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Avoiding Workplace PitfallsDomestic and Foreign Employee Compliance

Session II – Preventing and Defending Discrimination Claims

Agenda

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Discrimination Claims and North Texas Businesses

Immigration Anti-Discrimination Pitfalls

How to Prevent and Defend Employment Discrimination Claims

Discrimination Claims & North Texas Businesses

Mark Hill

Shareholder, Cowles & Thompson, P.C.

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Legal Landscape

100s of claims are filed in North Texas State and Federal Courts everyday.

Employment claims against local businesses are an increasing part of the legal landscape in Collin, Dallas and surrounding counties.

Most Common Business Claims

Fiduciary cases Contract casesEMPLOYMENT

cases

Employment Cases

Non-competeConfidentiality & Trade Secret

FLSA Discrimination

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Common Types of Discrimination

DisabilityRace, National

OriginAge

Gender Religion

Discrimination Claims Filed within Last 2 Weeks!

Disability Claims

Oil & Gas Company

•Amnesia, Medications (pro se)

Consulting Business

• Carpal Tunnel

Retail Business

• Cancer, Treatment

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Race/National Origin Claims

Automotive Business

•Terminated, Retaliation Claim

Telecommunications Company

• Performance

Hospitality Business

• Harassment

Age Claims

Retail Business

• Harassment, Policy

Financial Institution

• Termination

What can the Business Owner do?

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(…and how to help your case)

Written Policy

Consistent Documentation

Preserve Records/File

(…and how to help your case)

Evaluate Termination Basis

Witness ID & Review

Be Cautious with Communications

Recent Experiences

DFW Medical Center

Plano Technology Manufacturer

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How to Prevent and Defend Employment Discrimination Claims

Brian Farrington

Shareholder, Cowles & Thompson, P.C

Discrimination

What is Discrimination?

-not necessarily unfair or unreasonable

What is the legal meaning of discrimination?

-Adverse action against people because of protected group membership.

So, it’s illegal to discriminate because of:

Who is Protected?

-Race (Title VII of Civil Rights Act of 1964)

-Color (Title VII)

-National Origin (Title VII)

-Religion (Title VII)

-Sex (Title VII)

-Age, 40 and up (Age Discrimination in Employment Act—ADEA)

-Disability (Americans With Disabilities Act—ADA)

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Who is Protected?

In Texas, these laws only apply to employers who have:

-15 or more employees

-on the payroll

-for at least 20 weeks

-of the current or preceding calendar year

Other states have lower thresholds, or even cover all employers

Who is Protected?

States can also create additional protected groups—e.g.,

-Sexual Orientation

-Marital Status

-Off Duty Use of Legal Products

Direct Evidence of Discrimination

How do employees prove discrimination?

One way is where there is DIRECT EVIDENCE of employment decisions motivated by protected group membership—e.g., Slack v. Havens

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Disparate Treatment

Where there is no direct evidence, there may be INDIRECT EVIDENCE.

The most common model of a discrimination claim is DISPARATE TREATMENT (a/k/a the “SHIFTING BURDEN analysis”).

Disparate Treatment

Step 1: Employee must make a prima facie case. In a typical firing case, for example, here are the elements:

-Member of protected group

-Suffers an adverse action

-Qualified for the job

-Replaced

Disparate Treatment

Step 2: Employer must “articulate” a “legitimate, non-discriminatory reason” for the adverse action. At this point, the Employer relies on:

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Disparate Treatment

DOCUMENTATION

-write-ups, performance appraisals, production records, attendance, etc.

CONSISTENCY

-with what Employer said it would do (e.g., policies); and

-with what Employer has done in similar situations in the past

Disparate Treatment

Step 3: Burden shifts back to the Employee:

-PROVE that the reasons given by the Employer are false

-In the past, Employer would then have to show false reason was “pretext” for discrimination

-Now, just giving false reasons allows jury to infer a discriminatory motive

In Hiring, Promotions:

Where a “facially neutral policy” has a harsher result for one or more protected groups than for others, it can be discriminatory.

