All posts tagged discrimination

Respond quickly and effectively to harassment, discrimination complaints

A businesswoman shouts through a megaphone and points up towards a much larger businessman who is standing over her.

Employers need to respond swiftly when employees complain about discrimination or harassment and the response must be effective, a U.S. District appeals court has held.

When a company addresses workplace it is responsible for ensuring that its solution will stave off further harassment or discrimination, a court of appeals has held in a case of a father and son who were eventually fired after complaining about harassment.

The case illustrates the need for an employer to not only act swiftly to respond and investigate claims of harassment or discrimination, but also to ensure that any remedies that are put in place are effective. Barring that and if the harassment or discrimination resumes, an employer could be opening itself up to a possible lawsuit.

In the case of Efrain Reynaga v. Roseburg Forest Products, the 9th District Circuit Court of Appeals held that a Hispanic millwright’s discrimination case against his former employer should go to trial and the court overturned a motion for summary judgment.

 

What happened

The case involved a father and son who worked as millwrights for Roseburg Forest Products and they were reportedly the only Hispanics working at the site.

The father claims they were regularly subjected to verbal abuse and derogatory comments from the lead millwright and harassed them, including comments like “minorities are taking over the country” and asking if “all Mexican women are fat.”

They also say they were regularly assigned dirtier, harder and more dangerous jobs than their white counterparts. When hostile work environment worsened, the father complained.

The company took action and rearranged the supervisor’s schedule so that he would not work the same shifts as the father and son.

But one day when they showed up to their shift, their old supervisor was there they immediately left the premises. They told their new supervisor they would not work with their old boss and they were promptly suspended and the father was later fired.

Reynaga sued Roseburg for hostile work environment, disparate treatment, and retaliation. The lower court granted the employer’s motion for summary judgment and threw out the case, but the appeal’s court decision reversed that decision, which means the case can go to trial.

 

The decision and why it’s important

The appellate court, in making its decision, said that a jury could find the termination retaliatory, saying that the termination for missing one-and-a-half shifts was widely out of proportion to the company’s “benign treatment of [the supervisor].”

“Efrain’s prima facie case is strong, particularly in light of the timing of the termination. Efrain had worked at Roseburg for more than five years, yet he was fired barely one month after making a formal written complaint. Proof of a causal link between Efrain’s complaint and his termination-as evidenced by temporal proximity-is certainly relevant to an evaluation of pretext.”

 

The takeaway

If you have had an employee legitimately complain about a hostile work environment, harassment and discrimination, you should:

  • Move quickly to investigate and address the issue if you find the complaint to be valid.
  • Ensure that the action you take is effective.
  • Don’t retaliate against employees for complaining about harassment or discrimination.

 

Remember, harassment and discrimination cases that go to trial can be costly in terms of litigation expenses, but also any potential judgments and penalties. The final level of protection is employment practices liability insurance.

Talk to us if you want to know more about this coverage.

New Workplace Notice Requirements Take Effect

one caucasian business woman man couple dispute conflict  in silhouette studio isolated on white background

IF YOU have more than five employees you are required to have in place as of April 1 anti-discrimination, anti-harassment and complaint investigation policies.

You are also required to post starting April 1 a notification to your employees about California’s pregnancy disability leave law.

The regulations, updated by the California Fair Employment and Housing Council, were spurred by recent court decisions. If you have not done so, now is the time to review your anti-harassment, discrimination and retaliation policies.

 

 

Steps You Need to Take Now

  • Include a mechanism that permits employees to complain to someone other than his or her immediate supervisor, such as a human resources manager or other supervisor, a complaint hotline, or an ombudsperson. It should also include contact information for the California Department of Fair Employment and Housing and the U.S. Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints.
  • State that you will conduct a fair, timely and thorough investigation and that all parties will be given due process.
  • State that you will ensure that you will keep the matter confidential to the best extent possible, but not that it’s completely confidential.
  • Require supervisors to report complaints of misconduct to a designated person, such as a human resources manager.
  • Have a mechanism for remedial measures if you find misconduct.
  • Assure your workers that you will not retaliate against them for filing a complaint.

