8/6/2014
1
Avoiding Workplace Pitfalls
Domestic and Foreign Employee Compliance
Session II – Preventing and Defending Disc...
8/6/2014
2
Legal Landscape
 100s of claims are filed in North Texas
State and Federal Courts everyday.
 Employment claim...
8/6/2014
3
Common Types of Discrimination
Disability
Race, National
Origin
Age
Gender Religion
Discrimination Claims Filed...
8/6/2014
4
Race/National Origin Claims
Automotive Business
•Terminated, Retaliation Claim
Telecommunications Company
• Per...
8/6/2014
5
(…and how to help your case)
Written Policy
Consistent Documentation
Preserve Records/File
(…and how to help yo...
8/6/2014
6
How to Prevent and Defend
Employment Discrimination Claims
Brian Farrington
Shareholder, Cowles & Thompson, P.C...
8/6/2014
7
Who is Protected?
In Texas, these laws only apply to employers
who have:
-15 or more employees
-on the payroll
...
8/6/2014
8
Disparate Treatment
Where there is no direct evidence, there may
be INDIRECT EVIDENCE.
The most common model of...
8/6/2014
9
Disparate Treatment
DOCUMENTATION
-write-ups, performance appraisals,
production records, attendance, etc.
CONS...
8/6/2014
10
First articulated in Griggs v. Duke Power Co.:
-prior to July 2, 1965, company would not hire
Blacks
-started ...
8/6/2014
11
“4/5ths” Rule:
-if pass rate of any group is less than 80% of
pass rate for other group(s), there is a
dispara...
8/6/2014
12
Pregnancy
Gilbert v. General Electric, 1976—discrimination
against pregnant people NOT sex
discrimination
Preg...
8/6/2014
13
Eligible Employee:
-worked for employer for 12 months
-in 12 months preceding leave, worked 1,250
hours or mor...
8/6/2014
14
Hostile or Offensive Environment
-"Unwelcome" sexual advances.
-Objectively offensive—reasonable person in
the...
8/6/2014
15
Company Liability—If hostile environment
created by co-worker, company is not liable if:
-Company did not know...
8/6/2014
16
Disability
Americans with Disabilities Act (ADA)
Definition of "disability:"
-any physical or mental condition...
8/6/2014
17
Age Discrimination
-Protected group is age 40 & up
-NO MANDATORY RETIREMENT!
-RIF's, layoffs - modified prima ...
8/6/2014
18
Interviews/Applications
Disability, etc.
-Have job description listing essential
functions
-Ask only if can pe...
8/6/2014
19
Application Form
-EEO statement
-Authorization for pre-employment testing
-Misleading, inaccurate information ...
8/6/2014
20
Terminations
Do a risk profile:
-Warning and chance to improve (unless must
fire ASAP)
-Consistent with own po...
8/6/2014
21
-Brief and clean - not too specific
-Don't argue
-Don't let them down too easily
-Explain any benefits, last p...
8/6/2014
22
Department of Homeland Security
U.S. Citizenship and Immigration
Service (USCIS) www.uscis.gov -
immigration b...
8/6/2014
23
U.S. Department of Justice
Office of Special Counsel (OSC)
Investigates and prosecutes
charges of immigration-...
8/6/2014
24
National Origin Discrimination
Prohibits different
treatment because of place
of birth, country of origin,
anc...
8/6/2014
25
Common Mistakes
As president of your company, you
issue a memo stating, “Please be
careful when hiring people ...
8/6/2014
26
Common Mistakes
You hire Angela Lopez and are
surprised when she hands you
a state-issued driver’s license
and...
8/6/2014
27
Recent OSC Settlements
June 12, 2014
Violation: Commercial Cleaning Systems required work-
authorized non-U.S....
8/6/2014
28
OSC Stats and Trends
During Fiscal Year 2013, the Office of
Special Counsel set a new record by
collecting alm...
8/6/2014
29
What to Do Next?
Facts of each case are different.
The general information provided
here should not be relied ...
