B & H Foto and Electronics Corp. paid its Hispanic employees less than their non-Hispanic co-workers, according to a lawsuit filed on behalf of 149 Hispanic warehouse workers.

The company was also accused of failing to provide health benefits to Hispanic workers and promote them because of their national origin.

Result: The company was forced to settle and pay out $4.3 million in wages and benefits to the 149 employees.

As part of the settlement, B & H agreed to:

• equalize Hispanic employees’ wages with other workers’ pay
• maintain a written non-discrimination policy
• conduct supervisor training
• post bilingual wage-and-hour and benefits notices, and
• submit to Equal Employment Opportunity Commission (EEOC) audits for the next five years.

When fighting bias claims, nothing can doom a company quite like the employee showing the judge a discriminatory e-mail or text message from a supervisor. But as this recent case shows, there are still steps employers can take to protect themselves from those claims.

An African-American security guard sued his employer for discrimination. His reason: racially charged jokes send to him by his supervisor via text messages.

One of the messages, which was sent to several employees, contained a serious racial slur. On top of that, the employee also claimed white employees got more favorable work assignments than minorities.

Employees who have permanent written evidence of harassment or bias (like a defamatory e-mail or text message) usually do well in court.

But not this time. Here’s why:

After getting the messages, the employee complained to HR. After getting the complaint, the company:

1. gave the supervisor a “final warning”
2. transferred the employee to a location with a different supervisor (which the employee had requested), and
3. looked into his claims about work assignments, but found no evidence he was right.

After that, the employee sued anyway, claiming the company didn’t do enough. But the court disagreed.

Prompt investigation and appropriate discipline can protect companies from managers’ bias and stupid misuse of technology.

Cite: Griffin vs. Harrisburg Property Services, Inc.

When employees are caught breaking the company’s computer use policy, they usually have an explanation of why they’re innocent. Does that mean bosses can’t fire them without absolute proof?

No, it just means you need to conduct consistent and thorough investigations. Here’s what happened in a recent court case:

A manager noticed excessive personal computer use by one of his employees, so he asked IT to examine her hard drive and Web browsing history.

What they found was worse then the manager expected: The hard drive contained pictures of nude men, and her work e-mail contained a message with a pornographic image attached. The employee was fired for violating the company’s computer use policy.

The employee, an African-American, denied responsibility for the images. She said she received the e-mail from a co-worker and didn’t know how the pictures got on the hard drive. She claimed she had complained to HR about the images, but nothing was done about.

As for her termination, she believed she was fired because of her race. She sued the company.

In court, the employee pointed to numerous events to show her co-workers were biased against her. For example, she claimed she was told she “didn’t know her place” and said other employees disapproved of her dating white men.

She argued the company didn’t investigate the computer situation thoroughly enough and had just wanted to get rid of her.

The court didn’t buy the argument. First, the instances she mentioned had nothing to do with the people who decided to fire her and were just stray comments that didn’t seem connected to the termination.

Second, even if she was telling the truth about the pornography on her computer, that didn’t necessarily matter. The company just had to show it honestly and reasonably believed she broke the policy. It did that, and the judge tossed the case.

When it comes to computer policy violations, figuring out who’s to blame can be complicated. Employees in other lawsuits have claimed viruses automatically downloaded porn or that someone logged into their computers without permission.

But the good news for HR is you don’t need to prove to a judge that the employee was guilty — just that you investigated properly and made a non-biased decision based on the information you had.

Cite: Twymon v. Wells Fargo & Co.

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.

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.