Examples:

-Height requirements in police departments

-Unnecessary education/training requirements

Disparate Treatment

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First articulated in Griggs v. Duke Power Co.:

-prior to July 2, 1965, company would not hire Blacks

-started hiring Blacks on July 2, 1965, but also started requiring high school diploma

-in N. Carolina, only 11% of Blacks had diplomas (31% of Whites)

So HS graduation requirement had DISPARATE IMPACT on Black applicants.

Disparate Treatment

If a criterion has a disparate impact, it is NOT automatically illegal.

BUT:

Employer must PROVE that the standard is “job related” and “consistent with business necessity.”

Disparate Treatment

EEOC is looking very hard at such disparate treatment issues as:

-Criminal background checks (“ban the box”)

=must consider nature of offense, elapsed time, subsequent history, relation of offense to job.

-Credit checks

Disparate Treatment

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“4/5ths” Rule:

-if pass rate of any group is less than 80% of pass rate for other group(s), there is a disparate impact

Disparate Treatment

Testing: How does Employer prove a test that has a disparate impact is job related and consistent with business necessity?

Uniform Guidelines on Employee Selection Procedures—29 CFR 1607

Three ways to show test is valid

Disparate Treatment

1.Measures a skill or aptitude required by the job—e.g., typing test.

2.Identifies personality traits or aptitudes which are important to the job—e.g., communication skills in sales employees

3. Predicts success on the job—history shows that the better candidates do, the more likely they are to succeed.

Disparate Treatment

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Pregnancy

Gilbert v. General Electric, 1976—discrimination against pregnant people NOT sex discrimination

Pregnancy Discrimination Act, 1978—Oh yes it is!

Pregnancy must be treated as any other temporary medical disability (but no special treatment or accommodation required)

Health insurance and income maintenance benefits must be equal

Seniority of female on maternity leave continues

Exception (BFOQ) very narrowly interpreted

-UAW v. Johnson Controls: as long as pregancydoes not interfere with ability to perform job, employee must be allowed to work

Pregnancy

PDA does not require maternity leave, but FMLA does.

Family Medical Leave Act: covered employers must provide up to 12 weeks job protected leave for pregnancy (and other serious health conditions).

“Covered Employer” has 50 employees, or is government agency.

Pregnancy

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Eligible Employee:

-worked for employer for 12 months

-in 12 months preceding leave, worked 1,250 hours or more

-works at a location where employer has at least 50 employees within 75 miles

Pregnancy

Although PDA does not require “accommodations,” and ADA does not define pregnancy as a disability, EEOC is looking very hard at ways to protect pregnant employees. New guidance issued by EEOC recently points out that many conditions associated with pregnancy can be disabilities, and would require accommodation.

Pregnancy

Sexual Harassment

"Quid Pro Quo“

-Exchange of job favors for sexual favors.

-Done by Supervisor/Agent

-Company is responsible.

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Hostile or Offensive Environment

-"Unwelcome" sexual advances.

-Objectively offensive—reasonable person in the place of the victim would find conduct offensive

Sexual Harassment

"Unwelcome" Physical or Verbal Conduct of a Sexual Nature

-"Unwelcome" - both objectively and subjectively

-Must be serious and pervasive, not isolated or incidental

Sexual Harassment

-Physical conduct - touching, etc. - even one incident may be enough.

-Verbal

=Comments on body, clothing, appearance

=Jokes

=Description/questions on love life

=Miscellaneous—Pictures, novelties

Sexual Harassment

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Company Liability—If hostile environment created by co-worker, company is not liable if:

-Company did not know of conduct.

-Company had no reasonable way to know.

