What is the Pregnancy Discrimination Act? by L D Sledge, JD

The Pregnancy Discrimination Act is one of the progeny of Title VII of the Civil Rights act signed into law by President Lyndon Johnson in 1964.  Initially it covered discrimination because of sex, race, color, creed and national origin. It has been expanded to include age, pregnancy, pay, religion, ancestry, genetic types and a number of other areas have been brought within its embrace.

The Pregnancy Discrimination Act (PDA) applies to employers with 15 or more employees, and is violated when expectant women are not hired, fired, or otherwise discriminated against due to pregnancy or intention to become pregnant.  Employers may be likely to discriminate if they hold prejudices against working women and mothers and fear the productivity loss due to the absence of the employee.  Sometimes employers are unable to find and use temporary employees, unable to afford overtime pay for other employees to fulfill the duties during leave, or fear the employee will require too many accommodations after her return. This is a delicate area, and an employer will do well to avoid the dire results of in this area. Here are just a few of the tens of hundreds of cases.

Cases:

*  A boat captain fired while pregnant refused to abandon ship. she won $85,000 for emotional distress, repayment of all lost wages and the employer was fined $25,000. (Robert Ottinger, New York Employer blog, August, 2009)

* Jury awarded $720,000 in damages to an associate and a paralegal who claimed they were forced out of their New York law firm because of pregnancies. (Article posted in the ABA Law Journal August 22, 2008, by Debra Cassens Weiss)

* A Marin County Judge awarded $113,800 against filmmaker George Lucas for withdrawing a job offer to a San Francisco woman after she disclosed she was pregnant.  (Article by Bog Egelko, Chronicle Staff Writer, July 01, 2010.

Credit History as Hiring Criterion? No, No, No. By L D Sledge, J.D.

In December, 2010, the Equal Employment Opportunity Commission sued the Kaplan Higher Education Corporation for using credit history in its hiring process. The New York Times has the story:  http://www.nytimes.com/2010/12/22/business/22kaplan.html?hpwthe story.

Kaplan, a Washington Post Company, operates a string of for-profit colleges and training schools throughout the country.  The commission alleges that Kaplan has rejected job applicants based on their credit history which has a “significant disparate impact” on blacks. “This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity,” the commission said. Private and government surveys have suggested that about half of all employers use credit histories in at least some hiring decisions.

“Disparate impact” is the theory that if a given test or criterion rules out a higher proportion of applicants from one race than from another — which almost any test will, given racial (or in some cases age) gaps in skills and abilities — it’s presumed illegal unless the company can prove it’s “job-related.” And “job-related” doesn’t just mean “significantly correlated with job performance”.   IQ tests may prejudice the ability to perform any given set of tasks, but they are totally verboten.

Justine Lisser, an E.E.O.C. spokeswoman, said that credit histories were often inaccurate and might not be a good indicator of a person’s qualifications for a particular job. “Credit histories were not compiled to show responsibility,” she said. “They were compiled to show whether or not someone was paying the bills, which is not always the same thing.” “This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity,” the commission said. The agency did not specify what types of jobs were involved.

So what can be learned from this? Don’t use credit history as an element of hiring rationale.  Buy and read NO FAIL HIRING, and then schedule a workshop to get the confidential details on how to put this foolproof procedure into application.

EEOC shoots to kill in ADA cases, by L D Sledge, J.D.

FOR THE WANT OF A STOOL, A BUSINESS GETS SUED

Small business must be alert to an overall attack by the Equal Employment Opportunity Commission (EEOC) to enforce the American Disabilities Amendment Act, which requires employers to hire disabled personnel if the person can perform the job.

“The contributions of people with disabilities to the workplace ought to be valued, not rejected based on myths, fears and stereotypes,” said EEOC Chair Jacqueline A. Berrien. “The ADAAA made clear what the EEOC had always asserted: people with a range of disabilities are protected from unlawful discrimination. We hope that these cases send a clear message that the Commission will vigorously enforce the ADA.”

In September, 2010, the EEOC charged Eckerd Corporation, a nationwide drug store chain doing business as Rite Aid (EEOC v. Eckerd Corporation), for refusing a reasonable accommodation---a stool to sit on. The employee, Fern Strickland, had worked as a cashier for Rite Aid for seven years and had severe arthritis of her knees. She was given a stool to sit on, and was able to carry out her work with satisfaction until a new manager “didn’t like the idea” that Strickland used a stool. She was terminated because the manager refused to accommodate her disability “indefinitely.”

This violated Title I of the ADA. The EEOC filed suit after first trying to reach a voluntary settlement, and is seeking back pay as well as compensatory and punitive damages, as well as injunctive relief designed to prevent such violations in the future.

Compensatory damages compensate the claimant for things actually accountably lost---wages, past, present and future, mental and emotional anguish, pain and suffering, etc. Punitive damages are where companies get fried through “punishment” or to make an example. Juries have zero tolerance of such incidents as in the Strickland case and a large damage award is expected. Could this manager have kept the stool?

 Was this an error in hiring this guy? You bet!

A hidden common denominator to all successful entrepreneurs - by Patrick Valtin

Expanding your business always starts with NOT attracting the wrong people! Successful entrepreneurs like Steve Jobs (Apple), Kevin P. Ryan (DoubleClick), Tony Hsieh (Zappos.com) or Richard Branson (Virgin Group) spend 60 to 80% of their time finding top players and avoiding trouble makers! 

