Discrimination, Retaliation and Employee Leaves of Absence:

Transcription

1 presents Discrimination, Retaliation and Employee Leaves of Absence: A Primer for Employers May 9, 2007

2 Program Agenda Discrimination & retaliation overview and update Margaret H. Paget Reasonable accommodation and leaves of absence Matthew L. Mitchell Policies that every employer should adopt C. Forbes Sargent Investigating complaints Matthew C. Moschella

3 Discrimination and Retaliation: Overview and Update Margaret H. Paget

4 Applicable Laws Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act (ADEA) Americans with Disabilities Act Massachusetts General Laws Chapter 151B The following statutes also prohibits retaliation against employees: Uniformed Services Employment and Reemployment Rights Act (USERRA) Family and Medical Leave Act (FMLA) Massachusetts Maternity Leave Act (MMLA)

5 EMPLOYEE v. EMPLOYER VERDICTS AND SETTLEMENTS (State courts and MCAD: ) EMPLOYEE EMPLOYER % 48% 48% 52% DISCRIMINATION RETALIATION Total # of cases:

6 AVERAGE COMPENSATORY DAMAGE AWARDS FOR DISCRIMINATION 400, , , ,000 (State courts and MCAD: , , , , , , , , ,369 85,465 50,000 27,134 0 OVERALL AVERAGE RACE SEX SEXUAL ORIENTATION RELIGION AGE DISABILITY RETALIATION Total # of cases:

7 Average Punitive Damages Awards 2,500,000 2,000,000 2,016,833 1,500,000 1,000, , , , , ,000 0 OVERALL AVERAGE 60, ,000 RACE SEX SEXUAL ORIENTATION 0 RELIGION AGE DISABILITY RETALIATION Total # of cases:

8 Protected Classes The anti discrimination laws prohibit discrimination in employment based on an individual s: Race/Color Sex National Origin Ethnicity Religious Creed Age Individuals aged 40 and over Disability Sexual Orientation

9 Who is an employer? 151B: Employers with 6 or more employees Exceptions: Non profit clubs, fraternal associations or corporations that are exclusively social in function are not considered employers under Chapter 151B. Religious organizations organized for charitable or educational purposes may, in certain circumstances, make employment decisions based on religious principles of organization

10 Who is an employee? An employee is not: An independent contractor; A volunteer; An individual employed by his/her parents, spouse or child; An individual in the domestic service of any person; A partner or director shareholder, depending on the circumstances

11 Discriminatory practice includes: Refusal to hire (or firing) an individual because of membership in protected group; Unequal terms, conditions or privileges of employment because of employee s membership in protected group; Exception: bona fide occupational qualifications Refusal to provide reasonable accommodation to otherwise qualified handicapped persons; and Refusal to provide reasonable accommodation for religious observance.

12 Sexual Harassment Two forms of actionable sexual harassment: 1. Quid pro quo: Sexual advances or other conduct of a sexual nature when submission to such advances is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions. 2. Hostile work environment: Sexual conduct that has the purpose or effect of unreasonably interfering with an individualʹs work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Note: All employers, regardless of size, are liable for sexual harassment against employees under G.L. c. 214 section 1C.

13 Harassment It s not just about sex anymore. Harassment on the basis of one s membership in any protected class is unlawful. Clifton v. MBTA, 445 Mass. 611 (2005) (recognizing 151B claim based on racial harassment and a racially hostile work environment.)

14 Who may be liable for harassment? Employer Liability Any harassment by a supervisory employee. Harassment by non supervisory employee if employer knew or should have known and failed to take steps to stop.

15 Who may be liable for harassment? Individual/personal liability: Individual closely identified with business. Examples: owner, president, principal, partner The Harasser (sexual) Individuals with an obligation and the authority to prevent harassment, and who intentionally fail to do so may be liable.

16 It is unlawful to: Retaliation 1. Fire or otherwise discriminate against any person because he or she has opposed discriminatory practices; 2. Coerce, intimidate, threaten or interfere with another person in exercising his/her rights under 151B; Pointer: An employer may be found liable for retaliation even when the employee s claims of discrimination are found lacking.

