Employment lawsuits and government audits and investigations are at a record high. In 2013 the government settled the largest immigration fine in history with a Plano, TX based company in the amount of $34 million for charges of visa and I-9 non-compliance. Avoid the penalties, damages, and negative publicity for those who have been caught unaware. Regardless of size or industry, your company must be able to prove its observance of federal and state employment laws and regulations concerning both domestic and foreign workers. The Frisco Chamber of Commerce International Business Council and Cowles & Thompson, PC present three educational events to help your organization meet regulatory challenges for your domestic and foreign employee workforce.
This presentation gives tips and tools to prevent and defend against employment and immigration discrimination claims.
4. 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.
16. How to Prevent and Defend
Employment Discrimination Claims
Brian Farrington
Shareholder, Cowles & Thompson, P.C
17. 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:
18. 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)
19. 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
20. Who is Protected?
States can also create additional protected
groups—e.g.,
-Sexual Orientation
-Marital Status
-Off Duty Use of Legal Products
21. 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
22. 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”).
23. 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
24. Disparate Treatment
Step 2: Employer must “articulate” a
“legitimate, non-discriminatory reason” for
the adverse action. At this point, the Employer
relies on:
25. 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
26. 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
27. 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
28. 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
29. 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
30. 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
31. “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
32. 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
33. 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
34. 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)
35. 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
36. 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
37. 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
38. 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
39. Sexual Harassment
"Quid Pro Quo“
-Exchange of job favors for sexual favors.
-Done by Supervisor/Agent
-Company is responsible.
40. Hostile or Offensive Environment
-"Unwelcome" sexual advances.
-Objectively offensive—reasonable person in
the place of the victim would find conduct
offensive
Sexual Harassment
41. "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
42. -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
43. 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
44. 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
45. Affirmative Defense
-Company has widely disseminated and
effective internal complaint process
-Employee does not take advantage of internal
complaint process
Sexual Harassment
46. 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
47. Disability
Qualified individual with disability
-meets basic qualifications (education,
experience, etc.)
-can, with or without reasonable
accommodation, perform essential functions
of job
49. 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)
51. 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)
53. -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
54. -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
56. -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
57. Pre-employment inquiry guide – lists acceptable
and unacceptable questions – most states
with anti-discrimination laws have them—get
one!
Interviews/Applications
58. 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
61. -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
62. -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
64. 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
65. 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
66. U.S. Department of Labor
Investigates employer verification
compliance, visa compliance,
violation of worker rules
www.foreignlaborcert.doleta.gov
67. 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
70. 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
71. 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
72. 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?
73. 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?
74. 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?
75. 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?
76. 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?
79. 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.
80. 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.
81. 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.
82. 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.
85. 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.
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Suite 3900
Dallas, Texas 75202
214-672-2000
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