 

Ant-harassment Policy Basics

  • Set the policy in writing.
  • List all current protected categories covered under the Fair Employment and Housing Act.
  • Indicate that the FEHA prohibits not only supervisors and managers from engaging in prohibited conduct, but also co-workers and third parties with whom employees come into contact.
  • Create a complaint process to ensure that complaints receive the following:

–           Designation of confidentiality, to the extent possible.

–           Timely responses.

–           Impartial and timely investigation by qualified personnel.

–           Documentation and tracking for reasonable progress.

–           Options for remedial actions and resolutions.

–           Timely closure.

 

Pregnancy Disability Notice

Starting April 1, if you have five or more employees you are also required to post the “Your Rights and Obligations as a Pregnant Employee” notice alongside all of your other mandatory employment-related postings at your workplace.

You can find a copy of the new poster from the state at this website:

www.dfeh.ca.gov/res/docs/Publications/Brochures/2016/DFEH-100-20%20(04-16).pdf

Employers with 50 or more workers will continue to be requried to post the “Family Care and Medical Leave and Pregnancy Disability Leave” notification that has been required since July 2015.

How to Reduce Your Liability during Company Holiday Party

If you’re throwing your staff a Christmas party this year, don’t forget that holiday soirees also mean increased liability for workers’ comp, harassment and third-party injuries.

For example, did you know that if one of your staff is injured at your holiday party it could trigger a workers’ comp claim, since it could be considered “within the course and scope of employment”?

Workers’ comp and employment law attorneys have different opinions about this, but the overriding consensus is that some of it could become a workers’ comp claim if:

  • Attendance is mandatory, regardless of whether it’s expressed or implied.
  • The party is held during working hours.
  • The event is held on your premises.
  • Employees are recognized with rewards, or if you give out bonuses at the event.
  • The event includes vendors or customers.

 

The rules for this can vary depending on the state and how broadly the courts define “scope of employment.”

For example, in Minnesota three years ago, an employee had been out on medical leave for a non-work-related injury, and she went to the company’s annual dinner after she received an invitation and the promise of a turkey.

After she had collected her turkey, however, she slipped, fell and injured herself in the parking lot. The state supreme court found that the employer had directed the employee to come to the premises to obtain the turkey, which the court noted was a form of bonus compensation.

In California, all company-sponsored events fall within the course and scope of employment, because they benefit the employer by improving employee morale and furthering employer-employee relations.

But the biggest issue is liability, and a case in 2013 should make you think twice before serving alcohol – or even allowing your staff to bring their own booze.

In the case of Purton vs. Marriott International, Inc. the California Supreme Court found the employer, hotel chain Marriott, liable for the actions of an employee who took his own liquor to a company party, drove home drunk and killed another motorist.

The court found that as long as the proximate cause (intoxication) was within the course and scope of employment, the employer could be liable.

Here are 10 tips to help ensure that cheer does not turn into a legal nightmare:

 

  1. Attendance must be voluntary. To make sure that your employees understand this, clearly state it in the invitation and any announcements you may post about the party in your workplace.
  2. Hold your event after working hours and at a venue other than your office. This reduces the likelihood the party will be perceived as work related.
  3. Also, don’t try to coax employees to come by implying that attendance can help them advance their careers or standing in the office, or that not coming would be viewed by other staff as the employee not being a team player.
  4. Don’t give out awards, bonuses or any types of recognition that would indicate that they are there for business reasons.
  5. Strongly consider NOT inviting vendors, customers or others with whom your company conducts business.
  6. Tell your employees that they can bring their spouses and significant others.
  7. Remind employees that normal workplace standards of conduct are to be respected. Remember, when alcohol is served at parties, it may reduce inhibitions and can lead to sexual harassment or discrimination claims.
    If you do receive a complaint about discrimination or harassment, don’t shrug it off. Take it seriously and conduct a proper investigation and interview the employee complaining, the one who is accused and any witnesses.
  8. If you want to truly reduce your risk, you should limit or not serve alcohol. Whatever you do, don’t have an open bar. Close the bar at least one hour before the end of the party. Also, hire a professional bartender who knows when to cut people off.
    Arrange for no-cost transportation for any employee who should not drive home. If you do plan to have alcohol, also serve plenty of food.
  9. Tell employees not to post pictures from or comments about your company party on social media without a policy in place.
  10. Discuss your exposure with us to make sure that you are properly covered for any liabilities that may arise out of the function. Call us! We are always here to help.

