Montana Human Rights Bureau

Department of Labor and Industry

Employment Relations Division

What We Do

Provide neutral investigations of discrimination complaints.

Offer early mediation to resolve complaints prior to investigation.

Provide information to employers and employees to prevent discrimination cases.

Prevent 500-600 cases from going directly to district court.

Discrimination in What?

Employment

Housing

Education

Insurance

Financial Transactions

Public Accommodations

Government Services

What we don’t do

Deal with every workplace issue

Set law

Fire people

Provide legal advice

Advocate for either party

Why should an employer care about workplace discrimination

Costs of workplace discriminationLow moralDeclining productivityAbsenteeismHigh turnoverLost customersLawsuits

Human Rights Bureau Process

S e ttledC a se c lo sed

"N o F a u lt S e tt le m e n t"

S u ccess fu l

C a se C lo sed

S u ccess fu l

S e n t toH e a rin gs

B u rea u w ith in1 2 m on ths

U n su cce ss fu l

C o n c ilia t ion

R e a so n ab le C a u se

R ig h t to S uein D is tric t

C o u rt

S e n t toH e a rin gsB u re au

O vertu rnF in a l

In ves tiga tiveR e p o rt

R igh t toS ue inD is tric tC o u rt

U p h o ldF in a l

In ves tiga tiveR e p o rt

H u m a n R ig h tsC o m m iss ion

h e a rin g w ith in1 2 0 d a ys

D e c is io n A p pe a ledw ith in 10

d a ys

N o C a u se

D e te rm in a tio n is su edw ith in 1 8 0 d a yso r 12 0 da ys fo r

h o us ing

U n su cce ss fu l

M e d ia tion

In ves tiga tion b eg ins

D e clin e d to m ed ia teo r

u n su cce ss fu l

S u ccess fu lC a se C lo sed

"N o F a u lt S e tt le m e n t"

V o lu n ta ry M e d ia tiono ffe red

("F a s tra ck ")

R e sp o nd e n t N o tif iedw ith in 10

b u s ine ss d a ys

Y e s

N o A c tion

N o

In take :Ju risd ic tio n , P rim a F a c ie C a se ,

T im e lin e ss

How many employees must I have before an employee can file

a discrimination claim?

Montana Law covers anyone with one or more employeesFederal laws cover 15 or more employees – Age Discrimination in Employment Act requires 20 or more employeesA person can file under federal and state laws on the same claim

What is Illegal Discrimination

If based on a protected class, these actions are illegal: Discharge Refusal to hire Deny maternity leave, not

reinstated Deny reasonable

accommodation Discriminate in

compensation or other term of employment

What is a protected classRace or national origin

Religion

Creed

Sex

Physical or mental disability

Marital status

Age

Retaliation

Political belief (government employees)

Color

Family status (housing only)

Age Discrimination

Montana Law protects all ages

Federal Law protects employees 40 years of age and older.

Religious Discrimination

It is unlawful to discriminate against someone in employment based on their religion.

The law requires employers to accommodate religious needs such as observance of Sabbath or religious holidays and restrictive dress codes, unless it causes undue hardship.

What is undue hardship with regards to religious

accommodationMore than ordinary administrative costs

Violation of bona fide seniority system or union contract

What is illegal harassment?Harassment can be any behavior that slanders or shows hostility toward another person because of their protected class. Harassment creates an offensive, intimidating work environment and/or negatively affects a person’s work performance or employment opportunities.

Examples of harassment

Repeated jokes, innuendoes or commentsOffensive picturesLyrics in music that are offensiveDiscussing co-worker’s personal life with othersBlocking another’s movementUnwelcome physical touching

What is not harassment under the Human Rights Act

An offhanded comment

Unfair treatment

The Human Rights Act is not a “civility code” for the workplace

The behavior must

Be sufficiently frequent or severe to create a hostile work environment

OR

Result in a tangible employment action

What is sexual harassmentPropositions for sexual favorsPhysical touchingRepeated jokesInappropriate comments about appearanceHarassment based upon gender in a non-traditional setting (male nurse or female construction worker)

Sexual harassment can occur in a variety of circumstancesThe victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

The harasser can be a supervisor, an agent of the employer, a co-worker or a non-employee, such as a vendor.

The victim does not have to be the person harassed, but could be anyone affected by the offensive behavior.

The employer knew or should have known, but did not correct the problem

If the supervisor knew about the harassment and failed to inform the owner, the company could still be liable. Supervisors must act. Do not ignore complaints!

How to prevent sexual harassment

Grievance or complaint policy is necessary to invoke the Affirmative Defense in co-worker harassment claims.Grievance or complaint policy with ways to report other than to the harasser.Communicate with employees that harassment will not be tolerated.Take immediate, effective action when a complaint is received.Follow up to be sure the harassment stopped.No retaliation!

What is the employee’s responsibility

The employee must take reasonable steps to avoid harm from the harassment

This responsibility is usually done by using the employer’s complaint procedure

Pregnancy Discrimination

Non-discrimination in hiringContinued employmentReasonable maternity leaveNo mandatory unreasonable leaveUse of accrued benefits and leave timeEqual treatment in employment benefit plansDo not confuse it with FMLA

Preventing Pregnancy Discrimination

Communicate with the pregnant employee regarding her anticipated medical leave and return dates

Pregnancy ReinstatementUpon signifying her intent to return, the employee must be reinstated to her original job or an equivalent position with equivalent pay and benefits, unless it is impossible or unreasonable to do so. 49-2-310 MCA describes unlawful acts of employers with regards to maternity leave.

49-2-311 MCA describes reinstatement after maternity leave.

Disability Discrimination

If the person is qualified for the job and is disabled, you cannot:Refuse an application, interview or

employment

Terminate because of the disability

Disability within the meaning of the ADA

Physical or mental impairment that substantially limits one or more major life activities;

A record of a substantially limiting impairment; or

Regarded or treated as having an impairment, although no impairment

Major life activities include, but are not limited to:

Walking

Seeing

Speaking

Breathing

Eating

Reproduction

Performing manual tasks

Hearing

Learning

Caring for oneself

Working

Sitting

Standing

Lifting

Mitigating Measures

The U.S. Supreme Court ruled that if there are mitigating measures that correct the impairment resulting in no substantial limitation of a major life activity, the employee is not disabled under ADA. (Sutton v. United Airlines)

Qualified

Disabled person must be able to perform the essential functions of the job with or without a reasonable accommodation.

Individual Assessment

Employers have a duty to assess an employee’s disability as it relates to a job qualification on an individual basis.Employees cannot be disqualified for a job

due to an impairment without an individual assessment of that employee.

The assessment must look at the totality of the circumstances and the whole person.

Interactive ProcessEmployees have a duty to notify the employer if they need an accommodation if it is not apparent to the employer.

When a qualified individual with a disability makes a request, the employer is obligated to provide a reasonable accommodation, unless to do so would cause an undue hardship

What is a reasonable accommodation?

It depends on:CostAvailabilityNecessity Is something less expensive or more

convenient availableEmployees preferred accommodation is

not required

Unreasonable accommodation

Endangers employees’ health or safety

BFOQ – Bona Fide Occupational Qualification exemption exists

Causes undue hardship (creates an extraordinary financial hardship)

Eliminates an essential job function

Application Process as it relates to the ADA

When requested by an individual with a disability, accommodations must be made in the application process, unless they create an undue hardship

Requesting Documentation

Employers can request documentation of a disability when an employee requests an accommodation. When the disability and/or need for the

accommodation is not obvious. Employer may only require documentation that is

needed to establish that person has a legal disability which necessitates a reasonable accommodation.

Prevention is the best toolCommunication

Training

Post your policy

Establish a complaint procedure

Promptly investigate complaints

Insure no retaliation

Responsibilities of employers

Record keeping for 2 years, longer if complaint is filed

Hiring

Personnel records

Payroll

Discipline

EEO reporting

Resources

Human Rights Bureau www.montanadiscrimination.com (800) 542-0807

Job Accommodation Network (JAN) www.jan.wvu.edu (800) 526-7254

Equal Employment Opportunity Commission (EEOC) www.eeoc.gov

Website resourceswww.montanadiscrimination.comGuide to the Montana Human Rights LawsHarassment PowerpointMontana Code Annotated (MCA) and

Administrative Rules of Montana (ARM’s)Final Agency Decisions (FAD)Statistics in BriefModel Policies for Employers

Montana Human Rights Bureau

(800) 542-0807