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The Latest Trends In EEO Law: What’s Creating Risk in Your Workplace? Wednesday, March 26, 2008 Association of Corporate Counsel www. acc. com
Page 3 Shanti Atkins, Esq. President & CEO of ELT. Specialist in online ethics and legal compliance training. Advises clients across multiple industries and of all sizes about strategic risk management and compliance initiatives.
Page 4 Margaret Hart Edwards, Esq. Shareholder, Littler Mendelson. Litigated hundreds of employment law cases in state and federal courts since beginning practice in 1975. Routinely advises employers on legal compliance and litigation prevention measures. Trains extensively in harassment and discrimination prevention.
Page 5 Who We Are Created by Littler Mendelson in 1996 The nation’s largest employment law firm 1 st to Launch Online Compliance Solution
Page 6 Used by more than 1, 000 organizations More than 2, 000 employees and managers trained
Page 7 EEOC FY 2007 Charge Statistics Discrimination charges for 2007 break down as follows: Race: 37. 0% Sex: 30. 1% Retaliation under Title VII: 28. 3% Age: 23. 2% Disability: 21. 4% National Origin: 11. 4% Religion: 3. 5% Equal Pay: 1. 0%
Page 8 Agenda 1. The Technology Revolution 2. Politics Can Be Divisive 3. The New Face of Sex & Gender Discrimination 4. Race In America 5. Sweet Revenge 6. Other Noteworthy Trends and Decisions
Page 9 1. The Technology Revolution Technology has changed all of our lives in ways we could never have predicted. We started with cell phones and laptops. We have now reached an entirely new age of technology. Ever evolving risk profile for American businesses.
Page 10 Who Is Posting Content Online? “You” are doing it! 55+ % of U. S. homes have a webconnected computer. 40+% of adults get news from the web. 54% of Gen Nexters use social networking sites. 5% of employees have a personal blog (but could be as high as 10 million workers. ) Only 15% of companies have a policy that addresses blogging. Sources: 2003 U. S. Census Pew Research Poll 2006 Pew Research Poll 2007 Employment Law Alliance Poll 2006
Page 11 Blogging, My. Space, You. Tube. . . New Ways of Posting Content Online Created Every Day!
Page 12 In the News California AAA fired 27 employees for posting messages to My. Space that were offensive on the basis of weight and sexual orientation. NY City investigator fired for making racist comments on his My. Space page. Comcast employee fired after customer posted a video of the employee sleeping on the customer’s couch to You. Tube. Collectors Universe fired an employee for posting a photo of the CEO on his My. Space profile. The company called it identity theft.
Page 13 More and More Employment Law Cases Turn on Inappropriate Use of Electronic Resources Legitimacy of demotion of a manager turned on whether e-mail comments that another employee was “stale” and “set in her ways” amounted to age discrimination. Erickson v. Farmland Indus. , Inc. , 271 F. 3 d 718 (8 th Cir. 2001). An employee was properly terminated in part because of the employee’s harassment of a fellow manager by means of an anonymous e-mail. Connell v. Consolidated Edison Co. of N. Y. , 109 F. Supp. 2 d 202 (S. D. N. Y. 2000).
Page 14 The Risks Are Real Employees have access to and can share inappropriate content 24/7 and the employer could be liable. Blakey v. Continental Airlines: NJ Supreme Court warns that, because employer must make reasonable efforts to prevent discriminatory and harassing conduct, employer may be held liable for discriminatory and harassing postings by employees if the employer had reason to know about them. 751 A. 2 d 538 (N. J. 2000). No affirmative duty to monitor. . . yet.
Page 15 The Risks Are Real Easier than ever to disclose confidential information. . . and get away with it. In the News: Bank withdraws attempt to shut down a website that published its confidential documents provided anonymously by a disgruntled employee after New York Times story characterizes the lawsuit as an attack on the First Amendment. (March 2008)
Page 16 The Risks Are Real Recruiting nightmares: Ethnic, gender and age screening. Are your recruiters misusing these sites?
Page 17 Have You Considered. . . What to do if an employee posts inappropriate content anonymously? Hosting ISP won’t reveal identity of poster without a subpoena. “Anonymous Surfing” products route Internet traffic through an anonymizing server and can hide blogger’s IP address even from the ISP that is hosting the blog.
