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2 New York Employment Law • May 2010 www.theHRSpecialist.com

Sometimes, the best lessons arelearned from the worst examples. That’s often the case with HR man- agement. When employers make big mistakes and have to pay for them in court, other employers with good practices—that maybe need just a lit- tle tweaking—can discover what not to do.

Recent case: Three women who claim they were stuck in dead-end jobs while working for the Manhattan gro- cery store chain Gristede’s sued their employer, alleging sex discrimina- tion. They asked the court to let them represent all other similarly situated women working for the company.

Each claimed she had applied for a job with Gristede’s and that she was steered into a part-time cashier posi- tion. Meanwhile, male applicants were placed in more desirable part-time clerk positions. The women said they remained stuck as cashiers while they watched their male counterparts move up the ladder into higher-paying man- agement positions.

In court, Gristede’s had to explain its hiring and promotion practices— such as they were.

The company had a corporate man- ager who essentially served as the HR department. Although he had an

undergraduate degree in HR, he had no further training and testified that no one at the company had given him any instructions on discrimination laws.

Plus, he said that the company had no job descriptions, no formal hiring policies, no set promotions processes and no method for applicants or em- ployees to find out about job open- ings or how to apply.

When asked how he chose appli- cants to hire or promote, he said he based his decisions strictly on how the applicants handled themselves during the interview and whether they were friendly and honest.

The women called in an expert wit- ness, a statistician who had analyzed hiring and promotion at Gristede’s. He testified that there was a 100% probability that sex discrimination was occurring. Essentially, he said, Gristede’s segregated employees by sex and promoted only men through a word-of-mouth process.

The combination of the company’s testimony and that of the statistician was enough to persuade the court to let the case go to trial as a class-action lawsuit. (Duling, et al., v. Gristede’s Operating Corporation, No. 06-CIV- 10197, SD NY, 2010)

How not to manage HR: Forget about formal hiring and promotions processes

terminated an office manager and then allowed her to delete files from the company computer before leaving work. He was fired for poor performance.

Berry sued, alleging discrimi- nation.

But the company successfully showed that the manager who allegedly made the racially charged comments had nothing to do with the discharge decision, providing no input at all. The court tossed out Berry’s case. (Berry v. Empire Home Services, et al., No. 06- 2354, ED NY, 2010)

Final note: Of course, don’t ig- nore it if you hear a manager has made hostile comments. Investi- gate those claims and, if they prove founded, discipline the manager.

Termination and managers (Cont. from page 1)

She told her supervisors when she would be available—not very much, it turned out.

Because Wegmans accounting trainees aren’t allowed to work alone, Wegmans offered to let Claffey work as a cashier on a schedule that fit her needs. She refused and sued, alleging that she was being punished for claiming her right to intermittent FMLA leave.

The court threw out her case, citing U.S. Department of Labor regulations and opinion letters. It said that a transfer to another po- sition—that the employee is qual- ified to perform and which offers the same pay and benefits—is per- fectly legal unless the temporary transfer creates a hardship for the employee. This transfer did not. (Claffey v. Wegmans Food Mar- kets, No. 07-CV-6430, WD NY, 2010)

Intermittent FMLA leave (Cont. from page 1)

Avoid these hiring and promotion mistakes Here are some of the mistakes you should avoid when it comes to hiring and pro- motion practices:

• No job descriptions. If you don’t have them, you’re asking to be sued. You need job descriptions, including a list of essential functions, so managers know what characteristics they’re looking for when interviewing applicants.

• No specialized training. Those making HR decisions must be up-to-date on the latest discrimination and other essential HR laws.

• No formal policies and processes. Employers that rely on management recom- mendations alone risk having decision-making tainted by managerial bias. It’s a common phenomenon: People, left to their own devices, will select those who are most like themselves to hire and promote. And remember, discrimination doesn’t have to be intentional to be illegal—the practice only needs to have a disparate impact on a protected class.

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