0
Getting Ahead of the
Discrimination & Harassment Curve
Tamsen Leachman
Dunn Carney
Our Program
• What is driving the change?
• What are the new threats?
• Preventing, preparing for & defending claims
• Bec...
Forces Behind the Chaos
• Economics
• New Political Leadership,
New Priorities, & New
Players
• Expansion of Rights Easier...
Deep Breath …
• RIF cycle hopefully over
• Talent now in place
• Time exists to become
aware and to make
changes
• We are ...
Issues in Hiring
• Union Salts and EEOC Screeners
• Criminal History
• Knowing When Credit Worthiness Is Relevant
• Social...
Real or Fake?
• May not be obvious by resume, application or
interview
• Agenda may vary
– Challenge disqualification as b...
No Criminals in My Company
• EEOC claims Absolute Bar (formal or practice)
= disproportionate impact
– Must be justified b...
About That Credit Score
• Credit history cannot be considered unless:
– Federally insured bank or credit union
– Required ...
Dear Tom:
WHAT Were You Thinking?
• SHRM - 20% of employers scraped a candidate
because of something found on the internet
Will You Reject Tom?
• No law explicitly prevents consideration of social
media in hiring, but ….
• AMAZING what you can l...
Assessment Testing
• Rapid rise in use
• Focus of standardized assessments
– Cognitive
– Ethics/deceitfulness
– Skills/int...
Screening Criteria & Testing
• Disproportionate exclusion
of certain groups prohibited
unless…
– Accurate predictors of
su...
A Tale of Two Fire Departments
• Ricci v. DeStefano
– Advancement test at issue
– Reverse discrimination when test
thrown ...
Language & Reading Competency
• Written tests may raise
issues
– Is reading a job
requirement?
• Alternatives for ESL
cand...
Best Practices
• Competency-Based Hiring
– Knowledge & behaviors that predict high
performance
– Internal study of high pe...
Assess Your Tools
• Good predictors of success
• Unintended consequences
• Consistently used
• Facilitators trained and re...
How You Will Be Judged
• The Interview Process
– Guidelines & training on discrimination and
effective interviewing
– Pres...
On The Job Challenges
Quick Review
Federal Protected Classes
• Race, Color and National Origin
• Sex (includes pregnancy & related conditions)
•...
Quick Review
Oregon Protected Classes
• All federally protected classes
• Age (18 and older)
• Injured worker
• Use of OFL...
Bona Fide Occupational Qualification
(BFOQ) Exception
• Sex, Religion, National Origin relevant if BFOQ
‘reasonably necess...
Theories of Discrimination
• Disparate Treatment
– Intentional, different treatment because of …
– Individual or systemic
...
If Only It Were That Easy
The Changing Face
of Discrimination
10-1 to 10-21 Activity
35 EEOC Suits & Settlements
$1,939,605 Collected
9-1 to 9-30 Activity
119 EEOC Suits & Settlements
$20,049,400 Collected
Race Discrimination & Harassment
Race Claims Are Priority for EEOC
Filed*
• Hispanic employee
complaints of abuse
by black co-workers
not properly handled
...
Take Aways …
• Allegations
– Verbal abuse and racial epithets
– Visual harassment
– Physical abuse
– Different treatment a...
Be On the Lookout For …
• Good business reason for all decisions
– Credible support / documentation
– Thread of fairness r...
National Origin Twist
Language & Accent
Watch Out For …
• English-only policies
• Posters, training, testing
& other information not
offered in language of
signif...
Sexual Harassment
Sexual Harassment Trends
Filed
• ED - “I have something
for you … it’s 8 ½ inches
long”
• Manager touched
employees and ma...
Lessons?
• Allegations
– Immature and boorish comments
– Sexual behavior
– Touching and/or intimidation
– Power differenti...
Sex Discrimination
Glass Ceiling & Equal Pay
Equal Pay Act
• Prohibits gender-based wage differences for
men and women performing substantially
equal work
• Defenses:
...
Dukes v. Wal-Mart
• 4/26/10 - 9th Circuit - nationwide class certified
in largest ever sex discrimination case
• Class is ...
Dukes v. Wal-Mart
• No specific practice identified; stereotyping is
focus
– 120 (of 1.5M) declarations with anecdotal
evi...
Pregnancy Discrimination
EEOC Priority
Filed
• Pregnant employee applied
for promotion; rejected due to
concern about missed work
• Sports Bar empl...
Sex at Work -
Putting it All Together
• Door is open for systemic discrimination cases
& Ledbetter Act makes this more pro...
