HUMAN RESOURCES UPDATE prepared for

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HUMAN RESOURCES UPDATEprepared for

• presented by
• Jonathan A. Segal, Esq.
• No statements made in this seminar or in the
  written materials should be construed as legal
  advice pertaining to specific factual situations.

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Equal Employment Opportunity
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Equal Employment Opportunity

• Protected EEO Groups
• Federal
• State
• Local

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Equal Employment Opportunity

• Examples of protected groups
• Age
• Citizenship
• Disability/Handicap
• National Origin/Ancestry
• Pregnancy
• "Protected" Complaints

• "Protected" Leave
• Race/Color
• Religion/Creed
• Sex
• Sexual Orientation
• Veteran's Status/Military Status

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Equal Employment Opportunity

• Examples of Employment Decisions to Which EEO
  Protections Apply
• Where you advertise
• Whether to interview
• Questions asked in interview
• Whether to hire
• Career management
• Compensation upon hire
• Benefits
• Pay increases
• Hours of work

• Assignments
• Appraisals
• Training provided
• Whether to promote
• Whether to discipline
• Whether to discharge
• Whether to layoff

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Hiring
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Hiring

• Business Goal
• Hire and promote only the most qualified
• Avoid conscious and unconscious bias

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Hiring

• Impermissible interview questions
• Examples
• EEO status
• Family status
• Personal

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Hiring

• Impermissible interview questions (continued)
• Scope
• Formal interviewing
• Informal follow-up

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Hiring

• Permissible interview questions
• Examples
• Prior experience
• Current skills
• Job requirements
• Situational/behavioral questions
• Benefits of starting with uniform list of
  questions

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Hiring

• How to respond to
• Visible disability which the applicant does not
  disclose
• Can ask whether applicant can do the job
• Can't ask about disability

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Hiring

• How to respond to (continued)
• Voluntary disclosure of disability
• See above
• Plus, consult with HR

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Hiring

• How to respond to (continued)
• Request for an accommodation
• i. See above
• ii. Plus, consult with HR

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Hiring

• How to respond to (continued)
• Disclosures about family
• Acknowledge briefly (verbally or non-verbally)
• But no follow-up questions

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Hiring

• EEO/Diversity Danger Zones
• Personal comfort level "just like me" bias
• Bad cultural fit
• Stereotyping

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Performance Management
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Performance Management

• Importance of letting employees know
• When they are meeting expectations
• When they are not meeting expectations
• Business reasons
• Legal reasons
• Union
• Non-Union

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Performance Management

• Vehicles for providing notice
• Informal coaching
• Appraisal process
• Formal discipline
• Progressive discipline
• Exceptions

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Performance Management

• Physical or emotional disabilities/health
  conditions
• Focus on performance/behavioral deficiency
• Don't speculate as to underlying cause
• Don't inquire as to underlying cause

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Performance Management

• Physical or emotional disabilities/health
  conditions (continued)
• Consult with HR if employee
• Discloses physical or emotional condition in
  response to coaching, discipline and evaluation
• Requests accommodation or leave of absence (at
  any time)
• Neither discloses condition nor requests
  accommodation but you have reason to believe
  employee may have serious health condition

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Performance Management

• Importance of consistency
• Legal significance of inconsistency
• Making and documenting legitimate exceptions

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Performance Management

• Importance of timeliness
• Business value
• Legal considerations

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Performance Management

• Performance evaluation minefields
• Over-evaluation
• "Proxy" adjectives
• Absence of meaningful comments

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Performance Management

• Respect and dignity
• Yelling
• Cursing
• Demeaning

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Harassment
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Legal Background

• Two types of unlawful harassment
• Quid pro quo
• Hostile work environment on account of any
  protected group

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Examples of Inappropriate Behaviors (even if not
illegal)

• Linking any employment/educational decision,
  benefit, etc. to a subordinate's or student's
  submission or refusal to submit to sexual
  advances Always illegal
• Sexual advances or propositions (even if no
  demand or threat)
• Engaging in sex while at work

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Examples of Inappropriate Behaviors (even if not
illegal)

• Repeated request for dates1
• Sexually explicit, suggestive or oriented
  discussions/questions
• 1 Initial request problematic if direct or
  indirect subordinate

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Examples of Inappropriate Behaviors (even if not
illegal)

• Comments with regard to appearance of a sexual or
  suggestive nature or at inappropriate times or
  frequency
• Physical assaults of a sexual nature Always
  illegal
• Unwelcome and/or inappropriate touch

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Examples of Inappropriate Behaviors (even if not
illegal)

• Sexual or suggestive jokes or jokes which
  stereotype, demean or make fun of any protected
  group
• Mimicking or mocking someone because of their
  membership in, or having attributes associated
  with their membership in, a protected group
• Sexual or suggestive materials, objects, etc.

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Examples of Inappropriate Behaviors (even if not
illegal)

• Hate symbols or messages or symbols or messages
  which are hostile to a protected group
• Slurs/epithets which relate to any protected
  group
• Nicknames which relate to any protected group

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Examples of Inappropriate Behaviors (even if not
illegal)

• Cursing and other foul language
• Non-verbal innuendo of a sexual, suggestive or
  threatening nature
• Hostile behavior targeted at employee because of
  his or her membership in protected group

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Prohibitions apply to

• Off site work, social and other events
• Written, oral, electronic and all other forms of
  communication
• Students and other non-employees (Students are
  both protected and restricted by the College's
  policies)

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Supervisory Responsibilities

• Refrain from
• Unlawful discrimination, harassment and
  retaliation
• Other inappropriate conduct, even if not unlawful

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Supervisory Responsibilities

• Report all complaints by employees of unlawful
  discrimination, harassment or retaliation or
  other inappropriate conduct to HR, even if
  employee
• Requests that nothing be done
• Asks for absolute confidentiality
• Does not use legal buzz words
• Notes
• Do not investigate on own
• Report complaints by students to Dean of Students

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Supervisory Responsibilities

• Respond proactively to possible unlawful
  discrimination, harassment or retaliation or
  other inappropriate conduct, even in the absence
  of a complaint
• Silence equals tacit support
• Consult with HR to discuss remedial action

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Supervisory Responsibilities

• Remedy unlawful discrimination, harassment and
  retaliation and other inappropriate conduct (even
  if not unlawful)
• Consult with HR
• Focus on inappropriateness, not illegality

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Supervisory Responsibilities

• Refrain from unlawful retaliation
• Applies not only to complainants but also to
  witnesses and others who participate in the
  investigatory process
• Covers not only tangible employment/educational
  decisions but also other terms and conditions of
  employment/education (as well as retaliation
  independent of the workplace)
• Fact that complaint lacks legal merit is not a
  defense to unlawful retaliation

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Thank You!