gla ala 2015 employment law forum back to the...gla ala 2015 employment law forum january 31, 2015...
TRANSCRIPT
Looking Back . . .
To The Future: An
Employment
Discrimination Law
Retrospective and
Forecast
GLA ALA 2015
Employment Law
Forum
January 31, 2015
Presented by
Glen E. Kraemer
Hirschfeld Kraemer LLP
233 Wilshire Blvd., Ste. 600
Santa Monica, CA 90401
T: (310) 255-1800
Admit it – this thought has crossed your
mind more than once…a day
“Now which one of you is the attorney?”
WHY ARE YOU HERE? –
TOP FIVE REASONS
1. HEARING STORIES ABOUT THE MISFORTUNES OF OTHER
EMPLOYERS MAKES YOU FEEL BETTER ABOUT YOURSELF
2. COMING TO THE ANNUAL GLA ALA EMPLOYMENT LAW FORUM
IS LIKE ATTENDING FASHION WEEK IN NYC (…everyone looks
so amazing!)
3. YOU NEED TO LEARN TO BE MORE ASSERTIVE ON THE JOB
AND MISUNDERSTOOD OUR COVERAGE OF THE NEW
BULLYING TRAINING REQUIREMENT AS A “HOW-TO”
PROGRAM…
4. IT IS THE ONE DAY ALL YEAR THAT YOU CAN BE NAUGHTY
AND TALK ABOUT SEX WITHOUT GETTING INTO TROUBLE
5. YOU WANT TO OBTAIN PRACTICAL KNOWLEDGE THAT CAN
DIMINISH EXPOSURE WHILE ENHANCING QUALITY AND
PRODUCTIVITY
AGENDA THEMES
• HOW FAR WE HAVE! (HAVE WE?) COME? A HISTORICAL PERSPECTIVE
ON FEDERAL ANTI-DISCRIMINATION LAW, POLICY AND ENFORCEMENT
• THINK YOU’VE SEEN IT ALL IN CALIFORNIA? AND RELIEVED THAT YOU
ARE, OF COURSE, NON-UNION? THE EEOC AND NLRB ARE MORE THAN
FOUR LETTER WORDS…
• THE “NOTORIOUS RBG” AND THE SUPREMES: WHAT “THE NINE,” AND
THE CALIFORNIA APPELLATE COURTS, HAVE BEEN UP TO…
• ENSURING AN UNDERSTANDING OF THE NEW PAID SICK LEAVE LAW
• A PARTICULARLY IMPORTANT ISSUE FOR LAW FIRMS: UNDERSTANDING
THE NEW REQUIREMENTS TO PREVENT HARASSMENT AND BULLYING
IN THE WORKPLACE
IT REALLY ISN’T THAT LONG AGO…(a
Title VII retrospective)
50 Years of EEO Law – History Lesson #1
• This year marked the 50 year anniversary of Title VII of the 1964 Civil
Rights Act, which was signed into law on July 2, 2014.
• In 1964, Ollie’s Barbecue only served white patrons in the restaurant.
It challenged whether the Civil Rights Act was constitutional, claiming
restaurants were not involved in interstate commerce.
• The Supreme Court took review of the case immediately and decided
unanimously in Katzenbach v. McClung that the law was
constitutional. It found that the restaurant engaged in interstate
commerce by purchasing supplies from out of state. But the Court
went even further as it found that there was a “conclusive
presumption” that interstate commerce was directly or indirectly
affected when public establishments discriminated based on
race. The courts later applied that same ruling to Title VII, finding that
Congress had the power to prohibit discrimination in employment.
DON’T VOLUNTEER!
The EEOC and NLRB are looking for new
recruits among employers (to serve as
defendants/respondents)
LABOR RELATIONS = EMPLOYEE RELATIONS: THE
NEW FRONTIER FOR THE “NON-UNION” H.R.
PROFESSIONAL
• Employer email: the Purple
Communications decision
• Joint-Employer Status issues: the
McDonald’s complaints and Browning-
Ferris Industries of California
• “Ambush” elections and other Guerilla
Tactics
NLRB Urges Employers Not to Be So
Positive?
Hills and Dales General Hospital and Danielle Corlis,
Case No. 07–CA–053556
• Employer hospital instituted a set of conduct rules that included
these three provisions:
• employees will not make “negative comments about fellow team
members” (“team members” included coworkers and managers);
• employees “will not engage in or listen to negativity or gossip”; and
• employees will “represent [the employer] in the community in a
positive and professional manner in every opportunity.”
• NLRB struck down all three
NLRB Urges Employers Not to Be
So Positive?
Hills and Dales General Hospital (Con’t)
• First two related to negativity, not surprising, but employers can’t tell
employees to behave positively???
• Decision focused on a few factors: the use of the phrase “in the community”
led the NLRB to conclude that the rule could be reasonably construed as
applying to non-work settings. In addition, the NLRB found a difference
between “positive and professional” behavior (found unlawful here) and
“positive and ethical” behavior (language held by the NLRB to be lawful in
another decision).
• AVOID CHILLING EFFECT: Review policies to make sure that the
aforementioned language deemed to be overbroad and overreaching is
absent from your communications.
NLRB – Employers Must Watch How
They Limit Communications
Register Guard, 357 NLRB No. 27
• Employer who punished union president for sending two-non-
business emails to union members through the employer’s email
system violated NLRA because it did not punish other employees for
sending non-business emails.
Triple Play Sports Bar, Case No. 34-CA-012926
• Employer who interrogated, threatened and discharged an
employee who clicked the “like” button on a colleague’s Facebook
post that contained complaints about employer’s compensation
policies violated the NLRA. Clicking “like” was deemed
“sufficiently meaningful” participation!
More examples of why Title VII
was a tidal change…
50 Years of EEO Law - History Lesson #2
In 1972, the Law Expands and the EEOC Enters
Litigation as a Party
Title VII of the Civil Rights Act of 1964 broke new ground but there was
an immediate need to expand its scope and authority. Congress passed
the Equal Employment Opportunity Act of 1972, which amended the law
in several key ways.
• The amendment gave the EEOC the power to litigate cases as a party
(except against government entities). The EEOC could enforce the law
directly by stepping into the shoes of the aggrieved party and bring the
weight of the federal government into the dispute as the plaintiff.
• As a consequence of this change, the EEOC started to bring lawsuits
against high profile employers and when discriminatory pattern and
practices were identified.
Half-Way Through the EEOC’S 4 YEAR
Strategic Enforcement Plan (SEP)
1. Protecting immigrant, migrant and other vulnerable workers
2. Enforcing equal pay laws
3. Addressing emerging and developing issues, including ADA
accommodation and undue hardship issues and coverage of
LGBT individuals under sex discrimination provisions
4. Eliminating barriers in recruitment and hiring, including focus on
exclusionary policies, restrictive application processes, screening
tools
5. Preserving access to the legal system – targeting policies that
impede EEOC’s investigation or enforcement efforts
6. Preventing Harassment Through Systemic Enforcement and
Targeted Outreach
EEOC Enforcement: What Can We Glean
from the Stats, Case Law and Charges Filed
In FY 2014 Performance and Accountability Report (Nov. 2014), EEOC
reported:
133 Merits lawsuits (17 systemic) [cf. w/131 in ‘13, 261 in ‘12)
228 Cases on docket (57 re systemic discrimination)
Focusing resources on systemic, not on individual, smaller cases even
if meritorious
Systemic discrimination cases address bias that has “a broad
impact on a region, industry or entire class of employees or job
applicants.”
Systemic cases bring attention and public awareness, driving
positive change on industry-wide levels.
Two Additional EEOC-Related Trends
1. Pushing the existing boundaries of substantive
protections – scope of law
a. Discrimination against transgender employees
b. Provide accommodations to pregnant employees
c. Review of wellness programs, expansion of
accommodations
2. Overcoming Procedural Roadblocks – enforcement
issues
a. Challenges to the EEOC’s pre-suit obligations and
methods
b. Mach Mining, LLC v. EEOC
Extending Title VII Protection to
Transgender Employees
• In September, EEOC filed first-ever lawsuits over alleged sex
discrimination against transgender individuals
Two separate suits claiming employers terminated workers for
not conforming to “gender-based expectations”
• Three years ago, in the Macy case, EEOC found that discrimination
against transgender individuals constitutes sex discrimination
And recently, Obama issued exec order making it illegal for
federal contractors to discriminate on basis of sexual orientation
or gender identity
End-run around ENDA failure…
• But the “Notorious RBG” is worried: where does U.S. Supreme Court’s
recent decision in Burwell v. Hobby Lobby enter into these situations?
Will it open the door for private for-profit corporations to opt out of
fed law on basis of religious freedom?
EEOC and Pregnancy Discrimination
• On July 14, 2014, EEOC issued guidance on the interpretation and
application of the Pregnancy Discrimination Act
Controversial – supported by only three of the five commissioners, b/c
issued without public comment period, and before Supreme Court
decision in Young v. UPS
Young case goes to central issue of what PDA requires
AND = those two dissenters troubled by pregnant worker being entitled
to accommodation under the ADA (“no federal Court of Appeals has
adopted this position.”)
• Guidance states that all employers must provide accommodations to
pregnant employees including those with no medical issues,
experiencing normal, healthy pregnancies
Compare – ADA coverage is for individuals with substantially limiting
(materially restricting) physical (or mental) impairment
Key Takeaways From the Pregnancy
Discrimination Act Guidance
• EEOC will question whether employer was aware of pregnancy even if
employee did not directly inform (office gossip, etc.)
• Prohibits discrimination on the basis of past pregnancy, current pregnancy
and intended pregnancy
• If there is evidence of pregnancy-related animus motivating employers
denial of light duty, not necessary for plaintiff to show another employee
was treated more favorably – but can offer light duty on same terms
• Cannot engage in alleged “benevolent” acts based on pregnancy – i.e.,
many not compel employee to take leave even if believed to be acting in
employee’s best interest
• Reminder re disparate impact – i.e., a facially neutral policy that has a
disproportionate adverse effect on women affected by pregnancy and
related medical conditions
E.g., weight lifting requirements, light duty limitations, restrictive leave
policies
EEOC and Wellness Programs
EEOC has shown a willingness to sue employers over their wellness
plans
• EEOC v. Orion Energy Systems Inc., case number 1:14-cv-01019 (filed
August 20, 2014)
• Employer’s wellness program required employees to, among other things,
disclose their medical history, submit to blood tests and do certain exercises on
a range-of-motion machine in the company’s fitness room.
• Employee was forced to pick up the full amount of her employee health care
premiums, and later fired, after she objected to medical exams and disability-
related questions as part of employer’s wellness program.
• EEOC is arguing those consequences meant the program was no longer
voluntary as required by the Americans With Disabilities Act
EEOC and Wellness Programs
• Equal Employment Opportunity Commission v. Flambeau Inc., case
number 3:14-cv-00638 (Oct. 1, 2014)
• EEOC claims employer canceled employee's medical insurance and shifted the
entire premium cost to him, after employee failed to complete a “voluntary”
health assessment and testing required under a company wellness plan.
• Employee couldn't complete the tests as scheduled by employer because he
was on leave and being treated for cardiomyopathy and congestive heart failure,
according to the suit, filed in Wisconsin federal court.
Take away – Make Sure Your Wellness Programs Are Voluntary in
Policy AND Practice!!!
EEOC – Telecommuting as
Reasonable Accommodation?
EEOC v. Ford Motor Company, 2014 U.S. App. LEXIS 7502 (6th Cir. April 22,
2014):
• EEOC brought discrimination and retaliation claims on behalf of disabled
employee who had requested permission to telework 4 days a week as an
accommodation, but was denied and subsequently terminated
• District Court deferred to Ford’s “business judgment” that teleworking was
not reasonable because the position required in-person interaction.
• On April 22, 2014, Sixth Circuit reversed trial court’s ruling:
“As technology has advanced in the intervening decades . . . and an
ever-greater number of employers and employers utilize remote work
arrangements, attendance at the workplace can no longer be
assumed to mean attendance at the employer’s physical location.”
AND…the EEOC is also Pushing
Procedural Parameters
• EEOC’s pre-litigation tactics are being questioned and attacked
• Biggest Example: Mach Mining v. EEOC
What are the pre-suit obligations of the EEOC?
Must it engage in a good faith conciliation process prior to
filing a civil suit?
- Seventh Circuit, in split with other appellate courts, did not
find anything under Title VII authorizing an affirmative
defense for “failure to conciliate” – ruled that “conciliation
was an informal process entrusted solely to the EEOC’s
expert judgment…”
• U.S. Supreme Court will resolve
And One More Area of Concern – EEOC’s
Focus on Severance Agreements
EEOC v. CVS Pharmacy, Inc., – Questionable Provisions
• A cooperation clause requiring the employee to “promptly notify the Company’s General Counsel by telephone
and in writing” of contacts relating to legal proceedings including an “administrative investigation” by “any
investigator, attorney or any other third party....” (Emphasis in lawsuit but not Agreement).
• A non-disparagement clause prohibiting the employee from making any disparaging statements about the
Company and its officers, directors and employees.
• A non-disclosure of confidential information provision prohibiting disclosure to any third party of confidential
employee and other information without prior written permission of the Company’s chief human resources officer.
• A general release of claims that included a release of all “causes of action, lawsuits, proceedings,
complaints, charges, debts contracts, judgments, damages, claims, and attorney fees,” including “any claim of
unlawful discrimination of any kind....” (Emphasis in lawsuit but not Agreement).
• A no pending actions; covenant not to sue clause where the employee represents the employee has no
pending “complaint, claim, action or lawsuit” of any kind “in any deferral, state, or local court, or agency”. The
clause prohibits filing of “any action, lawsuit, complaint or proceeding” asserting the released claims, and requires
the employee to promptly reimburse “any legal fees that the Company incurs” for breach of the covenant
• A breach by employee clause, stating that in the event of the employee’s material breach of the Employee
Covenants section of the agreement, the Company could obtain injunctive and other relief, including attorney fees.
EEOC and its Attack on Severance
Agreements
Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., Case No. 14-
cv-863 (N.D. Ill., February 7, 2014) (con’t)
• EEOC alleges in the lawsuit that the above-identified restrictions are limited only by a
“single qualifying sentence” in the covenant not to sue and “not repeated anywhere
else in the Agreement.” However, that sentence clearly stated that nothing in the
covenant not to sue was “intended to or shall interfere with Employee’s right to
participate in a proceeding with …agency…”
• Despite that provision, the EEOC claims that the terms of the Company’s
standard Agreement, which was given to over 650 employees, constituted a
pattern and practice of denying employees full exercise of their Title VII rights,
including limiting their rights to file charges and cooperate with the EEOC and
FEPAs in investigating charges of discrimination.
Practical Considerations in response to
EEOC v. CVS Pharmacy
• Employers should take note of the EEOC’s new position
toward release agreements, review their standard
separation agreements.
Review every separation agreement form to consider whether to
strengthen existing provisions preserving the employee’s right to
file administrative charges and participate in agency
investigations.
Consider setting off a statement of the protected rights in a
separate paragraph of a separation agreement, perhaps in bold.
Consider the length and complexity of your separation
agreements. Employers need to draft separation agreements that
employees can understand.
And Just In Case It Wasn’t Clear…
50 Years of EEO Law – History Lesson #3
The Americans With Disabilities Act Becomes Law In 1990
• The Americans with Disabilities Act was born from a grass roots
movement. On Monday, March 12, 1990, disability activists descended on
the U.S. Capitol Building, rallying for equal rights for Americans with
disabilities.
• The rally ended with a remarkable show of strength and determination by
over 60 activists who shed their wheelchairs, crutches and other supports,
and began to work their way up the nearly 100 steep, stone steps of the
capitol building. The rally became known as the Capitol Crawl.
• President George H. W. Bush signed the law on July 26, 1990.
• The ADA, originally expected to cover between 36 and 43 million individuals
with disabilities, has since been expanded – very controversially – far
beyond that originally envisioned by the drafters and legislators.
50 Years of EEO Law - History Lesson #4
The FMLA Becomes Law In 1993
• Before the Family and Medical Leave Act became law in 1993, if an
employer declined to allow the employee to take medical leave, employees
were forced to choose between keeping their job and caring for themselves
or their family.
• Each year from 1984 to 1993, the FMLA was introduced in Congress, only to
be blocked. During President Clinton’s first term, however, he made the
FMLA one of his first priorities. In 1993, with bipartisan support, President
Clinton signed the FMLA into law.
• Twenty years since its enactment, research shows that FMLA leave has
been used nearly 100 million times. It is likely that most employees will
exercise FMLA leave at some point in their career. Various states have
enacted their own family leave acts that are more expansive than the FMLA.
Important EEO-Related Cases and
Statutes 2014 - 2015
Paid Sick Leave Is Now The Law In CA
The Healthy Workplaces,
Healthy Families Act
(aka Pretend You Are Sick And Get Paid For It Act)
Paid Sick Leave In California
What Employees Qualify?
Any employee who: (1) has worked in California
for 30 or more days in a year; and (2) has
completed 90 days of employment with that
employer. There are special rules for
employers under a CBA.
Paid Sick Leave In California
What Employers Qualify?
All employers in California are covered by the
Act. That includes employers with one
employee and not-for-profit employers
Paid Sick Leave In California
How Much Paid Sick Leave Will
Employers Be Required To Provide?
• Accrue 1 hr. of paid sick leave for every 30
hours worked.
• Exempt employees work 40 hrs/week
Paid Sick Leave In California
Do Employees Accrue Sick Leave?
Yes. Any unused but accrued paid sick leave
must carry over to the following year, but an
employer can cap an employee’s accrual at 48
hours or 6 days of paid sick leave.
Paid Sick Leave In California
How Much Paid Sick Leave Will
Employees Be Allowed To Use?
Employers can have a paid sick leave or PTO
policy which provides no less than 24 hours or 3
days of paid sick leave for each year of
employment or for every 12 months. Employers
can require employees to use paid sick leave in
two hour increments.
Paid Sick Leave In California
What Can Paid Sick Leave Be Used For?
• An employee’s own illness
• Care of an immediate family member, a
spouse or domestic partner, a sibling, a
grandparent or a grandchild.
Paid Sick Leave In California
Who Determines If Sick Leave Is
Appropriate?
Employees may determine how much paid sick
leave they need to use. But, they are required
to provide reasonable advance notice if the
need is foreseeable.
Paid Sick Leave In California
What Is The Rate Of Pay For Paid Sick
Leave?
Employees must be paid at their regular, hourly
rate of pay. Sick leave is not paid out at
termination.
Paid Sick Leave In California
What Are The Recordkeeping
Requirements?
• Display an 8.5 x 11” poster (use the DLSE
form)
• Written notice of accrual of paid sick leave
on paystub
Paid Sick Leave In California
How Are Retaliation Claims Treated?
Aggressively. There is a presumption of
retaliation if an adverse action is taken within 30
days of an employee’s election to take leave.
That means you have to prove you did not
retaliate.
“Honest Belief” Defense…Still Uncertain
(Richey v. Autonation, Cal S. Ct. 1/29/15)
• App. Ct. had held “honest belief” of employer concerning
abuse of medical leave not enough for CFRA defense
- Vacated arbitration award in favor of Plaintiff
• Richey v. AutoNation, Inc. – California Supreme Court
publishes decision on 1/29/15, avoids ruling on whether
“honest belief” defense to state-law discrimination claims
• Cal. Supreme Ct. found even if arbitrator’s decision was
wrong, not sufficient basis to overturn arbitrator’s award
Still uncertain as to whether an employer’s “honest but mistaken” belief about employee misconduct can be defense to CFRA/FEHA claims
What IS certain is that arbitrator’s decisions will rarely be overturned – so confirm your arb agreements don’t allow for greater judicial review
Salas v. Sierra Chemical Co., 59 Cal. 4th 407
(2014): After-Acquired Evidence Defense
Salas v. Sierra Chemical Co., 59 Cal. 4th 407 (2014)
• At time of hire, Vicente Salas provided a false Social Security number and a
resident alien card and falsified the federal Immigration and Naturalization
Form I-9 and IRS Form W-4 with the same information. The Company did
not know of these falsifications.
• Following lay off, he sued for disability discrimination, claiming termination
was pretextual, and actually related to medical condition.
• Discovery revealed he was not authorized to work in the United States and
had repeatedly provided false documentation
• The trial court granted Sierra’s msj on basis of after-acquired evidence and
unclean hands, and the Court of Appeal affirmed.
Salas v. Sierra Chemical Co.,
59 Cal. 4th 407 (2014) (continued)
California Supreme Court reversed:
• Addressing the doctrine of after-acquired evidence, the Court ruled the
after-acquired evidence doctrine did not bar liability for the employee’s
claim, but limited an employee’s damages, precluding back pay for the
period after the employer’s discovery of the employee’s misconduct,
and reinstatement or promotion. However, the Court permitted the recovery
of back pay for the period from the termination through the date on which the
employer discovered the employee’s misconduct.
• Likewise, the Court rejected the argument that the doctrine of unclean hands
served as a complete bar to liability in FEHA actions. Rather, the Court
stated that “equitable considerations” should guide trial courts in fashioning
relief.
Harassment – Franchisor Not Liable for Franchisee’s Actions
Patterson v. Domino’s Pizza, LLC, 2014 WL 4236175
(Cal. S. Ct. 2014)
• Franchisee’s employee alleged she was harassed by her supervisor, sued Domino’s
as her employer.
• Domino’s msj disclaimed “any relationship with [Franchisee’s] employees” and
assumed “no rights, duties, or responsibilities” as to their employment. Summary
judgment granted, but Ct. of Appeal rev’d
• Cal Supreme Ct. held in favor of Domino’s: Domino’s did not exercise the “control”
necessary to find an agency relationship, and was not an “employer” of plaintiff
imposition and enforcement of a uniform marketing and operational plan
cannot automatically saddle the franchisor with responsibility for employees of
the franchisee who injure each other on the job.
Cf. with NLRB’s position in the McDonald’s and Browning-Ferris cases!
EEOC v. Abercrombie & Fitch Stores, Inc.
(currently pending w/Supreme Court)
• EEOC sued Abercrombie for religious discrimination after it refused to hire
an applicant because she wore a headscarf that violated the employer’s
“Looks Policy.” Abercrombie argued that the applicant did not inform it that
she wore her headscarf for religious reasons and would need an
accommodation for it.
Tenth Circuit found in favor of Abercrombie, holding that in order to
establish a Title VII religion-accommodation theory, plaintiffs must
establish that they initially informed the employer that they engage in a
particular practice for religious reasons and they need an
accommodation.
• On October 2, 2014, the Supreme Court said it would hear the case. A
ruling is expected by the end of June 2015.
• Not the first time Abercrombie has been in trouble over alleged
discrimination. In 2013, a judge ruled that it had discriminated against an
employee after it fired her b/c hijab did not conform to the allowed fashion
detailed in its “look book.”
Disability Discrimination – ADHD Not a Protected Disability
Weaving v. City of Hillsboro, 2014 WL 3973411 (9th Cir. 2014)
• Employee terminated due to “severe interpersonal problems” between him
and other employees of the police department. Weaving contended that his
interpersonal problems resulted from his attention deficit hyperactivity
disorder (“ADHD”) and that his termination violated the ADA.
• After the case went to a jury, which found in employee’s favor, the City filed
a motion for judgment as a matter of law based on insufficient evidence to
support the verdict.
• The district court denied the City’s motion, but the United States Court of
Appeals for the Ninth Circuit reversed, holding that a jury could not
reasonably have concluded that Weaving’s ADHD substantially limited his
ability to work or interact with others and, therefore, he was not disabled
within the meaning of the ADA.
Further Employer Empowerment: Kao v. University
of San Francisco (Cal. Ct. App. 9/2/14) and Curley v. City
of North Las Vegas (No. 12-16228 9th Cir., 2014)
Kao: Professor’s troubling behavior included expressions of rage and
confrontational, threatening behavior
• Post-investigation, expert recommendation was to require FFD
• Kao refused, placed on leave and eventually terminated; sued for disability
discrimination
Court held:
(1) No interactive process needed as FFD not an “accommodation”;
(2) and unless a disability is obvious, it is the employee’s obligation to
initiate the interactive process;
(3) FFD was job-related and consistent with business necessity
Curley: Hearing impaired plaintiff argued City’s reasons for firing him were
pretextual, pointed to favorable fitness-for-duty evaluation to return to work
• 9th Cir. upheld summary judgment, citing (1) City claimed it fired Curley b/c
of past threats, not danger of future violence, and (2) Curley failed to rebut
Interns: Unpaid But Not Unprotected
A.B. 1443
• Extends California anti-discrimination and anti-harassment
protections to unpaid interns.
• Employers prohibited from discrimination based on protected
characteristics in the “selection, termination, training or other terms”
of unpaid interns.
• Employers liable for sexual harassment of unpaid interns by
non-employees if an employer knew or should have known of
the conduct and failed to take action.
And…speaking of supervisors and the
associated liabilities…
And Steve realized his trusty list of “What Not to Wear to Court” was incomplete after all
50 Years of EEO Law – Our Fifth and Final
History Lesson
Individuals Cannot Be Liable For Title VII Violations
• Title VII is defined to include “agents” of an employer as an employer itself,
and it was that statutory ambiguity which led individual managers to believe
that they were potentially liable for discrimination or harassment under the
law. But in the 1990’s, nearly every court to consider the issue found that
Title VII did not create individual liability.
• State courts interpreting state laws generally reached the same holdings. In
California, for example, the courts found that individual employees – whether
managers or otherwise – are not liable for discrimination or retaliation under
its discrimination law.
• Of course, under CA law, individuals can be found liable for
harassment. Courts in New Jersey and Massachusetts have also opened
the door to individual liability for harassment claims.
And Now…Our Final Topic…
“What do you mean ‘professional courtesy’? He was just an associate.”
A Practical Exercise of Legislative Power: Expanding
Our Understanding of “Hostile Environment”
A.B. 2053
• Amends Section 12950.1 of the Government Code related to mandatory sexual
harassment training in California to include training on “abusive conduct”
• California employers with 50 or more employees must train supervisors on “abusive
conduct” in workplace as part of their two-hour mandatory sexual harassment training
• Applies to all employers that conduct business in California that have 50 or more
employees or contractors working each day in any 20 consecutive weeks in the
current calendar year or preceding calendar year. The employees/contractors are not
required to work at the same location, nor are they all required to work or reside in
California
• New supervisors must be trained within six months of being promoted or hired into a
supervisory position and, thereafter, every two years
• Effective now, and applies to Dec. 31, 2015, training deadline
Why “Practical”? The Scope Of The
“Bullying” Problem
According to The Workplace Bullying Institute:
• 50% of American workers have experienced first-hand, or witnessed,
“bullying” (35% first-hand)
• 13.7 Million adult Americans are currently being bullied
• The majority of bullying (68%) is same-gender
• 54% of bullying takes place out in the open, in front of others
• 68% of bullies operate alone
• Bullying is 4 times more prevalent than illegal, discriminatory harassment
The Scope Of The “Bullying” Problem
Who Are The Bullies?
• Bosses (73%)
• Peers (18%)
• Subordinates (9%)
• Men (62%); Women (38%)
What Victims Say about Bullying
45% of American workers say they have worked for an
abusive boss. They define bullying as:
• Physical threats (11%)
• Inappropriate physical contact (17%)
• A manager raising his or her voice (55%)
• Criticizing co-workers in front of others (59%)
• Interrupting the employee in a rude manner (58%)
• Giving an employee dirty looks (56%)
• Issuing personal insults (50%)
• Spreading rumors or sharing confidential information (40%)
• Making sarcastic jokes or teasing remarks (60%)
“Abusive Conduct” Prevention Training –
Legal Definitions
A.B. 2053
• “Abusive conduct” defined as conduct of an employer or employee in the
workplace, with malice, that a reasonable person would find hostile,
offensive, and unrelated to an employer’s legitimate business interests.
• May include:
(1) infliction of verbal abuse, such as the use of derogatory remarks
(2) insults
(3) epithets
(4) verbal or physical conduct that a reasonable person would find
threatening, intimidating, or humiliating
(5) gratuitous sabotage or undermining of a person’s work performance.
What Is “Bullying”: The Continuum Of
Negative Interpersonal Behavior
Onset of Stress
Health Impact
Abusive Conduct Identity Threat
Despair, Suicide
Physical Violence Injury, Death
Incivility
Disrespect
Mild Bullying
Moderate to Severe Bullying
Battery
Inappropriateness Homicide
To End on A Humorous Note…
“Daughter’s Facebook Boast Kills Dad’s Age Bias Deal” (2/28/14)
• Patrick Snay thought he was in good shape following his $80k age
bias settlement
• Snay and former employer Gulliver Schools settled with standard
confidentiality provision
• Snay told daughter
• Later that day, Daughter’s Facebook post read
“Mama and Papa Snay won the case against Gulliver.
Gulliver is now officially paying for my vacation to Europe
this summer. SUCK IT, Gulliver!”
Teaching Point: send kid to remote Amazon
jungle for vacation BEFORE ink is dry!!!