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How to keep your company out of the headlines ! (on EEOC.GOV)

How to keep your company out of the headlines ! (on www.EEOC.GOV). Joe Bontke Houston District Office 713 907 2855 joe.bontke @eeoc.gov. So what’s new?. Some new laws New programs The economy The last legislative session. My first Grandchild Cate Bontke-Bowman Feb 8, 2011 7lbs 5 oz

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How to keep your company out of the headlines ! (on EEOC.GOV)

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  1. How to keep your company out of the headlines!(on www.EEOC.GOV) Joe Bontke Houston District Office 713 907 2855 joe.bontke@eeoc.gov

  2. So what’s new? • Some new laws • New programs • The economy • The last legislative session

  3. My first Grandchild • Cate Bontke-Bowman • Feb 8, 2011 • 7lbs 5 oz • 19 ¾ inchs

  4. “OUCH! That Stereotype Hurts” Joe Bontke When first called “grandpa”

  5. We say a lot by the words we use Explore communication & collaboration skills for promoting inclusion in the workplace

  6. Stereotypes An oversimplified image or statement applied to a whole group of people, without regard for the individual.

  7. “The simple act of naming a bias as suchor objecting to it on the spot establishes a social atmosphere that discourages it:saying nothing serves to condone it.” – Daniel GolemanEmotional Intelligence

  8. Obligations of Employers • Make the workplace free of unlawful discrimination, harassment and retaliation • Promptly and confidentially investigate complaints of discrimination, harassment and retaliation • Where discrimination, harassment and retaliation may have occurred, take prompt and appropriate remedial action (i.e., discipline commensurate with the offense)

  9. What Is Conflict & how does it get to the level of Employment Discrimination?

  10. When an Employee Has a Problem Who are they going to call? • Let them know they can discuss it with you (from the get-go) • Define the problem • Identify the motivation • Suggest solutions • Resolve the issueKeep it in your house! • Follow up Not Mine (EEOC)

  11. A Few Statistics… *32,690 Retaliation Charges 95,402 Total Charges Filed!

  12. Systemic cases @ the EEOC • can be brought under any of the statutes enforced by the EEOC. • cases usually involve company-wide practices or policies • investigators working on systemic cases typically must obtain and analyze extensive electronic data and numerous documents, conduct statistical analyses and interview many witnesses and class members.

  13. Systemic Cases are on the rise

  14. There are 2 types of systemic discrimination cases: • 1.) Disparate treatment … this refers to the "intentional" discrimination of certain people groups • 2) Disparate Impact Cases – where an employer has a neutral selection procedure, policy, or practice that has a disproportionate adverse impact on people in a protected group

  15. EEOC LITIGATIONor HR Schadenfreude

  16. Blockbuster 12-14-11 • Federal Court Signs Order for Blockbuster Inc. To Pay Over $2m to Settle EEOC Suit for Sex, Race and National Origin Discrimination, Retaliation • EEOC Said Retailer Created Hostile Environment for Female and Hispanic Workers • the EEOC charged  that the male supervisory staff engaged in and condoned the harassment of a  class of seven female employees, four of whom are Hispanic. The EEOC charged that the incidents of  harassment committed by Blockbuster supervisors included repeated requests for  sexual favors; yelling; insults; threats; unwelcome sex-related questioning; offense  racial remarks; touching women’s intimate body areas; and other discriminatory  conduct. This pervasive and unlawful  conduct culminated in the denial of work hours, discriminatory firings, forced  resignations and other discriminatory actions, according to the EEOC.

  17. Equal Pay Why focus on ? • Despite significant gains in labor force participation and educational attainment, women still are paid an average of only 78 cents for every dollar paid to men • The gap is even greater for women of color and women with disabilities • In 2009, there was an 11 cent wage gap between men and women in the federal sector workforce

  18. Systemic • Beware: neutral employment policies and practices that have a disproportionately negative effect on applicants or employees who belong to a protected category • Ensure that policies and practices are job-related and necessary to the operation of the business

  19. EXAMPLE • Race Bias: EEOC Slaps Walgreens with Nationwide Class Action • Walgreens To Pay $24 Million In Race Case

  20. EXAMPLE • Morgan Stanley Settles Gender-Bias Lawsuit for $54M • Morgan Stanley Settles Class-Action Racial-Discrimination Lawsuit for $16M

  21. EXAMPLE • DENNY’S SUED BY EEOC FOR DISABILITY BIAS AGAINST CLASS OF WORKERS NATIONWIDE

  22. EXAMPLE • GLC RESTAURANTS DOING BUSINESS AS McDONALD’S RESTAURANTS TO PAY $550,000 FOR SEXUAL HARASSMENT OF TEEN WORKERS BY MALE BOSS

