PREVENTING WORKPLACE DISCRIMINATION AND RETALIATION. Blake Downey & John Collins

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1 PREVENTING WORKPLACE DISCRIMINATION AND RETALIATION Blake Downey & John Collins

2 Topics Covered Retaliation & Discrimination What is Retaliation? What is Discrimination? How are Discrimination & Retaliation related?

3 Topics Covered What are the major causes of Retaliation? How can Retaliation & Discrimination hurt your business? How can you prevent Retaliation & Discrimination?

4 What is Workplace Discrimination? Workplace Discrimination occurs when an employer treats a qualified applicant or employee less favorably merely because of the person's race, color, religion, sex, national origin, disability, or status as a protected veteran.

5 What is Workplace Discrimination? It may also exist where an employer's seemingly fair policies or procedures have a discriminatory impact on members of particular groups. Employment discrimination can be against a single person or a group.

6 What is Workplace Retaliation? Workplace Retaliation occurs when an employer takes a materially adverse employment action against an employee because that employee engaged in conduct that is protected under state or federal law.

7 Sources of Protected Activity Title VII Age Discrimination and Employment ( ADEA ) Americans with Disabilities Act ( ADA ) Family Medical Leave Act ( FMLA ) Texas Whistleblower Statute Fair Labor Standards Act ( FLSA )

8 Sources of Protected Activity Occupational Health and Safety Act ( OSHA ) Sabine Pilot Uniformed Services Employment and Reemployment Act ( USERRA ) Immigration Reform and Control Act The Texas Commission on Human Rights Act

9 What is Workplace Retaliation? Generally, in order to establish retaliation in Texas, an employee must show that: 1. He or she engaged in activity protected by state or federal law; 2. The employer took materially adverse action in or out of the workplace against him or her; and

10 What is Workplace Retaliation? 3. A causal connection exists between the protected activity and the adverse employment action.

11 Adverse Employment Action Promotion Refusal Failure to Hire Denial of Benefits Demotion Firing Suspension Negative Evaluation Harassment

12 New Causal Connection Standard under Nassar Title VII Discriminations Claims: Old Standard: Motivating Factor Very Employee Friendly Standard New Standard: Retaliation was the but-for cause of the adverse action. Employer Friendly Ruling

13 Example: Title VII Angela is a 35 year old account clerk at the Dunder Paper Co. Angela is routinely told by Michael, her supervisor, that her male co-workers are doing better work than she is even though Angela s sales are routinely higher than her male co-workers.

14 Example: Title VII Angela asks for some feedback about why her male co-workers are doing a better job than she does? Michael ignores her requests and continues to harass her about her poor performance. TITLE VII DISCRIMINATION?

15 Example: Title VII After Angela files an EEOC complaint, Michael begins to remove some of Dunder Paper Co. s most profitable clients from Angela s client list and redistributes these clients to Dwight and Jim. Title VII: Retaliation?

16 Example: Title VII After Angela files an EEOC complaint, Michael demotes Angela from accounts to secretary citing poor performance and insubordination. Title VII: Retaliation?

17 Example: FMLA Retaliation Jack is a front desk clerk at a local hotel in El Paso. Over the course of his employment, Jack has had exceptional reviews from both the general manager and from guest review cards. Jill is reassigned as the new general manager of the El Paso area for the hotel company.

18 Example: FMLA Retaliation A few months after Jill becomes the new general managers, the hotel company establishes a new performance review system. Jack is deemed to be performing below expectations on both his performance review and guest review cards. Jack is subsequently written up on three different occasions over a six month period and given a final warning with termination review on next write up from Jill.

19 Example: FMLA Retaliation Two weeks after this final review is given, Jack is diagnosed with back problems including degenerative disc disease and must undergo surgery. Jack submits a FMLA request, which the hotel co. grants.

20 Example: FMLA Retaliation When Jack returns after his surgery he snaps at a guest for not timely checking out of their room. Jill receives a complaint from the guest and immediately terminates Jack. FMLA Retaliation?

21 Example: FMLA Retaliation Change the Facts No previous write ups Terminated because the hotel co. is restructuring

22 Example: Workers Compensation Retaliation Mary is one of four sales directors for a local department store. She is involved in an accident when traveling between stores at Sunland Park Mall and Cielo Vista Mall while on the clock.

23 Example: Workers Compensation Retaliation She attempts to go back to work; however, her back and neck injuries are too painful for her to stand and sit for long periods of time as the job requires.

24 Example: Workers Compensation Retaliation A few weeks after the accident, Mary files a workers compensation claim.

25 Example: Workers Compensation Retaliation A day after Mary returns to work, the department store tells her that the company is reorganizing and she is being terminated. Mary alleges several complaints including workers compensation retaliation. Workers Compensation Retaliation?

26 Example: Workers Compensation Retaliation Change the Facts Manager prepared negative evaluations and discipline reports within days of finding out about workers compensation claim. Mary is the only sales director terminated. Joe, Jack, and Jim all retained their positions Other Claims?

27 Retaliation & Discrimination Statistics Equal Employment Opportunity Commission Statistics 93,727 Total Charges Filed in ,539 Charges Included Claims of Retaliation (41%) 33,068 Charges Included Race Discrimination (35.3%) 27,687 Charges Included Sex Discrimination (29.5%)

28 Retaliation & Discrimination Statistics

29 Trend in Retaliation Claims

30 Retaliation & Discrimination in El Paso Big Jury Verdicts in El Paso County Availability of Punitive Damages

31 Retaliation & Discrimination in El Paso Duncan v. El Paso Electric Co (2010) Reverse discrimination; Retaliation - $5.8 million Jackson v. Host International (2009) Age; Retaliation - $992, Stoddard v. West Telemarketing (2007) Retaliation - $1.2 million Rodriguez v. Tx OAG (2013) Retaliation- $1.39 million

32 Protect Your Business Create and implement strong anti-retaliation policies Educate and train all supervisors and members of management about the company s policies against retaliation

33 Protect Your Business Promptly investigate all claims of discrimination or reported violations of state or federal laws Maintain proper documentation Exercise care when terminating or disciplining an employee who has engaged in protected conduct

34 Tough Cases: Termination Necessary What if you have an employee who has engaged in protected conduct (i.e., filed a charge of discrimination, filed a worker s compensation claim), but you want to discipline or terminate that employee for legitimate business reasons? Remember Jack, the Hotel Front Desk Clerk?

35 Tough Cases: Termination Necessary Exercise caution before taking any adverse employment action Properly document all legitimate business reasons for taking the adverse employment action against the employee Consult an attorney

36 Retaliation & Discrimination QUESTIONS?

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