Montana Human Rights Bureau

1
Montana Human Rights Bureau

• Department of Labor and Industry
• Employment Relations Division

2
What We Do

• Provide neutral investigations of discrimination
  complaints.
• Offer early mediation to resolve complaints prior
  to investigation.
• Provide information to employers and employees to
  prevent discrimination cases.
• Prevent 500-600 cases from going directly to
  district court.

3
Discrimination in What?

• Employment
• Housing
• Education
• Insurance
• Financial Transactions
• Public Accommodations
• Government Services

4
What we dont do

• Deal with every workplace issue
• Set law
• Fire people
• Provide legal advice
• Advocate for either party

5
Why should an employer care about workplace
discrimination

• Costs of workplace discrimination
• Low moral
• Declining productivity
• Absenteeism
• High turnover
• Lost customers
• Lawsuits

6
Human Rights Bureau Process
7
How many employees must I have before an employee
can file a discrimination claim?

• Montana Law covers anyone with one or more
  employees
• Federal laws cover 15 or more employees Age
  Discrimination in Employment Act requires 20 or
  more employees
• A person can file under federal and state laws on
  the same claim

8
What is Illegal Discrimination

• If based on a protected class, these actions are
  illegal
• Discharge
• Refusal to hire
• Deny maternity leave, not reinstated
• Deny reasonable accommodation
• Discriminate in compensation or other term of
  employment

9
What is a protected class

• Race or national origin
• Religion
• Creed
• Sex
• Physical or mental disability
• Marital status

• Age
• Retaliation
• Political belief (government employees)
• Color
• Family status (housing only)

10
Age Discrimination

• Montana Law protects all ages
• Federal Law protects employees 40 years of age
  and older.

11
Religious Discrimination

• It is unlawful to discriminate against someone in
  employment based on their religion.
• The law requires employers to accommodate
  religious needs such as observance of Sabbath or
  religious holidays and restrictive dress codes,
  unless it causes undue hardship.

12
What is undue hardship with regards to religious
accommodation

• More than ordinary administrative costs
• Violation of bona fide seniority system or union
  contract

13
What is illegal harassment?

• Harassment can be any behavior that slanders or
  shows hostility toward another person because of
  their protected class. Harassment creates an
  offensive, intimidating work environment and/or
  negatively affects a persons work performance or
  employment opportunities.

14
Examples of harassment

• Repeated jokes, innuendoes or comments
• Offensive pictures
• Lyrics in music that are offensive
• Discussing co-workers personal life with others
• Blocking anothers movement
• Unwelcome physical touching

15
What is not harassment under the Human Rights Act

• An offhanded comment
• Unfair treatment
• The Human Rights Act is not a civility code for
  the workplace

16
The behavior must

• Be sufficiently frequent or severe to create a
  hostile work environment
• OR
• Result in a tangible employment action

17
What is sexual harassment

• Propositions for sexual favors
• Physical touching
• Repeated jokes
• Inappropriate comments about appearance
• Harassment based upon gender in a non-traditional
  setting (male nurse or female construction worker)

18
Sexual harassment can occur in a variety of
circumstances

• The victim as well as the harasser may be a woman
  or a man. The victim does not have to be of the
  opposite sex.
• The harasser can be a supervisor, an agent of the
  employer, a co-worker or a non-employee, such as
  a vendor.
• The victim does not have to be the person
  harassed, but could be anyone affected by the
  offensive behavior.

19
The employer knew or should have known, but did
not correct the problem

• If the supervisor knew about the harassment and
  failed to inform the owner, the company could
  still be liable. Supervisors must act. Do not
  ignore complaints!

20
How to prevent sexual harassment

• Grievance or complaint policy is necessary to
  invoke the Affirmative Defense in co-worker
  harassment claims.
• Grievance or complaint policy with ways to report
  other than to the harasser.
• Communicate with employees that harassment will
  not be tolerated.
• Take immediate, effective action when a complaint
  is received.
• Follow up to be sure the harassment stopped.
• No retaliation!