  23. EXAMPLE • $8.9 MILLION CONSENT DECREE AT ONE FACILITY • HARASSMENT, WORK ASSIGNMENTS, AND DISCHARGE • RACE, NATIONAL ORIGIN

  24. EXAMPLE • $19 MILLION CONSENT DECREE • GENDER, FEMALE – FAILURE TO PROMOTE • NATIONWIDE INVESTIGATION

  25. WHY SHOULD you BE CONCERNED? • Class Litigation is Costly and Time Consuming! • Damage to Reputation • Spurs Additional Complaints & Lawsuits by Others • Settlements Can Be Financially Significant • Distraction From Core Business Concerns

  26. WHAT CAN I DO TO AVOID THIS? • Review your internal data on personnel actions (Hiring through Termination) • Make certain that criteria used for personnel related decisions are job related and dictated by business necessity

  27. WHAT CAN I DO TO AVOID THIS ? • Conduct training for all those involved in personnel decisions ( from the top down) • Publish policies and insure that they are applied to everyone. • Install an effective process for investigating and resolving internal complaints. • Look at your own statistics

  28. WHAT CAN you DO TO AVOID THIS? • Understand employee retaliation protections • Conduct exit interviews to obtain information • Make managers accountable • Never ignore a complaint about harassment or unequal treatment!!

  29. VERIFY FACTS Investigate carefully – but promptly

  30. A retaliation claim is the victim’s best friend: • The plaintiff in a retaliation case does… NOT NEED A VALID UNDERLYING CLAIM

  31. know the difference between exempt and nonexempt employees.

  32. working a nonexempt employee "off the clock" or during an "unpaid lunch break or meal period" can violate the Fair Labor Standards Act.

  33. each time supervisors prepare a performance evaluation, they are preparing a piece of evidence that could be used in a lawsuit.

  34. Know how banter or jokes based on a protected class can result in valid harassment charges, even if the banter and jokes are between people of the same race, sex, etc.

  35. Why discrimination on the basis of sexual orientation or sexual preference may not be against federal law (although it is against the law in some states and municipalities), harassment can be.

  36. Appropriate action to take when an employee claims a disability under the Americans with Disabilities Act and requests a reasonable accommodation.

  37. What to do when an employee makes a request for a religious accommodation.

  38. Understanding employee privacy rights (monitoring emails, telephone conversations, etc.).

  39. The next Equal Pay Day is Tuesday, April 20, 2012. This date symbolizes how far into 2012 women must work to earn what men earned in 2011.

  40. The Implicit Association Testhttps://implicit.harvard.edu/implicit Project Implicit is a long-term research project based at Harvard University that aims to measure people’s preferences for certain social groups over others. The IAT is designed to examine which words and concepts are strongly paired in people’s minds. Is taken anonymously, requires only about 5-10 minutes to complete and provides insight into personal biases, including race, gender, sexual orientation, etc. The test requires Macromedia Flash Player More than 4.5 million people have completed the online demonstration tests since 1998.

  41. “Are Emily and Brendan More Employable thanLakisha and Jamal?,”Marianne Bertrand and Sendhil Mullainathan – 2002 Hypothetical applicants with “white” names were 50% more likely to receive call backs than those with “black” names. Improvement in resume quality significantly improved the call-back chances for white applicants only. http://gsb.uchicago.edu/pdf/bertrand.pdf

  42. Post 9/11 Backlash • Between 9/11/2001 and 9/11/2008, 1,108 charges were filed under Title VII alleging post-9/11 backlash employment discrimination. • 59% had discharge (termination) as an issue • 42% had harassment as an issue • Charges received by EEOC based on Religion-Muslim: • 4,186 during the period 9/11/2001 to 9/11/2008 (7yrs) • 1,844 during the period 9/11/1994 to 9/10/2001 (7yrs) • Types of employers/industries named in the charges: • airlines, health care facilities, car dealers, retail stores, hotels, info technology, restaurants, public schools, state and municipal agencies, universities, manufacturing and others.

  43. any questions, comments, concerns or complaints • Joe Bontke • EEOC • Outreach Manager and Ombudsman • 713 907 2855 cell • joe.bontke@eeoc.gov

  44. questions, concerns, comments, or criticisms? • Joe Bontke • 713 907 2855 • joe.bontke@eeoc.gov • www.eeoc.gov • 1 800 669 4000

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