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Gina 00:01
I always tell people to go as far into that interactive process as you possibly can. But there might be a breaking point where those essential functions cannot be accomplished with or without a reasonable accommodation.

Susan 00:16
Welcome to The JoyPowered® Workspace Podcast, where we help HR and business leaders embrace joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, and with me is my dear friend and co-host, JoDee Curtis, owner of Purple Ink, a large-scale HR firm that I’m part of as an executive collaborator.

Susan 00:38
Since we aired our June 2021 episode entitled “You and the EEOC,” we have received lots of listener feedback saying they want to learn more about discrimination charges and real-life lawsuits that companies have wrestled with so we can continue learning on how to keep our organizations out of harm’s way. In 2024, the Equal Employment Opportunity Commission obtained $700 million in recoveries for workers who believed that they’d suffered discrimination in the in their employment. Manifest Law, in an article posted on their website dated June 25, 2024 by Chelsea Spinos, shared this information. Number one, workplace discrimination involves unfair treatment based on protected characteristics, like race, gender, age, disability, religion, at the moment, sexual orientation or pregnancy that are protected by federal and in some cases, state and local laws.

JoDee 01:46
Number two, damages in a discrimination settlement include compensatory damages, punitive damages, injunctive relief, and attorney fees and costs. An injunctive relief example could be putting a person back into a role they were terminated from or promoting them to a job they were denied.

Susan 02:11
Number three, discrimination settlement amounts can depend on factors such as strength of evidence, extent of damages, the employer’s conduct, and the employer’s history.

JoDee 02:23
And number four, Manifest Law says that most discrimination cases settle out of court, with the average settlements around $40,000, but they can go up to millions.

Susan 02:38
And I imagine, JoDee, that based on your consulting experience, based on mine, that we probably have seen discrimination cases come up with employers. We’ve seen some of them enter into litigation. We’ve seen some, you know, make it to federal court. And I do think taking time today to think that through… certainly the world’s changing, we’re in February of 2025, there’s a lot of focus on EEOC types of things and where the EEOC will be focusing in the future, but case law is probably something that we all want to stop and see what are the courts currently doing, and so glad we’re talking about it today and hoping to for all of us to to learn more. With neither JoDee or I being attorneys, we wanted to bring back one of our favorite guests and favorite labor law attorneys, Gina Carrillo, to talk about some of the more interesting discrimination cases that have occurred in the United States over the last year. By learning about these, the kind of cases that have landed in federal court and what their outcomes were, we believe that it can help all of us as business leaders and HR leaders avoid making some of the same mistakes and/or it can help us understand what it takes to prevail when past or present employees raise a claim. Gina Carrillo is the employment law partner at the Arizona firm Gammage and Burnham. Prior to joining Gammage and Burnham, Gina ran a solo practice focusing on federal and state employment law. Prior to that, she was a senior federal trial attorney for the Equal Employment Opportunity Commission, or the EEOC, for eight years, working in both the Phoenix district office and the Los Angeles district office. Gina is a licensed member of the Arizona and California State bars. Gina, welcome back. We are so glad that you’re here.

Gina 04:29
I’m so glad to be back. Thank you.

Susan 04:32
We love that you’ve worked on both sides of EEO-related discrimination cases for the plaintiff and for the employer. Let’s start with we could — We’re going to go through a number of cases, and what I’ll do is ask you, Gina, kind of give us the highlights, and then I’d love to have just maybe a brief discussion, JoDee, you and I about maybe what we can learn from it. So Gina, would you be willing to start with the Leibas vs. Dart case that was in the 7th District Federal Court back in 2024?

