Employment Ad Discrimination: Where to Draw the Lines

Facebook Faces Allegations of Job Ads that Discriminate Against Women

When an employer creates an ad that excludes a protected class, grounds often exist for a discrimination lawsuit. For example, when writing most employment ads, it is illegal for employers to exclude applicants based on age or race.

According to a New York Times article, the American Civil Liberties Union (ACLU) and the Communications Workers of America (CWA) filed charges with the EEOC on behalf of female workers against nine employers and Facebook.

Why Was Facebook Included in the Lawsuit?

Facebook provides targeting technology for ads. It can target particular demographics and when an employer is placing an ad, Facebook asks the employer to indicate gender — that is to say, should the ad go to males only, females only or all. Facebook uses algorithms to match an ad with a specific subgroup.

The attorneys bringing the case are arguing that having employer specify male or female is discriminatory and illegal when it applies to jobs that either sex can do. Facebook differs from newspapers with classic ad submission where the content of the ad is simply printed and goes out to anyone who purchases the newspaper.

Employers’ Defense

In the past, Facebook has used the Communications Decency Act as its strongest defense against such accusations. The Communications Decency Act is a federal law that shields internet companies against liability for content generated by third parties.

The lawyers bringing the lawsuit argue that in this situation, employers are using the Facebook platform to be selective in the creation or development of the unlawful content. The interface enables employers to selectively exclude women from jobs that they could potentially also do.

Federal law also prohibits recruiting agencies from discriminating through advertising campaigns that exclude job candidates based on gender and other protected classes (age, disability, race, ethnicity, military status, etc.) State laws also forbid such agencies from aiding in discrimination.

While Facebook does not promote itself as a recruiting agency, many employers use it for recruitment and as a means to reach potential job candidates through ads. Facebook finds itself in a unique position when a group of men receive ads simply because they are men and often because they are men of a certain again and geographical area.

From a legal standpoint, internet technology like Facebook uses is still subject to case precedents, which will decide whether selecting “male only” is legal or not for recruitment ads and which parties are liable.

Our attorneys at Stephen Hans & Associates are glad to discuss employment issues and help business owners create discrimination-free work environments.



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Compliance with “Cooperative Dialogue” for Accommodation Requests

What Does Cooperative Dialogue Mean Under New NYC Law?

As of October 15, 2018, employers have a new law they must comply with when an employee requests an accommodation based on their civil rights. Many business owners are aware of the recently passed New York City Civil Rights Law that requires distribution of anti-sexual harassment policies and annual anti-sexual harassment training for all the business’s employees. However, this new law regarding cooperative dialogue slipped through without many people realizing it.

Based on NYC procedural law, a mayor can do the following: sign the bill, veto it or take no action. When the mayor takes no action, the unsigned bill goes into effect. This is what occurred with the recent bill addressing Cooperative Dialogue for Accommodation Requests.

What are the provisions of the new cooperative dialogue law?

Society for Human Resource Management (SHRM) outlines the main provisions of the new law. The law applies when employee requests a workplace accommodation. The basis for accommodation requests may be due to religious practices, disability, pregnancy, childbirth and related medical conditions or based on domestic violence, sex offenses or stalking. NYC employers with four employees or less must comply with the new law.

The employee triggers the legal obligation by requesting an accommodation. The employer receives notification of it either by the employee or employee’s surrogate (someone representing the employee).

Next, the employer must engage in cooperative dialogue with the employee or surrogate regarding the request. Cooperative dialogue can be written or oral communications. Employers should also have dialogue about the possible accommodations to address the request and should mention any potential difficulties in accommodating it.

In addition, the employer must provide the employee with written documentation of the final determination, which includes whether the employer granted or denied the accommodation. Employers can deny accommodation requests only after reasonable dialogue has taken place about the accommodation.

Penalties for Failure to Comply

Under NYC Human Rights law, employers may face charges of unlawful discrimination. Employees can file complaints with the NYC Commission on Human Rights. The commission can initiate a commissioner’s charge and employees can privately sue. They can seek compensatory, punitive, equitable and injunctive relief. They can also seek up to $25,000 per violation and up to $250,000 for a willful, wanton or malicious violation plus attorney’s fees through a civil lawsuit.

Do You Have Questions about Employment Law?

Our attorneys at Stephen Hans & Associates are glad to advise regarding your concerns.



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What Is the Faragher-Ellerth Affirmative Defense?

An Affirmative Defense for Employers

Affirmative defense is a legal term that offers some degree of protection for employers. We live in volatile times, an age where #MeToo is changing the legal landscape and sexual harassment claims are becoming very prevalent.

While many wrongs are being righted, it has also opened the door to the possibility of false claims. You may ask, “What protection do employers have?”

Womans Equal Rights, NY Equality Act

The Faragher-Ellerth Defense

The Faragher-Ellerth Affirmative Defense arose from two cases heard by the U.S. Supreme Court. The court’s decisions established precedents for affirmative defense for employers who faced accusations of sexual harassment. It has also served as a defense guideline against hostile work environment harassment claims based on other protected classes.

The defense may offer protection to employers if the following circumstances exist:

  • The employer exercised reasonable care to prevent and promptly correct the harassment. (Companies’ harassment polices show the business has taken effective preventative measures.)
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities the employee provided or failed to otherwise avoid harm.
  • The employer or supervisors did not take tangible adverse actions against the complaining employee, such as demotion, termination or an undesirable reassignment.

Based on a Recent Ruling, Employers Should Be Proactive in Preventing Sexual Harassment

In a recent case, Minarsky v. Susquehanna County, the County used the Faragher-Ellerth affirmative defense and the district court granted the County summary judgment. However, the Third Circuit Court vacated the judgment by ruling that the case should be heard by a jury, which would decide whether the County took reasonable care to detect and eliminate the harassment and whether the employee had acted reasonably in not availing herself of the County’s anti-harassment protections.

The employee terminated for sexual harassment had been reprimanded twice previously with no notation made in his personnel file. Similar encounters by other workers came under scrutiny before he was terminated. However, Minarsky worked with him alone and had endured sexual harassment for four years.

Being proactive about dealing with sexual harassment and conducting a thorough investigation can often help employers avoid situations like these.

Our attorneys at Stephen Hans & Associates are glad to discuss employment issues and help business owners create discrimination-free work environments.

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What Can Restaurant Owners Do to Reduce Sexual Harassment?

Guidelines for Dealing with Sexual Harassment as a Restaurant Owner

sex harassmentRestaurant owners who allow sexual harassment to exist in the workplace put themselves at risk for complaints and lawsuits. It is wise to understand what actions you can take to eliminate sexual harassment and avoid liability.

The Harvard Business Review (HBR) pointed out that Pizza Hut became liable in the Lockard v. Pizza Hut case because the franchisee ignored corporate policy that required managers to inform a customer to stop harassing their employees. It was their policy to require that customers leave when they failed to heed the manager’s warning. The harassment case resulted in the franchisee paying the employee approximately $38,000 in damages.

What Actions Can Restaurant Owners Take?

To prevent sexual harassment in the workplace, restaurant owners can take the following measures:

  • Devise and enforce anti-harassment polices
  • Establish procedures for employees to file complaints
  • Establish procedures for managers to address complaints regularly and fairly
  • Establish a procedure for employees to report managers to a Human Resources department when being harassed by a manager
  • Use the “secret shoppers” model and interview employees about instances of sexual harassment
  • Require managers to complete sexual harassment training
  • Train managers to recognize the various types of sexual harassment and ensure they understand the legal measures necessary to keep the workplace free of sexual harassment
  • Train employees in bystander intervention training so witnesses know how to recognize and deal with sexual harassment and can disrupt it
  • Train managers how to deal with harassing customers, which includes assigning the employee to a different table, informing the customer that the harassment will not be tolerated, and asking customers to leave when they do not comply.
  • Make it restaurant policy not to serve customers who sexually harass employees. Employees can apply the policy in the same way that they can refuse to serve intoxicated or threatening customers.

Our attorneys at Stephen Hans & Associates are glad to discuss employment issues and help business owners create discrimination free work environments.





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Facts About Sexual Harassment in the Restaurant Industry

Why Is Sexual Harassment so Prevalent?

sexual harassment

Sexual harassment is more prevalent in the restaurant industry than any other industry. Statistics show that 90% of women and 70% of men working in the restaurant industry reported they had experienced some form of sexual harassment.

What Factors Make Restaurants Prone to Sexual Harassment?

The Harvard Business Review (HBR) indicated that the following factors make employees in the hospitality industry more susceptible to sexual harassment:

  • Women make up 71% of restaurant servers
  • Men make up the majority of restaurant management
  • Typical servers are young females
  • Women are in lower pay and lower status jobs
  • Due to lower status, women do not feel comfortable confronting others about inappropriate behavior
  • The employee turnover rate is high — 70% annually
  • The customer is always right mentality enables customers to sexually harass employees
  • States with tip systems experienced more sexual harassment than states that had minimum wages
  • Restaurants had strict grooming, and uniform rules and were focused on “looks”

According to an HBR study, where 162 managers from hotel and lodging departments participated, managers perceived sexual harassment as less negative when done by a customer than by an employee.

A study done on 76 females in the restaurant industry over a three-month period revealed that there were 226 incidents of sexual harassment, which broke down as follows:

  • 112 incidents involved co-workers
  • 29 involved a manager
  • 85 involved customers

The nature of the harassment included:

  • Telling suggestive, sexual stories (49%)
  • Making offensive remarks (46%)
  • Making crude sexual remarks (45%)
  • Making sexist comments (42%)
  • Attempting to discuss sex. (33%)

Servers rarely complained to their managers even though most of them felt uncomfortable and threatened. The reason they didn’t report it was due to fear of retaliation. As a result, both men and women working in the industry have, to a degree, normalized sexual harassment.

Stephen Hans & Associates provides extensive legal experience to business owners regarding employment related issues.

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Changes in New York State and NYC Sexual Harassment Laws

Sexual Harassment: Mandatory Arbitration and Nondisclosure Agreements

The NY legislature passed changes in sexual harassment law that Governor Cuomo signed into law on April 17, 2018. These laws went into effect 90 days after being enacted, which means they are currently in effect.

Prohibition of Mandatory Arbitration Clauses

Prohibited clauses in employment contracts make arbitration mandatory for allegations or claims that employees file regarding sexual harassment (or any discriminatory action). Any contracts that contain such clauses no longer have legal standing and will not be enforced by the NY courts. The fact that a mandatory arbitration clause exists in a contract does not make the other clauses the contract contains invalid. The only clause that is null and void is the clause that makes arbitration mandatory.

Sex Harassment

Prohibition of Nondisclosure Agreements

In the past, employers could prevent disclosure of sexual harassment by including a nondisclosure or confidentiality clause in a contract. Under the new change in NY law, employers cannot require a claimant to keep confidential the underlying facts and circumstance that led to the claim or action. The only exception is if confidentiality is the complainant’s preference. Nondisclosure prohibition also applies to an agreed upon judgment, decree, settlement or stipulation in a legal proceeding regarding the sexual harassment claim.

If a nondisclosure agreement is being considered, all parties must be allowed to consider it for a period of 21 days. Additionally, if used, the individual has seven days to revoke the agreement, which does not become effective until the revocation period has ended.

(Reference: Lexology)

Are You an Employer with Questions about Employment Law Defense? Get Legal Help.

If you are uncertain about complying with employment laws or face a dispute or lawsuit brought against you by an employee, our attorneys at Stephen Hans & Associates are glad to discuss your concerns and determine how we can assist you.

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Supreme Court Rules in Favor of Employers in Recent Arbitration Case

Do you have an arbitration clause in your employment contract?

For some time, businesses have included arbitration clauses in their legal documents, which have stated that employment disputes would be resolved through arbitration. Companies can benefit from using arbitration to resolve disputes because it spares the expense of costly lawsuits.

According to the National Law Review, during the past six years, an ongoing legal battle has ensued to determine the legality of waiving arbitration agreements to allow class action lawsuits. The National Labor Relations Board (NLRB) had a policy of declaring arbitration agreements that included class action waivers as unlawful.

Various federal appeals courts had ruled on the issue with opposite findings, some holding that class action waivers were lawful and others deferring to the NLRB’s policy on the matter, that they were unlawful.

What Was the Recent Supreme Court’s Ruling on the Arbitration with Class Action Waivers?

As the highest level of appeal in the nation, the U.S. Supreme Court has the final say. Even so, the justices were split on the issue with a standing of 5 to 4.

On May 21, 2018 the U.S. Supreme Court ruled that valid arbitration agreements must be enforced.

Supreme Court Rules in Favor of Employers in Recent Arbitration Case

On What Basis Did the Supreme Court Arrive at Its Decision?

The Arbitration Act states that an arbitration agreement may only be invalidated “by generally applicable contract defenses, such as fraud, duress or unconscionability.”

In the case before the Supreme Court, employees did not assert that an act of fraud, duress or some other unconscionable factor should render the arbitration contract unenforceable. They objected because they were required to have individual arbitration proceedings instead being allowed a class or collective proceeding. The majority of justices ruled that their argument did not meet the terms of the Arbitration Act as sufficient to invalidate an arbitration agreement.

The majority also ruled that there is no conflict between the Arbitration Act and the National Labor Relations Act, which does not express approval or disapproval of arbitration and does not mention class or collective procedures at all. Therefore, the court found that the NLRB had overstepped its authority in its decisions that class or collective actions could waive arbitration agreements.

Get Legal Help with Your Questions about Employment Law

If you face employment disputes, our attorneys at Stephen Hans & Associates are glad to offer seasoned legal guidance and representation to help you resolve employment issues.





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