EEOC UPDATE WORKSHOP
Presented by: Michael Klump, FDOT
Cindy Mattson, EEO Consultants, Inc.
Phone: 954-832-0546
www.eeoconsultants.com
2005 SOUTHERN TRANSPORTATION
CIVIL RIGHTS TRAINING SYMPOSIUM
“A PURPOSE DRIVEN JOURNEY”
Workshop Topics
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State & Federal EEO Case Law
Sexual Harassment Trends & Liability
Post 9-11 Religion & National Origin
Management’s Role
EEO Officers’ Role
Possible Solutions
Management Workshops, Diversity Initiatives
Other Criteria Affecting Discrimination Complaints
EEO RISK MANAGEMENT
 Compliance
Officers
 EEO Officers
 EEO Investigators
 EEO Administrators
 Management
 Fact Finder
 Disarming EEO Issues
 Limiting Liability to the Organization
PRIMIE FACIA CASE OF
EMPLOYMENT DISCRIMINATION
Complainant must show:
1)
That he/she is within a protected group,
2)
That he/she was qualified for the job at issue,
3)
That he/she was subjected to an adverse
employment action, and,
4)
That this action occurred under circumstances giving
rise to an inference of discrimination
5)
Because an employer engaged in discrimination is
unlikely to leave a "smoking gun," Chambers v. TRM
Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994),
the plaintiff must usually rely on cumulative
circumstantial evidence to prove bias
6)
Once complainant does the foregoing, the burden is
on the manager to show a non-discriminatory reason
for the adverse employment action
MIXED MOTIVE DISCRIMINATION
Both Job Performance & Discrimination
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Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)
Circumstantial Evidence of Discriminatory Motive
 Complainant had altercation with co-worker and was
terminated. Thereafter she filed suit for sex discrimination
 Evidence that she would be “singled out for intense
stalking”
 Disciplined more severely
 Treated less favorably in terms of OT
 Supervisors stacked her disciplinary record
 Supervisors tolerated sex based slurs against her
PLAINTIFF’S BURDEN OF PROOF
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Preponderance of Evidence
Sex was a Motivating Factor in the Imposition
of those Working Conditions
Jury Instructions:
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“If you find that the Plaintiff’s sex was a
motivating factor in the defendant’s treatment of
the Plaintiff, the Plaintiff is entitled to your
verdict.”
“If you find the defendant’s treatment was
motivated by both gender and lawful reasons,
you must decide whether the plaintiff is entitled
to damages.”
PLAINTIFF IS ENTITLED TO
DAMAGES UNLESS…
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the defendant proves by a preponderance of
the evidence that the defendant would have
treated plaintiff similarly even if the plaintiff’s
gender had played no role in the employment
decision
Direct Evidence not Necessary
Congress Amended Title VII (Civil Rights Act
of 1991) which states that an unlawful
employment practice is established when a
complaining party demonstrates that … sex
(or other protected group) was a motivating
factor… even though other factors also
motivated the practice.”
INSULATING THE EMPLOYER
FROM MIXED MOTIVE CLAIMS
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Insulate Employer’s from Liability for
Legitimate Non-Discriminatory Reasons for
Adverse Employment Actions
Proper Documentation of Performance
Management Training & Responsibilities
Disciplinary Actions Consistently Applied
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Large Organizations
Executive Level Misconduct
Discredit Plaintiff’s Claim of Discrimination
Where No Cause Found
TRENDS
More Title VII Mixed Motive Cases
 Only Requires Circumstantial Evidence
 Comparing Similarly Situated Employees
of Different protected classes
 Discriminatory Animus or Motive
 Direct Evidence (Smoking Gun) Difficult
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ENFORCING POLICIES
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Well Written Policies Only Half the Battle
Must Be Enforced
EEOC v. Kohler Co., Plaintiff terminated for
clocking in and out irregularly
White employees not disciplined
Employer Failed to Enforce it’s Disciplinary
Policies Uniformly
Proximity of Complaint and Termination
Pretext for Discrimination & Retaliation
Others Were Not Disciplined or Discipline was
Less Severe
SEX DISCRIMINATION
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EEOC v. Clifford B. Finkle Jr., Inc.