Gina 04:59
Sure. Yeah, absolutely. So this case was an interesting case about the ADA and what happens when a plaintiff’s doctor says that a plaintiff or an employee might need certain accommodations, but the employee actually contradicts and says, “I don’t need those accommodations.” In this case, the plaintiff was a former correctional officer at Cook County Department of Corrections in Colorado, the DOC. They hired her as a correctional officer in 2010. Before she was hired, she had, was diagnosed with a number of disabilities, and she sought accommodations from the Department of Corrections. And initially they did accommodate her, put her on modified duty assignment at the information center, but as the years went on, obviously she started working there 2010, the budget changes, or the budget availability changed at the Department of Corrections, and eventually they had a bit of a staffing shortage. So in response, what HR sought to do was maximize the existing department of corrections workforce by sending a letter to all employees who were on light or modified duty assignments. With this included sending a letter to the plaintiff, in this case asking for updated medical documentation and updated reasonable accommodation requests. The plaintiff received this letter while she was on medical leave, and so she didn’t fill that out until 2019. Her doctor said that she needed to have more frequent breaks and was unable to stand for long periods without relief or rest. The form also stated that the plaintiff could perform the essential functions of her position if she was allowed more frequent breaks, rest periods, bathroom breaks, up to an additional three times per shift. She also completed a similar form and requested the same accommodations that her doctor did. The HR director tried to contact her by email and informed her there was going to be no reasonable accommodation available to her that would help her perform the essential functions of this position. She said, “Okay, well, you know, I actually could do some of this stuff. I can stand longer than my form said,” and the HR department still said, “No, I’m sorry, we can’t accommodate you.” So she ended up suing and saying that the Department of Corrections failed to accommodate her and discriminated against her in violation of the ADA. The Court of Appeals for the 7th Circuit held that she — as a correctional officer, one of her duties and essential functions was to stand for a very long period of time, eight to 10 hours. While the plaintiff claimed that she could stand for this long, her doctor’s note and her prior form contradicted this representation, and as a result, the Department of Corrections actually did not discriminate her as found by the 7th Circuit.

Susan 07:41
Wow. You know, when I was hearing about this for the very first time, what really hit me is that standing eight to 10 hours could be an essential function of a job. I think about when I volunteer, I stand, like, three hours, and I’m, like, crying at the end of it. Eight to 10 hours, right? And JoDee, you probably have experience working with clients where we have jobs that are stand-up jobs. I mean, people have to stand in retail, sometimes in banking, they require tellers to stand for long periods of time. I’d always push that we have to give breaks for people who have some type of a doctor’s note or whatever. I probably pushed the pendulum maybe a little too far in thinking that, you know, frequent breaks for somebody in a job that stand up is, is reasonable, but maybe I wasn’t.

JoDee 08:27
Well, and I’m, I’m curious, Gina, if you knew from the case, like, this was asking for additional breaks. How… were they already given several breaks? Because I was thinking that too, like, surely couldn’t ask somebody to stand for that long!

Gina 08:46
Yeah, and I think they already did have breaks built into the system. I, you know, this was a… I’m trying to remember which state it’s in, but most states have laws that say, hey, even if you’re working this much hours, there’s a mandatory break period, right? Especially for our hourly employees in these kind of positions, and if we’re talking about correctional officers in a prison, you probably need a break to a little bit, be a little bit more with it. So I think the additional things that were required from this individual here were that she was probably asking for a lot more breaks than they were able to provide, coupled with the staffing shortages made it just — their hands were tied and they weren’t going to be able to accommodate those, and she wasn’t going to be able to perform the essential functions of the job.

Susan 09:29
Yeah, fascinating. Oh, that was very, very interesting case. Gina, any suggestions that you may have for employers, just maybe at a high level, not relevant to this case, but when ADA claims arise?

Gina 09:42
You know, what I see happen very frequently is employers, and especially management level who are dealing with maybe entry-level positions, they are afraid to ask questions and to push back. They’re saying, “Well, I didn’t even ask for a doctor’s note because I wasn’t even sure I was allowed to do that.” So I think I’ve said this on the past couple times I’ve been on this podcast, but, you know, education is always very important. You know, in this case, they had to do a lot of pushback and a lot of conversation, and ultimately, the employer’s decision not to accommodate was upheld. And that can be an option. It is in more extreme circumstances, and I’ll always tell people to go as far into that interactive process as you possibly can, but there might be a breaking point where those essential functions cannot be accomplished with or without a reasonable accommodation.

