In a land not so far away...

Transcription

1 Avoiding Claims of Discrimination, Harassment, and Retaliation Presented by Sandi Pearson Tarski and Meredith Prykryl Walker 1 In a land not so far away... The Players: That Could Never Happen Here ISD (TCNHH ISD) Miss Tammy Tyree, junior high school teacher at TCNHH ISD The Scene: Miss Tyree is looking to become an administrator. She applies for an assistant principal position at TCNHH High School. Miss Tyree was not promoted; instead the job was offered to a less qualified male, Mr. Cool Hand Luke. The Conflict: In her interview, Miss Tyree is asked whether she plans on having children and whether she would be able to focus on the job given the nature of high school boys. Miss Tyree files a claim with the Equal Employment Opportunity Commission (EEOC). Resolution??? 2 1

2 Under what basis can Miss Tyree claim discrimination? There are several statutes that prohibit discrimination in employment Texas Commission on Human Rights Act (TCHRA) Title VII Age Discrimination in Employment Act (ADEA) Americans with Disabilities Act (ADA) These statutes prohibit discrimination based on: Age Sex/Gender Race/Color/National Origin/Ethnicity Disability Religion Policy DIA(LOCAL) also prohibits discrimination on the same basis. 3 Wait, back up, what is discrimination? At its essence, discrimination happens when an individual is subjected to an adverse employment action based on a protected characteristic, including sex, age, disability, race, or religion What is an adverse employment actions? Adverse employment actions are ultimate employment decisions such as hiring, firing, demoting, promoting, granting leave, and compensating [A]n employment action that does not affect job duties, compensation, or benefits' is not an adverse employment action. Thompson v. City of Waco (5th Cir. 2014) 4 2

3 But does Miss Tyree have a claim against TCNHH ISD? Miss Tyree meets the following elements of a prima facie case of discrimination: She is a member of a protected class female; She suffered an adverse employment she did not receive the promotion; She was qualified for the assistant principal position; and Someone outside of her protected class (Mr. Luke) was offered the position. What were the reasons that the school district chose to hire Mr. Luke over Miss Tyree? The issue that the school district faces with Miss Tyree is that, regardless of the reasons it proffers for hiring Mr. Luke, the questions asked of Miss Tyree during her interview give rise to a question of pretext. Pretext is the legal way of saying that the reason you hired someone is just an excuse because the real reason was some type of discrimination. Miss Tyree happens to be a young, single, attractive female, thereby providing further support for her claim in light of the questions. 5 How could we have prevented the discrimination claim? It goes without saying, but do not base employment decisions on protected classes (i.e., male vs. female, age) or protected characteristics (i.e., racial stereotypes). Take away any possibility that someone could perceive discrimination: Do not ask questions during an interview that would lead a prospective or current employee to believe that you are making a decision based on a protected class or characteristic. Document and be prepared to defend your reasons for making a hiring decision. Ensure that your employees are trained on interviewing and documenting. Make the job description and qualifications for each position clear. Once you are made aware of potential discrimination, do not hesitate to remedy the situation. While you can do everything right without any discriminatory intent, that does not mean that an employee will not still perceive that he/she has been discriminated against and subsequently file a claim. 6 3

4 Congratulations on your promotion, Miss Tyree! The Players: TCNHH ISD Miss Tammy Tyree, the new Assistant Principal at TCNHH High School The Scene: Miss Tyree is so excited about being promoted to Assistant Principal at TCNHH High School. She is looking forward to making a difference this school year. The Conflict: Miss Tyree thought she was promoted to the Assistant Principal position, but she has no interaction with teachers or students, is not allowed to do teacher appraisals, and has no say over student disciplinary decisions; instead, she has been put in charge of the janitorial staff. She files another EEOC claim. Resolution??? 7 Another EEOC claim when will Miss Tyree just go away? The bad news is that Miss Tyree is not going anywhere other than to her new office in the janitorial closet at the high school, which has landed TCNHH ISD right back at the EEOC. This time, Miss Tyree has two claims to choose from: Discrimination: establishing that what she perceives as her transfer to overseer of the janitorial staff was discriminatory Retaliation: establishing that what she perceives as a transfer to overseer of the janitorial staff was retaliatory 8 4

