The applicant, a Hebrew Israelite, responded to an online job posting for customer service at the call center. The posting was for a job with a flexible work schedule and/or overtime. However, the applicant’s faith required him to conduct no business from sunup to sundown on Saturdays.
The recruiter told the applicant that he would have to work on weekends, but when the job seeker told her that he was unable to work Saturdays due to his faith, she told him the interview was over.
The EEOC seeks front pay, back pay, compensatory and punitive damages as well as injunctive relief and training for all of the employer’s recruiters. “EEOC Sues Convergys Corporation for Religious Discrimination,” www.eeoc.gov (Mar. 3, 2011).
Commentary and Checklist
When an interviewing employee is aware of a need for a religious accommodation, he or she must discuss possible reasonable accommodations with the applicant. This is the requirement of Title VII and the EEOC.
What makes this case interesting is that the job required the employees to work on the weekends…Saturday and Sunday. The complainant could not work on Saturday. Obviously, the EEOC did not believe that working the weekends was an essential function of the job.
As the workforce diversifies, so will the religious practices of applicants and employees. Many times these practices conflict with workplace schedules, routines or rules.
Under Title VII, employers are required to accommodate an employee’s sincerely held religious beliefs as long as the accommodation does not constitute an undue hardship on the employer. Currently, the Supreme Court defines “undue hardship” as anything that poses more than a de minimis (i.e. nominal) cost to the employer.
Flexible scheduling is seen as a reasonable accommodation for religious matters.
In order to prevent religious discrimination claims when it comes to accommodations, employers should:
Q: If we allow one employee to telecommute, do we have to offer this option to all of our employees? We are concerned that not all jobs can be performed out of the office, and not all of our employees are well-suited to work off-site and unsupervised. Are there some specific criteria we can use to evaluate employees or steps we should take?
A: Telecommuting, an alternative work schedule where employees work from a remote location (usually at home) via a computer that can access your organization’s databases, is one of the more common flexible work options you can offer employees. Often referred to as telework, this arrangement gives employees significant control over setting their own schedules and allows them to eliminate lengthy commutes to a distant office. As a result, many employees would like the opportunity to try this work option.
That said, it is not appropriate for every job, since it requires job duties that can be performed effectively off site, or for every employee, since not every worker has the skill sets necessary for unsupervised work. Accordingly, you do not have to offer telecommuting to all employees. But, as with all perceived benefits, you should be prepared to explain why some employees are eligible for telecommuting and others are not. If you cannot show your business-related and job-related reasons for allowing certain employees to telecommute, you may face criticism that your process is unfair and thus be exposed to claims of discrimination.
So, when establishing a telecommuting program, you first should determine which jobs are eligible by looking at the nature of the jobs and whether they can be done effectively away from the office environment. For example, jobs that require special equipment or security requirements, face-to-face interaction with coworkers, or on-site customer service may not be well-suited for telecommuting.
Second, supervisors should decide which employees are eligible, taking into consideration the nature of the job and the employees performance and work habits. Generally, the best telecommuters are those employees who work well with little supervision, meet deadlines consistently, and can communicate effectively by telephone and email. Some employers also limit telecommuting to employees who have been with the organization for at least a year (so that they have a performance record you can evaluate) and whose performance is considered above average. Even if you do not impose a length of service requirement, telecommuting typically is not offered to new hires since these employees frequently need face-to-face training and contact with colleagues and supervisors.
Third, you should establish a specific duration for each telecommuting arrangement and evaluate its effectiveness before extending it. Many employers begin telecommuting for a trial period initially, such as three to six months, to evaluate whether the telecommuting is effective and then extend the agreement for a longer period.
Fourth, you should consider offering potential telecommuters training on workplace safety, dealing with isolation, and time management. You also should make sure that nonexempt employees understand the importance of providing accurate time records and of working only their assigned hours to prevent unauthorized overtime.
Finally, you also should consider having telecommuters sign an agreement that explains the nature of the telecommuting arrangement, such as how many days a week the employee will work off site, where the employee will work off site, what equipment (if any) will be provided, how the employee will report in, normal work hours off site, etc. You should make sure that any agreement does not alter the employee’s at-will status, but instead just explains the nature of the telecommuting arrangement and expectations for the arrangement.
A group that offers insights on companies and workplaces compiled a list of oddball interview questions. The Top 25 list is based on tens of thousands of interview questions asked by employers in 2010. Here are a few questions taken from the list:
“If you were shrunk to the size of a pencil and put in a blender, how would you get out?” This question was asked for an Analyst position at Goldman, Sachs.
“How many ridges are there around a quarter?” was asked for a Project Analyst position at Deloitte.
“What is the philosophy of Marital Arts?” Aflac asked this question for a Sales Associate position.
“Explain (to) me what has happened in the country during the last 10 years.” This interview question was asked for a Consulting Position.
Google asked, “How many basketballs can you fit into his room” for a position as a People Analyst.
A customer Sales Representative applicant was asked, “If you could be a superhero, who would it be?”
“You have a birthday cake and have exactly 3 slices to cut it into 8 equal pieces. How do you do it?” This question was asked for a Fixed Income Analyst position at a portfolio management group.
Facebook asked Software Engineer applicants, “Given the numbers 1 to 1000, what is the minimum number guesses needed to find a specific number if you are given the hint “higher” or “lower” for each guess you make? “Glassdoor.com Reveals Top 25 Oddball Interview Questions of 2010,” www.prnewswire.com (Dec. 30, 2010).