Susan 10:30
Great advice. Yeah, thank you.

JoDee 10:32
Yeah, thanks. Well, let’s move to the Muldrow vs. City of St. Louis case whose Supreme Court decision came out in 2024. Gina, what is this one about?

Gina 10:46
So this is a very important case, one of the big Supreme Court cases touching on employment law that came out last year. This really addressed what rises to the level of being an adverse action for purposes of discrimination under Title VII. In this case, Miss Muldrow was a female Sergeant with the St. Louis Police Department, and she was transferred out of the department’s intelligence… intelligence division, and she alleged that this constituted sex discrimination under Title VII. Even though her rank was not changed, her pay was not changed, everything stayed the same, but she did allege that the position she transferred to was less prestigious, affected her work schedule, overtime pay, structure, perks, and her work attire. In addition to that, her old position was filled by a male employee. The district court ended up dismissing her claims, alleging there was no discrimination because she didn’t suffer any kind of economic damage in this situation, and obviously she appealed and went all the way to the Supreme Court. The Supreme Court unanimously — which is surprising nowadays — unanimously, held that this was prohibited discrimination under Title VII, that in this case, a discriminatory job transfer must be able to show that the transfer inflicted some harm with respect to an identifiable, identifiable term or condition of employment. But this harm doesn’t need to be significant to be a violation of Title VII, so she only needed to be able to show some injury, and it didn’t need to be a heightened standard to prove that a job transfer was disadvantageous and thus a violation of Title VII. So in this case, you know the plaintiff was really left worse off as an effect of her transfer in respect to her terms and conditions of employment. So even though there wasn’t this alteration to her pay or rank or other tangible asset, it could be an adverse employment option, because while it might not be tangible today, it could be tangible further down the line, seeing the prestige and other issues with it, made this a very significant decision to come out of the Supreme Court.

JoDee 12:59
I thought that was very interesting too. You know, we all have seen companies where there’s some departments or roles that are better than others, if you will, or maybe better leaders, or even if it’s nothing on paper that, you know, it’s not necessarily all equal, at least in our minds. I’m not sure how you prove that, I guess. But…

Gina 13:30
Well, that’s exactly it, and I think it’s a very individualized assessment for the job, right? When you’re looking at this kind of job, she knew what moving to each position meant for her in her career, what she wants to do. And it might not even just be a matter of objectively worse or better. If you have moved to department A, but really you want a career track on department B, and the company knows that, that might be a retaliatory move to move you over there.

JoDee 13:56
Right, right. Yeah.

Susan 13:58
That is fascinating. Really think that’s — makes me think that the bar is pretty low to make a claim about harm. I think as business leaders, we always say, well, the pay is going to be the same and we’re gonna have them at the same level. No, there’s a lot of other factors we need to consider. So fascinating.

Gina 14:15
Yeah, absolutely. And I think that goes to the, you know, the document philosophy, right, of if you’re going to be making this move and somebody might not like it, what is your justification for being able to do it? Can you mark that? Even if you don’t think it’s going to cause harm, if that you know, you know that they’re not going to like it, that’s a good, that’s a good situation where you probably want to make sure you’re doing the right documentation you need to justify that decision.

Susan 14:39
That’s brilliant. Yeah. I always advise clients, if you’re going to be changing people’s jobs or getting reorganized, build your business case first, why it’s business necessary. And I think that’s very much in alignment with your documentation. Why are we doing it? That’s going to be, I think, your best defense.

JoDee 14:55
Absolutely. Any other tips you might have for listeners on that one? Or just document, document, document?

Gina 15:03
Yeah, document, document, document. If you think… you know, and I think also that comes from this one. There, when we’re talking about especially a local government, but this can happen in bigger corporations when they’re in multiple tiers of, in the chain of command, right? If a manager is telling a superior, hey, we need to transfer this person, really ask those follow up questions and be curious as to, why are they taking their matters into their own hands and, you know, maybe doing something that might not be legal?

