A.%20Dean%20Bennett

1
Idaho Healthcare Compliance BootcampDiscriminatio
n LawsWhat You Need To Know

• A. Dean Bennett
• Holland Hart LLP

2
Todays Agenda

• Recognizing the Issue  
• Discrimination overview federal and state laws
• Developing issues - sexual orientation and
  pregnancy discrimination
• Investigation and Enforcement - EEOC / IHRC
• Responding to EEOC and other agencies
• Best Practices

3
Recognizing the Issue

• Employers cannot unlawfully discriminate based
  upon protected characteristics
• Anti-discrimination laws prohibit
• adverse actions (e.g., firing, failing to hire,
  pay differences, etc.)
• harassment (quid pro quo and hostile work
  environment)
• retaliation

4
Idaho Anti-Discrimination Law

• Idaho Human Rights Act - I.C. 67-5909
• It shall be a prohibited act to discriminate
  against a person because of, or on a basis of,
  race, color, religion, sex or national origin . .
  . and on the basis of age or disability . . . .

5
Federal Anti-Discrimination Laws

• Title VII of the Civil Rights Act
• Prohibits discrimination on the basis of race,
  color, religion, sex, and national origin
• Age Discrimination in Employment Act (ADEA)
• Americans with Disabilities Act (ADA)
• Genetic Information Nondiscrimination Act (GINA)
• Pregnancy Discrimination Act (PDA)
• Equal Pay Act (EPA)

6
Disparate Treatment

• Treating applicant or employee differently based
  on protected characteristics
• Examples
• Female secretary paid less than male secretary
• Conducting background checks on African American
  applicants but not on white, Hispanic or other
  race applicants

7
Disparate Impact

• Neutral conduct that has an adverse effect on a
  protected group
• Examples
• Requiring a college degree screens out more
  blacks than whites
• Minimum 56 height requirement screens out
  more females than males

8
Harassment

• Quid Pro Quo benefit in exchange for sexual
  favors
• Hostile Work Environment
• Unwelcome physical or verbal conduct
• Based on gender (but may be same sex), or another
  protected characteristic such as race, religion,
  age
• Sufficiently severe or pervasive to create an
  abusive working environment and alter working
  conditions
• Employer knew or should have known of the
  offensive environment

9
Who is Liable for Harassment?

• Supervisors may be individually liable
• If tangible employment action - Strict liability
• If no tangible employment action -Liability where
  the employer knew or should have known of the
  conduct, and failed to take appropriate
  corrective action

10
Defense to HWE Harassment

• Only available when no tangible adverse action
• Employer used reasonable care to prevent
  correct bad behavior AND
• Employee unreasonably failed to take advantage of
  corrective opportunities or otherwise avoid harm

11
Retaliation

• Opposition to discrimination
• Filing or threatening to file a complaint or
  charge
• Complaining about discrimination or harassment
• Refusing to obey an order
• Requesting reasonable accommodation
• Oral Complaints
• Participation
• Assisting in an investigation
• Testifying in a case

12
Hot Issues In Discrimination

• Sexual Orientation
• Pregnancy

13
Sexual Orientation

• Federal enforcement executive order covers
  federal contractors and application to public
  employees
• State enforcement current debate regarding Add
  the Words bill failed in early 2015
• Local Enforcement currently ten cities in Idaho

14
Boise Anti-Discrimination Ordinance

• Enacted in 2013
• Passed for other cities Coeur dAlene, Ketchum,
  Moscow, Pocatello, Sandpoint, Idaho Falls,
  Lewiston, Victor, Driggs (2015) and Hailey (2015)
• Some prohibit gender identity discrimination too

15
What Boises Ordinance Does

• Prohibits discrimination on basis of gender
  identity and sexual orientation in matters of
  employment, housing, and places of public
  accommodation
• Violation is a criminal misdemeanor punishable by
  a fine of up to 1,000 and/or up to six months in
  jail
• No private right of action

16
Takeaways

1. Be aware it exists
2. Good business not to discriminate on any basis
3. Risk of citation minimal
4. Lots of ways to resolve
5. Avoid bad publicity and risk of becoming first
   business to set precedent
6. Stay tuned could see state or federal legislation

17
Pregnancy Discrimination
18
Pregnancy Discrimination Act Of 1978

• Amended Title VII to cover pregnancy
  discrimination
• Covers hiring, firing, promoting
• Must be treated the same as non-pregnant
  employees who are similar in ability or inability
  to work

19
EEOC Guidance

• July 2014 Enforcement Guidance on Pregnancy
  Discrimination
• Called into question recently by U.S. Supreme
  Court (Young v. UPS)
• Reasonable accommodations for pregnant workers
  under ADA

20
Administrative Enforcement

• State Level
• Idaho Human Rights Commission

• Federal Level
• Equal Opportunity Employment Commission

21
Idaho Statistics
22
EEOC Statistics for Idaho
  FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014
TOTAL CHARGES 81 79 97 80 77 67
of US total charges 0.1 0.1 0.1 0.1 0.1 0.1
23
Internal Response Before Claim

• Take swift action upon receipt of claim or if
  aware of issue
• Consider insurance coverage and notice
• Conduct internal investigation
• Involve counsel to preserve privilege
• Be aware of retaliation and shunning issues
• Consider preservation obligation and implement
  litigation hold

24
Agency Investigation

• EEOC or other Responsible Agency will investigate
  alleged unlawful discrimination
• Generally claims must be filed within 300 days of
  alleged discrimination (only 180 days if only
  covered by federal law)
• Agency will conduct investigation
• Includes interview with charging party

25
Responding to Charge/Complaint

• Important to do it right statements made in
  early stages will remain relevant later in
  litigation
• Well crafted response can foreclose litigation
• Be proactive in defense interview witnesses and
  relevant parties
• Prepare detailed response statement
• Defend and participate in interviews

26
Litigation

• Private party can file suit generally 90 days
  after receiving disposition or right to sue
  from agency
• Agency can also file complaint
• Will trigger litigation process

27
Best Practices for Avoiding Liability For
Discrimination And Harassment Claims
28
How To Prevent Claims

1. Policies
2. Recordkeeping
3. Training
4. Fairness and consistency

29
Policies On Discrimination/Harassment

• Conduct not tolerated
• Define
• Reporting responsibility
• Applies not just to acts by employees
• Complaint, reporting, and handling
• Will promptly and fully investigate
• No retaliation

30
Language In Evaluations And Discipline

• What type of language to include
• Detail specifics
• Facts not opinions
• Do not include language about protected class

31
Evaluation Best Practices

• Have supervisor complete evaluation
• Be honest dont sugar-coat
• Evaluation should contain no surprises
• Have process to contest
• Purpose is to ensure fairness of process
• Request employee signature at bottom of review

32
Get HR Involved Or Train
33
Internal Investigations

• Timely and thorough
• By the right person
• Must demonstrate your business took it seriously
  and was fair
• Follow your policies
• Limit it to those involved
• Update alleged victim

34
Best Practices - Recap

• Be mindful of protected classes when making
  decisions
• Consider whether employment practice results in
  disparate treatment or disparate impact
• Implement training to ensure no discrimination
• Recruit, hire, and promote with these principles
  in mind do not rely on stereotypes or
  assumptions
• Ensure effective investigations
• Consider and update policies

35
Thank You!
Thank you!

• QUESTIONS?
• Dean Bennett
• Holland Hart LLP
• ADBennett_at_hollandhart.com
• 208-342-5000