, making one inappropriate joke, you know, in the workplace generally isn’t going to rise to the level of hostile work environment. Now, depending on how severe that is, right? You know, one for instance, racial epitaph, you know, that could, that could, you know, lead to a hostile work environment, right? So if a very, you know, severe incident, and it’s just one time, that could create a hostile work environment.
But the main intention here is that, you know, this is something that occurs over time that this person gets, you know, it’s more than petty slights. It’s, you know, comments. You know, what, what might it include? It could be, you know inappropriate jokes, unwelcome, touching, you know, epithets, slurs you know, stereotyping demeaning comments. And again, those could even be on social media or email doesn’t need to be in person. You know, InApp inappropriate comments about someone’s dress, right? Or, you know, how they look or sharing someone’s, you know, look, I, I’ve had a lot of cases where there were employees who kind of probably thought they were just, you know, having water cooler talk and might talk about their sexual exploits, right? And that’s a, you know, some employees found that incredibly offensive and maybe asked for it to stop, but people thought it was funny and continued. And that can create a hostile work environment. For instance, you know, based on sex,
VANNOY:
Brandon, I mean, I tend to give business owners benefit of the doubt for intentions, right? I mean, I don’t think there’s a bunch of people out here obviously discrimination and based on sex racism, these things are real. They exist. But, but, but I tend to believe that’s the minority, not, not the majority. Where where do, and, and so when it is blatant somebody using a racial fta, somebody can, you know, being too handsy, and I think anything, the handsy is probably too handsy, but, but being handsy at work, I mean, these, these are pretty clear lines I think everybody gets, where are the areas that you see employers get in trouble and they’re surprised, you know she’s a great manager, she’s just a good person. Everybody knows it. And she’s like, what do you mean I’m harassment? I had no idea. I mean, I, I, I think this is probably where we need to yeah. Guide folks the most.
SHENKER:
No, and, and I, I, you’re, you’re spot on. So I think that, and again, we’ll talk later about, you know, what employers can do, but I, you know, training comes into play here because look, you know, even if someone does not object to some type of, you know, communication or jokes, things like that, what’s appropriate for the workplace, it doesn’t change based on, you know, whether someone seems to object to it or not. Right? You know? So I, I think that’s often what I see in, in my cases where, you know, the employer will typically say, yeah, but, you know, the, the manager says the employee engaged in these conversations and, you know, everyone joked about this stuff, and they, they never complained about it. It just seemed like it was, you know, just regular kinda, you know, guy talk or guy talk, you know, things like that.
But again, you know, that doesn’t make it appropriate for the workplace. So I think, you know, that what supervisors, what employers need to understand and train their supervisors on is what’s appropriate for the workplace, right? You know, so there are some things that should just not be discussed, right? Jokes that are insensitive or, you know, based on race or sex, that might be fine, you know, between two friends out of the workplace, but that’s not necessarily workplace conduct because someone overhearing that, or part of that conversation may be, you know, deeply offended by that. And, you know, so I, I think that, you know, having managers who can identify this type of conduct is great. But then, you know, also having an open door policy where employees understand that they can go to the employer before these things escalate to an issue where, you know, they feel that they’re gonna have to go to an attorney or the EEOC, right?
Right. That, you know, so employers who can show that they care and they will consider your complaint and take it seriously, you’re much more likely to have employees coming to you. And again, as we’ll discuss later, it’s much more beneficial to have employees bring these issues to the employer than going elsewhere, which likely leads to a claim, right? So if employees believe the, the company will address their concerns, then a lot of times, you know, a hostile work environment type claim won’t have time to develop because the first or second time someone hears something in inappropriate, they’ll, they might say something, they might bring it to HR or their supervisor and say, Hey, I’m not comfortable with this. And then the employer can, you know, have an opportunity, you know, to address the issue. And again, that can also form a defense to, to this type of claim, right? Having the right policies in place, taking action when there is a complaint, you know, that can form a defense to a hostile work environment claim of
VANNOY:
The title. I know we’re gonna talk some best practices to, to wrap the conversation up in a few minutes, but I, something that I, I’ve seen in, in a lot of small businesses especially, right? You don’t have an HR department. You, you have the owner, you have maybe you know, an office manager who wears many, many hats. Where I think, I think there’s this ex, when you have a mix, so let’s say you’re small business, you’ve got 25 employees, and you’ve got your good business, you’ve got very low turnover, which means, you know, 20 of those employees have been around for a while. 10 of ’em have been here for a really long time, and there’s not many new people that come into the mix when there’s almost this, almost this orientation of new people, not to the job, but to the culture where I think some people perhaps get used to, oh, she just tells those types of jokes, but it’s, but it’s not how she really thinks, or he seems really mean and gruff, but he’s just, that, that’s just how he is.