JoDee 15:35
Right.

Susan 15:36
Yeah. Right. Our next case is the Amos vs. Lampo Group from the 6th Circuit in 2024. Gina, what’s the scoop?

Gina 15:46
I think this one was a very interesting one, because it’s one we deal with not that often, which is reverse religious discrimination. In addition to that, the defendant, Lampo Group, is actually better known as Ramsey Solutions, which many people are familiar with David Ramsey and his financial advice that he gives his listeners and his base. He publicly identifies as a Christian and advocates for Christian beliefs. So in this case, plaintiff was working as a video editor for the Ramsey Solutions Group. He was working for them in 2020, right, in the height of COVID, and that’s a lot of the cases that we saw ruled on this year. And in this case, he was — alleges that he was criticized for social distancing and wearing a mask. And according to him, these acts were consistent with his own deeply held religious beliefs of the Golden Rule and doing no harm to others and promote safety of his family. He alleged, on the other hand, that at Ramsey’s direction, they would aggressively and regularly promote their own religious beliefs against COVID-19 precautions, while also demeaning plaintiff’s religious beliefs in trying to protect the well-being of, safety of his family and others. In 20 — July of 2020, he was fired for a lack of humility and because he was not a good fit, because he would stand off to the side at all, all times. So plaintiff brought a lawsuit alleging that he was discriminated against on his religious practices and the expression of his own religious beliefs with regard to COVID measures. The district court dismissed his claims, but the 6th Circuit ended up reversing. They held this is what has been referred to as “reverse religious discrimination,” which is also known as religious non-conformity. So when an employer has a sincerely held religious belief, as an organization, they’re not allowed to discriminate against an employee for failing to comply with the employer’s religion itself. So in cases like this, an adverse employment action is taken because of a discriminatory motive based on the employee’s failure to hold or follow the employer’s religious beliefs. So really, in this case, what the plaintiff would need to do to meet his burden, to succeed on his case is to plead a religious non, non-conformity claim. And which he did in his complaint, and therefore the 6th Circuit reversed, and that case is still working its way through the courts. What I think is just really important to this, and this claim, is that it’s okay for an organization to have a foundation of religion and have these beliefs, but if they want to… they just need to be careful in imposing those religious beliefs on the employees within their organization. There are exceptions for religious organizations themselves, but for private companies, private employers like that, they need to engage in, again, like the ADA, the interactive process to determine whether an accommodation is available to adhere to the religious beliefs and still be able to perform their job duties, position.

Susan 19:04
That’s great advice. And I’m a graduate of the Ramsey Financial Peace program, which I think is really good common sense, you know, about paying off all your debts and all those types of things, but I have been so sad not only to hear about this case, but other employment practices that the Lampo Group has been carrying out, and there’s been obviously lots in the news that many of our listeners probably have heard. One of them was his, David Ramsey and the firm’s public stance on barring pre-marital sex by employees. Come on. I think that he had an employee that may have gotten pregnant, that wasn’t married and they separated and all of that. I’m just like, you be you, I’ll be me. And I think that not only religion, but any, any lifestyle or choice would be my perspective.

Gina 19:52
Well, I think that’s really what the law requires too, right? I think you put it very, very well, you be you, I’ll be me, right? Like, that’s, that’s what… It’s okay for there to have this overall theme in the organization, but if somebody is not conforming with those religious beliefs, well then we’re getting into the murky Title VII territory, where this actually might be religious discrimination in that case. And you know, that’s, that’s a problem.

Susan 20:19
That’s a problem.

JoDee 20:20
Right. Right. That’s interesting. Okay, let’s go to Young vs. Colorado Department of Corrections in the 10th Circuit in 2024. Gina, what do we need to know about this one?

