HARASSMENT & DISCRIMINATION IN THE WORKPLACE

Presented by: Pam S. Howland

Today’s Topics

1. Current issues in employment discrimination.

2. Current issues in the law of harassment.

3. How to prevent claims of discrimination and harassment.

Current Issues In Discrimination

Sexual Orientation

Pregnancy

Sexual Orientation

Gov. Batt: Just add the words.

ENDA Wins Support Of Senate Democrats’ Last Holdout

Law 360, New York (October 31, 2013, 3:53 PM ET) -- Sen. Joe Manchin, D-W. Va., intends to vote for the Employment Non-Discrimination Act, his office confirmed Thursday, meaning the proposed legislation outlawing discrimination against employees or job applicants based on their sexual orientation of gender identity now has the support of all 54 Senate Democrats.

Current Law On Discrimination

I.C. § 67-5909“It shall be a prohibited act to discriminate against a person because of, or on a basis of, race, color, religion, sex or national origin . . . and on the basis of age or disability . . . .”

Title VIIProhibits discrimination on the basis of race, color, religion, sex, and national origin.

Boise City Anti-Discrimination Ordinance

Enacted in 2013. Passed for other cities: Coeur

d’Alene, Ketchum, Moscow, Pocatello, Sandpoint, Idaho Falls.

See handouts.

History

MaryAnne Jordan: send message that discrimination is not allowed in Boise.

Remove threat of termination if gender identity or sexual orientation disclosed.

What It Accomplishes

Prohibits discrimination on basis of gender identity and sexual orientation in matters of employment, housing, and places of public accommodation.

Violation

Violation is a criminal misdemeanor punishable by a fine of up to $1,000 and/or up to six months in jail.

No Private Right Of Action

There is no private right of action created by this chapter or money damages available.

Purpose

City Attorney’s office drafted to protect identity of complaining parties and persons against whom allegations are made.

Modeled after criminal code so investigative file can be confidential.

Avoid risk of public record request.

How It Works

Fines

Can be reduced to a civil infraction punishable by a $100 fine plus court costs if “defendant takes remedial measures, trains employees, or otherwise conforms conduct . . . .”

Practical Impacts

Can a business get a criminal misdemeanor assessed against it?

Practical Impacts

Yes, but can’t go to jail and can’t be cited for contempt if they fail to pay.

Practical Impacts

2014 – 2 complaints. Goal – not to issue any citations. Criminal component. Civil component. Mediation aspect.

2014 Statistics

133% increase in same-sex assault reported.

1600% increase in same-sex domestic violence reported.

100% increase in same-sex strangulation reported.

Takeaways

1. Be aware it exists.

2. Good business not to discriminate on any basis.

3. Risk of citation minimal.

4. Lots of ways to resolve.

5. Avoid bad publicity and risk of becoming first business to set precedent.

6. Stay tuned: could see state or federal legislation.

Pregnancy Discrimination

Claims Are On The Rise

In 2013, 5,342 pregnancy discrimination claims filed with the EEOC and state agencies.

Pregnancy Discrimination Act Of 1978

Amended Title VII to cover pregnancy discrimination.

Covers hiring, firing, promoting.

Must be treated the same as non-pregnant employees who are similar in ability or inability to work.

PDA

Question as to whether temporary pregnancy complications were disabilities covered under ADA.

PDA

Pregnancy Discrimination

Some states have passed additional protections – 12 states (not Idaho).

July 2014 – EEOC published Enforcement Guidance on Pregnancy Discrimination.

EEOC

Pregnancy impairments are disabilities.

EEOC

New Law

Recent Discrimination Cases

Hatheway v. Board of Regents of University

of Idaho

2013 WL 4768311 (2013).

Co-worker paid more. President’s speech:

“We have a responsibility to retire when we’re not as productive . . . . It’s time to get out of the way.”

Negative evaluation. No raise.

Hatheway

Hatheway

“[T]his year there have been repeated instances of Lillian acting unprofessionally toward another staff member, and in venting about that person and the department chair in front of others in the unit. Against her co-worker, often when I have been away from the office, she has repeatedly launched tirades, it appears without provocation. These confrontations have not reflected civility or respect; they have sometimes merely been hurtful.”

Hatheway

Clarifies requirements of prima facie case of age discrimination.

Poor evaluation that results in no raise can be an adverse action.

Mere ostracism in workplace not adverse action – not enough to be “kept out of the loop.”

Mere inconveniences or alterations of job responsibilities are not adverse actions.

Hatheway

Hatheway failed to show pretext. Performance evaluation is very

specific as to how she failed to meet expectations.

Takeaways

Regular and honest evaluations detailing performance issues can protect you from discrimination claims.

Keep HR files updated. Document progressive discipline.

Harassment v. Discrimination

What’s the Difference?

Fowler v. Kootenai County128 Idaho 740 (1996)

Elements Of A Hostile Work Environment Claim

1. Subject to sexual advances or favors or verbal or physical conduct of sexual nature.

2. Conduct unwelcome.

3. So severe or pervasive to alter conditions of employment.

4. Subjective and objective component.

Jeremiah v. Yanke Machine Shop131 Idaho 242 (1998)

Jeremiah

Treating all employees in an equally degrading manner does not cure.

Jeremiah

Elements can be altered for other protected classes.

In Jeremiah, the court found severe and persuasive discrimination based on national origin to alter conditions of workplace.

Supreme Court On Harassment

Vance v. Ball State University

133 S. Ct. 2434 (2013)

VANCE

Vance

Vance (banquet worker) claimed Davis (co-worker) was a supervisor who discriminated against her.

Claimed Davis glared, blocked her exit on elevator, slammed pots and pans.

Vance

Davis did not hire and fire. Was she a supervisor? Why does it matter?

Vance

Higher burden of proof for employees who sue employers for alleged discrimination of co-worker.

Easier for an employee to win a case if a supervisor discriminates.

Standards

If supervisor discriminates, employer is strictly liable if harassment resulted in a tangible employment action.

If co-worker discriminates, employer is liable only if they knew or should have known of harassment and if they were negligent in addressing conduct.

Vance

Court – narrowed definition of supervisor to only those who hire and fire. It’s a supervisor if they are “empowered to take tangible employment actions.”

Takeaways

1. Take harassment claims seriously.

2. Even if it’s a co-worker accused of discriminating, employer can be liable if they are negligent in addressing it.

3. Recordkeeping: document complaints and actions you take to educate employees.

4. Keep policies updated.1. Anti-discrimination.

2. Reporting.

Takeaways (cont’d.)

5. Make sure supervisors have up-to-date training.

6. Update job descriptions. Clarify whether hiring or firing responsibility, especially if none exists.

7. Few people will qualify as supervisors under Title VII.

8. Idaho courts may not take such a conservative approach.

Avoiding Liability For Discrimination And Harassment Claims

How To Prevent Claims

1. Policies.

2. Recordkeeping.

3. Training.

4. Fairness and consistency.

Handbook

Why Do Evaluations?

Recordkeeping

Why not?

Protect Your Work Place!

Language In Evaluations And Discipline

What type of language to include.– Detail specifics.– Do not include language about protected class.

Get HR Involved Or Train

Protect Your Business

Request employee signature at bottom of review. Who should perform? Supervisor. It is hard, but

essential, to be honest. Process to contest. Evaluation should contain no surprises.

Protect Your Business

“[T]his year there have been repeated instances of Lillian acting unprofessionally toward another staff member, and in venting about that person and the department chair in front of others in the unit. Against her co-worker, often when I have been away from the office, she has repeatedly launched tirades, it appears without provocation. These confrontations have not reflected civility or respect; they have sometimes merely been hurtful.”

Hatheway v. Board of Regents of University of Idaho, 2013 WL 4768311 (2013).

Progressive Discipline

Handbook? Keep it generic.

“[E]mployees should clearly understand that the extent to which progressive discipline is imposed is in the sole and exclusive discretion of management. Nothing in this policy shall be deemed to limit the right of the company to terminate an employee at any time for any reason.”

Peterson v. Exide Technologies, 2012 WL 1184001 (10th Cir. 2012).

Protecting Your Business

Supervisor/management training.

McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004)

“GTE took no action to send a message that such graffiti was intolerable, or to recognize that it differed in kind from other graffiti prevalent in the bathrooms. . . . GTE could have heavily emphasized to all employees that serious punishment would result if the perpetrators of this or future incidents were caught, underlining the fact that such behavior was neither tolerated or condoned. . . . At a minimum, GTE could have informed the offended employees that it would make efforts to prevent the reappearance of such graffiti, and had a manager check the areas in question on a regular basis to ensure that this problem did not recur. . . . On the record before us, GTE did none of these things.”

Investigations

1. Timely.

2. By the right person.

3. Must demonstrate your business took it seriously and was fair.

4. Follow your policies.

5. Limit it to those involved.

6. Update alleged victim.

Policies On Discrimination/Harassment

1. We do not tolerate.

2. Define.

3. Reporting responsibility.

4. Applies not just to acts by employees.

5. Complaint, reporting, and handling.

6. Will promptly and fully investigate (and provide remedy).

7. No retaliation.

8. Consequences.

http://www.linkedin.com/groups/Holland-Hart-Labor-Employment-Law-4714382/about- Blog- Breakfast Briefings – One coming up in November 2014 (likely November 18 th)- LinkedIn- Upcoming CLE on December 12, 2014- Idaho Industrial Commission Conference – October 23, 2014

QUESTIONS?

THANK YOU