3/3/2017. Preventing Unlawful Discrimination. Why Prevention is so Important. wafla Labor Conference February 23, 2017

Transcription

1 Preventing Unlawful Discrimination wafla Labor Conference February 23, 2017 Rita Lovett Jeffers Danielson Sonn & Aylward, PS Why Prevention is so Important Because treating employees in a non-discriminatory manner (and compliance with the law) is the right thing to do! Because these disputes are emotionally charged, expensive, and disruptive People persist when they feel they have been wronged, despite economic reality Heavily fact-based claims, often with few witnesses Employee s initial burden is not high: Summary judgment should rarely be granted in employment discrimination cases, and very little evidence is needed to survive summary judgment in such cases because the ultimate question is one that can only be resolved through searching inquiry and is most appropriately conducted by factfinder, upon full record. Affects morale and productivity Damages, cultural, and reputational harm 1

2 Considerations Specific to Farm Workers Farm workers are particularly vulnerable to discrimination and harassment Immigration status of worker / family Limited English Potentially less aware of their rights High ratio of female workers Work in remote locations Different cultural norms about raising concerns Distrust of government may chill claims (Homeland Security v. EEOC) The Legal Framework: Washington Law Washington Law Against Discrimination (WLAD) RCW Prohibits discrimination against employee because of employee s membership in protected class Protects against retaliation Enforced by Washington Human Rights Commission No requirement to file claim here before court 8 employees (except nonprofit religious organizations) Private right of action for independent contractors for most classes No punitive damages All employers (including < 8 employees) wrongful discharge in violation of public policy Protected Classes: Race Color Religion (creed) Sex (including pregnancy) National Origin Families with children Marital status Sexual orientation / Gender identity Use of a Trained Service Animal Age Presence of sensory, mental, physical disability Honorably discharged veteran or military status Actual or perceived HIV or Hepatitis C status The Legal Landscape: Federal Law Civil Rights Act of 1964 (Title VII) Civil Rights Act of 1866 (Section 1981) Age Discrimination in Employment Act (ADEA) Americans with Disabilities Act and Amendments (ADAAA) Equal Pay Act Genetic Information Nondiscrimination Act (GINA) 2

3 Civil Rights Acts Civil Rights Act of 1964 (Title VII) Prohibits discrimination against employee because of employee s membership in protected class Protects against retaliation Enforced by EEOC Must file charge with EEOC before filing lawsuit >15 employees Independent contractors not covered Limited punitive damages Civil Rights Act of 1866 (Section 1981) Equal contract rights >0 employees Not enforced by EEOC o Protected Classes Race Color Religion (creed) Sex (including pregnancy) National Origin o Protected Classes Race Age Discrimination in Employment Act (ADEA) Prohibits discrimination against employee because of employee s age Employees 40 years old Establishes minimum requirements for releases of such claims Enforced by EEOC 20 employees Differs from Title VII by not allowing mixed motive claims Employee must prove age is but for cause, not motivating factor WLAD includes age 8 employees RCW prohibits unfair employment practices because employee 40 years old 0 employees Burden shifting applies Employee must prove age is a substantial factor Americans with Disabilities Act and Amendments (ADAAA) Prohibits intentional discrimination Against qualified individuals With physical or mental disabilities Requires reasonable accommodation Of qualified individuals Unless undue hardship Applies to applicants and employees >15 employees Limits timing and scope of medical inquiries Enforced by EEOC Must file charge with EEOC before filing lawsuit Claims Disparate treatment / impact Failure to accommodate 3

4 Equal Pay and GINA Equal Pay Act Prohibits sex-based wage discrimination Equal pay for equal work 0 employees Enforced by EEOC Employee may file private suit prior to EEOC charge Genetic Information Nondiscrimination Act (GINA) Genetic information means genetic tests of employee or family members, manifestation of disease or disorder of employee s family members Prohibits discrimination because of genetic information of employee or family members Prohibits the request, require, or purchase of genetic information of employees & family members with certain exceptions Confidentiality requirements WA RCW Prohibits sex-based wage discrimination 0 employees Disparate Treatment Intentional discrimination because of membership in protected class Treating similarly situated individuals differently Tangible employment action Manager/supervisor action leading to monetary loss or significant impact on employment status Isolated instances can be unlawful Employer is strictly liable for discrimination by managers that results in tangible employment actions Hostile work environment Conduct not resulting in tangible employment action Objectively and subjectively offensive Sufficiently severe or pervasive Creates an intimidating, hostile, or offensive work environment Employer is liable unless it can prove: It exercised reasonable care to prevent and promptly correct conduct, and Employee unreasonably failed to take advantage of protective or corrective opportunities Proving Disparate Treatment McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) Burden shifting Employee produces enough evidence to infer unlawful discrimination (prima facie case) Employer articulates legitimate, non-discriminatory reason for its action Employee demonstrates employer s reason is pretext for discrimination Employee s initial burden Member of protected class Qualified Rejected, denied, terminated, etc. Employer continued to seek applicants or someone outside the protected class received the benefit Employer s non-discriminatory reason Thorough, clear, unemotional documentation of employment action will make or break employer s case Employee s proof of pretext Employer s motivation (discriminatory actions or statements) Truth of employer s reason (inconsistent reasons for or documentation of action) 4

5 Mixed Motives Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) Employee proves membership in protected class was a motivating factor in employment action Burden shifts to employer to prove would have taken same action regardless Title VII amended in 1991 to allow claims where discriminatory conduct is a motivating factor ADEA was not amended to provide for mixed motives claims must prove but for causation Washington law standard is substantial factor Even where employer has a legitimate reason for employment action, if discrimination was a motivating or substantial factor, employee prevails Employer strictly liable But if employer proves would have taken same action regardless, this may limit remedies Documentation is key Disparate Impact Employee proves (prima facie case): facially neutral employment policy or practice that disproportionately impacts members of protected class through statistical evidence comparing impact of policy on protected class vs. others, similarly situated Employer proves: challenged policy or practice justified by business necessity, policy / practice related to position Employee proves: Other means to accomplish business objective with reduced adverse impact on protected class Discrimination need not be intentional Harassment Tangible Action / Quid Pro Quo Harassment is a form of unlawful discrimination, can be sexual or non-sexual Unwelcome verbal or non-verbal conduct because of protected class Attributable to employer Sufficiently offensive to alter the conditions of the victim s employment Sexual Harassment quid pro quo Harasser seeks sexual favor in exchange for employment benefit or for avoiding employment detriment Single instance can be sufficient Strict employer liability, even without senior management knowledge 5

6 Harassment Hostile Work Environment Hostile work environment Unwelcome verbal or non-verbal conduct because of protected class Attributable to employer No tangible employment action or financial injury required Sufficiently severe or pervasive to alter the terms or conditions of employment Has the purpose or effect of unreasonably interfering with an individual s work performance other otherwise creates an intimidating, hostile, or offensive working environment Objectively and subjectively offensive Faragher-Ellerth Defense Employer exercises reasonable care to prevent and promptly correct harassment, and Employee unreasonably failed to take advantage of any preventive or corrective opportunities Employer Liability - Supervisors Supervisors have power / authority that makes their harassing conduct more threatening Tangible employment actions strict liability Hostile work environment - affirmative defense Washington Tangible employment actions of senior managers strict liability owner, manager, partner, corporate officer Hostile Work Environment Washington Supreme Court: management participation results in strict liability Robel v. Roundup Corp, 148 Wn.2d 35 (2002) imputed Fred Meyer deli manager harassment to company establishing HWE based on disability But Washington Courts of Appeal have allowed affirmative defense Employer Liability - Supervisors Vance v. Ball State, 133 S.Ct (2013) narrowed definition of supervisor for liability an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Id. at 2443 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Ellorin v. Applied Finishing, Inc., 996 F. Supp.2d 1070 (W.D. Wash. 2014) Caution in applying Vance to narrow definition of supervisor too much designated manager who occasionally directs work of others, and makes recommendations as to hiring could be supervisor, imputing actions of such supervisor to employer 6

