Utah SHRM Crossroads Conference | Davis Convention Center in Layton, Utah - Derek Langton - September 24 and 25, 2019

1. Utah SHRM Crossroads Conference
September 24 and 25
Davis Convention Center | Layton, Utah
PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M .
Essential Tips for Avoiding
Discrimination Claims
Derek Langton
801.536.6704 | dlangton@parsonsbehle.com

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SCOPE OF THE PROBLEM
 In Utah, there was a 146% rise in the number of workplace
discrimination claims brought in the last decade
o There were 107 charges of discrimination filed in 2009
o There were 264 charges filed in 2017
 With respect to sexual harassment charges filed with the
EEOC nationwide, there was a 12% increase from FY2017
to FY2018, which was the first increase in such charges in
five years

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SCOPE OF THE PROBLEM (cont’d.)
 In FY2018, EEOC’s litigation attorneys filed 41 separate
sexual harassment federal lawsuits, which was more than a
50% increase from the previous year
 Reasonable cause findings in sexual harassment cases
increased from 970 to nearly 1,200, an increase of more
than 23%
 In FY2018, the EEOC recovered nearly $70 million for
victims of sexual harassment through administrative
enforcement proceedings and litigation – an increase of
more than 22% over FY2017

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SCOPE OF THE PROBLEM (cont’d.)
A survey conducted in March 2018 by the Working
Mother Research Institute and the ABA Journal
surveyed almost 3,000 people online, 65% of whom
were female
o Of the female respondents, 68% indicated that they had
experienced sexual harassment at work

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SCOPE OF THE PROBLEM (cont’d.)
o But importantly, only 30% reported the harassment to
the company
o The main reasons for not reporting the harassment
were that: it would negatively impact their job; a belief
that such behavior was tolerated; and lack of
confidence that senior leadership would address the
issue

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SCOPE OF THE PROBLEM (cont’d.)
Workplace harassment can negatively impact employers in a
variety of ways, including:
 Loss of employee morale
 Employee turnover
 Increased absences
 Reduced productivity
 Distraction of company’s personnel in gathering documents,
conducting investigation, and time invested in fighting claim
 Amounts paid in settlement or awarded by jury
 Legal fees

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AVOIDING CLAIMS IN THE HIRING PROCESS
 Discrimination in the hiring process happens when an employer
selects a candidate based on criteria other than applicant’s
qualifications
 Employers need to be careful not to discriminate against
applicants due to, among other things, race, gender, religion,
age (40 and over), national origin, disability or pregnancy (and in
Utah, sexual orientation and gender identity)
 To avoid discrimination in the hiring process, an employer needs
to analyze the duties required for the position being filled – what
are the essential job functions?

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AVOIDING CLAIMS IN THE HIRING PROCESS
 The employer should develop specific education and
experience qualifications for job candidates for the position;
require only those qualifications necessary to perform the
required duties of the particular position
 During the interview process, ask questions designed to
determine whether the applicant meets the qualifications for
the particular position
 The interviewer should write out the interview questions
based on the analysis of the duties required for the position,
and the education and experience qualifications required

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AVOIDING CLAIMS IN THE HIRING PROCESS
 Ignore reference to one of protected classes that an
applicant may make (e.g., pregnancy), and inform the
candidate that it will not be a factor in the selection
 Ask each applicant every question on your list; follow-up
questions may vary depending on the applicant’s response
 At least two people should attend each interview on behalf
of employer
 At least one person should keep good notes of the interview

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AVOIDING CLAIMS IN THE HIRING PROCESS
Everyone involved in hiring process should receive
training about:
o Basics of Title VII, ADA, ADEA, etc.
o Nuts and bolts of interviewing
o How to properly conduct background and reference checks
o Training or refresher on Company policies and benefits
• Leave, seniority, vacation, etc.
• Where Company doesn’t have policies (e.g., – too small for FMLA)
o Following procedures for every hire

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AVOIDING CLAIMS IN THE HIRING PROCESS
HYPOTHETICAL SITUATION:
Don is a 58-year-old attorney. He applies for a senior inhouse position
in FotoKonnect’s legal department. The job description required
applicants to have “3 to 7 years (no more than 7 years) of relevant legal
experience.” Don had more than seven years of pertinent experience.
FotoKonnect did not hire Don, but instead hired a 29-year-old applicant
who met but did not exceed the prescribed experience requirement.
Don sues FotoKonnect for age discrimination.
Did FotoKonnect engage in prohibited discrimination?

