Required Reading for the Week

There are several blog posts this week that are essential reading for anyone who calls themselves an HR Pro. These include:

1. Kris Dunn at the HR Capitalist writing on What's That Smell? Self Assessments & Performance Management. This is about performance management and the use of self assessment. In addition to his post you MUST READ ALL THE COMMENTS. There is true value in this feedback.
2. Margaret O'Hanlon at Compensation Cafe, writing on 10 Tools for Communicating a Teeny, Tiny Merit Increase Budget. She talks about clear communication and management training.
3. Ann Bares at Compensation Force writing on Think Twice Before Calling It a Cost of Living Increase. Read this to keep from making a major mistake.
4. Jon Hyman at the Ohio Employment Law Blog writing on Is “fat” the new protected class? Jon provides some important information to go along with my post on Fatism.
5. Dan McCarthy at Great Leadership, writing on MBA 2.0: Trading in Textbooks for Blogs? This post explains how blog posts have become a vital source for keeping yourself educated. 

So read away. Be educated. Be a pro!

The Carnival of HR: Back to School

This months version of the Carnival of HR is up at the HR Maven. So go take a look to learn about some HR social media use, how to spend HR dollars wisely, how to energize your team inexpensively, owning your career, the best day to fire someone, and more.

ISM Number Four: FATISM

I know that is not really a word, but it could be, and is abrupt enough to make my point. Despite the fact that 65% of adult Americans are overweight or obese, (See A Nation at Risk: Obesity in the United States), we have a culture that celebrates thin. In fact I would go beyond celebrate to say worship. Overweight people are often labeled as lazy, having no self-control, no will power, no drive. And to an extent, for some people this is true. I know it is in my case. I weigh more than I should. I wax and wane on exercise and on eating properly. I have been up and down in weight. I know I can weigh less and be healthier, because I have been. I am back on that road right now with regular exercise and watching what I eat. But it is not always an issue of just self-contol for some people. It is not always that easy.

Fatism or weight discrimination has been around for quite awhile. When I was growing up no one picked the fat kid to be on their team and no one wanted to dance with the "fat girl." That discrimination has persisted into this day and age and manifests itself in the workplace. According to Weight Discrimination: A Socially Acceptable Injustice by Rebecca Puhl and published by the Obesity Action Coalition, "In a recent study, we examined the prevalence of multiple forms of discrimination in a nationally representative sample of 2,290 American adults and found that weight discrimination is common among Americans, with rates relatively close to the prevalence of race and age discrimination. Among women, weight discrimination was even more common than racial discrimination. Among all adults in the study, weight discrimination was more prevalent than discrimination due to ethnicity, sexual orientation and physical disability. Almost 60 percent of participants in our study who reported weight discrimination experienced at least one occurrence of employment-based discrimination, such as not being hired for a job." Additionallythey found "On average, a person’s chances of being discriminated against because of weight become higher as their body weight increases. In our study, 10 percent of overweight women reported weight discrimination, 20 percent of obese women reported weight discrimination and 45 percent of very obese women reported weight discrimination. Rates for men were lower, with 3 percent of overweight, 6 percent of obese and 28 percent of very obese men reporting weight discrimination. This finding also tells us that women begin experiencing weight discrimination at lower levels of body weight than men."

Unlike racism, sexism and ageism however, there are very few laws that protect people from weight discrimination in the workplace. No explicit federal law exists and only a few local or state laws exist. However, the area of weight discrimination is beginning to present some challenges to human resources departments. With the changes in the ADA late last year, where disability has been redefined, overweight individuals who feel they have been the victims now have the potential for claiming protection under ADA. Up to this time only morbid obesity could be claimed to be disabiling, but now people may be able to claim protection because of the physical problems that arise from too much weight, such as diabetes and heart disease.

Additionally, numbers have shown that some minorities have higher incidence of obesity, thus claims may be made under Title VII and disparte impact. Sex may also play a factor, since overweight women suffer a higher rate of discrimination than do men, allowing a claim of sex discrimination based upon decisions made on weight. And lastly, age and weight may be a factor, since older workers also have a higher incidence of "overweightness."

