NEOC

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NEOC

• A State Agency with a Mission

Presented by Gretchen Eure
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What is the NEOC?

• An administrative agency of the State
• Renders formal determinations on charges
• Conciliates charges of unlawful discrimination
• Provides information and assistance in matters of
  civil rights laws and compliance

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The NEOC has established working relationships
with two federal agencies to render
determinations on employment and housing
cases. The NEOC works with the U.S. Equal
Employment Opportunity Commission on employment
discrimination cases. The NEOC works with the
U.S. Dept. of Housing and Urban Development on
housing cases.
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Case Study The employee was the only woman in her
department and operated a forklift. She
complained that her immediate supervisor sexually
harassed her. The supervisor was disciplined for
the conduct, but she was reassigned from her
forklift duty to standard laborer duties.
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The employee complained to the EEOC alleging
gender and retaliation discrimination. The
Employer suspended her without pay for
insubordination. The Employer found she had
not been insubordinate, reinstated her and
awarded her backpay for the 37 days she was
suspended. The employee filed another charge of
discrimination.
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The lower court awarded the employee compensatory
damages, but applied this standard the
retaliation plaintiff must show an adverse
employment action it defined as a materially
adverse change in the terms and conditions (of
employment)
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The Supreme Court said The anti-retaliation
provision of the law has no such words. And the
employee is entitled to more
Application of Title VII retaliation provision is
not limited to employers employment-related or
workplace actions.
Burlington Northern Santa Fe Railway Co., v.
Sheila White, 126 S.Ct. 2405 Decided June 22,
2006
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Five Laws Enforced by the NEOC
Employment Laws Fair Employment Practice
Act Act Prohibiting Unjust Discrimination in
Employment Because of Age Equal Pay
Act Housing Law Fair Housing Act Public
Accommodations Law Act Providing Equal Enjoyment
of Public Accommodations
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OVERVIEW OF BASIC LAWS
Nebraska Fair Employment Practice Act
(FEPA) and Title VII of the Civil Rights Act of
1964 Americans With Disabilities Act of 1990
(ADA) Prohibits discrimination based upon race
color disability religion national
origin sex marital status
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OVERVIEW OF BASIC LAWS
Nebraska Act Prohibiting Unjust Discrimination in
Employment Because of Age (ADEA) and The Age
Discrimination in Employment Act of 1967
(ADEA) Prohibits discrimination based upon Age
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Supreme Court
General Dynamics Land Systems v. Cline No.
02-1080 Decided February 24, 2004 The ADEAs
text, structure, purpose, history, and
relationship to other federal statutes show that
the statute does not mean to stop an employer
from favoring an older employee over a younger
one.
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Supreme Court
Smith v. Jackson, Mississippi No. 03-1160
Decided March 30, 2005 Disparate impact theory
applies in age discrimination cases. Disparate
impact When a policy disqualifies a larger
share of one minority group and cannot be
justified as a business necessity.
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OVERVIEW OF BASIC LAWS
Nebraska Equal Pay Act (EPA) and Equal Pay Act
(EPA) Prohibits discrimination on the basis
of sex.
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OVERVIEW OF BASIC LAWS
Nebraska Fair Housing Act and Fair Housing Act
Prohibits discrimination on the basis of
race, color, sex, religion, national origin,
disability, familial status, retaliation
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Case

• A tenant comes to you and says she feels
  uncomfortable around the maintenance person. The
  maintenance person does not actually work for
  your company, but contracts on a as needed
  basis. The tenant hints that it is something of
  a sexual nature.

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• The same tenant later returns to the office and
  makes it clear that the maintenance person says
  things to her that are uncomfortable. When you
  ask the maintenance person about this, she says
  fine then I wont go into her apartment anymore.
  She wont get anything repaired by me anymore.
  Is this legal?

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United States v. Koch352 F.Supp.2d 970

• The jury found the landlord liable for sexual
  harassment and retaliation against tenants.
• This is a recent Nebraska case

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NEOCInvestigation Process
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Investigation Process Rebuttal interview
conducted with the Complainant Methods of
investigation Fact-finding Conference Onsite
interviews Telephone interviews Pre-determination
review/interview The NEOC can subpoena
witnesses, require production of documents,
examine records, impose injunctive relief ...and
discuss pre-determination settlement
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What is illegal discrimination?

• Partiality or prejudice
• in treatment of others based on their
• protected class status

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Sample model of proof for an employment charge
filed under the Disparate Treatment theory

• Most of these cases are decided by
• circumstantial evidence.

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Prima Facie Elements of aCharge of Discrimination

• C is in the protected class
• C was qualified for the job and/or performing the
  job satisfactorily
• Despite qualifications/satisfactory performance,
  C was not hired/discharged
• After failure to hire/discharge, job filled with
  a non-protected class member/job remained open

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Position statement R articulates a legitimate,
nondiscriminatory reason for rejecting C

• Rebuttal of the prima facie case
• Collateral defense (such as lack of jurisdiction)
• Specific Defense (usually to the second or third
  prong of the prima facie case)

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Reasons for PRETEXT

• Rs reason(s) is not believable (factually
  inaccurate)
• Similarly situated individuals outside of the Cs
  protected class were treated differently with
  respect to the rules, policies, procedures,
  standards
• Evidence of R bias against the C or others in the
  Cs protected class
• Statistical evidence showing underemployment of
  the class members.

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Top 10 Business Types Filed Against in Nebraska

• Real Estate Operators and Lessors
• Eating, Drinking Places
• General Government
• Nursing, Personal Care Facilities
• Miscellaneous Business Services
• Services, NEC
• Meat Products
• Hospitals
• Personnel Supply Services
• Public Order and Safety

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Best Practices Used to Ensure the Hiring Process
is free of Bias

• Make sure the job description matches the work
  performed
• Find out if there is an under-representation of a
  protected class
• Look at the advertising and recruitment methods
  used

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• Once the applications are in
• Have written objective and well-defined
  subjective criteria that relate to the knowledge,
  skills, and abilities needed for the job,
• Prepare the interviewers to apply the selection
  procedures consistently,
• Use a Team Interview whenever possible,
• When the interviewing process is completed,
  review the applicant flow statistics for
  protected class members

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Prohibited Questions

• A good general rule is to treat every prospective
  employee the same.

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Prohibited FEPA Questionsand use of code words

• Can you work on weekends?
• Questions about children.
• Are you a U.S. citizen?
• Do you own a car/house/furniture?
• Questions about height/weight
• Maiden name?
• Questions about marital status
• Questions about spouse
• Questions about child-bearing plans
• Crime records

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The laws require the business to make, keep,
preserve records relevant to the determination of
whether unlawful practices have been or are being
committed.
Section 48-1117(5)(a)(b) Nebraska Fair
Employment Practices Act