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Diversity promotion and affirmative action: employers must walk the line, P.2

Last time, we noted that employers should be cautious about adopting diversity promotion policies which could be characterized as affirmative action. While affirmative action certainly can be legal, such policies must be crafted and implemented to ensure they don’t create other legal problems.  

First of all, employers may be required to adopt affirmative action policies in some circumstances, such as: when a court orders it after a finding of discrimination; when it is required by law; or when it is negotiated as a remedy in litigation. Then there are also situations where employers are allowed to adopt affirmative action policies of their own initiative. 

Diversity promotion and affirmative action: employers must walk the line, P.1

In our last post, we began looking at the situation faced by Airbnb regarding discrimination against its guests. As we noted last time, the company is on record as stating that its own failure to promote a culture of diversity may be part of why it has been slow to address bias against its guests. Promoting diversity within is somewhat of a challenge for technology companies, but Airbnb’s newly established efforts in this area are certainly a step in the right direction.

Voluntary promotion of a racially inclusive workplace and the promotion of a culture of respect for ethnic differences can, of course, be effective means of battling discrimination. Diversity promotion certainly can be legal under federal law, particularly in situations where the employer changes its hiring practices to ensure that it minimizes the disparate impact on any racial group or works to expand the applicant pool for a disadvantaged race. 

Airbnb faces potential legal issues for hosts’ racial bias against guests

Many of our readers have heard of the company Airbnb, which is an online marketplace allowing people to list and rent vacation homes. The San Franciscio-based company has recently been in the news regarding allegations of racial discrimination or bias against guests. The allegations were confirmed in a 90-day study conducted by a company advisor.

In response to the study, the company’s CEO announced changes in company policy earlier this month which are aimed at addressing the findings of discrimination in its home rental service. These changes include things like: de-emphasizing the role user photos play in setting up stays; streamlining the company’s process for reporting and resolving discrimination allegations; providing anti-bias training for company staff; requiring staff to meet public divert goals; and forming relationships with black colleges and universities to strengthen recruitment connections. 

MN dentists grapple with issue of opioid prescription practices

Readers may be aware that opioid addiction is an important issue nowadays, one which frequently appears in the headlines as authorities attempt to grapple with the growing problem. The problem is one which deeply concerns not only law enforcement agencies, but also the medical profession.

According to the American Society of Addiction Medicine, drug overdose is the leading cause of accidental death in the United States. State medical professional boards have taken notice of the problem and, to a greater or lesser degree, monitor medical professionals to ensure they are following acceptable prescribing standards. Most medical professionals understand the problem and act professionally, with due caution when prescribing opioid painkillers to patients. 

FBI raises concern about background check process under Interstate Medical Licensure Compact

We have previously written on this blog about the Interstate Medical Licensure Compact, which will make it easier for physicians in states that sign onto the agreement to obtain licensure in member states. The compact, according to its supporters, will help expand the practice of telemedicine and help give patients in metropolitan areas that cross state lines more choices in selecting health care providers.

Not everybody is supportive of the compact. There are some who oppose the compact on the grounds that it will not make the licensing process any easier for physicians. Other opponents say that the compact allows state medical boards to restrict the practice of telemedicine to benefit physicians in their state. Another concern with the compact in its current form, a concern raised by the Federal Bureau of Investigation, is that it does not appear to meet the requirements of a federal regulation granting the FBI authority to share information with the states for purposes of criminal background checks. 

Former Fox News anchor wins significant settlement against network

Readers have probably heard by now about the legal troubles surrounding Fox News network regarding accusations of sexual harassment. Those accusations, directed against former network CEO Roger Ailes, have reportedly resulted in several settlements with female employees of the company, one of whom is former anchor Gretchen Carlson.                         

Carlson’s allegations, which were leveled in July, precipitated the resignation of Ailes two weeks later. Not much is known of the multimillion dollar settlement, but sources say the evidence against Ailes was significant. Carlson had reportedly been recording meetings with Ailes on her cell phone for some time and obtained numerous damning statements. None of this information comes from Carlson herself, who signed a confidentiality agreement, but from a person familiar with the settlement.

Latest news on Prince pain killer addiction another reminder of physician prescription practices

Minnesota readers have probably heard the recent news that numerous pills found at the singer’s Paisley Park home contained fentanyl, the same drug that caused his death. Prince’s death by opioid painkiller has drawn attention to the serious problem in the United States of opioid addiction. In the weeks after his death, attention was also drawn to the problem of overprescription of painkillers.

At least one Minnesota doctor was placed under investigation following Prince’s death, but reports indicated that the Minnesota Board of Medical Practice takes an overall lax position with regard to physicians who overprescribe narcotics. One article indicated that between 2011 and 2015, a total of 25 doctors were disciplined for their prescribing practices with respect to narcotics. Most other states that have been researched on the issue have discipline rates nearly twice the rate in Minnesota. 

Case looks at issue of protected conduct under MN Human Rights Act

We have previously spoken on this blog about the topic of workplace retaliation. As we’ve noted, employees are protected from retaliation by two important statutes at the state level, one of which is the Minnesota Human Rights Act. The law prohibits employers from taking adverse action against employees who engage in protected activities.

One important protected activity under the law is reporting sexual harassment, discrimination, and workplace misconduct. It only makes sense that employees should be protected from employer lashback when they report illegal or inappropriate behavior. One of the questions still being worked out, though, is exactly when employees are protected for reporting conduct in the workplace. Specifically, are employees protected from retaliation for reporting behavior that doesn’t rise to the level of being illegal? 

Looking at exceptions to the at-will employment rule, P.3

In addition to the statutory protections we have mentioned in previous posts, there are also common-law or court-created exceptions to the at-will employment rule. For example, states may recognize certain exceptions to the rule based in public policy, such as termination based on refusal to commit a prohibited act, engaging in acts that are in the public interest, exercising statutory rights or reporting a violation.

Such exceptions may have some crossover with statutory protections, but it is important to be aware that such protections may exist. Minnesota prohibits employers from terminating an employee for refusing to perform actions which the employee objectively believes may violate state or federal law. The benefit from this protection, though, the employee must inform the employer that the order is being refused because of the belief that it is illegal.

Looking at exceptions to the at-will employment rule, P.2

Previously, we began looking at the topic of at-will employment, noting both the general rule and the fact that there are important exceptions to the rule, including contractual protections and illegal discrimination statutes. Protection against employer retaliation is another important exception.

Protection against retaliation applies to various forms of protected activity, including whistleblowing. Employees who are terminated based on the exercise of their legal rights should understand that there are protections available at the federal level, and possibly the state level as well. Minnesota is among the states that have statutory protections against whistleblowing.

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