Employment Law Seminar The Dos and Don`ts of Pre

Transcription

9/19/2012
Welcome!
Employment Law Seminar
Presented by: Steptoe & Johnson LLP and AZilg
September 19, 2012
Co-sponsored by:
The Dos and Don’ts
of Pre-Hire Screening
Presented by: Elizabeth Call
September 19, 2012
© Copyright 2012 Steptoe & Johnson LLP
9/19/2012
Methods Used For Pre-Hire Screening
 Background Checks
 Credit Checks
 Tests
 Social Media, i.e., Facebook, LinkedIn, etc.
What’s The Big Deal?
 EEOC GC David Lopez announced focus on
discriminatory hiring practices.
 100+ pending EEOC charges alleging hiring
discrimination based on criminal background checks.
 Higher likelihood of class-based investigations or
claims.
– $3.13M settlement (1/12) after EEOC investigation
determined that Pepsi Beverages’ use of arrest and
conviction records disqualified black candidates at a
disproportionately higher rate than other candidates.
 Recent EEOC Enforcement Guidance on the
Consideration of Arrest and Conviction Records in
Employment Decisions (published April 25, 2012).
9/19/2012
Use of Background Checks
 86% of employers conduct criminal background checks during
application/hiring process.*
 Used to verify information in application/resume (education, prior
employment, references, prior convictions).
 May be required by contract or for security clearance.
*
SHRM Survey Findings: Background Checking – The Use of Criminal Background Checks in Hiring Decisions
(July 19, 2012).
Use of Background Checks
 Timing varies based on cost and need.
– Pre Offer for all or selected group; or
– Post-offer
– $50 to $150 depending on searches requested.
9/19/2012
Fair Credit Reporting Act Requirements
 Requirements for use of “consumer reports,” includes
criminal background checks and credit checks.
 Multiple obligations for employers at various stages of
the hiring process.
 Statutory damages of $100 to $1,000 per willful
violation.15 U.S.C.§1681n.
 Potential for class claims.
– Green Mountain Coffee Roasters Inc. (2012) Putative class
action accusing company of violating the FCRA by using
unauthorized consumer reports to reject candidates, i.e., invalid
disclosure and incorrect Summary of Rights form.
 Disclosure to the applicant must be:
– “[C]lear and conspicuous;”
– In writing; and
– In a document that consists solely of the disclosure.
15 U.S.C.§1681b(2)(A)(i).
– Written authorization of the applicant required.
15 U.S.C.§1681b(2)(A)(ii).
– Waiver language could invalidate the disclosure.
9/19/2012
 Pre-adverse action notice:
– Before taking the adverse action.
– Provide copy of background check with FCRA
Summary of Rights.
– Opportunity to dispute/correct incorrect
information.
– Provide reasonable period of time before
taking adverse action.
 Adverse action notice:
– Provide information about the consumer reporting
agency and the right to dispute the information.
Types of Criminal Records
 Arrest Records
 Conviction Records (misdemeanor or felony)
 National Databases,
i.e., Sex Offender Registry
9/19/2012
Laws Governing Use of Criminal Records
 Title VII
– EEOC Enforcement Guidance.
 State laws prohibiting discrimination based on an
applicant’s criminal record, i.e., New York Human
Rights Law.
 State and local laws regulating use of criminal records
in application process or employment.
– Restrict use of certain types of misdemeanor convictions.
– “Ban the Box” laws, i.e., MA, Philadelphia
• Some only for public positions or vendors doing business with the
public entity.
Arrest Records
 EEOC Enforcement Guidance cautions against use.
– Disparate impact on certain minority groups.
• Significantly higher arrest rates for African Americans and
Hispanics.
• Many arrests do not result in criminal charges or charges are
dismissed.
– May consider the conduct that led to arrest – not fact of arrest.
• Does the conduct make the individual unfit for position?
 Potential concerns with completeness and accuracy.
 Best Practice Avoid flat ban disqualifying applicants
with arrest records.
9/19/2012
Conviction Records
 EEOC Enforcement Guidance
– Arrest and incarceration rates high for African American and
Hispanic men.
– Permits defense of exclusion of applicants based on criminal
conduct where:
• Validation of the screening practice under the Uniform Guidelines
for Employee Selection Procedures; or,
• Use of a targeted screening process.
 Potential concerns with accuracy.
Conviction Records
 Targeted Screen or “Job Relatedness Test” –
Green v. Mo. Pac. R.R. Co. (8th Cir. 1975).
– Nature and gravity of the offense.
• Harm caused by the offense.
• Legal elements of the crime.
• Gravity, i.e., misdemeanor or felony.
– Time that has passed since the offense, conduct and/or
completion of the sentence.
• Consider time limits for certain types of convictions.
– Nature of the job sought.
• Evaluation of essential functions, circumstances under which job is
performed, and working environment.
9/19/2012
Conviction Records
 Individualized Assessment – NEW
– EEOC suggests appropriate in most circumstances.
– Not required if can identify “criminal conduct with a
demonstrably tight nexus to the position in question.”
 Requires an employer to solicit and consider
additional information.
– Give the applicant an opportunity to provide information on
conviction at issue, i.e., age at time of conviction, similar jobs
held since conviction.
Other Considerations For Use of
Conviction Records
 Offenses Upheld as “Related” To Positions.
– Theft or embezzlement for positions involving property of value,
i.e. money.
Richardson v. Hotel Corp. of Am (5th Cir. 1972)
– Moral turpitude or violence for positions involving unsupervised
contact with the public.
El v. Southeastern Pa. Transp. Auth. (3d Cir. 2007)
 Federal and state law prohibitions, i.e., licenses,
security clearances, certain industries.
– Per EEOC, compliance with federal laws/regulations is a
defense.
9/19/2012
Other Considerations For Use of
Conviction Records
 Some state and local
laws ban inquiries about
criminal history in
applications or during
the application process.
 Ban the Box Act – would
prevent employers from
asking about criminal
background until after
conditional job offer.
– Introduced July 2012.
– Exception for positions with
“unreasonable risk to the
safety of specific
individuals or to the general
public.”
– Mirrors similar state laws.
Best Practices For Use of Criminal Records
 Review policies/practices and
conduct training.
– Employment applications
– Screening policies/practices
– Adjudication process/handling
disqualifying information
9/19/2012
Best Practices For Use of Criminal Records
 Ensure policy provides:
– Method for screening based on Green factors (nature/gravity of
offense, time passed, job sought).
• Categorize types and ages of offenses that would make an applicant
unfit to perform the job sought.
– Individualized assessment, i.e., adjudication process, possibly
incorporate in FCRA pre-adverse action notice.
– Requirements for detailed documentation of disqualification
decisions.
Credit Reports
 EEOC continues to focus on credit checks.
– Potential adverse impact against females and minorities.
 Frank Dodd Amendments to FCRA (July 21, 2011)
– Notify applicant that obtained credit score and provide credit score,
with other required language.
 State laws
– California Assembly Bill No. 22 limits use of credit checks to specific
positions, i.e., managerial positions, positions that require access to
personal information, consumer bank accounts, confidential or
proprietary information or regular access to $10K or more of cash.
9/19/2012
Pre-Employment Tests
 Skills Tests
–
–
–
–
Communication skills
Reading, math or other technical skills
Personality traits
Physical fitness/agility
 Drug Tests
 Medical Exams
Pre-Employment Tests – Skills Tests
 Communication Skills
– Title VII
• Disqualification for “linguistic characteristics” could be
challenged as national origin discrimination.
• Example: Accent
– ADA
• Speech impediments may be due to a medical
condition, such as a hearing impairment.
• Accommodation requests
– English requirements depend on job duties and
work environment.
9/19/2012
Pre-Employment Tests – Other Skills Tests
 Cognitive Skills Tests
– Reading, Math, Technical Skills
 Personality Traits
 Physical Fitness/Agility
 Standardized versus Informal Tests
– Informal test during interview (verbal or written) – still a test.
 Skills tests are permissible – if satisfy Uniform
Guidelines on Employment Selection Procedures
(“UGESP”).
Pre-Employment Tests – Other Skills Tests
 EEOC and OFCCP adopted UGESP.
 Tests must be validated.
 Validation under the UGESP. 29 C.F.R.§1607 (1978)
– Different methods depending on test.
– Specific to the job at issue.
– UGESP does not address a validation method for personality
traits tests.
* Expert assistance recommended
9/19/2012
UGESP Validation Methods
 Criterion-related Validity
Study
– Selection procedure is
predictive of/significantly
correlated with important
elements of job performance.
– Identify skills predictive of
success, i.e., driving test.
 Construct Validity Study
– Measures characteristics
determined to be important in
successful performance, i.e.,
psychological evaluations for
law enforcement positions.
 Consider Adverse Impact
 Content Validity Study
– Monitor regularly
– Consider alternatives
– Content of selection
procedure is predicative of
important aspects of
performance on the job
– Incorporate key skills
requirements of the job, i.e.,
writing computer code.
UGESP Validation Methods
 Validity must be documented.
 Reasonable cut-off scores
 Periodic review of validation– particularly if job duties
change.
 Be cautious of sweeping validation studies, i.e.,
for a class of jobs across industries.
– Validation must be specific to your job.
 If adverse impact, consider alternatives and/or
re-evaluate validation.
– Obligation to monitor for impact.
9/19/2012
Pre-Employment Tests - Drug Screens
 Tests for current use of illegal drugs are not considered a
medical exam under the Americans with Disabilities Act (ADA)*.
– OK to drug screen applicants.
– If test reveals a lawfully prescribed drug, treat as confidential medical
record.
– Caveat: Cannot screen for protected disabilities, i.e., alcoholism and
past drug addiction.
* Alcohol testing is considered a medical examination under the ADA, with limited exception
for transportation employees governed by the DOT.
Other Considerations Relating To Drug Screens
 State laws governing drug tests.
– A.R.S. §23-493 et seq.
 State laws legalizing use of medical marijuana, i.e.,
the Arizona Medical Marijuana Act.
9/19/2012
Pre-Employment Tests –
What Is A Medical Exam?
 Medical examinations include:
– Vision tests conducted/analyzed by a specialist;
– Blood, urine, and breath analyses to check for alcohol use;
– Blood, urine, saliva, and hair analyses to detect disease or genetic
markers;
– Blood pressure screening and cholesterol testing;
– Nerve conduction tests;
– Range-of-motion tests;
– Pulmonary function tests;
– Psychological tests; and,
– Diagnostic procedures, i.e., x-rays.
Pre-Employment Tests –
What Is Not A Medical Exam?
 Tests generally not considered to be medical examinations:
– Tests for current illegal use of drugs;
– Physical agility tests;
– Physical fitness tests;
– Tests that evaluate an employee's ability to read labels or
distinguish objects as part of a demonstration of the ability to
perform actual job functions;
– Psychological tests that measure personality traits such as
honesty, preferences, and habits; and,
– Polygraph examinations.
9/19/2012
ADA Considerations With Medical Exams
 Administer pre-employment medical exams after
conditional offer but prior to employment.
 Provide to all entering employees in the same job
category.
 Maintain all information confidentially.
ADA Considerations With Medical Exams
 Disqualifying criteria must be job related and
consistent with business necessity.
– Medical condition would impair ability to perform essential
functions of the job; or,
– Direct threat concern.
 Also, individual could not have performed the job with
or without an accommodation.
9/19/2012
Use of Social Media To Screen Applicants
 Pros:
– Ease of use, accessible and free
– Assess character of applicant.
 Cons:
– Exposure to potential discrimination claims under federal, state
and local laws, i.e., race, national origin, sex (pregnancy),
religion, etc.
– Also, potential violation of state laws protecting conduct outside
of the workplace, i.e., smoking.
– TMI!
Use of Social Media To Screen Applicants
 State laws banning employers from requesting
passwords from social media accounts from
employees/job applicants.
– Illinois
– Maryland
* Legislation proposed at federal level.
9/19/2012
Considerations For Use of Social Media
To Screen Applicants
 Limit use to a specified group of employees, with
appropriate training – not decision-makers.
 Ensure disqualification is based on required/preferred
qualifications of the job.
 Limit access to information obtained and maintain
EEO and medical information confidentially.
 Consider clarifying information with applicant before
finalizing decision.
 Document business justification for disqualification.
Why I Sue You
Presented by: Tod Schleier
September 19, 2012
9/19/2012
BEHIND ENEMY LINES
Employment Litigation Explosion
 The Art of Case Selection
 Cases That Win
 HR Mistakes

