2. Today’s Topics
1. Current issues in employment
discrimination.
2. Current issues in the law of
harassment.
3. How to prevent claims of
discrimination and harassment.
5. ENDA Wins Support Of Senate
Democrats’ Last Holdout
Law 360, New York (October 31, 2013, 3:53
PM ET) -- Sen. Joe Manchin, D-W. Va.,
intends to vote for the Employment Non-
Discrimination Act, his office confirmed
Thursday, meaning the proposed legislation
outlawing discrimination against employees
or job applicants based on their sexual
orientation of gender identity now has the
support of all 54 Senate Democrats.
6. Current Law On Discrimination
I.C. § 67-5909
“It shall be a prohibited act to discriminate against a
person because of, or on a basis of, race, color, religion,
sex or national origin . . . and on the basis of age or
disability . . . .”
Title VII
Prohibits discrimination on the basis of race, color,
religion, sex, and national origin.
7. Boise City Anti-Discrimination
Ordinance
Enacted in 2013.
Passed for other cities: Coeur
d’Alene, Ketchum, Moscow,
Pocatello, Sandpoint, Idaho Falls.
See handouts.
8. History
MaryAnne Jordan: send message
that discrimination is not allowed in
Boise.
Remove threat of termination if
gender identity or sexual
orientation disclosed.
9. What It Accomplishes
Prohibits discrimination on basis of
gender identity and sexual
orientation in matters of
employment, housing, and places
of public accommodation.
10. Violation
Violation is a criminal misdemeanor
punishable by a fine of up to
$1,000 and/or up to six months in
jail.
11. No Private Right Of Action
There is no private right of action
created by this chapter or money
damages available.
12. Purpose
City Attorney’s office drafted to protect
identity of complaining parties and
persons against whom allegations are
made.
Modeled after criminal code so
investigative file can be confidential.
Avoid risk of public record request.
14. Fines
Can be reduced to a civil infraction
punishable by a $100 fine plus
court costs if “defendant takes
remedial measures, trains
employees, or otherwise conforms
conduct . . . .”
16. Practical Impacts
Yes, but can’t go to jail and can’t
be cited for contempt if they fail to
pay.
17. Practical Impacts
2014 – 2 complaints.
Goal – not to issue any citations.
Criminal component.
Civil component.
Mediation aspect.
18. 2014 Statistics
133% increase in same-sex assault
reported.
1600% increase in same-sex
domestic violence reported.
100% increase in same-sex
strangulation reported.
19. Takeaways
1. Be aware it exists.
2. Good business not to discriminate on any
basis.
3. Risk of citation minimal.
4. Lots of ways to resolve.
5. Avoid bad publicity and risk of becoming first
business to set precedent.
6. Stay tuned: could see state or federal
legislation.
29. Hatheway v. Board of
Regents of University
of Idaho
2013 WL 4768311
(2013).
30. Hatheway
Co-worker paid more.
President’s speech:
“We have a responsibility to retire when
we’re not as productive . . . . It’s time to get
out of the way.”
Negative evaluation.
No raise.
31. Hatheway
“[T]his year there have been repeated instances of
Lillian acting unprofessionally toward another staff
member, and in venting about that person and the
department chair in front of others in the unit.
Against her co-worker, often when I have been
away from the office, she has repeatedly launched
tirades, it appears without provocation. These
confrontations have not reflected civility or respect;
they have sometimes merely been hurtful.”
32. Hatheway
Clarifies requirements of prima facie case of
age discrimination.
Poor evaluation that results in no raise can
be an adverse action.
Mere ostracism in workplace not adverse
action – not enough to be “kept out of the
loop.”
Mere inconveniences or alterations of job
responsibilities are not adverse actions.
33. Hatheway
Hatheway failed to show pretext.
Performance evaluation is very
specific as to how she failed to
meet expectations.
34. Takeaways
Regular and honest evaluations
detailing performance issues can
protect you from discrimination
claims.
Keep HR files updated.
Document progressive discipline.
