Halloween at work: Don’t get BOOed by your employees!

October 30, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

Halloween can be such a fun holiday for kids of all ages. When October 31st falls on a weekday, as it does this year, ghoulish fun will certainly creep its way into the workplace. How can you, as a human resources professional, ensure that the day is more fun than it is scary? Simple. Just follow a few rules.Halloween theme 3

1: Make any Halloween office festivities totally voluntary

As you know, Title VII of the Civil Rights Act of 1964 protects employees from religious discrimination in the workplace. Even though most people would consider Halloween in 2017 to be largely a secular holiday, it does have religious roots. Be considerate of employees who do not wish to participate in dressing up in costumes or attending Halloween-themed workplace parties. The employee may have a religious reason for not wanting to observe Halloween, and the employee has no obligation to notify the company of his or her rationale for not wanting to participate. Keeping the festivities 100% optional will help prevent any such issues. (As an aside, keep in mind that one or more of your employees may request, as a religious accommodation, to miss work that day, as it is a recognized Wiccan holiday.)

2: Ensure that any Halloween costumes are appropriate for the workplace

As Lili Reinhart recently found out, not all Halloween costumes are created equally. The actress, who stars on the “Riverdale” series (on the CW), tweeted a picture of her planned Halloween costume, which was an all-black demon. The backlash on social media was swift and unequivocal, as the costume appeared to include blackface. Reinhart apologized immediately, stating that she could “see how it was interpreted as being insensitive, completely.”

Other celebrities have also caused debate in recent years, including singer Chris Brown who dressed up as a Taliban member, and Prince Harry, who dressed up as a member of the Nazi party. Such costumes, of course, in the workplace could lead to claims for unlawful harassment. Simply put, be sure that employees understand that all costumes must be workplace appropriate and that the costumes do not stereotype any religion, national origin, gender or race in a negative light.

In addition, employees should be reminded that any costumes should not be too revealing or provocative, and should not contain any type of weapon as an accessory. Finally, costumes should be safe: if the employee works in a job around heavy machinery or where chemicals from a costume could become flammable, then the safety risks outweigh the benefit of fun, and the employer should not allow the costume. When in doubt, ask the employee to go home and change.

3: Be mindful of the professional setting if you plan to allow children to visit the workplace on Halloween

Many employers allow the children of employees, and sometimes even children of customers and suppliers, to visit the workplace after school hours on Halloween and trick-or-treat down the hallways. Although such events can be morale-building and lead to employee bonding, they can also present unintended problems. As a practical matter, be sure that you have communicated this event to all employees and remind them several times prior to the day, so that large or important meetings are scheduled at other times. As cute as the kids in costume are, you do not want to frustrate an important customer or client who needs to be in your offices that afternoon for an important meeting.

Further, if a nonexempt employee needs to leave work to pick up his or her children to attend the event, be sure that you have communicated to the employee whether he or she must use PTO time for this voluntary activity, whether it will be allowed while on-the-clock, etc. Communication prior to the event is important.

With the above in mind, you can ensure that any Halloween-related festivities at your workplace are safe and fun (and uneventful from a human resources perspective!).

New media rating seeks to bring common sense to gender stereotyping

July 10, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

When my son was five and constantly arguing and negotiating for extra dessert or whatever it was that he wanted at any given time, people would often say, “You should be a lawyer!” His response was always: “I don’t want to be a lawyer because that’s a girl’s job.” While slightly humorous because lawyers are not stereotypically female, I would always respond that there was no such thing as girls’ jobs or boys’ jobs. Because I was a lawyer, he saw the world through that prism. Despite what kids see in real life–that the world is filled with men and women who do not conform to stereotypes in their careers and in division of labor at home–according to studies by Common Sense Media, movies and television have not kept up with the times; and undoubtedly, media play a huge role in how we all view the world–not just how kids do.  Gender Equality

Common Sense Media is a nonprofit organization that runs a website providing parents and teachers with advice on media and technology for kids. It publishes independent ratings and reviews for nearly everything kids want to watch, read, play, and learn. Common Sense Media is based on the premise that images kids see early in life can have a significant long-term effect on their perception of the world. While much attention has historically been focused on the impact of violent movies, video games, and other media, one of the less discussed areas is on-screen depiction of gender.

