Idaho Healthcare Compliance Bootcamp Discrimination Laws: What You Need To Know

1. Idaho Healthcare Compliance BootcampDiscrimination Laws:What You Need To Know A. Dean Bennett Holland & Hart LLP

2. Today’s Agenda • Recognizing the Issue   • Discrimination overview – federal and state laws • Developing issues - sexual orientation and pregnancy discrimination • Investigation and Enforcement - EEOC / IHRC • Responding to EEOC and other agencies • Best Practices

3. Recognizing the Issue • Employers cannot unlawfully discriminate based upon protected characteristics • Anti-discrimination laws prohibit: • adverse actions (e.g., firing, failing to hire, pay differences, etc.) • harassment (quid pro quo and hostile work environment) • retaliation

4. Idaho Anti-Discrimination Law • Idaho Human Rights Act - 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 . . . .”

5. Federal Anti-Discrimination Laws • Title VII of the Civil Rights Act Prohibits discrimination on the basis of race, color, religion, sex, and national origin • Age Discrimination in Employment Act (ADEA) • Americans with Disabilities Act (ADA) • Genetic Information Nondiscrimination Act (GINA) • Pregnancy Discrimination Act (PDA) • Equal Pay Act (EPA)

6. Disparate Treatment • Treating applicant or employee differently based on protected characteristics • Examples: • Female secretary paid less than male secretary • Conducting background checks on African American applicants but not on white, Hispanic or other race applicants

7. Disparate Impact • Neutral conduct that has an adverse effect on a protected group • Examples: • Requiring a college degree – screens out more blacks than whites • Minimum 5’6’’ height requirement – screens out more females than males

8. Harassment • Quid Pro Quo – benefit in exchange for sexual favors • Hostile Work Environment • Unwelcome physical or verbal conduct • Based on gender (but may be same sex), or another protected characteristic such as race, religion, age • Sufficiently severe or pervasive to create an abusive working environment and alter working conditions • Employer knew or should have known of the offensive environment

9. Who is Liable for Harassment? • Supervisors may be individually liable • If tangible employment action - Strict liability • If no tangible employment action -Liability where the employer knew or should have known of the conduct, and failed to take appropriate corrective action

10. Defense to HWE Harassment Only available when no tangible adverse action: • Employer used reasonable care to prevent & correct bad behavior AND • Employee unreasonably failed to take advantage of corrective opportunities or otherwise avoid harm

11. Retaliation • Opposition to discrimination • Filing or threatening to file a complaint or charge • Complaining about discrimination or harassment • Refusing to obey an order • Requesting reasonable accommodation • Oral Complaints • Participation • Assisting in an investigation • Testifying in a case

12. Hot Issues In Discrimination • Sexual Orientation • Pregnancy

13. Sexual Orientation • Federal enforcement – executive order covers federal contractors and application to public employees • State enforcement – current debate regarding “Add the Words” – bill failed in early 2015 • Local Enforcement – currently ten cities in Idaho

14. Boise Anti-Discrimination Ordinance • Enacted in 2013 • Passed for other cities: Coeur d’Alene, Ketchum, Moscow, Pocatello, Sandpoint, Idaho Falls, Lewiston, Victor, Driggs (2015) and Hailey (2015) • Some prohibit gender identity discrimination too

15. What Boise’s Ordinance Does • Prohibits discrimination on basis of gender identity and sexual orientation in matters of employment, housing, and places of public accommodation • Violation is a criminal misdemeanor punishable by a fine of up to $1,000 and/or up to six months in jail • No private right of action

16. Takeaways • Be aware it exists • Good business not to discriminate on any basis • Risk of citation minimal • Lots of ways to resolve • Avoid bad publicity and risk of becoming first business to set precedent • Stay tuned: could see state or federal legislation

17. Pregnancy Discrimination

18. Pregnancy Discrimination Act Of 1978 • Amended Title VII to cover pregnancy discrimination • Covers hiring, firing, promoting • Must be treated the same as non-pregnant employees who are similar in ability or inability to work

19. EEOC Guidance • July 2014 – Enforcement Guidance on Pregnancy Discrimination • Called into question recently by U.S. Supreme Court (Young v. UPS) • Reasonable accommodations for pregnant workers under ADA

20. Administrative Enforcement Federal Level • Equal Opportunity Employment Commission State Level • Idaho Human Rights Commission

21. Idaho Statistics

22. EEOC Statistics for Idaho

23. Internal Response Before Claim • Take swift action upon receipt of claim or if aware of issue • Consider insurance coverage and notice • Conduct internal investigation • Involve counsel to preserve privilege • Be aware of retaliation and shunning issues • Consider preservation obligation and implement litigation hold

24. Agency Investigation • EEOC or other Responsible Agency will investigate alleged unlawful discrimination • Generally claims must be filed within 300 days of alleged discrimination (only 180 days if only covered by federal law) • Agency will conduct investigation • Includes interview with charging party

25. Responding to Charge/Complaint • Important to do it right; statements made in early stages will remain relevant later in litigation • Well crafted response can foreclose litigation • Be proactive in defense; interview witnesses and relevant parties • Prepare detailed response statement • Defend and participate in interviews

26. Litigation • Private party can file suit; generally 90 days after receiving disposition or “right to sue” from agency • Agency can also file complaint • Will trigger litigation process

27. Best Practices for Avoiding Liability For Discrimination And Harassment Claims

28. How To Prevent Claims • Policies • Recordkeeping • Training • Fairness and consistency

29. Policies On Discrimination/Harassment • Conduct not tolerated • Define • Reporting responsibility • Applies not just to acts by employees • Complaint, reporting, and handling • Will promptly and fully investigate • No retaliation

30. Language In Evaluations And Discipline What type of language to include: • Detail specifics • Facts not opinions • Do not include language about protected class

31. Evaluation Best Practices • Have supervisor complete evaluation • Be honest – don’t sugar-coat • Evaluation should contain no surprises • Have process to contest • Purpose is to ensure fairness of process • Request employee signature at bottom of review

32. Get HR Involved Or Train

33. Internal Investigations • Timely and thorough • By the right person • Must demonstrate your business took it seriously and was fair • Follow your policies • Limit it to those involved • Update alleged victim

34. Best Practices - Recap • Be mindful of protected classes when making decisions • Consider whether employment practice results in disparate treatment or disparate impact • Implement training to ensure no discrimination • Recruit, hire, and promote with these principles in mind; do not rely on stereotypes or assumptions • Ensure effective investigations • Consider and update policies

35. Thank you! QUESTIONS? Dean Bennett Holland & Hart LLP ADBennett@hollandhart.com 208-342-5000 Thank You!