So making decisions based upon weight is becoming much more problematic for companies and I predict there will be an increasing number of law suits that will provide some defintion to this arena.

Your best protection to keep from becoming a landmark case? Make your decisions based upon qualifications and productivity. If you keep it work related you will stay out of trouble far more often than not. And all good HR people already know this. Don't you??


BTW, if your reaction to the picture was disgust, well then read this article again and then look in the mirror.

Ageism Part 3: What HR Needs to Know

Age was not originally part of the protected catagories as defined by the Civil Rights Act of 1964. It was added with the 1967 passage of the Age Discrimination in Employment Act. And unlike the CRA where coverage starts at 15 employees, its coverage does not start until 20 employees. (This lack of consistency drives HR people nuts.) The law protects workers age 40 or over. It does not provide any protection to workers under 40. It allows employers to favor older workers, even if the "younger" workers are over 40 years of age. This was determined by the Supreme Court in the General Dynamic Land System v. Cline case.

The ADEA prohibits discrimination in all usual areas of employment, but also includes areas not generally considered, such as training and apprenticeship programs and time-off. Harassment based upon age, such as "old" jokes, "old" cartoons, "old" slurs, is also prohibited. So watch the "gray beard" or "old dog" remarks.

There are some areas where age can be a factor. These include:

• State and local governments may institute a mandatory retirement at age of 55 for firefighters and law enforcement officers.
• Employers may require a high-ranking employee to retire if:
• the employee is at least 65
• the employee has worked for at least the previous 2 years as a bona fide executive or is in a high policy making position, and
• the employee is entitled to an immediate, nonforfeitable annual retirement of at least $44,000 from the employer.
• In some cases an employer may reduce benefits paid to older workers if done so in accordance with a bona fide employee benefit plan.

And that leads us to the other law that protects older workers, The Older Worker Benefit Protection Act (OWBPA). This was passed in 1990 and says:

• Employers must offer older workers benefits that are equal to or, in some cases, cost the employer as much as, the benefits offered to younger workers. The rules for determining whether they are equal depend on the type of benefit offered.
• A waiver of the right to sue for age discrimination is valid is only if it meets certain standards to ensure the waiver is knowing and voluntary.

There are alot of exceptions to the rules on pensions and other benefit plans, so each HR professional needs to be aware of these, as there are too many for this post.

I do want to cover the waiver issues however, because in  today's world more HR managers are dealing with them. Waivers have to be knowing and voluntary and the rules for this are:

1. It is part of a written agreement between the employee and employer.
2. It is written in language that is understandable to the employee or the average of the group.
3. Specifically refers to the worker's rights under the ADEA.
4. Does not require the employee to waive any rights or claims that may arise after the agreement is signed.
5. Gives the employee something of value, over and above to what they may already be entitled. This is typically a severance.
6. The employee must be be advised, in writing, to consult an attorney before signing the agreement.
7. Must give the employee at least 21 days to consider the agreement, or 45 days in a group termination.
8. Give the employee at least 7 days after signing to revoke the agreement.
9. If the waiver is in connection with a group termination the employer must also provide the information on the demographics of the group(s) selected for the program.

So there are the rules. Here are a few comments.

• By 2010 it is predicted that half the workforce of the US will be over the age of 40.
• You can tell this law was passed by a group of people who used to think 30 was old. If we were doing this today 40 would not be OLD!
• As someone well past 40, I still rankle at the idea that someone thinks it takes me an extra 21 days to make a decision and that I have to have help to do it.
• Age discrimination is one of the fastest growing areas of EEOC suits, so it is going to get worse before it gets better. 
• The law allows disparate impact lawsuits, so make sure you are checking the impact of your layoffs. They may end up being more expensive than you think.

