Understanding Job Discrimination Basic Training for MSPTA

Understanding Job Discrimination
Basic Training for MSPTA
Troopers and Sergeants
The Contract and the Early Days
• The MSPTA contract adopted this contract
language in 1980:
Section 13. Prohibited Discrimination
> The parties agree that this Agreement shall be applied without
unlawful discrimination as to race, color, national origin, religion,
sex, sexual orientation, age, disability, political affiliation, or genetic
information that is unrelated to the person's ability to perform the
duties of a particular job or position. Claims that allege violation(s)
of the Americans with Disabilities Act (ADA) may be processed
through Step 3 of the grievance procedure provided in Article 9,
without prejudicing the employee's right to file suit or other
procedures established by law. Any other employee(s)’ charges
of employment discrimination shall be handled exclusively by
and through the appropriate State or Federal agencies, or
through appropriate judicial proceedings.
©SHRM 2008
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Why the Contract Evolved the Way it Did
• Why the contractual “carve out” for
discrimination claims?
The MSPTA did not want to waive its members’ right to a jury trial
in discrimination cases.
> The MSPTA wanted Judges, not Arbitrators, to decide these
important issues affecting its members.
> Since 1980, the MSPTA has sometimes employed or utilized
advocates at arbitration who were not lawyers who would not have
the expertise to pursue constitutional and/or statutory claims.
>
©SHRM 2008
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Federal Laws
FEDERAL DISCRIMATION LAWS
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Title VII of the Civil Rights Act of 1964
Americans With Disabilities Act (ADA)
Age Discrimination in Employment Act (ADEA)
Genetic Information Nondiscrimination Act (GINA)
These are federal laws which prohibit all employers, including
unions, from discriminating in employment based on certain
immutable characteristics. They also prohibit retaliation against
persons who complain of discrimination or participate in an Equal
Employment Opportunity (EEO) investigation, either as a
complainant or a witness.
©SHRM 2008
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Protected Characteristics
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Race
Color
Religion
Sex (including gender identity, change of sex and/or
transgender status)
National origin
Disability
Age (over 40)
Genetic information
©SHRM 2008
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Purpose of this Presentation
The purpose of this presentation is to provide MSPTA
members with a basic understanding of three key concepts
within these laws:
• What is discrimination?
• What is harassment?
• What is retaliation?
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To help our members recognize and avoid actions prohibited by
the law and to insure they treat co- and subordinate employees
with respect and dignity.
These slides, prepared by the SHRM, have been customized as
much as possible to refer to Michigan’s corresponding laws and
the MSP’s own Official Orders.
©SHRM 2008
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Objectives of this Presentation
At the end of this presentation, the goal is that participants will be
able to:
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Understand what federal and state discrimination laws are, and their
basic provisions.
Define discrimination.
Define harassment.
Cite categories of harassment.
Define retaliation.
Understand the costs involved with violations of federal and state
discrimination laws.
Describe the MSP policy on discrimination, harassment, and retaliation.
Understand the responsibilities supervisors (including sergeants) have
in complying with federal discrimination laws.
©SHRM 2008
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What is Title VII, ADA, ADEA, and GINA?
Title VII, the ADA, the ADEA, and GINA are the federal laws
which protect MSP employees from discrimination,
harassment and/or retaliation based upon certain
“protected characteristics”
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They prohibit employers, including unions, from discriminating in
employment based on race, color, religion, sex (including gender
identity, change of sex and/or transgender status), national origin,
disability, age, or genetic information.
They prohibit retaliation against persons who complain of discrimination
or participate in an EEO investigation.
They help to create a workplace where employees are treated with
respect and dignity.
©SHRM 2008
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What are the Basic Provisions of Title VII?
Title VII, the ADA, the ADEA, and GINA prohibit discrimination in all
aspects of pre-hire and the employment relationship including:
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Recruiting
Interviewing
Hiring
Promotion
Demotion
Job transfer
Compensation
Training
Discipline
Benefit Administration
Termination/Dismissal
©SHRM 2008
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What is Discrimination?
