Keeping the Faith but Losing in Court: Legal Implications of Proselytizing in the Workplace

Proselytizing at work occurs when an employee tries to convince coworkers to change their religions. This presents an interesting set of legal issues, because some employees feel that proselytizing is a requirement of their religion. Therefore, they could perceive a prohibition on proselytizing at work as a discriminatory act against members of their religion. On the other hand, other employees may be offended by attempts to change their religious practices. These employees could perceive workplace proselytizing as religious harassment. Therefore, American employers have to adopt religious harassment policies that are much more complex than their sexual harassment policies. In this paper, we outline the components of a legally compliant religious harassment policy which balances the competing rights of proselytizers and their intended targets.     

Accommodating Religious Expression in the Workplace

Religious expression in the workplace has been gaining more prominence and attention with the increasing diversity of the population. Employers are legally required to reasonably accommodate the religious practices and beliefs of their employees. This article will examine the most common types of religious expression in the workplace and will discuss the extent of the legal obligation of an employer to accommodate those expressions.     

Perceptions of On- The-Job Discrimination and Employees With Disabilities

This study examines factors that predict perceptions of workplace discrimination by employees with disabilities. Individual level variables are combined with organizational level variables in a single model of perceived inequality. Data came from surveys administered to employees with disabilities and their respective employers. Individual and organizational variables together provide a better understanding of perceived discrimination than either set alone. Despite the predominance of studies that demonstrate inequality in compensation, this study shows that employees experience discrimination over most terms/conditions of employment.     

Can Diversity Training Discriminate? Backlash to Lesbian, Gay, and Bisexual Diversity Initiatives

A growing number of companies are including lesbian, gay, and bisexual (LGB) issues as part of their diversity initiatives and training. A potential problem with including LGB issues is the backlash from some employees who believe that such orientations are wrong. Further, given existing civil rights legislation it is not unreasonable for these employees to feel that their religious beliefs should be accommodated. This requires the organization to carefully balance the rights of religious objectors to such training while providing adequate support for LGB employees. This paper analyzes three cases where employees felt they were discriminated against because of their belief systems. In addition to identifying the key factors that led to the feelings of discrimination, the paper offers suggestions to prevent future occurrences.

Managing in a Nuevo Mundo: Accommodating Linguistic and Cultural Diversity Under Title VII

This article examines a legal issue that is derivative of the increasingly multicultural character of the American work force. The recent case of Garcia v. Spun Steak (1993, 1994) is illustrative of the challenge managers can face in dealing with cultural and linguistic diversity in the workplace. Over time, there have been conflicting messages in employment discrimination law as to the propriety of employer-imposed restrictions on the use of languages other than English in the workplace. However, the basic question involves the balancing of both the employer's right to manage the business and the right to self-expression in the language of one's choice in the workplace. Recommendations are made as to how each party's rights can be balanced under the law. What will be seen is that in the nuevo mundo of work found at the edge of the twenty-first century, the interests of both employers and employees may be best served by policies favoring language promotion over language restrictions.     

Managing in aNuevo Mundo: Accommodating linguistic and cultural diversity under title VII

This article examines a legal issue that is derivative of the increasingly multicultural character of the American work force. The recent case of Garcia v. Spun Steak(1993, 1994) is illustrative of the challenge managers can face in dealing with cultural and linguistic diversity in the workplace. Over time, there have been conflicting messages in employment discrimination law as to the propriety of employer-imposed restrictions on the use of languages other than English in the workplace. However, the basic question involves the balancing of both the employer’s right to manage the business and the right to self-expression in the language of one’s choice in the workplace. Recommendations are made as to how each party’s rights can be balanced under the law. What will be seen is that in the nuevo mundoof work found at the edge of the twenty-first century, the interests of both employers and employees may be best served by policies favoring language promotion over language restrictions.     

Balancing Employee Rights and Responsibilities in Sexual Harassment Cases Following <Emphasis Type="Italic">Faragher</Emphasis> and <Emphasis Type="Italic">Ellerth</Emphasis>: An Employer’s Perspective

In 1998, the United States Supreme Court issued two opinions that delicately balanced the responsibilities of employers and employees in fulfilling Title VIIs goal of eliminating discrimination in the workplace. Those two opinions—Faragher v. City of Boca Raton and Burlington Industries,Inc. v. Ellerth—require employers to implement measures to prevent harm to their employees, but also require employees to take advantage of those measures to avoid harm. Numerous articles have evaluated the responsibilities of the employer under Faragher and Ellerth. But little, ifany, emphasis has been placed on the responsibilities of the employee. This article evaluates the role of the employee in avoiding harm and, analyzing recent decisions from the Second and Third Circuits, argues that the employees responsibilities shouldplay an integral part in evaluating sexual harassment liability.     