Disability Claims Are Booming
Business Changes Make Essential
Functions (EF) More Difficult to Define
EF identification is easy
when the team works
like...
ADAAA Sea Change
• Degree – Common sense SL evaluation by
comparing employee to general population
• Scope – Major life ac...
Lizotte v. Dacotah Bank, (D.N.D.
2010)
• Executive threatened suicide with gun and was
committed to inpatient psychiatric ...
Lizotte v. Dacotah Bank, (D.N.D.
2010)
• Court held Lizotte may have valid claim under
the “regarded as” provision because...
New Focus on Sensory Disabilities
EEOC v. UPS Supply Chain Solutions
(9th
Cir. 2010)
• EEOC argued UPS failed to provide reasonable
accommodations for emplo...
Relationship Between Leave
& Disability
EEOC v. Sears
• Federal court approved a $6.2M settlement of
EEOC class action claiming that Sears violated
the ADA throug...
EEOC v. UPS
• UPS administrative assistant with MS, took 12‐
month LOA
• Employee returned briefly, but took more
leave du...
EEOC v. United Road Towing
• EEOC just filed suit against nation’s largest
towing company due to inflexible leave policy
•...
Cause for Concern
• EEOC believes new regulations will make it easier
to bring collective actions / class actions for
disa...
Where Do We Go From Here?
• Involve HR if disabled applicant requests
accommodation or if s/he will be rejected
• Be aware...
Religious Discrimination …
It’s All About Accommodation
EEOC Targets Abercrombie & Fitch
• During interview, manager asked if applicant
was Muslim & required to wear hijab
• Mark...
Religious Accommodation
• Belief conflicts with work requirements
– Scheduling
– Breaks and holidays
– Clothing and appear...
Age Discrimination
New Era For Older Employees
• Gross v. FBL Financial
– Supreme Court adopted “but for” standard for
ADEA claims instead of...
Retaliation Behemoth
Common Elements
• Opposition or Participation (or Concerted Activity)
– Whistleblowing
– Worker’s Comp
– Wage & Hour
– Lea...
‘Cat’s Paw’ Pass-Through
• Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir.
2009), cert. granted April 19, 2010
• In USERRA ...
Insulation Strategy Affirmed In
Lakeside-Scott v. Multnomah Co.
• Scott blew whistle on supervisor, Brown, for
favoritism ...
World Class Organizations
What Makes Them Different
• Identify and explore problems lurking on the
surface, and then work ...
TLeachman@dunncarney.com ∙ 503.417.5513
Questions?
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Getting Ahead Of The Curve

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  • Female guards in male environment – real and immediate danger vs. potential danger o child if employee later becomes pregnant. 2 problems – more remote risk & ignored the real impact on men who become fathers
  • Not only one box, not clearly separate issues, sometimes problem is not obvious so many theories alleged
  • Physical, linguistic or cultural characteristics
    Language and accent
    Ethnic slurs and epithets
  • An unofficial barrier to opportunities within an organization or company which is perceived to prevent protected classes of workers, particularly women, from advancing to higher positions.
    The term is distinguished from other barriers to advancement such as education or experience.
  • Systemic issues are expansive – glass ceilings, job ghettos, harassment, termination, etc.
  • Transcript of "Getting Ahead Of The Curve"

    1. 1. Getting Ahead of the Discrimination & Harassment Curve Tamsen Leachman Dunn Carney
    2. 2. Our Program • What is driving the change? • What are the new threats? • Preventing, preparing for & defending claims • Becoming a world class organization
    3. 3. Forces Behind the Chaos • Economics • New Political Leadership, New Priorities, & New Players • Expansion of Rights Easier Than Contraction • New Amendments, Regulations, Guidance, Decisions, etc.
    4. 4. Deep Breath … • RIF cycle hopefully over • Talent now in place • Time exists to become aware and to make changes • We are likely doing more right than we know
    5. 5. Issues in Hiring • Union Salts and EEOC Screeners • Criminal History • Knowing When Credit Worthiness Is Relevant • Social Media Review and Reference Checking • Assessment Tests & ADA Accommodation
    6. 6. Real or Fake? • May not be obvious by resume, application or interview • Agenda may vary – Challenge disqualification as biased – Size up your screening procedures – Organize your employees • Best practices, consistency, good business reasons, and records are critical
    7. 7. No Criminals in My Company • EEOC claims Absolute Bar (formal or practice) = disproportionate impact – Must be justified by business need – Nature of job, nature & seriousness of offense, and time since conviction/incarceration • Arrest - not reliable evidence of crime – Exclusion if: (1) job-related; (2) relatively recent; and (3) strongly appears applicant engaged in conduct – Be very careful here!
