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Managing Risk: Thorny
Discrimination Issues
Confronting Your HR
Organization
Doug Parker, Esq.
Alaska Bar Association Corporate Counsel Section
Copyright 2008, Littler Mendelson, P.C.
QUESTION #1:Are risks of
discrimination lawsuits
manageable?
Over the Last Ten Years
Religious discrimination charges up 85%
Pregnancy discrimination charges up 39%
Sexual harassment charges up 36.6%
National origin discrimination charges up 21.6%
Sexual discrimination charges up 17%
Age discrimination charges up 41% over last 5 years
Managing the Risk:
Watch what is said (age-related comments, comments on golf course, etc.
Watch what is written – in emails and other documents
Keep adequate records and examples of poor work product (“effective documentation”)
Managing the Risk:
Pay attention to how managers have treated similarly situated employees in making employment decisions
Give the real reasons for making a decision, even if it’s awkward or difficult. (Giving a false reason makes it look like you have a “pretext” for what you did)
Have a consistent approach to reductions in force
Managing the Risk:
Understand unconscious bias
Training for all managers re to avoid stereotyping and unconscious bias in the workplace
Monitoring and oversight by HR of termination decisions and promotions
QUESTION #2:So, in response to
the growing number of claims and suits, are courts “reining
them in” so as to discourage claims,
right?
Guess Again!
The trend, at least nationally, has been to ease a plaintiff’s burden. The following areas are especially troubling:
– Retaliation claims
– “Cat’s Paw” liability theory
– Allowance of “me too” evidence
– Adverse inference in spoliation cases
Retaliation Trends
Retaliation cases continue to grow now exceeding 29% of all cases filed
All retaliation cases have three elements:
– Protected activity;
– Adverse action; and
– A connection between the two
http://www.eeoc.gov/stats/charges.html
15.3%15.7%
17.4%
19.5%
20.6%
22.6%
24.0%25.4%
27.1%27.5%
27.0%27.9%
28.6%29.5%
29.8%
14%
16%
18%
20%
22%
24%
26%
28%
30%
FY1992
FY1993
FY1994
FY1995
FY1996
FY1997
FY1998
FY1999
FY2000
FY2001
FY2002
FY2003
FY2004
FY2005
FY2006
Retaliation Claims
The Supreme Court has defined what constitutes an “adverse action” in a Title VII retaliation claim.
– Burlington Northern & Santa Fe Railway Co. v. White (S.Ct. 2006):
Court held prohibited retaliatory conduct includes any action that’s "materially adverse:
– Any action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination
Burlington Northern Key Holdings
Retaliation NOT limited to employment related harms
Retaliation includes any action that would have been “materially adverse” to a reasonable employee or job applicant
Materially Adverse Standard An employer’s action
will be deemed “materially adverse” if it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Greene v. FedEx Kinko’sD. Alaska; Ninth Circuit 2007
Greene complained to local management about lack of support
Two weeks later, his performance was “audited”
Six months later, fired after he refused to withdraw his complaint
The “audit” could be “materially adverse”
Managing the Risk
Training- Teach managers and supervisors what not to do and how to act after someone files a claim, calls the hotline.
Follow-up- checking in
Monitor- assessing the situation
Get Creative
QUESTION #3:So, what is it about
“me too” evidence?
Won’t most judges limit discovery and evidence at trial, to the facts about the
plaintiff?
Sprint v. MendelsohnU.S. Sup. Ct. 2008
Mid level manager claimed age discrimination in a RIF, wanted to introduce testimony from other employees, who claimed to be aware of age discrimination at the Company.
The other employees’ information did not relate to the Plaintiff or the Plaintiff’s supervisor.
Sprint v. MendelsohnU.S. Sup. Ct. 2008
The trial court has discretion to decide whether the evidence is admissible.
No blanket rule. Trial court must make case-by-case decisions.
The trial court should consider: How closely related is the evidence related to the theory of the case?
If the other employees worked in different departments with different supervisors, that would be relevant, but not dispositive.
Sprint/United Management Co. v. Mendelsohn (United States Supreme Court, February 26, 2008)
Why Is This Important?
“Me-too” evidence is a huge headache
– It magnifies the cost of defense, both in discovery and at trial
– Potential for mini-trials
– Prejudicial effect on juries.
– Disruptive in current workpace
Managing the Risk
Preserve evidence of handling of other claims including record of resolution.
Consider future impacts of current decisions
Cooperation clauses in severance and settlement releases.
Motions in limine
QUESTION #4:
But, won’t we still win if we can show
that the decision maker had no discriminatory
animus?
Discrimination Liability Absent Discriminatory Animus by Decisionmaker
2 theories:
– “cat’s paw theory” – biased subordinate uses formal decisionmaker to trigger discriminatory employment action
– “rubber stamp” doctrine - decisionmaker gives automatic approval for adverse action recommended by biased subordinate
Discrimination Liability Absent Discriminatory Animus by Decisionmaker
BCI Coca-Cola Bottling Co v. EEOC
– Employee discharged for insubordination after refusing direct order from supervisor.
– HR Manager did not know employee’s race.
