Presentation to ACAA

1. Presentation to ACAA TECHNIQUES FOR INVESTIGATING, ANALYZING AND RESPONDING TO EEOC CHARGES • Presented by Jennifer MacLennan and Susan Segal, Gust Rosenfeld • x

2. ADDRESSING DISCRIMINATION, HARASSMENT AND RETALIATION CLAIMS: State and Federal Law

3. EEOC Statistics • 99,412 charges in FY 2012 • 33.7% race • 30.5% sex • 10.9% national origin • 3.8% religion • 2.7% color • 38.1% retaliation • 23% age • 26.5 disability

4. Arizona EEOC statistics

5. EEOC basics • Charges must be filed within 180 days after the cause of action accrues. • This is extended to 300 days if your state enforces the same type of anti discrimination law • The statute of limitations is subject to defenses (tolling, for example). Ongoing harassment can extend the timeline limitations.

6. Federal and State Anti-Discrimination Laws Prohibit Discrimination on the Basis of: • GENDER - U.S. Constitution, Title VII, Title IX, ACRA, Pregnancy Discrimination Act, Equal Pay Act • RACE/NATIONAL ORIGIN - U.S. Constitution, Title VII, Title VI, Arizona Civil Rights Act, 42 USC s. 1981. • AGE - Age Discrimination in Employment Act (older workers may still have a claim even if the person who allegedly received preferential treatment is over 40). • RELIGION - U.S. Constitution, Title VII • DISABILITY - Americans with Disabilities Act, Vocational Rehabilitation Act of 1973, Section 504

7. EEOC Choices • Mediation • Investigation • Position statements • Interviews • Document requests • Adverse Findings • No cause dismissals • Right to Sue Letters

8. What Is Considered Unlawful Discrimination • Having a neutral employment policy which disparately impacts a protected class. (Disparate Impact). • Taking an “adverse employment action” against an employee because of his or her membership in a protected class (Disparate Treatment)

9. Adverse Employment Action • An action that negatively affects the terms and conditions of the person’s employment. • Very broadly defined in the 9th Circuit.

10. Examples of Adverse Employment Actions • Failure to Hire • Fire • Discipline • Failure to Promote • Demotion

11. Other Possible Adverse Actions • Negative performance review • Change in office location • Change in job title • Change in benefits • Less desirable shift

12. Harassment • Harassment is a form of discrimination. • Federal and State laws prohibit harassment on the basis of any protected class (not just gender).

13. Two Forms of Sexual Harassment* • Quid Pro Quo - Employer makes employment decisions based upon submission to or rejection of harassing conduct. • Hostile Work Environment *Applies to both genders; same sex harassment may be actionable as well.

14. Hostile Work Environment • Conduct of a sexual/racial, etc. nature; • that is offensive and unwelcome; and • that is severe or pervasive.

15. What May Be Considered Harassment • Unwelcome or unwanted sexual advances; • Requests for sexual favors (or other expressions of attraction or sexual interest); • Unwelcome sexual or gender-biased joking; • Sexually explicit language; • Obscene gestures or communications (including email communications); • Staring;

16. What May Be Considered Harassment (cont.) • Display of explicit materials (posters, cartoons, drawings, screen savers, etc.); • Comments regarding a person’s body or appearance (regardless of whether the subject to the comments actually hears the comments); • Derogatory comments based on gender; • Threats of sexual conduct; and • Physical acts of a sexual nature.

17. STANDARDS FOR IMPOSING EMPLOYER LIABILITY • Co-Worker: Knew or Should Have Known • Supervisor: Vicarious Liability absent Affirmative Defense

18. Affirmative Defense to Claims of Supervisor Harassment • Must have a clear policy prohibiting harassment and establishing complaint procedures; and • Must show that employee unreasonably failed to follow policy. • Training is critical.

19. Disability ONE OF THE MOST DIFFICULT AREAS FOR MANAGEMENT TO NAVIGATE!!! If a an employee is: (1) a qualified individual with a disability (or is regarded as disabled); and (2) can perform the essential job functions with or without reasonable accommodation . . .

20. Disability (cont.) (1) employee is protected from discrimination on basis of disability; and (2) employer must engage in interactive process to determine whether reasonable accommodation is possible without undue burden.

21. Disability (cont.) • Work with Human Resources to determine whether someone is a “qualified individual with a disability,” and whether there is a reasonable accommodation that would enable him or her to perform the essential functions of the job. • Whether an accommodation is reasonable requires an individualized analysis. • Employers can request medical documentation to confirm eligibility.

22. Disability (cont.) • An employee need not specifically request a reasonable accommodation to trigger your obligation to engage in the interactive process. • If you have reason to believe that an employee has a medical condition, before taking any adverse actions against that employee (i.e. counseling, reprimand, discipline, etc.), consider whether his or her performance problems may be related to that condition.

23. Religion • Requires only “moral or ethical belief” that is sincerely held with strength of traditional religious views). • Duty to accommodate where accommodation would impose a “de minimus” burden on employer. (Scheduling, dress codes, etc.) • Much greater duty to accommodate a disability than religious belief.

24. Retaliation • Taking adverse employment action because an employee opposed a suspected illegal employment action, or participated in an investigation concerning such action. • Employee need not be right – just reasonable. THIS IS ANOTHER PROBLEM AREA FOR MANAGEMENT.

25. Why Retaliation Claims Pose a Big Risk to Employers • Courts will infer some retaliatory intent if protected action closely followed in time by adverse action. • Must have clear documentation of the legitimate basis for the adverse employment action. • Still likely to be a fact question which will require trial if < 4 - 6 months.

26. What may be considered protected conduct • EEOC Charge/ACRD Charge/lawsuit • Internal complaint (written or verbal) • Participating in an internal investigation

27. Questions to ask yourself before taking adverse employment action: • Has the employee complained (formally or informally) of any unlawful discrimination in the past few years? How about workplace conditions? • Has the employee ever mentioned any medical condition? Are you aware of any facts that would lead a reasonable person to believe that the employee suffers from a medical condition? • Is the employee litigious?

28. Components of a Good Investigation Respond promptly to all complaints of unlawful discrimination or harassment. Be sensitive to all parties’ rights, and do not assume the accused is innocent or guilty.

29. Interviewing the Alleged Victim: • Explain that District will PROMPTLY and THOROUGHLY investigate the complaint • Cannot Promise Confidentiality • Affirm Policy Against Retaliation

30. What Not to Say to the Alleged Victim • If what you’re telling me is wrong, you could be sued for defamation. • If Mr. Stevens is such a problem, why don’t you just stay away from him? • Are you sure you want to pursue this? This is going to be a big ordeal. • ANYTHING ELSE THAT DISCOURAGES THE ALLEGED VICTIM OR SUGGESTS THAT HIS OR HER COMPLAINT IS NOT BEING TAKEN SERIOUSLY.

31. Other Witness Interviews: • Questions should minimize information and maximize responses. • Determine the relevant facts (i.e. who, what, where, when, who witnessed, what the accused said or did, what the alleged victim said or did). • Take factual notes during each interview.

32. Other Witness Interviews (cont.) • Conclude all interviews by explaining that, if additional facts come to mind, the witness should contact the investigator and provide any additional explanation; • If possible, prepare a factual chronology of the alleged events. • Do not prepare any conclusory or formal report without consulting HR or Legal. • If it is necessary to interview child witnesses, obtain parental consent in advance.

33. Interviewing the Alleged Perpetrator • Emphasize to the alleged perpetrator that the truth is very important, and that untruthfulness will result in harsh consequences. • Obtain corroboration of denials (documents, witnesses, etc.) • Explain how long the investigation will take and emphasize the importance of confidentiality.

34. Components of a Good Investigation (cont.) • Consult with Human Resources as to appropriate follow up and/or discipline. • Avoid using terms of legal significance in any documentation; • Closure with complaining party

35. The EEOC • Process (why it takes so long to get to Court); • Possible outcomes; and • Possible legal action (by EEOC or private suit)

36. What may be used against you in litigation? • Notes from HR investigation; • Failure to provide training on policies • Whether policies were consistently applied; and • The policies themselves.

37. Potential Damages • Back pay, front pay, compensatory and punitive damages; • Attorney fees ($50,000-$500,000 typical for employment discrimination case) • Costs

38. Practical Steps upon Receipt of Charge Step 1: Carefully review the EEOC Charge • Does the charge identify the correct employing entity? • Is the charge signed by the employee? • Is the charge time-barred? • Am I being asked to submit a response? • Is there an insurance carrier I need to notify?

39. Practical Steps upon Receipt of Charge • Step 2: Calendar the response and any other deadlines - Seek extensions if necessary • Step 3: Consider whether you should involve a lawyer • Step 4:Institute a litigation hold

40. Preparation of Position Statement • Identifies your entity and what it does • Identifies the key players and their roles • Addresses each charge allegation • Points out inconsistencies or misrepresentations in the charging party’s story

41. Preparation of Position Statement • Highlights your employer’s training, policies and practices • Includes attachments of key documents • Reserves your right to amend  • Invites the investigator to contact you for questions • Circulate

42. EEOC Authority and Options • Request for Information/Questionnaire • On Site Visit • Conciliation Process

43. Final thoughts • Actively watch for retaliation • Check up procedures docketed • Do the Post Mortem