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EEOC spotlight on anti-Muslim discrimination

Posted By Laurie A. Pehar Borsh, Thursday, March 3, 2016


By Jon Benson, employment & labor attorney at Vigilant*

The U.S. Equal Employment Opportunity Commission (EEOC) is focusing a spotlight on discrimination against Muslim and Middle Eastern employees. The agency released new webpages and Q&A documents for both employers and employees shortly after the late 2015 terrorist attacks in Paris and San Bernardino. The EEOC advises employers to have a heightened awareness of how these tragic world events, and others, could lead to discrimination in the workplace.

In the case of employees who are Muslim or of Middle Eastern origin (or perceived to be so), the EEOC warns of discrimination based upon religion, ethnicity, national origin, race, or color.

Employers should know that generally they are not held liable for isolated incidents of discrimination or harassment based on the actions of non-supervisory employees. However, once the employer knows about discrimination or harassment by co-workers (or vendors or patrons) against its workers, it has a duty to investigate and take appropriate actions. If the company does not take appropriate actions, including discipline, or allows the conduct to continue, then the employer can be held liable. Overt harassment and discrimination in the form of insults and name-calling are pretty easy to spot. However, other potential forms of discrimination may not be so obvious.

Some of the trickiest situations involve the accommodation of employees’ sincerely held religious beliefs.

Religious accommodation

Title VII of the Civil Rights Act requires employers with 15 or more employees to “reasonably accommodate” an employee’s religious beliefs unless doing so would create an undue hardship for the business. Exactly what is a reasonable accommodation and what is an undue hardship can be specific. But, valid considerations for an employer in evaluating an employee’s requested accommodation include: the relative cost; the burden placed on other workers; and any safety or hygiene issues, just to name a few.

I.                    Dress codes

Dress codes can be a potential source of discrimination claims. Employers generally have the right to set standards for dress and grooming. However, a dress code can come into conflict with an employee’s religious beliefs and practice. One example for Muslim employees is the hijab or other type of head scarf or covering worn by women.

The U.S. Supreme Court recently weighed in on this issue in EEOC v. Abercrombie & Fitch, Inc. In this case, the employer refused to hire a woman who wore a hijab for religious reasons. The woman had otherwise done very well in the interview process and scored highly in the company’s internal evaluation system. Abercrombie & Fitch defended its decision by claiming that the hijab violated the company’s written “Look Policy” which prohibited “caps” of any kind to be worn on employees’ heads. Although the rule was neutral and applied to all types of head coverings, in this case the Court said the employer had a duty to accommodate and that there was no undue hardship to the company in permitting an employee to wear a hijab.

Nevertheless, employers can usually enforce dress codes when there is a valid business-related reason. For example, an employer can generally enforce a dress code, despite an employee’s religious objection if the requirements of the dress code relate to safety or hygiene issues. This is often an issue in manufacturing settings.

II.                  Muslim prayer and varying scheduled breaks

In another case, Muslim employees of a meat packing plant had been using break times for prayers. They had requested that their break times be continually shifted to coincide with sundown in accordance with religious practice. Because the time that sundown occurs varies throughout the year, the break times would constantly change throughout the year. The company refused this requested accommodation and the EEOC filed suit. The company argued it was an undue hardship to be constantly changing the break times because it would impede production in this manufacturing setting and would create problems with other employees having to cover the times for these workers. In this case, a federal court ruled in favor of the employer saying that this represented an undue hardship. The outcome in these types of cases heavily depends on the facts of each case.

Incidentally, this issue also comes up with non-Muslim employees whose religious beliefs and practice prevent them from working on the Sabbath day. Typically, that involves a request not to work on Saturday or Sunday, and the restriction may begin at sundown the previous day.

III.                Alcohol, pork and other prohibited items

Alcohol and pork are considered haram, or forbidden, in Islam. So, what do you do if your employee says they can’t touch or serve to customers any alcohol or pork products? Do you really have to comply with those requests? Of course, the answer is “it depends.” Is there a reasonable accommodation that would not impose an undue hardship on the employer?

Example: Some Starbucks stores now serve wine to customers, though the vast majority of sales remain coffee, tea and their regular items. If a Muslim barista refused to serve the occasional glass of wine, that might be easily accommodated by having another clerk take that order.