7 Employer Liability - Co-workers and non-employees Employer liable if knew or should have known of the conduct and failed to take immediate corrective action reasonably calculated to end it Corrective Action: punishment should match the crime up to and including termination Washington For employer to be strictly liable, harasser must be supervisor, not co-worker or non-employee (unless acting in employer s interest) Jenkins v. Palmer, 116 Wn. App. 671 (2003) Employer may still be liable for co-worker harassment if hostile work environment is so severe or pervasive employer knew or should have known about it and failed to take immediate corrective action Individual Liability Federal laws individuals not employers, generally not liable WLAD Managers / Supervisors may be individually liable for their own discriminating or harassing conduct Co-workers may be individually liable for aiding or abetting by causing another to discriminate What can Employers do to Mitigate Risk? Policies Clear and understandable to the average worker Translate if workers don t read English Forms of discrimination and harassment explained with examples Provide clear and multiple options for reporting concerns to trusted management of employee s choice Immediate supervisor may be the problem Provide an anonymous option, if possible Advise employee regarding confidentiality limits with respect to concerns and no retaliation for good faith concerns All employees must receive, review, acknowledge policies Develop company culture based on policies Periodic training on policies Ensure practice adheres to policies and enforce them 7

8 What can Employers do to Mitigate Risk? Procedures for reporting, investigating, resolving employee concerns Ensure recipients of concerns are trained to respond appropriately Conduct prompt, neutral, thorough, well-documented investigations Do not retaliate Take prompt, effective corrective action Conduct and track periodic training by qualified trainer Conduct and track supervisor-specific training regarding importance of their actions and personal and employer liability EEOC and Farm Workers EEOC not active in agricultural cases until late 1990s 1995 Education and outreach campaign with California Rural Legal Assistance / Lideres Campesinas (farm worker women leadership network) on sexual harassment EEOC v. Tanimura & Antle - $1.855MM consent decree 1999 EEOC Enforcement Guidance, EEOC will: not ask immigration status seek remedies for all workers, and pursue retaliation charges against employers who threaten deportation or otherwise use immigration law to undercut civil rights laws Approximately 50 cases EEOC matters on Selected List EEOC Proposed Harassment Enforcement Guidance o June 2016 Select Task Force recommendations o January 10, 2017 published Enforcement Guidance o Public comments through March 21, 2017 o FY2015 ~ 90,000 charges filed with EEOC o 27,893, ~31% of all charges included alleged harassment o Guidance document would replace all current harassment guidance documents, all from the 1990s o Guidance outlines EEOC and court cases guiding EEOC position on workplace harassment o EEOC and courts not always aligned o Deference o Addressing inactionable conduct that may escalate o The reach of the workplace o Importance of EEOC position: federal cases start there 8

9 Scope of EEOC Proposed Guidance ocovered bases (protected characteristics) ocausation ohostile work environment threshold (sufficiently severe or pervasive) osubjectively and Objectively hostile oconduct related to complainant and the workplace oemployer liability (post-vance) orole of harasser within organization osystemic Harassment opromising Practices EEOC Proposed Guidance Recommendations Promising Practices Leadership and Accountability Prioritize elimination of harassment (policy and actions) Comprehensive and Effective Harassment Policy Clear, regularly communicated and enforced Effective and Accessible Harassment Complaint System Understandable, with multiple avenues Process for neutral, prompt, thorough investigations by trained individuals Effective Harassment Training Regular, interactive, tailored to audience and organization Covers rules, procedures, consequences 9