In late June, Common Sense Media expanded its rating to include how well TV shows and movies combat traditional stereotypes. It developed the ratings based on research into gender portrayal in the media. The research found that media images have tended to suggest masculine traits are favored over female ones and that girls should focus on their looks. This, in turn, can lead to tolerance of sexual harassment and the reinforced beliefs about what men and women can do, and thus what careers they feel they should choose. A rating of “positive gender representations” will appear with a movie or TV show, which means that the reviewers judged it to prompt boys and girls to think beyond traditional gender roles.

A slew of online comments posted in response to a New York Times article about this new rating system suggest that this rating has been met with some controversy from those parents who have chosen traditional roles, anticipating that it might ultimately alienate parents as seeming judgmental.

Regardless of this controversy over whether movies that depict stereotypical roles or traits for men and women should be devalued by this new rating system, at work, basing employment decisions upon gender stereotypes is illegal. In 1989, the Supreme Court first ruled that gender-based stereotyping violates Title VII. In Price Waterhouse v. Hopkins, the plaintiff claimed that she was denied partnership at her accounting firm based on her lack of conformity to stereotypes about how women should act and what they should look like. Her male co-workers described her as aggressive, foul-mouthed, demanding, and impatient with other staff members. The Supreme Court recognized that making employment decisions based on gender stereotypes is a violation of Title VII of the Civil Rights Act of 1964.

Additionally, although sexual orientation or gender identity are not a listed as protected categories within Title VII’s list, recently, a growing number of federal circuit courts have expanded Title VII’s protections to include sexual orientation and gender identity as protected classes under this sexual stereotyping theory. Because of this, uniform policies have been under strict scrutiny to the extent employer standards reinforce stereotypical gender roles. Historically, under federal law, differing standards based on sex or gender were permitted so long as they did not impose an undue burden, but we are beginning to see a shift in what will be permissible under Title VII as this area of the law develops.

New York City Commission on Human Rights has recently weighed in and issued broad policy guidance on impermissible uniform or grooming standards. Some examples of prohibited rules are as follows: requiring different uniforms for men and women; requiring women to wear makeup; only permitting employees who identify as women to wear jewelry; only permitting employees who identify as male to have short hair or requiring employees to always have long hair pulled back unequally based upon gender.

It remains to be seen how much this new rating will affect sales, which may, in turn, affect future media writing. My personal view as a mother and as an employment lawyer–why not praise media that fight stereotyping and force us all to see the world through the legally required prism!  Isn’t this the first step toward inclusion?

 

Sorry, J-Lo and CeeLo: Real world requires carefully crafted employment dress codes

February 14, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

The Grammys aired on Sunday, February 12, 2017. Every year, audiences tune in to the glamorous awards show to watch the presentation of such celebrated accolades as “Song of the Year” and to take in the live performances of their favorite musicians. I, however, plant myself in front of the television for one reason onlyto scrutinize the often outrageous outfits worn by the music industry moguls and Hollywood insiders. Can you believe that it has been almost 20 years since Jennifer Lopez walked the red carpet in the green dress that was slashed all the way down to her pelvis? Such eye-popping outfits and costumes continue to dominate the show.  Casual and formal look

In my opinion, this year’s award for most intriguing Grammy look went to CeeLo Green, who dressed in gold from head to toe and donned some sort of gilded hairpiece that commentators appropriately compared to a piece of Ferrero Rocher candy. A-list celebrities have the freedom to express themselves with bold clothing wherever they go, of course, including to “work events” such as the Grammy Awards. However, for everyday employees, that is not the case.

