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EMPLOYMENT PRACTICS UPDATE

EMPLOYMENT PRACTICS UPDATE. MIRMA SPRING TRAINING 2014 Presented by Jane drummond DISCRIMINATION AND HARASSMENT. DISCRIMINATION AND HARASSMENT. Name the protected classes under Title VII. DISCRIMINATION AND HARASSMENT. Name the protected classes under Title VII Race Color Religion

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EMPLOYMENT PRACTICS UPDATE

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  1. EMPLOYMENT PRACTICS UPDATE MIRMA SPRING TRAINING 2014 Presented by Jane drummond DISCRIMINATION AND HARASSMENT

  2. DISCRIMINATION AND HARASSMENT Name the protected classes under Title VII

  3. DISCRIMINATION AND HARASSMENT Name the protected classes under Title VII Race Color Religion Sex National origin

  4. DISCRIMINATION AND HARASSMENT Name the protected classes under Title VII • Pregnancy added later • Form of gender discrimination • ADEA added age • ADA added disability status

  5. DISCRIMINATION AND HARASSMENT Name the protected classes under the Missouri Human Rights Act

  6. DISCRIMINATION AND HARASSMENT Name the protected classes under the Missouri Human Rights Act All the same categories, plus “ancestry”

  7. DISCRIMINATION AND HARASSMENT Civil Rights Act and other anti-discrimination laws prohibit employers from: • Failing to hire • Discharging • Discriminating “with respect to compensation, terms, conditions, or privileges of employment” • Because someone is a member of a protected class Let’s talk about each

  8. DISCRIMINATION AND HARASSMENT Failure to hire • Not common • More likely to be class action for evidentiary reasons • How can you get into trouble? • Asking the wrong questions during application process • Credit checks? • Google? • Social media?

  9. DISCRIMINATION AND HARASSMENT Discharge • Most common • How can you get into trouble? • Treating employees differently

  10. DISCRIMINATION AND HARASSMENT Discriminating with respect to compensation, terms, conditions, privileges • Compensation • Claims can be brought under federal and state laws specific to equal pay • Can also be brought as discrimination claims • Difference is in the damages • Emotional distress • Attorneys’ fees

  11. DISCRIMINATION AND HARASSMENT Discriminating with respect to compensation, terms, conditions, privileges • Other “terms, conditions or privileges” • Schedule • Duties • Promotional opportunities • Training opportunities • Leave

  12. DISCRIMINATION AND HARASSMENT Discriminating with respect to compensation, terms, conditions, privileges • The dreaded “hostile work environment” claim • Not illegal to be a jerk . . . • Unless it’s based on a protected classification • But jerks are likely to get you in trouble because they WILL treat someone unfairly

  13. DISCRIMINATION AND HARASSMENT Hostile Work Environment Conduct (based on a protected classification) that “creates an intimidating, hostile or offensive work environment or has the purpose or effect of unreasonably interfering with an individual's work performance”

  14. DISCRIMINATION AND HARASSMENT Hostile Work Environment • Commonly associated with sexual harassment claims • Can be associated with other forms of harassment • Jokes, derogatory comments about a particular race, religion, age group or disability • Can also be associated with the failure to act or properly investigate a complaint

  15. DISCRIMINATION AND HARASSMENT Retaliation It is also illegal to retaliate against an individual for • Complaining of harassment or discrimination • Supporting another individual’s complaint of harassment or discrimination • Associating with an individual who is in a protected class • Most common cases are related to disability • However, some employers have gotten in trouble for punishing “associates” of complainers

  16. DISCRIMINATION AND HARASSMENT RECAP: Can’t discriminate against, harass or retaliate against someone because of: Race Color Religion Sex National origin Pregnancy Age Disability Ancestry

  17. DISCRIMINATION AND HARASSMENT Federal vs. State Law Does it matter? Yes! Why? • Damages • Burden of Proof

  18. DISCRIMINATION AND HARASSMENT Damages • Actual • Lost wages and benefits (past and potentially future) • Emotional distress (called compensatory damages under federal law) • Attorneys’ fees and costs • Punitive Damages • Reinstatement

  19. DISCRIMINATION AND HARASSMENT Damages • Wages: • If claim is for wrongful termination, calculated as what employee could have made • Employee has a duty to mitigate • Most don’t • If claim is for disparate treatment, calculated as what employee alleges he/she should have made • Future wages v. Reinstatement

  20. DISCRIMINATION AND HARASSMENT Damages • Emotional distress • Missouri allows garden-variety emotional distress claims • Caps under federal law (compensatory and punitive damages): • 15-100 employees: $50,000 • 101-200 employees: $100,000 • 201-500 employees: $200,000 • 501+: $300,000

  21. DISCRIMINATION AND HARASSMENT Damages • Punitive • Not applicable to governmental entities under federal law • Available under state law, no caps

  22. DISCRIMINATION AND HARASSMENT What does a plaintiff have to prove to prevail? • Federal law: • Protected class was a “substantial or motivating” factor • State law: • Protected class was a “contributing” factor • Why this matters: • Lower bar for plaintiffs to hurdle • In mixed motive case, no summary judgment • Meaning the plaintiff has leverage because the case will go to a jury

  23. DISCRIMINATION AND HARASSMENT How can you avoid claims?

  24. DISCRIMINATION AND HARASSMENT How can you avoid claims? Sometimes you just can’t

  25. DISCRIMINATION AND HARASSMENT How can you avoid claims? • BE FAIR • It’s about disparate treatment – conduct establishes that actions were “because of” a protected class.

  26. DISCRIMINATION AND HARASSMENT How can you avoid claims? • Look at the big picture • Pay • Job descriptions • Titles • Duties • Gender, race, age and other statistics • Consider disparate treatment issues

  27. DISCRIMINATION AND HARASSMENT How can you avoid claims? • Take complaints seriously and investigate • Communicate with the complainant (most claims are not made up/imaginary) • Don’t witch hunt • Mediate – people want to be heard

  28. DISCRIMINATION AND HARASSMENT How can you avoid claims? • Train your employees, especially managers • Supervisor conduct renders employer liable • Employee conduct renders employer liable if it “knew or should have known”

  29. DISCRIMINATION AND HARASSMENT How can you avoid claims? • Address conduct and performance issues early • Don’t patronize. Make employment decisions based on merit not supposition or fears

  30. DISCRIMINATION AND HARASSMENT How can you avoid claims? • Document • Performance Evaluations • The good and the bad • It’s about comparators – you have to prove this person’s performance/conduct was lacking in relation to others

  31. DISCRIMIANTION AND HARASSMENT What to do if you get a claim: • Notify MIRMA! What happens next? • Administrative Process • Suit

  32. DISCRIMINATION AND HARASSMENT Questions?

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