    8. 8. About That Credit Score • Credit history cannot be considered unless: – Federally insured bank or credit union – Required by state or federal law – Responsible for enforcing state criminal law – Information “Substantially Job-Related” (SJR) • SJR means – Access to financial information is related to EF – History required to obtain insurance, surety or bond • Must notify in writing if plan to consider
    9. 9. Dear Tom: WHAT Were You Thinking? • SHRM - 20% of employers scraped a candidate because of something found on the internet
    10. 10. Will You Reject Tom? • No law explicitly prevents consideration of social media in hiring, but …. • AMAZING what you can learn – helpful – yes … not appropriately considered – only if I get caught • If used, ensure proper screen in place & consistent practices used • Follow best practices and EEO principles • Hire the best qualified applicant*
    11. 11. Assessment Testing • Rapid rise in use • Focus of standardized assessments – Cognitive – Ethics/deceitfulness – Skills/interests – Traits/personality/temperament • Assessments are often timed – Who is impacted by this? – Job-related?
    12. 12. Screening Criteria & Testing • Disproportionate exclusion of certain groups prohibited unless… – Accurate predictors of success – Justified business needs – ‘Validated’ tests or methods safer
    13. 13. A Tale of Two Fire Departments • Ricci v. DeStefano – Advancement test at issue – Reverse discrimination when test thrown out to avoid discrimination • U.S. v. City of New York – Entry-level test at issue – Test found invalid due to content validation results: job analysis; competent test construction; content related to job; test representative of job; scoring selects better performers
    14. 14. Language & Reading Competency • Written tests may raise issues – Is reading a job requirement? • Alternatives for ESL candidates or non-English speakers • Sensory or learning disability may create need for accommodation
    15. 15. Best Practices • Competency-Based Hiring – Knowledge & behaviors that predict high performance – Internal study of high performers or “off the shelf” • Behavioral Event Interviewing (BEI) – Best predictor of future competence is past behavior – About 75% of employers use some form of BEI • Evaluating Emotional Intelligence (EI) – About 70% of employers use EI in their hiring practice
    16. 16. Assess Your Tools • Good predictors of success • Unintended consequences • Consistently used • Facilitators trained and records maintained • Accommodation requests always considered
    17. 17. How You Will Be Judged • The Interview Process – Guidelines & training on discrimination and effective interviewing – Preserved documentation of reason for selection or rejection of candidate • The Hiring Decision – Consistent and fair – Review of decisions sought in high risk situations
    18. 18. On The Job Challenges
    19. 19. Quick Review Federal Protected Classes • Race, Color and National Origin • Sex (includes pregnancy & related conditions) • Religion • Age (40 and older) • Disability • Use of FMLA or Military leave • Association with member of protected class • Oppose unlawful employment practice, or participate in investigation/adjudication of same • NLRA – concerted activity*
    20. 20. Quick Review Oregon Protected Classes • All federally protected classes • Age (18 and older) • Injured worker • Use of OFLA • Marital Status & Family Relationships • Sexual Orientation • Whistleblower • Expunged juvenile record
    21. 21. Bona Fide Occupational Qualification (BFOQ) Exception • Sex, Religion, National Origin relevant if BFOQ ‘reasonably necessary’ to normal operation of business – Standard more like absolutely essential – pilots must stop flying at 60 for safety reasons – Be careful! Alabama Board of Corrections as compared to Johnson Controls – Customer preference not a BFOQ – Race or Color never BFOQ – Remember the Hooters $3.75M settlement?