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Avoiding Workplace Pitfalls: Domestic and Foreign Employee Compliance - Discrimination Claims

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Avoiding Workplace Pitfalls: Domestic and Foreign Employee Compliance. Employment Law Breakfast Series
Sponsored by Cowles & Thompson, PC & The International Business Council of the Frisco Chamber

Handout for Session II - Avoiding Discrimination Claims

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Avoiding Workplace Pitfalls: Domestic and Foreign Employee Compliance - Discrimination Claims

  1. 1. 8/6/2014 1 Avoiding Workplace Pitfalls Domestic and Foreign Employee Compliance Session II – Preventing and Defending Discrimination Claims Agenda 1 2 3 Discrimination Claims and North Texas Businesses Immigration Anti-Discrimination Pitfalls How to Prevent and Defend Employment Discrimination Claims Discrimination Claims & North Texas Businesses Mark Hill Shareholder, Cowles & Thompson, P.C.
  2. 2. 8/6/2014 2 Legal Landscape  100s of claims are filed in North Texas State and Federal Courts everyday.  Employment claims against local businesses are an increasing part of the legal landscape in Collin, Dallas and surrounding counties. Most Common Business Claims Fiduciary cases Contract cases EMPLOYMENT cases Employment Cases Non-compete Confidentiality & Trade Secret FLSA Discrimination
  3. 3. 8/6/2014 3 Common Types of Discrimination Disability Race, National Origin Age Gender Religion Discrimination Claims Filed within Last 2 Weeks! Disability Claims Oil & Gas Company •Amnesia, Medications (pro se) Consulting Business • Carpal Tunnel Retail Business • Cancer, Treatment
  4. 4. 8/6/2014 4 Race/National Origin Claims Automotive Business •Terminated, Retaliation Claim Telecommunications Company • Performance Hospitality Business • Harassment Age Claims Retail Business • Harassment, Policy Financial Institution • Termination What can the Business Owner do?
  5. 5. 8/6/2014 5 (…and how to help your case) Written Policy Consistent Documentation Preserve Records/File (…and how to help your case) Evaluate Termination Basis Witness ID & Review Be Cautious with Communications Recent Experiences DFW Medical Center Plano Technology Manufacturer
  6. 6. 8/6/2014 6 How to Prevent and Defend Employment Discrimination Claims Brian Farrington Shareholder, Cowles & Thompson, P.C Discrimination What is Discrimination? -not necessarily unfair or unreasonable What is the legal meaning of discrimination? -Adverse action against people because of protected group membership. So, it’s illegal to discriminate because of: Who is Protected? -Race (Title VII of Civil Rights Act of 1964) -Color (Title VII) -National Origin (Title VII) -Religion (Title VII) -Sex (Title VII) -Age, 40 and up (Age Discrimination in Employment Act—ADEA) -Disability (Americans With Disabilities Act—ADA)
  7. 7. 8/6/2014 7 Who is Protected? In Texas, these laws only apply to employers who have: -15 or more employees -on the payroll -for at least 20 weeks -of the current or preceding calendar year Other states have lower thresholds, or even cover all employers Who is Protected? States can also create additional protected groups—e.g., -Sexual Orientation -Marital Status -Off Duty Use of Legal Products Direct Evidence of Discrimination How do employees prove discrimination? One way is where there is DIRECT EVIDENCE of employment decisions motivated by protected group membership—e.g., Slack v. Havens
  8. 8. 8/6/2014 8 Disparate Treatment Where there is no direct evidence, there may be INDIRECT EVIDENCE. The most common model of a discrimination claim is DISPARATE TREATMENT (a/k/a the “SHIFTING BURDEN analysis”). Disparate Treatment Step 1: Employee must make a prima facie case. In a typical firing case, for example, here are the elements: -Member of protected group -Suffers an adverse action -Qualified for the job -Replaced Disparate Treatment Step 2: Employer must “articulate” a “legitimate, non-discriminatory reason” for the adverse action. At this point, the Employer relies on:
  9. 9. 8/6/2014 9 Disparate Treatment DOCUMENTATION -write-ups, performance appraisals, production records, attendance, etc. CONSISTENCY -with what Employer said it would do (e.g., policies); and -with what Employer has done in similar situations in the past Disparate Treatment Step 3: Burden shifts back to the Employee: -PROVE that the reasons given by the Employer are false -In the past, Employer would then have to show false reason was “pretext” for discrimination -Now, just giving false reasons allows jury to infer a discriminatory motive In Hiring, Promotions: Where a “facially neutral policy” has a harsher result for one or more protected groups than for others, it can be discriminatory. Examples: -Height requirements in police departments -Unnecessary education/training requirements Disparate Treatment
  10. 10. 8/6/2014 10 First articulated in Griggs v. Duke Power Co.: -prior to July 2, 1965, company would not hire Blacks -started hiring Blacks on July 2, 1965, but also started requiring high school diploma -in N. Carolina, only 11% of Blacks had diplomas (31% of Whites) So HS graduation requirement had DISPARATE IMPACT on Black applicants. Disparate Treatment If a criterion has a disparate impact, it is NOT automatically illegal. BUT: Employer must PROVE that the standard is “job related” and “consistent with business necessity.” Disparate Treatment EEOC is looking very hard at such disparate treatment issues as: -Criminal background checks (“ban the box”) =must consider nature of offense, elapsed time, subsequent history, relation of offense to job. -Credit checks Disparate Treatment
  11. 11. 8/6/2014 11 “4/5ths” Rule: -if pass rate of any group is less than 80% of pass rate for other group(s), there is a disparate impact Disparate Treatment Testing: How does Employer prove a test that has a disparate impact is job related and consistent with business necessity? Uniform Guidelines on Employee Selection Procedures—29 CFR 1607 Three ways to show test is valid Disparate Treatment 1.Measures a skill or aptitude required by the job—e.g., typing test. 2.Identifies personality traits or aptitudes which are important to the job—e.g., communication skills in sales employees 3. Predicts success on the job—history shows that the better candidates do, the more likely they are to succeed. Disparate Treatment
  12. 12. 8/6/2014 12 Pregnancy Gilbert v. General Electric, 1976—discrimination against pregnant people NOT sex discrimination Pregnancy Discrimination Act, 1978—Oh yes it is! Pregnancy must be treated as any other temporary medical disability (but no special treatment or accommodation required) Health insurance and income maintenance benefits must be equal Seniority of female on maternity leave continues Exception (BFOQ) very narrowly interpreted -UAW v. Johnson Controls: as long as pregancy does not interfere with ability to perform job, employee must be allowed to work Pregnancy PDA does not require maternity leave, but FMLA does. Family Medical Leave Act: covered employers must provide up to 12 weeks job protected leave for pregnancy (and other serious health conditions). “Covered Employer” has 50 employees, or is government agency. Pregnancy
  13. 13. 8/6/2014 13 Eligible Employee: -worked for employer for 12 months -in 12 months preceding leave, worked 1,250 hours or more -works at a location where employer has at least 50 employees within 75 miles Pregnancy Although PDA does not require “accommodations,” and ADA does not define pregnancy as a disability, EEOC is looking very hard at ways to protect pregnant employees. New guidance issued by EEOC recently points out that many conditions associated with pregnancy can be disabilities, and would require accommodation. Pregnancy Sexual Harassment "Quid Pro Quo“ -Exchange of job favors for sexual favors. -Done by Supervisor/Agent -Company is responsible.