No. 03-4404 (D.N.J. May 16, 2005)
Trucking company allegedly discriminated against a female
trucker by failing to correct gender-based harassment
Charging party's truck was repeatedly sabotaged,
jeopardizing her safety, (i.e.) the air hose was removed
from her truck, the truck's antifreeze was drained, and the
air seal on the truck's brakeline was removed.
Charging party complained but Defendant did not conduct
an investigation until after charging party filed a
discrimination charge in December 2001
Defendant then concluded that the conduct had occurred
and fired both perpetrators
Under the 2-year consent decree resolving this case,
charging party will receive $225,000 in monetary relief
DEFENDANT WILL TAKE THE FOLLOWING
CORRECTIVE ACTIONS
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(1) post a notice regarding the consent decree's terms
and Title VII's requirements on bulletin boards used for
communicating with employees;
(2) create policies prohibiting harassment and
retaliation and disseminate them to all employees;
(3) provide annual training to all employees (including
temporary employees) and supervisors regarding
employees' rights and employer's obligations under Title
VII and the comparable New Jersey law;
(4) provide training to all managers and supervisors,
and to all Human Resources employees, on how to
investigate complaints of discrimination; and
(5) maintain records on complaints of discrimination
and harassment, prepare reports on how the complaints
are resolved, make these reports available to the EEOC
upon request, and make available to the EEOC all
employees whom the Commission wishes to interview
to verify compliance with the decree
SEXUAL HARASSMENT
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Co-Worker Liability Law
Assembly Bill 1825
 California Law Requires Supervisory Training for all
Employers with Over 50 Employees
 Every Two Years
 At Least Two Hours
 Conducted By Expert
 Classroom or Other Interactive Forum
 Watching a Video is not Enough
SEXUALLY HARASSING
ENVIRONMENT
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EEOC v. Union Pacific Railroad Co.
No. C04-866MJP (W.D. Wash. April 15, 2005)
Subjected female employee to a sexually hostile
work environment
The charging party was the only female loader
She complained about the harassment which
included pornographic materials throughout the
facility, a drawing of male genitalia posted in a
common area, ads for escort services, foul
language, sexual comments, and a male coworker
exposing himself to her to management and to
the Union Pacific Police
MONETARY DAMAGES
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Under the 3-year consent decree resolving this case,
charging party will receive $260,000 in monetary relief.
(1) reissuing defendant's antidiscrimination policy to all
employees and posting a copy of it on a centrally
located bulletin board at each location;
(2) providing all employees with 3 hours of employment
discrimination training, including training on sexual
harassment, annually throughout the term of the
consent decree; and
(3) reporting to the EEOC every 6 months on complaints
of sexual harassment and retaliation, internal
investigations of the complaints, and resolutions thereof.
TRANSSEXUAL’S TITLE VII
CLAIM
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U.S. Court of Appeals for the Sixth Circuit
Transsexual can state a claim under Title VII
Firefighter who was not “masculine enough”
Diagnosed with Gender Identity Disorder
Unlawful Sex Discrimination
“Gender non-conforming Conduct”
Smith v. City of Salem Ohio, 369 F.3d 912 (6th
Cir. 2004)
Not male or female enough-take it seriously
Jokes
SAME SEX HARASSMENT
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EEOC v. Systems Application & Technologies, Inc.
No. CV-04-7702 GAF (RCx) (C.D. Cal. May 11, 2005)
Security Supervisor accused of touching employees on their
necks, shoulders, genitals, and thighs
Inappropriate Comments of a Sexual Nature
Charging party complained to other Supervisors
No corrective Action Taken
After charging party had resisted the manager's advances for
months, he ceased harassing charging party and moved on
to other security officers
At around the same time the manager turned down charging
party's requests for a full-time position, but gave it to other
guards who like him were attending school or had second
jobs
$237,000 in monetary relief to charging party and three
similarly situated men
SEXUAL ORIENTATION NOT
DETERMINATIVE
 Dick
v. Phone Directories Co., Inc.,
No. 03-4163 (10th Cir. 2005)
 Proof of Orientation Not
Required if Sexual Desire
Motivated Acts
 While proof of homosexuality
may support a finding it is not
necessary
MATERNITY LEAVE
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TENNESSEE LAW
Allows Maternity Leave for Both Male and Female Employees
Changes Gender Specific Language
Includes Adoptions
Employers with 100 or More Employees
At Least 12 Months Full Time Employment
May Be Absent Up to 4 Consecutive Months for:
 Adoption (not forfeited for <3month notice)
 Pregnancy
 Childbirth
 Nursing an Infant
Reinstatement for Employees Who Give 3 Months Notice Prior to Leave with
Intention to Return to Full Time at the End of Leave
Same Status, Pay, Service Credit, Seniority
Practicality of Law in Question and Yet to be Tested
 May a male employee take leave under the Act for pregnancy prior to
the birth of his child?