9/19/2012
CASE SELECTION

The Plaintiff Must Be Liked
 The Human Element
 The Revenge Factor
9/19/2012
CLIENTS TO AVOID
The “W” Factor
9/19/2012
9/19/2012
9/19/2012
THE GOOD CASE
Fairness
Employee History
Similarly-Situated Employees
Employee Terminated?
EEOC Cause Finding
CASE FAVORITES
Whistleblowers/Retaliation
Sexual Harassment
Discrimination
9/19/2012
REPEATED HR BLUNDERS
Lack of Documentation
Failure to Review Decision
Spoliation of Evidence
ARBITRATION/MEDIATION
PANEL
Presented by: Carol Blackman
September 19, 2012
9/19/2012
EEOC MEDIATION
PROGRAM OVERVIEW
CORE ELEMENTS





Voluntary
Confidential
Neutral Facilitation
Enforceable Settlement Agreements
Universal Agreement to Mediate
9/19/2012
CONFIDENTIALITY
Confidentiality Agreements
 Mediator Agreements
 Mediator Notes Destroyed
 Evidentiary Documents Destroyed or
Returned to Owner
 Not Subject to
FREEDOM OF INFORMATION ACT (FOIA)

CONFIDENTIALITY - EEOC






THE FIREWALL
MEDIATION
ENFORCEMENT
Isolated Mediation Unit
Mediators do not Investigate and Vice Versa,
Investigators do not Mediate
Data Does Not Flow Between Units
Separate, Isolated Files
9/19/2012
TYPES OF CHARGES
MEDIATED


Priority Charge Handling – a triage
system
ALL A2 AND B CHARGES ELIGIBLE
FOR MEDIATION
CHARGES NOT ELIGIBLE
FOR MEDIATION



“C” CHARGES
“A1 CHARGES
CLASS, SYSTEMIC AND EQUAL PAY ACT
(EPA) CHARGES
9/19/2012
WHO MEDIATES CHARGES




Staff mediators
Contract Mediators
Pro Bono Mediators
ALL MEDIATORS ARE FULLY TRAINED
AND QUALIFIED TO RESOLVE ISSUES
MEDIATION CONFERENCE