“Discrimination” is any policy or action undertaken by an employer
(typically by a supervisor or manager) related to recruiting,
hiring, promotion, pay or training practices that results in an
unfair disadvantage to either an individual or group of
individuals who are considered part of a protected class.
©SHRM 2008
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What is Discrimination? (cont’d)
Discrimination also includes:
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Retaliation against an individual for making a charge of discrimination,
participating in an investigation, or opposing discriminatory practices.
Employment decisions based on stereotypes or assumptions about the
abilities, traits, or performance of individuals of a certain sex, race, age,
religion, or ethnic group, or individuals with disabilities.
Denying employment opportunities to a person because of marriage to,
or association with, an individual of a particular race, religion, national
origin, or an individual with a disability. Title VII also prohibits
discrimination because of participation in schools or places of worship
associated with a particular racial, ethnic, or religious group.
Source: Equal Employment Opportunity Commission (EEOC), Discriminatory Practices
Overview
©SHRM 2008
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What is Discrimination? (cont’d)
The discriminatory employment action must result in a “tangible
employment action” which is a change in employment status or
the privileges of employment AND the basis for doing so must
be due to the employee’s protected status.
Discrimination is:
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Illegal
Costly
Disrespectful
Violates the MSP value statement: "A PROUD tradition of SERVICE
through EXCELLENCE, INTEGRITY, and COURTESY"
©SHRM 2008
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Group Discussion- Are these discriminatory actions?
Why or why not?
A Post Commander:
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Increases Jane’s workload but not Juan’s.
Assigns Juanita to the “days” because she is always late.
Changes Mohamed’s job description so he can leave early on Friday.
Reassigns George’s work assignments which limit his opportunities for
overtime, salary increases and promotions.
Changes Maria’s job title with no change in pay, bonuses, salary
increase or opportunities for advancement.
Leave the collective bargaining agreement aside for this discussion, and
think only about federal and state law.
©SHRM 2008
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Michigan Discrimination Laws
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Michigan’s anti-discrimination law, named the “Elliott-Larson
Civil Rights Act” is very similar to the federal law, but adds the
following “protected categories” not found in federal law:
Height
> Weight
> Marital status (married, single, divorced, etc.)
> Familial status
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Michigan also has a law named the “Persons with Disabilities
Act”
It is very similar to the Americans with Disabilities Act (ADA)
> Exceptions will be discussed later
>
©SHRM 2008
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What is “Illegal Harassment?”
In the employment and legal context, “harassment” is defined
as conduct or actions, based on race, religion, sex (including
gender identity, change of sex and/or transgender status),
national origin, age, disability, genetic information, military
membership or veteran status, severe or pervasive enough to
create a hostile, abusive or intimidating work environment
for a reasonable person.
State laws and local ordinances may further define harassment
to include additional protections, such as sexual orientation,
marital status, trans-sexualism or cross-dressing, political
affiliation, criminal record, prior psychiatric treatment,
occupation, citizenship status, personal appearance,
"matriculation," tobacco use outside work, Appalachian origin,
receipt of public assistance or dishonorable discharge from the
military.
©SHRM 2008
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What is Harassment (cont’d)
Harassment is a form of discrimination that
violates federal law when it is:
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Unwelcome verbal or physical conduct based on a person’s race, color,
religion, sex or gender, national origin, age (40 and over), disability
(mental or physical), or genetic information.
Severe, pervasive and persistent conduct that unreasonably interferes
with an employee’s work performance or creates an intimidating, hostile
or offensive work environment.
An occurrence where an employee’s status or benefits are directly
affected by the harassing conduct of a manager or person of authority.
Adverse employment actions (retaliation) against employees who
complained of harassment or discrimination, who participated in a
complaint procedure, or who rebuffed a supervisor’s romantic or sexual
advances.
©SHRM 2008
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Harassment Related to Protected Status
National Origin
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It is illegal to discriminate based on an employee’s birthplace, ancestry,
culture or linguistic characteristics common to a specific ethnic group.
For example, it would be discriminatory harassment to require
employees to speak only English unless an employer shows that the
requirement is necessary for conducting business.