AGE DISCRIMINATION
Supreme Court Decision
 Disparate Impact Theory
 No Intent Required
 Age Neutral Policies
 Adversely Affect Older Workers
 Employers Rebuttal: Factors Other
Than Age
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RACE DISCRIMINATION
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EEOC v. Coca-Cola Enterprises, Inc., d/b/a MidAtlantic Coca-Cola Bottling Co.
No. BEL-04-3128 (D. Md. May 16, 2005)
African American denied promotion into a
management position
Black employee entered training program
White employees who started in the program earlier
in the year were placed into grade 15 positions within
a few months, but charging party remained at a grade
13 after completing the program because no grade 15
positions were available
Charging party applied for two field service manager
positions, but they were given to white employees
who had less relevant experience than charging party
and had not participated in the training program
CONSENT DECREE
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Under the 3-year consent decree resolving
the case defendant will pay charging party
$60,500 in monetary relief
Upgrade his current position to grade 15
Change his job title to bottle/can install
manager
Increase his salary to $52,800 annually, and
award him retroactive grade 15 seniority to
January 2001 for internal job competition and
to January 2005 for eligibility for the
management incentive bonus plan
EEOC V. ABERCROMBIE &
FITCH STORES, INC.
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Pattern and practice of race, color, national origin, and sex
discrimination in the recruitment, hiring, assignment, promotion,
and discharge of blacks, Hispanics, Asians, and women
“Image" or "look" that it called "Classic All-American,"
targeted its recruitment efforts at primarily white high schools
and colleges (and at primarily white fraternities and sororities at
the colleges)
Channeled minority hires to stock and night crew positions
rather than sales associate positions
Maintained a 60%/40% ratio of male to female employees; failed
to hire and promote minorities and women into management
positions; and discharged minorities and women when corporate
representatives believed they were "overrepresented" at
particular stores
6 YEAR CONSENT DECREE
1.
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Marketing Materials Reflect Diversity
Defendant will create an Office of Diversity headed by
a Vice President who will report directly to defendant's
Chief Executive Officer or Chief Operating Officer
Defendant will hire 10 full-time diversity recruiters
within the first 6 months of the decree and 15 additional
full-time diversity recruiters within 12 months
Recruitment efforts to seek applications from
qualified African Americans, Asian Americans, and
Latinos of both genders.
Attend minority job fairs and recruiting events; and
use a diversity consultant to aid in identifying sources of
qualified minorities
COSTS TO THE ORGANIZATION
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$40 million
15% backpay and 85% compensatory damages to
applicants who were not hired, or who were
employed in one of defendant's stores for any
length of time since that date
$7.25 million for attorney fees, expenses, and
costs incurred prior to the decree approval date,
and,
$600,000 for fees, expenses, and costs related to
monitoring and defending the decree
QUALIFIED OR NOT?
MANAGERS MUST LOOK AT
JOB DESCRIPTIONS
TERMS & CONDITIONS
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EEOC v. Imclone Systems, Inc.
No. 04-06218 (GEB) (D.N.J. May 25, 2005)
Black Employee subjected to harsher terms and conditions
of employment than similarly situated white employees
Supervisor called him "the black man," spoke to him in a
demeaning manner, yelled at him, and told him he was
treating him more harshly than nonminorities because he
was a minority
Charging party complained to one of respondent's vice
presidents
Investigation revealed Cause Finding and took disciplinary
action
Charging party was transferred back into his original
temporary position and a few months later terminated him
when a full-time facility technician returned from medical
leave
RESULTS
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On the same day charging party was
terminated, respondent hired a nonblack
temporary employee with less experience than
charging party into a full- time permanent
facility technician position, and a month later
hired a nonblack employee into the position for
which charging party had been training before
he complained.