17 Retaliation U.S. Supreme Court update on retaliation: Retaliation claims are not limited to conduct affecting only terms and conditions of employment, but include conduct that might reasonably dissuade an employee from bringing a discrimination claim. Burlington Northern & Santa Fe Railway Co. v. White, U.S. Sup. Ct., No (2006)

18 What to Expect at the MCAD Complaint Process 1. Employee files complaint 3. MCAD Investigates within 300 days of alleged 4. Probable cause discriminatory act. determination MCAD Appoints 5. Conciliation investigator conference 2. Employer submits position 6. Discovery statement 7. Public Hearing Note: Employee can remove a claim to Superior Court anytime within 3 years of alleged discriminatory act.

19 Reasonable Accommodation and Leaves of Absence Matthew L. Mitchell

20 The Question on Everyone s Mind What do you do when an employee comes to you and says? I am taking medication for hypertension. My doctor wants me to take a few days off. I m having a difficult pregnancy. My reserve unit has been called up Iraq.

21 The three word answer... Engage the Employee State and federal laws charge the employer with initiating a reasonable accommodation dialogue once the employer has a reasonable belief that the employee may be disabled or otherwise in need of a leave of absence.

22 Accommodation Laws Applicable Laws Americans with Disabilities Act (ADA) Chapter 151B Leave of Absence Laws Family and Medical Leave Act (FMLA) Massachusetts Maternity Leave Act (MMLA) The Uniformed Services Employment and Reemployment Rights Act (USERRA)

23 Reasonable Accommodation The Basics A qualified employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability.

24 What is Reasonable Accommodation? Reasonable accommodations may include: Providing or modifying equipment or devices; Job restructuring; Part time or modified work schedule; Providing readers or interpreters; Making the workplace readily accessible; Allowing for leaves of absence. An employer is not required to provide any accommodation that would pose an undue hardship.

25 Reasonable Accommodation When it is triggered? Once the employer knows that the individual is handicapped and requires a reasonable accommodation to perform essential job functions. Courts place the burden on the employer to recommend a reasonable accommodation to assist a disabled employee.

26 Reasonable Accommodation Interactive Process Analyze the particular job involved. Consult with the employee. Identify potential accommodations. Consider the employee s preferences. Request documentation.

27 Reasonable Accommodation You make the call! Rita is a pastry chef at a local restaurant. She is injured in a car accident and is forced to take time off of work. After a month, she informs the restaurant manager that she is fit to return. Before her first day back, Rita s mother calls and informs the manager that Rita s injury is permanent, that it is very painful for her to stand, and Rita will need to sit for 10 minutes for every hour that she stands. What do you do?

28 The Basics FMLA Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12 month period for one or more of the following reasons: Birth Adoption or foster care; Serious health condition. To care for an immediate family member with a serious health condition. Notice

29 Massachusetts Maternity Leave Act The Basics Maternity leave (8 weeks, unpaid) is available only to female employees either ʺfor the purpose of giving birthʺ or adopting a child. Leave is available at the time of the birth or adoption, but not substantially earlier or substantially later.

30 Uniformed Services Employment and Reemployment Rights Act (USERRA) The Basics USERRA requires every employer, regardless of size to reinstate employees after military leave, including training. Employees accrue seniority while out on leave. Employees are eligible for COBRA coverage for up to 24 months. If reinstatement is not possible, Employer must attempt to re assign employee to comparable position. Must provide employees with conspicuous notice of rights.

31 Policies That Every Employer Should Adopt C. Forbes Sargent III

32 Sexual Harassment Policy Required by Chapter 151B for employers with 6 or more employees. Strongly suggested for all employers. MCAD encourages anti harassment policy as well. Include in sexual harassment policy if not a separate policy. Sexual harassment training strongly encouraged under Chapter 151B for managers and supervisors.

33 Sexual Harassment Policy Policy must be provided to every employee annually. Employee to sign and acknowledge that received and understands policy. Should post policy as well. Designate a point person to receive complaints. Failure to have a sexual harassment policy in place if required under Chapter 151B may lead to inference by MCAD that employer does not understand its obligations under the law.

34 Leave of Absence Maternity Leave Military Leave (USERRA) FMLA (50 or more employees) Jury Duty Policies provide clarity and consistency for all employees.

35 E mail and Computer Use Policies Policies that include no harassment by means of computers and e mails. Includes inappropriate websites/e mails. Having policies makes clear no expectation of privacy in use of company systems.