Finally, when I reached my 40th birthday I celebrated big time because I had finally reached a protected catagory. LOL

AgeISM Part 2: The Roots of the Bias

Just to get this out of the way... I am not a sociologist or a social anthropologist. So the statement I am about to make is pretty much my impression of social trends. Today, U.S. baby boomers, who are the most frequent complainers/targets of ageism, are suffering the results of their own making. Prior to that generation there was more respect for older workers, more respect for parents, more respect for the wisdom of experience that came with age. Of course there has always been displacement of the old, that is a course of nature. Young male lions drive off the older male pride leader. Younger stallions drive off older stallions. But I think the Baby Boomers were a different case with a more widespread disdain for all things "old." BTW, "OLD" was delineated by the age of 30. We spawned the Love Generation, Hippies, Painted Micro buses, free love, heavy drug use, Vietnam protests and more. All things that flew in the face of older generations and our parents in particular.

Wikipedia says about the Baby Boom generation "One of the unique features of Boomers was that they tended to think of themselves as a special generation, very different from those that had come before. In the 1960s, as the relatively large numbers of young people became teenagers and young adults, they, and those around them, created a very specific rhetoric around their cohort, and the change they were bringing about. This rhetoric had an important impact in the self perceptions of the boomers, as well as their tendency to define the world in terms of generations, which was a relatively new phenomenon." It goes on to further say "Boomers grew up at a time of dramatic social change. In the United States, that social change marked the generation with a strong cultural cleavage, between the proponents of social change and the more conservative." Additionally, "In general, baby boomers are associated with a rejection or redefinition of traditional values.... As a group, they were the healthiest, and wealthiest generation to that time, and amongst the first to grow up genuinely expecting the world to improve with time."

Now successive generations have picked up our distain of all things "old" and unfortunately we are now the object of that disdain. Rather than accepting our age we fight it with statements like "50 is the new 30" and book titles like Younger Next Year. So even though we (and I am one) dislike ageism, we continue to dislike all things old.

So we aging baby boomers are struggling with conflicted emotions. We dislike being "old" but still feel valuable and we turn to laws to provide us protection in the workplace in order to try to stay employed.

Next post will be about the laws that protect older workers and what HR departments need to be aware of. Stay tuned.

ISM Number Three: AgeISM

Did you know that Courtney Cox has been covered by the ADEA for 5 years now? It is hard to imagine her being the object of AGEISM. But she could be, and in fact she will be starring in a new role in the fall, were she plays a 40 year old woman re-entering the dating scene, in Cougar Town.

According to the dictionary ageism is defined as "Discrimination based on age, especially prejudice against the elderly."  And in the United States that is generally the way it is thought of, in fact there is a federal law that bans discrimination against anyone over the age of 40. (I remember that birthday. I did feel old then, if only I knew!) But ageism is actually a bit more complicated than that. Younger people are also discriminated against in many instances, generally under the guise of lack of experience. Both types of discrimination have consequences, but discrimination against older workers has some very real legal consequences for employers. Discrimination against younger workers has few legal consequences for companies.

Over at Punk Rock HR my fellow blogger, Laurie Ruettimann, had this observation in her post entitled Ageism, Sexism & Whatnot  "...no one cares about ageism until they’re old." And she is correct! At least on a personal level. HR departments and management teams need to care about it everyday.

So this week I am going to explore agesim in a bit more detail:

• What its roots may be
• What the law is regarding it
• What HR departments need to watch for.

In the meantime you can read something I wrote earlier this year after I witnessed some "ageism."
Ageism in the Workplace

I also want you to raise your awareness of ageism. Listen to what people say, especially in your workplace. Watch how people act. Look at commercials. I bet each of you will find at least 5 examples of ageism. And if you are an older job hunter you can probably cite many examples of personal situations.

So while I am writing this week give me some examples! How have you witnessed discrimination, be it because you are young or old?

Photo: From a promotion for the show Cougar Town

ISM Number Two: SexISM

Sexism is the second part of my series on ISM's in Human Resources in the United States. According to Wikipedia "Sexism, a term coined in the mid-20th century,[1] refers to the belief or attitude that one gender or sex is inferior to, less competent, or less valuable than the other."   (Click here for a great discussion of the totality of the meaning of the word SEXISM.) In the US the term sexism is generally taken to mean men see themselves as superior to women, exhibiting a sexist or chauvinistic attitude toward women and their place in society. Though this is just one interpretation of the term it has been generally been taken to mean that women have had a history of being discriminated against in the workplace. However, the 20th century saw a number of laws passed that moved to lessen or eliminate the discrimination.

One of the early laws to do so was establishing that women had the right to vote. The movement to establish this right was called Women's Suffrage and more information can be found HERE. Although this was not really a workplace right it did set the standard for later movement.

One major, and early law regarding the workplace, was an amendment to the Fair Labor Standards Act in the Equal Pay Act of 1963. This law was passed to address the issue of women making only $0.58 for every $1.00 that men were making. The law requires that men and women doing the same work that requires substantially equal skill, effort, and responsibility, and is performed under similar working conditions within the same establishment, receive the same pay. There are exceptions for seniority, merit, quantity or quality of production, and any other factor other than sex (gender.) This law required of HR departments to focus on the work done, not titles, and to insure that the same rate of pay was paid if the jobs met the standards were met.

Title VII of the Civil Rights Act of 1964 was the next law to deal with sexism in the workplace as it did with racism. Originally sex (gender) was not one of the protected catagories in the law. Sex was inserted as an attempt to defeat the law. In the early 1960's the make up of Congress was mostly males, so the opponents of Civil Rights attempted to defeat the law by sticking gender in the law. Well, as we well know it did not work! Sex discrimination became illegal, as did sexual harassment, and today all HR departments need to be aware of situations in which discrimination and harrassment occurred or could occur and take corrective action. All good HR people know this.

The next step in dealing with sexism in the workplace was the Pregnancy Discrimination Act of 1977, an amendment to Title VII. This made it illegal to discriminate against pregnant women in all terms and matters of employment. Even prohibiting employers from barring women from doing high risk jobs that could endanger the development of the fetus. Employers are required to point out the dangers but cannot bar a woman from performing that job if she is qualified. Many companies still struggle with this issue. Even women managers have difficulty with this. I have encountered female managers who do not want to hire a candidate who is pregnant knowing that they run the risk of productivity issues or the possibility of loss of the employee after birth, just as I have encountered male managers feeling the same way. I would be interested to know if any of you have encountered a similar dilemma. How did you deal with it?

Since these three big laws several others have been passed that deal with the issue of sexism. The Family and Medical Leave Act to an extent touches sex discrimination by providing protection to allow for the birth of a child, a benefit few men initially used, and certainly not to the extent the female employee giving birth is likely to have done. The most recent law passed that deal with sexism is the Lily Ledbetter Fair Pay Act, passed earlier in 2009. It goes back to the pay issue, not as a revision of the FLSA, but as a revision of Title VII. It changed the interpretation of when an act of pay discrimination can be reported. It has major implications for recordkeeping, how pay decisions are documented and how long a company is liable for its actions. The Ohio Employer Law blog has a very good discussion of these implications. The Compensation Cafe also has a very good discussion.

Coming down the pike is proposed legislation called the Paycheck Fairness Act. I posted earlier about it here and here. It brings back the very nasty issue of comparable worth, a concept that was rejected many years ago as unworkable. It has not yet been passed, and may not in the current legislative year, but it is definately on the agenda for the current administration. So educate yourself.

All of this pay legislation, both passed and proposed, is based upon the concept of discrimination in pay based upon sex (gender.) Statistics show that currently women make $0.75 for every $1.00 that men make. Ann Bares at Compensation Force presents research that may cast a different light on this subject. This research shows that compensation differences are not as simple as JUST sex discrimination. You can read the research and make your own decisions.