-Anti-harassment policy/complaint mechanism is in place

Sexual Harassment

Hostile or offensive environment if supervisor does it:

-If supervisor does it, and a tangible job detriment occurs (e.g., demotion, discharge), employer is strictly liable

-If supervisor does it, and no tangible job detriment occurs, company is liable but can raise affirmative defense

Sexual Harassment

Affirmative Defense

-Company has widely disseminated and effective internal complaint process

-Employee does not take advantage of internal complaint process

Sexual Harassment

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Disability

Americans with Disabilities Act (ADA)

Definition of "disability:"

-any physical or mental condition which substantially limits one or more of an individual's major life activities; or

-a record of such impairment; or

-being regarded as having such an impairment

Disability

Qualified individual with disability

-meets basic qualifications (education, experience, etc.)

-can, with or without reasonable accommodation, perform essential functions of job

Disability

-Requires "reasonable accommodation" unless "undue hardship" - tough definition of undue hardship

-Forbids any pre-offer inquiries about health/disability

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Age Discrimination

-Protected group is age 40 & up

-NO MANDATORY RETIREMENT!

-RIF's, layoffs - modified prima facie case

=RIF criteria applied uniformly

=statistics alone don’t make a case (but support one)

Religion

Reasonable accommodation required, unless more than de minimus cost

Conflict with dress and grooming codes

Observance of holidays, etc.

Interviews/Applications

If you need to know, ask; if not, don't:

-Age, date of birth - child labor only

-Race, religion, national origin - NO! (not even a photo)

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Interviews/Applications

Disability, etc.

-Have job description listing essential functions

-Ask only if can perform essential function

-If applicant initiates it, discuss reasonable accommodations

-Education - only to the extent relevant

-Sex, marital status, family, etc. - don't ask

-Arrest, conviction, deferred adjudication - you may ask about convictions only - have disclaimer

Interviews/Applications

-Garnishment - No

-Bankruptcy - No

-Citizenship - No. Say that the company, in compliance with IRCA, requires proof of identity and eligibility to work. (I-9)

Interviews/Applications

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Application Form

-EEO statement

-Authorization for pre-employment testing

-Misleading, inaccurate information or omissions grounds for termination

Interviews/Applications

-Authorization for previous employers, schools, etc. to provide or confirm information. Release these from liability.

-Statement of at-will status (cannot be varied by anyone except --)

Interviews/Applications

Pre-employment inquiry guide – lists acceptable and unacceptable questions – most states with anti-discrimination laws have them—get one!

Interviews/Applications

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Terminations

Do a risk profile:

-Warning and chance to improve (unless must fire ASAP)

-Consistent with own policy

-Age

-Sex (pregnant?)

-Effect on EEO profile

-Seniority

-Replacement

-Adequate documentation

-Consistent with previous actions in similar situations

-Recently on medical/workers comp leave

Terminations

Termination Interview

-Rehearse

-Employer witness (who takes notes)

-Choose time and place to minimize discomfort, embarrassment, humiliation

Terminations

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-Brief and clean - not too specific

-Don't argue

-Don't let them down too easily

-Explain any benefits, last paycheck, payment of vacation/sick/severance, COBRA, etc.

Terminations

-Allow opportunity to vent (he may even agree -good at trial!)

-No improper comments, and don't be trapped into making them

-Detailed narrative later - signed by both

Terminations

Immigration Anti-Discrimination Pitfalls

Angela M. Lopez

Shareholder, Cowles & Thompson, P.C

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Department of Homeland Security

U.S. Citizenship and Immigration Service (USCIS) www.uscis.gov -immigration benefits and services

U.S. Customs and Border Protection (CBP) – www.cbp.gov– border patrol and international travel facilitation

Department of Homeland SecurityImmigration and Customs Enforcement

Investigates employers for compliance with employment employer verification rules and removes undocumented aliens from the United States www.ice.gov

U.S. Department of Labor

Investigates employer verification compliance, visa compliance, violation of worker rules www.foreignlaborcert.doleta.gov

