Melanie Baca Osborne

Transcription

1 Melanie Baca Osborne

2 Increase in EEOC activity Nearly 100,000 charges in FY2011 Focusing on systemic problems (class actions) Hot claims: retaliation and ADA

3 U.S. EEOC Alaska State Commission for Human Rights (HRC) Anchorage Equal Rights Commission (AERC) U.S. DOJ Office of Special Counsel U.S. DOL Wage and Hour DOL-VETS OSHA Alaska DOLWD Wage and Hour OSHS AKOSH NLRB

4 Title VII race, color, religion, gender (sexual harassment), national origin, pregnancy Age Discrimination in Employment Act (ADEA) Older Workers Benefit Protection Act (OWBPA) Americans with Disabilities Act (ADA) 2008 ADA Amendments; 2011 regulations Alaska Human Rights Law adds marital status, changes in marital status, parenthood

5 Immigration and Nationality Act Immigration Reform and Control Act (ICRA) Note: Must complete I-9s Genetic Information Nondiscrimination Act (GINA) Uniformed Services Employment and Reemployment Rights Act (USERRA)

6 You are Director of HR. You receive in the mail a complaint filed with the HRC.

7 This is Katie. She is a computer programmer. Katie filed a complaint with the HRC about her boss.

8 This is Katie s boss, Frank. He is somewhat obnoxious and imperceptive, but most people say he is harmless.

9 Gender discrimination Age discrimination Harassment Retaliation She can t take it anymore!

10 Read the Charge Carefully Share It Internally, as Appropriate Need-to-know only In-House counsel Claims manager Acknowledge receipt of the claim by a letter to the claimant Internal investigation No retaliation

11 Establish a Point of Contact with the Agency Request Additional Time to Respond Begin to Think Through Your Response and What You Need Preservation Notice

12 Offered early in the process by most EEO agencies Certain cases selected for mediation Mutual agreement to participate required Attempt to resolve any issues without having to respond or participate in the agency investigation

13 Prompt and thorough investigation is critical No longer a minor dispute 2 recent Alaska cases reinforce good faith requirement

14 Four choices: In-house HR In-house legal Outside consultant Outside counsel

15 Factors to consider: Attorney-client privilege Ability/Skill Investigator as witness Cost Seriousness of the claim Avoid the appearance of bias

16 Reasons to maintain Reasons to not Selective waiver

17 Fact collector Draw conclusions? Resolve credibility disputes? Offer recommendations? Issue report?

18 Collect information requested in the agency questionnaire Collect all written documentation which may be relevant (Manager s notes; s) Personnel files of all involved Prior complaints

19 Organize and review relevant documents Give documents to investigator EEO claims filed with other agencies (EEOC or AERC)?

20 Check for consistency in positions: Prior statements / incidents Workers Compensation Unemployment claim Unfair Labor practice charge

21 Identify Interviewees managers, supervisors, witnesses Identify the Process: Same set of questions? Open ended vs. specific Witness statements Investigator s Notes

22 Personnel file issues AS Final Report Consider documenting steps taken, decision made, supporting facts Log investigators actions Retain all written communications to persons

23 Ensure key decisionmakers consider results of investigation Consider mediation Consider any additional disciplinary issues Be prepared to correct mistakes, if any

24 Respond to agency s specific requests Respond to allegations Highlight company s EEOC and anti-harassment policies, or other relevant policies Discuss their importance How employees are made aware

25 On Time Accurate Trust but verify manager s statements Provide exhibits highlight specifics and describe their importance Include a statement reserving your right to modify or supplement

26 Know the law Review timeliness of the filing of the charge Does the complainant have the correct employer? Is the employer covered by the statute?

27 Know the law Consider comparator information -- same hiring, promotion, disciplinary decisions Provide, where helpful, summarized information rather than raw documents Refer to other relevant policies, explaining the company s actions

28 This response can have serious consequences Admissions Future litigation if employee unhappy with result Ensure key decisionmakers review the response prior to filing

29 Retaliation charges have more than tripled in 2 decades Independent cause of action Top claim since FY2010!!! Three 2011 U.S. Supreme Court cases reinforce retaliation claims

30 Take care once an employee has made a claim Limit number of people who know about claim Counsel supervisors to be objective, exercise restraint, and avoid knee-jerk reactions Educate supervisors how to spot situations where retaliation is a risk

31 Gender & age discrimination Allegation: she did not receive promotion based on gender and age (> 40) Results: Katie had not yet been provided her annual evaluation it was untimely Katie meets expectations at current job Katie was qualified, though not the best candidate for the open position Hired person over 40, and older than Katie

32 Harassment Allegation: Katie s boss compliments her attire, recently offered to purchase her drinks at a work social event, and asked her out on two occasions prior to being her boss (>8 mo) Results: Actions do not appear to be harassment Coaching is warranted

33 Retaliation Allegation: Treated adversely (failure to get the promotion) for rejecting boss s advances Results: Others participated in hiring process Katie was not most qualified Rejection of date greater than 8 months before hiring decision

34 Reconsider mediation Explain the reasons for the hiring decision Reinforce harassment will not occur and that boss has been instructed not to offer to purchase anything and not to compliment Katie s attire Strong position statement Message of no retaliation!!!

35 Agency may request additional information or documents Agency interviews Management Witnesses General employees Agency will dismiss the charge or make a determination of cause

36 Organized approach Early cooperation with agency Internal investigation Gather and preserve documentation On time, accurate response Avoid Retaliation

37 Questions?