Discrimination and harassment

Legislative Update for the Week of April 7, 2014

Leg Roundup Image 132 by 140.jpgLittler Shareholders Maury Baskin and Michael Lotito Testify at NLRB Public Meeting
Nearly 50 speakers have or are slated to testify during the National Labor Relations Board's 2-day public meeting on the proposed expedited or "ambush" election rule. The Board sought input on approximately 20 different issues stemming from the proposed rule, which would make significant changes to pre- and post- representation election process. Among the speakers were Littler Shareholders Michael Lotito and Maury Baskin, who testified specifically about the proposal's expedited timing of the pre-election hearing; the requirement that an employer identify all potential bargaining unit issues in its statement of position or forever waive them; the types of matters that should be resolved at the pre-election hearing; and how the rules should address voter lists.  Read the full post here. (April 11, 2014)

Congress: Heal Thyself
Many private employers, and the agencies under the federal executive branch, provide regular sexual harassment training to their employees.  Yet, one notable employer, the United States Congress, does not. Rep. Jackie Speier (D-CA) seeks to bridge that gap. On Tuesday April 8, 2014, she introduced a resolution to amend the Rules of the House of Representatives to require members and their staff to take "a specific program of training in the prevention and deterrence of sexual harassment in employment." The annual training would be two hours for new members and employees, and one hour thereafter. Read the full post here. (April 10, 2014)

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Puerto Rico's ADA Counterpart, Law 44, Does Not Provide for Individual Liability

By Daniel Quiles and Jessica Earl

gavel.jpgA recent ruling by the United States District Court for the District of Puerto Rico clarifies that Law 44, Puerto Rico's counterpart to the federal American with Disabilities Act (ADA), applies only to employers and does not provide for individual liability.  Accordingly, claims brought against individual defendants under Law 44 are subject to dismissal.

In Van Praag v. DHL Exp. (USA), Inc., Civil No. 13-1128 (D.P.R. Mar. 10, 2014), the plaintiff worked as a pilot and an assistant director of operations for 14 years for his employer, a company that provided aircraft services for DHL Express (USA).  Around the same time that the employer informed plaintiff that due to the company's financial situation, his salary would be drastically reduced, plaintiff informed his superiors that he was seeking treatment for depression and was taking medication that made him tired, dizzy, and diminished his capacity to fly airplanes.  Due to his medical condition, plaintiff was unable to continue flying airplanes.  Approximately six months later, plaintiff's employment was terminated.  Plaintiff sued the company and his supervisor as an individual defendant, alleging, among other claims, disability discrimination in violation of Law No. 44, 1 L.P.R.A. § 502.  Plaintiff's supervisor moved to dismiss the complaint, arguing that neither the Puerto Rico Supreme Court nor the First Circuit has definitively ruled on the issue of individual liability under Law 44. 

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Australia Beefs Up Its Anti-Bullying Laws

By Naomi Sheridan

Australian workplaces have long been subject to anti-bullying laws, but effective January 1, 2014, workers have an additional avenue in which to bring workplace bullying complaints against employers.

Australian workers have been able to lodge workplace bullying complaints under workplace health and safety laws to the various health and safety authorities in each state of Australia. Now, the Fair Work Commission (the Commission) also has jurisdiction to deal with workplace bullying complaints as a result of the former government's pre-election amendments to the Fair Work Act 2009 (Cth) (the Act). The Commission has already received a small number of bullying claims, with some lodged as early as January 1. The Commission has not released the number of complaints it has received under the new amendments and is unlikely to do so ahead of its standard quarterly data release which will occur next in March.

Under the new system, a worker is now able to lodge an application to obtain an order that workplace bullying cease if it is found to be occurring in the workplace.

Under the Act, a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker or a group of workers of which the alleged victim is a member. The Act clarifies that reasonable management action that is carried out in a reasonable manner does not amount to bullying.

While the Commission cannot award damages for bullying claims under the amendment, it can order that bullying cease. If an employer does not take appropriate action, the worker can apply to the federal court, which can order fines against a corporation of up to $51,000 or against an individual of up to $10,200 (Australian dollars).

Workers may also lodge a workers' compensation claim with respect to any alleged illness or injury flowing from workplace bullying.

If recent unfair dismissal statistics are any indication of what is to come, Australian employers should expect to experience a steady rise in bullying complaints through this new system.

Any company with Australian operations should consider implementing the following steps:

  • Ensure that you have an up-to-date anti-bullying policy in place for your Australian workplaces.
  • Ensure that your anti-bullying policy contains an internal complaint procedure.
  • Ensure that all workers are regularly trained on equal opportunity matters including workplace bullying.
Tags: Bullying

EC Boardroom Gender Diversity Proposals Back Away from Mandatory Quotas

By Madeleine Jephcott

DiversityBoardroom.jpgThe European Commission has published a scaled back proposal to increase the number of women on boards, setting a minimum objective of a 40% presence of female non-executive directors in publicly listed companies by 2020.

There is a powerful business case for addressing lack of female representation in top jobs, the reasons for which are varied and largely intractable. International interest in boardroom gender diversity has grown significantly in recent times and in October the EU Justice Commissioner signalled her intention to introduce decisive legislative action on mandatory gender quotas for corporate boards.

Reportedly, the plan was to force Europe's listed companies to reserve at least 40% of board seats for women by 2020 or face fines or other sanctions. However, stiff opposition from a number of EU member states effectively derailed those plans and the Commission has now published watered down proposals.

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UK Dismissal Protection for Employees with Extreme Political Views Inadequate

By Richard Lister

The European Court of Human Rights (ECHR) has ruled that the UK Government must take measures to protect employees from dismissal on grounds of their political opinions or affiliations, including extreme opinions that others might find offensive or shocking (Redfearn v United Kingdom [2012] ECHR 1878).

There have been various cases over the last couple of years about the types of belief that fall within the definition of a "philosophical belief" for the purposes of discrimination law, as now contained in the Equality Act 2010. However, this case concerned an employee who was dismissed for his membership of a particular political party.

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El Gobierno de México Demuestra la Intención de Combatir el Acoso Sexual en el Lugar de Trabajo

El 6 de septiembre de 2012, la Suprema Corte de Justicia de la Nación de México publicó un acuerdo general interno que prohíbe expresamente el acoso laboral y sexual y establece los lineamientos para investigar y sancionar dicha conducta. Por otro frente, y lo que podría representar un paso importante hacia una reforma en este tema, el presidente Felipe Calderón presentó una iniciativa para reformar los artículos 47 y 51 de la Ley Federal de Trabajo (LFT) para incluir acoso sexual como causal de rescisión. Aunque las normas de la Suprema Corte se aplican solamente a sus empleados, se considera que éstas son una guía para los patrones en el sector privado de cómo prevenir y eliminar el acoso laboral y sexual en el lugar de trabajo y señala un cambio en cómo la Legislatura probablemente reforme la LFT para regular dichos comportamientos en el lugar de trabajo en México.

Para mayor información sobre la manera en que las acciones recientes del gobierno mexicano para combatir el acoso laboral pueden impactar a los patrones, continúe leyendo la nota de Actualidad Laboral de Littler, México toma medidas para enfrentar seriamente el acoso sexual en el lugar de trabajo (ved aquí para la versión en inglés), escrito por Javiera Medina Reza y Matthew Capelle.

Mexico's Government Signals Intent to Combat Sexual Harassment in the Workplace

On September 6, 2012, the Mexican Federal Supreme Court promulgated internal rules that explicitly prohibit harassment in the workplace and establish guidelines for investigating and punishing such conduct. On another front, and in what represents a significant step towards reform in this area, on September 1, 2012, President Felipe Calderon proposed an amendment to Articles 47 and 51 of the Mexican Federal Labor Law (FLL) to include sexual harassment as new grounds for termination with cause. Although the Supreme Court rules are applicable to employees of that institution only, they are considered a guidepost to private sector employers on how to prevent and eliminate sexual harassment and bullying in the workplace and signal a shift in how the Legislature will likely reform the FLL to regulate these behaviors in the workplace in Mexico.

For more information on how the Mexican government's recent actions to combat workplace harassment may impact employers, continue reading Littler's ASAP, Mexico Develops Steps to Take Seriously Sexual Harassment in the Workplace (click here for Spanish version), by Javiera Medina Reza and Matthew Capelle.

Changes to Key UK Equality Provisions Expected Soon

By Carolyn Soakell

DiversityV.jpgThe Government is consulting on some significant revisions to the Equality Act 2010, including abolishing the discrimination questionnaire procedure and the rules on third-party harassment.

The Equality Act 2010, which brought together all UK discrimination laws in one place, was developed under the previous Labour Government and has been in force since October 2010. However, the Conservative/Liberal Democrat Coalition Government which came to power that year decided not to implement certain parts of the Act, including the provisions allowing a claim for discrimination based on a combination of protected characteristics (e.g. sex and race). It also put on hold the requirement for larger companies to report on their gender pay gap.

Now it looks like the Government is planning some substantive changes to discrimination protection under the Act. The aim of the proposed reforms is said to be reducing "bureaucracy" in equality law. But while these changes will no doubt be welcomed by many employers, on a closer look they may not be as helpful as they first appear.

Third-Party Harassment

The first major change is a proposal to abolish the rules on third-party harassment. Employers are currently liable for harassment of their employees by third parties, such as clients and contractors, if they know an employee has already been harassed twice before and fail to take reasonable steps to prevent a third incident. This is known as the "three strikes" rule.

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Update on Diversity Reporting Requirements

By Kate Jenkins and Lisa Croxford

The last two years have seen some significant changes in the diversity reporting requirements. These have largely, however, been limited to companies listed on the Australian Securities Exchange.

The Equal Opportunity for Women in the Workplace Amendment Bill 2012, recently passed in the House of Representatives, will 'raise the bar' for all employers if it becomes law.

The Bill requires all employers of over 100 employees to report against 'gender equality indicators'. Debate on a number of aspects of the Bill is expected in the Senate.

Now is therefore an ideal time for employers to reassess their current reporting processes, and to consider how to measure their organisation's progress against the new gender equality indicators proposed in the Bill.

Read the full post here.

An Update on Workplace Bullying and Harassment Claims: Employer Successes in Australia

By Kate Jenkins and Trish Low

In this article we examine two recent cases where employers have successfully defended bullying and sexual harassment claims made by former employees. The cases highlight a number of interesting factors, including:

  • the high degree of media attention that such cases now attract;
  • how media coverage can impact on an employee's claim for damages;
  • the level of scrutiny which the courts are prepared to subject a complainant's claims to - in particular, the court's willingness to test an employee's allegations that they have suffered psychological or psychiatric injury as a result workplace bullying or harassment; and
  • the costs associated with defending such claims and the courts' willingness to order applicants to pay costs, if their claims are spurious.

Read the full post here.