Is Age Discrimination a Violation of the Constitution?

April 3, 2013

By: Amit Bindra

A state worker can bring a claim for age discrimination through the Equal Protection Clause of the 14th Amendment, at least according to a decision by the Seventh Circuit Appellate Court here in Chicago, Illinois. Levin v. Madigan, 692 F.3d 607, 615-22 (7th Cir. 2012). However, other jurisdictions have disagreed with this decision, and instead have indicated that an employee can only bring a claim for age discrimination pursuant to the Age Discrimination in Employment Act ("ADEA").

In Levin, an Illinois government agency fired an employee that was in his early sixties. The employee relied on the 14th Amendment to argue that his employer discriminated against him and discharged him because of his age. The Seventh Circuit allowed the employee to pursue his constitutional claim.

The Seventh Circuit's decision is important because an employee receives several benefits by pursuing a constitutional claim instead of a claim through the ADEA. First, a constitutional claim allows an employee to sue the individuals that made the decision to end the employment. However, the ADEA only allows for claims against the employer, an employment agency, or a labor organization.

Second, the ADEA limits the types of individuals that can bring claims, and prevents "reverse discrimination" cases and lawsuits by individuals under the age of 40.

Third, a state worker is unable to sue an employer through the ADEA because the employer receives sovereign immunity. That is not the case for a constitutional violation.

Finally, the Supreme Court has articulated higher standards when an employee makes a claim for the ADEA.

Recently, the Supreme Court indicated it will decide this matter in its next term. There are several jurisdictions that disagree with the Seventh Circuit's decision in Levin. Hopefully the Supreme Court's decision will provide some clarity to age discrimination law.

Does "Leaning in" mean not raising claims of discrimination or harassment?

March 29, 2013

Yesterday I saw Sheryl Sandberg, COO of Facebook and author of "Lean in," a book which has ignited a national conversation about gender issues speak about her book. Her speech was inspiring. It's pretty clear that she has been hearing the feedback from women who say that her book doesn't acknowledge the advantages she has over the average woman or the multitude of different goals each individual woman may have. Having yet to finish her book, I can't really comment on whether it is too narrow or oversimplified in its approach. Her speech at least accounted for the fact that women are individuals with unique sets of personalities and experiences. What surprised me was the thinly veiled implication that interpretations of some discrimination and harassment laws might be an impediment to progress for women.

Most of our clients are professionals and/or executives, and we work with both men and women. The irony of Sheryl's implication is that we see just as many men as women raise claims of wrongful termination, harassment and/or discrimination when they are terminated or pushed out of a position. Most professional men and women don't want to sue, but are smart enough to know that walking away from the table when an employer has intentionally harmed their income and/or career is not necessarily a successful business move.

Too many professional women ignore harassment and/or discrimination as a cost of doing business. Men and women should be able to mentor each other without the risk of igniting rumors of sexual harassment, but women shouldn't be discouraged from pursuing valid claims. At the very least, women should be equally encouraged to use leverage in personal negotiations. If a release/waiver of her claims gets a woman more severance to bridge her to her next job, should she really be expected not to use it? Does the same standard apply to professional men?

Book Smarts, Street Smarts . . . and Professionalism Smarts?

March 27, 2013

By: Poonam K. Lakhani

We often find that a number of our clients, although intelligent and well-intentioned, end up in difficult predicaments at work due to a lapse in judgment or unprofessional behavior. Why do such smart individuals make these mistakes? Is professionalism something that should be taught in schools?

According to the dismal findings of the 2013 Professionalism in the Workplace Study released by The Center for Professional Excellence at York College of Pennsylvania, it looks like professionalism ought to be taught in schools.

The study surveyed around 400 human resource professionals about their experiences recruiting and hiring recent college graduates in a variety of industries. Almost half of respondents said that less than 50% of new employees exhibit professionalism in their first year. Technology use appears to be one of the biggest issues, with 50% of respondents reporting an increase in IT etiquette problems.

Here are a few tips to improve your professionalism:

Take initiative to understand and meet your manager's expectations
Don't expect your manager to adjust to your work style or spell out his or her expectations. You need to take initiative to understand your boss's style and expectations and adjust. That might mean outright asking your boss what they want, take initiative on projects without being asked, and show your manager that you are dependable and can be counted on to complete tasks.

Appearances matter
It's not only important to pay attention to the way you dress, but also what kind of employee you present yourself as. Are you punctual and dependable? Are you personable and work well with others? Simple things like making sure you are well-groomed, on time, and respectful to others can go a long way.

