A B C’s OF EMPLOYMENT DISCRIMINATION FOR EDUCATORS HIRING AND TERMINATION ISSUES AT YOUR SYNAGOGUE.

A B C’s OF EMPLOYMENT A B C’s OF EMPLOYMENT DISCRIMINATION FOR DISCRIMINATION FOR

EDUCATORSEDUCATORS

HIRING AND TERMINATION HIRING AND TERMINATION ISSUES AT YOUR SYNAGOGUE ISSUES AT YOUR SYNAGOGUE

ARTHUR R EHRLICHGOLDMAN & EHRLICH19 SOUTH LaSALLE STREETSUITE 1500CHICAGO, ILLINOIS [email protected]

FEDERAL AND STATE EMPLOYMENT LAWSPROHIBITING DISCRIMINATION

A. TITLE VII: CIVIL RIGHTS ACT (FEDERAL)

1. GENDER

(INCLUDES SEXUAL HARASSMENT ANDPREGNANCY DISCRIMINATION)

2. RACE OR COLOR

3. NATIONAL ORIGIN

4. RELIGION *

* (BUT PREFERENCE FOR JEWISHEMPLOYEES IS ALLOWED FOR JEWISHBASED RELIGIOUS SCHOOL)

5. RETALIATION FOR COMPLAINING ABOUTDISCRIMINATION

B. AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

1. PROTECTS THOSE 40 AND OLDER

C. AMERICANS WITH DISABILITIES ACT (ADA)

1. DISCRIMINATION BASED ON A DISABILITY

STATE LAWS PROVIDE SAME AND ADDITIONALPROTECTIONS

1. RETALIATION

a. FOR WHISTLE BLOWING (e.g. OSHA COMPLAINT,REPORTING ILLEGAL ACTIVITY)

b. FILING WORKER’S COMPENSATION CLAIM

2. ARREST RECORD

a. ACTION CAN ONLY BE TAKEN IF YOU CAN PROVE THETEACHER COMMITTED THE CRIME

Convicted or Guilty Plea, Admit to the incident, or Eye Witness

3. MARITAL STATUS (Single, Divorced, or Married)

4. SEXUAL ORIENTATION

5. YOUR STATE MAY HAVE OTHER PROTECTIONS

NO EMPLOYMENT ACTION MAY BE TAKEN BASEDON ANY OF THESE CLASSIFICATIONS WITHRESPECT TO ANY TERM AND CONDITION OFEMPLOYMENT. THIS INCLUDES:

1. HIRING

2. DISCIPLINE

3. SALARY AND BENEFITS

4. TERMINATION

OTHER IMPORTANT LAWS

1. FAMILY MEDICAL LEAVE ACT (FMLA)

(50 or More Employee)

2. REASONABLE ACCOMMODATIONS THAT MAY BE REQUIRED UNDER THE AMERICANS WITH DISABILITIES ACT (ADA)

WHO IS SUBJECT TO DISCRIMINATION LAWS

A. TITLE VII, ADEA, ADA ONLY APPLIES IF YOU EMPLOY AT LEAST 15 PEOPLE

B. BUT VARIOUS STATE, COUNTY AND MUNICIPAL LAWS MAY APPLY EVEN IF YOU EMPLOY A

SINGLE PERSON

C. JUST ASSUME YOU ARE SUBJECT TO SOME LAW AGAINST DISCRIMINATION REGARDLESS OF

HOW MANY YOU EMPLOY

PROVING A DISCRIMINATION OR RETALIATION CLAIM

A. DIRECT EVIDENCE

1. “You Are Just Too Old for this Job”

2. “You will pay for filing that discrimination complaint”

PROVING A DISCRIMINATION OR RETALIATION CLAIM

B. DIRECT METHOD OR INDIRECT METHOD

YOU DON’T NEED A SMOKING GUN

1. COMBINATION VARIOUS STATEMENTS, ACTIONS AND CIRCUMSTANTIAL EVIDENCE, THAT TOGETHER CREATES

A “CONVINCING MOSAIC OF DISCRIMINATION.”

