preventative training for managers/supervisors · harassment—sexual, physical, psychological or...

PREVENTATIVE TRAINING FOR MANAGERS/SUPERVISORS:

WORKPLACE SEXUAL & DISCRIMINATORY HARASSMENT,

HOSTILE WORK ENVIRONEMNT,

DISCRIMINATION & RETALIATION

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Town of Rocky Hill Department of Human Resources 2016

WHY ARE WE CONDUCTINGTHIS TRAINING?

1. Statutory Mandate

2. Mitigate Legal and Financial Liability

3. It’s the Right Thing to Do – Bad Conduct is Bad for Business

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WHY ARE WE CONDUCTINGTHIS TRAINING? 3

Statutory Mandate

The “state and political subdivisions thereof . . . “ must provide 2 hours of sexual harassment prevention training to supervisory employees in a classroom-like setting, using clear and understandable lanauge, in a format that allows participants to ask questions and receive answers.

Newly hired supervisory employees must receive training within 6 months of assuming their supervisory position.

Key Citation: C.G.S. §46a-54(15)(A)

Includes municipalities


WHY ARE WE CONDUCTINGTHIS TRAINING? 4

Mitigate Legal and Financial liability

• Decrease Risk -- Municipal Liability and Individual Liability

*42 U.S.C.S. Section 1981 and 42 U.S.C.S. Section 1983 extend

liability to individual managers and supervisors, as well as

municipalities, where there was evidence of personal involvement in

discriminatory conduct and evidence of workplace customs or policies

that deprived individuals of federal rights (discussed in detail later).

• The Town of Rocky Hill Is Monitored Like Other Employers

• EEOC Reports

• Residents question searches and hiring practices (Spring and fall of 2015 allegations of hiring based on familial relationships.)*Key Citation: Ritterband v. Hempstead Union Free Sch. Dist., 2008 U.S. Dist. LEXIS 65423, 2008 WL 3887605 (E.D.N.Y. Aug. 20,

2008)


WHY ARE WE CONDUCTING THIS TRAINING?

It’s the Right Thing to Do – Bad Conduct is Bad for Business

• Bad conduct (real or perceived) affects productivity, diverts financial and other resources, and can be bad for business—especially when it makes the headlines . . .

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• Example: Impact of North Carolina’s “Bathroom Bill”

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53 corporate investors signed an “open letter” calling for a repeal of legislation that was characterized as discriminatory towards transgender individuals—citing that the HB2 bill was bad for business.

Morgan Stanley

Apple

Facebook

Paypal

Bank of America

Deutsche Bank

Pfizer

WHY ARE WE CONDUCTING THIS TRAINING?


• Example: Allegations of bad conduct subject municipalities and municipal officials to public scrutiny and embarrassment

• Recently, the New Haven Assistant Police Chief’s efforts to be promoted to Chief have been impacted by charges he directed a derogatory remark (“mope”) toward an employee

• In 2012, when asked by a news reporter what he planned to do for the Latino community in light of discrimination allegations, the Mayor of East Haven responded, "I might have tacos when I go home, I'm not quite sure yet.

7WHY ARE WE CONDUCTING THIS TRAINING?


Goal

Identify and discourage high risk conduct in the workplace, and address specific instances of bad conduct through remedial action—or disciplinary action if necessary.

8WHY ARE WE CONDUCTING THIS TRAINING?


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MODULE 1 - Legal Prohibitions Against Discrimination and Harassment

MODULE 2 - Sexual Harassment, Discriminatory Harassment, Hostile Work Environment

MODULE 3 - Discrimination and Retaliation

Context: Managers’ Decisions SurroundingHiring, Promotion, and Disciplinary Decisions Requests for Accommodations (ADA)Family Medical Leave Act Requests

TRAINING TOPICS

Remedies and hypothetical cases will be part of open discussions.Town of Rocky Hill Department of Human Resources 2016

MODULE 1Legal Prohibitions AgainstDiscrimination and Harassment

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PROTECTED CLASSES

(under Connecticut Law)

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AgeAncestryColorCriminal Record ( in state employment & licensing only)Gender Identity or ExpressionGenetic InformationLearning DisabilityMarital StatusMental DisabilityIntellectual DisabilityNational OriginPhysical Disability*Prior complainant or participant in complaint/investigationRaceReligious CreedSex, including pregnancy and sexual harassmentSexual Orientation

*Prohibition against retaliation C.G.S. §46a-60(4)



UNITED STATES CONSTITUTIONAL LAW

• Fourteenth Amendment

• Equal Protection Clause

• Provides same protections as Title VII, the ADEA and the ADA

• Due Process Clause

• Very generally speaking – this provision requires notice and procedure prior to deprivation of rights, impacting livelihood, etc.

• First Amendment

• Prohibits public sector employer from retaliating against prospective employee or current employee for protected speech

12MODULE 1Legal Prohibitions AgainstDiscrimination and Harassment


FEDERAL LAWProhibits discrimination and harassment in employment on the basis of “protected classes”

Key Federal Statutory Provisions

• Title VII of the Civil Rights Act of 1964 (Title VII)

• Americans with Disabilities Act (ADA)

• Age Discrimination in Employment Act of 1967 (ADEA)

• Equal Pay Act of 1963

• Title VI of the Civil Rights Act of 1964 (Title VI) – 42 U.S.C

Recipients of federal financial assistance cannot engage in discriminatory practices



CONNECTICUT LAW

Prohibits discrimination, in hiring, promotion, training or other terms and conditions of employment, and prohibits retaliation

Key State Statutory Provisions

• Embedded in Connecticut Fair Employment Practices Act (CEFPA)

C.G.S. §46a-60 et seq. and C.G.S. §46a-81a et seq.



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Purpose:

To maintain a healthy work environment and provide a protocol and procedures for reporting, investigating, and resolving complaints of harassment—sexual, physical, psychological or otherwise as prohibited by law

Policy Statement:

The Town enforces a “zero tolerance” policy regarding employees’ right to work in an environment free of any and all forms of harassment, sexual or otherwise

The Town of Rocky Hill Personnel Rules

Appendix D: Harassment in the Workplace



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Town Charter – Ch. 9 §904

• The Town shall not, except in the case of a bona fide occupational qualification or need, refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s [protected class status]

The Town of Rocky Hill - Town Charter



END OF MODULE 1

LEGAL PROHIBITIONS AGAINST DISCRIMINATION AND HARASSMENT

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MODULE 2:Sexual Harassment, Discriminatory Harassment and Hostile Work Environment

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Sexual Harassment

"Sexual Harassment" means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when:

1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,

2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

3) such conduct has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile or offensive working environment.

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Sexual Harassment

“Quid pro quo”

Occurs when acceptance of sexual advances, favors or conduct is made a term or condition of employment.

Example: When an employment benefit (promotion, raise, assignments, etc.) is contingent upon continuing an affair.

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“Hostile environment”

Occurs when workplace conduct creates an intimidating or offensive work environment, or an environment that unreasonably interferes with an individual’s work performance.

Courts set the bar very high –

A few instances of bad behavior will typically not meet the standard

2 TYPES


CRITICAL ELEMENTS OF SEXUAL HARASSMENT CASES

• Conduct must be “unwelcome”

• Conduct must be perceived to be offensive to• By the complainant• By the hypothetical “Reasonable Person”

• Respondent’s position of authority over Complainant

21Sexual Harassment


The respondent’s (harasser’s) intentions are not

relevant . . .analysis of the behavior focuses on 2 questions:

1. Did the complainant perceive the conduct as offensive?

2. Would a reasonable person perceive the conduct as offensive?

22Sexual Harassment


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Subordinates may not confront their harasser if their harasser has authority relative to assignments, compensation, promotions, working conditions, etc.

SuperiorsDirectors, Managers, Line Supervisors

Subordinates

Sexual Harassment


Colleagues (peers) who engage in offensive conduct create uncomfortable workplace environments that lead to hostile work environments

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Peer Peer

Sexual Harassment


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Members of the same protected class can be held liable for harassing each other

Sexual Harassment


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Third Party Complaints

A third party who is not the subject (target) of particular comments or behaviors, but who are subjected to listening to the comments or witnessing the behaviors, may file complaints

Sexual Harassment


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Verbal

Physical

Non Verbal

EXAMPLES OF CONDUCT/BEHAVIOR

Sexual Harassment


VERBAL BEHAVIOR

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• Cat-calls, whistles, grunts, suggestive noises

• Sexual jokes or language

• Sexual remarks about a person’s body, clothing

• Sexually-charged comments about a person’s personal life

• Repeated requests for dates or sexual favors

Sexual Harassment


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Non Verbal Behavior

• Ogling, leering, “checking out” a person, glancing in a sexually suggestive manner

• Lewd hand or body gestures

Sexual Harassment


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Non Verbal Behavior(sharing materials, publications, emails, etc.)

Circulating or sharing materials that reinforce negative stereotypes or mock or belittle individuals belonging to a particular protected class

E-mails Posting photos or video clips Distributing or posting cartoons,

comics or calendars

Sexual Harassment


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Physical Behavior

• Actual or attempted sexual assault• Physical assault-slapping, punching, pushing,

hitting• “Accidental” bumping or brushing up against• Horseplay or roughhousing• Pranks (pulling down someone’s shorts)• Unwanted touching, massaging, grabbing,

hugging, or stroking• Cutting off personal space by leaning over too

close or standing to close

Sexual Harassment


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Analyzing a case of sexual harassment . . . examples of key questions.

• To what extent was the conduct perceived seriously by the complainant?

• Did the complainant initially engage in the behavior himself/herself?

• Did the complainant ask the respondent (alleged harasser) to stop?

• To what extent would the conduct be perceived seriously by a reasonable person?

• To what extent was the conduct isolated or repeated?

• To what extent did the conduct impact or affect the conditions of the victim’s employment or educational experience?

• Did the accused have a position of authority over the accuser?

• Did the manager or supervisor of the parties (accuser and accused) witness the conduct?

• Was the manager or supervisor aware of the complainant’s concerns / complaints . . . How did the manager or supervisor respond to the complaint?

Sexual Harassment


Like sexual harassment, discriminatory harassment involves “unwelcome conduct.” The unwelcome conduct takes the form of verbal or non-verbal behavior directed at a person because of their protected class status.

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DISCRIMINATORY HARASSMENT (DEFINED)

Verbal or Non-Verbal Conduct • Racial slurs or epithets• Teasing or sarcasm• Exhibiting physical gestures that mimick or

mock individuals or groups of individuals because of their membership in a protected class

• Restating stereotypes

Discriminatory Harassment


Employers are liable for Discriminatory Harassment that creates a HOSTILE WORK ENVIRONMENT

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A Hostile Work Environment occurs when the effect of behavior / conduct is to create an intimidating or offensive work environment, or an environment that unreasonably interferes with an individual’s work performance.



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A few instances of bad behavior (harassment) will typically not meet the standard required by courts.

THE STANDARDWorkplace must be “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.”

Key Citation: Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)



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HOSTILE WORK ENVIRONMENT

Key Factors to Consider

• Was the conduct physically threatening, humiliating, or degrading?

• Was the conduct episodic, or continuous over a period of time?

• Did the conduct unreasonably interfere with the complainant’s work performance?

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“drop dead”

“retire early”

“take off all that makeup”

Hostile Work Environment


• Courts have accepted testimony and evidence of the following when evaluating hostile work environment allegations and the impact of bad behavior on plaintiffs . . .

• Tremendous Emotional Distress

• Depression

• Anxiety

• Weight Gain

• Hair Loss and Skin Ailments

37Hostile Work Environment


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Managers’ / Supervisors’ AccountabilityOrganizations (including municipalities) delegate to managers and supervisors the authority to exercise control (make certain decisions regarding assignments, performance, compensation, discipline, and policies that impact the workplace climate).

Federal law, state law and Town policies hold supervisors accountable for• Exercising authority to ensure departments/work units are free of

sexual/discriminatory harassment• Taking every complaint seriously and responding promptly to employees

who request help

Managerial Responsibility forWorkplace Climate


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Managers may be held individually liable if it is proven that the manager . . .

(1) Failed to take corrective action after learning of a subordinate's unlawful conduct

(example – failing to take complaints seriously)

(2) Created a policy or custom fostering the unlawful conduct (example - senior

managers in Hagan were accused of promoting cronyism and undermining

diversity policies”)

(3) Was grossly negligent in supervising subordinates who committed unlawful acts,

or

(4) Was deliberately indifferent to the rights of others by failing to act on information

regarding the unlawful conduct of subordinatesKey Citations: Hayut v. State Univ. of N.Y., 352 F.3d 733 (2d Cir. 2003); West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Hagan v. City of New York, 39 F. Supp. 3d 481, 514, 2014 U.S. Dist. LEXIS 113847, *72-73, 124 Fair Empl. Prac. Cas. (BNA) 198, 2014 WL 4058067 (S.D.N.Y. 2014

Managerial Responsibility forWorkplace Climate






COMPLAINTS AND INVESTIGATIONS

• All complaints of harassment must be taken seriously

• The EXISTENCE of a sound and consistently-applied complaint and investigation procedure is considered grounds for a valid legal defense

• Failure to follow the process or efforts to interfere with the process can be used as evidence of bad intent and/or discriminatory animus

40Managerial Responsibility forWorkplace Climate


Forms of complaints . . .

1. Formal written complaint (cannot require complainant to put complaint in writing)

2. Informal, verbal complaint

3. CHRO/EEOC Charges(CT Commission on Human Rights & Opportunities/Equal Employment Opportunities Commission)

“Off-the-record” complaints - Never promise to keep any complaint confidential



Standard of Review . . .

Decisions should be based on a review of the “totality of the circumstances” and should mirror the same standards of review used by federal and state (Connecticut) courts.

Why?

• If one party does not like the internal/administrative decision, and takes their case to an external (judicial) body, the same result is likely and liability for the Town is mitigated.

• Ensures that decisions will be based on valid, objective criteria instead of popularity contests, nepotism, bias, etc.



Summary of the investigation process

(based on EEOC guidelines – EEOC and CHRO are typically the first-line civil rights enforcement authorities for employment cases in CT)

1. Review complaint

2. Conduct interviews, review documentary evidence, disclose rights re: retaliation, union representation, etc. (for all involved, including Complainant, Respondent, Witnesses)

3. Summarize facts (may have to make credibility assessments)

4. Apply policies and standards of review (analysis based on totality of the circumstances)

5. Draft findings and recommendations (i.e., for the Town Manager’s review)

6. Report results to parties and move forward with remedial steps or disciplinary action (if any)



END OF MODULE 2

SEXUAL HARASSMENT, DISCRIMINATORY HARASSMENT, HOSTILE WORK ENVIRONMENT

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MODULE 3:Discrimination and Retaliation

Discrimination and Retaliation case typically arise in the context of managers’ decisions surrounding . . .

Hiring, Promotion, Termination and Disciplinary Decisions

Requests for Accommodations (Americans with Disabilities’ Act)

Family Medical Leave Act Requests

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LEARNING OBJECTIVES FOR MODULE 3

A. DEFINE DISCRIMINATION AND RETALIATION

B. UNDERSTAND THE PRIMARY CONTEXTS THAT GIVE RISE TO DISCRIMINATION AND RETALIATION CASES

C. REVIEW LEGAL REMEDIES & HYPOTHETICALS

46MODULE 3:Discrimination and Retaliation


MODULE 3:DISCRIMINATION & RETALIATION(Background Information)

ANY ANALYSIS OF DISCRIMINATION AND RETALIATION

INVOLVES TWO (2) KEY CONCEPTS

• ADVERSE EMPLOYMENT ACTIONS

• PROTECTED CLASSES

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Adverse Employment Actions

include decisions to not grant (or deny) the following . . .

• Selection or and promote;

• Salary, raises, leave, and other benefits;

• Training and professional development;

• Special projects or assignments

• Unequal pay/working out of class;

• Discipline;

• Performance appraisals;

• Termination; and,

• May include intangible conduct like ostracizing, marginalizing, assigning different or less-regarded titles, belittling, or other more subtle conduct

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Key Citations: Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754-56, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).




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REMINDER –PROTECTED CLASSES(under Connecticut Law)

AgeAncestryColorCriminal Record ( in state employment & licensing only)Gender Identity or ExpressionGenetic InformationLearning DisabilityMarital StatusMental DisabilityIntellectual DisabilityNational OriginPhysical Disability*Prior complainant or participant in complaint/investigationRaceReligious CreedSex, including pregnancy and sexual harassmentSexual Orientation

*Prohibition against retaliation C.G.S. §46a-60(4)



BASIC DEFINITION OF DISCRIMINATION

Generally speaking, discrimination occurs when an adverse employment action is taken (or when an adverse employment decision is made) that is based on a person’s membership in a protected class.

50MODULE 3:DISCRIMINATION & RETALIATION(Background Information)


Typical CasesRETALIATION

• Parties and witnesses in the following types of cases may assert that adverse employment actions derived from retaliatory motives.

• Discrimination, Sexual Harassment, Hostile Work Environment

• Whistleblowers, First Amendment/Freedom of Speech

• FMLA Retaliation• Etc.

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DISCRIMIATION• Age Discrimination Cases

• Gender Discrimination

• Race/Ethnicity Discrimination Cases

• Sexual Orientation Discrimination

• Failure to Hire (The Search and Hire Process)

• Failure to Make a Reasonable Accommodation (ADA)

• Disability / Perceived Disability

• Pregnancy Discrimination



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Race 33.70%Sex 30.50%National Origin 10.90%Religion 3.80%Color 2.70%Retaliation - All Statutes 38.10%Retaliation - Title VII only 31.40%Age 23.00%Disability 26.50%Equal Pay Act 1.10%GINA 0.30%

Total Number of EEOC Charges Filed in 2012 - 99,412



DISCRIMINATION (DEFINED) 53

2 METHODS OFPROVING DISCRIMINATION

DISPARATE IMPACT“unintentional discrimination”

DISPARATE TREATMENT“intentional discrimination”


DISPARATE IMPACT

Unintentional Discrimination

Title VII prohibits facially neutral practices that have a disparate impact on protected classes.

Disparate impact occurs when policies, practices, rules or other systems that appear to be neutral result in a disproportionate impact on a protected class of people.

54DISCRIMINATION (DEFINED)


Key Citations: Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645, 109 S. Ct. 2115, 2118, 104 L. Ed. 2d 733, 744, 1989 U.S. LEXIS 2794, *1, 57 U.S.L.W. 4583, 49 Fair Empl. Prac. Cas. (BNA) 1519, 50 Empl. Prac. Dec. (CCH) P39,021 (U.S. 1989); and Wright v. Stern, 450 F. Supp. 2d 335, 367 (S.D.N.Y. 2006)


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Typically occur where employers utilize strength/endurance tests or

education/testing standards without having sufficient proof that such tests

involve “bona fide occupational qualifications” (qualifications that are directly

relevant to job performance) and/or where such tests have not been validated

(i.e., through a testing service).

• FIND 2 NEW CASES -• Griggs v. Duke Power Co., 401 U.S. 424 (1971) (facially neutral policy of requiring high school diploma and

standardized intelligence test can created disparate impact on race)• Dothard v. Rawlinson, 433 U.S. 321 (1977) (facially neutral policy requiring corrections counselor to meet

minimum weight requirement created disparate impact on gender)

DISPARATE IMPACT CASES

DISCRIMINATION (DEFINED)


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Key Factors in Disparate Impact Cases

Policy or practice appear to be facially neutral

The policy’s impact is usually unintentional, therefore there is no need to prove that the employer had a subjective intent to discriminate




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Plaintiff’sBurden of Proof

1) Prove that there is a statistical disparity in the employer’s workforce; and

2) Isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities




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Defendant’s/Employer’sBurden of Proof

1) Prove that there are legitimate employment goals (evidence of a business justification) related to the policy or practice; and

2) Sufficiently address the issue of whether there are other alternative practices that would achieve the same business ends, with less of a disparate impact


In determining alternative, less disparate practices, factors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals


Analyzing Disparate Impact Cases(U.S. Supreme Court)

• Dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer.

• The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice.

• A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices.

Key Citations: Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645, 109 S. Ct. 2115, 2118, 104 L. Ed. 2d 733, 744, 1989 U.S. LEXIS 2794, *1, 57 U.S.L.W. 4583, 49 Fair Empl. Prac. Cas. (BNA) 1519, 50 Empl. Prac. Dec. (CCH) P39,021 (U.S. 1989)

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DISPARATE TREATMENTIntentional Discrimination

Intentional conduct by an employer in which one employee, who is a member of a protected class, is treated less favorably (in terms of adverse employment actions/decisions) than another employee, who is not in the protected class.



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Key Factors in Disparate Treatment Cases

Both Federal Law (i.e., Title VII) and State Law (i.e., CT Fair Employment Practices Act (CEFPA)) prohibit disparate treatment make it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's membership in a protected class.



The framework for analyzing disparate treatment cases is described as a “Burden-Shifting Analysis” and is described in key U.S. Supreme Court decisions, including . . . .

McDonnell Douglas Corp. v Green (1973) 411 US 792, 36 L Ed 2d 668, 93 S Ct 1817.

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Analyzing Disparate Treatment Cases

(U.S. Supreme Court)

DISCRIMINATION (Analyzing Liability)


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1.He is a member of a protected class

2.He was otherwise qualified for the position in question.

3. He was subjected to an adverse employment action.

Employer must establish a defense by proving, for instance, that there is a legitimate, non-discriminatory rationale for the adverse employment action or decision.

Plaintiff is given an opportunity to show that employer’s rationale is “unworthy of credence” (or pretextual).

First, plaintiff must first prove these elements of a case (prima facie case).

Second, employer has the burden of establishing a defense.

The “Burden-Shifting Analysis” In A Nut ShellNote: This is an overview, not an all-inclusive description of the analysisof a discrimination case.


Third, plaintiff may use circumstantial evidence to rebut employer’s explanation.

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Direct Evidence vs. Circumstantial Evidence

As to direct evidence, Courts have long-recognized that, at least in modern times,few people are bold (or unwise) enough to tell an employee I am taking thisemployment action against you, or making an adverse decision about you,because of your gender, religion, race, disability, age, etc.

Therefore, courts look to circumstantial evidence, and allow triers of fact (judges and juries) to infer that a decision was motivated by discriminatory animus.

“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” See, e.g., Wright v. West, 505 U.S. 277, 296, 120 L. Ed. 2d 225, 112 S. Ct. 2482.



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Types of circumstantial evidence described in court cases . . .

• Uneven enforcement of discipline and other employment decisions across an organization

• Statements by decision-makers that reflect animosity toward the plaintiff’s protected class

• Procedural irregularities and deviations from standard selection procedures

• Statements that reflect disdain for EEO laws, diversity policies or practices – especially if paired with proof of practices that undermine diversity policies, equal employment opportunity or civil rights laws

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Key Cite: Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147, 120 S. Ct. 2097, 2108, 147 L. Ed. 2d 105, 119, 2000 U.S. LEXIS 3966, *27, 68 U.S.L.W. 4480. (U.S. 2000).



RETALIATION (DEFINED)

• Employers are prohibited from discriminating against an employee on account of their opposition to any discriminatory employment practices or because such person has filed a complaint before the commission. Conn. Gen. Stat. § 46a-60(a)(4). The Act is coextensive with Title VII of the federal Civil Rights Act of 1964, and Connecticut courts therefore look to federal case law for guidance in interpreting the provisions of the Act.

Ayantola v. Bd. of Trs. of Tech. Colleges, 116 Conn. App. 531, 532, 976 A.2d 784, 786, 2009 Conn. App. LEXIS 362, *1, 107 Fair Empl. Prac. Cas. (BNA) 471, 22 Am. Disabilities Cas. (BNA) 693 (Conn. App. Ct. 2009)

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67RETALIATION (DEFINED)

A plaintiff must prove four elements:

(1) that he participated in a protected activity;(2) that the defendant knew of the protected activity,(3) an adverse employment action against him, and(4) a causal connection between the protected activity

and the adverse employment action



• A causal connection in a retaliation case can be established indirectly by showing that the protected activity was followed close in time by adverse action, but the inquiry into whether temporal proximity establishes causation is factual in nature.


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MODULE 1 AND 2:REMEDIES & HYPOTHETICALS

REMEDIES

• GENERALLY – BACKPAY, EMOTIONAL DISTRESS, ETC.

• SEXUAL HARASSMENT CASES

• HOSTILE WORK ENVIRONMENT CASES

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Remedies for Title VII Violations• Injunctive relief;

• Reinstatement;

• Back pay with interest;

• Front pay;

• Attorney’s fees;

• Compensatory damages; and,

• Punitive damages.


HYPOTHETICALS – Please See Handouts

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DISPARATE TREATMENT UNDER THE ADA

“The Failure to Accommodate”


ADA“Reasonable” Accommodation

• Accommodation must be “reasonable,” which means that it cannot cause the employer an “undue hardship”

• An “undue hardship” exists when it would result in significant difficulty or expense, judged by the resources available to employer and the operation of the employer’s business

• Example• Dexler v. Tisch, 660 F. Supp. 1418 (D.Conn. 1987) (where applicant was

applying for a USPS distribution clerk job, use of step stool by applicant who had a genetic and medical condition that caused very short stature not “reasonable” because it would cause safety problems and loss of efficiency).