Never send an email when upset or after 7 PM
Conflicts due to miscommunication are one of the most vexing problems in the workplace. Employees often do not realize that their emails can be interpreted in more than one way, and sometimes the resulting assumptions others make are completely wrong. A good rule of thumb is to avoid sending any emails when upset or after a long day of work. You are just not in the frame of mind to draft a good email, and your risk of being misinterpreted increases significantly.

International Women's Day

March 13, 2013

By: Poonam K. Lakhani

I just attended a great event hosted by the Chicago Bar Association Alliance for Women, The Women's Bar Association of Illinois and the American Bar Association in celebration of International Women's Day. International Women's day is celebrated on March 8th each year in order to promote the equality of women. The event highlighted an important point - discrimination still exists. Many men and women today, particularly younger individuals, believe that we have progressed to a point where there really is no discrimination any more. However, the event I attended really highlighted the fact that, although women have come very far since the inception of International Women's Day 102 years ago, there is still a long ways to go. Only around 20% of senior management in the United States is women, only around 18% of Congress is comprised of women, and women still earn 77 cents for every dollar a man makes. We do not have to accept these facts as "good enough." Each of you can do something to improve these statistics - something as small as recommending a female colleague who is truly deserving for an assignment can make a difference.


Job Discrimination based on Sexual Orientation

February 28, 2013

By: Amit Bindra

This could be a big year for gay and lesbian rights. The Supreme Court will hear two cases regarding equal marriage rights, one case involving the federal Defense of Marriage Act, while the other case involves a California law. Recently, the Boy Scouts of America announced that it might lift its ban regarding gay members. During his inaugural address, President Barak Obama provided his support by stating that "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law."

Despite the recent wave of support, employment laws are still lagging behind. Current federal law prohibits discrimination based upon gender, but does not prohibit discrimination based upon sexual orientation. The Seventh Circuit Court of Appeals interpreted Title VII of the Civil Rights Act of 1964 and stated,

"The phrase in Title VII prohibiting discrimination based on sex" means that "it is unlawful to discriminate against women because they are women and against men because they are men." In other words, Congress intended the term "sex" to mean "biological male or biological female," and not one's sexuality or sexual orientation. Therefore, harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful employment practice under Title VII.

Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000) (citations omitted). While Title VII prohibits sexual harassment at the workplace, regardless of sexual orientation, it does not prohibit an employer from terminating an employee due solely to the individual's sexual orientation.

State could provide the leadership for stronger laws. Approximately twenty-one states ban employment discrimination based on sexual orientation, including Illinois. Many companies have also instituted their own policies prohibiting discrimination based on sexual orientation.

It's not just what you say; it's how you say it.

February 20, 2013

Imagine going to work everyday and feeling like your boss is out to get you and actively working to push you out or get you fired. Everyday we work with professionals going through some form of this. Sometimes there is discrimination at issue, some form of retaliation, or another illegal reason, and sometimes it's just personal. Regardless, how you react to the situation can determine whether you whether you continue to have a job, whether you have a viable claim, and/or whether you can get out with some financial protection (i.e. severance) to get you through to your next opportunity.

If you take a lot of pride in your work and your skills, it's tempting to immediately go on the offensive in response to an attack on your reputation. While a professional and calculated offense might be the right approach, reactive communication is rarely a good idea. Even when your employer is in the wrong, it is important for you to maintain control of your emotions and your communications.

Here are three tips to help you get through the situation:

1. Identify your goals.

If the environment has gotten so bad that you can't imagine staying with your current job long-term, the substance and style of your communications need to be different than if you want to stick around. Keep in mind that it is easier to find a job from a job though and you may want to consider working towards a prolonged exit.

2. Create a plan.

Having a plan gives us a sense of greater control over our lives. Even though you can't control a bad boss or completely insulate your employment status, you can prepare for different outcomes. This means identifying steps that will move you towards your goals. If you want out, make sure you are planning time for your job search. If you want out and you want to pursue possible claims against your employer, make sure you are documenting events correctly.

3. Think before you speak (or write).

Relationships are based upon communication. And, when a relationship is already fractured (which it must be if you are in a situation where your boss is actively out to get you), communication is critical to repairing the damage. When we're tired, worn down or feel defeated, we often forget the purpose of our communication and focus on our emotions. Big mistake. Work-place communications should be purposeful. Think of your goals and your plans before opening your mouth or (especially) hitting the send button.

Why Should Businesses and Employees Fear Social Media?