The Effects of Mandatory Arbitration of Employment Discrimination Claims: Perceptions of Justice and Suggestions for Change

The ability of employers to require employees to submit claims of discrimination to final and binding arbitration in lieu of exercising their statutory rights represents a significant change in public policy. The methods traditionally used by enforcing agencies to investigate discrimination claims provide assistance and intervention that redress power asymmetries between employees and employers. Depriving employees of these enforcement mechanisms and requiring them to use arbitration may have adverse effects on perceptions of justice, both in procedural and distributive terms. We propose that mutuality, equality, and remediality are issues that must be addressed in situations of mandatory arbitration. We also suggest that mandatory arbitration may have other effects including expanding the scope of issues well beyond discrimination claims.     

Regulating employment relations through workplace learning: a study of small employers

Using data from two employer samples, the article develops our understanding of small business employee skill formation and development processes in three main ways. First, it focuses on learning (what employees do) rather than on providing training (what employers do), as it is employee learning which influences individual and organisational performance. Second, it challenges the dominant focus on external training by presenting data on employer enablement of workplace employee learning and their motives for this. The diversity of workplace learning practices and their importance in smaller businesses are highlighted. Third, it situates workplace learning processes firmly within the context of the employment relationship, one in which employers and employees pursue distinctive interests in enabling/participating in learning.     

In Sickness and in Health: Recent Judicial Developments in Americans with Disabilities Act Association Discrimination Cases

A little-known provision of the Americans with Disabilities Act (ADA) prohibits covered employers from taking an adverse employment action against a qualified employee if a determinative factor in the adverse employment action is the disability of an associate or relative of the employee. A review of the reported court opinions indicates that plaintiff employees often encounter difficulty in these cases. Some plaintiffs are unable to prove that they are “qualified” employees at the time of the adverse employment action, and other plaintiffs find it difficult to prove that a determinative factor in the adverse employment action was the disability of the associate or relative. However, plaintiffs have achieved some success as evidenced in the 2008 U.S. Circuit Court of Appeals holdings in Dewitt v. Proctor Hospital and Trujillo v. PacifiCorp. This paper describes reported U. S. Circuit Court of Appeals opinions about ADA association discrimination, its relationship to the Family and Medical Leave Act and Employee Retirement Income Security Act, and the implications for employers, employees, and lawmakers. It also offers practical guidance to both employees and employers for asserting and managing rights and potential liability in this area.     

Electronic Monitoring to Promote National Security Impacts Workplace Privacy

This paper explores electronic workplace monitoring in light of the USA PATRIOT Act—federal legislation with a national security focus that expands the likelihood of electronic workplace monitoring to assist government investigators. The paper examines federal laws that cover the privacy rights of at-will employees in the context of electronic workplace monitoring, including recent cases that have narrowed employee privacy rights. The paper argues that business justifications for electronic workplace monitoring have been bolstered by national security concerns, resulting in decreased expectations of privacy in the workplace for at-will employees. There are persuasive arguments that employers should exercise restraint in the use of information obtained through electronic monitoring in discipline and discharge decisions related to at-will employees. These arguments in favor of exercising restraint flow from the text of the USA PATRIOT Act and consider the risk of discrimination lawsuits.     

Integrating the disabled into the work force: A survey of fortune 500 company attitudes and practices

Full participation in the work force continues to be an elusive goal for disabled individuals. One common explanation for this state of affairs is that employers tend to have negative attitudes about what the handicapped have to offer as employees and what is required to integrate them into the work force. Unfortunately, relatively little recent data is available about such attitudes. Thus, a survey of Fortune 500 companies was conducted to examine employers' attitudes toward the disabled. Employers' hiring and accommodation practices were also examined. Results were encouraging for the handicapped in some areas (e.g., performance perceptions) and a cause for concern in others (e.g., the perceived cost of making workplace accommodations). Level of exposure to the handicapped was also related to attitudes and practices. Limitations, research directions, and implications for corporations are discussed.     

Believing in employment discrimination: The case of Forrest Mims,Scientific American,and title VII protection

This article reviews the law regarding Title VII employment discrimination protection from religious discrimination. The issues surrounding the principal legal protection in this regard are explored in the context of a recent controversial case in which an author, Forrest Mims, was not hired as a regular contributor forScientific American magazine, ostensibly because of his belief in the theory of creation over the theory of evolution. The definition of what constitutes a protected religious belief or practice is seen to have expanded over time. However, a belief in creationism is not necessarily seen as being tantamount to a religious belief under present legal interpretation of Title VII. The implications of this finding for future needed Title VII revision are discussed.     

A mutual gains perspective on workplace partnership: Employee outcomes and the mediating role of the employment relations climate

Recent years have witnessed increased research on the role of workplace partnership in promoting positive employment relations. However, there has been little quantitative analysis of the partnership experiences of employees. This article examines how the kinds of attributions employees make regarding indirect (union‐based) and direct (non‐union‐based) employee participation in workplace partnership might influence the process of mutual gains. It uses employee outcomes to reflect partnership gains for all stakeholders involved (i.e. employees, employers and trade unions). The article contributes to existing knowledge of workplace partnership by examining the potential role of the employment relations climate as an enabling mechanism for the process of mutual gains. The findings suggest mutual gains for all stakeholders are varied and mediated through the employment relations climate.     

Post-<Emphasis Type="Italic">Burlington</Emphasis>: What Employers and Employees Need to Know About Retaliation

Since the landmark decision in Burlington Northern & Santa Fe Railway Co. v. White, numerous federal district courts and circuit courts of appeals in the United States have considered employees’ retaliation claims. This paper reviews several post-Burlington cases and provides employers with a roadmap as to what has been held to be retaliation under the law and what has not. Our contribution is an up-to-date analysis of retaliation cases, on a specific employment action basis, to provide guidance to employers of the types of activity that could support a claim of retaliation and to employees to alert them as to the types of activity that they should not have to endure in the workplace.     

Let’s Not Go Down that Path Again: Lessons from the Past Applied to Immigrant-Targeted Discrimination

Immigrants, both legal and illegal, are a staple of the modern United States workplace. While much of the discussion of this fact centers on negative consequences for the U.S., far less attention has been paid to the detrimental impact on immigrants resulting from their workplace experiences, particularly relating to being targets of discrimination. In this article, we outline: a) a variety of types of workplace discrimination potentially relating to immigrant status; b) potential negative outcomes arising from said discrimination for both immigrant employees and their employers, and; c) how existing and predicted employment law standards place organizations in a legally vulnerable position when such discrimination goes unchecked. We further discuss implications of immigrant-targeted discrimination (ITD) for organizations and managers, and plausible extensions of workplace discrimination laws to specifically include ITD.     

Addressing the Growing Inadequacies of the <Emphasis Type="Italic">Ellerth</Emphasis>/<Emphasis Type="Italic">Faragher</Emphasis> Affirmative Defense: Fashioning a Sensible and Feasible Solution

Public policy seeks an equitable balance between the rights and duties of both employers and employees in creating a workplace free of sexual harassment. This goal is particularly difficult to achieve when supervisors create a hostile work environment. The U.S. Supreme Courts decisions in Ellerth and Faragher created an affirmative defense against vicarious liability for employers, but subsequent applications of these rulings have been inconsistent and problematic. Courts and legislators need to (1) choose the appropriate standard of employer liability for sexual harassment committed by supervisors, and (2) decide what, if any, defenses are available to employers when employees bring claims of sexual harassment. We conclude that holding employers strictly liable while allowing for the limitation of damages based on avoidable consequences, as recently adopted by the California Supreme Court in McGinnis, is preferable to other liability standards and defenses.     

The effects of family-friendly practices and gender discrimination on job attitudes: the moderating role of supervisor support

This study examined the effects of family-friendly practices and gender discrimination on female employees' job attitudes and the moderating role of supervisor support. The results of our analysis, based on a sample of 1556 female employees in Korea, indicate that family-friendly practices and workplace environments reflecting gender discrimination are significantly related to their job satisfaction and workplace benefits stress. In addition, supervisor support moderated the effects of family-friendly practices and workplace environments reflecting gender discrimination on Korean female employees' job satisfaction and work stress. These results suggest that perceived organizational support has considerable influence on the job attitudes of Korean female employees through its interactions with supervisor support. Therefore, firms should consider the ‘fit’ between organizational support and supervisory roles to enhance Korean female employees' job satisfaction and to reduce their work stress.     

Human resource diversity management practices in the Australian manufacturing sector

We examined employee perceptions of the benefits and challenges of workforce diversity and human resource (HR) diversity management practices adopted in the Australian manufacturing sector. We found that overt discrimination does not exist in the Australian manufacturing sector. However, Australian employers appear to adopt a ‘legalistic compliance approach’ and have not considered workforce diversity as a source of competitive advantage. Employers have not adopted effective HR diversity management practices. The Australian manufacturing sector has failed to value diversity or capitalize on the benefits of workforce diversity. Inadequate recognition of overseas skills, ineffective communication, increased training costs and social isolation were perceived as the main challenges, whereas a stronger work ethic among multicultural employees, greater opportunities to learn from other cultures, lower absenteeism and less labor turnover were regarded as major benefits of workforce diversity. Overall, we found migrant workers are disadvantaged in the Australian workplace.     

Accommodating Employees With and Without Disabilities

Efforts to recruit and retain employees with disabilities are often tempered by employers’ concerns over potential workplace accommodation costs. This study reports on accommodations requested and granted in intensive case studies of eight companies, based on more than 5,000 employee and manager surveys, and interviews and focus groups with 128 managers and employees with disabilities. Two unique contributions are that we analyze accommodations for employees without disabilities as well as for those with disabilities, and compare perspectives on accommodation costs and benefits among employees, their coworkers, and their managers. We find people with disabilities are more likely than those without disabilities to request accommodations, but the types of accommodations requested and the reported costs and benefits are similar for disability and non‐disability accommodations. In particular, fears of high accommodation costs and negative reactions of coworkers are not realized; all groups tend to report generally positive coworker reactions. Multilevel models indicate granting accommodations has positive spillover effects on attitudes of coworkers, as well as a positive effect on attitudes of requesting employees, but only when coworkers are supportive. Consistent with recent theorizing and other studies, our results suggest the benefits from a corporate culture of flexibility and attention to the individualized needs of employees. © 2014 Wiley Periodicals, Inc.