Gina 20:36
Alright, so this one was interesting then, it’s interesting now. It’s, I’m very… I am going to not to use the word interesting again, but very interested to see how this one works through the courts. It is still going on. So this one is really about DEI programs. These cases started popping up a lot more after the Supreme Court decision two years ago regarding affirmative action in the school districts, and I think is a natural consequence of that. People started challenging DEI programs in the courts, DEI trainings and things like that. And as we go through this year and the following years, I think there’s going to be a ton more litigation for that. So I think this is a great case to start with and to look at in regards to that. So in this case, plaintiff was employed by the Colorado Department of Corrections, and they had a mandatory employee equity, diversity and inclusion training with materials from the Colorado Department of Public Health and Environment. The plaintiff complained through the Department of Corrections formal complaint process that the EDI training was racially discriminatory and its teachings were abusive. The Department of Corrections informed plaintiff that, that his complaint would not be investigated, and the plaintiff resigned from employment, then sued the Department of Corrections, claiming that… and the district court dismissed his claims without prejudice, saying that his Title VII claim failure — failed to state a claim in his complaint, because the plaintiff failed to sufficiently plead that the alleged harassment was severe or pervasive, and it dismissed the Equal Protection claim for the same kind of grounds. I think that the 10th Circuit upheld this dismiss without prejudice, which meant that the plaintiff could go back and he could amend his claims later, which he ultimately ended up doing. But they also noted that the Title VII prohibits employers from allowing work conditions to be permeated with hostile racial, racial animus. And to the extent diversity programs generate such animus, they are subject to the prohibitions of Title VII. What was interesting about this, and can’t really be conveyed through a podcast, is oftentimes Circuit Court opinions, just a lot of words for 20 or 30 pages. This one they pulled out, like, screenshots from the trainings themselves, where it was showing content that was pretty directed at people who were white, saying, you know, this is what you could be doing wrong as an employee. It was very much more on the extreme side, on the trainings, and I think that’s why it was dismissed, but dismissed without prejudice, and that they basically told him, “Go fix your complaint, plead your pleadings better, and we’ll take a look at this,” and the language of the 10th Circuit saying that, well, if it’s racially animus in these diversity programs, we’re going to take a harder look at this. The plaintiff has amended his complaint. It is working its way through the courts, and I think they are going to look at this with a really critical eye and what kind of trainings were provided in this diversity program. Did it create a racial animus towards the white employees? I don’t think this is the last we’ve seen about this one at all. And I think it probably will end up in SCOTUS, depending on — in the Supreme Court, depending on which way it goes, which I think the… at least the big, obvious takeaway, first of all, is take a look at your trainings, right?

Susan 24:04
Yes.

Gina 24:04
Currently, you know, like, there’s just, is this going to be enough to be severe or pervasive to create that hostile work environment? Because that’s still going to be the standard for hostile work environment. Is this severe or pervasive?

Susan 24:20
Wow.

JoDee 24:20
That’s interesting that I was kind of focused on the fact that he didn’t want to go to the training, but maybe the training wasn’t appropriate.

Gina 24:33
I think the, you know, candidly, that the plaintiff probably has a harder argument to make that not going to the training. I think that’ll be his uphill battle. He didn’t go, he didn’t see, just heard about it and the materials. That doesn’t necessarily — like, how was he then affected, or is it way other employees treated him, I think is going to be the additional factor. But those who go to it, that might change it, right? There’s going to be a lot of testing in the courts on these kind of things. And maybe this won’t be the successful one, but we’ll see how it goes.

Susan 25:04
Absolutely. I have to say, it’s so interesting that the big cases we’re talking about, this is the second correction officer. So, like, what’s going on with correction officers?

Gina 25:12
They’re always there. They’re always there.

Susan 25:14
So interesting. Wow.

Gina 25:17
I feel like I’ve actually done a lot of Department of Corrections cases.