The HR department (often in conjunction with an in-house legal department or outside legal counsel) should adopt dress code policies to ensure that employees are exercising good judgment with respect to personal grooming and attire in the workplace (and while attending any work-related, after-hours functions). Such policies are necessarily broad-ranging, from a required, singular uniform that all employees must don in a specific manufacturing setting to a relaxed policy where employees are free to wear their own clothes each day so long as those clothing choices are appropriate for the company’s business (and industry).

While enjoying wide latitude when it comes to adopting dress code policies and practices for their workers, employers must take caution with respect to a couple of areas or chance running afoul of Title VII of the Civil Rights Act of 1964. Therefore, to avoid an Equal Employment Opportunity Commission (EEOC) charge related to dress code (and to avoid litigation by the EEOC or an individual), HR representatives should consider the following when drafting or reviewing their organization’s dress code policy:

  • A dress code policy may not treat some employees less favorably because of their national origin. The example often cited by the EEOC is that a dress code may not prohibit certain types of ethnic clothing, such as traditional African or East Indian attire, while allowing employees to select and wear other types of casual clothing.
  • An employer must consider and evaluate possible religious accommodations with respect to its dress code policy. An employee may request a religious accommodation under Title VII when a dress code conflicts with the employee’s religious practices. In such cases, the employer should consider modifying the dress code to remedy the conflict or permit an exception (unless it would cause an undue hardship). A group of high-visibility lawsuits brought by the EEOC against Abercrombie have focused on dress code policy in the context of a Muslim hijab (headscarf), which the company claimed violated its “Look Policy.” Not surprisingly, the EEOC disagreed with the retailer.

In sum, while it is a best practice for most companies to maintain a dress code policy to ensure that employees are dressed safely and appropriately at all times, such policies have to be drafted and enforced with an eye on anti-discrimination and accommodation laws. And, finally, here’s to hoping that your organization does not encounter such interesting attire on the job as that donned at the Grammy’s by JLo in 2000 and CeeLo in 2017!

Brilliant (but not bedazzled) baristas

August 01, 2016 - by: Josh Sudbury 2 COMMENTS
Josh Sudbury

A ton of us are drinking coffee. I have a paper cup full of “life juice” next to my keyboard as I write this post. Coffee is not the reason I get out bed, but it is certainly a large contributor to me not staying out for the rest of the day. And, consistent with our nation’s founding principles, Americans have the right to choose where to purchase their preferred stimulant.  Male barista making coffee - line design composition

Those who choose Starbucks may have a more colorful experience on their next fuel up thanks to a new dress code announced by the Seattle-based company last week for employees in the U.S. and Canada. (Though our northern neighbors still prefer Tim Horton’s to Starbucks.) The change comes after an online petition seeking changes to the dress code garnered a reported 14,500 signatures.

According to the Seattle Times, the new rules allow Starbucks employees to sport “unnatural” hair colors, so long as the hair colors are permanent or semi-permanent. No temporary dyes or sprays, glitters or chalks are permitted under the rule change. This means the person who regularly misspells your name on your mocha-frappa-whatever may now do so with pink and purple head sprouts, so long as he/she isn’t shaking a little something extra into your cup with each head turn.

The rules relaxation doesn’t stop there; employees may also sport something behind that well-recognized green apron other than the plain white or black shirt and khakis we’ve all come to expect. Starbucks’ new lookbook invites your friendly perk pushers to “wear a range of subdued shirt colors beyond black and white, including gray, navy, dark denim and brown.” But, the Company warns, “solids are your friend, and so are smaller, tighter, low-contrast patterns.” I agree. The last thing you want to see before you’ve brought the world into focus is a dizzying array of lines and patterns. 

But what about changes to your own dress code? Employers often seek to bring balance to the workplace or to project a particular image through their employee’s daily garb. As a popular fashion retailer found out last year, failing to know when to be flexible with these requirements can be costly. However, issue of safety or quality, as with Starbucks’ prohibition of temporary dyes, sprays, or glitters, can provide legitimate support for particular requirements.