Disability
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The Americans with Disabilities Act prohibits workplace discrimination
on the basis of disability. Illegal harassment occurs when a disabled
worker is subjected to pervasive and severe harassment due to his/her
disability and which results in a hostile work environment for the
employee.
©SHRM 2008
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Harassment Related to Protected Status (cont’d)
Sex Discrimination
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It is illegal to discriminate on the basis of gender. Requests for sexual
favors in exchange for preferential treatment as well as workplace
conditions that create a hostile environment for persons of either
gender constitute sexual harassment. This includes “same sex”
harassment.
Pregnancy Based Discrimination
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Pregnancy, childbirth, and related medical conditions must be treated in
the same way as other temporary illnesses or conditions and not used
for discriminatory treatment. Harassment for this protected status, for
example, would be ridiculing an employee for her appearance during
pregnancy.
©SHRM 2008
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Harassment Related to Protected Status (cont'd))
Age Discrimination (ADEA)
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Protects individuals who are 40 years and older from discrimination. An
example of harassment based on age would be referring to an older
worker as “gramps” or “granny,” thus creating a hostile work
environment.
Race/Color
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It is illegal to discriminate on the basis of race or color. Slurs or jokes,
offensive or derogatory comments, or other verbal or physical conduct
based on an employee’s race/color constitutes discriminatory
harassment if that conduct creates an intimidating, hostile or offensive
work environment and prohibits an employee from performing their job.
©SHRM 2008
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Harassment Related to Protected Status (cont’d)
Religion
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An employer cannot discriminate based on an employee’s religious
beliefs or practices. Harassment based on religion occurs when an
employee is antagonized or ridiculed because of his or her religious,
moral or ethical beliefs. Another type of religious harassment occurs
when a co-worker or supervisor “preaches” or proselytizes to an
employee and the employee perceives that behavior to be unwanted
and offensive, amounting to a hostile work environment.
©SHRM 2008
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Additional Examples of Harassment
Unwanted/unwelcomed Behavior or Conduct:
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Flirting, advances and/or propositions of a sexual nature.
Remarks, insults, humor, jokes which are demeaning to an individual
including their body or clothing, national origin, culture, race, age,
religion, disability.
Offensive displays of sexually suggestive objects or pictures.
Offensive touching, such as patting, pinching, hugging or repeated
brushing against an individual's body; sexual assault; and/or
suggestions that submission to or rejection of sexual advances will
affect decisions regarding an employee's work assignments, status,
salary, benefits or other terms or conditions of employment.
©SHRM 2008
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Whistleblowing
• The Difference between Whistleblowing and
Retaliation:
Employees are typically the persons who “blow the whistle”
> Supervisors or management are the ones who engage in
retaliation, typically against those who have engaged in
“whistleblowing
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The Michigan Whistleblower’s Protect Act
It does not protect Troopers and Sergeants or other State
employees.
> The law explicitly excludes state employees from its coverage
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The laws forbidding retaliation for voicing or filing a civil rights
complaints protect most problems that would be handled in the
private sector as a “Whistleblower’s complaint.”
©SHRM 2008
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What is Retaliation?
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In the employment context, retaliation occurs when an
employer takes an adverse action against a covered individual
because the employee engaged in a protected activity.
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Terminating employment, demoting or illegal harassment of
employees for their filing a charge of discrimination or,
participating in a discrimination investigation or proceeding, or
their opposing discrimination would be retaliatory action.
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Retaliation is illegal, disrespectful, and costly.
©SHRM 2008
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What is Retaliation? (cont’d)
Retaliation does NOT include:
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petty slights and annoyances, such as stray negative comments in an
otherwise positive or neutral evaluation, "snubbing" a colleague, or
negative comments that are justified by an employee's poor work
performance or history.
Source: EEOC Fact Sheet
©SHRM 2008
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Costs for Violating Discrimination Laws
Employer penalties/damages may include:
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Prospective pay.
Back pay.
Lost benefits.
Compensation for emotional damage.
Actual and hidden costs associated with your organization’s reputation
in the community.