  14. 14. 8/6/2014 14 Hostile or Offensive Environment -"Unwelcome" sexual advances. -Objectively offensive—reasonable person in the place of the victim would find conduct offensive Sexual Harassment "Unwelcome" Physical or Verbal Conduct of a Sexual Nature -"Unwelcome" - both objectively and subjectively -Must be serious and pervasive, not isolated or incidental Sexual Harassment -Physical conduct - touching, etc. - even one incident may be enough. -Verbal =Comments on body, clothing, appearance =Jokes =Description/questions on love life =Miscellaneous—Pictures, novelties Sexual Harassment
  15. 15. 8/6/2014 15 Company Liability—If hostile environment created by co-worker, company is not liable if: -Company did not know of conduct. -Company had no reasonable way to know. -Anti-harassment policy/complaint mechanism is in place Sexual Harassment Hostile or offensive environment if supervisor does it: -If supervisor does it, and a tangible job detriment occurs (e.g., demotion, discharge), employer is strictly liable -If supervisor does it, and no tangible job detriment occurs, company is liable but can raise affirmative defense Sexual Harassment Affirmative Defense -Company has widely disseminated and effective internal complaint process -Employee does not take advantage of internal complaint process Sexual Harassment
  16. 16. 8/6/2014 16 Disability Americans with Disabilities Act (ADA) Definition of "disability:" -any physical or mental condition which substantially limits one or more of an individual's major life activities; or -a record of such impairment; or -being regarded as having such an impairment Disability Qualified individual with disability -meets basic qualifications (education, experience, etc.) -can, with or without reasonable accommodation, perform essential functions of job Disability -Requires "reasonable accommodation" unless "undue hardship" - tough definition of undue hardship -Forbids any pre-offer inquiries about health/disability
  17. 17. 8/6/2014 17 Age Discrimination -Protected group is age 40 & up -NO MANDATORY RETIREMENT! -RIF's, layoffs - modified prima facie case =RIF criteria applied uniformly =statistics alone don’t make a case (but support one) Religion Reasonable accommodation required, unless more than de minimus cost Conflict with dress and grooming codes Observance of holidays, etc. Interviews/Applications If you need to know, ask; if not, don't: -Age, date of birth - child labor only -Race, religion, national origin - NO! (not even a photo)
  18. 18. 8/6/2014 18 Interviews/Applications Disability, etc. -Have job description listing essential functions -Ask only if can perform essential function -If applicant initiates it, discuss reasonable accommodations -Education - only to the extent relevant -Sex, marital status, family, etc. - don't ask -Arrest, conviction, deferred adjudication - you may ask about convictions only - have disclaimer Interviews/Applications -Garnishment - No -Bankruptcy - No -Citizenship - No. Say that the company, in compliance with IRCA, requires proof of identity and eligibility to work. (I-9) Interviews/Applications
  19. 19. 8/6/2014 19 Application Form -EEO statement -Authorization for pre-employment testing -Misleading, inaccurate information or omissions grounds for termination Interviews/Applications -Authorization for previous employers, schools, etc. to provide or confirm information. Release these from liability. -Statement of at-will status (cannot be varied by anyone except --) Interviews/Applications Pre-employment inquiry guide – lists acceptable and unacceptable questions – most states with anti-discrimination laws have them—get one! Interviews/Applications
  20. 20. 8/6/2014 20 Terminations Do a risk profile: -Warning and chance to improve (unless must fire ASAP) -Consistent with own policy -Age -Sex (pregnant?) -Effect on EEO profile -Seniority -Replacement -Adequate documentation -Consistent with previous actions in similar situations -Recently on medical/workers comp leave Terminations Termination Interview -Rehearse -Employer witness (who takes notes) -Choose time and place to minimize discomfort, embarrassment, humiliation Terminations
  21. 21. 8/6/2014 21 -Brief and clean - not too specific -Don't argue -Don't let them down too easily -Explain any benefits, last paycheck, payment of vacation/sick/severance, COBRA, etc. Terminations -Allow opportunity to vent (he may even agree - good at trial!) -No improper comments, and don't be trapped into making them -Detailed narrative later - signed by both Terminations Immigration Anti-Discrimination Pitfalls Angela M. Lopez Shareholder, Cowles & Thompson, P.C
  22. 22. 8/6/2014 22 Department of Homeland Security U.S. Citizenship and Immigration Service (USCIS) www.uscis.gov - immigration benefits and services U.S. Customs and Border Protection (CBP) – www.cbp.gov – border patrol and international travel facilitation Department of Homeland Security Immigration and Customs Enforcement Investigates employers for compliance with employment employer verification rules and removes undocumented aliens from the United States www.ice.gov U.S. Department of Labor Investigates employer verification compliance, visa compliance, violation of worker rules www.foreignlaborcert.doleta.gov
  23. 23. 8/6/2014 23 U.S. Department of Justice Office of Special Counsel (OSC) Investigates and prosecutes charges of immigration-related unfair employment practices www.usdoj.gov/crt/osc Prohibited Conduct Citizenship or Immigration Status Discrimination National Origin Discrimination Document Abuse Retaliation or Intimidation Citizenship/Immigration Status Discrimination Prohibits different treatment because of citizenship or immigration status Protects US citizens, recent permanent residents, temporary residents, asylees or refugees only
  24. 24. 8/6/2014 24 National Origin Discrimination Prohibits different treatment because of place of birth, country of origin, ancestry, native language, accent, or looks or sounds “foreign” Protects ALL work authorized individuals Document Abuse Prohibits request for more or different documents than required or rejection of genuine-looking documents Prohibits requirement of specific documents based upon citizenship status or national origin Protects ALL work authorized individuals Common Mistakes Your supervisor catches you before you start interviewing applicants for a job. She says, “Find out if those two near the door have their ‘green cards’ before you waste your time. Did you discriminate in hiring?
