Compliance, Diversity and Inclusion

1. Compliance, Diversity and Inclusion • Michael R. Bertoncini • Jackson Lewis P.C. | Boston • Michael.Bertoncini@JacksonLewis.com | (617) 305-1270 • Patrick J. Rocks • Jackson Lewis P.C. | Chicago • Patrick.Rocks@JacksonLewis.com | (312) 803-2555

2. Compliance, diversity AND INCLUSION

3. Introduction Source: ”Men for Others”, Pedro Arruppe, S.J., Valencia Spain (1973), retitled “Men and Women for Others”, https://onlineministries.Creighton.edu/CollaborativeMinistry/men-for-others.html (last visited September 3, 2019). • Compliance with legal obligations • Adherence to the values of the University • Freedom to discuss competing or unpopular ideas • Respect for lawful limits on speech • Diversity and inclusion • Adherence to Jesuit Catholic values and mission “The principle objective of Jesuit education is to form “men and women for others, men and women who will not live for themselves but for God and his Christ … men and women who cannot even conceive of love of God which does not include love for the least of their neighbors; men and women completely convinced that love of God which does not issue in justice for others is a farce.” Superior General Pedro Arrupe, S.J. (1973)*

4. Overview of Compliance Issues Protected classifications Disparate treatment Adverse impact and validation Employees with disabilities and requests for reasonable accommodations Hostile work environment Equal pay Wage and hour rules Retaliation

5. The Relationship Between Compliance, Diversity and Inclusion: Three Examples Implicit Bias Theory Responding to Employee Complaints Early Retirement Programs and Reductions in Force

6. Implicit bias

7. Disparate Treatment • The employer has taken an action against an employee because of the employee’s membership in a protected class. • Direct evidence of intent to discriminate; or • Inferred intent - employer’s articulated reason for the action is a pretext for discrimination: • Similarly situated employees in other subgroups • Stated reasons for action are not true or not supported by facts (pretext) • What is the relationship between disparate treatment claims and implicit bias theory?

8. Implicit Bias Theory • The human body sends 11 million bits of information per second to the brain but • The conscious mind can process only 40 to 50 bits per second.* Sources: Encyclopedia Britannica, Inc., “Physiology”, George Markowsky, at https://www.britannica.com/science/information-theory/Physiology (last visited September 5, 2019) and “A Presentation to the Ohio Courts of Appeals”,Sharon L. Davies, Moritz College of Law,The Ohio State University Kirwan Institute for the Study of Race and Ethnicity, Fall Conference 2012 at http://kirwaninstitute.osu.edu/a-presentation-to-the-ohio-courts-of-appeals/ (last visited September 5, 2019).

9. Thinking Fast and Slow* • System 1 • Fast • Automatic • Frequent • Unconscious • Associative • Emotional • System 2 • Slow • Requires effort • Infrequent • Conscious • Deliberative • Logical Source: Daniel Kahnerman (October 25, 2011). Thinking Fast and Slow. Macmillan

10. Unconscious Processing • Unconscious processing: • Cognition that occurs outside of conscious awareness • Mental shortcuts based on experience • Example: development of skills • Driving • Sports • Musical instruments • Routine activities

11. Implicit Bias • Unconscious biases are mental shortcuts and associations used to process information and make decisions quickly based on human characteristics • Can be positive or negative inferences • These mental shortcuts and assumptions are based on past experiences and may be based on cultural stereotypes

12. Implicit Bias & Disparate Treatment • Concept of fault in disparate treatment claims • Explicit bias • Explicit stereotypes • Implicit bias is unconscious – not intentional • Implicit bias is external – not attributable to employer • Are implicit bias studies credible? • Are the data reliable? • Does evidence of bias correlate with biased decisions? • Does evidence of implicit bias add material value to existing methods for proving intentional discrimination?

13. Hypothetical • Employer objectively needs to reduce workforce by one employee. • African-American employee is selected. • Employer claims legitimate, non-discriminatory business reason for selection – the employee with the lowest job performance rating. • Did bias influence the decisionmaker or supervisors who provided job performance ratings? • Are there employees with comparable performance levels? • Is implicit bias theory, by itself, sufficient to prove intent?

14. Interrupting Unconscious Bias Source: https://quoteinvestigator.com/2018/02/18/response/ (last visited September 5, 2019). “Between stimulus and response, there is a space. In that space is the power to choose our response.” -- Author Unknown* (often attributed to Viktor E. Frankl without citation – but in any event it emphasizes the value of reflection before action)

15. Exercising “ABS” – Kathleen Nalty* Source: Nalty, Strategies for Confronting Unconscious Bias, The Federal Lawyer (January/February 2017). See also, http://kathleennaltyconsulting.com/publications/ (last visited September 5, 2019). Awareness Behavioral Changes Structural Changes

16. AWARENESS • Pay attention to surprises and times when your stereotypes were not correct • Be aware of discomfort • Self-reflection • Why am I bothered by …? • Why do I care about …? • Why do I believe …?

17. BEHAVIORAL CHANGES Challenge your objectivity Seek different experiences Question your assumptions Oppose your stereotypical thinking Remind yourself you have unconscious bias Cultivate relationships Retrain your brain

18. STRUCTURAL CHANGES Diversity and inclusion committees Examining systems for hidden structural inequities or barriers Who are you mentoring? Using objective practices and procedures Analyzing performance review processes Training

19. Implicit Bias, Compliance and Diversity Hiring processes (e.g., resume screening, background checks) Compensation (e.g., salary history, pay equity studies) Performance evaluations Mentoring programs Promotions Discipline (disparate impact?) Layoffs

20. Responding to employee grievances

21. Responding to Employee Grievances • Employees must believe they will be heard and that prompt fair action will be taken. • Consequences: • Liability • Morale issues • Loss of talent and diversity • Reputation • Internal trust issues • External perceptions

22. Reporting Procedures • Options should be simple and accessible. • Focused v. wide reporting systems • Hotline systems • Monitoring intake • Employees should be trained to identify potential complaints and direct complainants to hotline, HR or other appropriate offices. • No tolerance for retaliation

23. Investigation Protocols • Standardized investigation protocols • Intake, initial review and routing • Case tracking/document management • Choosing an investigator • Preserving evidence • Chain of custody protocols – forms, responsible custodians • Witness interview formats • Interim and final report formats

24. Investigators • Identifying neutral investigators and procedures for assigning them to particular matters • HR investigators • Other University departments • Provost • Dean of Students • Campus Safety • IT • External investigators? • Training

25. Preserving evidence • Preserving evidence: • Text messages and emails • Security videos • Cell phone videos • Social media posts • Graffiti, posters, signs • Develop protocols with IT, Campus Safety and other departments • Chain of custody

26. Internal Communications • Social and emotional supports • Counseling • HR accommodations • Coordination with Dean of Students • Monitoring progress of investigation • Single point of contact • Prompt resolution • Communicating outcomes

27. External Communications Not a frequent issue for HR, but can be critical Be objective - not defensive Protect against committing to facts before investigation is complete Potential defamation and false light claims Social media issues Responding to challenges to institutional values

28. No Retaliation Federal, state, and local laws prohibit retaliation based on employee complaints, opposition to discriminatory conduct and participation in investigations. Retaliation claimants, in general, are more likely to prevail at trial and recover significant damages. Juries often are more receptive to retaliation claims than discrimination claims. Fear of retaliation can prevent employees from coming forward or cause them to leave.