Conducted in Neutral Location
Opens in Joint Session :





Process, Roles and Program Explained
Ground Rules Established
Miscellaneous-Housekeeping Issues
Allows for Individual Caucuses
Ends in Joint Session
9/19/2012
STATISTICS- FISCAL 2011
NATIONAL
Mediated
PHOENIX
DISTRICT
OFFICE
PHOENIX
OFFICE
13,043
945
464
Settled
9,839
750
362
Success
Rate
75%
Process
Time
181 DAYS
79%
159 DAYS
Arbitration vs. Litigation
Presented by: Lawrence Katz
September 19, 2012
78%
137 DAYS
9/19/2012
Advantages of Arbitration (Employer’s View)
 Choice of judge
 Speed to hearing and to decision
 Cost
 No jury
 No strict rules of evidence, procedure
 Limited discovery
 Limited appeal rights
 No class actions (if….)
Disadvantages of Arbitration (Employer’s View)
 Flip side of certain “advantages”
 Hearsay, opinion, foundation
 Compromise by arbitrator
 Arbitrators selected from limited list
 Arbitrator’s experience with employment issues
 Unlikely motion to dismiss or for summary judgment
 Unlikely to obtain or enforce injunction
 Fee awards more likely to employees than employers
 Lack of precedent
 Low cost, easy access for employees
9/19/2012
Unions Can Waive Employees’ Access to Court
 U.S. Supreme Court holding in 14 Penn Plaza (2009)
 Unions and employers can agree on mandatory arbitration of all claims
 CBA waiver of court access must be “clear and unmistakable”
 Waiver possible because court is procedural, not substantive, right
 Arbitration clause must state which statutory claims are covered
NLRB Deferral to Arbitration Under CBA
 Collyer doctrine: deferral of jurisdiction; recently amended
 Board concedes arbitrators can interpret labor contracts
 Federal public policy favors arbitration
 No deferral if preconditions harsh, employee disadvantaged
 Arbitration must be done within a year, NLRB reviews every 90 days
 Statutory issue must be clearly presented to arbitrator
 NLRA principles must be correctly applied
 Arbitrator’s decision must be consistent with NLRA
9/19/2012
NLRB Deferral to Private Settlements
 Reviewed for reasonableness
 NLRB will consider employer’s past violations, evidence of coercion
 Employee cannot waive future rights
 Employee cannot waive right to assist other employees
 Employee cannot be required to keep settlement terms confidential
 Employee can be required to keep money received confidential
 Employee can waive right to seek re-employment
 Defamatory statements can be prohibited
 Penalties for breach cannot be unduly harsh
NLRB Decision in D. R. Horton Case (2012)
 Employer’s arbitration agreement covered “all claims”
– No CBA involved
 Arbitrator could not hear consolidated claims; no class relief
 Employees waived right to file lawsuits
 NLRB: agreement violated employees’ Section 7 rights
– Concerted activity for mutual aid and protection
 Right to act collectively cannot be waived
 Even voluntary waiver, or right to rescind, does not save agreement
 OK to limit arbitration to individual claims if collective forum available
 NLRB holding applies only to employees covered by NLRA
9/19/2012
Mandatory Arbitration Clause Must Be Reasonable
 In absence of CBA, courts look to reasonableness of provision
 Employee must be aware of specific statutory rights being waived
 Arbitration must offer employee full range of statutory remedies
 Requiring employee to risk payment of costs and fees invalidates clause
 OK to refuse to hire employee who won’t sign lawful clause
 Refusal is not result of protected activity or unlawful retaliation
Mandatory Arbitration Clause Rejected Where:
 Agreement in long handbook, not brought to employee’s attention
 Handbook stated it was “not a contract”
 Handbook not contract because employer could freely amend
 Employee did not specifically agree to arbitrate statutory claims
 Rules not provided to employee
 Employees forced to waive access to NLRB, EEOC
9/19/2012
A SKEPTIC’S GUIDE TO MENTORING
EMPLOYMENT LAW SEMINAR
SEPTEMBER 2012
Chris De Santis
www.cpdesantis.com
[email protected]
Guidance

At points in our lives we
have sought the advice of
others who willingly
listened and helped us.
9/19/2012
A Protégé or Mentor's Concern

It sometimes difficult to
build and maintain a
mentoring relationship.
Potential Sources of Derailment






Different innate preferences in how information is
exchanged and processed.
Different perspectives relative to gender affiliation.
Different interpretations of values through a
generational lens.
Deficiencies in Emotional Intelligence (EQ).
Different cultural norms and trajectory requirements.
Different expectations of the mentoring relationship.
9/19/2012
Culture and Trajectory:
its relevance to “the benefit of the doubt” and traction.
Professional Services Firms
 Independent
 Autonomous
 Self Reliant
 Minimization of Bureaucracy
 Steeper trajectory
Culture and Trajectory:
its relevance to “the benefit of the doubt” and traction.
Corporations
 Interdependent
 Longer Trajectory
 Comfort with Structure
 Clearer work process measurements.
9/19/2012
So what is the Real Obstacle?
So what is the Real Obstacle?
Heterophily vs Homophily
•The degree to which two or more individuals are
different in certain attributes verses the degree they
are similar.
9/19/2012
A Boomer's Lens: Reflections on a Mentor







In retrospect, is there someone you would have
considered a mentor?
Was the person’s gender the same as your own?
Was the person’s race or ethnicity the same as
your own?
Did you frequently work together?
Did you have things in common from the get go?
Was this person “assigned” to advise you?
When you started the relationship did you tell this
person you wanted him/her to be your mentor?
Why finding commonality is so hard
Rider (intellectual self)
 Elephant (emotional self)
 The Path Forward

9/19/2012
How to Overcome the Obstacle
Find
Commonality
With regard to Protégés:
What are they looking for in
regard to help, if any, from
another?

9/19/2012
Matching Expectations:
Wants = Willingness
Career Development
 Coaching
 Sponsorship
 Challenging
Assignments
 Protecting
 Fostering Visibility
Psychosocial
support
 Personal support
 Friendship
 Acceptance
 Counseling
 Role-Modeling
Possible Roles





Mentor – nurturing a life/career
Counselor – resolving a situation
Coach – teaching a skill
Sounding Board - empathetic listener
Role Model – teaching by being
9/19/2012
Building a relationship:
Finding Commonality, part one


What do I want?
What do others want to give me?
Building a relationship:
Finding Commonality, part two.



How do I see myself?
How do others see me?
How do I see others?
9/19/2012
Query
Words that describe you at (or in a):
Work
Home
Play
How do I see myself?
Protege Gradients of Self Identity and Context Fluidity
Self identity answers
the question:
Who am I?
I Am Unique
to
I identify with one or
more groups
9/19/2012
Protege's Possible Perspectives
“I as a protege am
unique and I don’t see
myself as part of some
group.”
“I as a protege see my
self identity from any
number of perspectives
and am willing to
explore how I am seen
by others.”
How are others willing or able to see me?
Mentor gradients of comfort with differences
Explorations of
differences range from:
I am uncomfortable with
anyone or anything too
different than me
to
I will explore & embrace
any and all differences
9/19/2012
Mentor's Possible Perspectives
“I as a mentor, I see
relationships and situations
have context relative to how
you are seen and it is
important to understand and
discuss those perceived
differences.”
“I as a mentor don’t want to
venture into areas where I
am uncomfortable even if it
may be an issue.”
“I as a mentor enjoy learning
and exploring differences
regardless of your
acknowledging them.”
Bridging the Perceptual Gap:
Acknowledgement Overlap and The Case for Training Protégés
9/19/2012
Bridging the Perceptual Gap:
From no overlap to Engagement





Engagement works best when both parties agree on being open to
differences but it is at the protege’s discretion to embrace it.
Engagement requires an open and honest dialogue so both parties
stay within their comfort range.
Greater openness in the relationship is appropriate when
differences are perceived as a limiting factor by either party.
Remember we are dealing with a potentially charged issue and
therefore, the path may need to be more circuitous.
Give the other a reason to embrace the difference, start with where
the “other” is most comfortable.
Best Practices for Protégés :
What to Teach to Build a relationships
Proteges
 Show Initiative
 Set Goals
 Display Worthiness
 Be Receptive and Appreciative
 Accept Good Intentions
 Educate rather than Lecture
9/19/2012
Best Practices for Mentors:
What Mentors need to know about building trusting relationships
Mentors
 Teachers
 Models
 Confidence Builders
 Provider of a Safe Environment
 Accepting of Different Perspectives
Mentoring Life Cycle:
Four Phases
Preparation
Negotiation
Enabling
Trust
Coming to
Closure
Time
9/19/2012
Preparation: before and during
Before Meeting
Learn about the
other
Decide what you
willing and able to
commit
Expect hesitancy

During Meeting/s
Ask Questions/Listen
Allow for Social
Moment/s
Employ your EQ
Establish Ground rules
and Boundaries

Social Moment Suggestions
Share limited information about yourself both
personal and professional within reason.
 80/20 rule, 80% of the asking, 20% of the telling.
 Ask about his/or her life and experiences.
 Why this career?
 How does he or she feel about having an assigned
Mentor (if relevant)?
 What is he or she are working on?
 Others?

9/19/2012
When all else Fails



Talk to someone about the situation
Decide what you want: recommit or end
relationship amicably
Reflect on what didn’t work and step up to the
plate again.
The Path Forward




First decide what you want and what you are willing to do to
achieve it. Be specific and name the issue/s. This is a campaign
not an event.
Next decide who is most likely able and willing to help you then
engage the person on his or her terms. It’s a journey and the first
step is our “hidden want”,to be liked.
The safest place to start is talking about the work. Engage in
implicit reciprocity. Be interested, attentive and grateful and one
day that person will return the favor.
Keep in mind you are both building new habits and new habits
take time. Create cues and rewards that are mutually beneficial
and that move the relationship forward.
9/19/2012
Thanks for Listening
Chris De Santis www.cpdesantis.com [email protected]

