And I think people learn the humans per in these behaviors. And I think it’s almost like the, the metaphor of the frog in the pot of boiling water. I think as an entre entrepreneur or business owner, you could be in a lot hotter water than you think you are bringing new faces into, into these areas that somebody from the outside, they might see this as harassment. Where, to you internally, it’s like, we’re just family. You, you mentioned you and what got me thinking this was, you said, what might be appropriate for two friends talking at the bar versus at work? Well, if you’ve been working with somebody for 5, 10, 20 years, you’re probably friends, right? And so these lines can blur and anything you would, you would guide before we get an explicit best practices around this whole long-term employment, new employees coming in, friend zone kind of thing.
SHENKER:
Yeah. So, you know, it is so funny cuz I’ve seen this before in litigation and I’ve seen it play out and yeah, the result isn’t good for the employer because, you know, and I, I guess what I would say is that setting the culture for your company is very important. And it’s if, if, if you, as the employer, the owner HR don’t actively work on setting the right culture, then the culture that’s created is just whatever the employees create. And more often than not, that’s not going to necessarily be a fully compliant culture, right? So I, I think the, the main takeaway is that doing nothing can run you risks. And that, you know what we’ll discuss a culture of compliance, the culture of Open Door, you know, receptive taking, you know, to complaints and taking them seriously. You know, that’s the type of thing that sets the tone.
And then when you have new employees, right, they’re, they’re not gonna be walking into the quote unquote wild West, right? That’s been created by, you know, years of neglecting, you know, what your company’s culture should be. Because just because you’ve let it get that way doesn’t mean that’s how it should be. It doesn’t mean it’s compliant. And it could be someone who’s endured that culture for 10 years, who’s the one who complains, right? Doesn’t take necessarily a new person, but Right. You know, the, the, the excuses that, oh, that’s just how Johnny is, or Yeah, he’s just a really nice guy. He’s a little touchy feely. That’s just how he is. You know? Right. That’s not the defense that you, you wanna be asserting when, when you’re facing a claim. Like one of
VANNOY:
These, let’s move on to, I’ve got a couple more here. I, I, this is, this is the one that I think in my own personal life, seeing this play out for entrepreneurs has been the biggest surprise is retaliation. Because retaliation claims certainly it could be, you know, the employer is, is not taking a very high road and it’s clear retaliation, oh, you’re gonna do that. Well watch this. That’s usually not what drives these, these are much more subtle and nuanced, where frequently I’ve, I’ve seen cases where the employer genuinely had that employee’s best interest in mind. They made a change policy, procedure, sales territory, commission plans, whatever to that they thought they were literally helping this employee. The employee perceived it as, oh, I complained and they retaliated against me. Okay, good. Un unpack this area of retaliation. Yeah.
SHENKER:
And, and I think you’ve set the stage very well. And to me, retaliation claims are almost the, they probably are the biggest concern that employees ha employers have in this area. I believe under the EEOC statistics for the past year, whether it was 2021 or 2022, it was over, over 50% of the charges they received had retaliation claims under a federal statute. Whereas I think, you know, and you’re in the low 30% for race and sex and the low 20 percents for charges that included, I think, in age discrimination claim. So they are by far and away the, the, the number one claim thEEOCs receives. And a lot of it is because a retaliation claim doesn’t require an individual to prove a discrimination claim. All that an employee needs to prove for a retaliation claim is that they participated in protected activity, which means they opposed or assisted someone else in opposing discrimination.
