Class 2: Discrimination, Harassment, & Retaliation

Direct evidence

"You're too old to be doing that kind of stuff anymore" "new guys are more teachable and old guys have old habits" "women don't make partner here" -discriminatory _____ comments ____ If: Made by the decision maker Related to the decisional process Close in time to the adverse decision

Hostile

Actions which can lead to a ____ work environment Suggestive comments and jokes ▸ Repeated requests for dates or sexual favors ▸ Staring, leering ▸ Touching, sexual assaults ▸ Discussions of sexual activity, including questions ▸ Viewing or displaying pornographic material ▸ Offensive e-mails Derogatory comments, pictures, or other communications on the basis of someone's age, race, disability, sex, national origin, or color. ▸ Ethnic slurs. ▸ Teasing about accent.

ADEA (Age Discrimination in Employment Act)

Age 40 and up private employer - 20 employee threshold

Covered Job Actions (under Title VII)

Covered: Firing, demotion, comp & benefits, work assignments, suspension, constructive discharge, shift change (e.g. day to night)

Retaliation

The "knee jerk" reaction. It is unlawful to retaliate against anyone who complained about workplace discrimination, filed a charge of discrimination, participated in an investigation, or opposed unlawful conduct. What to look out for: 1. (1) Protected conduct 2. (2) The decision maker knew about the protected conduct 3. (3) Adverse employment action, and 4. (4) A causal link existed between the protected expression and the adverse action. 1. Span of time between conduct and action. 2. Other factors relevant to causation.

Stray remarks

doesn't decide a case on its own but can be used as evidence to show discrimination was a factor in the decision Discriminatory Comment

Analysis Tool (for discrimination)

Was the person subjected to a negative job consequence that Title VII/ADEA protects ? was the person qualified for the position? was a person form a different protected class treated better? was there any discriminatory comments made? was there a legit reason for the decision at question? are there any other factors that suggest the reason is not legitimate ?

Title VII

_____ of the Civil Rights Act of 1962- discrimination on the basis of race, color, sex, national origin, religion, genetic information Private employer- 15 employer minimum threshold

Co-Worker

_______ Harassment *the employer is liable if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action *to who does the alleged victim complain? *if the alleged victim gives enough information to a person in the company who has a "reasonable duty to report" such a complaint then this is sufficient notice ▸ Where supervisor receives credible complaint of harassment and makes no effort to contact alleged victim, the case can go to the jury to decide whether the employer violated Title VII. ▸ Bombaci v. Journal Community Publishing Group

Religious Discrimination

*Employer must reasonably accommodate the sincerely held religious beliefs, observances or practices of employee, except where it would cause "undue hardship" *Holidays *Religious schedule (weekly observances) (e.g. Sabbath, Sunday) *Clothing/Religious symbols (not wearing pants for women vs. safety)

(Discrimination) Remedies

*Injunction *Reinstatement or front pay *back pay *other equitable relief *Punitive damages - limited by Title VII *Attorney's fees *federal law: employers are liable *Ohio Law: individual liability (Genaro v. Central Transport)

CONSTRUCTIVE DISCHARGE

An employee who quits under discriminatory conditions that a reasonable person would find intolerable should be treated as someone who was fired for the purposes of a lawsuit. Proof of discrimination alone is not a sufficient predicate for a finding of constructive discharge; there must be other "aggravating factors." ▸ Courts will sometimes inquire into the employer's intent and the reasonably foreseeable impact of its conduct on the employee . ▸ An employee must demonstrate that "the cumulative effect of the employer's actions would make a reasonable person believe that termination was imminent." ▸ Being assigned to new job: ▸ A failure to make any attempt to try out a job change or reassignment generally suggests against a finding of constructive discharge. ▸ The fact that the new job entails different or even a lessened responsibility than one's old job does not, in and of itself, amount to a constructive discharge. ▸ Craft v. Metromedia, Inc., 766 F.2d 1205 (8th Cir.1985) (reassignment of a news anchor to the position of news reporter did not amount to a constructive discharge), cert. denied, 475 U.S. 1058 (1986). Demotion: ▸ A demotion within a company does not amount to a constructive discharge unless the proffered employment options would have been "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." ▸ Harassment: ▸ Wheeler v. Southland Corp., 875 F.2d at 1250 (constructive discharge arose from regular and frequent sexual harassment including physical contact). Being turned down for promotion: ▸ Frustration and embarrassment at not being promoted do not make work conditions sufficiently intolerable to constitute constructive discharge. ▸ Employee's reaction to any situation: ▸ The employee cannot jump to conclusions when faced with a situation. ▸ If employee quits without giving the employer a reasonable chance to work out a problem ! not constructive discharge.

Protected Conduct

Complaining about discrimination or harassment ▸ Opposing act of discrimination or harassment ▸ Filing charge or complaint with employer or other entity (EEOC, for example) ▸ Participating in any EEOC or related proceeding - e.g., as a witness ▸ NOTE: conduct is protected even if it is done to help others. ▸ Merely discussing sleep issues with a supervisor is not protected conduct. ▸ "[A] vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice." Stevens v. Saint Elizabeth Medical Center, at al., No. 12-5243 (6th Cir. 2014) (quoting Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989)). ▸ Complaining about racist remarks made by management member during business trip is protected conduct. KNOWLEDGE ▸ Decision-maker must have knowledge of the protected conduct. ▸ Employee must prove by more than speculation.

