DISCRIMINATION & ACCOMMODATIONS

WASBOMay 10, 2012

Presented by: Mary Sue Linville, ALCM, ARM-P Director of Risk Management

Washington Schools Risk Management Pool

Litigation is Expensive

I have only been ruined

Twice in my life.

Once when I lost a lawsuit,

And…

Once when I won.

VOLTAIRE

Why is it Important?

• The EEOC is busy• Claims employment related claims have increased 8% in the past

two years

• 2010 EEOC filed 250 lawsuits, resolved 285 lawsuits and resolved 104,999 private sector charges*

• 2010 the EEOC secured more than $404 million in monetary benefits from employers – the highest level of monetary relief ever obtained by the Commission through the administrative process – to promote inclusive and discrimination-free workplaces*

• *U.S. Equal Employment Opportunity Commission Press Release 1-11-11

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The Types of Charges

In 2011 – 99,947 individuals filed charges with the EEOC, several alleging one or more types of discrimination •35.4% Race•28.5% Sex (Harassment)•25.8% Disability•23.5% Age•11.8% National Origin• 4.2% Religion• 2.8% Color

•37.4% RETALLIATION!!!!!4

Why is it Important?

• The Claims Consultants at WSRMP have been busy

• Employment Liability Claims have increased substantially the past three years

POLICY NUMBER PAID &

YEAR OF CLAIMS RESERVED

• 2008 – 2009 39 $ 649,153• 2009 – 2010 67 $2,142,761• 2010 – 2011 75 $1,047,732

• Employees deserve to be treated with respect and dignity! 5

Additional Impact• Under the Washington Law Against Discrimination,

Supervisors may be held personally liable if they do not take pro-active action to stop all forms of employment discrimination and harassment

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What Can You Do to Help?

1. Be knowledgeable of the various protected classes

2. Make certain all Administrators and Supervisors are knowledgeable of the laws and your district’s Board Policies and Procedures.

3. Train and document training of Administrators and Staff

4. Do not initiate any form of employment discrimination

5. Take immediate action when you witness any employee being subjected to discrimination

6. Take all reports seriously and documentFile documents as directed by district

7. Do not retaliate or allow any retaliation

8. Always seek help from your H/R Department7

Employment Discrimination - Federal & State Laws:

PROTECTED CLASS FEDERAL LAW WA. STATE LAW

Age Age Discrimination Act of 1975

RCW 49.60 (WLAD)

Disability Section 504 of the Vocational Rehabilitation ActTitle II of the Americans with Disabilities Act

RCW 28A.642WAC 392.190RCW 49.60

National Origin Title VI of the Civil Rights ActExecutive Order 13166Title VII of the Civil Rights Act of 1964

RCW 28A.642WAC 392.190RCW 49.60

Race Title VI of the Civil Rights Act of 1964Title VII of the Civil Rights Act of 1964

RCW 28A.642WAC 392.190RCW 49.60

Employment Discrimination - Federal & State Laws:PROTECTED CLASS FEDERAL LAW WA STATE LAW

Religion/Creed U.S. Constitution – 1st AmendmentTitle VII of the Civil Rights Act of 1964

WA State Constitution, Article I, Sections 5 & 11RCW 28A.600.025RCW 28A.642WAC 392.190RCW 49.60

Sex Title IX of the 1972 Educational AmendmentsTitle VII of the Civil Rights Act of 1964

RCW 28A.640RCW 28A.642WAC 392.190RCW 49.60

Sexual Orientation RCW 28A.642WAC 392.190RCW 49.60

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Employment Discrimination - Federal & State Laws:PROTECTED CLASS FEDERAL LAW WA STATE LAW

Veteran/Military Status RCW 28A.642WAC 392.190RCW 49.60

OTHER:•Pregnancy•Breast feeding•Use of service dog guides and service animals

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RCW 28A.642.010 (Effective May 13, 2011)

• Definition of protected classes in schools:• Race, creed, religion, color, national origin, honorably-

discharged veteran or military status, sexual orientation including gender expression or identity, the presence of any sensory, mental or physical disability or the use of a trained dog guide or service animal by a person with a disability.