    22. 22. Theories of Discrimination • Disparate Treatment – Intentional, different treatment because of … – Individual or systemic • Disparate Impact – No intent required; focus on statistical impact of facially neutral policy – Systemic example – college degree required – Defense – no better alternative to achieve legitimate business need
    23. 23. If Only It Were That Easy
    24. 24. The Changing Face of Discrimination
    25. 25. 10-1 to 10-21 Activity 35 EEOC Suits & Settlements $1,939,605 Collected
    26. 26. 9-1 to 9-30 Activity 119 EEOC Suits & Settlements $20,049,400 Collected
    27. 27. Race Discrimination & Harassment
    28. 28. Race Claims Are Priority for EEOC Filed* • Hispanic employee complaints of abuse by black co-workers not properly handled by hospital • White supervisor called black employee “gorilla” while he held banana & made other racist comments Settled • $10M - black employees subjected to hangman’s nooses, racist graffiti, comments, and cartoons; also given harsher discipline than white employees • $440,000 – black employees disciplined more harshly than white employees and disciplined for things that white employees allowed to do - facial hair & using cell phone
    29. 29. Take Aways … • Allegations – Verbal abuse and racial epithets – Visual harassment – Physical abuse – Different treatment and pay • Vulnerability – Plausible allegations – inability to disprove* – Lack of policies, training & good management practices left Company looking indifferent – Rough environment, long history of conduct & equal opportunity harasser are not viable defenses
    30. 30. Be On the Lookout For … • Good business reason for all decisions – Credible support / documentation – Thread of fairness running through all actions • Red Flags Pattern of favoritism, disfavor or complaints Bad behavior, unlawful intent or tolerance of same Overreaching or too much emotion Disproportionate impact on groups or significant reports of anecdotal evidence
    31. 31. National Origin Twist Language & Accent
    32. 32. Watch Out For … • English-only policies • Posters, training, testing & other information not offered in language of significant group • Accent complaints leading to discipline
    33. 33. Sexual Harassment
    34. 34. Sexual Harassment Trends Filed • ED - “I have something for you … it’s 8 ½ inches long” • Manager touched employees and made sexual remarks • Female manager made comments about appearance and intimidated with yelling & threats of violence Settled • $600,000 – male’s forced acquiescence to female manager’s unwelcome comments and touching • $325,000 – female construction worker saw public urination, sexual comments, and touched or grabbed • $162,400 – sexual remarks and touching by supervisor • $160,000 – supervisors taunting of male co-worker, suggesting he was gay
    35. 35. Lessons? • Allegations – Immature and boorish comments – Sexual behavior – Touching and/or intimidation – Power differential • Vulnerability – Plausible allegations – power in numbers – Lack of training, good management practices, policies – Stupidity or lack of higher level oversight not an excuse
    36. 36. Sex Discrimination Glass Ceiling & Equal Pay
    37. 37. Equal Pay Act • Prohibits gender-based wage differences for men and women performing substantially equal work • Defenses: – Seniority system – Merit system* – Production quality or quantity standards – Factors other than sex impact pay
    38. 38. Dukes v. Wal-Mart • 4/26/10 - 9th Circuit - nationwide class certified in largest ever sex discrimination case • Class is part-time, entry-level hourly to salaried managers at 3,400 stores - up to 1.5 M employees – All women employed by Wal-Mart after 12/26/98 • Paid less than comparable men, despite higher performance & more seniority • Received fewer & waited longer for promotions
    39. 39. Dukes v. Wal-Mart • No specific practice identified; stereotyping is focus – 120 (of 1.5M) declarations with anecdotal evidence of discrimination • Paves way for other types of class action discrimination claims – Plaintiff’s lawyers are watching & learning • Supreme Court petition filed in August
    40. 40. Pregnancy Discrimination
    41. 41. EEOC Priority Filed • Pregnant employee applied for promotion; rejected due to concern about missed work • Sports Bar employee told “baby taking a toll” on her when she was fired • Employee’s hours reduced & new employee hired after advising she was pregnant; employee eventually resigned Settled • $130,000 – official asked female applicants about marital status, if they were or planning to become pregnant, and if they had children. Female employees demoted or fired after becoming pregnant • $35,000 – phone job offer rescinded after employee disclosed pregnancy
    42. 42. Sex at Work - Putting it All Together • Door is open for systemic discrimination cases & Ledbetter Act makes this more profitable • Ensure your pay practices are defendable and based on some system or logic • Stupid, immature behavior is still a problem • Pregnancy is temporary condition, wrapped in layers of protection, so be extra cautious here
    43. 43. Disability Claims Are Booming
    44. 44. Business Changes Make Essential Functions (EF) More Difficult to Define EF identification is easy when the team works like this… Much harder when the team works more like this…
    45. 45. ADAAA Sea Change • Degree – Common sense SL evaluation by comparing employee to general population • Scope – Major life activities & bodily functions are considered without mitigating effects • Assumptions – regarded as standard lowered • Accommodation – interactive process now the focus
