In separate agreements with the US Equal Employment Opportunity Commission, Best Buy and CVS have decided to stop using personality tests as part of their recruiting process, Erin Mulvaney reported at the National Law Journal last week. While the details of the agreements are confidential and neither company admitted liability, the EEOC said a former commissioner had raised concerns about the companies’ policies, prompting the agency to scrutinize whether these practices were potentially discriminatory:
The tests came under increasing scrutiny for their potential to weed out people with mental illness or certain racial groups. CVS had previously agreed, for example, to remove certain mental health-related questions from its questionnaire after a probe from the Rhode Island Commission for Human Rights.
In recent years, the EEOC launched investigations into personality tests on the grounds of discrimination and has guidelines for these job applicant assessments. Some companies on their own have decided to eliminate or reduce parts of the assessment tests, including Whole Foods Market Inc.
Target reached a $2.8 million settlement with the EEOC in 2015 over its candidate assessment system, which was alleged to discriminate on the basis of race and sex, and ended the practice. The agency has also litigated and won cases regarding such assessments against other companies over the years.
A member of Parliament in the UK is pushing for employers to be more proactive in clarifying their parental leave policies to their current and prospective employees, introducing a bill that would require many organizations to publish their policies online, the BBC reported on Wednesday:
Jo Swinson, a Lib Dem MP, said this was “a simple and practically effortless change” that would improve transparency and encourage more competition on pay. It would help firms “better attract and retain talent”, she added. Human resources trade body the CIPD said publication could help tackle discrimination.
Ms Swinson said more than 54,000 women a year lose their jobs because of pregnancy and maternity discrimination, while fathers were worried about taking shared parental leave because of the negative effect on their careers. … The MP has tabled a bill in the Commons that would require firms with more than 250 employees to publish those policies. Prospective employees would have a clearer idea of parental leave policies without having to ask at interview, she said.
In arguing for her bill, Swinson noted that “the very act of asking” about parental leave “suggests to the employer that the candidate may be considering having a child.” A recent survey of UK employers found that most expected women candidates to disclose if they were pregnant or planning to become pregnant, and many managers would decline to hire a woman of childbearing age on that basis. Publishing these policies would enable candidates and employees to find out about them without having to reveal their intent to have children to a manager who might penalize them for it.
There is really no good reason for employers not to advertise their parental leave policies, as these and other family benefits are highly attractive to many candidates—particularly, but by no means exclusively, women. Our research at CEB, now Gartner, has found that the availability of parental leave has a significant positive impact on employees’ perceptions of their overall benefits package. A lack of family-friendly policies is often a key factor in driving women out of the workforce. (CEB Total Rewards Leadership Council members can view our data on parental leave and rewards perceptions here.)
Maine was one of several US states where voters passed measures to legalize the use of marijuana for recreational purposes in 2016. Republican Governor Paul LePage has sought to stymie legalization by blocking implementing legislation. Last November, LePage successfully vetoed the first version of this legislation, and late last month attempted to veto a second version, but both houses of the state congress voted on May 2 to override his veto, UPI reported. The rules in the final bill are somewhat less permissive than those initially approved by voters with regards to the regulatory mechanisms under which legal marijuana can be grown and distributed in the state.
Other aspects of the voter-approved ballot measure, such as its provision protecting marijuana users against employment discrimination, have already gone into effect. That provision, which went into effect February 1, prohibits employers from refusing to employ or otherwise penalizing anyone over the age of 21 on the basis of their using marijuana, provided they are not using it during working hours or on the employer’s property. That has significant consequences for Maine employers’ drug policies, as a positive test for marijuana would no longer be sufficient cause for terminating an employee (current testing methods can only detect whether an individual has consumed cannabis within the past few weeks, not whether they are currently under the influence).
The implementing legislation, however, contains different language regarding how employers can and cannot treat employees who use marijuana, Seyfarth Shaw attorneys observe at their dedicated marijuana-law blog, The Blunt Truth:
The US Supreme Court ruling on Monday upholding employers’ right to include arbitration agreements and class action waivers in employees’ work contracts is being celebrated by business associations and employer-side attorneys as a major victory, mitigating the risk of expensive litigation over labor disputes that may arise from honest mistakes rather than deliberate malfeasance. Advocates of arbitration say it is faster and cheaper than a courtroom trial and that the confidentiality of arbitration is a benefit to both employees and employers (though critics, of course, disagree on all of these points).