February 4, 2013

"Free Speech" is one of the most over used and misunderstood terms around. Nothing is really free. There are costs associated with everything, including speech.

First, most people don't understand that "free speech" refers to limitations on government interference with speech. It's not a free pass to go out and say whatever you want to whomever you want with no repercussions. At the same time, the National Labor Relations Board has held that some employee speech is protected, regardless of whether they work for a public or private employee. But using social media to air out your employment grievances can be a hazardous course of action.

A few weeks ago The New York Times published an article by Steven Greenhouse titled Even if It Enrages Your Boss, Social Net Speech Is Protected. The article is about some recent National Labor Relations Board rulings that provide protections for employees who use social media sites to speak out about work conditions, but it highlights the thin line between speaking out and just venting. The Board's decisions distinguish concerted employee activity (which is protected) with a lone employee complaining about his/her job (which is not), but the distinction is fact specific.

Words are often subjective. And, on the internet, the written word lasts forever (or at least a lifetime). That makes it difficult to advise either a business or an employee about what generally can and can't be done. It also makes it difficult to take back or hide things that may be misconstrued. It might seem like the rules of common sense apply. Businesses shouldn't unilaterally try to quash the voices of their disgruntled employees. Disgruntled employees shouldn't publish every complaint online.

Lucky for lawyers, common sense is not very common.

Class Actions for Employment Law

January 29, 2013

By: Amit Bindra

Class actions can be a very useful tool for plaintiffs because they allow for "negative value" lawsuits, or situations in which high individual litigation costs typically deter lawsuits. By forming a group, class actions can decrease an individual's expenses.

In 2011, the U.S. Supreme Court limited the use of class actions in cases alleging employment discrimination. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Dukes involved a class action of Wal-Mart employees alleging gender discrimination. Id. at 2547. The Supreme Court indicated that judges need to adopt higher standards before allowing a class action. Id. at 2551. The Supreme Court stated that courts should only allow class actions when they involve common questions among all of the plaintiffs. Id. at 2550-52.

The Seventh Circuit followed the Supreme Court's rational and recently denied a class action in Bolden v. Walsh Constr. Co., 688 F.3d 893 (7th Cir. 2012). Twelve individuals attempted to form a class to sue a defendant company for racial discrimination. Id. at 894-95. The plaintiffs alleged that the defendant company's local managers discriminated against employees regarding overtime pay and working conditions due to the employees' race. Id. at 895-96. The district court allowed the individuals to proceed as a class. Id. at 895. However, the Seventh Circuit relied upon Dukes, and denied the class action due to a lack of common issues. Id. at 895-97. It found that the plaintiffs must allege that the local managers committed the exact same conduct and that each plaintiff suffered the exact same injury. Id. at 896. For example, the individual plaintiffs might have received different overtime pay due to their different union status. Id. at 896-97.

The Seventh Circuit re-affirmed the difficulty for class actions in the employment law context. Generally, a class of employees will attempt to allege that there is company-wide discrimination. However, this will likely present several individual questions. One employee might receive lower pay than another due to individual issues regarding work performance, instead of their race, age, or gender. The Seventh Circuit did indicate that it might be possible for a class of employees to contest the actions of a single supervisor. Id. at 899. However, outside of this limited area, courts are unlikely to certify a class action for employment discrimination. Ultimately, this will hurt individual employees by increasing their litigation costs.

Is being a "yes man" the only way to get ahead?

January 22, 2013

In the post-Enron and Bernie Madoff era, is being a "yes man" really still the way to advance your career? According to "Corporate Confidential: 50 Secrets Your Company Doesn't Want You to Know - And What to Do About Them" by Cynthia Shapiro, PHR, it might be.

For our office book club one of the attorneys picked "Corporate Confidential." The book describes an antiquated culture that requires 100% submission to the company directives. Identifying problems or weaknesses in the company's plans or processes is akin to treason. It's a company that embodies nearly every conspiracy theory employees might have about their employer.

Ms. Shapiro has some good points and identifies a number of potential landmines of which employees should be mindful. But her point gets lost because the employer she describes seems so evil and anti-employee. Any employee who questions the direction of the company is a traitor whose career is destroyed. If you don't cheer every decision made by your supervisor, you are just an "invisible employee" who will never be recognized or promoted.

Given the nature of our practice, everyone in our office knows that the purpose of HR is to protect an employer from personnel issues. However, Ms. Shapiro's description of the stereo-typical employer is one where an employee must always be "publicly positive" about your supervisor's decisions.