By contrast, it would likely be an “undue hardship” for a Muslim job applicant to apply for a server position at a South Florida beach bar catering to college Spring Break students and refuse to handle alcohol.

Be vigilant

Regular training and education for managers and employees on these issues and your anti-harassment policies is essential. Make sure managers understand their role and that your organization responds promptly and investigates any allegations of discrimination or harassment.

About the Author

Jon Benson is an employment & labor attorney at Vigilant, a company headquartered in Oregon, dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve their most complex employment issues.

*Meet the Vigilant team at HR West 2016 - Booth 30


Tags:  anti-Muslim  discrimination  EEOC  employees  equal opportunity  HR  HRWest 2016  Human resources management. HR Leadership  muslims  NCHRA  Religious accommodation  Vigilant  workforce 

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Connect with Others at HR West!

Posted By Laurie A. Pehar Borsh, Thursday, February 25, 2016

By Karen Rodriguez

HR West is right around the corner! Many HR professionals will attend with the goal of connecting with peers and getting their message across. Whether networking with a group, conducting a small session or presenting a keynote address, your communication skills play a large part in how well you deliver your message and connect with others.

Eye contact is essential.

People have a hard time trusting someone who doesn’t look them straight in the eyes. While making eye contact can be difficult with one-on-one conversations, it’s even more difficult when networking with a group or presenting to an audience.

Anyone who has taken a public speaking class has likely been told to “scan the room.” The idea is to make eye contact with as many people as possible to get your message across. However, we’ve seen this method increase anxiety and make you appear less genuine.

When speaking to a group at dinner or during a training session, the best approach is to look at one person at a time for a complete thought, “One person: One thought.”

Each thought should last around five to seven seconds. That’s long enough to make a connection but not too long that it turns into a creepy stare. Following this approach will:

1.       Decrease your stress level. Looking at one person for a full thought simulates a one-on-one conversation. For that thought, everyone else will disappear and you will automatically calm down.

2.       Reduce “ums” and “uhs.” When you make eye contact, you are less likely to use filler words. As a result, you will sound more knowledgeable and credible.

3.       Help you avoid distractions. As you focus on one person, the audience member texting in the back of the room, the people walking in late, and the banter of a group across the room won’t distract you.

4.       Create connections. Not only does eye contact keep your audience’s attention, it demonstrates that nothing is more important to you than them in that moment. When you show your commitment to your audience, they will feel connected.

Focus on your audience and they will give you their attention. And, only speak when you make eye contact. The best communicators focus more on others and less on themselves.

For more communication skills tips, check out The Chat.  
There's still time to register for HR West 2016 - March 7-9, 2016 at the Oakland Convention Center in Oakland, California. 

About the Author

Karen Rodriguez is a passionate marketer, designer, and communicator. With over 15 years of experience, Karen Rodriguez currently manages Exec|Comm’s global brand including their online presence, web-based learning center, advertising, PR, classroom materials, and live special events. She recently launched the firm’s blog, The Chat, and lunch & learn series, The Learning Exchange. Additionally, she manages the delivery and expansion of Exec|Comm’s open-enrollment seminars in Chicago, Dallas, New York, San Francisco, and San Jose. Karen holds a BFA from Parsons, The New School for Design in New York City.  She lives in Aberdeen, NJ, with her husband and three sons.

Tags:  communi  communication  Exec-Comm  HR  HR conference  HR education  HR Leadership  HR West 2016  human resources management  interpersonal communication  Karen Rodriguez  NCHRA 

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Fair Hiring Practices: How To See The Human Behind The Record

Posted By Laurie A. Pehar Borsh, Wednesday, February 24, 2016


By Max Wesman, VP of GoodHire - HR West 2016 Power Station Sponsor

Nearly 70 million people in the United States have criminal records. That means you will almost certainly encounter job candidates with records at some point in your career.

How you (and the hiring managers you work with) react will likely depend on your understanding of the laws that govern hiring, the candidates’ openness, and something that can’t be overlooked: feelings.