29. Early Retirement Programs and Reductions In Force

30. Voluntary Programs • Early Retirement Incentive Programs (ERIP) • Voluntary Resignation Incentive Programs (VRIP) • Eligibility can include length of service and for ERIP, age • Union employees generally excluded (unless choose to bargain over the program) • Incentives include: • Enhanced pension benefits • Severance pay • Extended health insurance • Retiree health insurance coverage

31. Involuntary Reductions In Force • Some criteria for selection decisions: • Pre-existing job appraisal criteria • Initially select individuals with significant performance/disciplinary problems • Rank remaining employees within job categories for their ability to perform job functions essential to post-RIF recovery

32. Involuntary Reductions In Force Strive for objectivity when comparing employees within job classifications: Consider the use of a RIF committee. Whenever possible, derive employee ratings from existing performance evaluations and counseling notices. If necessary, prepare current performance evaluations or rankings. Review status of employees on leaves of absence authorized by law or policy.

33. Evaluate Potential Disparate Impact Conduct disparate impact analysis to evaluate initial selection decisions. If disparate impact exists and cannot be justified by “reasonable factors other than age” or “business necessity,” consider alternative selections.

34. Evaluate Potential Disparate Impact - ADEA If disparate impact exists, review initial selections. Under ADEA, employee must prove disparate impact resulted from the application of a specific, facially neutral employment practice. Disparate impact against employees age 40 and older is not unlawful under the ADEA if employer can prove impact resulted from policy or practice based on reasonable factors other than age.

35. Evaluate Potential Disparate Impact – Title VII Under Title VII, to disprove unlawful discrimination employer must demonstrate that the action that gave rise to disparate impact was justified by “business necessity.” Legitimate business purpose for the RIF. Selection criteria effectively carry out the business purpose. No acceptable alternative methods or criteria existed that would have better accomplished the business purpose or accomplished the purpose as well but with less adverse impact.

36. Securing Valid Releases Limit liability by obtaining signed releases in return for valuable consideration. To be enforceable, release of rights must be “knowing and voluntary.” To obtain a knowing and voluntary waiver of the requirements of the Older Workers’ Benefit Protection Act (“OWBPA”) must be satisfied. Also consider State rules for valid releases

37. Securing Valid Releases • Under OWBPA, a valid waiver must: • Be written in easily understandable terms. • Specifically refer to rights and claims under the ADEA. • Be supported by valuable consideration. • Inform employee of right to consult with legal counsel. • Cannot extend to prospective rights or claims.

38. Securing Valid Releases • EEOC regulations define “group” as two or more employees. • Under OWBPA, waiver in group severance program must: • Allow 45 days to consider waiver. • Allow 7 days after signing waiver to revoke acceptance. • Notify of the eligibility requirements for participating in termination program.

39. Securing Valid Releases • Under OWBPA, waiver in group termination program must include comparative data: • Job titles and ages of all individuals eligible/selected for termination program. • Job titles and ages of all individuals in the same job classification or organizational unit (“decisional unit”) ineligible/not selected for termination program.

40. Securing Valid Releases • Program vs. Decisional Unit • Terminations implemented by different divisions within an institution pursuant to a institution-wide mandate should be aggregated in data provided as part of an overall program. • Identification of employees retained within a decisional unit depends on how selection decisions are made.

41. Decisional Unit Considerations Practice Tip: Use the smallest rational unit as the “decisional unit,” in most instances the “pool” from which a primary decision maker selected the employees to be affected. Think in terms of who an affected employee may claim are his/her comparators in a discrimination claim.

42. Decisional Unit Considerations Note: The decisional unit can be as large as the entire institution and as small as a single job classification within a single department at a single site. It depends on who the decision maker(s) is/are and the pool(s) from which selections were made.

43. Decisional Unit Considerations • Examples of Decisional Units • Job category or categories • Department-wide • Reporting lines • College/School-wide • Institution-wide

44. Consideration Options • Severance pay/plan • Extended/continued insurance coverage subject to carrier approval and COBRA • Outplacement services • Pro rata incentive compensation • Forbearance on employee loans

45. Thank You With more than 900 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/employee relationship. jacksonlewis.com