Yeah. and that they suffered an adverse employment action that was the cause and the cause of that was their protected, you know activity. So just unpacking that protected activity, that’ll generally be a complaint. It can be an informal complaint, it could be a comment to the manager, it could be a written complaint to hr, it could be filing an EEOC charge. All of those are protected activity. It could be test, you know, supporting someone, testifying for someone who’s filed an E EOC charge. And then they suffer an adverse employment action. Now, earlier when we were talking about disparate treatment, I, I mentioned how, you know, for, for that type of claim, an employ an adverse employment action had to be something big, right? Like a termination, a suspension you know, failure to hire. And it didn’t necessarily involve more minor things like being left out of meetings or off of emails. When it comes to retaliation, even those more minor things can be actionable. And I think that’s what you’re, you might have made a point towards Mike where, you know, there can be a lot of subtlety you know, in retaliation, right? You know, you don’t just need to fire someone, right? It could be assigning them additional duties or taking away duties or, you know, not inviting them to a department meeting leaving them off, you know department emails you know,
VANNOY:
Cha changing their work shift. They came to you with a concern about employee X and that employee X is maybe did something not so nice, but you’re like, you know what? They’ve been here, they, they have more tenure. I’m just gonna split those two up. Yeah. Well, you think you did a good thing? It’s like, well, I complained about somebody who was harassing me, and they put me on a shift that it impacts my family and my, my, my, my, my life schedule. Right?
SHENKER:
And, and, and look, I think for companies, the biggest thing to understand is that, especially in my experience, the retaliation, you know, that occurs, does typically does not come from the top, right? There’s usually not a directive from the business owner or HR to, you know, change this term or condition of employment. Yeah. A lot of times this is, you know, manager or supervisor driven, right? Where if someone’s made a complaint and they’re still reporting to a supervisor, that supervisor finds out, if you haven’t made it explicitly clear to that supervisor that they’re not to retaliate, it may be they’re just, you know, internal, you know, feeling that I’ve got, I’m gonna get back at this person and I’m gonna find a way, and it’s not gonna be so explicit, but, you know, they’re gonna do little things like ignoring the employee or, you know, what have you.
And so it’s often the supervisors that are, you know, engaging in this, not necessarily, you know, coming from, you know, the, the higher management levels. And so when, when a company does receive a complaint of discrimination, it’s very important to notify verbally and in writing to Yeah. You know, the managers, the supervisors who deal with that employee that they should not retaliate against that individual. Right? Now, I, I should also point out that just because someone engages in protected activity, right? Fi making an internal complaint, that doesn’t mean that there are no repercussions for poor performance. It only means that, you know, it really amplifies the need to document discipline and document the reasons why a company takes certain actions so that, you know, understanding there’s a chance someone might allege retaliation, that’s make sure we have the documentation to show why we’re doing this. So, you know, I, I would never tell an employer just because someone’s filed a complaint or made some internal comments about discrimination, that you can’t change their terms and conditions of employment. But we wanna make sure that we’re doing it for business related reasons, and it has nothing to do you know, with, with the protected activity.
VANNOY:
Right. That’s a good segue. Let, let, let’s wrap the conversation on, on best practices. So kind of explored a bunch of the reasons disparate treatment, disparate impact, harassment, retaliation. We didn’t talk straight up negligence, but I think people understand what that means. What are the proactive things that employers should be doing to stay compliant with Title vii?
SHENKER:
Right. So, I mean, the, the first, the very first starting point here is gonna be have an anti-discrimination policy. You know, if you ever, you know, have, you know, an E O C charge or face a lawsuit, one of the first requests is what, what are the policies in place? So you want a very clear anti-discrimination policy that will forbid all forms of discrimination, right? You’re going to address those under Title vii. The other federal statutes we’ve mentioned, if there are any additional, you know protected categories under state or local law, you’ll want to include those and, you know, define discrimination, right? You know, it can includes harassment or, you know, based on any protected characteristic. You know, a good policy might even, you know, include examples of when discrimination, you know, can occur. For instance, you know, in recruitment, hiring, you know, interviews and, you know, promotions and transfers, compensations so that employees understand, you know, where it’s prohibited.
As we just mentioned, retaliation, retaliation should be explicitly prohibited in this policy. But probably the most important part of an anti-discrimination policy is the section about how to report and complain about discrimination. Number one, there should be multiple people to complain to. The, I I often have situations where there’s, the problem is that it says there’s one person to complain to in the company. And if, for instance, that is the person who’s harassing the employee, they’re not going to complain and would likely be excused under Title vii, because why would they complain to their harasser that they’re being harassed? They wouldn’t expect anything to be done. So
VANNOY:
Is is commonly the case in the small business, even if it’s not that person, they know that the harasser has been working for 10 years across the desk from the, the person that they would, the HR person, office manager owner. So they don’t feel safe reporting just because of that connection.
SHENKER:
Right? Exactly. So that’s why you wanna make sure there multiple ways to complain. Cuz as I mentioned, if if the company doesn’t provide an outlet to employees, then they’re gonna go externally. And it’s the absolute ideal situation for an employer to handle discrimination matters internally. Why is that? Number one, obviously it reduces the likelihood of potential litigation, but number two, you’re setting the culture of we take complaints seriously, we’re gonna deal with it. And, you know, that makes for a better workplace, better morale and, you know, less likely to, you know, receive claims you know, outside of the company. So, you know, that’s very important. And then of course, it’s not good enough to just have the policy, right? Many employers have a policy in place. Yeah. And they send me a handbook and I say, okay, did this employee receive it? Well, we think they did, but we’re not sure. And so it’s very important to have acknowledgements for the receipt of the, you know, handbooks and anti-discrimination policies because,
VANNOY:
You know, and I’d, and I’d say on that category, it, it’s like a good c y a to like, acknowledge receipt. But do, do better it train on it, walk, carve out time. Mm-Hmm. <affirmative> on the clock time, page by page, go through it, explain, this is what this means. This is why, this is why we put it in the employee handbook, right? It’s too important to not train on it.
SHENKER:
Yeah. And, and training is real important. And I think, you know, we often do separate training for employees and then, and management, right? Because employees should understand, you know, the law, but there’s additional skills to teach management, such as, you know, the ones who are involved in hiring and firing and how you know, what their requirements are, and, you know, what can they say and what can’t they say during an interview? And, you know, so I, I think how to spot, you know, discrimination or, you know how to spot a request for an accommodation, how to spot an a complaint. So yes, you know, having a policy and having people sign for it alone, that’s, that’s not enough, right? There should be some element of training you know, which, which can go a long way. And then I, I think the last aspect, you know, of, of what an employer can do, and it’s something we’ve, you know, we’ve touched on, is addressing complaints of discrimination.
So what, what are we really talking about? Investigations. And they are so important because not only right, does it encourage this open workplace where people are comfortable raising issues, yeah. But it can provide the company a defense, an effective defense and litigation. And so, you know, just a few quick tips on, on investigations of, of complaints they should take place promptly. And so, you know, we’re talking within 24 hours, the wheel should be in motion from either knowledge of the incident or the complaint, and they should be completed as soon as reasonably possible. It should be a priority. If you’re a small employer and you’re not equipped to do an investigation, look to an outside source, right? I know Asure has HR consultants who, you know, can conduct investigations and sometimes a third party, you know, in independent investigation is beneficial even if you have the ability to do it yourself.
But then, you know, documenting the investigation, right? Effective note taking for statements you know, noting, you know, the date and time and location of interviews and, you know, including all the specific facts of, you know, what, what a person says, you know, these are the things we want to document. And so, you know, I usually say that there are a number of steps, right? You, you develop a plan before you jump into the investigation, develop a plan, who are we gonna interview? What are the facts? What are the company policies at issue? Then you conduct the interviews, right? And you get documentation. Sometimes it might be text messages, could be emails, could be anything else. And then you’re going to evaluate the evidence, right? You know, you’re the employer, you’re coming to a decision as to what you reasonably think occurred based on the evidence, the statements, and the evidence.
