Getting Ahead of Discrimination & Harassment Claims
1. Getting Ahead of the
Discrimination & Harassment Curve
Tamsen Leachman
Dunn Carney
2. Our Program
• What is driving the change?
• What are the new threats?
• Preventing, preparing for & defending claims
• Becoming a world class organization
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. 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. 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. 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. 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. 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. Dear Tom:
WHAT Were You Thinking?
• SHRM - 20% of employers scraped a candidate
because of something found on the internet
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. 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. Screening Criteria & Testing
• Disproportionate exclusion
of certain groups prohibited
unless…
– Accurate predictors of
success
– Justified business needs
– ‘Validated’ tests or
methods safer
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. 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. 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. Assess Your Tools
• Good predictors of success
• Unintended consequences
• Consistently used
• Facilitators trained and records maintained
• Accommodation requests always considered
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
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. 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. 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. 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
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. 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. 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
32. Watch Out For …
• English-only policies
• Posters, training, testing
& other information not
offered in language of
significant group
• Accent complaints leading
to discipline
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. 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
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. 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. 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
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. 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
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. 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. 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. 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
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
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. 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. 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. 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. 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
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. 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
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
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. ‘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. 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. 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
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.
