Law Firm HR Decisions and Policies ARTHUR R EHRLICH GOLDMAN & EHRLICH 20 SOUTH CLARK STREET SUITE 500 CHICAGO, ILLINOIS 60603 312-332-6733 [email protected].

Law Firm HR DecisionsLaw Firm HR Decisionsand Policiesand Policies

ARTHUR R EHRLICHARTHUR R EHRLICHGOLDMAN & EHRLICHGOLDMAN & EHRLICH

20 SOUTH CLARK STREET20 SOUTH CLARK STREETSUITE 500SUITE 500

CHICAGO, ILLINOIS 60603CHICAGO, ILLINOIS 60603312-332-6733312-332-6733

[email protected]@GoldmanEhrlich.comwww.GoldmanEhrlich.comwww.GoldmanEhrlich.com

Follow me on Twitter @GoldmanEhrlichFollow me on Twitter @GoldmanEhrlich

FEDERAL AND STATE LAWS ALSO PROHIBITFEDERAL AND STATE LAWS ALSO PROHIBIT. . .. . .

GENDER STEREOTYPINGGENDER STEREOTYPING

ARREST RECORDARREST RECORD

MARITAL STATUSMARITAL STATUS

UNION LIKE OR UNION RELATED ACTIVITIESUNION LIKE OR UNION RELATED ACTIVITIES

FACEBOOK POSTS THAT DISCUSS WORK CONDITIONS FOR FACEBOOK POSTS THAT DISCUSS WORK CONDITIONS FOR EMPLOYEESEMPLOYEES

““LIKING” PARTICULAR FACEBOOK POSTS DISCUSSING WORK LIKING” PARTICULAR FACEBOOK POSTS DISCUSSING WORK CONDITIONSCONDITIONS

PROVING A DISCRIMINATION PROVING A DISCRIMINATION OR RETALIATION CLAIMOR RETALIATION CLAIM

A.A. DIRECT EVIDENCE DIRECT EVIDENCE

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

PROVING A DISCRIMINATION PROVING A DISCRIMINATION OR RETALIATION CLAIMOR RETALIATION CLAIM

B.B. DIRECT METHOD OR INDIRECT METHODDIRECT METHOD OR INDIRECT METHOD1.1. YOU DON’T NEED A SMOKING GUNYOU DON’T NEED A SMOKING GUN

2.2. COMBINATION VARIOUS STATEMENTS, ACTIONS AND COMBINATION VARIOUS STATEMENTS, ACTIONS AND CIRCUMSTANTIAL EVIDENCE, THAT TOGETHER CREATES A CIRCUMSTANTIAL EVIDENCE, THAT TOGETHER CREATES A “CONVINCING MOSAIC OF DISCRIMINATION.”“CONVINCING MOSAIC OF DISCRIMINATION.”

ASKING AN OLDER EMPLOYEE WHEN HE PLANS ON ASKING AN OLDER EMPLOYEE WHEN HE PLANS ON RETIRING OR ASKING HIS AGE AND LETTING HIM RETIRING OR ASKING HIS AGE AND LETTING HIM

GO GO SHORTLY THEREAFTER DISCOVERING HE IS 50SHORTLY THEREAFTER DISCOVERING HE IS 50

MOSIAC CAN BE CREATED IN MANY MOSIAC CAN BE CREATED IN MANY WAYSWAYS

SUSPICIOUS STATEMENTS OR ACTSSUSPICIOUS STATEMENTS OR ACTS

a.a. “YOU DON’T FIT OUR PROFILE”“YOU DON’T FIT OUR PROFILE”

b.b. FAILING TO HIRE ANYONE OVER THE FAILING TO HIRE ANYONE OVER THE AGE OF 40AGE OF 40

TREATING SIMILARLY SITUATED EMPLOYEES TREATING SIMILARLY SITUATED EMPLOYEES OUTSIDE PLAINTIFF’S PROTECTED OUTSIDE PLAINTIFF’S PROTECTED CLASSIFICATION MORECLASSIFICATION MORE FAVORABLY IN SIMILAR FAVORABLY IN SIMILAR SITUATIONSSITUATIONS