a. EXAMPLE 1: ASKING AN OLDER EMPLOYEE WHEN HE PLANS ON RETIRING OR ASKING HIS AGE AND

LETTING HIM GO SHORTLY THEREAFTER DISCOVERING HE IS 40 OR OLDER

b. EXAMPLE 2: “I DID NOT KNOW YOU WERE GAY”, FOLLOWED BY A NEGATIVE PERFORMANCE

RATING SHORTLY THEREAFTER

2. SUSPICIOUS TIMING

a. A TEACHER RECEIVED POSITVE EVALUATIONS UNTIL YOU LEARN SHE WAS IN A DRUG REHAB PROGRAM

3. SUSPICIOUS STATEMENTS OR ACTS

a. “YOU DON’T FIT OUR PROFILE”

b. FAILING TO HIRE ANYONE OVER THE AGE OF 40

4. TREATING SIMILARLY SITUATED EMPLOYEES OUTSIDE PLAINTIFF’S PROTECTED CLASSIFICATION MORE FAVORABLY IN SIMILAR SITUATIONS

a. DISCIPLINING THE 65 YEAR OLD RUSSIAN TEACHER FOR NOT SUBMITTING HER LESSON

PLAN ON TIME BUT TAKING NO ACTION AGAINST THE YOUNG AMERICAN

EMPLOYEE FOR THE SAME THING

C. PRETEXT

1. YOU CANNOT JUST MAKE UP ANY FICTITIOUS REASON AS AN EXCUSE OR “PRETEXT” TO TERMINATE THE EMPLOYEE

2. PRETEXT IS ESTABLISHED BY EITHER PROVING THAT

a. EMPLOYER’S ARTICULATED REASON FOR THE ACTION DID NOT ACTUALLY MOTIVATE THE ACTION

i. Allowing Employee to be Tardy for the Last 3 Months Without Counseling Her, But a Few Weeks after You Discover She Is Pregnant, You Terminate Her for

Tardiness

b. THE ARTICULATED REASON HAS NO BASIS IN FACT

c. OR THE ALLEGED REASONS WERE INSUFFICIENT TO MOTIVATE THE ACTION AGAINST PLAINTIFF.

i. Female Teachers Rarely Prepare Lesson Plans,but the You Fire the Male Teacher Who Missed a

Single Lesson Plan

YOU MAY THINK YOU DID NOTHING WRONG OR THAT THE TEACHER IS MAKING IT ALL UP, BUT .....

A. PERCEPTION IS EVERYTHING

NOT EVERY PLAINTIFF IS LYING WHEN HE/SHE CLAIMS DISCRIMINATION

1. THEIR PERCEPTION MAY NOT BE ACCURATE, BUT THEY OFTEN BELIEVE WHAT THEY ARE

SAYING

B. EVERYONE IS PREJUDICED TO SOME DEGREE,

THAT INCLUDES YOU,

THE EMPLOYEES WORKING FOR YOU,

AND OTHER SUPERVISORS AT YOUR SYNAGOGUE

BUT I HAVE NO PREJUDICES!!!

YES YOU DO

THERE IS NO LOGIC TO PREJUDICE AND IT IS NOT TYPICALLY AN ALL OR NOTHING PROPOSITION

FUNNY THINGS HAPPEN WHEN ONE OF YOUR EMPLOYEES GIVES YOU AN ATTITUDE OR RUBS YOU THE WRONG WAY,

AND THAT EMPLOYEE IS FROM A PROTECTED CLASSIFICATION

YOUR 65 YEAR OLD EMPLOYEE WHO IS STILL SHARP AND COMPUTER LITERATE IS WONDERFUL

BUT YOU FEEL THAT THE OTHER 65 YEAR OLD WHO HAS

TROUBLE LEARNING THE NEW COMPUTER SYSTEM FOR REPORT CARDS IS JUST TOO OLD

BOTTOM LINE:

A. BE OPEN MINDED TO THE POSSIBILITY THAT THERE MAY BE SOME MERIT TO AN ALLEGATION OF DISCRIMINATION

B. STEP BACK AND CONSIDER THE POSSIBILITY YOU MAY HAVE SOME BIAS, OR SAID SOMETHING OR ACTED IN A WAY THAT WAS PERCEIVED AS SHOWING SOME BIAS

C. YOU CAN BE LIABLE FOR DISCRIMINATORY ACTS OF THE TEACHERS YOU SUPERVISE

1. If a Male Teacher Sexually Harasses a Female Teacher and You Fail to Take Proper Action,

Your Synagogue Will Be Found Liable for Sexual Harassment

D. EXPEDITIOUSLY ADDRESS COMPLAINTS OF DISCRIMINATION OR HARASSMENT MADE BY YOUR EMPLOYEES.

DO NOT REJECT THEM OUT OF HAND

PROTECTING YOURSELF AGAINST THE PROBLEM EMPLOYEE WHO HAS AN INACCURATE PERCEPTION OF EVENTS

A. FIRST RULE: CONSISTENCY CONSISTENCY CONSISTENCY

MOST COMMON EVIDENCE . . .

CASES WHERE EMPLOYER TREATED A MINORITY EMPLOYEE DIFFERENTLY THAN THOSE OUTSIDE HIS/HER PROTECTED CLASSIFICATION

THE YOUNG FEMALE TEACHER YOU LIKE ONLY GETS A WARNING FOR NOT SUBMITTING A LESSON PLAN

BUT YOU REFUSE TO RENEW THE CONTRACT FOR THE EMPLOYEE WHO SUFFERS FROM DEPRESSION CLAIMING IT WAS DUE TO NOT SUBMITTING LESSON PLANS

YOU WILL FACE SITUATIONS WHERE YOU WANT TO BE MORE LENIENT WITH ONE EMPLOYEE VERSUS ANOTHER

BE VERY SURE YOUR REASONS ARE STRONG ENOUGH TO FULLY JUSTIFY THE DIFFERENT TREATMENT TO A JUDGE

OR (MAYBE WORSE) SOMEONE ON THE EXEC BOARD WHO YOU BUMPED HEADS WITH

B. SECOND RULE: DOCUMENT DOCUMENT DOCUMENT

1. IF A TEACHER IS FREQUENTLY TARDY OR HAS REPEATED PROBLEMS WITH THEIR LESSON PLANS,

START KEEPING TRACK AND DOCUMENTING AS SOON AS YOU REALIZE THIS IS BECOMING A PROBLEM.

2. DOCUMENT EACH DISCUSSION YOU HAD WITH EMPLOYEE

3. BE CONSISTENT AND DOCUMENT ALL EMPLOYEES AT THE SAME POINT

a. IF YOU IGNORE THE FIRST TWO PROBLEMS WITH THE MALE DO NOT ISSUE THE PREGNANT TEACHER A

REPRIMAND THE FIRST TIME IT OCCURS WITH HER

4. TERMINATING EMPLOYEE FOR ALLEGED PERFORMANCE PROBLEMS + NO PRIOR DOCUMENTATION

= $189K JUDGMENT AND AWARD OF $200K IN LEGAL FEES

C. HAVING A STRONG DEFENSE TO A POSSIBLE DISCRIMINATION LAWSUIT MAY DISCOUARGE A PROSPECTIVE PLAINTIFF FROM TAKING THE CASE.

SO. . .

1. PATIENTLY BUILD YOUR DEFENSE WHEN POSSIBLE

UNLESS THE DECISION TO TERMINATE IS A NO-BRAINER

2. IF IT IS A PERFORMANCE RELATED PROBLEM , DOCUMENT YOUR EFFORTS TO IMPROVE THEIR PERFORMANCE AND PROVIDE THOSE MEMOS OR EMAILS TO THE EMPLOYEE