Susan 25:21
Really, wow. Well, I really appreciate this, because we do… I think, you know, we’re at the tip of the iceberg with the current administration calling DEI illegal discrimination. And so I think it’ll be, it’ll be fascinating to watch. I think all eyes are on it. I do think that, you know, before I would do a DEI training as an employer today, right now, it’s February 2025, I would involve counsel. I would say, here’s what I want to do, here’s why I want to do it. I want an awesome workplace where we value diversity and, and lots of different people and different minds and different backgrounds, and we recognize if we leave it to chance, well, we’re not… it’s going to be… potentially, never going to happen, and it… potentially people are more comfortable with people like them. So what can we do? I would, I would talk to counsel before I put my toe back in the water of doing anything that I was going to spend money, time, and energy litigating. So Gina, I hope that this is good news for labor law attorneys out there that you’re going to hopefully get more ability to weigh in with companies before they find themselves in harm’s way.

Gina 26:28
Yeah. I mean, absolutely, I think especially now, especially this year, consulting with people in advance, it’s… again, like this, Spidey Sense tingling. If you’re hearing about it in the news, it’s always worth a question, right, to someone saying, you know, we’re thinking about doing this, or we’re thinking about not doing this. Should we? Should… What else should we be asking ourselves? Like, you know, on the news, what are the greater implications here? And sometimes, I think it’ll come down to words, implementation, names of programs, things like that. There’s a lot up in the air. You know, I think people get frustrated with counsel sometimes, because we’ll say “it depends,” or “maybe,” or things like that, but it’s still good to know that it’s not a “Nooo!”

Susan 27:10
Exactly, exactly. I love that. Well, finally, our last case debrief. Today is the Okonowsky vs. Garland that was in the 9th Circuit in 2023. Gina, what is the story on this last one?

Gina 27:24
Well, this is another prison case. This is a federal prison one in this case. Okonowsky, the plaintiff, was a staff psychologist in the federal prison and just discovered and reported to multiple, multiple supervisors that a male corrections Lieutenant with whom she had worked was posting harassing contact on her — on his personal Instagram, including sexually harassing and violent posts that referred specifically to her. The account was followed by more than 100 of the prison’s employees, including the human resources manager, and some of whom openly interacted with the offensive post through likes and comments. The district court found that and dismissed the plaintiff’s claims, because it found that the… really, that the… because the social media posting was entirely outside of the workplace, this couldn’t be Title VII discrimination by the employer. The 9th Circuit rejected this finding and explains, I’m quoting, “Social media posts are permanently and infinitely viewable and reviewable by any person with access to the page or site on which the posts appear, and the Instagram page also served as a record of which coworkers subscribed to the page and commented on posts, showed their comments and likes, and could be seen from any place at any time, in and including from the workplace.” The court emphasized the need to look at the totality of the circumstances in Title VII’s sexually hostile at work environment claims, which includes evidence of sexually harassing conduct, even if it does not expressly target the plaintiff, as well as evidence of non-sexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating. This ruling also built on some of the EEOC enforcement guidance on workplace harassment, showing the integration of that into case law, and that guidance reminded employers that they might be liable for conduct occurring outside of work, including social media, when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.

Susan 29:38
Wow.

Gina 29:39
Yeah.

Susan 29:41
I cringed when you said the HR person was on the… could read it as well, on the list. Yikes. It does make sense to have social media policies that are, are fresh, that they call upon what’s okay and not okay to do, because often people are friends with each other on social media, people are seeing things that could impact how… things… how they feel at work, and they could feel like they’re being discriminated against or bullied or harmed or harassed. So once again, a good reason to get, I think, a labor law attorney involved, make sure your social media policy gives you the teeth that you need and puts your employees on notice of your expectations.

Gina 30:22
Yeah, absolutely. And I think this is one of those cases that I sympathize from HR perspective, not maybe this HR manager themselves, but the HR perspective of, like, well, hey, they’re doing social media posts. I can’t control that. I can’t tell people what to do outside the workplace, but there is an obligation to do that. And there’s that conflict between wanting to treat employees and coworkers like adults versus stopping conduct outside the workplace. And now this case, reading about the post and everything like that, it was very graphic and very, almost encouraging violence against the plaintiff. It was very extreme. But if somebody is coming to HR talking about this and expressing concern about that, that is a serious concern that needs to be addressed, just like it’s something that happened on the premises.