 

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EEOC Opens up New Discrimination Class: Sexual Orientation

In a step that creates a new protected class, the Equal Employment Opportunity Commission has ruled that discrimination based on sexual orientation is illegal under federal law.

The ruling is significant since it essentially sets the stage for employers being susceptible to a new class of lawsuits, opening up an additional area of liability.

While discrimination based on sexual orientation is not spelled out in Title VII of the Civil Rights Act of 1964, it does bar sexual discrimination and the commission ruled that “an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.”’

Employers will have to change their policies and handbooks and train supervisors and managers on the ruling.

Federal courts are not bound to the ruling, but that said, courts frequently defer to federal agencies when they interpret laws that come under their jurisdiction.

The ruling applies to a number of employment areas, including hiring, termination and promotion decisions, and employee working conditions, including claims of workplace harassment.

It would apply to both job applicants and employees, who would be able to file a complaint with the EEOC if they feel their rights have been violated in this regard.

The EEOC justified its interpretation of sexual discrimination to include sexual orientation by writing:

“Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”

Here’s an example of what the EEOC means: When a manager mistreats a gay male employee because he dislikes the fact that his employee dates other men, the manager is taking that worker’s sex into account. Such discrimination is obviously sex-based, and therefore forbidden by Title VII.

The ruling is essentially a roadmap for courts to use when hearing cases of discrimination based on sexual orientation. And the issue is especially salient in light of the recent ruling by the U.S. Supreme Court that laws barring gay and lesbian marriages are illegal.

Twenty-two states currently ban workplace discrimination based on sexual orientation.

And under the new guidelines, all sexual orientation discrimination will be considered illegal, empowering gay private employees to lodge discrimination complaints.

Courts may choose to accept or reject the EEOC’s ruling, but the commission’s rulings are respected by the judiciary, and could tip more courts to rule that sexual orientation discrimination is, indeed, already forbidden in the United States.

 

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Reduce Chance of Lawsuits with Strong Employee Handbook

The legal threat is constantly growing for businesses, not only from outside the organization by business partners or customers, but also from within – by employees.

Currently the bigger threat is being sued by your own staff for running afoul of a smorgasbord of statutes like labor, wage and hour, worker classification, discrimination and harassment laws.

As an employer you need to be aware of the many threats errant policies may pose to your organization’s financial wellbeing. One lawsuit by a disgruntled or wronged employee with a large award or hefty attorney fees can sink a small business.

Part of protecting your organization is implementing strong workplace policies and enforcing them. But you also need to communicate them to your staff, including via your employee handbook.

To best protect your business, your handbook should cover the following:

  • ‘At-will’ employment. This policy basically states that either you or the worker can terminate the employment relationship at any time and for any reason (as long as it is legal). This needs to be clearly understood by employees.
  • Discrimination and harassment.  Make it clear that your organization has a zero-tolerance discrimination and harassment policy and that you will always take a complaint seriously.

The handbook should include information about who to contact with a complaint, and how to file a complaint. The policy should state that the accuser will be protected against retaliation, as well.

Finally, spell out the steps you will take against employees that violate the policy.

  • Employment classification. Make sure that you outline clearly how your employees are categorized (full-time or part-time, exempt or non-exempt). Spell out which employees are eligible for company benefits, such as sick leave, vacation time and employer-sponsored health insurance.
  • Time off and employee leave.  Describe the rules for accruing and using vacation time and sick time. List any holidays for which your employees will receive pay. Clearly outline the steps your workers need to take to request time off, as well as note whether unused time will carry over from year to year.
  • Meal and break. Every state has meal and rest break laws. In California, non-exempt employees must be provided with no less than a 30-minute meal period when their work period is more than five hours.

In addition, non-exempt employees are entitled to a 10-minute break for every fours hours worked.