Commentary and Checklist
The first rule of an interview is to listen and when you speak, speak to explore.
It is difficult to see what valuable information could be gained from some of the questions listed above unless, of course, the birthday cake question was proffered by a caterer. (The answer is to make two cuts vertically and one horizontally through the center of the four sections to get eight slices, but a really messed up cake.)
The best interview questions are not off-the-wall, but questions that are based on information provided by the applicant. The best questions are garnered from the application, the person’s resume, or questions regarding how the interviewee will meet the essential functions of the position.
Better still are follow-up questions from the interviewee’s initial response to your first questions. Follow-up questions are where most of the crucial interview information is elicited.
Then, if you still have time and you still have a need to find out more from the applicant, it is okay to ask different types of questions. However, the questions should relate to the job or the employer or should be used to measure something not yet discovered, like a question that poses an ethical dilemma or a question to determine if the applicant has done his or her homework on the company.
A good rule of thumb is to speak 25% of the time and listen the remaining 75%. As the interviewer, you should know more about the applicant when he leaves than before he arrived.
Whenever you conclude an interview and other candidates are applying for the job, it is important to let the applicant know that you plan to interview others. If you have the authority to do so, tell a candidate where he falls short compared to other candidates.
For example, tell him you are looking for someone with five or more years of experience. In addition, let a candidate know when he has performed well in an interview, but remember to avoid making promises or creating the impression that the selection process is over unless you are committed to such a decision.
Below are some more tips for interviewing:
A Connecticut woman is believed to be the first in the nation to file a discrimination claim under GINA, the Genetic Nondiscrimination Act, which prohibits employers from discriminating against an applicant or employee on the basis of genetic information, and from using genetic information to make employment decisions. She filed her claim both with the U.S. Equal Employment Opportunity Commission and with the Connecticut Commission on Human Rights and Opportunities.
The woman has two sisters who are breast cancer survivors and who tested positive for the BRCA2 gene, which is an indicator of potential breast cancer. After she underwent genetic testing and found that she also carried the BRCA2 gene, she had a double mastectomy as a preventative measure. Five months after her procedure, she was terminated. She alleges that her termination came after revealing to her employer that she carried the breast cancer gene.
According to her complaint, shortly after a positive performance review in August 2009, she revealed the results of her genetic test to her employer. About two months later she had the double mastectomy, and when she returned to work after her medical leave, her performance review in January was very negative, and some of her work was reassigned. She was terminated in March.
Typically, the EEOC will investigate and try to settle with the employer. If no settlement is reached, the EEOC may sue the employer, or may issue a “right to sue” letter, which states the former employee can hire an attorney and pursue the action in court. The outcome of this claim is not yet known.
Final regulations were to be issued on GINA, but have been delayed, leaving employers still looking for guidance on how to comply with the law. The employment provisions of the law went into effect November 21, 2009.
A coffee company will pay $80,000 to settle a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC). According to the EEOC, a man with multiple sclerosis applied for one of six open barista positions at a local shop, but was never contacted for an interview. He claimed that the employer hired applicants with less experience and more limited availability instead.
Pursuant to the settlement, the employer is required to provide training to managers and assistant managers on disability discrimination and submit reports to the EEOC on the training progress. The coffee company also must report all disability complaints to the EEOC and post notices reinforcing its disability policy. As an additional penalty, the employer is required to make a good-faith effort to hire individuals with disabilities by notifying Arkansas Rehabilitation Services of all job openings. “Starbucks Pays $80,000 to Settle Disability Discrimination Suit,” ohsonline.com (June 18, 2010).
Commentary and Checklist
Damages awarded in discrimination cases are not always monetary. In fact, when the EEOC is involved, there is almost always some type of non-monetary injunction awarded in addition to monetary damages.
The employer is usually ordered to stop further discriminatory practices and take specific steps to prevent discrimination in the future.
The steps employers are often forced to take to prevent future discrimination can be more difficult and costly than the actual award. In this case, the employer has to provide notice to a not-for-profit disability agency that then sends over candidates it believes are qualified for the open positions. In return the employer must consider long and hard whether it wishes to reject those candidates as non-qualified since the disability agency appointed by the court believes that they are qualified.
According to the EEOC, the goal of the law is to put the victim in the same position he or she would have been as if the discrimination had never occurred.
Types of relief depend upon the discriminatory action and the affect on the victim. For example, if someone is not selected for a job or a promotion because of discrimination, the remedy may include actual placement in the job and/or back pay and benefits that the person would have received but for the discrimination.
Victims of discrimination often are awarded attorney’s fees, expert witness fees, and court costs.
Courts award compensatory and punitive damages in cases involving intentional discrimination. Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination such as costs associated with a job search, medical expenses or for emotional harm. Punitive damages are awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.
In cases involving intentional age discrimination or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, victims cannot recover compensatory or punitive damages. However, they are entitled to “liquidated damages” if warranted. Liquidated damages, like punitive damages, are awarded to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages is usually equal to or more than the amount of back pay awarded to the victim.
The EEOC limits the amount of compensatory and punitive damages against employers. The limits depend on the size of the employer. For employers with 15-100 employees, the limit is $50,000. For employers with 101-200 employees, the limit is $100,000. Employers with 201-500 employees are charged up to $200,000; and for employers with more than 500 employees, the limit is $300,000.
Consider the list of damages below when considering your total exposure to charges of discrimination: