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2005 SOUTHERN TRANSPORTATION CIVIL RIGHTS TRAINING SYMPOSIUM “A PURPOSE DRIVEN JOURNEY”

2005 SOUTHERN TRANSPORTATION CIVIL RIGHTS TRAINING SYMPOSIUM “A PURPOSE DRIVEN JOURNEY”. EEOC UPDATE WORKSHOP Presented by: Michael Klump, FDOT Cindy Mattson, EEO Consultants, Inc. Phone: 954-832-0546 www.eeoconsultants.com. Workshop Topics. State & Federal EEO Case Law

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2005 SOUTHERN TRANSPORTATION CIVIL RIGHTS TRAINING SYMPOSIUM “A PURPOSE DRIVEN JOURNEY”

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  1. 2005 SOUTHERN TRANSPORTATIONCIVIL RIGHTS TRAINING SYMPOSIUM“A PURPOSE DRIVEN JOURNEY” EEOC UPDATE WORKSHOP Presented by: Michael Klump, FDOT Cindy Mattson, EEO Consultants, Inc. Phone: 954-832-0546 www.eeoconsultants.com

  2. Workshop Topics • State & Federal EEO Case Law • Sexual Harassment Trends & Liability • Post 9-11 Religion & National Origin • Management’s Role • EEO Officers’ Role • Possible Solutions • Management Workshops, Diversity Initiatives • Other Criteria Affecting Discrimination Complaints

  3. EEO RISK MANAGEMENT • Compliance Officers • EEO Officers • EEO Investigators • EEO Administrators • Management • Fact Finder • Disarming EEO Issues • Limiting Liability to the Organization

  4. PRIMIE FACIA CASE OF EMPLOYMENT DISCRIMINATION Complainant must show: • That he/she is within a protected group, • That he/she was qualified for the job at issue, • That he/she was subjected to an adverse employment action, and, • That this action occurred under circumstances giving rise to an inference of discrimination • Because an employer engaged in discrimination is unlikely to leave a "smoking gun," Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994), the plaintiff must usually rely on cumulative circumstantial evidence to prove bias • Once complainant does the foregoing, the burden is on the manager to show a non-discriminatory reason for the adverse employment action

  5. MIXED MOTIVE DISCRIMINATION Both Job Performance & Discrimination • Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) • Circumstantial Evidence of Discriminatory Motive • Complainant had altercation with co-worker and was terminated. Thereafter she filed suit for sex discrimination • Evidence that she would be “singled out for intense stalking” • Disciplined more severely • Treated less favorably in terms of OT • Supervisors stacked her disciplinary record • Supervisors tolerated sex based slurs against her

  6. PLAINTIFF’S BURDEN OF PROOF • Preponderance of Evidence • Sex was a Motivating Factor in the Imposition of those Working Conditions • Jury Instructions: • “If you find that the Plaintiff’s sex was a motivating factor in the defendant’s treatment of the Plaintiff, the Plaintiff is entitled to your verdict.” • “If you find the defendant’s treatment was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages.”

  7. PLAINTIFF IS ENTITLED TO DAMAGES UNLESS… • the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff’s gender had played no role in the employment decision • Direct Evidence not Necessary • Congress Amended Title VII (Civil Rights Act of 1991) which states that an unlawful employment practice is established when a complaining party demonstrates that … sex (or other protected group) was a motivating factor… even though other factors also motivated the practice.”

  8. INSULATING THE EMPLOYER FROM MIXED MOTIVE CLAIMS • Insulate Employer’s from Liability for Legitimate Non-Discriminatory Reasons for Adverse Employment Actions • Proper Documentation of Performance • Management Training & Responsibilities • Disciplinary Actions Consistently Applied • Large Organizations • Executive Level Misconduct • Discredit Plaintiff’s Claim of Discrimination Where No Cause Found

  9. TRENDS • More Title VII Mixed Motive Cases • Only Requires Circumstantial Evidence • Comparing Similarly Situated Employees of Different protected classes • Discriminatory Animus or Motive • Direct Evidence (Smoking Gun) Difficult

  10. ENFORCING POLICIES • Well Written Policies Only Half the Battle • Must Be Enforced • EEOC v. Kohler Co., Plaintiff terminated for clocking in and out irregularly • White employees not disciplined • Employer Failed to Enforce it’s Disciplinary Policies Uniformly • Proximity of Complaint and Termination • Pretext for Discrimination & Retaliation • Others Were Not Disciplined or Discipline was Less Severe

  11. SEX DISCRIMINATION • EEOC v. Clifford B. Finkle Jr., Inc.No. 03-4404 (D.N.J. May 16, 2005) • Trucking company allegedly discriminated against a female trucker by failing to correct gender-based harassment • Charging party's truck was repeatedly sabotaged, jeopardizing her safety, (i.e.) the air hose was removed from her truck, the truck's antifreeze was drained, and the air seal on the truck's brakeline was removed. • Charging party complained but Defendant did not conduct an investigation until after charging party filed a discrimination charge in December 2001 • Defendant then concluded that the conduct had occurred and fired both perpetrators • Under the 2-year consent decree resolving this case, charging party will receive $225,000 in monetary relief

  12. DEFENDANT WILL TAKE THE FOLLOWING CORRECTIVE ACTIONS • (1) post a notice regarding the consent decree's terms and Title VII's requirements on bulletin boards used for communicating with employees; • (2) create policies prohibiting harassment and retaliation and disseminate them to all employees; • (3) provide annual training to all employees (including temporary employees) and supervisors regarding employees' rights and employer's obligations under Title VII and the comparable New Jersey law; • (4) provide training to all managers and supervisors, and to all Human Resources employees, on how to investigate complaints of discrimination; and • (5) maintain records on complaints of discrimination and harassment, prepare reports on how the complaints are resolved, make these reports available to the EEOC upon request, and make available to the EEOC all employees whom the Commission wishes to interview to verify compliance with the decree

  13. SEXUAL HARASSMENT • Co-Worker Liability Law • Assembly Bill 1825 • California Law Requires Supervisory Training for all Employers with Over 50 Employees • Every Two Years • At Least Two Hours • Conducted By Expert • Classroom or Other Interactive Forum • Watching a Video is not Enough

  14. SEXUALLY HARASSING ENVIRONMENT • EEOC v. Union Pacific Railroad Co.No. C04-866MJP (W.D. Wash. April 15, 2005) • Subjected female employee to a sexually hostile work environment • The charging party was the only female loader • She complained about the harassment which included pornographic materials throughout the facility, a drawing of male genitalia posted in a common area, ads for escort services, foul language, sexual comments, and a male coworker exposing himself to her to management and to the Union Pacific Police

  15. MONETARY DAMAGES • Under the 3-year consent decree resolving this case, charging party will receive $260,000 in monetary relief. • (1) reissuing defendant's antidiscrimination policy to all employees and posting a copy of it on a centrally located bulletin board at each location; • (2) providing all employees with 3 hours of employment discrimination training, including training on sexual harassment, annually throughout the term of the consent decree; and • (3) reporting to the EEOC every 6 months on complaints of sexual harassment and retaliation, internal investigations of the complaints, and resolutions thereof.

  16. TRANSSEXUAL’S TITLE VII CLAIM • U.S. Court of Appeals for the Sixth Circuit • Transsexual can state a claim under Title VII • Firefighter who was not “masculine enough” • Diagnosed with Gender Identity Disorder • Unlawful Sex Discrimination • “Gender non-conforming Conduct” • Smith v. City of Salem Ohio, 369 F.3d 912 (6th Cir. 2004) • Not male or female enough-take it seriously • Jokes

  17. SAME SEX HARASSMENT • EEOC v. Systems Application & Technologies, Inc.No. CV-04-7702 GAF (RCx) (C.D. Cal. May 11, 2005) • Security Supervisor accused of touching employees on their necks, shoulders, genitals, and thighs • Inappropriate Comments of a Sexual Nature • Charging party complained to other Supervisors • No corrective Action Taken • After charging party had resisted the manager's advances for months, he ceased harassing charging party and moved on to other security officers • At around the same time the manager turned down charging party's requests for a full-time position, but gave it to other guards who like him were attending school or had second jobs • $237,000 in monetary relief to charging party and three similarly situated men

  18. SEXUAL ORIENTATION NOT DETERMINATIVE • Dick v. Phone Directories Co., Inc., No. 03-4163 (10th Cir. 2005) • Proof of Orientation Not Required if Sexual Desire Motivated Acts • While proof of homosexuality may support a finding it is not necessary

  19. MATERNITY LEAVE • TENNESSEE LAW • Allows Maternity Leave for Both Male and Female Employees • Changes Gender Specific Language • Includes Adoptions • Employers with 100 or More Employees • At Least 12 Months Full Time Employment • May Be Absent Up to 4 Consecutive Months for: • Adoption (not forfeited for <3month notice) • Pregnancy • Childbirth • Nursing an Infant • Reinstatement for Employees Who Give 3 Months Notice Prior to Leave with Intention to Return to Full Time at the End of Leave • Same Status, Pay, Service Credit, Seniority • Practicality of Law in Question and Yet to be Tested • May a male employee take leave under the Act for pregnancy prior to the birth of his child?

  20. AGE DISCRIMINATION • Supreme Court Decision • Disparate Impact Theory • No Intent Required • Age Neutral Policies • Adversely Affect Older Workers • Employers Rebuttal: Factors Other Than Age

  21. RACE DISCRIMINATION • EEOC v. Coca-Cola Enterprises, Inc., d/b/a Mid-Atlantic Coca-Cola Bottling Co.No. BEL-04-3128 (D. Md. May 16, 2005) • African American denied promotion into a management position • Black employee entered training program • White employees who started in the program earlier in the year were placed into grade 15 positions within a few months, but charging party remained at a grade 13 after completing the program because no grade 15 positions were available • Charging party applied for two field service manager positions, but they were given to white employees who had less relevant experience than charging party and had not participated in the training program

  22. CONSENT DECREE • Under the 3-year consent decree resolving the case defendant will pay charging party $60,500 in monetary relief • Upgrade his current position to grade 15 • Change his job title to bottle/can install manager • Increase his salary to $52,800 annually, and award him retroactive grade 15 seniority to January 2001 for internal job competition and to January 2005 for eligibility for the management incentive bonus plan

  23. EEOC V. ABERCROMBIE & FITCH STORES, INC. • Pattern and practice of race, color, national origin, and sex discrimination in the recruitment, hiring, assignment, promotion, and discharge of blacks, Hispanics, Asians, and women • “Image" or "look" that it called "Classic All-American," targeted its recruitment efforts at primarily white high schools and colleges (and at primarily white fraternities and sororities at the colleges) • Channeledminority hires to stock and night crew positions rather than sales associate positions • Maintained a 60%/40% ratio of male to female employees; failed to hire and promote minorities and women into management positions; and discharged minorities and women when corporate representatives believed they were "overrepresented" at particular stores

  24. 6 YEAR CONSENT DECREE • Marketing Materials Reflect Diversity • Defendant will create an Office of Diversity headed by a Vice President who will report directly to defendant's Chief Executive Officer or Chief Operating Officer • Defendant will hire 10 full-time diversity recruiters within the first 6 months of the decree and 15 additional full-time diversity recruiters within 12 months • Recruitment efforts to seek applications from qualified African Americans, Asian Americans, and Latinos of both genders. • Attend minority job fairs and recruiting events; and use a diversity consultant to aid in identifying sources of qualified minorities

  25. COSTS TO THE ORGANIZATION • $40 million • 15% backpay and 85% compensatory damages to applicants who were not hired, or who were employed in one of defendant's stores for any length of time since that date • $7.25 million for attorney fees, expenses, and costs incurred prior to the decree approval date, and, • $600,000 for fees, expenses, and costs related to monitoring and defending the decree

  26. QUALIFIED OR NOT? MANAGERS MUST LOOK AT JOB DESCRIPTIONS

  27. TERMS & CONDITIONS • EEOC v. Imclone Systems, Inc.No. 04-06218 (GEB) (D.N.J. May 25, 2005) • Black Employee subjected to harsher terms and conditions of employment than similarly situated white employees • Supervisor called him "the black man," spoke to him in a demeaning manner, yelled at him, and told him he was treating him more harshly than nonminorities because he was a minority • Charging party complained to one of respondent's vice presidents • Investigation revealed Cause Finding and took disciplinary action • Charging party was transferred back into his original temporary position and a few months later terminated him when a full-time facility technician returned from medical leave

  28. RESULTS • On the same day charging party was terminated, respondent hired a nonblack temporary employee with less experience than charging party into a full- time permanent facility technician position, and a month later hired a nonblack employee into the position for which charging party had been training before he complained. • The parties entered into a 2-year consent decree resolving this case under which charging party will receive $85,000 in monetary relief.

  29. NATIONAL ORIGIN • EEOC v. Hamilton Sundstrand Corp.No. 03-Z-1663 (PAC) (D. Colo. May 19, 2005) • 12 individuals will share $1.25 million in monetary relief • National Origin Harassment for Hispanic Employees • Less favorable terms and conditions of employment than non-Hispanics • Ethnic slurs and racial epithets at the Hispanic employees (who numbered about 20 of the approximate 250 employees) and, with less frequency, physically threatened them • An anonymous employee posted and circulated documents promoting discrimination based on race and national origin • Charging party reported numerous incidents to supervisors and to the Human Resources Department using defendant's complaint procedures • Defendant took no corrective action and the harassment of charging party escalated • Closing Plant

  30. REASONABLE ACCOMMODATION UNDER ADA • In Harmer v. Virginia Electric and Power Company, the employee had a pulmonary disability. When his employer denied his request that the entire workplace be declared smoke-free, the employee sued under the ADA. The court found that a reasonable accommodation would be the addition of fans, air purifiers, and smoke-free sections of the workplace and, therefore, an undue hardship on the employer and denied the employee's claim.

  31. TYNDALL V. NATIONAL EDUCATION CENTERS • Justified Termination • The employer prevailed on the basis that the employee was not "otherwise qualified" because she was excessively absent • The court said, "An employee must be willing and able to demonstrate the skills by coming to work on a regular basis." • The employer attempted to accommodate the worker, but seven weeks of leave over an eight-month period justified her termination.

  32. EMPLOYER’S DUTY • Before an employee is terminated, the employer should consider whether the employee will have a potential claim under the ADA. • As a representative for the employer you should ask: • Is the worker qualified or not? • Did the employer try to reasonably accommodate the worker's needs to enable the worker to perform? • Did the worker have a disability which, without a reasonable accommodation, prevented the employee from performing the essential duties required by the job? • Employers must be ready to determine how a worker claiming a disability can remain a productive part of the organization

  33. $550,000 FOR MUSLIM WORKERS CALLED “TERRORISTS” AND “THEIVES” BY CO-WORKERS: • Barber Dealer Group, a network of car dealerships in California, constant harassment of seven Muslim employees including public ridicule of their national origin and religion. The suit also alleged constructive discharge and retaliation. • Employers should remind employees that the right to be free from harassment covers all nationalities and faiths, and make sure that EEO training programs include the Muslim religion and National Origin. • Recent statistics distributed by the EEOC there has been a rise in National Origin complaints which are now one of the fastest growing types of complaints filed. • The Commission noted that there has been a 28% increase since 1990.

  34. RELIGIOUS ACCOMMODATION • Title VII requires a business to provide reasonable accommodations for an individual's religious practices, such as leave to observe religious holidays, unless doing so would cause an undue hardship • A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. • Flexible scheduling, voluntary substitutions or swaps, job reassignments, lateral transfers and modifying workplace practices, policies or procedures are examples reasonable accommodations.

  35. RELIGIOUS ACCOMMODATIONS • An employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency • Employers must permit employees to engage in religious expression if employees are permitted to engage in other personal expression at work, unless the religious expression would impose an undue hardship on the employer

  36. RELIGIOUS DISCRIMINATION • Employers must take steps to prevent religious harassment of their employees • An employer can reduce the chance that employees will engage unlawful religious harassment by implementing an anti-harassment policy and having an effective procedure for training, reporting, investigating and correcting harassing conduct

  37. WHAT IS RELIGION? • This broad coverage ensures that individuals are protected against religious discrimination regardless of how widespread their particular religious beliefs or practices are. • The EEOC defines "religion" to include moral or ethical beliefs as to right and wrong that are sincerely held with the strength of traditional religious views. See 29 C.F.R. §1605.1. • “Religion” also includes atheism for the purposes of Title VII’s prohibition against religious discrimination.

