Work Matters

Life lessons: How to hire for the worst of times

A Sunday edition of The New York Times from early February includes a Corner Office interview that’s worth reading. Adam Bryant interviewed Amy Astley, editor-in-chief of Teen Vogue. As is his custom, he asked about questions she asked of applicants. Because her answer is better than my powers to describe it, I quote: "I'll see someone who [on his or her résumé] was a waitress for many summers and I'll say ‘Well, tell me about that.’ In today's upwardly mobile résumé, you don't always see that. You often see kids who've never had a job. But I love seeing someone who scooped ice cream or was a waitress. To me, it means they had to make some money and had a job dealing with the public. And what was that all about? Tell me about it."

She could not be more on target. I was having a weekend breakfast with a 3L a while back. It is a privilege to mentor. Her résumé was a lot of telling, not showing. I asked if she had ever worked a la what Astley was describing. Turns out, she worked in a family-owned business; she drove a delivery truck for a summer; and on a college break had to, with her sister, help tear down a warehouse the business had bought. Why was this not on the résumé? Turns out it was some bad advice from a well-meaning counselor. When I hire, I try to hire for the worst of times, not the best of times. Diverse experiences make a person better able to cope with the bad times. In "Lessons From a Hotel Lobby" I wrote on this topic when, as a college droput, I worked in the hotel business. Life lessons.

The negativity bias in emails

To paraphrase Shakespeare: "Email doth make cowards of us all." We would rather send an email to a colleague than walk down the hall to deliver the same message. Yet there still are diehards who insist that because the message is the same, the medium does not matter. Not according to Daniel Coleman, who writes about studies, showing that the medium does matter, in his new book, "The Brain and Emotional Intelligence: New Insights."

Coleman tells us there is a negativity bias in emails. When the sender's tone is positive, the receiver of the emails tends to think the tone is neutral. And when the sender of the email thinks the tone is neutral, the receiver of the email tends to see it as somewhat negative. (There is one exception: when the sender and receiver know each other well, the bias disappears.) Why is this so? There is no feedback loop in email; that is, when speaking face to face, we can see the other person's reaction and calibrate our response. But there's no way with email that leads to cyber-disinhibition, more commonly known as flaming.

How to cure? Well, talk more in person (even if over the telephone). Think about it for a minute: if the phone was invented after email, we would all be saying, "Look, we don't have to type out messages to one another, we can just use this device to talk." Here is another thought: PPI — which is short for presume positive intent. When a message can be taken two ways, decide to give it the more positive interpretation. Yes, you may look foolish on occasion, but better foolish than flamed.

In FMLA-leave cases, here’s why employers' counsel always should depose the family member the employee claims needs to be “cared for”

I was sitting at the bar of a sushi restaurant near my loft, reading new FMLA cases, and Leo Tolstoy popped into mind and his famous opening line from Anna Karenina, "Happy families are all alike; every unhappy family is unhappy in its own way."

Tolstoy and the FMLA? Yes. Under the FMLA, an employee is allowed to take protected absences from work in order "to care for" a family member with a serious health condition. Terminating an employee for doing so violates the FMLA.

But two cases from last month show us that the employer always should depose family member or quasi-family member in question. Why? That person might disagree with the employee about whether he or she needed to be "cared for."

First up, Hoopingarner v. Corinthian Colleges Inc. from the U.S. District Court for the Middle District of Florida. According to the court's opinion, the plaintiff said that he needed to stay home and take care of his wife, who suffered from manic depression and post-traumatic stress disorder, among other ailments. But in her deposition, she testified that she did not need his help, he did not need to take time off from work to help her, and any care that she did need from him could be provided after working hours. Thanks, honey. Summary judgment granted for the employer.

Now, the 8th U.S. Circuit Court of Appeals issued an opinion, Miller v. State of Nebraska, et al., in which it affirmed a summary judgment for an employer. The opinion sketches it out: The plaintiff's father was diagnosed with prostate cancer and given 60 days to 90 days to live. The plaintiff took FMLA-protected time off from work, according to the plaintiff, to care for his father and was terminated for excessive absenteeism in violation of the FMLA. But the father's longtime companion and her daughter testified about whether the dad needed care from the son. Their answer was no. They testified that the dad could take care of the day-to-day requirements of life, such as brushing his teeth, dressing himself, using the telephone and shopping for groceries. Here is the court on what else the dad could do when Miller took his absences: The father "operated a motor vehicle, attended social functions and church services, went to restaurants and even danced."

And even danced? Case over. No evidence that the son needed to "care for" the dad, so the absences were not FMLA protected.

Guess there won't be any gatherings at Thanksgiving to celebrate dad's memory. Families and quasi-families. Go figure.

Why is Texas No. 1 in discrimination charges filed with the EEOC?

To paraphrase the title of Megadeth's debut album, “Killing Is My Business . . . And Business Is Good”: Discrimination is my business, and business is good.

What am I talking about? An EEOC report released on May 19 shows that Texas led the nation in 2011 in the number of discrimination charges filed with the EEOC. The results have been tallied, and the Lone Star State came in at 9,952, with Florida trailing with 8,008 and California reporting 7,166. The total number of charges was 99,947.

In Texas, the greatest number of charges dealt with retaliation.

What about the fewest charges? In a surprise to me on the EEOC’s reach, the Marshall Islands reported zero, Wake Island scored one, and the more active Federated States of Micronesia surged with three.

Check out the article in Huff Post Business, "Texas Led Nation in Workplace Discrimination Complaints in 2011, EEOC Report Says."

If you want, you can read the sliced and diced stats for every state.

Why did Texas take the honors? My take is brute numbers. Our state has 25 million citizens. That's a lot. And the trend will continue, with the state growing to 35 million to 45 million by 2040. (I suspect that California is third because lawyers may prefer to sue under more favorable state law, so there they file complaints with the state agency, not the federal one.)

The population trend is coupled with a cultural shift. People of whatever age are more aware of their rights and more willing to take steps to seek to enforce them.

Finally, one word, just one word (no, it’s not “plastics” a la “The Graduate”): the Internet. People don't need to go to a lawyer to know their rights, they just need to tap in a query on a search engine and up pops the knowledge. The wave of claims will continue.

EEOC decision uses Justice Scalia's reasoning to extend Title VII protection to transgender federal job applicant

Lost in the news over President Obama's declaration of support for gay marriage is the EEOC’s April 20 decision that the Civil Rights Act of 1964 protects a person undergoing a sex change (i.e. a transgender person) from discrimination.

Check out Macy v. Eric Holder, Agency No. ATF-2011-00751 -- the EEOC handles federal employees’ claims under a different administrative scheme -- where a transgender woman applied to be an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (the agency). The agency told her she was qualified. She later informed the agency of her transgender status, and the offer was yanked. She filed a complaint with the agency, but it was bounced, because the agency did not consider transgender status to be a protected characteristic. She appealed to the EEOC, which took the appeal and made its seismic decision.

Who did the EEOC cite in making the decision? Because, surely, the proponents of the 1964 Civil Rights Act never contemplated it protecting transgender persons, right? But listen to none other than Justice Antonin Scalia who wrote in Oncale v. Sundowner Offshore Services Inc., et al. (the case extending Title VII to same sex harassment):

"But statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits 'discrimination . . . because of . . . sex' in the 'terms' or 'conditions' of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements."

And the EEOC went on to note that if an employer took an adverse action against an applicant or employee because he or she converted from Christianity to Buddhism, then the action would be because of religion and thus unlawful.

Is changing sex from female to male or male to female really any different? No, according to the EEOC, which sent the case back to the agency for investigation of this new protected classification in the employment law firmament.

Will this reasoning be adopted by the courts, including our own 5th U.S. Circuit Court of Appeals? Yes.