Legal Issues to Consider to Avoid EEOC Claims and Other Litigation

1. Legal Issues to Consider to Avoid EEOC Claims and Other Litigation MASPA Winter Conference Wednesday, December 4, 2013 Lansing, Michigan Presenters: Robert T. Schindler Kevin T. Sutton Want to download this presentation? Do it now: www.luskalbertson.com/maspa

2. A Tad Misleading … • Can’t avoid EEOC claims and litigation • Can prepare your District to be in the best possible position to respond to claims when they arise

3. “Who are these people?” • Equal Employment Opportunity Commission (EEOC) • Federal administrative agency tasked with enforcing the following statutes: • ADA • ADEA • Title VII of the Civil Rights Act of 1964 • EPA • GINA

4. “Who are these people?” • Michigan Department of Civil Rights (MDCR) • State administrative agency tasked with enforcing the following statutes: • ELCRA • PWDCRA

5. What are the Standards? • Failure to accommodate under the ADA: • Employee must be disabled; • Employee must be otherwise qualified for the position/able to perform the essential duties of the position, with or without reasonable accommodation; • Employer knew or had reason to know about the disability; • Employee requested accommodation; and • Employer failed to provide the necessary accommodation/engage in interactive process

6. What are the Standards? • Discrimination or Retaliation • Discrimination • Employee is member of protected class; • Employer is aware that Employee is member of that class; • Employee suffered adverse employment action; and • Employee is otherwise qualified for position • Retaliation • Employee engaged in a protected activity; • The Employer was aware that the claimant had engaged in that activity; • The Employer took an adverse employment action against the employee; and • There is a causal connection between the protected activity and the adverse action

7. What are the Standards? • Discrimination or Retaliation (cont) • In both claims, the Employer can overcome Employee’s claim by demonstrating legitimate non-discriminatory reason for actions • Employee then must demonstrate that the legitimate non-discriminatory reason is pretext for Employer’s discrimination or retaliation

8. What are the Standards? • Harassment (form of discrimination) • Employee is member of protected class; • Subject to unwanted harassment based on protected classification; • Harassment interfered with Employee’s ability to work, or was the basis for employment decision; • That there is a basis for Employer liability: • Employer knew or reasonably should have known about harassment, and • Employer did not take reasonable steps to prevent harassment

9. What is a Complaint? • A complaint to the EEOC or the MDCR is an allegation by an employee that their employer violated one of the statutes administered by the agency • It is the first step in the process that leads to an investigation into the allegation by the administrative agency

10. What is a Complaint? • A complaint to the EEOC or MDCR is not a lawsuit, but it may be the precursor to one • Under federal law, an individual must file a complaint with the EEOC prior to filing a lawsuit • The same rule does not apply under Michigan law

12. The Complaint Process • Once a complaint is filed, the employer is notified by the agency • Employer may elect mediation (voluntary for both parties) or file a position statement explaining why it did not violate the law • If investigation is necessary, agency then investigates through: • Requests for documentary information • In-person interviews

14. Complaint Resolution - Good • Once the investigation is complete, a finding is made • If the agency does not find “reasonable cause” to believe a statute has been violated, it will issue a “right to sue letter” • “Right to sue” doesn’t mean district did anything wrong; just advises employee that they can file a lawsuit • Realistic chance of success?

16. Complaint Resolution – Not So Good • If the agency finds “reasonable cause” to believe a statute has been violated, it will seek conciliation • If conciliation, settlement is complete • If no conciliation, right to sue letter and agency may sue on behalf of complainant

17. Defeating a Claim/Lawsuit • “The best offense is a good defense”

18. Shutting Down a Claim • What Steps Can You Take to Ensure a Viable Defense to Any Claim or Suit? • Consider Legal Standard • “Knew or Should Have Known” • “Prompt, Remedial Action” • “Legitimate, Non-Discriminatory Reason” • Action Steps • Investigate claims/concerns • Engage in interactive process (ADA) • Consistent interview techniques/processes • Consistency in discipline • Use performance-based metrics for employment decisions • Adhere to protocols (district policies, student code of conduct) • Document!

19. When to Investigate? • A formal (or informal) complaint • Co-worker reports of questionable conduct (even if not wanting to become involved or reported anonymously) • Observed or reported employee or student misconduct including violation of workplace rules or student code of conduct • Theft or suspected theft • Workplace misconduct (harassment, jokes, comments, etc.) • Parent or student complaints • Anonymous complaints

20. Why Investigate? • Gather facts and evidence • Informed decision-making • Adhere to due process requirements for staff; adhere to district policy • Create a record of activity • Occurrence / Response • Establish expectations for behavior • Show misconduct will be taken seriously • Be your attorney’s best friend! • Document for future proceedings • Avoid liability!

21. ADA Interactive Process • Interactive Process refers to an informal process between the employer and disabled employee regarding limitations and possible accommodations • Step 1: Analyze job to determine essential functions. • Step 2: Determine with employee how the disability limits essential functions. • Step 3: Identify accommodations to overcome limitations; determine effectiveness and feasibility. • Step 4: Consider employee’s performance and employer selects accommodation appropriate for employer and employee.

22. Documentation! • Documentation of all situations is vital! • Include summaries from meetings/interviews • Collect documents relevant to situation • Follow-up as much as needed to gather all information • Create a separate file for the investigation • The file should include all documents and other information gathered during the investigation

23. Employment Decisions • Interviewing, hiring, terminations, promotions, etc. • All decisions should be made on qualifications/performance • Record-keeping, written objective standards • Key: Ability to Justify Decisions

24. Issuing Discipline • Determine what, if any, corrective action or remedial measures are necessary • Always consider/follow polices and practices • If issuing corrective action, remember purpose of such action: • Correct future conduct • Communicate to employees what is acceptable conduct • Minimize exposure to future liability for alleged harassment/discrimination

25. Case Study # 1: Knowing When to Mediate

26. Case Study #1: Mediation Resolution Agreement

27. Case Study #2: Prescription or No Prescription • School District offered a teaching position to individual subject to pre-employment physical; • Employee tested positive for narcotics; • When questioned by clinic, Employee told the physician that she takes a prescription narcotic for pain relief of a back problem; • Physician followed up with listed primary care physician who stated she was not prescribed any narcotics for pain relief – Clinic informed District • School District revoked employment offer based on taking of narcotics

28. Case Study #2: Prescription or No Prescription • Employee files claim with EEOC based on disability discrimination under the ADA • School District responds with position statement explaining that decision based on taking of narcotics without prescription • Employee submits prescription to EEOC from doctor other than primary care physician • EEOC makes finding of “reasonable cause” • “District relied on clinic rather than talking to the employee”

30. Case Study #2: Prescription or No Prescription • Offer of Conciliation: • Reinstate • $50K in compensatory damages • Training for managers, ensure compliant policies, accommodate disabilities in the future, and post EEOC notice for 5 years • Counter Offer – Accepted • No reinstatement • $20K in damages • Agree to non-economics

31. Questions? Robert T. Schindler 40950 Woodward, Suite 350 Bloomfield Hills, MI 48304-5129 Direct: (248) 988-5696 Cell: (248) 431-5401 Email: RSchindler@LuskAlbertson.com Kevin T. Sutton 40950 Woodward, Suite 350 Bloomfield Hills, MI 48304-5129 Direct: (248) 988-5695 Cell: (734) 377-7400 Email: KSutton@LuskAlbertson.com