Readings and References:
The Elements of Mentoring –Brad Johnson and Charles R. Ridley
Mentoring and Diversity – David Clutterbuck and Bell Rose Ragins
Fierce Conversations – Susan Scott
Mentoring Millenials – Daniel Egeler
Coaching and Mentoring – Harvard Business Essentials
Visible Invisibility - American Bar Association
Emotional Intelligence - Daniel Goleman
Creating a Mentoring Culture - Lois J. Zachary
Switch - Dan and Chip Heath
Transitions - William Bridges
Organizational Culture and Leadership - Edgar H. Schein
Women and Leadership - Kellerman and Rhode
Generations - Howe and Strauss
The Power of Habits-Dunigg
Delusions of Gender -Fine
The Power of Habits
Recent Trends In Enforcement &
Challenges with the ADA and ADAAA
Presented by: Stephanie Quincy
September 19, 2012
9/19/2012
Overview
 Elements of an ADA claim
 Increase in class action claims brought by the EEOC
 Increase in the number of ADA cases filed
 Increase in the number of “non-visible” disability claims
 Increased focus on company leave policies
 Obesity as a disability
 Last Chance Agreements
 Reassignment to vacancies
 Conclusion: How should H.R. personal respond to recent
ADA trends
The Americans with Disabilities Act (ADA)
 Prohibits discrimination against qualified individuals
with a disability
– Must be able to do the essential functions of the job with or
without accommodation
 Requires employers to provide reasonable
accommodations to qualified employees and
applicants with disabilities
9/19/2012
Elements Needed To Prove An ADA Violation
 What is a disability?
– Physical or mental impairment that substantially limits one or
more major life activities
– A record of such impairment or
– Being regarded as having such an impairment
Increase In EEOC Enforcement Actions
 In 2008 Congress enacted the Americans with Disabilities Act
Amendments Act (ADAAA)
 ADAAA expanded who is considered disabled under the ADA
– Prior to the ADAAA the Supreme Court had said an individual was not
disabled under the ADA if measures could be taken to mitigate the
individual’s impairment (Ex: hearing aids, prosthetic devices,
eyeglass)
• ADAAA says mitigating measures can not be taken into account in
determining if someone is disabled
– ADAAA specifically says “disability should be broadly interpreted in
favor of wide-ranging coverage for individuals”
– Expanded what is considered “major life activities”
– Expanded category of “regarded as” having a disability
9/19/2012
ADAAA
 Broadens the considerations for analyzing what
impairment “substantially limits”:
– An impairment that is episodic or in remission is a “disability” if
it meets the standard when active.
– Conditions lasting less than six months may be included.
Elements Needed To Prove An ADA Violation
 Discrimination can be in regard to:
–
–
–
–
–
–
–
Job application procedures
Hiring
Advancement
Discharge
Compensation
Job training
Other terms, conditions, and privileges of employment such as
leave and treatment of absences
9/19/2012
Arizona EEOC Filings – ADA Filings
FY 2009
FY 2010
FY 2011
TOTAL
CHARGES
Arizona
2,178
2,486
2,854
% of US total
charges
2.3%
2.5%
2.9%
Disability
555
701
888
% of US
Disability
charges
2.6%
2.8%
3.4%
% of total state
charges
25.5%
28.2%
31.1%
Increase In Agency Filed “Class” Actions
 2006 the EEOC launched its “Systemic
Initiative” - the EEOC should emphasize
“the identification, investigation, and
litigation of discrimination claims
affecting large groups of alleged
victims.”
 2011 the EEOC filed the largest number of
class actions since the 2006 initiative was
launched:
– Out of 261 lawsuits filed by the EEOC in FY 2011,
90 were class actions.
9/19/2012
Increase In Class Action Cases
 Trend will continue
– EEOC’s FY 2011 Report stated “based on the large volume of
systemic charges currently in investigation, the quantity of their
representation on the total docket is expected to steadily
increase”
– EEOC Strategic plan covering 2012-2016 indicates the EEOC
will continue to rely heavily on “class” actions
Increase In Class Action Cases
 Effect on companies  large amounts to
defend and or settle ADA claims
– In 2010 the average settlement of a class action suit
cost $6.7 Million
– In 2011 the average cost jumped to $9.6 Million
9/19/2012
Increase In ADA Claims
 Since the passage of the ADAAA there has been a
significant increase in the number of disability claims
filed with the EEOC:
– FY 200717,734 charges
– FY 2011 25,282 charges
 Effects of the increase:
– Number of settlements between the EEOC and Employers
have increased
• FY 20072037 settlements
• FY 2011 2597 settlements
– Amount of damages for EEOC violations has nearly doubled
• FY 2007$54.4 Million
• FY 2011$103.4 Million
9/19/2012
 At the same time the number of cases in which the
EEOC found no reasonable cause for an ADA claim
has increased significantly
– FY 2007 8968 cases
– FY 201115182 cases
Increase In Successful EEOC Charges Based
On Mental Disabilities
 Post Traumatic Stress Disorder
– FY 2007 35
– FY 2011 110
 Manic Depressive Disorder
– FY 2007 122
– FY 2011 200
9/19/2012
Increase In Successful Claims Based On Mental
Disabilities
 Anxiety Disorder
– FY 2007 80
– FY 2011 265
 Depression
– FY 2007 215
– FY 2011 384
EEOC Attention
 EEOC is paying more attention and giving more
resources to ADA case.
 EEOC is particularly interested in mental disabilities.
 Treat such situations and EEOC charges with
caution.
9/19/2012
Particular ADA Challenges
 ADA related Leave/Absence Issues
 Work from Home
 Obesity
 Last Chance Agreements
 Reassignment of Disabled Employees to Vacant
Positions
Leave Policy Issues
 It used to be the rule in employment policies to treat
all employees equally, thus assuring no one would be
discriminated against for their race, sex, age or
national origin.
 Leave policies were written this way.
 Many supervisors believe once FMLA is exhausted,
no more leave is required.
9/19/2012
Leave Policy Issues
 Cases framed in terms of individualized assessment
and reasonable accommodation:
– ADA requires employers to make “reasonable accommodations
to the work environment to remove barriers to employment for
an otherwise qualified individual with a disability.”
– Reasonable accommodation is any accommodation that does
not “impose significant difficulty or expense upon the
employer.”
Leave Policy Issues: Exhaustion of Medical Leave
 In recent years the EEOC has brought a number of
cases based on exhaustion of leave:
– August 2010, EEOC sued Princeton Health Care over a policy
which the EEOC claims stated that if an employee was
ineligible for leave under the FMLA they would be terminated if
they could not return to work after seven consecutive calendar
days. For employees who were FMLA eligible, they were given
only 12 weeks of leave and fired when they did not return after
the 12 weeks.
9/19/2012
cases based on exhaustion of leave
– January 2011, the EEOC filed suit against after a company
fired an employee with cancer who used up his 26 weeks of
leave under defendant’s short term disability policy without
consideration of whether additional leave could be offered as
an accommodation.
9/19/2012
– May 2011: The EEOC sued Act Teleconferencing Services
after it refused to extend the leave of an employee seriously
injured in an auto accident by one month and subsequently
fired her.
 EEOC rational for these lawsuits:
– The employer treated all workers the same regardless of
whether or not they had a disability under the ADA
• Employers thus failed to grand ADA protected workers reasonable
accommodations when warranted.
• Failed to conduct individualized assessments into each employee’s
unique situation.
9/19/2012
Leave Policy Exhaustion of Medical Leave
 Some of these claims have cost companies millions
of dollars:
– September 2009: Sears settles a class action claim for $6.2 million
– June 2011: Denny’s settled a class action suit for $1.2 million
– January 2011, Jewel-Osco settled for $3.2 million
EEOC v. Sears
 In EEOC v. Sears, Roebuck and Co. the EEOC
alleged that Sears violated the ADA by having a rigid
worker’s compensation leave policy which
automatically fired employees at the end of one year
of leave without considering reasonable
accommodations for disabled employees such as an
extension of the leave or return to work in an available
position for which the employee was qualified with or
without an accommodation.
9/19/2012
EEOC v. Sears
 A 3-year consent decree:
– $6.2 million settlement fund to be distributed by EEOC in accordance
with criteria set out in the decree;
– Enjoins defendant from discriminating on the basis of disability by not
providing reasonable accommodations to individuals desiring to return
to work from worker’s compensation leaves of absence; and prohibits
retaliation; and,
– During the decree, Sears will maintain a record of its attempts to
accommodate employees who have been on a leave of absence due
to a worker’s compensation injury and will report to EEOC every 6
months on the accommodation efforts it has made.
EEOC v. Denny’s
 According to the EEOC, the company prohibited the