As a close to this, already too long, post I will just say that sexism is not a simple subject. Sexual harassment is a two way street. Reverse discrimination, where women receive preferential treatment, exists in many forms. Fathers in divorce situations are frequently not given the same rights as mothers, even in situations where it is evident the father would be the better care-giver and provider. Society allows Women only events, groups and gyms yet protest loudly against men only groups. Examples include: Silicon Valley Women In Human Resources, Executive Women in Chamber of Commerce groups, women only workout gyms, etc. I can only imagine the outrage that would be expressed by Silicon Valley Men in Human Resources. Yes I understand the issues of trying to overcome the past, but to my way of thinking discrimination is discrimination.

Will sexism go away? Nope, no way. It is even less likely to go away than racism. Eventually everyone could be the same racial mix, but there is no possibility for us to be the same sex. So it is something we will have to learn to deal with as a society. But as a workplace we have the responsibilty to minimize it as much as possible.

Discuss your trials and tribulations of dealing with sexism in the workplace by leaving a comment here.

Next week: AGEISM

"Un-retirement": Brett Favre Provides the Model

In a blog post I wrote of The Atlanta Journal Constitution Online HR Headquarters I used Brett Favre as the model for baby boomers who are coming back from the workforce by "un-retiring". Are you one of those? Or do you know of anyone in that position? If you are an employer this could be a boon to handle some of your hiring needs.

Take a look and click through to Brett Favre and "Un-retiring": A model for baby boomers and a boon for employers. Let me know what you think.

As a side note, I think most anyone would come out of retirement for a $25,ooo,ooo contract!


Photo credit:
AP Photo/Star Tribune, Jerry Holt

The BIG ISM: Racism

Racism has a long and storied history in the United States, in fact in the history of mankind. However, since I am dealing with the human resources implication under US law I will stick to that arena (mostly.) The emotional impact of racism is still quite evident with the recent encounter between a Harvard professor and a Cambridge police officer and a healthcare town hall in Georgia.

The dictionary definition of racism is: "The belief that race accounts for differences in human character or ability and that a particular race is superior to others. Or ..Discrimination or prejudice based on race. " Wikipedia as a more complete treatment of racism found here.

Employers are, or should be, on guard constantly for situations that hint of racism. Programs on diversity have been around for a couple of decades to help raise awareness. And of course Federal and State laws make it illegal to use race as a determining factor in employment. Let's explore the Federal laws.

In the US racism was, and still is to a large extent, a black/white phenomenon. It has since expanded considerably and "minorities" of many "shapes and sizes" are all protected. However, the history of the law shows its origins. The big law that deals with discrimination based on race is Title VII of the Civil Rights Act of 1964 the movement of black Americans in the early 1960's led most notably by Martin Luther King, Jr. However, the law became more than just an act against discrimination targeted toward black Americans. It became a law that covered a broad spectrum of "protected categories" that has gotten broader as time as progressed. It is THE law that guides HR in its daily functioning. It was the FIRST of the many "social" pieces of legislation passed in the last four decades. I am not going into the mechanics of the law, most knowledgeable HR people know them and if you don't you can find them at Title VII of the Civil Rights Act of 1964.

Title VII however, was not the first Federal law to prohibit race discrimination. The Civil Rights Act of 1866 (Section 1981) was the first law to provide protection against race discrimination. It was a law that specifically declared African Americans to be citizens and entitled to a series of rights previously reserved to white men. It was originally designed specifically to protect African Americans (and my guess is, just African American men) in alot of situations, but has since been expanded to all races. Unlike Title VI, which applies to employers of 15 or more, Section 1981 applies to private employers of any size. Because the law actually dealt with protection in making contracts, of which employment was considered one of them, it also protects other contractual situations such as partnerships and independent contractors. Title VII does not provide this protection. Section 1981 prohibits using race in hiring, promotions, employment benefits, pay, time off, and firing. Harassment and retaliation is also prohibited. Only INTENTIONAL discrimination is covered, not disparate treatment as is covered in Title VII.