Punitive damages if the EEOC finds an employer intentionally
discriminated.
Punitive damages are capped, depending on the number of employees.
Maximum amount of damages based on the size of your organization
and range from $50,000 to $300,000.
©SHRM 2008
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Costs for Discrimination Laws(cont’d)
Costs to supervisors include:
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Increased work load and lost productivity = More work for you!
Your reputation in the organization if you are the subject of an EEOC
charge or law suit.
Direct or indirect legal costs which may affect your budget or the
organization’s profitability.
©SHRM 2008
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Group Discussion --You Be the Judge
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Mary filed an EEO grievance with HR six months ago. She has
always been hard to supervise. You want someone else to
manage her and you asked HR to reassign her to another unit.
HR says the only available position may involve a change in title
and less overtime. Would transferring her be considered
discrimination, harassment or retaliation?
Bill constantly complains that his back hurts. You are so tired of
hearing his complaints that you told him he cannot work until he
provides you with proof that he has seen a doctor and the
doctor says he is fit to work. Furthermore, he must provide you
with a copy of the diagnosis and any prescriptions. Although Bill
complains a lot there are no significant attendance or
performance issues. Are your actions illegal discrimination,
harassment or retaliation?
©SHRM 2008
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MSP Policy & Procedures for Discrimination, Harassment,
and Retaliation
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Official Order #12 is included in the handout materials. It
describes the MSP policy on reporting and handling
discrimination matters, including harassment.
Official Orders, however, can never “override Federal or State
law.”
©SHRM 2008
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A Sergeant’s Responsibilities as a Supervisor
Know and comply with MSP policy and procedures
Immediately report any complaint that you receive from your
employees or incidents that you witness involving other
supervisors’ employees to the Human Resources Director
When handling harassment complaints from your employees:
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Respond to employees’ complaints as soon as possible.
Demonstrate your willingness to hear and objectively discuss
complaints.
Inform the employee that you must report all complaints to the HR
Director.
Tell the employee that confidentiality will be respected as much as
possible but cannot be assured in order to fully and properly investigate
employee concerns/allegations.
Do not object if an employee prefers to or actually bypasses the
standard chain of command.
Do not engage in retaliation against an employee who complains of
harassment or discrimination.
©SHRM 2008
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Your Responsibilities as Supervisors (cont’d)
Investigations are conducted by the HR Director or by the
Professional Standards Unit
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Be available for interviews and provide as much information as
possible.
Make employees available for interviews.
Once an investigation has been completed, if disciplinary
action is to be taken, work with the HR Director to make
sure that:
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The victim is not adversely affected.
The harassment stops and does not recur.
©SHRM 2008
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Group Discussion --You Be the Judge
An employee hired about one month ago after working in the
company as a temporary employee, has been involved in
confrontations with other employees and has claimed sexual
harassment and age discrimination. An internal investigation of
his allegations did not support his claims of sexual harassment
or discrimination. You think he is a trouble maker and would like
to terminate his employment. Furthermore your company policy
says that the first 90 days of employment is a trial period. The
purpose of the trial period is not only to provide employees with
a learning period but also to give the company an opportunity to
evaluate employee suitability to the company and its needs.
During the 90 day trial period, an employee can be terminated
for any reason at the sole discretion of company.
Is terminating this employee, discrimination, harassment, retaliation
or a good employment decision which will save the company at
lot of money and trouble in the future? Explain your answer.
©SHRM 2008
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Summary
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Title VII, the ADA, the ADEA, and the GINA are federal laws
which protect employees from discrimination, harassment and
retaliation.
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The Elliott-Larson Civil Rights Act is a Michigan law which
protects employees from discrimination, harassment and
retaliation.
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The Michigan Person’s with Disabilities Act is modeled after the
ADA and prohibits discrimination against persons with an actual
or perceived disability. It also requires the Employer to
accommodate person’s with a disability, if it can do so without
reasonable hardship to the agency.
©SHRM 2008
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Summary (continued)
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Discrimination is any policy or action taken related to recruiting,
hiring, promotion, pay or training practices that result in an
unfair disadvantage to either an individual or group of
individuals who are considered part of a protected class.