This is where they make the difference. If you hire the right people you don't have to manage them. Most of your wasted energy, your trouble and your frustrations come from a minority of people who should not have been hired in the first place.

"We employ 200,000 people. So I can make the case - and I have for years - that the most important discipline at Starbucks is human resources." - Howard Schultz, Starbucks

"I used to think business was 50 percent having the right people. Now I think it’s 80 percent. The best way to be productive is to have a great team. So I spend more time than most CEOs on human resources." – Kevin P. Ryan, Double-Click 

" One of the most important aspects of being a superior leader is hiring people smarter than you. Top leaders spend more time putting the right team in place to accomplish their objectives than they spend on planning, strategizing or many other components of their job." - Bob Prozen, author of "Kiss Theory Goodbye."

"I hire people brighter than me and then I get out of their way!" - Lee Iaccoca. 

"I have participated in the hiring of maybe 5,000-plus people in my life. So I take it very seriously." - Steve Jobs.

The tip us thus simple: you need a competitive edge, a No-Fail Hiring guide to attract and recruit the top players, so you can surround yourself with honest, dedicated and able people who share your core business values, while appreciating your performance standards.

Over 80% of your problems as a leader or executive come from having hired the wrong people. Be smarter in the hiring process and you won't need to work so hard later!

Patrick Valtin,

Author "No Fail Hiring."

What is Negligent Hiring and Retention?

     Hire or retain an employee whom you know or should have known had a criminal record or a tendency to injure another and you are risking all you have ever worked for.  Tallahassee Furniture employed a man in the yard and let him drive the truck. Then they sent him out to delivery furniture, which required that he enter the homes of the customers. He delivered a sofa to a customer who gave him a TV. Later that night, after work, he returned under the pretense to get a receipt for the TV to prove he didn't steal it.  She let him in, for he had been a representative of the trusted store. He attacked and raped her.  Judgment against Tallahassee Furniture for $2.7 million. He had a record of violence.
     Juries have zero tolerance for employers who are careless in hiring, allowing high risk people to enter the homes of customers, resulting in injury.  Juries give compensatory damages (award those damages that are provable such as lost income, medical bills, even pain and suffering, etc.). On top of that, if the offense is particularly heinous, they award punitive damages to punish the defendant and set an example. Most states have punitive damages, and aggressive lawyers inflame juries to award monstrous verdicts.  Witness the multi-million punitive damage award in the infamous McDonald's spilled coffee case. The largest punitive damage award in negligent hiring I have seen was for $40 million.
     How can you avoid the possibility of this happening to you?  We can guide you through this minefield.

L D Sledge, JD

Why No Fail Hiring

      

     CEO's and upper management often delegate the time consuming business of hiring to a junior, with little guidance or plan in mind except just to hire a person competent to do a job, they hope.  Management doesn't have time.  They fail to realize that quality employees = quality production.

      Most innately know the vital importance of the task, and usually have no clue that there is a specific technology in hiring that will spot the good ones and the bad ones. It is a daunting task, and a dangerous one.

     When a business starts, the entrepreneur hires the first employee--himself. The goals, purposes, plans and polices and ideal scenes must be clear to start. Then, to expand, he/she hires someone to take on duties that must be delegated to put attention on creating the business. From there the success of the business depends on these employees not just doing their job, but being loyal and having the company's success as a primary consideration. This factor depends on more than leadership and orders. It depends on the quality of the employee. One who will do a stellar job and not sue you.  

     Suppose the employee is lazy, or even criminal.  How can you tell at the time of the hire?

     Have you ever heard of Negligent Hiring and Retention?  Did you know that the average jury verdict is $1.6 million dollars?  Did you know that the lawbooks are filled with huge judgments against small business for sex, age, pay, and disability discrimination, as well as sex harassment cases?  Later blogs will lay these problems out clearly.

     This is where No Fail Hiring comes in.  Buy the book, take a workshop, remove the guesswork and become a master hirer.

L D Sledge, JD

    

Introduction: L. D. Sledge

 I am L. D. Sledge, co-author of No Fail Hiring with Patrick Valtin.  As a successful attorney for forty three years, I have the experience needed to assist small businesses in hiring the just right employee and avoiding the disaster of having the wrong employees. I have personally had employees who turned on me and as a result I lost my practice.  It is my goal to teach, in blogs, workshops and consultations, how to pick winners and sidestep the legal dangers to prevalent in hiring and managing employees.  

Today's litigious environment is a minefield for the unwary businessperson who wants to make an honest living by applying skills, resources and energy in this risky entrepreneurial world. There are enough worries just handling the day to day business without having to sweat legalities and the possibility of violating some federal or state law. Today the business terrain is littered with the bones of entrepreneurs who ran afoul of bad employees who sued and obtained horrendous judgments from juries using the punishing tool of punitive damages, often damaging the business beyond repair.

My blogs will hopefully shed some light in these difficult areas. I will never give legal advice in these blogs. Consider my viewpoint that of a realistic teacher who wants you to succeed.  Stay tuned. I hope to make it interesting as well as informative.