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Under These Laws:

It is illegal to discriminate in any aspect of employment,

including:• Hiring and firing;• Compensation, assignment or classification of employees;• Transfer, promotion, layoff, or recall;• Job advertisements;• Recruitment;• Testing• Use of company facilities;• Training and apprenticeship programs;• Fringe benefits;• Pay, retirement plans, and disability leave; • Other terms and conditions of employment

The Difference Between WLAD and ADAAA

• WLAD: Substantially limited to work• ADAAA Substantially limited to a major life

activity

• The Washington State definition is broader• Greater number of impairments• Medical mental or psychological conditions• Temporary conditions• No requirement that the condition must impact a major life

activity• No requirement the condition be substantially limiting

• WLAD: The employee must be able to perform the essential functions of the job

• ADAAA: The employee must be able to perform the essential functions of the job with out without reasonable accommodation

Essential Job Descriptions and Postings• Consider adding to all Teaching Job Descriptions and

Postings as essential functions:• Maintain consistent presence at assigned worksite and regularly

work hours specified under contract;• Professionally interact with students staff and members of the

public;• Establish professional and on-going contacts with students• Comply with all district policies; and• Comply with the Code of Professional Conduct

• (Thank you Rick Kaiser, Reynolds Burton Attorneys for your contributions to this program)

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Don’t Make the Classic Mistake• Don’t just take their word for it, especially for non-visible

claims disabilities (including temporary disabilities)• Get employees authorization to get information from their

attending physician• Send letter to physician with a performance-based job

description• Ask the physician to advise “the objective physical

findings” related to any disability• Ask if the disability is permanent or temporary (if

temporary, for how long)• Ask the physician to list any restrictions• Always keep this information confidential

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Accommodations• The accommodation must be medically necessary• Generally, the employee initiates the process• The process is on-going• The Process continues after employment!

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What’s a Reasonable Accommodation?

• Definition:• A modification or adjustment is “reasonable” if it “seems

reasonable on its face”, i.e., ordinarily or in the run of cases; this means it is “reasonable” if it appears to be “feasible” or “plausible”. An accommodation also must be effective in meeting the needs of the individual. In the context of the job performance, this means that a reasonable accommodations enables the individual to perform the essential functions of the position

(Thank you to Rick Kaiser)

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What’s Reasonable?• Making existing facilities accessible or moving the

program to a facility that is accessible• Job restructuring• Part-time or modified work schedules• Acquiring or modifying equipment (2nd injury W/C fund)• Changing tests, training materials or policies• Providing qualified readers or interpreters• Reassignment to a vacant position; and• Providing a leave of absence

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What’s Unreasonable?• Reassignment to occupied position• Creating a new position• Altering the fundamental nature of the job• Eliminating essential functions of the job• Promoting to a higher position• Providing a new supervisor or co-worker• Bumping union employee or one with seniority• Giving preference over more qualified employees• Agreeing to a specific accommodation request• Enduring “undue hardship” to provide accommodation(Thank you to Rick Kaiser)

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An Employer Has the Rights to Ask These Kinds of Questions:• About an employee’s well being (e.g., How are you?),

asking an employee about nondisability-related impairments (e.g., How did you break your leg?);

• Asking an employee whether s/he can perform job functions;

• Asking an employee whether s/he has been drinking or currently using illegal drugs;

• Asking a pregnant employee how she is feeling or when her baby is due (wouldn’t recommend this of job applicants)

• Asking an employee to provide the name and telephone number of a person to contact in case of a medical emergency.

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EEOC Recommended Process of Identifying a Reasonable Accommodation:

• What is the job’s purpose and essential functions (should be on the job description)

• Consult with the individual• What are their specific physical or mental abilities and

limitations as they relate to the job• What barriers exist and how can we remove them?