The parties entered into a 2-year consent
decree resolving this case under which
charging party will receive $85,000 in
monetary relief.
NATIONAL ORIGIN
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EEOC v. Hamilton Sundstrand Corp.
No. 03-Z-1663 (PAC) (D. Colo. May 19, 2005)
12 individuals will share $1.25 million in monetary relief
National Origin Harassment for Hispanic Employees
Less favorable terms and conditions of employment than
non-Hispanics
Ethnic slurs and racial epithets at the Hispanic employees (who
numbered about 20 of the approximate 250 employees) and,
with less frequency, physically threatened them
An anonymous employee posted and circulated documents
promoting discrimination based on race and national origin
Charging party reported numerous incidents to supervisors and
to the Human Resources Department using defendant's
complaint procedures
Defendant took no corrective action and the harassment of
charging party escalated
Closing Plant
REASONABLE ACCOMMODATION
UNDER ADA
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In Harmer v. Virginia Electric and Power
Company, the employee had a pulmonary
disability. When his employer denied his
request that the entire workplace be declared
smoke-free, the employee sued under the
ADA. The court found that a reasonable
accommodation would be the addition of
fans, air purifiers, and smoke-free sections of
the workplace and, therefore, an undue
hardship on the employer and denied the
employee's claim.
TYNDALL V. NATIONAL EDUCATION
CENTERS
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Justified Termination
The employer prevailed on the basis that
the employee was not "otherwise qualified"
because she was excessively absent
The court said, "An employee must be
willing and able to demonstrate the skills by
coming to work on a regular basis."
The employer attempted to accommodate
the worker, but seven weeks of leave over
an eight-month period justified her
termination.
EMPLOYER’S DUTY
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Before an employee is terminated, the employer should
consider whether the employee will have a potential claim
under the ADA.
As a representative for the employer you should
ask:
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Is the worker qualified or not?
Did the employer try to reasonably accommodate the worker's
needs to enable the worker to perform?
Did the worker have a disability which, without a reasonable
accommodation, prevented the employee from performing the
essential duties required by the job?
Employers must be ready to determine how a worker
claiming a disability can remain a productive part of the
organization
$550,000 FOR MUSLIM WORKERS
CALLED “TERRORISTS” AND
“THEIVES” BY CO-WORKERS:
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Barber Dealer Group, a network of car dealerships in
California, constant harassment of seven Muslim
employees including public ridicule of their national
origin and religion. The suit also alleged constructive
discharge and retaliation.
Employers should remind employees that the right to be
free from harassment covers all nationalities and
faiths, and make sure that EEO training programs
include the Muslim religion and National Origin.
Recent statistics distributed by the EEOC there has been
a rise in National Origin complaints which are now one
of the fastest growing types of complaints filed.
The Commission noted that there has been a 28%
increase since 1990.
RELIGIOUS ACCOMMODATION
Title
VII requires a business to provide reasonable
accommodations for an individual's religious practices,
such as leave to observe religious holidays, unless doing
so would cause an undue hardship
A
reasonable religious accommodation is any
adjustment to the work environment that will allow the
employee to practice his religion.
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Flexible scheduling, voluntary substitutions or swaps, job
reassignments, lateral transfers and modifying workplace
practices, policies or procedures are examples reasonable
accommodations.
RELIGIOUS ACCOMMODATIONS
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An employer may not place more
restrictions on religious expression than on
other forms of expression that have a
comparable effect on workplace efficiency
Employers must permit employees to
engage in religious expression if employees
are permitted to engage in other personal
expression at work, unless the religious
expression would impose an undue
hardship on the employer
RELIGIOUS DISCRIMINATION
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Employers must take steps to prevent
religious harassment of their employees
An employer can reduce the chance that
employees will engage unlawful religious
harassment by implementing an antiharassment policy and having an
effective
procedure
for
training,
reporting, investigating and correcting
harassing conduct
WHAT IS RELIGION?
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This broad coverage ensures that individuals are
protected against religious discrimination regardless
of how widespread their particular religious beliefs or
practices are.
The EEOC defines "religion" to include moral or ethical
beliefs as to right and wrong that are sincerely held
with the strength of traditional religious views. See
29 C.F.R. §1605.1.
“Religion” also includes atheism for the purposes of
Title VII’s prohibition against religious discrimination.