  25. 25. 8/6/2014 25 Common Mistakes As president of your company, you issue a memo stating, “Please be careful when hiring people who look like they crossed the border illegally.” Have you committed national origin discrimination? Common Mistakes You find two equally qualified candidates to fill one position. In deciding between the two, you decide on one because he is a permanent resident and the other, an asylee, only has a temporary work permit (EAD). Have you committed citizenship status discrimination? Common Mistakes You implement an employee referral program. Unofficially, you tell employees that you prefer they only refer applicants who are U.S. citizens. Are you in compliance with the INA?
  26. 26. 8/6/2014 26 Common Mistakes You hire Angela Lopez and are surprised when she hands you a state-issued driver’s license and an unrestricted Social Security card for her I-9 form. You say, “I must see a card issued by the USCIS.” Does Angela have a case against you? Penalties for Anti-Discrimination Violations $100 to $16000 depending upon the violation Back pay (no more than 2 years before claim was filed) Hire or re-hire Personnel Training Attorney Fees
  27. 27. 8/6/2014 27 Recent OSC Settlements June 12, 2014 Violation: Commercial Cleaning Systems required work- authorized non-U.S. citizens to present specific documents issued by the USCIS in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation. Settlement: $53,500 in civil penalties, $25,000 back pay fund a result of the company’s discriminatory document practices, and government oversight of its employment eligibility verification practices for one year. Recent OSC Settlements May 7, 2014 Violation: Master Klean Janitorial subjected work-authorized non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation. Settlement: $75,000 in civil penalties, undergo training on the anti-discrimination rules, revise employment eligibility verification policies, and government oversight of its employment eligibility verification practices for one year. Recent OSC Settlements April 24, 2014 Violation: El Rancho required lawful permanent residents to present a new employment eligibility document after being hired when their Permanent Resident cards expired, even though the Form I-9 and E-Verify rules prohibit this practice because lawful permanent residents have permanent work authorization in the United States, even after their Permanent Resident cards expire. Settlement: $43,000 in civil penalties, undergo training on the antidiscrimination rules, and government oversight of its employment eligibility verification practices for one year.
  28. 28. 8/6/2014 28 OSC Stats and Trends During Fiscal Year 2013, the Office of Special Counsel set a new record by collecting almost $900,000 in civil penalties under the anti-discrimination provision of the INA. Over the same period, the Office also collected over $250,000 in back pay relief for victims of discrimination. OSC Referral Sources USCIS Department of Labor – Wage & Hour Legal Aid Bureaus Immigrant Advocacy EEOC
  29. 29. 8/6/2014 29 What to Do Next? Facts of each case are different. The general information provided here should not be relied and is not legal advice. Consult with an experienced attorney to get the right advice for your specific circumstances. 901 Main Street Suite 3900 Dallas, Texas 75202 214-672-2000 info@cowlesthompson.com www.cowlesthompson.com How to connect with us

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