38. Elements Of A Hostile Work
Environment Claim
1. Subject to sexual advances or favors
or verbal or physical conduct of sexual
nature.
2. Conduct unwelcome.
3. So severe or pervasive to alter
conditions of employment.
4. Subjective and objective component.
41. Jeremiah
Elements can be altered for other
protected classes.
In Jeremiah, the court found severe
and persuasive discrimination based
on national origin to alter conditions of
workplace.
42. Supreme Court On Harassment
Vance v. Ball State University
133 S. Ct. 2434 (2013)
44. Vance
Vance (banquet worker) claimed
Davis (co-worker) was a supervisor
who discriminated against her.
Claimed Davis glared, blocked her
exit on elevator, slammed pots and
pans.
45. Vance
Davis did not hire and fire.
Was she a supervisor?
Why does it matter?
46. Vance
Higher burden of proof for
employees who sue employers for
alleged discrimination of co-worker.
Easier for an employee to win a
case if a supervisor discriminates.
47. Standards
If supervisor discriminates, employer is
strictly liable if harassment resulted in a
tangible employment action.
If co-worker discriminates, employer is
liable only if they knew or should have
known of harassment and if they were
negligent in addressing conduct.
48. Vance
Court – narrowed definition of
supervisor to only those who hire
and fire. It’s a supervisor if they
are “empowered to take tangible
employment actions.”
49. Takeaways
1. Take harassment claims seriously.
2. Even if it’s a co-worker accused of discriminating,
employer can be liable if they are negligent in
addressing it.
3. Recordkeeping: document complaints and
actions you take to educate employees.
4. Keep policies updated.
1. Anti-discrimination.
2. Reporting.
50. Takeaways (cont’d.)
5. Make sure supervisors have up-to-date training.
6. Update job descriptions. Clarify whether hiring or
firing responsibility, especially if none exists.
7. Few people will qualify as supervisors under Title
VII.
8. Idaho courts may not take such a conservative
approach.
59. Protect Your Business
Request employee signature at bottom of review.
Who should perform? Supervisor. It is hard, but
essential, to be honest.
Process to contest.
Evaluation should contain no surprises.
60. Protect Your Business
“[T]his year there have been repeated instances of Lillian
acting unprofessionally toward another staff member,
and in venting about that person and the department
chair in front of others in the unit. Against her co-worker,
often when I have been away from the office, she has
repeatedly launched tirades, it appears without
provocation. These confrontations have not reflected
civility or respect; they have sometimes merely been
hurtful.”
Hatheway v. Board of Regents of University of Idaho,
2013 WL 4768311 (2013).
63. “[E]mployees should clearly understand that the
extent to which progressive discipline is imposed
is in the sole and exclusive discretion of
management. Nothing in this policy shall be
deemed to limit the right of the company to
terminate an employee at any time for any
reason.”
Peterson v. Exide Technologies, 2012 WL
1184001 (10th Cir. 2012).
65. McGinest v. GTE Service Corp.,
360 F.3d 1103 (9th Cir. 2004)
“GTE took no action to send a message that such graffiti
was intolerable, or to recognize that it differed in kind from
other graffiti prevalent in the bathrooms. . . . GTE could
have heavily emphasized to all employees that serious
punishment would result if the perpetrators of this or future
incidents were caught, underlining the fact that such
behavior was neither tolerated or condoned. . . . At a
minimum, GTE could have informed the offended
employees that it would make efforts to prevent the
reappearance of such graffiti, and had a manager check
the areas in question on a regular basis to ensure that this
problem did not recur. . . . On the record before us, GTE
did none of these things.”
66. Investigations
1. Timely.
2. By the right person.
3. Must demonstrate your business took it seriously
and was fair.
4. Follow your policies.
5. Limit it to those involved.
6. Update alleged victim.
67. Policies On
Discrimination/Harassment
1. We do not tolerate.
2. Define.
3. Reporting responsibility.
4. Applies not just to acts by employees.
5. Complaint, reporting, and handling.
6. Will promptly and fully investigate (and provide
remedy).
7. No retaliation.
8. Consequences.