RELIGIOUS ACCOMMODATION
UNDER TITLE VII
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An employer is required to reasonably
accommodate the religious belief of an employee
or prospective employee, unless doing so would
impose an undue hardship. However, it is not
required that the employer grant preferential
treatment to any individual or group based on
religion or national origin. Business necessity and
consideration of whether the requirement is a
bona fide occupational qualification reasonably
necessary to the normal operation of that
particular business is at issue.
TRADITIONAL GARB
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Not required that an employer accommodate
an employee's desire to wear religious garb
under all circumstances
Apply Rules Consistently And Not Only To
Persons Of A Particular Religion Or Culture
Employer may require that an employee wear
a uniform so that the employee is recognized
as a representative of the organization, (i.e.)
police officers, fire fighters etc.. Therefore,
allowing the employee to wear traditional or
religious garb may detract from the purpose of
wearing the uniform and therefore not be
permitted.
SECULAR V. RELIGIOUS
REASONS
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What is at issue is providing equal
opportunity and nondiscrimination toward a
particular group because of their religious
or cultural beliefs
Therefore, other employees who want to
wear scarves, bandannas and hats etc.
should not be permitted to do so where
likewise it would divert from the objective
of requiring an organization’s uniform
Police Officers with Beards allowed for
secular reasons (health) but not
religious reasons
RELIGION & SEXUAL ORIENTATION
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In California, a homosexual employee is taking his
former
employer
to
trial
for
religious
discrimination based on comments by his Mormon
supervisor.
The supervisor allegedly told the gay employee he
should "become heterosexual and a Mormon or he
would go to hell." The plaintiff also claims he was
pressured to participate in prayer meetings at
work.
After he resigned, the gay employee sued
claiming religious harassment and constructive
discharge. The judge ruled there was enough
evidence for a jury to decide whether the gay
employee was a victim of unlawful religious
harassment and discrimination.
IS IT A JOB REQUIREMENT TO
ENFORCE EEO LAWS?
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YES
In Mississippi, an EAP counselor refused on religious
grounds to counsel a lesbian employee on her personal
relationship with her partner.
The counselor argued she had a right, under Title
VII, to be excused from counseling employees on
subjects that conflicted with her religious beliefs.
The Fifth Circuit Court of Appeals disagreed, explaining
that to require the employer to accommodate the
counselor's religious beliefs in this way would impose an
undue hardship and excessively burden other
counselors. Bruff v. North Mississippi Health Services,
Inc., 244 F.3d 495 (5th Cir. 2001).
IS THE EEO OFFICE THE PLACE
TO GO FOR HELP?
CNN Report Today on Human Resources
 Sue Meisinger CEO SHRM
 Protect employees and employer
 EEO Office takes the side of employer
 Balanced Roles
 EEO Affects Productivity
 EEO Affects Employee Retention
 EEO Affects the Bottom Line
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HOW MUCH TRAINING IS
ENOUGH?
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Advanced Training for EEO Officers
Management Training on Sexual Harassment and EEO
Topics Every 2-3 years
Employee Training on Rights & Responsibilities Such as
Duty to Report every 2-3 years
Additional Management Training on Personnel Duties
Advanced Management Training on Complaints &
Investigations
Diversity Training for all Employees for Workplace Conflicts
WHAT SHOULD MANAGERS DO
IF…
Employee tells manager of an offensive
incident that they don’t want to file an
official complaint
 Witness misconduct that no one
complains about
 After hours or off work premises
 Inference of Retaliation by transferring
complaining party etc.
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DIVERSITY AND EEO
INITIATIVES
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Complaints generally decrease where the training
and diversity initiatives are working
No Complaints filed does not necessarily mean no
problems
An ounce of prevention is worth a pound of cure
Without proper documentation the organization can
lose it’s affirmative defense
Beware of the well-intentioned manager
Investigate no matter how trivial it seems
Remind employees that the organization’s policies
are much more strict than EEO laws
EEO GOING FORWARD
Issues Arising in your Workplace?
 Preventative Measures Taken?
 Disciplinary Action Taken?
 Obstacles for EEO Officers?
 Obstacles for Administrators?
 Obstacles for Management?
 Questions & Comments?
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