PREVENTING DISCRIMINATION, LEAVE, AND HARRASSMENT LAWSUITS

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1 PREVENTING DISCRIMINATION, LEAVE, AND HARRASSMENT LAWSUITS Participant Notebook PRESENTED BY ROCKHURST WEB CONFERENCE SERIES, A DIVISION OF ROCKHURST UNIVERSITY CONTINUING EDUCATION CENTER, INC. Copyright 2010, Rockhurst University Continuing Education Center, Inc.

2 Today s Employment Law Hotspots Personal Liability Individual Liability Employer s Liability Discrimination Harassment Retaliation Failure to hire or grant leave of absence Other: Objective To reduce the anger that an employee may direct toward you because he or she feels you have been unfair or unkind 2

3 Employment Discrimination: The Civil Rights Laws At-Will Employment Does: Allow employers to terminate employees at any time, for any legal reason, or for no reason at all Requires absolutely no legal obligation to give an employee any feedback or warning before termination Does Not: Mean supervisors should casually terminate without reason, justification, or following the organization s process Discrimination or Wrongful Termination Claims Involve Issue of Motive Did the employee have advance notice of the performance standard/policy/rule and the possible consequences of violating the rule or engaging in poor performance? If no prior notice, was the conduct or performance of such a nature that any reasonable person would know that it was unacceptable without prior notice? If the issue is conduct, has it been fairly and objectively verified that the employee engaged in the prohibited conduct was a thorough and impartial investigation conducted by someone who has been trained to investigate problems? Was the employee given due process (allowed to tell his or her side of the story)? If the issue is performance, was the employee given instruction, direction and training, and a reasonable time period in which to improve performance? Did the employee fail to improve his or her performance within that time period? Have other employees had the same or similar conduct issues or violated the same or similar policy/rule or underperformed? How were they treated? 3

4 Employment Discrimination: The Civil Rights Laws, continued Two Reasons Motive Matters 1. Courts in a majority of states have limited its application by allowing the at-will relationship to be restricted under several legal theories. Termination violated a whistle-blower statute or statutory anti-retaliation provisions Supervisor s action constituted a wrongful act ( tort ) 2. Employees are protected under federal and state discrimination laws from actions taken against them based upon their protected class status. Nine Federal Classes 1. Race 2. Sex/gender/pregnancy 3. National origin 4. Color 5. Age 6. Veteran 7. Religious creed 8. Disability status 9. Genetic information Important Note If you terminate an employee for no reason or without following your normal disciplinary process, you are raising a red flag that the termination was for improper reasons and your motive comes into question. 4

5 Employment Discrimination: Harassment Discrimination is treating people differently based upon their protected class status. Harassment is a form of discrimination where a person is treated differently and he or she is also treated in a way that is humiliating or demeaning. Harassment is designed to hurt someone else because of a disparity of power. EEOC 1980 Guidelines on Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 1. Submission to such conduct is explicitly or implicitly a term or condition of an individual s employment, 2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or 3. Such conduct has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile, or offensive work environment. Two Types of Harassment Quid Pro Quo ( This for That ) Harassment Supervisor/subordinate Request for sexual favors Promise of benefit or threat of reprisal (retaliation) Potential for strict liability If no tangible employment action, employer is allowed to show that it exercised reasonable care and the employee failed to do so failed to make a complaint Hostile Work Environment Harassment Supervisor, coworker, subordinate, outside third party Conduct of a sexual nature or directed at someone because of his or her gender ( context ) Severe or pervasive, unlawful patterns of behavior (see Appendix) Knows or should have known 5

6 Exercise Reasonable Care Employers need to be aware of responsibilities and obligations. 1. Publish a policy prohibiting workplace harassment. 2. Inform supervisors of their responsibilities under the policy. 3. Inform employees of the policy and their responsibility to use the complaint procedure. 4. When a complaint is made, conduct a fair and fast investigation. 5. Resolve complaints quickly and fairly. 6. Ensure that there is no repetition of the problem or retaliation. The Manager s Role Is Pivotal in Preventing and Addressing Workplace Harassment Know the organization s policy on harassment and be prepared to educate employees. Know how to spot potential problems or questionable behavior. Demeanor changes; employee may become withdrawn and quiet. Productivity drops quality or quantity of work. Absenteeism/tardiness issues, health problems, or depression emerge. Tensions escalate in work group. Know how to respond to a complaint. Communicate no tolerance of disrespectful, unkind, uncivil, and unlawful actions. Personal Liability Impact Angry plaintiffs are suing supervisors as well as employers for: Intentional or unintentional infliction of emotional distress Defamation Tortuous or contractual interference with employment relationship 6