PRETEXTPRETEXT

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

THE ARTICULATED REASON HAS NO BASIS IN THE ARTICULATED REASON HAS NO BASIS IN FACTFACT

THE ALLEGED REASONS WERE INSUFFICIENT TO THE ALLEGED REASONS WERE INSUFFICIENT TO MOTIVATE THE ACTION AGAINST PLAINTIFFMOTIVATE THE ACTION AGAINST PLAINTIFF

WHO IS SUBJECT TO WHO IS SUBJECT TO DISCRIMINATION LAWSDISCRIMINATION LAWS

ONLY ONE EMPLOYEE IS REQUIRED FOR ONLY ONE EMPLOYEE IS REQUIRED FOR

DISABILITY OR SEXUAL HARASSMENT CLAIMS UNDER THE DISABILITY OR SEXUAL HARASSMENT CLAIMS UNDER THE ILL HUMAN RIGHTS ACTILL HUMAN RIGHTS ACT

DISCRIMINATION CLAIMS FILED BEFORE DISCRIMINATION CLAIMS FILED BEFORE

CITY CHICAGO COMMISSION ON HUMAN RELATIONS CITY CHICAGO COMMISSION ON HUMAN RELATIONS

ORORCOOK COUNTY COMMISSION ON HUMAN RIGHTSCOOK COUNTY COMMISSION ON HUMAN RIGHTS

IMPORTANTIMPORTANT MISCONCEPTIONS TO BE MISCONCEPTIONS TO BE AWARE OF AS AN EMPLOYER ABOUT AWARE OF AS AN EMPLOYER ABOUT

DISCRIMINATION CLAIMSDISCRIMINATION CLAIMS

NUMBER 1:NUMBER 1: NOT EVERY PLAINTIFF NOT EVERY PLAINTIFF IS LYINGIS LYING

PERCEPTION IS EVERYTHING

IMPORTANT MISCONCEPTION IMPORTANT MISCONCEPTION NUMBER 2NUMBER 2

NOT EVERY PLAINTIFF IS OUT TO NOT EVERY PLAINTIFF IS OUT TO MAKE A BUCKMAKE A BUCK

NOR ARE THEY IN IT JUST FOR THE NOR ARE THEY IN IT JUST FOR THE MONEYMONEY

IMPORTANT MISCONCEPTION IMPORTANT MISCONCEPTION NUMBER 3NUMBER 3

EVERYONEEVERYONE IS PREJUDICED TO SOME IS PREJUDICED TO SOME DEGREE, DEGREE,

THAT INCLUDES YOUTHAT INCLUDES YOU, , THE EMPLOYEES WORKING THE EMPLOYEES WORKING

FOR YOU,FOR YOU, AND YOUR SUPERVISORSAND YOUR SUPERVISORS

BUT I HAVE NO PREJUDICES!!!

YES YOU DO

THERE IS NO LOGIC TO THERE IS NO LOGIC TO PREJUDICE PREJUDICE

IT IS NOT TYPICALLY AN ALL OR IT IS NOT TYPICALLY AN ALL OR NOTHING PROPOSITIONNOTHING PROPOSITION

BOTTOM LINE:

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

DISCRIMINATION

B. DO A REASONABLE INVESTIGATION AS WARRANTED BY THE ALLEGATIONS

C. EXPEDITIOUSLY ADDRESS COMPLAINTS OF DISCRIMINATION OR HARASSMENT

DO NOT REJECT THEM OUT OF HAND

PROTECTING YOURSELF AGAINST PROTECTING YOURSELF AGAINST THE PROBLEM EMPLOYEE WHO THE PROBLEM EMPLOYEE WHO

HAS AN INACCURATE PERCEPTION HAS AN INACCURATE PERCEPTION OF EVENTSOF EVENTS

A.A. FIRST RULE: FIRST RULE:

CONSISTENCY CONSISTENCY

CONSISTENCY CONSISTENCY

CONSISTENCYCONSISTENCY

PROTECTING YOURSELF AGAINST PROTECTING YOURSELF AGAINST THE PROBLEM EMPLOYEE WHO THE PROBLEM EMPLOYEE WHO

HAS AN INACCURATE PERCEPTION HAS AN INACCURATE PERCEPTION OF EVENTSOF EVENTS

B.B. SECOND RULE: SECOND RULE:

DOCUMENT DOCUMENT DOCUMENT DOCUMENT DOCUMENTDOCUMENT

BE CONSISTENT AND DOCUMENT ALL EMPLOYEES AT THE SAME POINT

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