JoDee 31:08
Absolutely. Yeah. Well, Gina, thank you for walking us through that. There that was some good insight on some recent and even still active cases going on. So it’ll be interesting to see what happens. Gina, you know, we like to ask a JoyPowered® question too. What’s one small step people can do in the areas of preventing EEO-related claims to create more joy at work?

Gina 31:40
I think really listening to people when they are bringing this stuff forward, or more importantly, and more specific to your question, when they’re preemptively saying things, coming with ideas, saying this would be great for us, this would be good for morale, even if it’s not something necessarily directly dealing with compliance, something creating a better work environment in general, where we all have to be, whether remotely or in the office, just makes happier people, right? So just hearing people, I think, is the big, big step all the time.

JoDee 32:14
Yeah, great insight. Thank you.

Susan 32:16
Absolutely. And before we let you go, Gina, please remind our listeners how they could reach you if they wanted to engage with you, have conversations about this, or figure out, what could they be doing to avoid EEO cases themselves?

Gina 32:28
Yeah, absolutely. So, I mean, you can always find me on LinkedIn. My name is on there. It’s G, I N, A, C, A, R, R, I, L, L, O — two Rs, two Ls. Or you can find me, as Susan mentioned, I’m at Gammage and Burnham. I’m a partner there in the Phoenix area. My email address there, yeah, is, G, C, A, R, R, I, L, L, O, at GBLaw.com. Please feel free to reach out to me about any questions or anything like that, or just to talk about this stuff, because I love talking about it, so.

Susan 33:04
That’s great, and we’ll have that with that information in our show notes as well. Well, thank you, Gina, always a pleasure.

Gina 33:10
Thank you so much for having me again. Love being here and a big fan.

Susan 33:15
Thank you. Thank you.

JoDee 33:17
Thanks. Bye.

JoDee 33:19
Susan, we have a listener question today, and they ask, “What do you think of quiet firing, simply not giving work to an unwanted employee in order to encourage them to quit?”

Susan 33:35
I am not a fan of quiet firing. I think the JoyPowered® approach is to be more transparent and… with the employee about what isn’t working. Yeah, I do know it often takes longer, right? You have to work through whatever your corrective action process is. But honestly, I feel like it’s more fair, as a person needs to know what’s wrong, and they do deserve to have a chance to fix it. Now, if they’re in their first 90 days or introductory period, I get it. No, you, you — maybe it was a wrong hire. Maybe for them, it was a wrong decision to say yes to you. But once they’ve been with you for a few months, I really feel that we owe them the opportunity to know what’s wrong and to turn it around. If you don’t, instead you freeze them out, which really is kind of what quiet firing is about, you, you know, you stop having giving them meaningful work to do, you try to make it uncomfortable enough that they decide to leave on their own. I really think that, you know, first of all, it could be constructive discharge, where you have actually made it such that the person quits, and in reality, you’ve quietly fired them, and I think other employees are going to be watching what you’re doing. Other employees may resent the fact that you’re not distributing work evenly. If you’re kind of freezing someone out, they’re going to see that they’re continuing to get work, and that person is not, which could cause an employee relations issue for you, or they might see that you’re actually kind of diabolically quietly firing a colleague, which, you know, could impact how they fear you or that they fear you might treat them one day. So I just don’t think it is a good path to go. It could cause your good workers to disengage, or worse.

JoDee 35:21
Right.

Susan 35:21
Vote with their feet and leave you. JoDee, any other thoughts that you’ve got?

JoDee 35:25
No, just 100% agree. And I think, too, you might just quit giving them work, and they might enjoy it and want to stay longer.