•
In the employment and legal context, harassment is defined as
conduct or actions, based on race, religion, sex (including
gender identity, change of sex and/or transgender status),
national origin, age, disability, genetic information, military
membership or veteran status, severe or pervasive enough to
create a hostile, abusive or intimidating work environment for a
reasonable person.
©SHRM 2008
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Summary (continued)
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In the employment context, retaliation occurs when an employer
takes an adverse action against a covered individual because
the employee engaged in a protected activity.
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Penalties/ damages for violations of federal laws may include
prospective or back pay, lost benefits and punitive damages, as
well as payment of a prevailing plaintiff’s litigation costs,
including reasonable attorney fees. Jury verdicts often exceed
$1.0 million dollars, even in non—discharge cases.
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Supervisors are responsible for knowing and complying with
MSP policy and procedures, reporting immediately any
complaints or incidents, and cooperating with investigations and
any disciplinary action.
©SHRM 2008
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What To Do if You Have a Complaint
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The steps for filing a complaint under Federal law and Michigan
law are very different.
Under federal law, damages are capped. Under Michigan law,
damages are not capped.
In order to bring a charge under federal law, you must first file a
complaint with the EEOC.
In general, the time limit is 180 days from the incident(s) about
which a complaint is made. That time limit is extended to 300
days in Michigan because this State also has anti-discrimination
laws and an agency that handles claims (MDCR).
Wondering about a federal claim? The EEOC provides a handy
assessment tool on its website:
https://egov.eeoc.gov/eas/
©SHRM 2008
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Do I have to go to the EEOC to file my claim?
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The EEOC recommends that you personally come to their office
if you live within 50 miles of an office.
In Michigan, the only EEOC office is in Detroit.
Alternatively, you can complete the EEOC intake questionnaire
and fax, email or mail it back to the agency. This is not the
same thing as filing a claim, but it begins the process and
allows the EEOC to make certain it has jurisdiction over the
claim.
In the questionnaire, you can request an investigation, or you
can request that a charge be issued if the EEOC finds sufficient
evidence to issue a charge.
The EEOC website is an outstanding resource and the best
place to start evaluating whether you may have a claim.
©SHRM 2008
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How do I File a Complaint with the Michigan
Department of Civil Rights?
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Within 180 days, you can go to one of the three MDCR offices
in Michigan: Lansing; Detroit; or Grand Rapids; or
You can file a request for a complaint online at:
http://www.michigan.gov/mdcr/ and a civil rights representative
will contact you to assist in drafting a complaint.
MDCR will serve the complaint upon the employer and offer the
employer the option to answer questions or seek an amicable
resolution through mediation.
©SHRM 2008
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Do I need to have a lawyer when filing
an EEOC or MDCR claim?
• No, but many victims of discrimination
choose to have a lawyer assist them with
their administrative claims.
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Important note: Under Michigan law, it is not necessary to first
file a claim with the MDCR. You can go directly to circuit court.
Of course, you will need a lawyer for court.
If you choose to go to court, the statute of limitations is three
years, not 180 or 300 days.
You can opt to have your case heard by a judge or jury.
If you win, the court can order the employer to pay your
reasonable litigation expenses, including attorney fees.
Most Civil Rights lawyers take cases on behalf of plaintiffs of a
contingent fee or combination flat fee/contingent fee.
©SHRM 2008
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Conclusion
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The MSPTA opposes illegal discrimination or harassment of its
members in any form, regardless of the rank of the person
perpetrating the discriminating or harassment.
The MSPTA has always been willing to arrange for member’s to
have legal guidance and advice upon request with inside or
retained legal counsel.
The MSPTA cannot offer no-cost legal representation in Civil
Rights cases (or Worker’s Compensation cases) because the
costs would be prohibitive.
The MSPTA can and will assist members in identifying lawyers
who specialize in civil rights or workers’ compensation cases
affecting our members.
The MSPTA does not recommend the selection of a lawyer
through phone book or internet ads.
©SHRM 2008
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