A Charged Issue: Criminal Records In Hiring

For most people, discussing criminal history is, frankly, uncomfortable. Think about it: The incident probably represents a low point in the candidate’s life, and few people relish discussing their lowest moments in a job interview.

At the same time, even seasoned HR professionals and hiring managers tread carefully when discussing criminal history out of their own unease, concern about applicable laws – or both.

Twenty states, including California, and many cities have passed “ban-the-box” laws that govern how and at what point in the hiring process employers can ask about criminal records. In San Francisco, for example, employers can’t ask about convictions until after an initial live interview.

As a result, a background check often serves as the first mention of a criminal record.

Background Checks: A Useful But Limited Tool

Having run tens of thousands of background checks over the past three years, I’ve seen first hand how employment screening can help companies build great teams. But I’ve also seen that it’s far from a perfect solution.

That’s because, without context, records in a background check tell only part of the story – that a conviction occurred. The records say nothing about why or what has happened since.

Without that context, employers run the risk of excluding otherwise qualified candidates. Worse, excluding people with criminal records from consideration could attract unwanted attention from the Equal Employment Opportunity Commission (EEOC), which has strengthened its focus on the disparate impact of policies on protected classes.

Context Is Everything: EEOC Guidance And Hiring Best Practices

A survey of California employers found that most are more willing to consider hiring a candidate when they know the nature of the offense. For example, 84% said they’d be willing to hire someone with a misdemeanor offense.

That openness turns out to be a good thing, because considering individual circumstances and context around a criminal record is a best practice for avoiding EEOC scrutiny. Other best practices include considering the nature and gravity of the offense, the time that has passed since the offense or completion of the sentence, and the nature of the job sought.

Asking for context, which may show rehabilitation, good character, or successful performance of similar work after the conviction, gives you a more complete picture. And it helps you avoid dismissing an otherwise qualified candidate – a big consideration in a hot labor market.

Yet the question of how to get that context brings us right back to the original problem: people’s reluctance to discuss criminal records.

A Technology Assist: Comments For Context

Here in Northern California, we tend to look to technology for answers. And I believe technology can help smooth the way for these necessary, though difficult, conversations.

Giving hiring managers a tech-based way to request context around background check results makes the request simply part of the process. Think of it as similar to requesting e-consent to run the background check in the first place.

Technology can also help on the candidate side. A solution that lets candidates enter comments directly on their background check results helps them tell their circumstances outside of the stressful job interview environment. In an ideal solution, the context provided would stay with the candidates’ results, so anyone authorized to view those results would get the same information.

At GoodHire, we’re working on this challenge now as part of our commitment to fostering trust, safety, and fairness throughout the hiring process.

Soon, employers who use GoodHire services will be able to ask candidates to add comments for context through the GoodHire product. And, if candidates have already added comments as part of their own job search process, any authorized employer who runs a background check through GoodHire will see the context provided.

Rehumanizing Employment Screening

According to the National Employment Law Project, many companies that hire people with records find them to be model employees. The group quotes Brad Friedlander, CEO of Red Restaurant Group, as saying that people with criminal records “are frequently the most dedicated and conscientious. A lot of doors are shut to them, so when someone gives them an opportunity, they make the most of it.”

An innovative technology solution that promotes context on background check results can help employers get a more complete picture of their candidates. It doesn’t necessarily take the place of in-person discussions, but it can make those conversations easier to start.

In doing so, it promises to help employers see the human in their potential resources.

Want to learn more about comments for context?
Look for team GoodHire at HR West 2016

About the Author

Max Wesman has led GoodHire from its launch in 2012. Today, GoodHire serves more than 23,000 businesses, and Max oversees all aspects of its services, from strategy to product development and design, to legal compliance, to customer support. Before joining GoodHire, Max managed and launched enterprise solutions and small business software products for Hewlett-Packard and Microsoft. He received an MBA from the University of California Berkeley's Haas School of Business and undergraduate degrees from the Wharton School and the School of Arts and Sciences at the University of Pennsylvania.


Tags:  background checks  EEOC  fair hiring  fair labor standards act  good hiring  goodhire  Hiring  HR  HR Blog  HR Management  HR West 2016  Human Resources  Max Wesman  NCHRA  Recruiting 

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2016 HR Legislation Predictions

Posted By Laurie A. Pehar Borsh, Wednesday, February 17, 2016

2016 HR Legislation Predictions 

You don’t need a crystal ball to predict that workplace issues will generate a lot of buzz this year—President Obama made as much clear in his last State of the Union address. With lawmakers focusing on equal pay, paid family leave, and more at the federal and state level, it’s a sure bet that 2016 will see a wave of changes in the world of compliance. Here’s our HR legislation forecast:

1. States and municipalities, not Congress, will look to close the gender pay gap.

While Congress failed to pass the Paycheck Fairness Act last fall, the prospects for gender pay equality have never been stronger. President Obama's proposed EEO-1 rules could go a long way, but it's legislation at the state level that will make the biggest impact.

The California Fair Pay Act took effect earlier this year and has already been called the toughest of its kind in the country. Following suit, New York passed its own take with the 
Achieve Pay Equity Bill. The success of these new laws could spur other states to take matters into their own hands. Massachusetts looks to have already done so, with their state senate scheduled to take up the issue this week.

2. Several states will act on paid leave, which will feature heavily in the presidential race.

In an election where the environment, economy, and terrorism were expected to be the focus, paid leave has taken much of the spotlight. Candidates from both parties have put forth paid family leave proposals, some more far-reaching than others. There are only three states (New Jersey, California, and Rhode Island) with paid family and medical leave laws, but national attention could prod lawmakers to act. Earlier this month, New York Governor Andrew Cuomo asked his state’s legislature to make it priority and the District of Columbia is expected to pass one of the country’s most ambitious family leave laws this year.

3. ACA requirements will become very real for employers.

Ready or not, here it comes: welcome to year one of ACA reporting. Employers have had two years, with a few welcome delays, to prepare. Knowing this, the IRS and Department of Labor may not monitor with the leniency some are hoping for. DOL auditing alone has reportedly gone up 300 percent year-over-year.

Hoping for an eleventh-hour reprieve? With the Supreme Court yet again turning down appeals to review the Affordable Care Act, the law looks safe for at least this year.

4. The Cadillac Tax will come one step closer to the scrapyard.

Things aren’t looking pretty for the so-called Cadillac Tax. With every major presidential candidate and90 Senators and 290 House representatives openly against the tax, its delay last month likely served as a preview of things to come. Facing pressure from Republicans and even his own party, President Obama could relent in exchange for concessions on other initiatives, like paid leave.

5. New overtime rules will make a big splash in 2016.

The summer’s biggest blockbuster might come from the Department of Labor, which is expected to unveil new overtime rules this July. The change would raise the minimum salary for overtime exemption from $23,660 to $50,440. In other words, that means that every worker, regardless of their duties, will be eligible for overtime if they make less than $50,440. That’s a big deal, especially for white collar workers. Expect your HR department to take a long, hard look at employee classification this year if they haven’t already.

Those are just some the year’s top stories that we’re keeping tabs on in our new HR newsroom.  With workplace issues on the forefront of voters’ minds, some could feature heavily in this year’s presidential race. As for that other big 2016 prediction?

Reply hazy, try again.  


About the Author

Andy Przystanski is HR Content Specialist at Namely, the all-in-one HR, payroll, and benefits platform built for today's employees. Connect with Andy and the Namely team on TwitterFacebook, and LinkedIn.

Namely is a Platinum Sponsor of HR West 2016, March 7-9th at the Oakland Convention Center. Visit Namely's Booth #6 to learn how all-in-one HR technology paired with expert brokers makes HR management easier. 


Namely CEO, Matt Straz will present session #610, Hiring for High-Growth.  


Register for HR West today. 


Tags:  aca  cadillac tax  HR  HR Legislation  HR West 2016  human resources  Matt Straz  namely  NCHRA  overtime  paid leave  payroll 

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Bring Out the Best in Your Employees, Based on Their Brain Type

Posted By Laurie A. Pehar Borsh, Wednesday, February 10, 2016

By Michael O. “Coop” Cooper 
HR West 2016 Speaker - Session 606: What Everyone Gets Wrong About Coaching

Originally published in Entreprenuer Magazine.

When managing others, one size does not fit all. Tailoring your leadership style to complement different brain types and respecting the individual differences of those you’re managing will bring out the best in them.

Being able to identify someone’s brain type will help you understand what motivates them, what fears drive them, how they process information, how they respond to stress and more. When you know this information, it’s easy to adjust how you approach each type to ensure they can do their best work and deliver optimal results.

Controllers + Managers are motivated by control, results and prestige. When managing this type, be sure to frame assignments in terms of achievement, competition or how their work will benefit the company. They fear losing control, so frame requests to keep them feeling in control.

Related: 8 Ways to Effectively Lead Entrepreneurial Employees

Instead of dictating exactly how you want something done, tell them the result you’re looking for and a deadline, and then allow them to figure out how to efficiently achieve the results. This type easily prioritizes tasks based on the most important benefit or outcome, so allow them to prioritize their work themselves.

Innovators + Influencers are motivated by flexibility and recognition. They crave freedom and are OK with breaking the rules a bit. As long as the rules aren’t legal or ethical ones, give them space to operate as freely as possible. Frequent check-ins may feel overbearing, so check-in informally about once a week to ask their opinion on how things are progressing toward the results or deadline.

You can expect this type to procrastinate and work on multiple projects at once. They prefer to work on what’s new, unique, easy or fun, so be sure to prioritize work for them and give a hard deadline that includes review time. Minimize repetitive work, as this type gets bored with details (though they often obsess about certain details). These employees usually crave respect, so be sure to point out what they do well, how you appreciate their ideas and how they’re making a difference for your business.

Nurturers + Harmonizers want to be included and help others. They fear being excluded. Be sure to include them in meetings where decisions impact their work. To bring out their best, invite them to help instead of saying, “I need you to do this.” Avoid being pushy or aggressive, especially if you are a Manager + Controller type, because they resent being pushed around, even though they won’t typically push back.

Related: 9 Ways to Manage Underperforming Employees

This type likes routine, so be sure to map out current and future assignments, rather than peppering them with requests all the time. Be sure to let them know who each assignment is for, because “who is their most important information need and that information will affect how they approach an assignment.

Suggest collaborators for this type, as they often need interaction to feel satisfied. If you’re not getting the best work from this type, be sure to spend some time repairing your own relationship with them -- they will do great work when they feel you value them and your relationship.

Systemizers + Analyzers need structure to feel comfortable making progress on an assignment. They’re motivated by preparation and accuracy and they fear being wrong. To bring out their best, front-load detailed project information and a timeline so they can feel safe and secure with what they have to work with.

Check in on deadlines regularly because this type tends to avoid prioritization and may not tell you if they’re running behind, but will always strive to do quality work. Give them assignments that allow them to mitigate or avoid risks.

Be prepared for this type to caution you regarding your approach or process and evaluate their ideas on the quality of information they provide. Minimize emotions and allow them to make objective decisions and recommendations. This type hates surprises and new information can throw off their estimates, so give them plenty of time to re-evaluate any progress they’ve made if you change strategy or direction.

Bringing out people’s best can be very easy when you know and adjust for how their brain types naturally work. Make sure you spend a little time reviewing each team member so you can effectively communicate on their terms when making requests or assigning tasks.

About the Author

Michael O. “Coop” Cooper is an internationally recognized executive coach, advisor, facilitator and trainer who specializes in working with executive teams to develop the leadership skills, alignment and strategies to grow and thrive in a constantly changing environment. His passion is helping entrepreneurs, executives and leadership teams overcome their self-limiting beliefs and personal issues to reach their potential, by addressing interpersonal challenges, defining their purpose, gaining team alignment, and developing the strategy, systems and processes to execute their vision. He founded Innovators + Innovators to help right-brain entrepreneurs and executives capitalize on the need for more creativity in business leadership.

Connect with Coop

HR West 2016 Speaker Session:
606: What Everyone Gets Wrong About Coaching


Register for HR West 2016
"HR in the most innovated place on earth"
March 7-9, 2016, Oakland, California 

Tags:  HR  HR Leadership  HR West 2016  Human Resources  Leadership  Managing Employees  Michael Coop Cooper 

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