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ADA“Reasonable” Accommodation (cont’d)

• Examples of “reasonable” accommodations:• Modification of civil service examination• Purchasing or modifying equipment• Making changes to the workplace• Job restructuring of minor tasks• Working from home• Modifying work hours• Providing additional breaks in the work day

• The following are not “reasonable” under the ADA• Providing an accommodation such as a wheelchair• Removal or alteration of a job’s essential functions• Lowering production or performance standards• Excusing violations of the rules of conduct that are necessary for effective

operation of the business

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ADADrugs & Alcohol

• The ADA does not protect a person who is currently abusing illegal drugs.

• Subject to constitutional limitations, you are permitted to do pre-employment drug screening and refuse to hire someone if he/she is found to be using (ensure that job posting references this step in the process and EVERYONE must be treated the same way . . .)

• The ADA does consider alcoholism and drug addition to be disabilities, however, you are allowed to hold an alcoholic to the same performance and conduct standards as all other employees.

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Under the ADA, it is illegal to:

• Ask questions about a person’s disability

• Caveat: If an applicant has an obvious disability, for example, he is blind, you may ask if reasonable accommodations will be necessary for such tasks as reading a computer screen

• Ask how the applicant became disabled

• Ask if the applicant has HIV or AIDS

• Ask about medications

• Ask about workers’ compensation history

• Ask about mental health problems

• Use a medical examination as a hiring decision until after a conditional job offer has been made

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Once a conditional employment offer is made,the ADA permits you to:

• Ask a disabled applicant about his/her disability and require him/her to undergo a medical examination, but only if you would do this for every applicant in the same job category

• Withdraw the conditional offer of employment, but only if it becomes obvious that the applicant cannot perform the essential functions of the job or if he/she poses a DIRECT THREAT

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“Direct Threat”

• You may reject a job applicant if the applicant poses a “direct threat,” or significant risk of substantial harm to self or others

• In assessing whether the person is a “direct threat,” you should consider:• The applicant’s present ability to safely perform the essential functions of the job• The duration of the risk, as well as the nature and severity of the potential harm• Whether the threat is serious and likely to occur• Whether there is a reasonable accommodation that could eliminate the risk

• In determining whether a person poses a “direct threat” you should not make generalizations or act on unfounded fear

• Ensure that you consult with Human Resources in such cases

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Remember : SENIOR LEADERS and MANAGERSHave Additional Responsibilities

• Supervisors must ensure that the workplace is free of sexual harassment

• Take every complaint seriously

• Prompt responses to complaints may provide a defense to formal claims of discrimination

• *Avoid engaging in unwelcome behavior towards subordinates

• ”consensual” sexual relationships with subordinates – due to the power differential, such relationships are not necessarily considered “consensual” by triers of fact

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How To Avoid Litigation: Be AwareThe Obvious . . .

• Alcohol at Office Functions

• Internet

• Magazines

• Discussing Politics, Religion, or Sex

• “After Hours” – NO

• Office Affairs/Fraternization

• Articulating a Disrespect for the Civil Rights Laws

• Holiday Parties and Celebrations

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REMEMBER…

• Retaliation - It is illegal to retaliate against an employee after he or she has complained or expressed concerns about sexual or discriminatory harassment, or participated in an investigation of harassment.

• This protection extends to complaints beyond harassment, such as complaints about safety issues, fraud, theft, ethics violations, etc.).

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RIGHTS OF THE ACCUSED

• Standard of Review• Totality of the Circumstances / Preponderance of the Evidence

• Loudermill Rights• Prior to discipline or termination, employees must have an

opportunity to fully respond to the complaint/accusations). Discipline does not include verbal counseling, letters of direction –see union contracts for definitions of discipline)

• Slander / Libel

• False Complaints (Must Be Knowingly False = Lack of Good Faith)

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Prevention / Legal Risk Mitigation

• Administer an objective search process (redaction of names and personal/identifying information; maintain documentation of objective evaluation method used in each search)

• Document consistent enforcement and application of discipline, performance evaluations, etc.

• Follow union contracts

• Provide training

• Conduct fair internal reviews of employee/supervisor complaints using investigation methods accepted by outside enforcement bodies (i.e., CHRO, DOL, Dept. of Justice, CT/Federal Courts, etc.)

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How does Human Resources assist you in preventing, and/or mitigating against the legal risk posed by the bad conduct described in this presentation?


preventative training for managers/supervisors · harassment—sexual, physical, psychological or...

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