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.