  38. RELIGIOUS ACCOMMODATION UNDER TITLE VII • An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship. However, it is not required that the employer grant preferential treatment to any individual or group based on religion or national origin. Business necessity and consideration of whether the requirement is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business is at issue.

  39. TRADITIONAL GARB • Not required that an employer accommodate an employee's desire to wear religious garb under all circumstances • Apply Rules Consistently And Not Only To Persons Of A Particular Religion Or Culture • Employer may require that an employee wear a uniform so that the employee is recognized as a representative of the organization, (i.e.) police officers, fire fighters etc.. Therefore, allowing the employee to wear traditional or religious garb may detract from the purpose of wearing the uniform and therefore not be permitted.

  40. SECULAR V. RELIGIOUS REASONS • What is at issue is providing equal opportunity and nondiscrimination toward a particular group because of their religious or cultural beliefs • Therefore, other employees who want to wear scarves, bandannas and hats etc. should not be permitted to do so where likewise it would divert from the objective of requiring an organization’s uniform • Police Officers with Beards allowed for secular reasons (health) but not religious reasons

  41. RELIGION & SEXUAL ORIENTATION • In California, a homosexual employee is taking his former employer to trial for religious discrimination based on comments by his Mormon supervisor. • The supervisor allegedly told the gay employee he should "become heterosexual and a Mormon or he would go to hell." The plaintiff also claims he was pressured to participate in prayer meetings at work. • After he resigned, the gay employee sued claiming religious harassment and constructive discharge. The judge ruled there was enough evidence for a jury to decide whether the gay employee was a victim of unlawful religious harassment and discrimination.

  42. IS IT A JOB REQUIREMENT TO ENFORCE EEO LAWS? • YES • In Mississippi, an EAP counselor refused on religious grounds to counsel a lesbian employee on her personal relationship with her partner. • The counselor argued she had a right, under Title VII, to be excused from counseling employees on subjects that conflicted with her religious beliefs. • The Fifth Circuit Court of Appeals disagreed, explaining that to require the employer to accommodate the counselor's religious beliefs in this way would impose an undue hardship and excessively burden other counselors. Bruff v. North Mississippi Health Services, Inc., 244 F.3d 495 (5th Cir. 2001).

  43. IS THE EEO OFFICE THE PLACE TO GO FOR HELP? • CNN Report Today on Human Resources • Sue Meisinger CEO SHRM • Protect employees and employer • EEO Office takes the side of employer • Balanced Roles • EEO Affects Productivity • EEO Affects Employee Retention • EEO Affects the Bottom Line

  44. HOW MUCH TRAINING IS ENOUGH? • Advanced Training for EEO Officers • Management Training on Sexual Harassment and EEO Topics Every 2-3 years • Employee Training on Rights & Responsibilities Such as Duty to Report every 2-3 years • Additional Management Training on Personnel Duties • Advanced Management Training on Complaints & Investigations • Diversity Training for all Employees for Workplace Conflicts

  45. WHAT SHOULD MANAGERS DO IF… • Employee tells manager of an offensive incident that they don’t want to file an official complaint • Witness misconduct that no one complains about • After hours or off work premises • Inference of Retaliation by transferring complaining party etc.

  46. DIVERSITY AND EEO INITIATIVES • Complaints generally decrease where the training and diversity initiatives are working • No Complaints filed does not necessarily mean no problems • An ounce of prevention is worth a pound of cure • Without proper documentation the organization can lose it’s affirmative defense • Beware of the well-intentioned manager • Investigate no matter how trivial it seems • Remind employees that the organization’s policies are much more strict than EEO laws

  47. EEO GOING FORWARD • Issues Arising in your Workplace? • Preventative Measures Taken? • Disciplinary Action Taken? • Obstacles for EEO Officers? • Obstacles for Administrators? • Obstacles for Management? • Questions & Comments?

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