Generally, if a firm is being sued for discrimination the plaintiff will sue under both laws. Title VII requires filing a complaint with the EEOC. Section 1981 does not. Title VII complaints are handled by the EEOC. Section 1981 is only handled by the courts. So in situations where the EEOC does not find fault may not free you from a civil lawsuit filed under Section 1981.

Obviously, it would be wonderful if we had a world free of racism. And we have certainly made long strides in this country as the election of President Obama lays testament to. But is it realistic to think it will ever disappear? I don't think it will. In my early days of college I spent alot of time studying mammalian behavior, specifically primates. One of the aspects of behavior that is evident in monkey troop behavior is something called xenophobia. According to the dictionary that is defined as: "...fear and hatred of strangers or foreigners or of anything that is strange or foreign." Many mammals exhibit xenophobia, they drive strange animals from their troops, their herds, etc. I think we have a deep seated remnant of xenophobia in our genetic make up which results in the fear of the different from us. Add to that the "intellectual" capacity that we have over other mammals and we end up with racism, feelings of superiority combined with a fear or dislike of the unknown.

The good news is that it can be overcome. Troops and herds do let strangers in because it is good for the genetic survival of the group. Diversity makes things healthier. And one of the hallmarks of the human mammal is that intelligence. We can understand the biases that we come with naturally and we can overcome them. As long as we understand that discrimination may exist we can reduce it and we can overcome it. In the meanwhile we control it with the use of Federal and State laws.

Firing Idiots: A Commentary on Management

I was looking around for a topic and ran across a blog entitled Phil for Humanity. Written by a guy named Phil B. he covers a number different topics. His post called Firing Idiots struck a note with me because, as an employee, Phil points out some of the failings of management as well as, in my opinion, HR. Phil goes off on a fellow employee who does not seem to be able to do their work, explain there work or think through their work. They then bother productive employees to help get a solution or some guidance and even then can't seem to get it. We have all had coworkers, or employees, and even bosses like this. I know I have! Yet nothing seems to get done about it.

Phil asks the question "Don't managers see the uselessness, counter-productivity, and extreme slowness in accomplishing basic tasks from certain individuals in their teams? I am beginning to think that managers are blind to these problems; because they either do not care, are not looking at their people as the source of their problems, think some productivity is better than none especially if hiring a replacement is too difficult, or think firing someone is not worth the hassle in a large corporation." My answer to Phil is "all of the above." As a consultant I run into this issue all the time and have many times asked the question "Why is this person still here?"

I will add a few more reasons to Phil's list for why nothing gets done and unproductive, or even toxic, employees are left on the payroll:

1. There are no stated goals for the person to achieve.


2. There are no measures of productivity or "success" in place, so how do you hold someone to a standard that does not exist?


3. The "idiot" person is in a protected category and the manager is afraid of firing them for fear of being sued. Because of the absence of 1 & 2


4. The performance appraisal system sucks and is geared toward just "showing up" and the manager gave them a good rating for that.


5. The person is related to someone higher up in the company.


6. They don't want to pay unemployment (like that is more expensive than the drag on productivity and morale.)

All of these issues are fixable. People like Phil should not have to put up with nonproductive fellow employees. HR can lead the charge by making sure managers are trained on proper performance appraisal, coaching and counseling and goal setting. HR needs to insure that proper measures of productivity are in place and that proper documentation of success or lack of success is used. HR needs to realize and tell managers that it is OK to fire people for lack of performance even if they are in a protected category. Nothing in any law requires a company to keep a poor performing employee! (A union contract may be a different story.) HR needs to grow a backbone in some companies.

I will end my rant with a portion of Phil's rant "...I wish I could fire idiots. Right there on the spot. Wouldn't it be nice to say, "You're a useless and unproductive idiot! You're fired!" The company that I work for would be so much better off for it. Morale would be higher. Productivity would increase. "

That might be fun sometime, but as a human resources professional I would exhibit a bit more decorum than that... although I might be thinking it underneath.

What about you? How do you deal with stupid employees?