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AVOIDING CLAIMS IN THE HIRING PROCESS
HYPOTHETICAL SITUATION:
Carol applied for a warehouse job. At the interview, the hiring official
told her the job requirements and asked if she would be able to meet
them. One of the job requirements was the ability to lift up to 50
pounds. Carol said that she could not meet the lifting requirement
because she was pregnant but otherwise would be able to meet the job
requirements. She was not hired. The employer asserts that it did not
select Carol because she could not meet the lifting requirement and
produces evidence that it treats all applicants the same with regard to
this hiring criterion.
Did the company unlawfully discriminate against Carol?

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AVOIDING CLAIMS IN THE HIRING PROCESS
ADA – Employment Medical Inquiries
The ADA limits an employer's ability to make disability-related
inquiries or require medical examinations at three stages:
pre-offer, post-offer, and during employment. The rules
concerning disability-related inquiries and medical
examinations are different at each stage.

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AVOIDING CLAIMS IN THE HIRING PROCESS
Medical Inquiries – Pre-Offer
At the first stage (prior to an offer of employment), an
employer may not ask any disability-related questions or
require any medical examinations, even if they are related to
the job.

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AVOIDING CLAIMS IN THE HIRING PROCESS
Medical Examinations – Conditional Offer
 At the second stage (after an applicant is given a
conditional job offer, but before he or she starts work),
an employer may ask disability-related questions and
conduct medical examinations, regardless of whether they
are related to the job, as long as it does so for all entering
employees in the same job category.
 But if criteria ultimately screens out individuals with
disabilities, the criteria must be job-related and consistent
with business necessity.

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KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
 Culture. Culture has to come from the top – dignity and
respect; zero tolerance for discrimination or harassment
 Policy. Company must have strict and clear policy that
prohibits employment discrimination or harassment
o Policy should be easy to understand
o Policy should provide at least two, and preferably several, different
persons to whom complaints or reports can be made (e.g.,
immediate supervisor, head of HR, officers or partners)
o Policy should be updated periodically to ensure that it complies
with current law

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KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
 Training of managers/supervisors. Company needs to
train managers and supervisors regarding implementation of
anti-discrimination and anti-harassment policy with
expectation that prevention is their responsibility
 Training of employees. Company needs to train
employees about company policy, and about how to report
or complain about discrimination or harassment
o Be sure to have employees sign off on a training record to indicate
that they attended the training, and are aware of the company’s
policy and the complaint and/or reporting process

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KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
 Procedures for addressing complaints. Have procedures in
place for addressing complaints and who will address them; all
complaints should be addressed promptly
 Investigating complaints
o Investigate all complaints and reports thoroughly and promptly
o Let the parties know that you cannot guarantee a particular result,
but you can guarantee a fair process
o Interview the complainant or person reporting the harassment or
discrimination, all other relevant witnesses, and then the alleged
discriminator/harasser

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KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
 Investigating complaints (cont’d)
o Seek to maintain confidentiality to extent reasonably possible
o Warn the discriminator/harasser that no retaliation will be tolerated
o Ask neutral, not accusatory questions, preferably open-ended
questions; ask about and obtain any corroborating documents
o Ask about any alleged similar acts of discrimination/harassment or
other inappropriate behavior
o Determine quickly whether immediate, temporary action should be
taken to separate the parties during the investigation