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U.S. Department of JusticeOffice of Special Counsel (OSC)

Investigates and prosecutes charges of immigration-related unfair employment practices www.usdoj.gov/crt/osc

Prohibited Conduct

Citizenship or Immigration

Status Discrimination

National Origin Discrimination

Document AbuseRetaliation or Intimidation

Citizenship/Immigration Status Discrimination

Prohibits different treatment because of

citizenship or immigration status

Protects US citizens, recent permanent

residents, temporary residents, asylees or

refugees only

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National Origin Discrimination

Prohibits different treatment because of place of birth, country of origin, ancestry, native language, accent, or looks or sounds

“foreign”

Protects ALL work authorized individuals

Document Abuse

Prohibits request for more or different documents than

required or rejection of genuine-looking

documents

Prohibits requirement of specific documents

based upon citizenship status or

national origin

Protects ALL work authorized individuals

Common Mistakes

Your supervisor catches you before you start interviewing applicants for a job. She says, “Find out if those two near the door have their ‘green cards’ before you waste your time.

Did you discriminate in hiring?

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Common Mistakes

As president of your company, you issue a memo stating, “Please be careful when hiring people who look like they crossed the border illegally.”

Have you committed national origin discrimination?

Common Mistakes

You find two equally qualified candidates to fill one position. In deciding between the two, you decide on one because he is a permanent resident and the other, an asylee, only has a temporary work permit (EAD).

Have you committed citizenship status discrimination?

Common Mistakes

You implement an employee referral program. Unofficially, you tell employees that you prefer they only refer applicants who are U.S. citizens.

Are you in compliance with the INA?

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Common Mistakes

You hire Angela Lopez and are surprised when she hands you a state-issued driver’s license and an unrestricted Social Security card for her I-9 form. You say, “I must see a card issued by the USCIS.”

Does Angela have a case against you?

Penalties for Anti-Discrimination Violations

$100 to $16000 depending upon

the violation

Back pay (no more than 2 years before

claim was filed)

Hire or re-hirePersonnel Training

Attorney Fees

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Recent OSC Settlements

June 12, 2014Violation: Commercial Cleaning Systems required work-authorized non-U.S. citizens to present specific documents issued by the USCIS in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation.

Settlement: $53,500 in civil penalties, $25,000 back pay fund a result of the company’s discriminatory document practices, and government oversight of its employment eligibility verification practices for one year.

Recent OSC Settlements

May 7, 2014Violation: Master Klean Janitorial subjected work-authorized non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation.

Settlement: $75,000 in civil penalties, undergo training on the anti-discrimination rules, revise employment eligibility verification policies, and government oversight of its employment eligibility verification practices for one year.

Recent OSC Settlements

April 24, 2014Violation: El Rancho required lawful permanent residents to present a new employment eligibility document after being hired when their Permanent Resident cards expired, even though the Form I-9 and E-Verify rules prohibit this practice because lawful permanent residents have permanent work authorization in the United States, even after their Permanent Resident cards expire.

Settlement: $43,000 in civil penalties, undergo training on the antidiscrimination rules, and government oversight of its employment eligibility verification practices for one year.

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OSC Stats and Trends

During Fiscal Year 2013, the Office of Special Counsel set a new record by

collecting almost $900,000 in civil penalties under the anti-discrimination provision of the INA. Over the same period, the Office also collected over $250,000 in back pay

relief for victims of discrimination.

OSC Referral Sources

USCIS

Department of Labor –

Wage & Hour

Legal Aid Bureaus

Immigrant Advocacy

EEOC

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What to Do Next?

Facts of each case are different. The general information provided here should not be relied and is not legal advice.

Consult with an experienced attorney to get the right advice for your specific circumstances.

901 Main StreetSuite 3900

Dallas, Texas 75202

214-672-2000info@cowlesthompson.comwww.cowlesthompson.com

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