– Discharge decision based on input by supervisor (who had alleged history of treating African-American employees unfavorably and for making disparaging racial remarks, and on reviewing employee’s record.
Managing the Risk
Risk heightened where decisions made centrally, but remote from employee’s workplace
Safest: All termination decisions investigated in situ by trained HR representative
HR should consider any motive of the supervisor to steer the decision
QUESTION #5:The supervisor (who
recommended the termination) deleted his emails about the
plaintiff .
Will this be a problem?
Spoliation of Evidence
Court may allow an adverse inference instruction where it finds defendant failed to produce evidence
The risk is heightened in email discovery
Zubulake v. UBS Warburg LLC
$29.3 MILLION JURY VERDICT IN A SEX DISCRIMINATION CASE
In initial discovery, plaintiff produced 450 pages of e-mails; defendant produced 100 pages of e-mails
Defendant failed to search its backup tapes and optical disks, leading it to insist to the court that its original 100 pages of production was complete
Zubulake Adverse Inference Instruction
You have heard that UBS failed to produce some of the e-mails sent or received by UBS personnel in August and September 2001. * * * If you find that UBS could have produced this evidence, and that the evidence was within its control, and that the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS. . . .”
Risk-Management Takeaways
1. Deep Knowledge of Client’s IT Systems, Policies and Practices
2. Prompt Preservation
3. Thorough Search of all Sources
4. Promptly Correct/Supplement the Record
5. Don’t Be Shy About Using Experts
Prompt Preservation
Litigation Hold
Track/Document Receipt of all Holds
Periodically Re-issue Holds (documenting same)
Thorough Search of All Sources
Morgan Stanley ignored back-up tapes in plain sight
Qualcomm did not:
– search the computers of the two witnesses it designated as 30(b)(6) designees
– search the computer of a key employee until he was being prepped to testify at trial
“Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search. . . . An adequate investigation should include an analysis of the sufficiency of the document search and, when electronic documents are involved, an analysis of the sufficiency of the search terms and locations.”
QUESTION #6:Managing
Harassment Risk
Let’s have some good news.
Harassment claims are
dropping, right?
NOPE!
Again, the incidence of harassment claims has gone up by more than a third in the past decade.
What Kinds of Behaviors Are High Risk?
Dating
Touching
Sexual, age or gender comments etc
Racial or national origin slurs
Emails, Intranet, Text messaging, IM
Outside work events~ parties, company events, drinking with employees
Workplace Romance
Supervisors dating people who report directly to them
= high-risk behavior
Liability Focus — Avoid “Sexual Favoritism”
Blatant sexual favoritism that poisons the atmosphere such that the message is communicated that one must “participate” to be accepted.
When sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment
Plaintiffs need not be propositioned in order to state a claim for hostile environment sexual harassment.
Miller v. Dept. of Corrections, Cal. Supreme Court (July 2005)
Johnson v. Fred Meyer D. Alaska 2007
Terminating an employee so the manager can hire another in whom he has a romantic interest may violate the implied covenant of good faith and fair dealing.
Environmental HarassmentAffirmative Defense If You
Show1. The employer used
“reasonable care” to prevent and correct harassment; and
2. The employee unreasonably failed to complain
Affirmative Defense
1. Policy
2. Distribute Policy
3. Training for managers and supervisors/Employees
4. Investigation-must be prompt and thorough
5. Appropriate Correct Action
6. Follow-Up
Managing the Risk
1. Avoid Risky Behaviors
2. No Tolerance Policies
3. Practice and Promote the Affirmative Defense
4. Education of the Workforce
5. EARLY Communication with HR
QUESTION #7:Several years ago, after a workplace dating issue, we
implemented a “no fraternization rule.”
Is this is okay!
Overbroad Work Rules and the National Labor Relations Act
Guardsmark, LLC v. NLRB
Issue: Did work rule prohibiting fraternization with other employees (on duty or off duty) impinge upon employees’ right to discuss terms and conditions of employment, under Section 7 of NLRA?
Overbroad Work Rules and the National Labor Relations Act
Guardsmark, LLC v. NLRB, 475 F.3d 369 (D.C. Cir. 2007):
Held: Employees reasonably could think a fraternization rule unlawfully prohibited them from exercising Section 7 rights.
Managing the Risk
Review existing work rules
Use plain and clear language
Include disclaimer to explain that work rules are not intended to prohibit employees from speaking with others about terms and conditions of employment
Consider translating work rules
QUESTION #8:Our organization
promotes diversity and we allow
“affinity groups.”
See any problems?
Managing Risks Associated With Employee Affinity Groups
Affinity groups are integral to many diversity programs
However, affinity groups may pose legal risks under
– Employment discrimination laws
– National Labor Relations Act
Managing the Risk
Avoid discrimination claims by:
– Clearly articulating criteria for affinity groups
– Consistent application of the criteria
– Groups should include – not exclude – those who support group’s mission
– Handle complaints through normal processes
Managing the Risk
Avoid NLRA violations
– Affinity groups should not try to negotiate terms or conditions of employment
– “Brainstorming” ideas for improvement okay so long as management is free to adopt or ignore
THANK YOU
Doug Parker, Esq.
Copyright 2008, Littler Mendelson, P.C.
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