Most companies today have to stay competitive. If none of their employees ever question the direction of the company, how is that possible? It is true that there are politics involved in company communications and that how you deliver criticism is more important than what you say. But, there are too many companies that have lost their edge and gone under simply because no one on the team was willing to point out the icebergs that laid in the path of the company's plans.

If being a "yes man" is the only way to get ahead in a company, I definitely don't want to work there.

New Year, New Illinois Laws

January 18, 2013

By: Amit Bindra

The Illinois Legislature was hard at work creating more than 150 new laws for 2013. Fortunately, to make their civil war re-enactments more authentic, people can now own antique weapons that do not meet certain standards. However, the Legislature banned the possession and sale of shark fins.

There are several new laws that are important in the employment law context. First, the Legislature amended the Equal Pay Act so that officers and agents can be personally liable. If an officer or agent "willfully and knowingly" permits an employer to evade liability, the officer or agent becomes the employer and is liable for the judgment. 820 ILCS 112/27. This is important to prevent a company from escaping liability by dissolving itself.

Second, the Legislature amended the Right to Privacy in the Workplace Act to prohibit employers from requesting an employee's, or prospective employee's password to social networking websites. 820 ILCS 55/10. However, employers can still monitor an employee's use of the Internet while the employee uses the employer's computer. Additionally, employers can make lawful workplace policies regarding the use of Facebook or Twitter.

Finally, the Legislature changed the notification requirements in the Prevailing Wage Act to make it easier for an employer to provide notice regarding a change in wages. An employer can include a stipulation in the contract or written agreement with a contractor or subcontractor that the Illinois Department of Labor ("IDOL") revises the prevailing rate of wages. The stipulation can then direct the employee to the IDOL website. 820 ILCS 130/4. Previously, the employer had to provide notice each time the IDOL revised the wage rate.

How To Apply For An Internal Job Position.

January 15, 2013

By: Poonam K. Lakhani

A new position has just opened up in your company, and you would love to apply. But just how do you make the move, without offending or burning any bridges? Here are some tips on how to apply for an internal job position:

1. Find out everything you can about the position. Do you know why the previous employee left? What is the boss like? Has there been a lot of turn over? What is the future of the department and position? It's important to know the answers to these questions, and more, before you make it public that you want to move to a new position. One way to get this information is to ask the employee who left. If that's not possible, see what you can find out from co-workers or others in the department.

2. Once you've decided that this position is a good fit for you, alert your boss. Let your boss know that you intend to apply for the internal position. You want to be sure you don't burn any bridges, and it will be even better if you can get your boss' support.

3. Call on your network to put in a good word for you. If your boss is supportive, ask if he or she will put in a good word. If you have good relationships with other managers, talk to them about your interest. You may even want to set up a lunch or coffee meeting to directly express your interest in the position to the manager. However, be careful how open you are about your interest because some of your co-workers may also be your competition.

4. Update your resume to reflect the new skills you have acquired and the contributions you have made while at the company. Just because you have worked at the company doesn't mean your interviewers know what you did. Furthermore, you may be competing with a number of internal candidates, and your resume will be the key to rising above the rest.

5. If you are asked to interview, don't assume your interviewer knows you or that you have the job. Prepare for the interview as though you are a new hire. You may even be held to a higher standard since you have had experience with the company. Make sure you are well-prepared.

Women, Ask For What You Want!

January 15, 2013

By: Poonam K. Lakhani

The National Bureau of Economic Research just released a study finding that Women tend to negotiate less than men, particularly when they are not explicitly offered the opportunity to negotiate. Now that you know this, what are you going to do about it?

Make sure you ask for what you want, even if "negotiation" is not on the table! Even if you are not interviewing for a new job, take the opportunity of your annual review to ask for what you deserve. Here are some tips to help you negotiate:

1. Know the market. Research what the average salary is for your position in your industry and be prepared to use this information to negotiate a higher salary. The Bureau of Labor Statistics is a great resource to start with.

2. Understand your boss's style. Is your boss more perceptive to visual or auditory communication? Does your boss respond more to emails and memos, or a casual conversation? Be sure to present your request in the medium that your boss will be most receptive to.

3. Show your value. You need to advocate for yourself and make sure your boss remembers all the value you have added. If you have more relevant experience or education than the average candidate, you should highlight this fact. It's also a good idea to take note of the achievements and contributions you have made throughout the year. Refer to these achievements and contributions to show the value you've added when asking for a raise.

4. Present options. If money is not an option, look at negotiating compensation in-kind. Perhaps you could use more time off, or would like to work from home. There may be other options that will improve your quality of life. Don't limit your negotiation to you salary alone.