And then you decide, you decide your course of action, whether we’re gonna implement some discipline, whether there’s, you know, no corroboration of the allegations, and you’re gonna document the reason for the decision. And then look, you know, many employers will leave it there. They’ll close the investigation. But I think, you know, a key element to a good investigation is the follow up, right? So let’s say we found that, you know an individual was, you know, possibly being harassed, right? And we’ve, you know, moved the supervisor somewhere else. And so we might want to check up every couple weeks thereafter to make sure the employee isn’t having issues or, you know, whatever it may be. Or even if the company found there was no corroboration to their allegations, maybe a couple weeks later you check in, make sure things are going well, you know, if it involves an accommodation, right? For, you know, religion or disability, you know, we wanna make sure are, is the accommodation working, things like that. So you know, an investigation doesn’t end right when you make the decision. I, I think a key element to a good investigation involves some follow up by the employer to make sure that the outcome is working.
VANNOY:
Yeah. You know what? So I I, I think w well said two buckets, right? It’s, it’s do say, you know, say what you’re gonna do, do what you said you were gonna do, right? It’s, it’s, you’re silly not to have a policy, right? I mean, you really are in today’s world. Hopefully, hopefully this hour has, has helped underpin that. But it’s not enough to have this on paper. You actually have to walk your talk, right? And then when something does happen, you provide the, the place and the forum in a, in a, in a, a way for employees to make their complaints, air their grievances, share their concerns. And I think if you do that, if you say what you’re gonna do and then do what you said you were gonna do, you contribute to, to me, the single best practice of all is always respect.
Are you treating your employees with respect? Are you treating them the way you would want to be treated? Do you have culture of open, honest, sometimes difficult conversations where, where you can, you can move forward? Because if you do that, employees will give a lot of grace. I mean, they don’t not file claims because they’re lazy. They sometimes don’t file claims even when there is clear harassment or retaliation or adverse impact or treatment. They don’t do it because they’re like, okay, he was stupid and he shouldn’t have said or done that. But, you know, I’ll, I’ll, I’ll give him grace because of how he treats people and treats me. And I’ll just Asureme that I’ll, I’ll give ’em the benefit of the doubt here. When you don’t treat people well and aren’t respectful to people, that’s when you don’t get the benefit of the doubt. Brandon, anything you’d want to say in closing?
SHENKER:
No, I, I, I think you’re right. And look, a lot of this is compliance. A lot of it also just goes, goes to the workplace culture and, you know, the compliance goes to that culture that, that you were just speaking of, right? If, if an employee, or if an employee sees the company doing the right things and they have a bad situation with a coworker or supervisor, right? They’re gonna be less likely to just go assert a claim against the company in court. They’re gonna feel that, look, my company respects me. I can bring this to management, I can bring this to hr, and they’re gonna take it seriously. And look what a lot of civil rights laws really address and Title VII really addresses is respect, right? That employees should be respected, and what’s the number one way to respect someone treating them the same as everyone else, and not treating them differently because of some cha, you know, characteristic. And so, you know, that’s what this is about. And, you know, even putting aside protected characteristics is treating people fairly and respectfully in general. Is the workplace, you know, culture that, that you want to create. And it’s gonna lead to less claims. And might, might, you know, might lead to more internal claims, but that’s great. You can address those issues. Yeah. It’ll lead, hopefully lead to less legal
VANNOY:
Claims, right? That’s right. Brian, thanks for joining me today. I think with, I think this is helpful. I think there’s a lot of stuff that when it comes to discrimination that I think we all just kind of take for a granted. It’s like, oh, that’s not me. That doesn’t apply to me. I’m a good person. I don’t discriminate. But employers get themselves in trouble with very innocent intentions. So good advice to, to, to entrepreneurs, small business owners and managers, to, to be forward thinking when it comes to staying compliant, being compliant with, with Title vii. So thanks to you and thanks to everybody else for joining us today. Until next week, have a great week.