Social Networking

Content posted on social network sites could end up as evidence in a harassment (or discrimination) case. ▸ Warn your supervisors & managers that whatever they post could show up in a lawsuit. ▸ Applies to plaintiffs / alleged victims as well. ▸ Researching applicants online ▸ Pitfalls? ▸ How to avoid issues? ▸ Requiring employees to provide log-in information

Liability

Employer ______ dependents on WHO harassed *Supervisor *Co-Worker or third party

"Legitimate non-discriminatory reason"

Employer can state "_____" for the challenged employment decision At trial, employee may try to prove the employer's reasoning for employment action in pretext *not true *not the actual reason *not the motivating reason

AFFIRMATIVE DEFENSE (PUNITIVE DAMAGES)

Employers may avoid punitive damages if ▸ They implemented in good faith sound anti-discrimination policies and practices and ▸ Bad actor's actions are contrary to the good-faith efforts made by the company to eradicate discrimination. ▸ How do you prove good faith efforts? ▸ Policy & training ▸ Investigation Sixth Circuit emphasized need to investigate and take action on complaint. ▸ Parker v. General Extrusions, Inc., 6th Circuit, June 27, 2007 ▸ Punitive damages were imposed against employer where HR manager failed to investigate complaints on a number of occasions, issued light punishments, disclosed facts publicly, failed to refer investigation to upper management, and chuckled along with some name calling.

National Origin Discrimination

English-Only Rules ▸ Must be adopted for nondiscriminatory reasons. ▸ Only allowed if needed to promote safe and efficient operation of business OR safe and efficient performance of job duties. ▸ Accent ▸ May not base decision on accent unless accent seriously interferes with job performance. ▸ Teasing - may constitute harassment. ▸ Language Fluency Requirements ▸ Fluency only permissible if necessary to perform job effectively

TARGETED SCREEN POLICY

For example, an employer might adopt a policy excluding any applicant with a conviction for theft crimes (such as burglary, robbery, larceny, or identity theft) from working in a position with access to personal financial information for at least seven years following the conviction or release from incarceration ▸

SOCIAL MEDIA & HIRING

May discover religious affiliations, race, age marital status, disability status, race and others. ▸ Such information may be illegal to use when making hiring decisions. ▸ Consider putting a "how to" policy or process in place: ▸ identify 5 or so things that could bar employment. ▸ Illegal drug use, pictures promoting hate, criminal activity ▸ Document - keep uniform records as to what disqualifying information was obtained. ▸ Don't impersonate. ▸ Build wall - do not let person hiring do the searching.

Non Covered Job Actions (under Title VII)

Not Protected: Reprimands, performance evaluation with no consequence to income, transfers which do not significantly affect commute, moving an employee's work location, social ostracism by co-workers, performance improvement plans (on their own)

DISPARATE IMPACT

Policy or practice is neutral BUT causes a disparate impact on a protected group. Illegal UNLESS: - Employer shows practice is job related AND - Consistent with legitimate business necessity

Hostile

Proving a ______ Environment 1. Unwelcome harassment; 2. The conduct was severe or pervasive enough to alter the conditions of the Complainant's work environment by creating a hostile or abusive situation; 1. Subjective and objective tests. 3. The conduct was based on the Complainant's protected class; and 4. There was a basis for employer liability. 1. Conduct by Supervisor? Strict liability if tangible employment action occurred; affirmative defense available if not. 2. Conduct by Co-Worker or 3rd Party? Only liable if employer knew or should have known of harassment and failed to take prompt and appropriate corrective action.

TANGIBLE EMPLOYMENT ACTION

This is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. ▸ Economic harm ▸ Official company action ▸ This is different from adverse action (Title VII/ADEA) and adverse action (retaliation). ▸ Constructive discharge is not a tangible employment action.

ADVERSE EMPLOYMENT ACTION

This is different from "adverse" action under Title VII, ADEA. ▸ Would a reasonable person find this to be a materially adverse action? ▸ The employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. ▸ This normally excludes petty slights, minor annoyances, and simple lack of good manners. ▸ Depends on the specific facts and circumstances. ▸ E.G. "A schedule change ... may make little difference to many workers, but matter enormously to a young mother with school-age children" Negative performance reviews and reprimands which have a material effect on employment terms or promotion opportunities - adverse ▸ Transfers with no detrimental impact on terms of employment - not adverse (Secherest v. Lear Siegler Servs.) ▸ Being labeled "disgruntled employee" - not adverse ▸ Criticism alone - not adverse

Undue Hardship

Title VII religious discrimination vocab, "______" = more than a minimal burden *costly *compromises workplace safety *decreases workplace efficiency *infringes on the rights of other employees *Requires other employees to do more than their fair share of either ***potentially hazardous work or budern-some work

Co-Worker Harassment

When complaining about bad behavior, the mere fact that the complaining employee and the troublemaker were different races was insufficient to put the company on notice of co-worker harassment based on race. ▸ "Plaintiff admits that he never told his supervisors that he thought the harassment by Rogers was based on his race until the day before he filed the EEOC charge ... Plaintiff argues that GDIT should have known that his complaints involved racial discrimination because Rogers is white and Plaintiff is African-American. Plaintiff does not cite any legal authority that is on-point for such a proposition. The record shows that Rogers was rude to everyone, black and white alike."