Page 18 Krinsky v. Doe 6 California Court of Appeal refuses to subpoena Yahoo! for identity of poster on message-board who made sexual and highly offensive comments about a company’s senior executive, citing poster’s right to freedom of anonymous speech. Santa Clara County Super. Ct. No. CV 059796 (Feb. 2008) To subpoena identity of poster, Plaintiff must make effort to notify poster and demonstrate a prima facie legal violation.
Page 19 Ahead of the Trends – Practical Steps Your Cyber Policy should: Address new technologies. Address the employer’s right to control communications; dispel “free speech” myths. Set clear rules for making statements about the workplace, employees, clients etc. Set clear rules about accessing sites. Explain privacy rights and responsibilities. Emphasize trademark and confidentiality issues. Remember to train on the policy and clearly explain the consequences for violating it.
Page 20 2. Hot Politics: The Presidential Race Very divisive and emotional issues: Abortion Healthcare Environment Economics Immigration War on Terror Massive Media coverage encourages constant discussion.
Page 21 Have You Considered. . . That the 2008 presidential race has prompted even more discussion than usual about sensitive subjects? Race: Did Obama do enough to denounce the “divisive” remarks associated with his campaign? Gender: Is Clinton playing the “gender card”? Age: Mc. Cain as the oldest -time presidential candidate? first
Page 22 Not All Speech is Protected! “Fighting words” - words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Harassing or discriminatory comments. “Captive Audience” nature of workplace limits free speech rights: The workplace is different from sidewalks and parks workers are not so free to leave to avoid undesired messages. Aguilar v. Avis Rent a Car, 21 Cal. 4 th 121 (1999)
Page 23 Not All Speech Is Protected! Piggee v. Carl Sandburg College: Community college's sexual harassment policy, which precluded instructor from giving a student religious pamphlets on sinfulness of homosexuality, is not an unconstitutional prior restraint on free speech. 464 F. 3 d 667 (7 th Cir. 2006) Ng v. Jacobs Engineering Group: Employer can terminate employee pursuant to its anti-harassment policy for sending religious emails to unwilling employees. Employer is not required to accommodate an employee’s religious belief by allowing employee to impose that belief “personally and directly on fellow employees. ” 2006 Cal. App. Unpubl. LEXIS 9142 (Cal. Ct. App. Oct. 2006)
Page 24 Where Do You Draw The Line? Peterson v. Hewlett-Packard Co: Employee terminated for violating harassment policy and insubordination when he disregarded the employer's instructions to remove anti-gay scriptural passages from his cubicle that he posted in response to employer's workplace diversity campaign. 358 F. 3 d 599 (9 th Cir. 2004) Protected speech?
Page 25 “Core Political Speech” No. Comments were not protected because they were intended to demean or degrade coworkers. Comments would have been protected if they were “core political speech” expressed political views about a controversial political issue and not meant to hurt the plaintiff. Also not protected religious speech.
Page 26 Ahead of the Trend – Practical Steps Train employees about prohibited conduct and dispel “absolute free speech” myth. Update your policy, which should: Be based on realistic and enforceable rules regarding workplace speech. Teach your employees that respect and inclusion are core values. Inform employees that workplace policies are broader than the law.
Page 27 3. The New Face Of Sex And Gender Discrimination “Next generation” claims emerging: Sexual favoritism gets noticed It’s not just about women anymore Sexual Orientation and Gender Identity Family Responsibility Discrimination
Page 28 Romance & Work 41% of workers between 25 and 40 admit they have had an office romance. 76% of workers think office romance is more common than it was 10 years ago. Why? Employees are working longer hours. Sexual taboos have relaxed. Natural to look for and find a mate at work. Source: Harris Interactive and Spherion Corp Poll
Page 29 Sexual Favoritism Is A Time Bomb CA court recently ruled that sexual favoritism is actionable if widespread. Both men and women can sue. It doesn’t matter that relationship was consensual. Don’t need to show that you were subject of sexual advances. You sue because you were negatively impacted by the favoritism. You did not get the promo, job, or raise because you were not sleeping with the boss. Miller v. Department of Corrections (Cal. Sup. Ct. 2005)
Page 30 Sexual Favoritism Is Newsworthy Detroit Mayor Kwame Kilpatrick involved in text-messaging sex scandal with a former aide. Accusations that taxpayer funded-security was used to cover up the relationship. Scandal further muddied by recent “racially charged statements. ” Kilpatrick charged with perjury, obstruction of justice and official misconduct on 3/24/08. Mark Everson’s immediate resignation sought by Red Cross Board because of his romantic involvement with subordinate. (11/07) Paul Wolfowitz’s integrity questioned because of his romantic relationship with a female World Bank executive and subordinate. (4/07)
Page 31 Ahead of the Trend – Practical Tips Consider a policy that: Bans or discourages supervisor / subordinate relationships. Mandates disclosure and separates partners. Applies to all forms of intimate relationships. Train managers and employees: Employees frequently unaware that the employer even has a policy. Training program should address risks of sexual favoritism.
