Ensuring Equal Employment Opportunity in Your Workplace

Transcription

1 Ensuring Equal Employment Opportunity in Your Workplace Presented by: Merrily S. Archer, Esq., M.S.W. Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas New Jersey New Orleans Orlando Philadelphia Portland San Diego San Francisco Tampa

2 Outlook EEOC filings have increased; trend will continue A record high of 95,402 charges filed last fiscal year, up 15.2% Pregnancy charges up 30% Age charges up 15% Disability charges up 14% Religion charges up 13%

3 Outlook An emboldened, more aggressive EEOC EEOC collected $274 Million EEOC filed 290 merit lawsuits Focusing on class actions and systemic violations Sexual harassment remains largest category of claims EEOC says retaliation more egregious than discrimination

4 New Rules

5 Recently Enacted Legislation Genetic Information Nondiscrimination Act Prohibits employment decisions based on genetic information (GI) Protects GI of employees and their families Prohibits employers from requesting, requiring, or purchasing GI Lily Ledbetter Fair Pay Act Amends Title VII, ADA, ADEA & Rehab. Act Allows pay discrimination claims to be filed within 180 days from last discriminatory paycheck Expands remedies by allowing back pay for 2 years

6 Redefining Disability ADA Amendments Act of 2008 ü Signed by President Bush on September 25, 2008; went into effect on January 1, 2009 ü Overturns Supreme Court decisions interpreting the ADA ü Core concepts Broad construction in favor of coverage Mitigating measures (except for contacts and glasses) are NOT considered in disability determination Broad interpretation of substantially limits the EEOC will issue new regulations

7 Understanding Discrimination

8 Treating People Differently for Bad Reasons: Discrimination State and federal laws protect employees from discrimination on the basis of race, national origin, religion, gender, age (40+), and disability Many states now protect gay, lesbian, transgender, and bisexual workers from discrimination All laws make it illegal to retaliate against employees who complain about unlawful practices or file a charge with an administrative agency

9 Unlawful Discrimination Covers every aspect of the employment relationship Hiring Firing Discipline Terms and conditions Harassment Reasonable accommodations Benefits

10 Prohibited Questions in the Job Interview Certain questions can show bias on the part of the interviewer Certain questions can yield information that is not relevant to the ability to do the job

11 Questions That Can Show Bias Gender/marital status Kids, child care arrangements, kid plans Age Anything pertaining to age, unless proof of age is a legal requirement Disability Nature, extent of disability, how disability occurred Ability to perform essential job functions Race/national origin Anything related to ancestry Religion Holidays observed

12 Neutral Questions This job would require you to. Can you meet those requirements? Can you perform the essential job functions of this position? What skills/experience can you bring to this position? Are you legally entitled to work in the U.S.?

13 Pre-employment Medical Inquiries The ADA forbids an employer to make a medical inquiry or administer a medical examination BEFORE a conditional job offer is made to the applicant Medical inquiry: any question reasonably likely to elicit information about a disability Medical examination: any procedure or test that seeks information about an applicant s physical or mental impairments or health Physical fitness tests

14 Post-Offer Post-offer, an employer CAN make medical inquiries and require a post-offer, preemployment medical examination Goal of a real job offer: to assess fully all nonmedical criteria related job qualifications before a conditional offer is made

15 Assumptions: Employment Decisions Gone Bad Ability Gender Age Disability Tenure/Loyalty Guest preference Paternalism: I know what s best for everyone Plain old bias

16 Anatomy of a Discrimination Lawsuit Comparators: I was treated differently than another employee because of my race, gender, religion, etc. Uneven rule enforcement Remarks: My supervisor used an epithet showing bias against my group. Indiscreet language Accommodations: call your HR Director

17 Harassment (Sexual and Otherwise)

18 Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

19 When... (1) submission to such conduct is made either explicitly or implicitly a term or condition of individual s employment; (2) submission to or rejection of such conduct by the 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. 29 C.F.R

20 Trying to Be Everyone s Buddy Crossing the line: when joking smells like harassment What is harassment? Quid pro quo harassment Love disconnections : the dangers of fraternization Hostile work environment As a supervisor, what you say can and will be used against you

21 The Courts: We Know It When We See It Severity and pervasiveness Sexual jokes and comments Sexual advances and propositions Repeated touching Sexually suggestive comments about another s body or clothing Graphic written material posted or distributed in the office Leering, whistling, pinching, brushing up Graphic discussions of one s own sexual prowess or activities Other harassment Barrage of racially opprobrious comments Proselytizing?

22 Keep in mind... Hostile work environment need not be overtly sexual harassment Were members of one group exposed to disadvantageous terms or conditions of employment to which members of the other group are not exposed? Targeted tirades v. the EEO jerk Locker room horseplay on steroids Race, national origin, religion, age, disability

23 Systemic Discrimination Since 2006, the Commission has become more focused on investigating neutral policies and practices having a disparate impact on protected groups (in addition to its traditional focus on disparate treatment ) As a result, the EEOC has developed and implemented systemic discrimination plans for each of the 15 district offices This enhanced focus on disparate impact has brought employers applicant and hiring processes directly into the EEOC s sights

24 Practical Implications of the Systemic Focus Resuscitation of the Commissioner s Charge, based upon information from EEO-1 reports, common pending charges nationally, information from advocacy groups, media reports, EEOC concerns about a specific industry Garden-variety individual failure-to-hire EEOC charges often grow into EEOC systemic investigations of employers overall applicant and hiring process. Oftentimes, the employer s response to the Charge is the trigger for the systemic discrimination investigation. We treated the Charging Party just like all other applicants defense can open the door to a systemic focus.

25 The Disparate Treatment/Disparate Impact Continuum Disparate treatment: well-designed RIF (e.g., objective factors, neutral selection committee) is essential to overcoming disparate treatment claims Disparate impact: objective, neutral RIF criterion can still have an adverse impact on protected employees

26 The EEOC s Hot Selection Criteria The EEOC believes certain hiring criteria disproportionately have a disparate impact on racial/ethnic minorities or other protected groups including: Pre-employment tests Credit Reports Drug Screens Arrest and conviction records Current/pending prosecutions Active warrants

27 Statistical Tests for Adverse Impact Are minorities, women disproportionately falling out of the hiring process because of a selection test, criterion, policy? EEOC and OFCCP: Impact Ratio Analysis Compares the selection of protected and non-protected employees Also known as the 4/5 or 80% rule Other tests Chi-square, Fisher exact, z-test Focuses on statistical significance, beyond chance analysis 2 standard deviations Don t do this at home!

28 Traps for the Unwary You know you re on the EEOC s systemic radar if it requests information about: The applicability of policies or selection criteria to sites beyond one referenced in Charge Applicant trend data beyond that specified in Charge (especially in an Excel Spreadsheet on a CD-ROM) involving other applicants other positions other locations Pre-employment test validation studies How the selection criterion is relevant to job performance Third-party background check or testing vendors

29 On the horizon...

30 Proposed Laws Signal More Changes Employee Free Choice Act Patriot Employer Act Working Families Flexibility Act Protecting America s Workers Act RESPECT Act Civil Rights Act of 2009 Arbitration Fairness Act Employment Non-Discrimination Act

31 Final Questions? Merrily S. Archer, Esq., M.S.W. Fisher & Phillips LLP 1999 Broadway, Suite 3300 Denver, CO (303) Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas New Jersey New Orleans Orlando Philadelphia Portland San Diego San Francisco Tampa