The Supreme Court recently ruled on a case involving employees at a fire department in Connecticut. To be considered for a promotion, the employees had to take a written and oral test. Candidates with the best scores were chosen.

A group of African-American firefighters complained that the test was biased, so the department threw out the results and started from scratch.

However, the white employees who would’ve been promoted based on the test scores sued. The Supreme Court agreed, ruling the department threw out the results of a perfectly good test.

Now, an African-American employee has filed his own suit. He’s claiming the test really was biased, and that he was unfairly denied a promotion when the policy on the test was reinstated.

Got that? We’ll keep you posted on how the suit proceeds.

One thing these cases show: Employment tests can be complicated. Companies should track results to look for signs of a disparate impact.

If an employee makes racist posts to a private Web site and the company takes no action, is it guilty of allowing discrimination and harassment?

A group of African-American officers has filed a lawsuit against the Philadelphia Police Department, claiming a Web site founded by a fellow officer and used by many other cops has led to a hostile work environment.

The site was created by a Philadelphia police officer in 2000 as a place where officers could talk about crime, police news and gossip, as well as promote local events, the Philadelphia Inquirer reports. But certain news stories often elicit racist comments from some of the users.

For example, the phrase “ghetto monkey faces” was used to describe a group of minority children involved in a discrimination suit against a local swim club. (Incidentally, the law firm representing the African-American police officers is also involved in that case.) Another post was made with the headline “Guns don’t kill people, dangerous minorities do.”

The site is not formally affiliated with the department, and the creator said he does not maintain the site on city time. But the complainants claim the department is aware of the site and has allowed posting to continue, which has created a hostile environment in the workplace. Also, the officers claim the site’s users frequently post comments while at work.

The site’s creator is also named in the suit. He said he disagrees with the racist comments, but did not want to limit discussion and was never asked to take anything off the site.

Past complaints about the site have not been acted on by the department, the plaintiffs say. The department says it can’t discipline employees for posts they make on a private Web site.

Lawyers warn that companies do have a responsibility to prevent harassment even when it takes place outside of work on a site not affiliated with the employer. We’ll keep you posted as the case develops.

What do you think? Is the police department for allowing a hostile work environment to develop? Or did they make the right choice in not disciplining employees for conduct that wasn’t work-related?

Give us your opinion in the comments section below.

A recent employment law ruling by the Supreme Court has gotten a lot of attention — but what impact will it have on HR’s day-to-day job?

A summary of the case:

The fire department in New Haven, Connecticut, used a standard test to choose which firefighters to promote to lieutenant and captain. In one round of testing, 19 white employees and one Hispanic employee passed. No black firefighters passed the test.

According to the employer’s policy, the 20 employees who passed should have been promoted. But, viewing the test as biased against the black employees — and fearing a lawsuit from them — management scrapped the results and based the promotions on other factors.

In a classic case of “you’re damned if you, you’re damned if you don’t,” the department was hit with a lawsuit — from the 20 employees who passed the test and weren’t promoted. They claimed they mere most qualified for the jobs — according to the department’s policy — but weren’t promoted because of their race.

Two lower courts threw the case out before the Supreme Court reversed.

What does it mean to HR?

The case has gotten a lot of attention, mostly because the decision overturns one made by High Court nominee Sonia Sotomayor. But what does it mean for HR pros?

The Court’s ruling stressed two points:

1. Employers do need to be careful about using selection procedures that have a disparate impact against a protected class, but
2. It’s not just a numbers game — if a test is job-related and consistent with business necessity, there’s no reason to suddenly change a selection procedure based on how many people of a certain race, gender, religion, etc., pass.

So basically if the test is legal, employers should stay consistent, rather than using the results in some instances and not in others.

Of course, few employers base hiring and promotion decisions solely on one thing, so deciding whether or not to scrap a test’s results likely wouldn’t have as big an impact as it did for the New Haven fire department.

But the case does contain a general lesson managers should be reminded of: Fear of being sued by members of one protected class is not a defense for discriminating against another.

Cite: Ricci v. DeStefano

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The case involves white firefighters in New Haven, CT, who say they passed an exam for a job promotion only to have the test results thrown out because no African-American candidate received a high enough score to also be considered for promotion.

The test reportedly was specially designed to eliminate bias and do away with advantages for white applicants. Still, when no blacks and only two Hispanic applicants qualified for promotion — compared with 17 whites and one Hispanic –  the city decided to scrap the entire test.