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KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
 Implementing appropriate remedial action
o Upon completion of investigation, you need to make decision
regarding the extent to which you believe that the complainant or
victim was subjected to unlawful harassment or discrimination
o You will have to decide whose testimony is more credible – the
complainant/victim and witnesses or the alleged
discriminator/harasser
o Decide on discipline for the discriminator/harasser, if any – write-
up; suspension (with or without pay depending on any applicable
policies); termination
o Inform complainant/victim of decision

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KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
 Implementing appropriate remedial action (cont’d.)
o Consistency is always important – similar conduct should result in
similar discipline, subject to consideration of history of past
conduct
o Document why you took action the action you did (who you
interviewed, who you believed and why, and why the discipline is
appropriate)
o Disciplinary action goes in personnel file of accused
o The interview summaries should go in a separate investigation file
– not the personnel files of the victim or the witnesses

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KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
HYPOTHETICAL SITUATION:
You are the Director of HR for ABC Widgets. A female employee from the
company’s Sales Department comes into your office and tells you that on the
previous day, the Director of Sales asked the employee if she wanted to go out
for drinks after work. Although she was uncomfortable about the invitation,
she agreed to go out for drinks. After work, they went to a nearby bar, where
they each consumed several alcoholic drinks. Afterwards, they both got into
the Sales Director’s car in the parking lot of the bar. According to the
employee, the Sales Director kissed her and then groped her, at which point
she told him to stop and quickly got out of the car and left. She tells you that
she wanted you to know about the incident, but doesn’t want to get the Sales
Director in trouble, and doesn’t want you to do or say anything about it.
What should you do?

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KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
HYPOTHETICAL SITUATION:
Once again, you are the Director of HR for ABC Widgets. ABC Widgets’
leave policy does not cover employees until they have worked for six
months. An employee who has worked for only three months comes
into your office and tells you that she has a disability, and her doctor
informed her that she needs four weeks of leave for treatment of a
disability, starting as soon as possible.
What should you tell her?

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AVOIDING CLAIMS IN THE FIRING PROCESS
Termination of an Individual Employee
 Make sure there are legitimate reasons for termination
 Assess potential legal risk (be sure to involve HR and legal
counsel, if necessary)
 Create and maintain relevant documents, including
performance reviews, disciplinary warnings, etc.
 Is employee entitled to severance compensation, and if not,
should severance be offered in exchange for release?
 Deliver the termination message appropriately

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AVOIDING CLAIMS IN THE FIRING PROCESS
Delivering the Message
 Timing
 Prepare for and rehearse
 As always, have a witness
 Be direct; give the real reasons but without details; be sure
that reasons are consistent with all relevant documents
 Avoid giving excuses or personal statements
o For example, don’t say, “This is not my decision,” or “I don’t agree
with the company’s decision.”

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AVOIDING CLAIMS IN THE FIRING PROCESS
Delivering the Message (cont’d.)
 Avoid arguments, but be open to questions or concerns
o Answer questions honestly, but succinctly
 Outline status of available employee benefits
 Be prepared for negative reaction
o Do we need to have security nearby?
 Be sensitive, respectful and professional

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AVOIDING CLAIMS IN THE FIRING PROCESS
Implementing a RIF
 Create a RIF Committee or put one person in charge of
overseeing the RIF
 Analyze severance pay issue
 Determine how many employees will need to be discharged
and from which areas
 Determine criteria to be used in deciding which employees
will be retained and which ones will be discharged

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AVOIDING CLAIMS IN THE FIRING PROCESS
Implementing a RIF (cont’d.)
 Inform managers or front-line supervisors or other decision-
makers who will be making decisions or recommendations
about whom to keep and whom to let go about these criteria
o Criteria are to be strictly followed
o Managers/supervisors should be cautioned not to select
employees to be included in RIF based upon their proximity to
retirement

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AVOIDING CLAIMS IN THE FIRING PROCESS
Implementing a RIF (cont’d.)
 Review by RIF Committee (or person in charge of RIF)
o Individual cases
o Bottom line numbers

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 Derek Langton
801.536.6704
dlangton@parsonsbehle.com
Thank You