What individual arbitration does not protect organizations from, however, is reputational risk. We’ve seen this in the public blowback against companies whose arbitration policies are interpreted as them trying to hide ongoing discriminatory behavior. Within the past six months, companies like Microsoft, Uber, and Lyft have abandoned forced arbitration of harassment cases to guard against this risk. The public relations downside to handling these matters quietly may be growing to outweigh the upside in terms of cost and legal risk.
In 2016, a US appeals court ruled against the Equal Employment Opportunity Commission in a suit the agency had brought on behalf of Chastity Jones, a black woman who had been denied employment at the Mobile, Alabama insurance claims processing company Catastrophe Management Solutions after she refused to cut her dreadlocks in compliance with the company’s grooming policy. Absent an explicit racial dimension to the policy, the court ruled, CMS was within its rights to ban dreadlocks in general as part of its dress code.
The EEOC chose not to pursue the case further, but the NAACP Legal Defense and Educational Fund sought to appeal the ruling in the Supreme Court. Last week, however, the high court said it would not take the case. The court’s refusal to hear this case is a blow to advocates who see workplace hairstyle policies like these as discriminatory in effect if not intent, as they place greater constraints on the choices black people, and particularly black women, than other employees and often penalize black employees for wearing natural hairstyles. Implicit bias against black women’s naturally textured hair is a well-documented phenomenon in American society, which causes many black women to experience pressure to artificially straighten their hair or wear hairpieces.
CMS’s dress code did not explicitly mention dreadlocks, but rather mandated grooming that reflected a “professional image” and barred “excessive hairstyles.” This suggests to Rewire’s senior legal analyst Imani Gandy that such policies as applied are not as race-neutral as they appear on paper:
First, CMS’s purported race-neutral grooming policy is anything but—since it excludes Black women’s natural hairstyles based on stereotypes that natural hairstyles are unprofessional, messy, not neat, political, radical, too eye-catching, or excessive.
US Labor Secretary Alexander Acosta (Shawn T Moore/Department of Labor/Flickr
Last month, Bloomberg BNA’s Ben Penn and Porter Wells reported that the US Department of Labor was planning to relax a policy put in place by the Obama administration to vigorously enforce regulations prohibiting gender pay discrimination by organizations that contract with the federal government. The department was said to be issuing new guidance to supplant a 2013 directive that had given the Office of Federal Contract Compliance a mandate to audit federal contractors for salary bias and make its own determinations as to whether workers were employed in identical or comparable roles for that purpose.
The OFCCP had used that directive to force substantial settlements from several large employers over alleged pay discrimination, and it has been at the center of the ongoing dispute between the Labor Department and Google over pay discrepancies the office has said indicate widespread discrimination (Google vigorously denies this and claims to have no statistically significant gender pay gap at all).
The new guidance, Penn and Wells explained, would “allow businesses to shape the random Labor Department audits by determining which workers investigators should be comparing for possible pay bias” instead. This change would be in keeping with Labor Secretary Alexander Acosta’s approach of assuming good faith on the part of businesses and allowing them to admit and correct compliance issues without fault rather than pursuing investigations and lawsuits. After these plans came to light, however, the department may be backtracking, Allen Smith reports at SHRM. Mickey Silberman, an attorney with Fortney & Scott in Denver, tells Smith that the OFCCP, Labor Department, and various stakeholders are now discussing the proposed changes.
Since March, Nike has been conducting a massive overhaul of its company culture, executive leadership, and HR practices after a covert survey of female employees revealed widespread patterns of sexual harassment, discrimination, and hostile work environments for women. As the New York Times recently reported in a major story reviewing the upheaval, this toxic culture was driving talented women out the door. In recent months, several high-level male executives at Nike have left the company amid the scandal.
Some of these executives stand accused of engaging in sexist practices themselves; others do not, but have been faulted for failing to address employees’ concerns, creating the perception of an executive “boys’ club” in which male managers were protected from consequences for their misbehavior. Another key theme in the Times‘ report is the Nike women’s dissatisfaction with the response they received from HR.
Nike CEO Mark Parker has moved quickly to bring the situation under control and assure employees that the company is taking its culture problems seriously. At an all-company meeting last Thursday, Parker admitted that he and other executives had missed signs of the problems that have come to light recently, apologized to the affected employees, and promised a thorough investigation into their complaints, along with changes to the company’s training and compensation practices to make them more inclusive, particularly toward women.
While Parker and his executive team will be responsible for making these needed changes to Nike’s culture and practices, none of these changes would be possible without the women employees who took the initiative to bring the company’s problems to light. One important takeaway from this story, therefore, is the power and promise of employee-led D&I initiatives.