21
What is the employees responsibility

• The employee must take reasonable steps to avoid
  harm from the harassment
• This responsibility is usually done by using the
  employers complaint procedure

22
Pregnancy Discrimination

• Non-discrimination in hiring
• Continued employment
• Reasonable maternity leave
• No mandatory unreasonable leave
• Use of accrued benefits and leave time
• Equal treatment in employment benefit plans
• Do not confuse it with FMLA

23
Preventing Pregnancy Discrimination

• Communicate with the pregnant employee regarding
  her anticipated medical leave and return dates

24
Pregnancy Reinstatement

• Upon signifying her intent to return, the
  employee must be reinstated to her original job
  or an equivalent position with equivalent pay and
  benefits, unless it is impossible or unreasonable
  to do so.
• 49-2-310 MCA describes unlawful acts of employers
  with regards to maternity leave.
• 49-2-311 MCA describes reinstatement after
  maternity leave.

25
Disability Discrimination

• If the person is qualified for the job and is
  disabled, you cannot
• Refuse an application, interview or employment
• Terminate because of the disability

26
Disability within the meaning of the ADA

• Physical or mental impairment that substantially
  limits one or more major life activities
• A record of a substantially limiting impairment
  or
• Regarded or treated as having an impairment,
  although no impairment

27
Major life activities include, but are not
limited to

• Walking
• Seeing
• Speaking
• Breathing
• Eating
• Reproduction
• Performing manual tasks

• Hearing
• Learning
• Caring for oneself
• Working
• Sitting
• Standing
• Lifting

28
Mitigating Measures

• The U.S. Supreme Court ruled that if there are
  mitigating measures that correct the impairment
  resulting in no substantial limitation of a major
  life activity, the employee is not disabled under
  ADA. (Sutton v. United Airlines)

29
Qualified

• Disabled person must be able to perform the
  essential functions of the job with or without a
  reasonable accommodation.

30
Individual Assessment

• Employers have a duty to assess an employees
  disability as it relates to a job qualification
  on an individual basis.
• Employees cannot be disqualified for a job due to
  an impairment without an individual assessment of
  that employee.
• The assessment must look at the totality of the
  circumstances and the whole person.

31
Interactive Process

• Employees have a duty to notify the employer if
  they need an accommodation if it is not apparent
  to the employer.

• When a qualified individual with a disability
  makes a request, the employer is obligated to
  provide a reasonable accommodation, unless to do
  so would cause an undue hardship

32
What is a reasonable accommodation?

• It depends on
• Cost
• Availability
• Necessity
• Is something less expensive or more convenient
  available
• Employees preferred accommodation is not required

33
Unreasonable accommodation

• Endangers employees health or safety
• BFOQ Bona Fide Occupational Qualification
  exemption exists
• Causes undue hardship (creates an extraordinary
  financial hardship)
• Eliminates an essential job function

34
Application Process as it relates to the ADA

• When requested by an individual with a
  disability, accommodations must be made in the
  application process, unless they create an undue
  hardship

35
Requesting Documentation

• Employers can request documentation of a
  disability when an employee requests an
  accommodation.
• When the disability and/or need for the
  accommodation is not obvious.
• Employer may only require documentation that is
  needed to establish that person has a legal
  disability which necessitates a reasonable
  accommodation.

36
Prevention is the best tool

• Communication
• Training
• Post your policy
• Establish a complaint procedure
• Promptly investigate complaints
• Insure no retaliation

37
Responsibilities of employers

• Record keeping for 2 years, longer if complaint
  is filed
• Hiring
• Personnel records
• Payroll
• Discipline
• EEO reporting

38
Resources

• Human Rights Bureau www.montanadiscrimination.com
  [phone]
• Job Accommodation Network (JAN) www.jan.wvu.edu
  [phone]
• Equal Employment Opportunity Commission (EEOC)
  www.eeoc.gov

39
Website resources

• www.montanadiscrimination.com
• Guide to the Montana Human Rights Laws
• Harassment Powerpoint
• Montana Code Annotated (MCA) and Administrative
  Rules of Montana (ARMs)
• Final Agency Decisions (FAD)
• Statistics in Brief
• Model Policies for Employers

40
Montana Human Rights Bureau

• [phone]