Latest Trends in Equal Employment Opportunity Law

Are they creating risk in your workplace?

July 24, 2008
by Sukanya Mitra

In today's tough economy, how many employment-related claims do you think are filed on an average day in the United States? If you guessed in the low thousands, you're not far off.

"If you measure this number against federal filings, the answer is around 2,000," said Shanti Atkins, Esq., president and CEO of Ethics and Legal Compliance Training (ELT) during a recent Webcast. "But if you factor in all the state law filings, it actually creeps up to an astonishing number of 10,000."

Of the 2,500 Webcast attendees of top HR personnel, more than half (52.8%) believed it was 2,000, while just over a quarter (29.7%) thought it was 10,000 per day.

Today's companies are at great risk where equal employment opportunity (EEO) law is concerned. To put it in perspective, late last year several top financial firms were on EEOC's radar and investigated for discriminating against age and national origin. The top five discrimination categories per EEOC's (U.S. Equal Employment Opportunity Commission) 2007 fiscal year included:

  • Race (37%)
  • Sex (30.1%) (see related story)
  • Retaliation (28.3%)
  • Age (23.2%)
  • Disability (21.4%)

Other categories that made the list but fell far behind were national origin at 11.4 percent and both religion and equal pay came at less than five percent.

Technology Revolution

Have you ever posted comments on the Internet? Almost 70 percent of the Webcast attendees said they had. Atkins said that this shows that while technology has come a long way, companies have not addressed the issues that have come with the advancement in technology.

Atkins referred to a 2006 employment law alliance study that revealed that "while five percent of employees stated that they had a personal blog, only 15 percent of companies had a policy against blogging in the workplace that deal with sensitive workplace information." This type of information can easily be found on the many social networks that are out in cyberspace, such as, YouTube, Twitter, MySpace and Facebook among others. This has become a growing area of dispute. Atkins shared the following three cases that made headlines in the last 24 months because of employee posts:

  • California AAA fired 27 employees for posting messages on MySpace that were offensive on the basis of weight and sexual orientation;
  • New York City investigator was fired for making racist comments on MySpace;
  • Comcast employee was fired after a customer posted a video of the employee sleeping on the customer's couch to YouTube.

Panelist Margaret Hart Edwards, Esq., shareholder at Littler Mendelson, the nation's largest employment law firm, said that one of the chief problems of this technology era was how very easy and simple it now is for people to become "victims of tremendous harassment and discrimination in a broader and more public way than was ever possible."

Real Life Examples of Digital Workplace Harassment

An e-mail, a picture, a doctored picture thanks to the magic of Photoshop or a joke, can all spread like wildfire. Edwards shared the example of a case that she recently worked on in which an employee had pasted the headshot of a co-worker on a picture of a semi-nude person of somebody else and distributed it in the workplace.

"That can be very serious sexual harassment and again is very easy to distribute outside the company by simply forwarding an e-mail or posting it somewhere else on the Internet or sending a video to YouTube," Edwards noted.  Besides this, traditional harassment issues still exist such as when employees make posts on a company's electronic bulletin board and companies are held liable for them because management is aware of the bulletin board. Company information has also often been misused where disgruntled employees who have either been let go or have left on their own accord have saved an entire Outlook folder on their jump-drive and then freely distributed the files on public Web sites. Edwards points out that while many HR recruiters look to social networks for candidate information, candidates likewise have been learning that they may not have been hired because of their posts, and this in turn leads to lawsuits. She suggested that companies create HR policies about what personnel can and cannot use in making the recruitment judgments.

What about when employees post anonymously? As Edwards noted none of the ISPs will provide companies with the full information of who posted the information without a subpoena. She shared the recent case of Krinsky v. Doe (H030767 (Cal. Ct. App. Feb. 6, 2008)), in which a California court refused to subpoena Yahoo! for the poster's name because it considered the posts as opinions, even though the poster had written inflammatory information against a senior executive. Furthermore, the Court also noted that this raised the issue of freedom of speech. Edwards couldn't emphasize enough that all companies must develop a cyber policy.

Practical Tips for Staying Out of Trouble

So what can you do to keep your head above water? A cyber policy is a must. Edwards and Atkins outlined the following issues that must be covered in your policy:

  • Address new technologies, such as IMs, blogging and social networking and the employer's right to control employees' accesses to various Web sites
  • Dispel "free speech" myths
  • Set clear rules for making statements about the workplace, employees, clients, etc.
  • Set clear rules about accessing sites
  • Explain privacy rights and responsibilities
  • Emphasize trademark and confidentiality issues

Just sending the policy out is not enough. It is imperative that you make sure that not only are all your employees from the top ranks down are trained on the policy, but that that they also clearly understand the consequences for violating any of the terms of your company's cyber policy.

Tune in next month when we'll look closer at EEO law on race, sex and gender discrimination.

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Sukanya Mitra is Managing Editor of the AICPA Insider™ e-newsletter group.