    46. 46. Lizotte v. Dacotah Bank, (D.N.D. 2010) • Executive threatened suicide with gun and was committed to inpatient psychiatric unit for 4 days • Doctor released employee back to work one week later • Bank terminated employment because of concerns about “safety, reputation, customer acceptance, and liability” • Employee filed ADA claim
    47. 47. Lizotte v. Dacotah Bank, (D.N.D. 2010) • Court held Lizotte may have valid claim under the “regarded as” provision because jury could reasonably find that: – Bank fired Lizotte because regarded him as having mental illness that limited his major life activity of working – Lizotte’s supervisor “blown away” when Lizotte released from custody after only a few days
    48. 48. New Focus on Sensory Disabilities
    49. 49. EEOC v. UPS Supply Chain Solutions (9th Cir. 2010) • EEOC argued UPS failed to provide reasonable accommodations for employee’s deafness when declined request for sign language interpreter for staff meetings, disciplinary sessions, and training • UPS argued notes from meeting sufficient • Case sent back to jury to decide who is right
    50. 50. Relationship Between Leave & Disability
    51. 51. EEOC v. Sears • Federal court approved a $6.2M settlement of EEOC class action claiming that Sears violated the ADA through an “inflexible” policy of terminating injured employees who exhausted their workers’ compensation leaves rather than seeking to return them to work • EEOC v. Sears Roebuck & Co., N.D. Ill., No. 04 C 7282, consent decree approved 9/29/09
    52. 52. EEOC v. UPS • UPS administrative assistant with MS, took 12‐ month LOA • Employee returned briefly, but took more leave due to side effects of medication • EEOC argued employee could have returned after 2‐week LOA, but UPS terminated her for exceeding “inflexible 12‐month leave policy” • Filed suit in April in Illinois District Court
    53. 53. EEOC v. United Road Towing • EEOC just filed suit against nation’s largest towing company due to inflexible leave policy • EEOC claims employees only provided 12 weeks of FMLA leave, then terminated if cannot return to work • Also, employees who were terminated under policy and reapplied were rejected
    54. 54. Cause for Concern • EEOC believes new regulations will make it easier to bring collective actions / class actions for disability discrimination • Hohider v. UPS, 574 F.3d 169 (3rd Cir. 2009) – "100% healed" policy challenged – Class certification reversed because individual issues predominated – Only qualified persons with disabilities could suffer harm under the policy • Outcome likely different under ADAAA standards
    55. 55. Where Do We Go From Here? • Involve HR if disabled applicant requests accommodation or if s/he will be rejected • Be aware of sensory disabilities & unique accommodation issues & expectations • Watch for inflexibility & blanket policies • Help supervisors understand accommodation policy, process & your expectations • Share information & agreements with new supervisors so they are not set up for challenge
    56. 56. Religious Discrimination … It’s All About Accommodation
    57. 57. EEOC Targets Abercrombie & Fitch • During interview, manager asked if applicant was Muslim & required to wear hijab • Marked “not Abercrombie look” on evaluation • Earlier claim ‐ EEOC v. Abercrombie & Fitch – U.S. District Court, ND Oklahoma – September 2009 – Nearly identical allegations
    58. 58. Religious Accommodation • Belief conflicts with work requirements – Scheduling – Breaks and holidays – Clothing and appearance standards • Employee provides notice of belief/practice in conflict with job duty • Explore reasonable accommodation options – In Oregon, denial of accommodation must meet Undue Hardship standard
    59. 59. Age Discrimination
    60. 60. New Era For Older Employees • Gross v. FBL Financial – Supreme Court adopted “but for” standard for ADEA claims instead of the “motivating factor” standard used in Title VII • $3M Settlement EEOC v. Republic Services – EEOC claimed mistreatment or dismissal of 21 workers because of age – Opportunities given to younger employees & lower standards applied to them – Hazing ritual created danger for older workers
    61. 61. Retaliation Behemoth
    62. 62. Common Elements • Opposition or Participation (or Concerted Activity) – Whistleblowing – Worker’s Comp – Wage & Hour – Leave Rights – Discrimination or Harassment • Action Likely to Deter • Connection – Timing, Different Treatment, Same Decision‐Maker, Cat’s Paw – Pretext ‐employer cannot justify action
    63. 63. ‘Cat’s Paw’ Pass-Through • Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. 2009), cert. granted April 19, 2010 • In USERRA case, where HR ran separate, unbiased investigation of employee & took independent action, supervisor Brown's bias was immaterial • No evidence Brown’s alleged animosity was substantial or motivating cause of termination
    64. 64. Insulation Strategy Affirmed In Lakeside-Scott v. Multnomah Co. • Scott blew whistle on supervisor, Brown, for favoritism and other issues. • Scott later fired for misuse of technology resources after IS Director, Fuller, discovered and investigated violation. Fuller made decision to terminate. • Jury found for Scott & 9th Circuit reversed finding no evidence of bias by Fuller.
    65. 65. World Class Organizations What Makes Them Different • Identify and explore problems lurking on the surface, and then work inward to find root cause • Search for solutions that reach the core, then adopt and integrate at each level of organization
    66. 66. TLeachman@dunncarney.com ∙ 503.417.5513 Questions?
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