Susan 35:35
That would be awful. That would be a bad — that’s a lose-lose, right? Funny. Well, it is time for in the news. A January 2, 2025 article came out on benefitnews.com by Frank Gargano entitled “Banking Unionization Wave: Wells Fargo Employees Lead the Way.” This really caught my attention JoDee, because I had spent 35 years of my professional career in banking, and most of those years I was in human resources. The bank that I worked at felt very strongly that we wanted to remain non-union, and honestly tasked all of us in HR to ensure we helped our leaders create a workplace where individuals felt like they didn’t need a union to come in and represent them, that they could go to their managers to have problems solved, or they could come to HR, we’d help them navigate with their managers howtoof resolve issues that arose. My guess is that many of our listeners feel the same way, they work in non-union environments, given the fact that the Bureau of Labor Statistics says that only 6% of employers in the private sector actually are unionized. Now it’s much higher if you happen to be a listener in the public sector, 33% of the public sector employees are unionized. What’s really surprising to me about Wells Fargo is that their employees actually reached out to the Communication Workers of America, and they, and they… by one department, and this department that did unionize in late 2024 was their department that received all of the complaints from customers and from employees. So they were, like, the complaint handling department. Think they’re called conduct management intake group. Now, it’s not a large group of people, but it didn’t matter. That particular chunk of employees were able to reach out to Communication Workers of America, who supported them and helped them figure out how to actually unionize, to run an election, get it passed. It was, you know, pretty evenly dispersed, but more people voted for it than, than did not. And now that they’re in that department of this very large organization and they’re hearing what’s on employees’ minds, because they’re getting the employee complaints, it seems like a really ripe area for union representatives to understand what employees aren’t happy about. So I will tell you that, as an HR person having worked in banking for many years, scares me to death. I can’t imagine that they’re… that Wells Fargo is feeling great about it. My guess is they’re doing lots of things to ensure that the rest of their employees feel valued, seen, and heard so as not to cause a repeat of this. Interestingly, just within the last few weeks, JPMorgan Chase, and this is — the airing of this podcast I know is in March of 2025, they have had employees signing a petition and the last I read, they had over 900 employees trying to petition the CEO of the organization directly, not through a union or anything, directly to roll back his strong statements and his kind of executive order for all employees to return to the office five days a week. So it’s been kind of a, a, you know, a big deal for another bank, certainly larger than Wells Fargo, to have employees organizing an effort to try to get something changed in the company. There has been speculation that Communication Workers of America or other unions may be being contacted, getting advice, things like that. So I think this is going to be area to watch. Yes, only 6% of our private sector in the US is unionized, but when employers are not listening and creating a JoyPowered® workplace every single day there’s risk. So we wish Wells Fargo and its employees the best as they navigate these waters. I think the takeaway for all of us is to double down on making sure our organizations are great places to work, that people are treated fairly, and they have a safe space and people to go to, if they have a supervisor, a leader, an employment practice, or a policy that employees don’t feel are… is reasonable, respectful, or the organization’s not being responsive.

JoDee 40:10
Yeah. Well said. Well said. Please tune in next time and make it a JoyPowered® day.

Susan 40:19
If you’re SHRM certified, you can get credit for listening to this episode. To get the code, go to getjoypowered.com/shrm and fill out a short evaluation. When you finish the evaluation, you’ll get the code and a link to a proof of participation certificate. The code will expire on March 10, 2026. Again, that’s getjoypowered.com/shrm to get the code, and it’s going to expire March 10, 2026 Thank you for listening, and thank you for your dedication to the HR profession.

JoDee 40:56
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Susan 41:34
If you’re not ready to sign up for a membership, but you want some of the perks, head over to the shop page on our Patreon. That’s where you can purchase individual episodes, video recordings, ad-free audio, and bonus episodes. You can find all of this great stuff at patreon.com/joypowered. That’s P, A, T, R, E, O, N dot com slash joypowered. Thanks for listening and supporting our show. Please tell a few friends about us and let us know what you thought by leaving us a rating or review on Apple Podcasts or wherever you’re listening right now. You can find more information on our podcast, books, blogs, and more at getjoypowered.com. We’re @JoyPowered on Instagram, LinkedIn, and Facebook, and you can email us via joypowered@gmail.com. Make it a JoyPowered® day.