The 18 who passed the test then sued, charging they were denied consideration for promotion just because they weren’t black.

A federal district judge threw the case out, but the High Court agreed to take it on, probably some time in April.

The court’s decision of course could have far-reaching effects on diversity programs in the public and private sector.

Almost 1,200 HR managers responded to our poll about how they view the employment policies of President Barack Obama, and how those policies will affect HR. Here’s what they said, and here are 10 relevant pieces of legislation that probably will come into play in 2009.

The poll, and how they responded:

Do you think President-elect Obama’s policies on employment law will:

• Make your job more difficult — 69%
• Have no effect on you — 22%
• Make your job easier — 9%

Some comments:

“Please share the results of this poll with Obama and his staff. They need to try and fully understand the implications of their impending actions on this country.”

“I do believe that Obama’s policies will have a profound and accelerated degredation of an already overburdened and undersupported function…Human Resources.”

“Everyone enjoy[s] working here, the company provides excellent benefit, fully paid POS health insurance with tier-one carrier, Safe Harbor 401K, annual cash bonus with average of 6.6% annual salary increase, stock options. We did not need Federal government to tell us how to treat employee[s].”

What’s coming in ‘09
Here’s a rundown of the employment legislation that’s likely to cross the new president’s desk:

• Paycheck Fairness Act: Among other changes to the Equal Pay Act,  the legislation proposes that, for the purpose of demonstrating pay discrimination, a plaintiff can use compensation comparisons of employees who do not even work at the same physical place of business.
• Working Families Flexibility Act: Expands an employer’s obligations when an employee requests a change in hours or venue to accommodate family needs.
• Employee Free Choice Act: A proposal to make it easier for employees to form a union.
• RESPECT Act: Redefines the term “supervisor” in certain industries, thereby making some supervisors eligible for union membership – and empowered to act in the best interests of the unions and not the employer.
• Patriot Employers Act: Awards tax credits and other benefits to employers who, for instance, keep their operations from moving overseas and offer health insurance to their employees.
• Lilly Ledbetter Fair Pay Act: Changes the statute of limitations on how far back and employee can go to file a pay-discrimination suit against an employer.
• Employment Non-Discrimination Act: Would provide protections to gay, lesbian and bisexual workers against employment discrimination similar to the protection provided under Title VII of the Civil Rights Act of 1964.
• FMLA Expansion Act: Would expand coverage under the Family and Medical Leave Act to companies with at least 25 employees, as opposed to the 50-employee minimum in the current law.
• Healthy Families Act: Proposes that any company with at least 15 employees would required to provide paid sick leave.
• Civil Rights Act of 2008: A far-reaching piece of legislation that would amend a number of employment laws affecting, for instance, discrimination charges involving age and pre-employment tests, and changing the rules under which disputes can go to arbitration.

Steven Levitt, who co-wrote the popular book Freakonomics, says in a New York Times piece that if you look at the numbers, it’s undeniable that online recruiting contains some hidden bias against minorites. Consider the analysis of 25,000 applicant responses fielded by headhunter JobApp Network:

• When the firm took applications by phone, 40% of applicants were minorities.
• When it limited applications to online only, just 20% of the applicants were minorities.

Even before the study was released, some recruiting analysts had suggested that online-only ads tended to screen out minorities who were less likely to have convenient Internet access. The study is the first to support the idea by using actual statistics.

To see the full study, click here. 

The case
Actually, there were two cases, but the main one – CBOCS West v. Humphries – involved a black assistant manager at a Cracker Barrel restaurant in Illinois. He had complained about racist remarks and unfair treatment, and eventually was fired by a supervisor alleging poor performance. 

The employee sued, charging he was fired for complaining, not for performance reasons. And he insisted that retaliation for complaining about discrimination is part of discrimination itself and should be treated that way in the courts – as a violation of federal law. 

The employer argued retaliation isn’t mentioned specifically in laws barring discrimination, so an employee can’t tie the two together. 

The ruling
In a 7-2 opinion, the court agreed with the employee. In the wording of the majority opinion, retaliation is “embedded” in discrimination, making the two offenses the same, and subject to federal-court rulings. 

The effect
Few employers set out to intentionally retaliate against employers who file complaints, so what’s the big deal? 

The deal is that you can find yourself defending against a federal-level lawsuit for the appearance of retaliation after a discrimination claim. And that means even greater risk for employers whose managers don’t document properly. 