• Consult with the individual to identify potential accommodations

• Seek technical assistance form a qualified consultant if necessary

• YOU DECIDE THE ACCOMMODATION! YOU DECIDE THE ACCOMMODATION!

Guidance on Discrimination/Harassment• Title VII, ADAAA• Washington Law Against Discrimination• Collective Bargaining Agreements• Board Policies and Procedures

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Discrimination/Harassment Complaints

• The EEOC requires an employer to take all steps necessary to prevent (sexual) harassment from occurring

• The District should ensure all staff attend trainings every three years; with annual reminders• Keep records of attendance• Distribute board policies and procedures (document)

• Don’t forget about your volunteers and coaches• WSRMP provides an e-learning program on the SafeSchools web

site “What Every Coach Needs to Know”

• Post your district’s non-discrimination statement on your Web site, on all job applications (and if electronic prior to the application), employee and student handbooks

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Discrimination/Harassment Complaints

• To prevail, the complainant must prove:• The conduct was “unwelcome”• The conduct occurred on the basis of a protected status• The conduct was severe or pervasive• They must impute the conduct to the District

• Legal Defense to Harassment Complaints• The employer exercised reasonable care to prevent and correct

promptly any harassing behavior• The complainant unreasonably failed to take advantage of any

preventive or corrective opportunities

• RETALLIATION IS A STAND-ALONE CHARGE!24

Disparate Treatment Complaints• To prevail, the complaint must:

• Include an “adverse employment action” and• Establish that discriminatory bias caused it

• Bias comes in the following forms:• Direct evidence• Stray comments• Code Words• “Excellent” evaluations followed by sudden

demotion/RIF/termination or• “Cat’s Paw” decision making

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Your Best Protection is Documentation!

• Document distribution of Policies and Procedures• Document those who attend training programs and keep a

copy of the curriculum attached to the sign-in sheet• Keep these records for 10 years

• Document all reports of discrimination, harassment, bullying (of staff)• Keep these records in a central file

• Keep copies of your Web Screen to demonstrate compliance with posting non-discrimination statements

• Keep copies of all materials with non-discrimination statements

• Document investigations and results26

Let’s Not Forget About Sexual HarassmentAccording to the EEOC:

An employer should take all steps necessary to prevent (sexual) harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue, developing methods to sensitize all concerned

Employers must protect employees

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Investigations• Don’t do this all alone, work with someone who has been

trained in investigations• Be consistent in the way you handle investigations• Talk to the accused & the accuser, separately

• Warn about retaliation• Warn about confidentiality

• Don’t hesitate to seek professional assistance• Your counsel• Your insurance carrier

• Don’t forget to protect evidence• At the end of your investigation, your response must stop

the conduct and keep it from recurring28

Duties as an Administrator:• Look listen and learn!

• Look for signs of Inappropriate Behavior• Listen to what staff and students are saying• Pay attention to red flags• Learn what your District’s Board Policies and Procedures require of

you

• Act swiftly always focusing on safety first• Take reports seriously• Document, document, document• Again, FOLLOW YOUR DISTRICT’S BOARD POLICIES AND

PROCEDURES!

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Administrators May Be Held Personally Liable for:• Failure to report suspected child abuse - CPS• Failure to report suspected physical or sexual abuse of a

student by a school employee to police within 48 hours• Treating reports of discrimination with deliberate

indifference

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Legal Defense of an Harassment Case

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Even if a plaintiff makes her or his case, an employer may still avoid liability by establishing:

(a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

Parting Thoughts• Don’t Lone Ranger these issues

• Seek help from H/R, Title VII, Title IX, your Superintendent, your counsel or WSRMP

• When in doubt, ask questions • Follow your district’s Board Policies and Procedures• Take all reports seriously• Take immediate corrective action• Document, document, document!• Maintain confidentiality

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QUESTIONS?

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CONTACT INFORMATION

Mary Sue Linville, ALCM, ARM-PDirector of Risk Managementmlinville@wsrmp.com206.394.9717 or 800.488.7569www.wsrmp.com