MASPA WINTER CONFERENCE WEDNESDAY, DECEMBER 4, 2013 LANSING, MICHIGAN Legal Issues to Consider to...
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Transcript of MASPA WINTER CONFERENCE WEDNESDAY, DECEMBER 4, 2013 LANSING, MICHIGAN Legal Issues to Consider to...
MASPA WINTER CONFERENCEWEDNESDAY, DECEMBER 4, 2013
LANSING, MICHIGAN
Legal Issues to Consider to Avoid EEOC Claims and Other Litigation
Presenters:Robert T. SchindlerKevin T. Sutton
Want to download this presentation? Do it now:
www.luskalbertson.com/maspa
A Tad Misleading …
Can’t avoid EEOC claims and litigationCan prepare your District to be in the
best possible position to respond to claims when they arise
“Who are these people?”
Equal Employment Opportunity Commission (EEOC) Federal administrative agency tasked with enforcing
the following statutes: ADA ADEA Title VII of the Civil Rights Act of 1964 EPA GINA
“Who are these people?”
Michigan Department of Civil Rights (MDCR) State administrative agency tasked with enforcing the
following statutes: ELCRA PWDCRA
What are the Standards?
Failure to accommodate under the ADA: Employee must be disabled; Employee must be otherwise qualified for the
position/able to perform the essential duties of the position, with or without reasonable accommodation;
Employer knew or had reason to know about the disability;
Employee requested accommodation; and Employer failed to provide the necessary
accommodation/engage in interactive process
What are the Standards?
Discrimination or Retaliation Discrimination
Employee is member of protected class; Employer is aware that Employee is member of that class; Employee suffered adverse employment action; and Employee is otherwise qualified for position
Retaliation Employee engaged in a protected activity; The Employer was aware that the claimant had engaged in that
activity; The Employer took an adverse employment action against the
employee; and There is a causal connection between the protected activity and
the adverse action
What are the Standards?
Discrimination or Retaliation (cont) In both claims, the Employer can overcome
Employee’s claim by demonstrating legitimate non-discriminatory reason for actions
Employee then must demonstrate that the legitimate non-discriminatory reason is pretext for Employer’s discrimination or retaliation
What are the Standards?
Harassment (form of discrimination) Employee is member of protected class; Subject to unwanted harassment based on protected
classification; Harassment interfered with Employee’s ability to
work, or was the basis for employment decision; That there is a basis for Employer liability:
Employer knew or reasonably should have known about harassment, and
Employer did not take reasonable steps to prevent harassment
What is a Complaint?
A complaint to the EEOC or the MDCR is an allegation by an employee that their employer violated one of the statutes administered by the agency
It is the first step in the process that leads to an investigation into the allegation by the administrative agency
What is a Complaint?
A complaint to the EEOC or MDCR is not a lawsuit, but it may be the precursor to one
Under federal law, an individual must file a complaint with the EEOC prior to filing a lawsuit
The same rule does not apply under Michigan law
The Complaint Process
Once a complaint is filed, the employer is notified by the agency
Employer may elect mediation (voluntary for both parties) or file a position statement explaining why it did not violate the law
If investigation is necessary, agency then investigates through: Requests for documentary information In-person interviews
Complaint Resolution - Good
Once the investigation is complete, a finding is made
If the agency does not find “reasonable cause” to believe a statute has been violated, it will issue a “right to sue letter”
“Right to sue” doesn’t mean district did anything wrong; just advises employee that they can file a lawsuit
Realistic chance of success?
Complaint Resolution – Not So Good
If the agency finds “reasonable cause” to believe a statute has been violated, it will seek conciliation If conciliation, settlement is complete If no conciliation, right to sue letter and agency may
sue on behalf of complainant
Defeating a Claim/Lawsuit
“The best offense is a good defense”
Shutting Down a Claim
What Steps Can You Take to Ensure a Viable Defense to Any Claim or Suit?
Consider Legal Standard “Knew or Should Have Known” “Prompt, Remedial Action” “Legitimate, Non-Discriminatory Reason”
Action Steps Investigate claims/concerns Engage in interactive process (ADA) Consistent interview techniques/processes Consistency in discipline Use performance-based metrics for employment decisions Adhere to protocols (district policies, student code of conduct) Document!
When to Investigate?
A formal (or informal) complaintCo-worker reports of questionable
conduct (even if not wanting to become involved or reported anonymously)
Observed or reported employee or student misconduct including violation of workplace rules or student code of conduct Theft or suspected theft Workplace misconduct (harassment, jokes,
comments, etc.)Parent or student complaintsAnonymous complaints
Why Investigate?
Gather facts and evidenceInformed decision-makingAdhere to due process
requirements for staff; adhere to district policy
Create a record of activity Occurrence / Response Establish expectations for behavior Show misconduct will be taken seriously
Be your attorney’s best friend! Document for future proceedings Avoid liability!
ADA Interactive Process
Interactive Process refers to an informal process between the employer and disabled employee regarding limitations and possible accommodations Step 1: Analyze job to determine essential
functions. Step 2: Determine with employee how the
disability limits essential functions. Step 3: Identify accommodations to overcome
limitations; determine effectiveness and feasibility. Step 4: Consider employee’s performance and
employer selects accommodation appropriate for employer and employee.
Documentation!
Documentation of all situations is vital!Include summaries from meetings/interviewsCollect documents relevant to situationFollow-up as much as needed to gather all
informationCreate a separate file for the investigation
The file should include all documents and other information gathered during the investigation
Employment Decisions
Interviewing, hiring, terminations, promotions, etc.
All decisions should be made on qualifications/performance
Record-keeping, written objective standardsKey: Ability to Justify Decisions
Issuing Discipline
Determine what, if any, corrective action or remedial measures are necessary
Always consider/follow polices and practices
If issuing corrective action, remember purpose of such action: Correct future conduct Communicate to employees what is acceptable
conduct Minimize exposure to future liability for
alleged harassment/discrimination
Case Study # 1:Knowing When to Mediate
Case Study #1: Mediation Resolution Agreement
Case Study #2: Prescription or No Prescription
School District offered a teaching position to individual subject to pre-employment physical;
Employee tested positive for narcotics;When questioned by clinic, Employee told the
physician that she takes a prescription narcotic for pain relief of a back problem;
Physician followed up with listed primary care physician who stated she was not prescribed any narcotics for pain relief – Clinic informed District
School District revoked employment offer based on taking of narcotics
Case Study #2: Prescription or No Prescription
Employee files claim with EEOC based on disability discrimination under the ADA
School District responds with position statement explaining that decision based on taking of narcotics without prescription
Employee submits prescription to EEOC from doctor other than primary care physician
EEOC makes finding of “reasonable cause”“District relied on clinic rather than talking to
the employee”
Case Study #2: Prescription or No Prescription
Offer of Conciliation: Reinstate $50K in compensatory damages Training for managers, ensure compliant policies,
accommodate disabilities in the future, and post EEOC notice for 5 years
Counter Offer – Accepted No reinstatement $20K in damages Agree to non-economics
Questions?
Robert T. Schindler40950 Woodward, Suite 350
Bloomfield Hills, MI 48304-5129
Direct: (248) 988-5696Cell: (248) 431-5401
Email: [email protected]
Kevin T. Sutton40950 Woodward, Suite 350
Bloomfield Hills, MI 48304-5129
Direct: (248) 988-5695Cell: (734) 377-7400
Email: [email protected]