Supervisor Harassment

Who is a supervisor? ▸ Person empowered by employer to take tangible employment actions against the alleged victim ▸ Actions = hiring, firing, promote (or not), reassignment with significantly different responsibilities, significant change in benefits ▸ Vance: not enough to be able to direct work activities absent such authority If the harassment did not result in a tangible employment action, then the employer can escape liability if it can prove the affirmative defense. If harassment by a supervisor results in a tangible employment action, then employer is vicariously liable. ▸ Employer can challenge the causation factor in this - it can try to show that there was a legitimate reason for the TEA. ▸ Then analyze whether legitimate reason is pretext. ▸ Was TEA imposed BECAUSE of response to harassment?

discrimination

treating someone poorly because of his/her characteristics Age Disability race, color, sex, national origin, religion, genetic info

AFFIRMATIVE DEFENSE - LIABILITY

▸ (1) The employer exercised reasonable care to prevent and correct promptly any harassing behavior and ▸ (2) The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. ▸ Generally this is proven by: ▸ Existence of effective anti-harassment policy. ▸ Handbook, posters, training, open door policies. ▸ Complainant's failure to follow the policy. ▸ Baldwin v. Blue Cross/Blue Shield of Alabama, 11th Circuit, March 19, 2007 ▸ Employer won on affirmative defense. ▸ Employee waited over 3 months before reporting incidents. ▸ Employer investigated and was unable to substantiate complaints. ▸ Employer offered to transfer her away from worksite or have a counselor monitor her relationship with the accused manager.

Severe & Pervasive

▸ Companies usually want to stop any inappropriate conduct before it rises to the level of ______ & ________. ▸ Most policies prohibit activity which is not legally actionable harassment in order to achieve this result. ▸ Thus, a violation of company policy is not necessarily a violation of Title VII.

Criminal Convictions (Ban the box)

▸ EEOC: any reliance on criminal history records that have an adverse impact must be job-related and consistent with business necessity. ▸ Must show link between (a) the specific criminal conduct and its danger and (b) the risks inherent in this position. This can be accomplished by a "targeted screen," where the R considers: ▸ (1) the nature and gravity of the offense or conduct; ▸ (2) the time that has passed since the offense, conduct and/or completion of the sentence; and ▸ (3) the nature of the job held or sought. ▸ The Guidance further underscores the importance of an "individualized assessment" prior to excluding an applicant based on a criminal record (i.e., let applicant explain mitigating circumstances).

ONLINE CONDUCT IN VIOLATION OF COMPANY POLICIES

▸ Ensure harassment/discrimination policies are broad enough to cover online activities. ▸ Question for discussion - should policies cover employees' actions while not at work and not representing company? ▸ What if employee cyber-bullies co-worker from home via Facebook? ▸ "Subject to applicable law, after-hours online activity that violates [the Company's Code of Conduct] or any other company policy may subject an employee to disciplinary action or termination."

EEOC

▸ Federal agency which has the mission of investigating and remedying discrimination pursuant to Title VII, ADEA and ADA COMPLAINT PROCESS ▸ Applicant, current or former employee files a charge of discrimination with EEOC ▸ Must be within 180 days of the unlawful employment practice in most states ▸ Charge assigned to an investigator ▸ Employer notified of charge and asked to respond ▸ Mediation option ▸ Respondent's position statement ▸ Possible on-site investigation Determination by investigator ▸ Possible conciliation/settlement agreement ▸ Forwarded to US attorney general for litigation ▸ Right to Sue letter can be requested or issued at any time ▸ Private litigation ▸ Must commence within 90 days of receiving Right to Sue letter

EEOC v. Abercrombie

▸ Refused to hire Muslim worker because head scarf conflicted with required A&F "look" ▸ SCOTUS: "An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." ▸ Employer must either ▸ Hire applicant without regard to her religious beliefs OR ▸ Ask whether she would need accommodations during the job application process and decide how reasonable those accommodations would be

Proving hostile work environment

▸ Subjective: did the person actually feel that the actions were severe and pervasive and created a hostile environment? ▸ Objective: would a reasonable person feel that way, too? ▸ Note: INTENT of the harasser does not matter. ▸ May be a joke to them, but if it is hostile to the listener, it can be actionable.

Retaliation

▸ Then ask if there is any other legitimate reason for the company's action. ▸ HR reps - important to be involved in discipline / termination decisions meted out to employees who have recently complained or filed charges.

Harassment

▸ Unwelcome conduct on the basis of a protected characteristic ▸ IMPORTANT POINTS: ▸ Inappropriate conduct can violate a company's policy without violating Title VII ▸ Just like with punitive damages, training & policies can make a big difference.