Employers should also be wary of promulgating different requirements for men and women. While such differentiation is not illegal by itself, requirements that deny equal employment opportunities or place a greater burden on one sex over the other can be troublesome. Employers should also remain consistent in their application of these policies. Failure to equally enforce even the slightest requirements can raise animosity in and amongst the workforce, leading to other negative issues.

Along those same lines, employers should have a plan in place for dealing with employees who object to complying with the policy. Dress code policies (and any changes) should be clearly communicated to all employees to prevent employees from later claiming they weren’t aware of the requirements if they are found in violation. Employers should also take seriously any requests to alter the requirements by an employee claiming to need relief based on religious beliefs or due to a disability. While the requested change may not ultimately be necessary, failing to properly address the employee’s request can, in certain circumstances, give rise to a valid claim.

Age, sex, and sports media

December 21, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Sports reporter Colleen Dominguez is 54 years old and has enjoyed a successful career in sports journalism including a lengthy stint at ESPN. Dominguez recently jumped to Fox Sports 1 and believes her age and gender are the only plausible reasons that FS1 has cut her broadcasting assignments and diminished her career. These are her allegations in a lawsuit filed recently in a California federal court. The complaint tells the story of a veteran, experienced reporter who has paid her dues but is being pushed aside by the men and the new pretty girl on the block. Can a media company make decisions based on the age and gender of its on-air talent?a young woman journalist with a microphone and a cameraman

This is not the first time this has come up in the TV and entertainment industry. In 1993 a Minnesota jury awarded 53-year-old sportscaster Tom Ryther $1.2 million in an age discrimination case. Ryther, a longtime fixture on TV news, was not renewed after his network commissioned a poll that showed he wasn’t having a “positive” effect on viewership. According to Ryther, at the time of his termination, the station manager asked him how it felt to be a failure at age 53.  No doubt that played well with the jury.

Ten years earlier, a Missouri court ruled against a female newscaster on her sex discrimination claim. She was replaced on air after a local survey showed she scored very low in categories dealing with “good looks” and the image of a “professional anchor woman.” The court rejected her arguments that the station’s appearance standards were discriminatory and were applied more leniently to men.

Equal Employment Opportunity Commission (EEOC) regulations state that the bona fide occupational qualification (BFOQ) defense isn’t available in a sex discrimination case when the adverse action is based on “stereotyped characterizations of the sexes.” Likewise, the BFOQ defense isn’t available in an age discrimination case unless the defendant can show that the disqualifying characteristic cannot be separated from age. Dominguez’s complaint alleges statements by FS1 personnel that link her reduced workload to perceptions about her age and her gender.

Anyone who consumes sports television cannot help but notice that it is male-dominated, and the few women one sees on screen skew young. Is Dominguez a victim of industry perception?  It will be interesting to see how FS1 frames its defense.

Go Scrooge yourself: 5 biz holiday party tips

December 07, 2015 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

‘Tis the season for your company’s annual holiday party. And while the notion of drinking, eating and generally enjoying merriment with your coworkers, subordinates, and superiors may seem innocuous, it is anything but. What seems like a festive occasion during the most wonderful time of the year is, if sledded incorrectly, a mine field of potential employment law mishaps. And while I don’t mean to be a Scrooge, this week’s lesson comes from a scene in one of my favorite holiday classics, the movie Scrooged with Bill Murray. What can we learn from this seasonal, cinematic favorite? Well, you can learn that, for purposes of the company holiday party, you should consider “Scrooge-ing” yourself. office holiday party

In the movie, Bill Murray’s character, Frank Cross (the modern day Scrooge), is visited by three ghosts, several of whom transport him back in time to certain life events that froze his heart and led to his hatred for Christmas. During one of his time-traveling trips, Frank visits his office during a wild late-1960s holiday party. People are seen drinking heavily, dancing, flirting with coworkers, and dressing inappropriately, and one woman, Tina (who is wearing a rather skimpy Santa’s helper outfit) is even handing out photocopies of her derriere.

As the coworkers are partying with reckless impunity, Frank passes through the party while completing his work tasks. Frank is wearing his work attire and isn’t drinking. The boss asks Frank to note the ongoing party and implies that he should join. Frank politely declines and advises his boss that he has several projects that he needs to complete. Tina then approaches Frank, hands him a copy of her “resume,” and appears particularly enthused to see Frank. Frank essentially brushes her off and goes about his work. The merry office party, like the little drummer boy, marches on.

So what lessons can we learn from this scene? For purposes of the company holiday party, go Scrooge yourself, at least a little bit. Here are my top five tips for conducting yourself appropriately at the company holiday party, regardless of whether you are the CEO or the most recently hired file clerk.

  1. Dress appropriately. A company holiday party is still a work event. It’s not a Vegas nightclub. Stay away from clothes that will draw a lot of attention to you and provide fodder for your coworkers. If you look in the mirror and question whether your outfit is inappropriate, it probably is. Go change and put on something more appropriate.
  2. Don’t flirt with coworkers (again, it’s not a Vegas nightclub) or engage in other inappropriate conversations such as office gossip, politics, religion, etc. If this effectively eliminates 95 percent of your conversation, you should consider skipping the holiday party and reading some books and newspapers to broaden your conversation base.
  3. Don’t drink excessively (see Vegas nightclub reference here). Know your tolerance and drink in a manner that will permit you to maintain your professionalism. You don’t have to go full Frank Cross, but drink in moderation. If you drink, consider calling Uber or taking a cab home.
  4. Don’t stay until the wee hours of the night (save that for the Vegas nightclub). If history and college tell us anything, it’s that very bad things can happen late at night, especially when people drink. Plan to leave before the scheduled end of the party and stick to that plan. If you feel yourself getting drunk, regardless of the time, arrange for an Uber or a cab and go home immediately.
  5. Don’t assume everyone celebrates a particular holiday (no applicable Vegas nightclub reference). Many holidays are celebrated during December including Kwanzaa, Hanukkah, Christmas, Festivus (see my earlier blog referencing Seinfeld), etc. Be sensitive to the fact that we’re a diverse country with diverse holidays and rituals.

Moral of the story: When it comes to the holiday office party, Scrooge yourself a little bit. In other words, do the exact opposite of what you would do in a Vegas nightclub. Happy holidays!

Tricks and treats and trial briefs

October 26, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Remember NBC’s The Office? I think some lawyers used to blog about it. Anyhow, one of my favorite episodes was “Costume Contest” where the Scranton employees threw a Halloween party at the branch office. The costumes in the episode were mostly tame, ranging from Justin Bieber (Ryan) to Lady Gaga (Gabe). Late in the episode Angela dressed up as “sexy nurse.” The employment lawyer in me was not amused.  Devils Not in Disguise

Halloween is a few days away, and many employers will be holding costume-themed events. Unless HR steps in with some firm rules about costumes and conduct, some of those parties will invariably end up as reported Title VII cases. Consider just a few examples:

  • In a 2009 New York case, the plaintiff, dressed as a punk schoolgirl, was asked by her supervisor whether her fishnet stockings were waist-high or thigh-high;
  • In a 2009 Massachusetts case, photographic evidence of the provocative costumes the plaintiff wore to Halloween parties was offered by the defense in her sexual harassment case;
  • In a 2006 Louisiana case, the plaintiff dressed like a cat, prompting her manager to comment that he wanted “that p***y”;
  • In a 1995 Eighth Circuit decision, a white officer came to the party dressed in blackface, wearing overalls and a black curly wig, and carrying a watermelon.

Don’t let this be your workplace. Take steps before the party to diminish the risk of liability. Prohibit or limit alcohol. Do not allow provocative costumes. If the party takes place at the workplace, have it end at a reasonable hour. Remind employees about the company’s harassment and discrimination policies. Nothing is scarier than being sworn in for your deposition. Happy Halloween, everyone.

Halloween tips to avoid a total nightmare

October 27, 2014 - by: Josh Sudbury 2 COMMENTS
Josh Sudbury

It’s that time of year again. Time for Halloween and all the candy, cheesy ghost stories, and inappropriate costumes that come with it. While Halloween can be fun and exciting, the fallout for employers can be all fright.

Office Parties. While workplace costume parties can lighten the mood in the office, employers should be proactive in dealing with the potential issues that can arise.

shutterstock_157867430First and foremost, employers should communicate simple and clear rules or guidelines to their employees in advance of any party. Employees should be reminded that professionalism is still expected of them at work, both in their conduct and their costumes. This is especially important if your employees will interact with customers during the workday, as an offensive or inappropriate costume could cause more than just internal employee relations issues. Employers should give their employees examples of what is potentially inappropriate, so that there is no guesswork involved for the employee.

Inappropriate costumes can include those costumes that reveal too much skin or, depending the type of workplace you operate, those that have the potential to compromise safety. This category can also include costumes that touch on hot-button political or social topics, such as an employee lampooning a high-profile political figure or dressing as a nun or priest. While some employees may be unaffected by these costumes, employers must be sensitive to how all their employees may deal with the notions raised by such costumes. read more…

Dress for success

October 13, 2013 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

This season, the network that originally brought you “COPS” is giving the oversaturated police-television show market a somewhat fresh take through its cop comedy called “Brooklyn Nine-Nine.” The show stars Andy Samberg as Det. Jake Peralta, a “talented, but carefree” (Fox’s words—not mine) detective dealing with his new hard-nosed, rule-following boss, played by Andre Braugher. You may remember Samberg from his digital shorts on Saturday Night Live, or as one-third of the comedy music act, Lonely Island. While the premise of Samberg’s new television venture is pretty standard, the show itself has so far proved funny and entertaining.

The show draws a good bit of its humor from the seemingly awkward to downright inappropriate workplace interactions among the cast members. From attempted interoffice relationships to inappropriate nicknames, to openly gossiping about the new boss’s assumed sexual preferences, just the pilot episode racks up quite a stack of complaints for the NYPD’s human resources department to wade through. But buried hidden behind the more overtly inappropriate conduct was a workplace issue that has recently been brought to the forefront of HR law—employee dress codes.

In the pilot episode, the new captain implements a requirement that all male detectives wear a necktie. While seemingly neutral on its face, such requirements can cause an employer to run afoul of employment laws when such requirements infringe on an employee’s religious convictions. Although Samberg’s character combats the necktie requirement by making snide comments and sarcastic remarks (such as handing neckties to fellow detectives as awards for correctly answering questions and referring to a murder scene as a “10-tie situation”), in the real world, an employee whose sincerely held religious beliefs prevent him or her from complying with a dress code policy may be entitled to a reasonable accommodation.

The U.S. Court of Appeals for the 10th Circuit recently tackled a similar issue in a suit arising out of clothing company Abercrombie & Fitch’s policy prohibiting its salespeople from wearing any sort of headgear. In June 2011, a federal district court in Oklahoma granted summary judgment to the EEOC, suing on behalf of a female Muslim plaintiff, who alleged Abercrombie failed to hire her for a sales position after she wore a hijab (traditional Muslim headscarf) during her job interview. The EEOC claimed the company engaged in unlawful religious discrimination by failing to exempt the applicant from the policy based on her religious beliefs. The 10th Circuit reversed the lower court’s ruling, however, based on the undisputed fact that the female applicant never directly informed her interviewer that she was a Muslim nor specifically requested an accommodation based on her religious beliefs. As a result, the 10th Circuit’s ruling vacated a jury verdict of $20,000 against the company. It also created a split amongst federal circuit courts of appeals regarding which party bears the burden to bring to light the need for a specific accommodation for religious reasons. Several experts and commentators have noted that the U.S. Supreme Court may choose to review the case to resolve the split if the EEOC decides to pursue an appeal.

But while we wait for a potential resolution from the Supreme Court, employers should use this case as a reminder that employees whose sincerely held religious beliefs conflict with company policy may be entitled to a reasonable accommodation if doing so wouldn’t create an undue burden on the employer.