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The Rising Tide of Discrimination Claims -- How to Avoid the Flood
Dec 02, 2014
Discrimination claims are through the roof. How can your company avoid the flood of discrimination claims hitting employers, large and small?
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General practice firm located in Center Valley, General practice firm located in Center Valley, PennsylvaniaPennsylvania
HR Areas of PracticeHR Areas of Practice EmploymentEmployment LaborLabor Information Privacy/Information AccessInformation Privacy/Information Access Public Employers/SchoolsPublic Employers/Schools Unemployment CompensationUnemployment Compensation Social Media and Social Media and HealthcareHealthcare
Attorneys admitted in Pennsylvania, New York, Attorneys admitted in Pennsylvania, New York, and New Jerseyand New Jersey
From outsourcing HR work, training, From outsourcing HR work, training, negotiations, agency, contract drafting and negotiations, agency, contract drafting and defense, to litigationdefense, to litigation
In the past five years, discrimination lawsuits skyrocketed.
Whether due to: Economy, Workforce reductions, and/or Internet accessibility
The EEOC has reported an eruption in filings.
Companies are being sued for all types of discrimination, retaliation, and wrongful termination actions.
WHAT - What is a discrimination claim?
WHY - Why do so many people bring discrimination claims?
WHEN - When do you prevent discrimination claims?
WHERE - Where can you bolster your workplace from litigation? AND
HOW …. How do you create proper policies and
procedures, training, and documentation to protect your company and yourself;
How to work with governmental agencies, not against them; and
How to handle employment litigation.
Federal and state discrimination laws forbid Federal and state discrimination laws forbid an employer to fail or refuse to hire or to an employer to fail or refuse to hire or to discharge or discriminate against any discharge or discriminate against any individual with respect to compensation, individual with respect to compensation, terms, conditions or privileges of , conditions or privileges of employment, on the basis of:employment, on the basis of:
Age Race Religion Veteran Status Gender Ethnicity Disability Pregnancy Health Insurance Usage Genetic Disposition Workers’ Compensation usage
And others…..
Harassment The severe and pervasive and altering in the The severe and pervasive and altering in the
conditions of a victim’s employment.conditions of a victim’s employment. An employer is negligent if it knew, or should An employer is negligent if it knew, or should
have known, and failed to stop it.have known, and failed to stop it.
Discrimination The treatment of, or making a distinction in
favor or against a person based on a group, class, or category.
The effect of some rule or practice that confers or denies privileges to a certain class because of inclusion in that particular class.
Retaliation The punishment of an employee for engaging The punishment of an employee for engaging
in a protected activity, such as filing a in a protected activity, such as filing a discrimination charge or opposing unlawful discrimination charge or opposing unlawful employer practices. employer practices.
The filing of a claim or charge with the appropriate federal or state agency for violation of a state and/or federal law.
In Pennsylvania, it is the Equal Employment Opportunity Commission (EEOC) and/or Pennsylvania Human Relations Commission (PHRC).
The EEOC and PHRC can decide: To settle a case; To order a resolution; To give an employee a Right to Sue Letter,
meaning that they are dismissing the case; or
To take the case themselves and step into the shoes of the Plaintiff.
FY 2006 FY 2007 FY 2008 FY 2009 FY 2010
Total Charges 75,768 82,792 95,402 93,277 99,922
Race27,238 30,510 33,937 33,579 35,890
35.9% 37.0% 35.6% 36.0% 35.9%
Sex23,247 24,826 28,372 28,028 29,029
30.7% 30.1% 29.7% 30.0% 29.1%
National Origin8,327 9,396 10,601 11,134 11,304
11.0% 11.4% 11.1% 11.9% 11.3%
Religion2,541 2,880 3,273 3,386 3,790
3.4% 3.5% 3.4% 3.6% 3.8%
Retaliation22,555 26,663 32,690 33,613 36,258
29.8% 32.3% 34.3% 36.0% 36.3%
Age16,548 19,103 24,582 22,778 23,264
21.8% 23.2% 25.8% 24.4% 23.3%
Disability15,575 17,734 19,453 21,451 25,165
20.6% 21.4% 20.4% 23.0% 25.2%
Discrimination is one of the few exceptions to Discrimination is one of the few exceptions to at-will employment. Some cases are genuine; at-will employment. Some cases are genuine; some are not.some are not.
Fact-by-fact analysis is necessary, i.e.:Fact-by-fact analysis is necessary, i.e.:
AgeAge -- age discrimination versus getting rid -- age discrimination versus getting rid of the most expensive employeeof the most expensive employee
DisabilityDisability -- disability versus absence; -- disability versus absence; psychic disabilities versus “you think I’m psychic disabilities versus “you think I’m crazy”crazy”
Race Race -- racism versus having an educational -- racism versus having an educational degreedegree
GenderGender -- sexual harassment versus a bad -- sexual harassment versus a bad romantic break-up with a bossromantic break-up with a boss
Realize that these cases generally come down to Realize that these cases generally come down to the facts, even if you should win under the law!the facts, even if you should win under the law!
QUIZ: QUIZ: WHEN DO YOU START WHEN DO YOU START PREVENTING CLAIMS?PREVENTING CLAIMS?
ANSWER: ANSWER: DAY ONEDAY ONE
WHERE:WHERE:
10.10.PoliciesPolicies
9.9.Practices Practices
8.8.ConsistencyConsistency
7.7.Training Training
6.6.Complaint ProcessComplaint Process
5.5.In the Workplace and Off-duty In the Workplace and Off-duty ConductConduct
4.4.Self-AuditSelf-Audit
3.3.Unemployment CompensationUnemployment Compensation
2.2.The Donut of Middle Management The Donut of Middle Management
1.1.Document, Document, DocumentDocument, Document, Document
A A realreal handbook – it’s your gateway handbook – it’s your gateway to defenseto defense
Consider what is actually neededConsider what is actually needed
Get good advice up front so that you Get good advice up front so that you don’t pay later ondon’t pay later on
Watch out for violations in your Watch out for violations in your languagelanguage
Keep it up to dateKeep it up to date
Include social media/internet policiesInclude social media/internet policies
Corresponding P&PCorresponding P&P
No “pimp my ride” version of No “pimp my ride” version of practicespractices
TimelinessTimeliness
AlwaysAlways work-related work-related
Directions should make senseDirections should make sense
Employee engagement issuesEmployee engagement issues
Non-monetary awardsNon-monetary awards
Same or similar for everyoneSame or similar for everyone
If deviating, make sure WHYIf deviating, make sure WHY
Past practice considerationsPast practice considerations
TimelinessTimeliness
Past practice considerationsPast practice considerations
AlwaysAlways work-related work-related
Be genuine about both praise and Be genuine about both praise and improvementimprovement
Train your employeesTrain your employees
Train middle management separatelyTrain middle management separately
Topics:Topics:
EEOEEO
Sexual harassmentSexual harassment
AccommodationAccommodation
Acceptable Use/Social MediaAcceptable Use/Social Media
Fielding complaintsFielding complaints
An ounce of prevention….An ounce of prevention….
Is there one?Is there one?
Ask the questionsAsk the questions
Alternate means of complaintAlternate means of complaint
Entrance and Exit InterviewsEntrance and Exit Interviews
Written forms Written forms
Remote AccessRemote Access
Flex-timeFlex-time
Social Media – comments on Social Media – comments on Facebook/LinkedIn/BlogsFacebook/LinkedIn/Blogs
Code of Conduct policies + other Code of Conduct policies + other policiespolicies
No expectation of privacyNo expectation of privacy
Every opportunityEvery opportunity
Losses as a chance to improveLosses as a chance to improve
Decide when to fight, when NOT to Decide when to fight, when NOT to fightfight
Be honest about when you screw upBe honest about when you screw up
Fix what’s wrongFix what’s wrong
This is the gateway to litigation: use This is the gateway to litigation: use strategy, not emotionstrategy, not emotion
They follow rules of evidence, can They follow rules of evidence, can take days, not minutestake days, not minutes
Policies and documents, using Policies and documents, using Facebook pagesFacebook pages
Decide when to fight, when NOT to Decide when to fight, when NOT to fightfight
You cannot win or lose them allYou cannot win or lose them all
Promotions from belowPromotions from below
Problem with friends firstProblem with friends first
Problems with nonassertive Problems with nonassertive managementmanagement
TrainingTraining
Good, bad and indifferentGood, bad and indifferent
DocumentsDocuments
Everything should be written downEverything should be written down
Medical records versus personnel Medical records versus personnel filesfiles
Internet pages versus written Internet pages versus written documentsdocuments
Avoid unhelpful scribblesAvoid unhelpful scribbles
The Judge’s perspectiveThe Judge’s perspective
Memos to filesMemos to files
In rare instances, it becomes evident that the Aggrieved has filed In rare instances, it becomes evident that the Aggrieved has filed a claim of harassment for the sole purpose on harming the a claim of harassment for the sole purpose on harming the Accused. Accused.
Where an individual Where an individual knowinglyknowingly and and intentionallyintentionally offers false offers false information or makes a false accusation, the roles will reverse, information or makes a false accusation, the roles will reverse, and the Accuser will be deemed to have harassed the Accused. and the Accuser will be deemed to have harassed the Accused.
In that case, the Accuser will be subject to discipline, up to and In that case, the Accuser will be subject to discipline, up to and including termination, and a copy of the documentation will be including termination, and a copy of the documentation will be placed in his/her personnel file. placed in his/her personnel file.
This policy does not apply where a good faith claim is made but This policy does not apply where a good faith claim is made but cannot be fully substantiated or proven; this cannot be fully substantiated or proven; this onlyonly applies where it applies where it becomes evident that the Complainant has deliberately made a becomes evident that the Complainant has deliberately made a deceptivedeceptive claim. claim.
RESOLUTIONRESOLUTION
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