manager from working in its restaurants because of
her disability (a leg amputation), despite her desire to
return to work, and then fired her because of her
disability.
 The EEOC also claimed that Denny’s maintained a
maximum medical leave policy that automatically
denied workers any additional medical leave beyond a
predetermined limit, even when additional leave was
required by the ADA as a reasonable accommodation,
which resulted in the unlawful termination of a class of
workers.
9/19/2012
EEOC v. Jewel-Osco
 According to the EEOC’s suit, Jewel-Osco refused to
allow qualified employees with disabilities who are on
authorized disability leave, or who are eligible for it, to
return to work if they have any work restrictions, and
terminated them if they reach the one-year mark on
leave.
 The EEOC also charges that the company has
refused to allow qualified employees with disabilities
to be assigned to temporary light duty jobs unless
they were injured on the job.
EEOC v. Jewel-Osco
 The settlement provides for a fund in which 110
individuals will share, bringing the average award to
approximately $29,000 per claimant.
 In addition to the monetary relief, Jewel-Osco is
required to ensure that its employees involved in
making accommodation decisions undergo training on
the requirements of the ADA and on the types of
accommodations that are available to return their
employees to the workplace.
9/19/2012
EEOC v. Jewel-Osco
 Jewel-Osco also agreed to hire consultants to review and
recommend changes to its current job descriptions, ensure that
the descriptions of the physical requirements of the job are
accurate and provide recommendations on possible
accommodations to common work restrictions in various
positions in the stores.
 The company will have to report regularly to the EEOC on its
efforts to accommodate employees with disabilities who are
attempting to return from medical leaves of absence.
 Jewel-Osco will revise its communications with such employees
to assure them that they need not be 100% healed in order to be
considered for a return to work, and to inform them of some of
the types of accommodations that may be available to them if
they are considering returning to work with medical restrictions.
EEOC v. Jewel-Osco
 Quote from EEOC Regional Attorney
“
It is vital that employers understand that the primary goal of the
ADA is to allow people with disabilities to be active and productive
members of the work force, sending them home, with reduced or
no pay, and without the ability to advance, thwarts that purpose. I
am concerned that some employers believe that keeping an
employee who is able to work off the job and on a leave of absence
is a reasonable accommodation relieving them of further
“
obligations under the ADA. Such a belief could lead to costly
mistakes.
9/19/2012
EEOC Settlements of ADA Lawsuits
 Non-class action settlements have cost firms tens of
thousands and hundreds of thousands:
– Journal Disposition settled claim for $55,000
– Jan 2010, Saks Fifth Avenue settled a claim for $170,000
– May 2011, ACT Teleconferencing Services settled a claim for
$40,000
– June 2012, United Road Towing settled a claim for $380,000
 Other settlement requirements
– Companies required to revise there non-discrimination policies
– Provide training regarding the ADA to supervisors and HR
personnel
– Regularly report to EEOC on ADA claims and handling of them
Leave Policy: No Fault Attendance Policies
 No-fault attendance policies attendance policies that
allow a certain number of unexcused absences
without any documentation and then penalize
employees who are absent more than allowed
 Great for HR – because do no have to monitor the
reason for every absence.
 But still must ensure that it does not charge, and then
discipline, an employee for absences that are covered
by the Family and Medical Leave Act (FMLA) or
caused by conditions covered by the ADA.
9/19/2012
 Two Major cases within the past year
– July 2011, Verizon settled a no fault attendance policy suit with
the EEOC:
• EEOC sued Verizon in a class action for disciplining/firing hundreds
of employees with disabilities for exceeding the number of no fault
days off.
• The EEOC asserted that Verizon failed to provide reasonable
accommodations for people with disabilities, such as making an
exception to its attendance plans for individuals whose “chargeable
absences” were caused by their disabilities. Instead, the EEOC
said, the company disciplined or terminated employees who needed
such accommodations.
– July 2011, Verizon settled a no fault attendance policy suit with
the EEOC
• Verizon settled for $20 million
9/19/2012
– March 2012 the EEOC filed suit against ATT
• Complainant was fired after using up her leave of absence under
ATT no-fault attendance policy for treatment for Hepatitis C.
• The EEOC claimed ATT’s actions violated the ADA by failing to
provide the complainant with a reasonable accommodation by
exempting her leave of absence from its policy.
Commute Related Activities
 2010 Colwell v. Rite Aid Corp, 602 F.3d 495 (3d Cir. 2010)
– Under certain circumstances the ADA can obligate an employer to
accommodate an employee's disability-related difficulties in getting to
work, if reasonable.
• Individual who was blind in one eye was unable to drive at night to work the
night shift. The Court held that the employer had to accommodate her by
allowing her to work the day shift.
 2011 Nixon-Tinkelman v. N.Y. City Dep't of Health & Mental
Hygiene, Case No. 10-cv-3317 (2d Cir. Aug. 10, 2011)
– Court held “there is nothing inherently unreasonable . . . in requiring
an employer to furnish an otherwise qualified disabled employee with
assistance related to her ability to get to work.“
 Takeaway: Employers must be aware that they may have to
accommodate employees not only at work, but also in
situations outside of work related to employment
9/19/2012
Obesity
 The EEOC definition of “impairment,” is “[a]ny
physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or
more systems, such as neurological, musculoskeletal,
spatial sense organs, respiratory (including speech
organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hermetic,
lymphatic, skin, and endocrine.”
Obesity
 Before the ADAAA passed, the EEOC took the
position that severe or morbid obesity was an
impairment but that obesity rarely is.
 The EEOC removed the language that obesity is
rarely an impairment from the 2011 version of its
Compliance Manual.
9/19/2012
Last Chance Agreements
 They are a dangerous idea from a legal perspective:
1. Open up “regarded as” claims.
2. Appear as though they are treating an employee differently
based on disability. It is illegal to discriminate against an
employee with a disability if that disability has not impacted
his or her job.
 They are generally NOT advisable. It is far better to
discipline the employee and refer them to an third
party Employee Assistance Program and avoid getting
involved in the employee’s personal life and
treatment.
But . . . . When you have a manager
who insists on doing one, and you
have tried to talk them out of it to no
avail . . . . .
9/19/2012
 The employee must be at the point where the LCA is
in lieu of termination. The employee committed onthe-job misconduct or otherwise has performed in an
unsatisfactory manner that other employees have
been terminated for and this is well documented.
 This really has to be work related – not someone
seeing an alcoholic employee at a bar. Courts that
have upheld LCAs have heavily relied on the premise
that the employee would have been justifiably fired
were it not for the LCA.
 Who is going to pay for the rehabilitation
program? You should also check with the
benefits department to see if the company's
health insurance covers substance abuse
rehabilitation and if the employee is on your
plan.
9/19/2012
 Be ready for the employee to deny there is a
problem and refuse the LCA – at which point
the employer must end the employee’s
employment.
 The LCA also should include a provision that gives the company
the ability to monitor the employee's attendance and satisfactory
completion of the rehabilitation program.
 If regular testing is going to be required, it must be specifically
stated in the document.
 Some companies (managers) really want to do get additional
information. We suggest avoiding getting information other than
attendance at counseling, a rehab program, etc. , unless there is
a substantial reason to do it such as a safety concern. Even if
such information is obtained, it is wise to hold the employee
strictly accountable for job related performance and guard who
has access to the information.
9/19/2012
 The LCA must contain a statement that the LCA does
not alter the employee's at will status as this is a
contract.
Reassignment to Vacancies
 In June 2009, the EEOC filed a lawsuit in the Northern
District of California based on a number of
discrimination charges filed by United employees
located in San Francisco and Chicago.
 United moved for a change of venue to the Northern
District of Illinois, where an earlier Seventh Circuit
case, EEOC v. Humiston Keeling, 227 F.3d 1024 (7th
Cir. 2000), had already held that a competitive transfer
policy did not violate the ADA.
 In February 2011, the lower court, bound by this
precedent, dismissed the EEOC's case against
United.
9/19/2012
Reassignment to Vacant Positions
 On appeal, however, the Seventh Circuit agreed with
the EEOC that Humiston Keeling "did not survive" an
intervening Supreme Court decision, U.S. Airways v.
Barnett, 535 U.S. 391 (2002).
 The Court of Appeals held that “the ADA does indeed
mandate that an employer appoint employees with
disabilities to vacant positions for which they are
qualified, provided that such accommodations would
be ordinarily reasonable and would not present an
undue hardship to the employer.”
 With its decision, the Seventh Circuit joins the DC and
Tenth Circuits.
Recent Settlements
 Examples continued:
– A Colorado Hospital paid $95,000 to settle a discrimination
claim after it allegedly discriminated against an applicant with
fibromyalgia. After three interviews, an applicant was offered a
staff assistant position, but the offer was withdrawn following
her pre-employment medical examination. According to the
EEOC, the case illustrated the importance of basing
employment decisions on “facts, not fears or stereotypes.”
– A trucking company agreed to pay $50,000 for rejecting the
management application of a paraplegic individual. The
applicant held both a bachelor’s and master’s degree in
business, but after appearing for a job interview, was allegedly
told that he might not be able to keep up with the pace of the
company’s operations.
9/19/2012
May/June 2012 Settlements
 Examples continued:
– A utility company agreed to a payment of $49,500 to an
applicant for a front-end loader job after he was unable to pass
a post-offer U.S. Department of Transportation (DOT) physical.
Federal law, however, does not require heavy equipment
operators to pass a DOT physical and this applicant had been
seizure-free on medication for eight years. Additionally, he had
previously held front-end loader jobs, presumably without
incident.
– The EEOC determined that an individualized assessment
would have shown that the applicant did not pose safety risk to
himself or others
Conclusions
 Employers must be aware that they face a greater possibility of
being part of a “class” action suit.
 Employers must be aware that under the ADAA they may face
discrimination claims for activities/disabilities that were not
protected in the past
 What can employers do to protect themselves in this new
environment
– When a HR policy is in place, employers must examine whether
making a policy exception would allow a disabled individual to perform
the essential functions of the job.
– When examining whether an individual has a disability, employers
must do an individual evaluation of the disabled individuals
circumstances.
9/19/2012
Practical Tips:
 Train managers and supervisors on:
– Recognizing and responding to an accommodation request
and dealing with absences, including long absences
– Discipline and making sure HR is part of the process
– On policies prohibiting discrimination and retaliation policies
including as to leave
 Review job descriptions
 Reconsider denied accommodations
 Update handbooks, training materials and policies
 Penalize managers who do not follow these rules
Navigating the Employment
Maze of California
Presented by: Mark Neubauer
September 19, 2012
9/19/2012
California is the Elephant Which
Cannot Be Ignored
 9th largest economy of the world
– Los Angeles would rank 16th in the world
 1 of every 8.3333 Americans is a Californian
 California is the largest port of export/imports
 California uses Arizona’s Colorado water
 California voted Democratic in the last 5 elections
California Employment Marches to the
Beat of a Different Drum
Wage Type
United States
California
Minimum Wage
$7.25 Per Hour
$8.00 per hour
($10.24 in San Francisco)
Overtime
40 Hours Per Week 8-12 hours per day at
1 and ½ over 12 hours
double-time and Sundays
Exempt from Overtime Primary Duty Test
1. Salary 2x Min. Wage
2. 50% duties are Exempt
WARN
75 FTE
100 FTE
9/19/2012
Strange and Unique California Rules
 Pay stubs requirements
 Payroll deduction prohibition
 13 different required absences
 Meal and rest periods
 Final pay deadlines
 Alternative work week approvals
 Computer technicians overtime
 Physician overtime
 Vacation use it or lose it
Strange and Unique California Rules
 Manager Liability
 Covenants Not-to-Compete
 Time Off to Vote
 Mandatory Sexual Harassment Training
 Leave For Bone Marrow/Organ Donations
 San Francisco Health and Transportation Allowances
 And More to Come…
9/19/2012
New California Laws
 Written Commission Agreements
 Notice of Payroll Details
 Additional Pregnancy Leave
 Penalty For Misclassification of Independent Contractors
 Gender Bias (Transsexuals)
 Bone Marrow/Organ Donation Leave
 Workers’ Compensation Notification
 Insurance for Same Sex Couples
Meal and Rest Period/Overtime Class Actions
 Class Actions
–
–
–
–
–
–
Penalties
Interest
Large Notice to Present/Past Employees
3-4 Years of Past Wages
Misclassification of Employees (Overtime)
Meal and Rest Breaks
• Brinker
– Provide, not insure meal/rest breaks
– But, is there a policy against it?
9/19/2012
Other Hot Areas of California Employment
 Cross Gender Discrimination
 Whistleblower
 Retaliation
 Social Media Issues
Brave New World of Social Media
 E-mail
 Facebook
 Twitter
 MySpace
 LinkedIn
 23% of time is spent on social media/blogs
9/19/2012
Social Media Issues
 Employee Right To Privacy
– Cal. Civil Code Section 96(k)
– Cal. Civil Code Section 98.6
• Employer’s Right to Employee Passcodes
• Employer’s Ability to Protect Employee Privacy, Freedom From
Harassment and Trade Secrets
• Employee’s Right to Criticize Supervisor
Moral of This Story
 California may be the land of fruits and nuts, but…
 As employer, you need to know its traps!
9/19/2012
Who’s Protected Now?
Robert Vaught and Lindsay Taylor
September 19, 2012
Protected Classes Under Title VII
 Title VII of the Civil Rights Act of 1964: Employers cannot fail or refuse to
hire or to discharge any individual, or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s:
– Race
– Color
– Religion
– Sex
– National Origin
 Recent expansion by:
– The Equal Employment Opportunity Commission
– Plaintiffs
– Courts
9/19/2012
New Areas
 Caregiver Discrimination
 Breastfeeding
 Gender Stereotyping
 Associational Discrimination
CAREGIVERS
9/19/2012
Caregivers
 “Caregivers” are not a protected class under Title VII
 Claims for caregiver discrimination (or “family responsibility
discrimination”) are on the rise
 Frequently tied to sex and pregnancy discrimination, but not
always
 A caregiver discrimination plaintiff does NOT need to be:
– Female
– Pregnant
– Caring for a child
Caregivers
 Family and Medical Leave Act
– Covered employers must provide eligible employees
with 12 workweeks of unpaid leave in a 12-month
period
– Qualifying reasons:
• Birth or adoption
• Family member’s serious health condition
• Own serious health condition
• Care for an injured service member
– Leave comes with reinstatement rights
– Retaliation
9/19/2012
Caregivers
 Some Interesting Numbers:
– In 2011, the oldest of the estimated 78 million “baby boomers”
turned 65
– Over 40 million people in the US are 65 or older
– By 2030, that number is estimated to reach 72 million
– Life expectancies for men and women continue to increase
– Approximately 17% of Americans with full-time jobs care for
friends or relatives who are not their children
– Over half of working caregivers are women
– Working fathers are spending more time providing childcare
 One Particularly Interesting Number:
– There was nearly a 400% increase in caregiver discrimination
suits filed between 1999 and 2008, over the previous decade
Caregivers
 Examples of caregiver discrimination:
– Treating male caregivers more favorably than female caregivers
– Treating male caregivers less favorably than female caregivers
– Sex-based stereotyping
• Reassigning a new mother to a less demanding job, assuming that
she will have less time or be less committed
• Reducing a male employee’s workload after he assumes care of
parent, assuming that he will not want to work overtime
• Reducing a female employee’s overtime based on the assumption
that she will want to spend more time with her baby
• Asking female applicants (but not male applicants) about childcare
arrangements or caregiving responsibilities
– Subjective decision making
9/19/2012
Caregivers
Why Should Employers Pay Attention?
Caregivers
 The EEOC is paying attention.
– 2007: “Enforcement Guide on Unlawful Disparate Treatment of
Workers with Caregiving Responsibilities”
– 2009: “Employer Best Practices for Workers with Caregiving
Responsibilities”
– February 15, 2012: The EEOC met with analysts and experts.
Conclusion:
• Caregiver discrimination has become a “widespread
problem”
• “The EEOC is committed to ensuring that job applicants and
employees are not subjected to unlawful discrimination
because of pregnancy or because of their efforts to balance
work with family responsibilities.”
9/19/2012
Caregivers
 Juries are paying attention.
– 400% increase in caregiving bias lawsuits in the past decade
– Employees prevail in almost half of the cases
– Verdicts and settlements in family responsibility discrimination cases average
over $500,000.
– Wrysinski v. Agilent Technologies, Inc.
• Employee claimed she was selected for layoff because she was pregnant
• Verdict amount: $5,224,273
– Lehman v. Kohl’s Department Store
• Employee with children claimed she was passed over for promotion
• Verdict amount: $2,100,100
– Fitzpatrick v. Hon Hai Precision Industry Co. Ltd.
• Male employee on leave to take care of foster child
• Verdict amount: $882,000
Caregivers
 Lawsuits continue:
– Beery v. Quest Diagnostics
• April 2, 2012
• $100 million class action filed by three female employees
• Plaintiff allegedly told she was denied promotion because position required
“too much travel and you have small kids”
• Plaintiffs were treated less favorably than:
– Men with children
– Women without children
– Barrett v. Forest Laboratories
• July 5, 2012
• $100 million class action filed by four female employees
• Plaintiff allegedly told that management preferred to promote women without
children
• Plaintiff allegedly denied job-share position
9/19/2012
Caregivers
 What Should Employers Do?
– Do not make assumptions about abilities or interests based on
caregiving responsibilities.
– Develop strong EEO, leave and FMLA policies and enforce
them on a consistent basis.
– Respond to complaints efficiently and effectively.
– Ensure job openings and promotions are communicated to all
eligible employees regardless of whether they have children or
other caregiving responsibilities.
– Focus on actual performance when making promotion,
compensation or other employment decisions.
– Provide training to supervisors on how to handle leave and
performance issues.
BREASTFEEDING
9/19/2012
Is Breastfeeding Bias Sex Discrimination?
 Pregnancy Discrimination Act
–“Pregnancy, childbirth, or related medical
conditions”
–Termination of pregnancy
–Sick leave policies
–Prescription plans that deny
coverage for oral contraceptives
–Lactation?
 EEOC v. Houston Funding (Tex. 2011)
– Employee returning from leave informed
employer she needed back room to pump milk
– Employer terminated employee moments after
request
– Holding: pregnancy and pregnancy-related
conditions end the day of child’s birth
– Currently on appeal to Fifth Circuit
9/19/2012
 EEOC’s position:
– Lactation is a sex-specific condition
• Violates Title VII to impose burden male employee
could never suffer
– Lactation is a pregnancy-related condition
• Any health status connected with or caused by
pregnancy or childbirth
 EEOC February 2012 Public Meeting
– Pregnancy and caregiver discrimination
– Push for clearer legal guidance
– Look for additional activity from EEOC on this
topic
 Recent Settlements
– $75,000 from dEliA*s
– $94,000 from Bellmont Village
9/19/2012
 Falk v. City of Glendale (Colo. 2012)
– 911 dispatcher denied breaks to pump milk
– Court said:
• Lactation natural consequence of pregnancy
• Expressing milk equivalent to other involuntary
functions
• Employee could show sex discrimination if
employer denied breaks to express milk, but
allowed breaks to use the restroom
 Other Applicable Laws
– Fair Labor Standards Act
• If 50+ employees, must provide “reasonable break
time” to express milk
• Must provide private space other than restroom
– State Laws
• California: all employers must provide reasonable
break time
• Hawaii and DC: illegal to discriminate against
employees for expressing milk in the workplace
9/19/2012
 What Should You Do?
– Know your local laws
– Develop a policy
– Train your managers/supervisors
– “Reasonable break times” vary depending on
the person
– Ensure privacy of areas for expressing milk
• Door with a lock
• Not a restroom
– Evaluate break requests using neutral criteria
ASSOCIATIONAL
DISCRIMINATION
9/19/2012
Associational Discrimination
 Traditional scope of Title VII
 Courts (and EEOC) growing more sensitive to
claims of discrimination based on associations
with protected classes.
 What kind of “association” is sufficient?
– Marriage
– Engagement
– Dating
– Parent-Child
9/19/2012
 Barrett v. Whirlpool Corp.
– Sixth Circuit
– Three Caucasian employees alleged they were discriminated against
because of their friendships with African-American co-workers
– Employer argued plaintiffs were not sufficiently “associated with” the
other employees, because they were not related or romantically
involved
– The court agreed with the plaintiffs
– The degree of association is irrelevant, as long as the plaintiff can
show:
• She was discriminated against at work
• Because she associated with members of a protected class
Associational Discrimination – Retaliation
 Title VII prohibits retaliation against employee engaged in protected
activity. But...
 Thompson v. North American Stainless, LP
– United States Supreme Court – 2011
– Plaintiff and fiancé both worked for employee
– Fiancé filed EEOC charge
– Plaintiff was terminated
– Plaintiff alleged termination was in retaliation for fiancé's EEOC charge
– Court agreed with Plaintiff
• Fiancé would have been dissuaded if she knew her fiancé would be fired
• “Close family member” vs. “mere acquaintance”
9/19/2012
 November 28, 2011: Roule v. Petraeus
– Discrimination based on national origin of plaintiff’s spouse
 May 21, 2012: Cortezano v. Salin Bank & Trust
– Immigration status is not a protected class
– Cannot bring associational discrimination based on alleged
harassment due to spouse’s immigration status
 August 27, 2012: EEOC v. WRS Infrastructure
– $2.75 million settlement
– 3-year consent decree prohibiting associational discrimination
and requiring training and reporting on harassment because of
racial association
– Training and Education
•
•
•
•
Manager training
Revise policies
Consistent enforcement
Stress anti-retaliation policies
– Investigate complaints
9/19/2012
GENDER STEREOTYPES
The Problem With Gender Stereotypes
 Title VII prohibits discrimination “because of
sex”
– Biological standing as a man or woman
– Failure to conform to gender stereotypes
 Price Waterhouse v. Hopkins
– Unlawful to deny promotion to
woman who was aggressive,
un-“feminine”
9/19/2012
 Title VII does not prohibit discrimination based
on sexual orientation
 Gender stereotyping may apply
 Prowel v. Wise Business Forms (3d Cir. 2009):
– Sexual harassment claim
– High voice, effeminate mannerisms
– Question for jury whether harassment based on
sex or sexual orientation
 Koren v. Ohio Bell Telephone Co. (Ohio 2012)
– Gay employee married, took husband’s name
– Supervisor and co-workers refused to use his new
last name
– Judge: taking last name traditionally female
9/19/2012
 Employment Non-Discrimination Act
– S. 811: would amend Title VII to include sexual orientation
 State and local laws
– California, Oregon, Washington, Colorado, New Mexico:
prohibit sexual orientation discrimination
 California Assembly Joint Resolution 43
– Urges federal government to include "sexual orientation and
gender identity“ in discrimination laws
 Gender stereotyping may protect transgender
individuals, too
 Transgender = individual who identifies with a gender
different from biological sex
9/19/2012
 Macy v. Holder (Ariz. 2012)
– EEOC decision out of Phoenix
– “When an employer discriminates against someone
because the person is transgender, the employer
has engaged in disparate treatment because of sex.”
– Look for increased EEOC activity on these issues
 Schroer v. Billington (D.C. 2008)
– Employer withdrew job offer after learning
applicant was transgender
– Judgment for plaintiff on sex discrimination claim
 Glenn v. Brumby (11th Cir. 2011)
– Employee discharged by state legislature after
making plans for reassignment
– Discrimination against transgender individuals
violates equal protection clause
9/19/2012
 Employment Non-Discrimination Act would
also prohibit discrimination based on “gender
identity” or “gender expression”
 State and local laws
– 16 states and DC prohibit gender identity/expression
discrimination.
–Training and Education
• Employee education
• Separate manager training
–Develop a plan for workplace transition
–Address practical concerns
• Restrooms
• Dress codes
–Individualized assessment is crucial

Employment Law Seminar The Dos and Don`ts of Pre

Transcription

Similar documents

Pennysaver Advertisement 1 - SENIOR LAW DAY Resource Site

Pennysaver Advertisement 2 - SENIOR LAW DAY Resource Site

snookie`s cookies

1 Tan Rallt Street, Machynlleth, Powys, SY20 8BE Asking Price

Please click here to the registration form

annual report

Executive Staff Settlement Housing Fund Settlement Housing Fund

Immobili di Prestigio Srl 00198 Rome, Via Po 37 +39 06 85305436

Case Study: Calzedonia Spa

Mark R. Somerstein (MS 9721) Benjamin L. Schneider (BS 2004