3. USE PROGRESSIVE DISCIPLINE WHEN APPLICABLE

HIRING DECISIONS

A. SAME FEDERAL AND STATE LAWS PROHIBIT HIRING DECISIONS BASED ON DISCRIMINATION AND RETALIATION

B. EVIDENCE OF DISCRIMINATION

1. HIRING ONE TEACHER THOUGH HIS QUALIFICATIONS ARE NO BETTER THAN OR NOT AS QUALIFIED AS THE ELDERLY FEMALE PLAINTIFF

a. THE BIGGER THE DISPARITY IN QUALIFICATIONS,

THE STRONGER THE CASE AGAINST YOU IF YOU CHOOSE THE LESS QUALIFIED YOUNG PERSON

OVER THE MORE QUALIFIED ELDERLY APPLICANT

2. ASKING QUESTIONS DURING THE HIRING PROCESS THAT A LAWYER WILL RECOGNIZE AS EVIDENCE OF DISCRIMINATION

a. ANYTHING THAT REFLECTS AGE

i. e.g. ASKING DATE THEY GRADUATED COLLEGE

b. ANY QUESTIONS ABOUT MARITAL STATUS OR CHILDREN

c. IF YOU ASK THEM IF THEY ARE PREGNANT OR PLANNING ON GETTING PREGNANT AND

THEN FAIL TO HIRE HER,

THEN PLEASE GIVE HER MY BUSINESS CARD BECAUSE THAT CASE WILL PAY FOR MY SON’S COLLEGE TUITION

C. EVIDENCE OF RETALIATION IN HIRING DECISIONS

1. IF YOU DECIDE NOT TO HIRE THE TEACHER BECAUSE A FELLOW EDUCATOR TOLD YOU HE FILED A DISCRIMINATION SUIT AGAINST THAT SYNAGOGUE. . .

. . . THAT IS ALSO RETALIATION

D. HOW TO PROTECT YOURSELF

1. BASE YOUR DECISION ON THE INTERVIEW AND THEIR EXPERIENCE AND QUALIFICATIONS

2. TAKE AND KEEP YOUR NOTES OF THE INTERVIEW TO EXPLAIN WHY YOU PREFERRED ONE CANDIDATE OVER ANOTHER SO YOU

REMEMBER IF YOU ARE SUED 10 MONTHS LATER

a. GOOD: BETTER JUDAIC KNOWLEDGE

b. GOOD: GREAT REFERENCE FROM ANOTHER EDUCATOR COMPARED TO OTHER PERSON

c. GOOD: COMMUNICATION SKILLS GREAT (Especially in Comparison to the Plaintiff)

d. BAD: RECENTLY DIVORCED, PREGNANT, OR ANY CODE WORD REFLECTING AGE

e. REALLY BAD: I HATE OLD PEOPLE

3. BE CAREFUL ON ANY EXPLANATION YOU GIVE THE PEOPLE YOU DID NOT SELECT

a. DO NOT SAY HE WAS NOT A “GOOD FIT”,

NOR THAT “YOU WERE NOT WHAT I WAS LOOKING FOR”

ESPECIALLY IF THERE IS A LACK OF DIVERSITY IN YOUR WORK FORCE

b. YOU CAN SAY YOU FOUND A MORE EXPERIENCED OR MORE QUALIFIED CANDIDATE

ACCOMMODATING DISABILITIES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA)

A. TEACHER MUST HAVE WHAT THE LAW RECOGNIZES AS A DISABILITY WHICH IS A

1. “SUBSTANTIAL LIMITATION OF A MAJOR LIFE ACTIVITY”