  • Timekeeping and payday. Your employee handbook should describe the rules and methods for recording time worked. It should also cover paydays, ways in which employees can receive their pay (check, direct deposit, etc.), and how final pay will be handled should you need to terminate an employee.
  • Workplace safety. Regardless of your work setting, your employee handbook should cover safety and emergency procedures. Even if your operation is mostly office workers, there are still hazards they should be made aware of.
    As part of the safety policy, you should also include information on what an employee should do if they are injured on the job, including who to report to.
  • Attendance. This is an important one, and employees must understand that their jobs could be at risk if they fail to come to work on time, leave early often or miss too many days. You need to have rules in place that your staff understand, so that you can enforce policies on attendance punctuality.
    Make sure that you outline what you consider excessive absenteeism and what employees need to do and who to contact if they are going to arrive late or need to take time off.
  • Employee conduct. Outline the standard of conduct you expect from your workers when it comes to drug and alcohol use, workplace violence, confidentiality, conflicts of interest and other common issues.

 

Make sure that your policies are conveyed to new hires by going over the handbook with them page by page, asking them to take it home and read it and having them sign off that they have read it when they are finished.

It is also a good idea to hold a yearly refresher for all existing staff, as well.

 

employee handbook

 

EEOC Increases Scrutiny of Harassment Claims

The Equal Employment Opportunity Commission is likely to redouble its policing of workplace harassment, agency heads announced at a recent meeting in January to lay out the EEOC’s 2015 agenda.

According to EEOC chairwoman Jenny Yang, “We are developing strategies that focus on targeted outreach and education as well as systemic enforcement to promote broader voluntary compliance.”

That means that employers can expect mounting scrutiny in this area if an employee files a complaint with the agency.

The EEOC supported its interest in harassment because more than 30% of all charges it makes include harassment allegations. In 2014, 6,862 charges alleged sexual harassment, while 4,848 disability discrimination charges and 9,023 racial discrimination charges included some allegation of harassment.

During the EEOC’s meeting, the following recommendations for the employer community were aired:

 

Focus on training – The EEOC recommends and expects employers to provide harassment prevention training to employees. You can impress the agency if you can show that you are providing such training. Key elements of training include:

  • Effective, mandatory and company-wide presentations and workshops offered throughout the year;
  • Specific training for supervisors and managers (separate from non-managers as responsibilities vary depending on position); and
  • Diligent record-keeping of attendance.

 

Sound prevention policy – Prevention starts with a sound anti-harassment policy. Your policy should include detailed instruction on how to report a complaint and identify with whom you can file the complaint in your organization.

The EEOC also recommends that you issue statements that complaints will be investigated promptly and the company will not retaliate against anyone for lodging a complaint. Likewise, you should include a statement that you retain the right to discipline or fire employees who knowingly raise false complaints.

 

 Communication  – Make sure that you properly communicate your policy, that it reaches everyone in your organization, and that they understand the importance of the policy. Post it electronically if possible, and on bulletin boards in areas frequented by your staff.

Also, don’t forget to include your policy in your employee handbook, and discuss the policy during training sessions and company meetings.

 

Effective investigation – Take a look at your investigation process. You should train your supervisors and managers in how to identify complaints. Once you’ve received a complaint, you should investigate promptly. Document complaints, witness statements and circumstances.

The EEOC recommends that you suspend the accused harasser, with or without pay, and immediately remove any offensive graffiti or material. Another option is to offer, if possible, a temporary transfer of either of the parties involved.

Identify and question all potential witnesses and make a note of those who were actual witnesses to the alleged harassment as opposed to those who just heard about it through others.

One of the EEOC’s biggest focuses will be if there are systemic issues that indicate a lackadaisical attitude about workplace harassment.

The January meeting emphasized the importance of employers raising the subject of harassment, expressing strong disapproval, developing appropriate investigation processes, imposing sanctions where appropriate, and informing employees of their rights under Title VII. That is what the EEOC will be looking for.

 

The takeaway

With the EEOC continuing to step up harassment investigations and charges, you need to review and, if needed, update your policies, training and investigative procedures to jibe with the agency’s expectations of an exemplary employer.

And remember, having a policy is insufficient if it is not communicated understandably to your workers. For example, in a workforce that includes many teens, the policy should be understandable to the average high school student.

Finally, it would be wise to secure employment practices liability insurance, which will usually cover costs associated with being sued or charged by the EEOC. We can help. Give Wright & Kimbrough a call! or go to contact us.

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