Consider the details of the federal appeals court case, Halpert v. Manhattan Apartments, Inc.:

Plaintiff Michael Halpert interviewed with Robert Brooks for a position to show rental apartments. Brooks was an independent contractor, not an employee, of realtor Manhattan Apartments, Inc. Halpert alleged he was told by Brooks that he was “too old” for the position. Halpert then sued Manhattan Apartments — not the independent contractor Brooks — for age discrimination.

In an earlier decision, Robinson v. Overseas Military Sales Corp., a court ruled that such claims don’t apply to employers who hire independent contractors.

But the appeals court in the Halpert case said, in effect, “We’re changing the rules.”

To quote the writings of the court: “[Manhattan Apartments] can potentially be held liable for discrimination by an independent contractor (Brooks) who acts for the employer … The prohibition [on discrimination] applies regardless of whether an employer uses its employees to interview applicants for open positions, or whether it uses intermediaries, such as independent contractors, to fill that role.”

That’s legalese for: If the contractor is acting on your behalf, and the contractor discriminates, you’re on the hook.

The take-away: Be careful about the duties that you hand over to an IC, especially responsibilities for hiring and firing. If the IC blunders and violates anti-discrimination statutes, the victim could come your company’s wallet.

In a recent opinion letter, the EEOC tried to clear up some confusion over the wording of help wanted ads.

The question: Does including a phrase such as “women and minorities encouraged to apply” break the law?

The answer: No, according to the EEOC.

Encouraging certain groups to apply doesn’t mean you’re biased against or in favor of any type of person.

However, the letter points out that some companies make the mistake of using similar — but discriminatory — phrasing. For example: “We are seeking women … ”

“Seeking” implies a preference for that group. Therefore, a court would likely consider it to be illegal bias.

Read the entire Opinion Letter here.

When IT finds someone’s been browsing offensive Web sites on a work computer, you’d normally fire the employee. But what happens when it’s a computer several employees share?

That’s what happened in this recent case:

All employees in one department of a hospital shared a computer. Employees each had their own username and password, and company policy required them to log in under their own name and log out when they were finished.

But in practice, the first employee to use the computer would normally stay logged in all day, with all employees working under that name.

During one shift, an employee noticed pornographic sites in the computer’s Web browsing history. She complained to HR, who brought the matter to IT for an investigation.

It turned out that the only male employee in the department was logged in to the computer at the time the porn sites were visited. He denied going to the sites, citing the common practice of all employees sharing one login ID.

A further investigation showed the man was the only department employee scheduled to work on a day when some some of the sites were browsed. He was fired.

Still, he said he didn’t do it — and he sued the hospital for gender discrimination, claiming they assumed he viewed the pornography because he was the only male employee.

The company asked a judge to toss the case, arguing it conducted a thorough investigation before the employee was fired.

The court agreed. First, since the man was logged in to the computer at the time, it was reasonable to start the investigation with him. And the list of possible perpetrators was narrowed down even further by comparing employees’ schedules with the times the sites were accessed, giving the company good cause to fire the employee.

Lesson: When multiple employees share one computer, it’s smart to create a policy requiring individuals to log in and out. But to track activity, the company still has to enforce the policy. If the hospital had done that in this case, it may have avoided the lawsuit altogether.

Cite: Farr v. St. Francis Hospital and Health Centers

The scene:

Warren Bridges looked at the copies of the e-mails handed to him by HR manager Susanna Diaz. “Yes, I wrote both of those,” he said. “So what?”

Susanna looked over her copies as she replied: “Well, you sent them to Lori a couple of weeks before you fired her. The first one says her performance is a problem ‘and could result in your termination.’ The second one thanks her for her service and says you had to let her go ‘as part of a companywide reduction in force.’”

“Right,” Warren nodded. “I was trying to let Lori down easy and say she got caught in a RIF.”

“Here’s the problem,” Susanna explained. “You replaced her with a man.”

“And …” Warren said.

“You gave her conflicting reasons for letting her go — poor performance and a RIF,” she said. “First, we never had a RIF. Second, with all the confusion about the real reason for firing her, you replace her with a man. That looks fishy.

Warren sighed. “I still don’t see the big deal.”

But Lori did. She sued the company for sex discrimination, saying there was no clear reason for the firing, and Warren — a man — replaced her with another man. The company said Warren was just trying to go easy on her, and the hiring of a male replacement was a coincidence.

Did the company win?

The judgment
No the company lost.

Even though the supervisor had good documentation backing his performance-based reasons for the firing, the judge still ruled in favor of the employee.

The judge’s reason: You can have good documentation, but that doesn’t mean there are grounds for throwing out other evidence that might show mixed reasons or bias.

In this case, the conflicting e-mails and the hiring of a male replacement were enough to overshadow the performance documentation. A lack of consistency in documentation and actions always calls into question the motives of the supervisor and the company, the judge said.

Ruling: Employee wins because of the doubt behind the company’s decision.

When there’s a charge of bias, conflicting information from the supervisor tends to set off alarm bells — and questions — in a judge’s mind:
• Why would they say one thing and then another?
• Were they trying to cover up something?

Combine those with the outward appearance of discrimination – a male supervisor replacing a female with a male – and you have the ingredients for a company loss in the courtroom.

[Based on: Parks v. Lebhar-Friedman, Inc.]

An employee complained that his manager made racially offensive comments. The company investigated and fired the supervisor.

But about a month later, the employee was fired — according to the company, because he threatened to make up  accusations about his new boss if he didn’t approve a paid vacation request. The employee said he never made the threat.

The company fired him before conducting an investigation. He sued, claiming it was retaliation for the complaints against his former supervisor.

The primary piece of evidence against the company: an e-mail from the HR manager recommending the termination.

After saying the employee should be fired, the HR manager reminded decision-makers that the employee had recently filed a complaint about discrimination. Therefore, the employee’s lawyers claimed, the firing and the complaints were connected.

The result: Unable to fight the case in court, the company settled for $175,000.

Cite: EEOC v. Maverick Tube Corp.

Time-strapped managers wear several different hats over the course of a busy work day. With all of these responsibilities, it’s no wonder some tasks slide to the back burner. 

But documentation is a task that has to be a priority every single day.

Truth is, in today’s lawsuit-happy world, most court cases are won — or lost — based on the thoroughness of documentation.

Here are seven common documentation mistakes — and the fixes:

1. Not outlining company expectations. When documenting, supervisors should describe specific expectations so employees understand exactly what’s required of them. When the company’s expectations are recorded on paper, the employee knows exactly what was expected. And, if the company finds itself in court, good documentation provides evidence that backs up business decisions.
2. Failing to state specific changes employees need to make. A solid paper trail outlines the conduct that needs to change. The best documentation focuses on the behavior rather than the person. Give detailed examples, so employees understand exactly what’s not working.
3. Skipping the employee’s story. Of course, there are always two sides to a story. And good documentation records both the supervisor’s side as well as workers’ perspectives on the situation. First of all, including employees’ reactions may open up the lines of communication and solve a problem. And second, if you do end up in court, comprehensive documentation shows the judge that the manager made a good-faith effort to correct the problem.
4. Not outlining the plan. Effective documentation is a blueprint, which maps out specific goals — and how employees are going to get there. For instance, if workers need to increase productivity, good documentation lists the specific steps employees should take to meet production goals.
5. Forgetting to list possible consequences if improvements aren’t made. A solid paper trail lists the possible consequences if employees fail to make necessary improvements. For example, employees may be disciplined, demoted or terminated. One caveat: Don’t paint yourself into a corner by using absolute language — use “may” rather than “will” when listing consequences.
6. Failing to establish a time frame. When creating a time line for improvement, managers should use a realistic time period. If the documentation lists an exact time frame — such as a 30-day performance improvement plan — then it must be followed.
7. Not following up on documentation. Often overlooked, follow-up is a crucial part of documentation. Savvy managers use follow-up sessions to gauge progress, offer feedback and make further recommendations for continued improvement.

First, the numbers. At the end of the last fiscal year, the EEOC reported 95,402 claims — a jump of 15% over the previous year and the most in the agency’s 44-year history. The agency said it recovered $376 million in settlements and judgments against employers as it filed 290 new lawsuits and resolved 339 suits and 81,081 non-court claims.

The EEOC doesn’t analyze the “why” but speculation rests on three main factors:

Economic conditions. When money’s tight at home or people lose their jobs or see a threat of job loss, they’re more likely to file complaints. That means companies that go through layoffs have to make sure every step of the process is buttoned up and can withstand a lawyer’s scrutiny.

Demographic changes in the workplace. This one’s tied to layoffs, too. A lot of companies have already laid off many of their younger, low-seniority workers, and now the ax is starting to hitting older workers with more seniority. They have grounds to sue — age discrimination — and often do so when they get a pink slip.

A change in complaint procedures. Last year, the U.S. Supreme Court ruled workers don’t have to file a formal complaint with the EEOC before suing an employer for age discrimination. In the particular case, the court’s 7-2 ruling upheld the right of FedEx employees to file legal claims against the company, assisted by EEOC,  even though the employees had never filed a formal charge with the agency.

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 guidelines don’t represent any real change in the rules, but they do clarify some issues that employers have struggled with:

• What’s a religion? The definition of “religion” is broad and covers traditional belief in a god as well as nontraditional – but sincerely held – moral or ethical beliefs as to what’s right and wrong. So the belief doesn’t necessarily have to be based on a deity or any of the traditional organized religions.
• What aspects of the workplace are covered by the rules against religious bias? The prohibition against religious discrimination covers all aspects of the workplace, including recruitment, hiring, promotion, discipline, scheduling, compensation, and termination. In other words, religious bias is considered the same as any other bias — race, gender, disability, etc.
• Is there any such thing as “religious harassment”? Yes, employees can charge an employer with religious harassment, just as they can charge racial harassment or sexual harassment. That means if a supervisor overlooks it when employees ridicule another because of religious beliefs, that supervisor is opening the door for a religious-harassment lawsuit.

While the EEOC doesn’t set strict rules on when an employer should or shouldn’t accommodate an employee’s religious beliefs by flexible scheduling or other means, the agency does require employers to take any reasonable measures that don’t create an undue burden, financial or otherwise, on the company.

HR’s new function: Standing up to workplace bullies. What used to be considered a good idea may now become law. 

And here’s the big problem: Someone is going to have to referee and figure out who’s a bully and who’s just a big pain in the butt who should be ignored. In short, you may have to play Civility Cop. That’s the assessment of attorneys who are looking at the proposed anti-bullying legislation, which in effect demands that employees play nice with one another.

Let’s look at the type of scenario that could pop up:

A white manager supervises a black employee. The white manager is a crusty type who criticizes the black employee in public, maybe even loudly uses insults like “stupid” and “lazy.” Under anti-discrimination laws, the black employee had no legal recourse — the law doesn’t demand that managers be civil to their employees.

But under proposed legislation, the employee could charge with manager with bullying — and charge the company with allowing it, unless you step in.

Start now
Your best bet: Start now to head off any bullying charges. For instance –

• Have policies in place that make it clear bullying behaviors will not be tolerated.
• If you have an employee handbook, emphasize in it that workers must treat each other with respect.
• Encourage employees who feel bullied to report the conduct, just as they would report charges of harassment or discrimination, and investigate those complaints seriously.
• If an investigation warrants it, take appropriate action.

Here are the states that are looking at anti-bullying legislation:

• California
• Connecticut
• Hawaii
• Kansas
• Massachusetts
• Missouri
• Montana
• New Jersey
• New York
• Oklahoma
• Oregon
• Vermont
• Washington

 And here’s sample legislation from New York.