Dangers of Email

January 15, 2013

By: Poonam K. Lakhani

Sometimes employees don't realize that their conduct is sending mixed signals to their co-workers. Something as simple as an emoticon can be misinterpreted. According to an article in the Huffington Post, a survey found that 71% of women and 90% of men said that receiving a winky face indicates the possibility of romance or a first date.

Although there are many benefits to email communication, there are several drawbacks as well. Email tone is difficult to understand and often leads to misunderstandings. Add to that emoticons, and you may have just inadvertently hit on your co-worker. Such mixed signals can lead to a lot of awkwardness around the office, and even escalate to a report of sexual harassment. This is quite serious because in Illinois you can personally be held liable for sexual harassment.

It's best to always remain professional in your email communications. You may want to wait and revisit sending an email if you are upset. Watch your use of colors, symbols and capital letters. Keep your messages clear and concise, the shorter the better. And of course, refrain from using emoticons.

The Secret to Success: A Sponsor

January 15, 2013

By: Poonam K. Lakhani

America continues to grow more diverse. According to the most recent U.S. Census, minorities now account for more than 30% of the population. Despite this trend, there are still very few minorities in the C-suite. Why does this disconnect exist, and what can we do about it? A recent study by the Center for Talent Innovation (CTI) explored this very issue. CTI published a research report that found that people of color often feel that they cannot be their authentic self at work. The article noted that more than 35% of African Americans and 45% of Asian Americans say they need to compromise their authenticity in order to fit into their company's corporate culture. Some executives interviewed in the study even described themselves as living a double life. This study shows that although the workforce is growing increasingly diverse, stereotypes, bias, and prejudice still remains. The study also noted that almost 40% of African-Americans, 13% of Asians, and 16 % of Hispanics report experiencing discrimination in the workplace because of their ethnicity - compared to just 5% of white employees.

CTI proposed sponsorship as one way minorities can break through to the top. The study found that protégés of color are 65% more likely than those without a sponsor to be satisfied with their rate of advancement. If you find yourself in this situation, try seeking out a sponsor. You sponsor does not have to be a minority, and may not even be in the same department. A good sponsor will be someone who is willing to give you their time and support to help you advance. Something as simple as setting up monthly lunches could go a long way.

Has the economy made it harder to get unemployment benefits?

January 14, 2013

The economy finally seems to be on the upswing. But, has that made it more difficult for terminated employees to receive the small protection offered by unemployment benefits?

Even though things are improving, many people are still out of work. At, at this time of year, it's not uncommon for companies to make further cuts. Unemployment insurance benefits provide eligible terminated employees some minor assistance while the employee seeks to transition to a new job. In Illinois, unemployment benefits are no windfall, especially to a terminated executive. The maximum weekly benefit for a terminated employee is just over $400.

Not every terminated employee is eligible to receive unemployment benefits. You have to earn a minimum amount to even qualify; you cannot quit or be fired for cause, as defined by Illinois law; and you must actively search for alternative employment. With these requirements in mind, the Illinois Department of Employment Insurance (IDES) has, in the past, generally appeared to lean in favor of the employee when determining eligibility.

However, through working with both executives and small business owners, my office has been seeing a shift. I am not sure if state budget pressures are pushing this change, but IDES employees have been seemingly going out of their way to contact small business owners and encourage them to contest unemployment claims.

This may or may not be a good idea. While it is true that unemployment claims may increase the unemployment insurance taxation rate for a small business, my office has also seen more animosity created when claims are contested. It's one thing if there is real "cause" for contesting a claim, but the standard set by Illinois law is pretty high. Showing up late for work may or may not fall within the definition. It can depend on the number of times the employee showed up late; whether warnings were given; whether the company followed its own disciplinary policy; and it can all come down to the opinion of the hearing officer assigned to the claim.

At the same time, a business owner who is encouraged by IDES to contest a claim is probably more likely to do so. And, it seems logical that it would follow that a claim where IDES encourages the employer to contest is more likely to be denied. Of course, you cannot rely on logic when examining decisions made by the State of Illinois or its employees. This may save employers and the State some needed resources. Or, it may end up costing both a lot more. Think about it. An employee who believes his/her termination was the result of wrongful conduct such as retaliation or discrimination is probably more likely to pursue a claim against an employer who takes the extra step of interfering with unemployment benefits. That doesn't even take into account the resources required to address the multiple appeals allowed when benefits are approved or denied.

All I can say is that making it harder for employees to receive unemployment benefits could very well have unintended consequences.