5 Miss Tyree is still the Assistant Principal so what s the problem? Transfers or reassignments can give rise to an adverse employment action if the transfer or reassignment is the equivalent of a demotion [T]o be the equivalent to a demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse such as being less prestigious or less interesting or providing less room for advancement. Thompson v. City of Waco (5th Cir. 2014) What about the loss of job responsibilities? Typically the loss of some job responsibilities is not enough. But the Fifth Circuit recently found that a change in or loss of job responsibilities may be so significant and material that it rises to the level of an adverse employment action. 9 Can t we do what we want with our employees? You can absolutely assign and reassign your employees for any legitimate reason (and don t forget within their professional capacity as set forth in their contracts). What you cannot do is take actions against Miss Tyree because she filed a claim with the EEOC that is retaliation. The TCHRA, Title VII, the ADA, and the ADEA all prohibit retaliation against an employee who has engaged in a protected activity. Engaging in retaliation will give rise to another EEOC claim. 10 5

6 So give it to us straight what is retaliation? In order to establish a claim for retaliation, an employee has to establish the following: she engaged in a protected activity; she was subjected to an adverse employment action; and there is a causal link because the activity and the action. What is a protected activity? If an employee opposes an unlawful employment action, she has engaged in a protected activity. If an employee files a charge with the EEOC, she has engaged in a protected activity. If an employee testifies, assists, or participates in any manner in an EEOC investigation or any other proceeding under the TCHRA or Title VII she has engaged in a protected activity. 11 Are all adverse employment actions created equal? The definition for an adverse employment action in the retaliation context is much broader than in the discrimination context. An adverse employment action is one that is materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White (2006) "Material adversity" does not encompass normally petty slights, minor annoyances, and simple lack of good manners that are trivial harms. The retaliation provisions seek to prohibit actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers. In other words, an employment action might not give rise to a claim of discrimination, but it could give rise to a claim for retaliation. More to come on this topic

7 But back to Miss Tyree did we make a mistake? Miss Tyree has viable discrimination and retaliation claims against the District. While Miss Tyree was still technically the Assistant Principal, she was effectively demoted (or transferred) because her main job responsibilities (teacher evaluations and student discipline) were stripped from her. This constitutes an adverse employment action for a discrimination claim. It is also materially adverse because it most likely would dissuade a reasonable worker from making or supporting a charge of discrimination. For her discrimination claim, Miss Tyree has to establish that she was placed over the janitorial department because of her membership in a protected class. She needs pretext. For her retaliation claim, Miss Tyree has to establish that she would not have been placed over the janitorial department but for the fact that she filed a charge with the EEOC. 13 How could we have avoided this round of claims? In the exact same way that you could have prevented Miss Tyree s first round of claims by not basing employment decisions on protected classes or characteristics AND by not by not basing employment decisions on an employee s protected activities. Document, document, document After an employee engages in a protected activity, nine times out of ten, the employee will assume that every decision made after that fact is discriminatory or retaliatory. In order to successfully defend against the claim, document all of your legitimate non-discriminatory and non-retaliatory reasons for making the employment decision. 14 7

8 Welcome to the central office, Miss Tyree! The Players: TCNHH ISD Miss Tammy Tyree, the somewhat new Assistant Principal at TCNHH High School The Scene: Miss Tyree s really excited about getting down to work as the Assistant Principal at TCNHH High School, and boy is she making changes. It is her way or the highway despite staff pushback. The Conflict: There have been allegations that Miss Tyree has been verbally abusive. Miss Tyree has also been MIA at several meetings despite being told repeatedly to attend. Miss Tyree is placed on administrative leave to investigate the allegations, and, upon her return, is given a written reprimand to address her actions. She goes to the EEOC. Resolution??? 15 Please tell me that Miss Tyree is not immune from all disciplinary action. Good news. Miss Tyree is not immune from all disciplinary action just because she has engaged in several protected activities. Employees that have engaged in protected activities or even filed lawsuits are subject to the rules just like everyone else. But you do have to give more time and thought to disciplinary actions for such employees. Even better news. For purposes of a discrimination claim: Placing Miss Tyree on administrative leave with pay is not an adverse employment action. Breaux v. City of Garland (5th Cir. 2000) Giving Miss Tyree a written reprimand is not an adverse employment action. Mattern v. Eastman Kodak Co. (5th Cir. 1997) (overruled on other grounds by Burlington) 16 8