Imagine, for instance, a difficult employee who files a frivolous discrimination complaint and then performs poorly. If you try to discipline that employee for the performance, you’re going to hear a scream of  “retaliation” if the performance isn’t documented. 

A lot of employees and employment lawyers have figured out the tactic already: The EEOC reports that the number of retaliation complaints has doubled in the last 15 years.

Click here for more details about the case.

Discrimination charges against employers last year jumped to the highest number since 2002. With all the emphasis on following the law and training supervisors, why do things seem to be getting worse?

First the numbers:

• EEOC fielded 82,792 discrimination complaints against employers in 2007. Compared to 2006, that represents the biggest one-year jump (9%) since the 1990s.
• Race and sex discrimination led in the number of the charges, but instances of pregnancy discrimination hit a record high for that category – 5,587.
• Companies paid out $345 million in damages as a result of the charges, up from $274 million the year before.

So, let’s repeat the question: With all the emphasis on educating supervisors and complying with the law, why do things seem to be getting worse? And can HR do any more than it’s doing now to help? Maybe, but there are factors to consider when adjusting your approach to stemming bias charges:

More men are suing. The percentage of men filing charges has nearly doubled since the 1990s. That might indicate that HR departments – sensitive to the dangers of sexual harassment – emphasize stopping discrimination against women but pay too little attention to offenses against men, including sexual harassment.

Pay and benefits have been flattening out. People who get less tend to sue more. An angry employee is much more likely to call a lawyer. If your organization has been cutting back on pay and bennies, you may need to step up efforts to prevent bias suits.

Employees are more savvy about the law. For a long time, laws like FMLA were overlooked and misunderstood. No longer. Anti-discrimination laws have matured, and so has employees’ knowledge. In your training you’ll need to be sure your managers are at least as savvy.

EEOC got tougher. In 2007, the agency enacted a plan in which local investigators get “performance-based” incentives. Translation: They got bonuses for uncovering discrimination and harassment cases, especially those that could be turned into big-money class-action suits against employers.

In short, the problem isn’t HR’s fault, but there are steps HR can take to address the problem.

You can start my making sure managers are trained and understand the importance of the training. (It might not hurt to show them the statistics above.)

And now more than ever is the time that you ans managers need to keep taking the pulse of the workforce. Are people angry? If so, managers can at least show they understand and maybe do a little something, such as offering small “atta-boy” incentives to lessen the anger.

Anything that keeps you out of court is a good idea and worth the effort.

Here’s the situation a lot of HR managers face:

You have two low-performing employees, one white and the other nonwhite. You and their managers want to place the employees in a probation status – in which they have a set time, say 90 days, to get themselves on track or face termination.

Then the manager of the white employee lets the 90 days play out. But the manager of the nonwhite employee comes to you before the end of the 90 days and says, “Let’s terminate now.”

Two guides

A touchy situation, to be sure. Here’s the guidance that’s come out of some federal-court cases on how to avoid the appearance of discrimination:

1. To begin, you’re OK if, when deciding on probation periods, you set different ones for different employees. Courts generally recognize that not all employees are the same, and that you may have good business reasons for setting different periods. For example, it might be crucial that an employee gets up to speed quickly on a short-fuse project, while another employee’s quick progress might not be so critical.

2. Even if you set the same periods, you’re not stuck with them if you stipulate in the PIP documentation that a lack of progress on the part of the employee could cause the time to be cut short. In other words, in a 90-day program, a supervisor could see after 60 days that the situation is hopeless and recommend termination. Just make sure that option is spelled out in the paperwork covering the PIP.

Imagine this sequence:

a. A chronic complainer charges one of your managers with discrimination.
b. You investigate and find out that there’s nothing to the charge.
c. But during the investigation, the complainer gets transferred to a less-desirable job and sues, saying the transfer was retaliation for complaining.

Since the original charge turned out to be a fairy tale, the complainer has little chance of winning the retaliation charge, right?

In at least two court cases, the answer was “wrong.”

Judges awarded the complaining employees little or nothing for the discrimination complaints but slapped the employers hard for retaliating. In one case, the discrimination charge got dropped altogether, but the employee still won $675,000 in damages for retaliation. In another case, a jury gave the employee just $1,000 for the discrimination claim, but then added another $375,000 for retaliation.

Your best bet: When an employee files a complaint against a manager, sit down with the manager and explain the importance of fair treatment until an investigation concludes. Remember, some managers may be quick to react, especially if they think the discrimination charge is bogus.