Page 32 It’s Not Just For Women Anymore….
Page 33 Sexual Orientation & Gender Identity Protections Are Expanding
Page 34 Employment Non-Discrimination Act Passed by House of Reps. in November 2007. Prohibits discrimination on the basis of sexual orientation. Gender identity was specifically removed.
Page 35 State and Local Law Protection 10 of 19 state laws that prohibit sexual orientation discrimination include gender identity. Maffei v. Kolaeton Industries, Inc: Employer who harasses an employee because the person, as a result of surgery and hormone treatments, is now a different sex, violates New York City’s prohibition against discrimination based on sex. 626 N. Y. S. 2 d 391 (1995).
Page 36 Don’t Forget Anti-Harassment Laws Even though Title VII does not provide a cause of action for sexual orientation discrimination, employees can sue for same-sex sexual harassment. Cromer-Kendall v. District of Columbia 326 F. Supp. 2 d 50 (D. D. C. 2004).
Page 37 Family Responsibility Discrimination May 2007: EEOC issues enforcement guidelines for unlawful disparate treatment of workers with caregiver responsibilities. The guidelines offer 20 concrete examples of conduct the EEOC considers illegal, such as treating male caregivers more favorably than female caregivers.
Page 38 Family Responsibility Discrimination FRD Claims have risen from 97 cases in 1996, to 481 in 2005. During a period when discrimination claims overall have been dropping, FRD bases have increased at an astonishing rate of 400%. Source: Hastings College of Law Worklife Center
Page 39 But Don’t Forget the Other Stuff In 2007, sex discrimination was one of the top 3 charges filed with EEOC (30. 1%). Sexual harassment in all forms still exists. “Old school” stuff is still around. Groping, jokes, and pornography. Demeaning conduct. 26% of employed adults say they have experienced sexual harassment at work: 17% of men 35% of women Sources: EEOC Charges Statistics (2007), Harris Interactive/lawyers. com Poll (2004)
Page 40 Have You Considered. . . That discussions in the workplace of front page headlines may be sexual harassment? Discussion and jokes regarding Eliot Spitzer’s recent resignation could be environmental harassment. Conversations may create an intimidating, hostile or abusive work environment that unreasonably interferes with an employee’s work performance.
Page 41 It Is Expensive If You Get It Wrong EEOC sued Custom Cut Companies on behalf of 3 female, former sales reps Traditional harassment Jokes, touching, retaliation, etc. $1. 1 million verdict (3/07) Court also ordered company to provide sexual harassment training for all employees Source: EEOC Press Release March 8, 2007
Page 42 Ahead of the Trend – Practical Tips Ongoing harassment training is critical and it should: Explore the grey areas, not just the blatant stuff. Explore emerging issues such as sexual favoritism, sexual orientation, gender identity, and gender stereotyping. Comply with CA’s stringent training mandate (even if you’re not in CA). Source: http: //www. Harassment. Training. com
Page 43 4: Race In America – Still A Big Issue Percentage of Americans who believe that racism is still a serious problem: 84% of Blacks/African Americans 66% of non-Hispanic Whites 80% of white Americans have racist feelings, and many may not even recognize them as racist. Sources: Gallup and CNN Polls U. Conn. Professor Jack Dovidio Estimates
Page 44 But What’s Happening At Work Percentage of Americans who have experienced discrimination in the workplace in 2006: 31% of Asian Americans 26% of African Americans 18% of Hispanic Americans Compared to… 12% of White Americans Source: Gallup Poll 2006
Page 45 And The Trend Continues In 2007, the top EEOC charge is, once again, Race Discrimination. Race discrimination charges make up 37% of all EEOC charges.
Page 46 EEOC Fights Back EEOC E-Race Initiative (2/07) Eradicate racism and colorism from the workplace. Education and outreach efforts. Combined with EEOC’s new focus on systemic and persistent forms of discrimination. We Can Expect: Larger plaintiff cases Big $$$ Big publicity And more individual claims as a result of outreach efforts
Page 47 5: Sweet Revenge: Retaliation Basics Retaliation: taking adverse action against an employee or job applicant because that individual engaged in protected activity such as: Filing a complaint or lawsuit, Making an internal complaint, or Participating in an investigation. Victim does NOT need to prove the underlying claim of harassment or discrimination to win a retaliation lawsuit. Most managers just don’t get it!
Page 48 The Retaliation Explosion In 2007, retaliation claims made up 32. 3% of all EEOC claims.
Page 49 SOX & Retaliation Right to be free from retaliation is expanding. Sarbanes-Oxley created a new cause of action to protect employees from retaliation because they complained of or reported violations of federal securities/shareholder law (Article 8). Separate and distinct from an EEO retaliation claim. Long arm reach of SOX protections? O'Mahony v. Accenture Ltd. , 07 Civ. 7916, 02/05/08 (S. D. N. Y. )
Page 50 The New Burlington Northern Standard « Standard for what may constitute retaliation has been lowered. Not limited to clear-cut actions. like termination or demotion. « Title VII’s “anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. ” « No bright line test – will require individual case assessment making jury trials rather than summary judgment more likely. Burlington Northern & Sante Fe Railway Co. v. White (U. S. Sup. Ct. 2006)
Page 51 State Supreme Court Places New Limit on Liability for Discrimination California Supreme Court determines that supervisors cannot be held individually liable for retaliation under California state antidiscrimination law. Court leaves unresolved issue: What if retaliation by employer takes form of harassment? Jones v. Lodge at Torrey Pines (Cal. Sup. Ct. 2008)
Page 52 Ahead of the Trend – Practical Tips Retaliation is one of the greatest “hidden EEO risks” faced by your business today. Most managers don’t even understand retaliation basics and have no clue that the bar was recently lowered. Consider a stand-alone retaliation policy to highlight the importance of this issue. Manager training on retaliation is essential.
Page 53 6: Other Notable Trends and Decisions – Pattern and Practice Cases EEOC to focus on systemic discrimination Announced new litigation initiative mid 2006. Will pursue cases that impact broad classes of employees. Willing to bring cases where $ may be small, but injunctive relief will have big impact. At the end of FY 2006 43. 3% (or 256)of active files involved challenges to policies or multiple aggrieved parties. Litigation success rate of 92. 7% What to expect: More multi-plaintiff cases. Plaintiffs’ attorneys will follow suit.
Page 54 Other Notable Trends – Bullying 45% of American workers feel they have been the target of abuse. (2007 Employment Law Alliance Poll) Bullies are making the news – Starwood CEO Steven Heyer ousted for being “very difficult to work with. ” (4/07) Aggression on the job more harmful than sexual harassment. (2008 Canadian Study) Since 2003, 12 states have introduced 27 antibullying bills. (www. bullybuster. org)
Page 55 Other Notable Trends - Bullying A new form of harassment? 9 th Circuit stripped employers of the “equal opportunity jerk” defense. The same abusive conduct, applied equally to men and women, found to impact women more harshly. EEOC v. National Education Association, 442 F. 3 d 840 (9 th Cir. 2005). "Title VII is not a fault-based tort scheme. Title VII is aimed at the consequences or effects of an employment practice and not at the motivation of co-workers or employers. ” Ellison v. Brady, 924 F. 2 d 872 (9 th Cir. 1991).
Page 56 Notable Trend – New Military Leave Laws January 2008: National Defense Authorization Act amends FMLA to extend coverage to employees to care for family members injured while on active military duty. October 2007: New California law provides up to 10 days of unpaid leave for a "qualified" employee if the employee's military spouse is on a leave from deployment in a combat zone with the active duty, reserve military or National Guard during a period of military conflict.
Page 57 Notable Decision – “Me Too” Evidence of Discrimination U. S. Supreme Court rules on admissibility of “me too” evidence in discrimination cases. "[T]he question whether evidence of discrimination by other supervisors is relevant. . . is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances. " Sprint/United Management Co. v. Mendelsohn No. 06 -1221 (Feb. 26, 2008)
Page 58 Putting It Back Together Pay attention to trends, political issues, and demographic shifts. Stay in tune with what your employees are doing and talking about. Update your policies to reflect 21 st century issues. Develop a comprehensive training plan and train all employees and managers.
Questions? satkins@elt-inc. com mhedwards@littler. com www. elt-inc. com │ 877. 358. 4621
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