2. EXAMPLES:

a. MENTAL ILLNESS

b. ALCOHOLIC OR DRUG ADDICT

c. HIV POSITIVE

B. EMPLOYEE MUST STILL BE ABLE TO PERFORM ESSENTIAL FUNCTIONS OF HER JOB WITH OR WITHOUT AN

ACCOMMODATION

1. EXAMPLES:

a. ATTENDANCE

b. ABILITY TO COMMUNICATE WITH STUDENTS

C. REASONABLE ACCOMMODATIONS REQUIRED IF ACCOMMODATIONS ALLOW TEACHER TO PERFORM ESSENTIAL FUNCTIONS OF JOB

1. TEACHER IN A WHEEL CHAIR SHOULD BE ASSIGNED A CLASS ON THE FIRST FLOOR IF THERE IS NO

ELEVATOR

2. PROVIDING A TEACHER AIDE WOULD BE A REASONABLE ACCOMMODATION FOR. . .

a. TEACHER WITH LIMITED EYE SIGHT(BEING THE EYES FOR THE TEACHER),

OR

b. TO ENABLE A DIABETIC TO QUICKLY CHECK THEIR BLOOD SUGARS AS THE AIDE WATCHES THE CLASS

D. WHAT IS REASONABLE DEPENDS, IN PART, ON YOUR ABILITY TO PROVIDE THE ACCOMMODATION WITHOUT TOO MUCH DISRUPTION OR UNREASONABLE COST

1. PURCHASING AN EXPENSIVE ERGONOMIC DESK, CHAIR, OR SMART BOARD SYSTEM MIGHT BE CONSIDERED A REASONABLE ACCOMMODATION, IF THIS IS NECESSARY, FOR A LARGE SYNAGOGUE THAT HAS MONEY

2. SAME REQUEST MIGHT BE UNREASONABLE FOR A SMALL SYNAGOGUE WITH A VERY LIMITED BUDGET

E. ACCOMMODATIONS ARE VERY FACT DEPENDENT

SPEAK TO AN ATTORNEY BEFORE DENYING THE REQUEST

CONTRACTS

A. IF TEACHER CONTRACT STATES THAT THEY WILL BE HIRED TO TEACH FOR A SPECIFIC TERM ( SEPT 5 TO JUNE 10), YOU ARE LEGALLY REQUIRED TO KEEP PAYING THEM THROUGH JUNE 10, UNLESS YOU CAN PROVE “JUST CAUSE” FOR TERMINATION

B. SO, CLEARLY SPELL OUT THE EXPECTATIONS AND REQUIREMENTS AND POSSIBLE CONSEQUENCES FOR

FAILING TO COMPLY

1. ATTENDANCE AT ALL TEACHER MEETINGS IS MANDATORY

2. LESSON PLANS MUST BE PROVIDED TO THE PRINCIPAL

AT LEAST 24 HOURS BEFORE CLASS

C. CLEARLY SPELL OUT POTENTIAL CONSEQUENCES IF THEY FAIL TO MEET THESE REQUIREMENTS

1. BE CONSISTENT IN ENFORCING THIS

D. INCLUDE A PROVISION GIVING A NON EXCLUSIVE LIST OF WHAT WILL BE CONSIDERED GROUNDS FOR TERMINATION

1. NO CALL NO SHOW

2. REFUSAL TO FOLLOW REASONABLE DIRECTIONS OF THE EDUCATOR

3. FAILURE TO IMPROVE PERFORMANCE AFTER BEING NOTIFIED IN WRITING OF THESE

DEFICIENCIES

4. TOTALLY DISABLED, FINDING OF DISABILITY BY SSI OR UNABLE TO WORK FOR EXTENDED PERIOD

BE CAREFUL ABOUT THIS ONE. SPEAK TO ATTORNEY FIRST

E. MAKE SURE YOU ARE CONSISTENT IN ENFORCING THESE EXPECTATIONS AND IN THE DISCIPLINE YOU IMPOSE

F. MAKE SURE THE EXPECTATIONS AND GROUNDS FOR TERMINATION ARE REASONABLE

TODAH RABAHTODAH RABAH

SHALOMSHALOM

ARTHUR R EHRLICHARTHUR R EHRLICH GOLDMAN & EHRLICHGOLDMAN & EHRLICH 19 SOUTH La SALLE STREET19 SOUTH La SALLE STREET SUITE 1500SUITE 1500 CHICAGO, ILLINOIS 60603CHICAGO, ILLINOIS 60603 312-332-6733312-332-6733 [email protected]@GoldmanEhrlich.com www.GoldmanEhrlich.comwww.GoldmanEhrlich.com