36 Hiring Chapter 151B not only prevents termination based upon unlawful discrimination, but also prohibits refusal to hire based upon unlawful discrimination. Policies may help prevent discrimination in hiring. For example, if you conduct CORI background checks, you must have a CORI policy which sets forth procedures to be followed and rights of prospective employee.

37 Other Policies That May Help Prevent Harassment In Workplace Clear disciplinary policies that harassment of any kind will not be tolerated.

38 Employee Handbooks Employee Handbooks will cover these and other policies. Need to decide whether need full handbook, or just certain policies. Handbooks provide consistency and handy reference for employers and employees, but may limit flexibility of employer to deal with issues differently for each employee.

39 Investigating Complaints of Harassment & Discrimination Matthew C. Moschella

40 Areas to Investigate Investigate harassment by: Supervisors Co workers Non employees

41 When to Investigate? Investigate all complaints, scope of investigation will change depending on circumstances Investigate even if the accuser does not want you to Treat all like claims alike

42 Steps in a Harassment/ Discrimination Investigation 1) Receive and evaluate the complaint 2) Consult with counsel 3) Take interim measures to stop the harassment/ discrimination 4) Create an investigation plan 5) Consider confidentiality and ancillary liability issues 6) Select investigators 7) Interview the accuser 8) Interview the accused 9) Interview witnesses 10) Review other evidence 11) Reach a conclusion and determine the appropriate response 12) Complete a final written report 13) Notify the accuser and the accused of the result

43 Take Interim Measures to Stop the Harassment/Discrimination You have a duty to take steps to stop the harassment/discrimination during the investigation Interim measures must be non retaliatory

44 Possible Interim Measures Instructing the accused to stop the conduct Placing the accused or the accuser (only if accuser so requests) on administrative leave Transferring the accused or the accuser (only if the accuser so requests), to a different area, department, or shift Eliminating the accused s supervisory authority over the accuser

45 Consider Confidentiality and Ancillary Liability Issues Potential claims by accused and accuser: Defamation Violation of privacy The privilege

46 Select the Investigators Have 2 present during all interviews Emphasize documentation Maintain an investigative file Trap for the unwary: Do not include documentation concerning the investigation in either the accuser s or the accused s personnel file

47 Tell the accuser that: Interview the Accuser You take their allegation seriously and will thoroughly investigate their complaint You have a legal obligation to investigate Retaliation will not be tolerated Do not: Promise absolute confidentiality Tell the accuser not file an MCAD/EEOC claim Require the accuser to confront the accused

48 Ask Accuser, Accused and All Other Witnesses What happened? Where? When? Who was there? What was the accuser s response? Has this happened before?

49 Interview Other Witnesses Do not involve more people than necessary (but conduct a thorough investigation) Tell all witnesses that retaliation will not be tolerated Get a signed statement Emphasize confidentiality

50 Interview the Accused Tell the accused what the allegations are and that you take them seriously Tell the accused that you will conduct a fair and impartial investigation State that retaliation will not be tolerated Prohibit interference with MCAD/EEOC filings

51 Reach a Conclusion and Determine the Appropriate Response Consult with counsel Employer must take prompt remedial action to stop and prevent the harassment/discrimination Remedial measures do not have to be what the accuser asked for as long as they work The punishment should fit the crime

52 Potential Responses Oral or written warning/reprimand Apology Transfer or reassignment Demotion Training Suspension Discharge

53 Complete a Final Written Report Chronology of events (date of interviews and all other steps taken) Summary of the relevant witness statements and other evidence Factual issues in dispute Conclusions reached and supporting reasons Actions taken and why

54 Sherin and Lodgen LLP Employment Law Seminars October 2006 The Do s and Don ts of Hiring February 2007 Non Competition, Non Solicitation, and Non Disclosure Agreements: Tools for Protecting Your Business May 9, 2007 Discrimination, Harassment and Employee Leaves of Absence: Preventing and Investigating Complaints Upcoming Seminars September 19, 2007 The Do s and Don ts of Addressing Performance Problems and Terminating Employees

55 Margaret H. Paget Matthew C. Moschella C. Forbes Sargent III Matthew L. Mitchell