7 Leave Laws Several federal laws entitle employees to take time away from work. Individual organizations and state laws may expand upon entitlements and protections. Personal leaves tend to be personal and emotional. Monitor appropriate implementation. Three Intersecting Laws: The Bermuda Triangle of Employment Law 1. Family and Medical Leave Act (FMLA) Gives employees time away from work of up to 12 weeks with a guarantee of reinstatement when dealing with their own or a family s medical issues, including pregnancy as well as two forms of military leave Unpaid leave of absence of up to 12 weeks may be continuous, reduced schedule, or intermittent Provides for employee leaves to care for immediate family members who have a serious health condition 2. Workers Compensation Laws Federal requirement, administered on state level and differs state by state Employers guarantee that workers injured on the job receive medical treatment, rehabilitation services, and replacement of lost wages irrespective of negligence, while under most circumstances, employees relinquish their right to sue 3. Americans with Disabilities Act (ADA) Employer must reasonably accommodate the known disabilities of applicants and employees who are able to perform the essential functions of a job, with or without an accommodation Expects employers to have an accommodation mind-set Covers job applicants as well Nature of Medical Condition Covered FMLA On the job or outside of work Short- and long-term medical conditions ADA On the job or outside of work Workers Compensation Restricted to chronic or long-term medical conditions On the job or outside of work Short- and long-term medical conditions 7

8 Examine Complex Intersections of HR Laws FMLA and Workers Compensation Intersection There s no guarantee of reinstatement under most states workers compensation laws. Many employees will elect to take their workers compensation leave concurrently with leave under FMLA (12-week guarantee of reinstatement). In Maine, New Hampshire, Oregon, Rhode Island, and West Virginia, workers compensation law requires reinstatement, regardless of the length of the leave. Under FMLA, employers legally may mandate that leave time be taken concurrently under FMLA and workers compensation once the 12-week guarantee of reinstatement is exhausted, the employee may be lawfully terminated. Employers may not require employees who are covered by workers compensation and FMLA to use their paid time off in combination with their leave since workers compensation leave is paid. FMLA and ADA Intersection An employer may be obligated to grant an ADA-covered employee FMLA leave for more than 12 weeks. ADA provides that an employer may not adopt an automatic policy of terminations after an FMLA-warranted leave expires since a leave extension may constitute an ADA reasonable accommodation. An employer must make an individualized determination as to whether the accommodation of a leave extension is an undue hardship. Employers must still consider whether there are alternative accommodations to an extension that would not impose such hardship ADA gives the employee more protection than FMLA. Employees can be required to exhaust their paid time off while taking unpaid FMLA leave time. FMLA, ADA, and Workers Compensation Intersection Workers compensation injuries that are substantial may rise to the level of a disability under ADA. If covered under ADA, the workers compensation injury may entail an FMLA leave, but with more than 12 weeks, with a guarantee of reinstatement as an ADA reasonable accommodation. 8

9 Uniformed Services Employment and Re- Employment Rights Act (USERRA) Covers vets who after serving active duty return to the place of employment they left before serving Provides more extensive protections than ADA Veteran status under USERRA is a preference and not just a level playing field Avoid Retaliation Lawsuits Unlawful retaliation exists when three things happen: 1. An employee engages in legally protected activity. 2. A supervisor subjects the protected employee to an adverse employment action. 3. A causal nexus a connection exists between the protected activity and the adverse action. It is difficult for a person to continue working for an employer and a supervisor against whom he or she has filed a charge. EEOC and other agencies advise the complainant that he or she cannot be terminated for engaging in protected activity. What many employees hear is, You cannot be fired period. As a result, these employees often have a false sense of immunity that ultimately works to their disadvantage. They begin to do unwise things, including skipping work, refusing reasonable assignments, falsifying records, engaging in violent or verbally abusive altercations with supervisors or coworkers in short, committing clear-cut, terminable infractions. Step back and examine your motivation as objectively as you can. Summary 1. Managers should understand laws related to human resources and personnel. 2. Know when to ask questions. 3. Know when to seek HR department and legal counsel. 4. Proceed with the intent to be fair to provide to the employee that which the law mandates and to treat individuals with dignity and respect. 9

10 Appendix Hostile Work Environment Harassment: Severe or Pervasive Behaviors 1. Discussions of sexual activities 2. Unnecessary and unwanted touching; making unseemly gestures 3. Comments on physical attributes related to protected class status 4. Displays of suggestive or offensive pictures related to protected classes 5. Use of demeaning or inappropriate terms related to protected classes 6. Taking retaliatory action against someone who spurns an advance or makes a complaint 10

11 Recommended Resources Books 101 Sample Write-Ups for Documenting Employee Performance Problems The Complete Guide to Human Resources and the Law Discipline Without Punishment, Second Edition Fair, Square, and Legal, Fourth Edition HIPAA Privacy Compliance Planning Manual How to Work With People Managing Workers Compensation Mandated Benefits Principles of Payroll Administration Recruiting, Interviewing, and Selecting Employees Smart Hiring: The Complete Guide to Finding & Hiring the Right People State & Federal Wage-Hour Compliance Guide What Every Manager Needs to Know About Sexual Harassment CD-ROMs Accounting Policies and Procedures HR Training Customizer Payroll Policies and Procedures Multimedia How to Deal With Cultural Diversity To order resources, call Customer Service at or visit our Web site at 11

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