9 So we are in the clear with regards to Miss Tyree, right? Wrong. Miss Tyree can still assert a retaliation claim because a written reprimand and administrative leave, even with pay, might dissuade a reasonable worker from making or supporting a charge of discrimination. Miss Tyree still has to establish that both of those actions would not have happened absent her protected activities. In other words, document, document, document your legitimate, non-retaliatory reasons for taking the action you did against Miss Tyree. 17 Welcome (back) to the central office, Miss Tyree! The Players: TCNHH ISD Miss Tammy Tyree, the not-so-new Assistant Principal at TCNHH High School Mr. Cool Hand Luke, the new Principal at TCNHH High School The Scene: In a stroke of luck for Mr. Luke, he has been promoted to Principal of TCNHH High School. Unfortunately for Miss Tyree, Mr. Luke has quite the reputation for being a ladies man. The Conflict: From the moment Mr. Luke arrived at TCNHH High School, he has had his eye on Miss Tyree. She has finally had enough of his comments, innuendos, and requests and has reported to Human Resources that she is being subjected to sexual harassment. Resolution??? 18 9

10 What do we need to know about sexual harassment? Sexual harassment is form of discrimination on the basis of sex that is prohibited in the workplace under the TCHRA and Title VII. Defining sexual harassment is not easy as employees tend to see it from their own vantage point based on their unique experiences. But the following things are clear: Anyone can be sexually harassed regardless of age, appearance, or status. The target of harassment can be either a man or a woman. The target of harassment does not have to be of the opposite sex. Perhaps most importantly, sexual harassment is a form of sex discrimination. It is a violation of the law. 19 Do we have an actual policy on this? Yes you do. Policy DIA(LOCAL) defines sexual harassment (a form of sex discrimination) as: unwelcome sexual advances; requests for sexual favors; sexually motivated physical, verbal, or nonverbal conduct; or other conduct or communication of a sexual nature when submission to the conduct is a condition of employment or the basis of an employment action or the conduct is so severe, persistent, or pervasive that it unreasonably interferes with the employee s work performance or creates a hostile work environment. Examples include sexual advances, touching intimate body parties, coercing or forcing a sexual act on another, jokes or conversations of a sexual nature, and other sexually motivated conduct, communication, or contact

11 So what exactly has Mr. Luke been doing and what are we supposed to do about it? Miss Tyree reports the following allegations to Human Resources: Mr. Luke has been inquiring about Miss Tyree s sexual relationships and her sexual preferences. Mr. Luke tried to kiss Miss Tyree and inappropriately touched her. When Miss Tyree turned down Mr. Luke s proposition for a sexual relationship, he told her that her job depended on her acquiescing to her requests. Each of these if true constitute sexual harassment that needs to be investigated because TTCNH ISD needs to promptly correct the alleged harassment. 21 Are we going to be liable for Mr. Luke s conduct? Like many things, the answer is it depends. Harassment of a school employee by a co-worker: Once an employer becomes aware of harassment taking place between co-workers, the school must take action to stop it. Harassment of a school employee by a supervisor: Employers are responsible if the harassing supervisor takes a tangible employment action against the harassed employee. Employers are also liable if there is no tangible employment action, unless The employer exercised reasonable care to prevent and promptly correct the harassment, and The employee did not complain or seek help through procedures set up by the employer

12 So what are we supposed to do with these complaints? First review and be familiar with your Board policy DIA(LOCAL) which provides: Definitions and examples of prohibited conduct Procedures for reporting prohibited conduct Identification of District officials to receive the report Title IX Coordinator for sex/gender claims ADA/504 Coordinator for claims of disability discrimination The Superintendent for all other claims 23 What does the policy require? DIA(LOCAL) requires an investigation and provides steps to be followed. Use it as your roadmap. Take interim action as necessary Promptly investigate 10 business days to complete (or maybe longer) A written report of the investigation is required Take appropriate disciplinary or corrective action Share your findings with the parties Document, document, document 24 12

13 Are we done now? Maybe. Maybe not. An employee who is dissatisfied with the outcome of an investigation under DIA (LOCAL) may appeal the findings through the District s grievance policy DGBA(LOCAL). The employee may also bypass the grievance process and go directly to the EEOC. In fact, the employee is not required to present a DIA complaint before making a complaint with the EEOC. 25 Sandi Pierson Tarski starski@wabsa.com Meredith Prykryl Walker mwalker@wabsa.com The information in this handout was created by Walsh Gallegos Treviño Russo & Kyle, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney