wayne county hr administrators friday, october 10, 2014 understanding and navigating the eeoc/mdcr...

WAYNE COUNTY HR ADMINISTRATORSFRIDAY, OCTOBER 10, 2014

Understanding and Navigating the EEOC/MDCR Process

Presenter:

Kevin T. Sutton

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www.luskalbertson.com/wayneHR

A Difficult Reality …

Can’t avoid EEOC/MDCR claimsCan prepare your District to be in the

best possible position to respond to claims when they arise

“Who are these people?”

Equal Employment Opportunity Commission (EEOC) Federal administrative agency tasked with enforcing

the following statutes: ADA ADEA Title VII of the Civil Rights Act of 1964 EPA GINA

“Who are these people?”

Michigan Department of Civil Rights (MDCR) State administrative agency tasked with enforcing the

following statutes: ELCRA PWDCRA

What are the Standards?

Failure to accommodate under the ADA: Employee must be disabled; Employee must be otherwise qualified for the

position/able to perform the essential duties of the position, with or without reasonable accommodation;

Employer knew or had reason to know about the disability;

Employee requested accommodation; and Employer failed to provide the necessary

accommodation/engage in interactive process

What are the Standards?

Discrimination or Retaliation Discrimination

Employee is member of protected class; Employer is aware that Employee is member of that class; Employee suffered adverse employment action; and Employee is otherwise qualified for position

Retaliation Employee engaged in a protected activity; The Employer was aware that the claimant had engaged in that

activity; The Employer took an adverse employment action against the

employee; and There is a causal connection between the protected activity and

the adverse action

What are the Standards?

Discrimination or Retaliation (cont) In both claims, the Employer can overcome

Employee’s claim by demonstrating legitimate non-discriminatory reason for actions

Employee then must demonstrate that the legitimate non-discriminatory reason is pretext for Employer’s discrimination or retaliation

What are the Standards?

Harassment (form of discrimination) Employee is member of protected class; Subject to unwanted harassment based on protected

classification; Harassment interfered with Employee’s ability to

work, or was the basis for employment decision; That there is a basis for Employer liability:

Employer knew or reasonably should have known about harassment, and

Employer did not take reasonable steps to prevent harassment

What is a Complaint?

A complaint to the EEOC or the MDCR is an allegation by an employee that their employer violated one of the statutes administered by the agency

It is the first step in the process that leads to an investigation into the allegation by the administrative agency

NOTE: Insurance coverage possible; reporting requirements (may or may not be applicable)

What is a Complaint?

A complaint to the EEOC or MDCR is not a lawsuit, but it may be the precursor to one

Under federal law, an individual must file a complaint with the EEOC prior to filing a lawsuit

The same rule does not apply under Michigan law

The Complaint Process

Once a complaint is filed, the employer is notified by the agency

Employer may elect mediation (voluntary for both parties) or file a position statement explaining why it did not violate the law

If investigation is necessary, agency then investigates through: Requests for documentary information In-person interviews

Complaint Resolution - Good

Once the investigation is complete, a finding is made

If the agency does not find “reasonable cause” to believe a statute has been violated, it will issue a “right to sue letter”

“Right to sue” doesn’t mean district did anything wrong; just advises employee that they can file a lawsuit

Realistic chance of success?

Complaint Resolution – Not So Good

If the agency finds “reasonable cause” to believe a statute has been violated, it will seek conciliation If conciliation, settlement is complete If no conciliation, right to sue letter and agency may

sue on behalf of complainant

Defeating a Claim/Lawsuit

“The best offense is a good defense”

Shutting Down a Claim

What Steps Can You Take to Ensure a Viable Defense to Any Claim or Suit?

Consider Legal Standard “Knew or Should Have Known” “Prompt, Remedial Action” “Legitimate, Non-Discriminatory Reason”

Action Steps Investigate claims/concerns Engage in interactive process (ADA) Consistent interview techniques/processes Consistency in discipline Use performance-based metrics for employment decisions Adhere to protocols (district policies, student code of conduct) Document!

When to Investigate?

A formal (or informal) complaintCo-worker reports of questionable

conduct (even if not wanting to become involved or reported anonymously)

Observed or reported employee or student misconduct including violation of workplace rules or student code of conduct Theft or suspected theft Workplace misconduct (harassment, jokes,

comments, etc.)Parent or student complaintsAnonymous complaints

Why Investigate?

Gather facts and evidenceInformed decision-makingAdhere to due process

requirements for staff; adhere to district policy

Create a record of activity Occurrence / Response Establish expectations for behavior Show misconduct will be taken seriously

Be your attorney’s best friend! Document for future proceedings Avoid liability!

Documentation!

Documentation of all situations is vital!Include summaries from meetings/interviewsCollect documents relevant to situationFollow-up as much as needed to gather all

informationCreate a separate file for the investigation

The file should include all documents and other information gathered during the investigation

Employment Decisions

Interviewing, hiring, terminations, promotions, etc.

All decisions should be made on qualifications/performance

Record-keeping, written objective standardsKey: Ability to Justify Decisions

Issuing Discipline

Determine what, if any, corrective action or remedial measures are necessary

Always consider/follow polices and practices

If issuing corrective action, remember purpose of such action: Correct future conduct Communicate to employees what is acceptable

conduct Minimize exposure to future liability for

alleged harassment/discrimination

ADA Interactive Process

Interactive Process refers to an informal process between the employer and disabled employee regarding limitations and possible accommodations Step 1: Analyze job to determine essential

functions. Step 2: Determine with employee how the

disability limits essential functions. Step 3: Identify accommodations to overcome

limitations; determine effectiveness and feasibility. Step 4: Consider employee’s performance and

employer selects accommodation appropriate for employer and employee.

Case Study # 1:Knowing When to Mediate

Case Study #1: Mediation Resolution Agreement

Case Study #2: Prescription or No Prescription

School District offered a teaching position to individual subject to pre-employment physical;

Employee tested positive for narcotics;When questioned by clinic, Employee told the

physician that she takes a prescription narcotic for pain relief of a back problem;

Physician followed up with listed primary care physician who stated she was not prescribed any narcotics for pain relief – Clinic informed District

School District revoked employment offer based on taking of narcotics

Case Study #2: Prescription or No Prescription

Employee files claim with EEOC based on disability discrimination under the ADA

School District responds with position statement explaining that decision based on taking of narcotics without prescription

Employee submits prescription to EEOC from doctor other than primary care physician

EEOC makes finding of “reasonable cause”“District relied on clinic rather than talking to

the employee”

Case Study #2: Prescription or No Prescription

Offer of Conciliation: Reinstate $50K in compensatory damages Training for managers, ensure compliant policies,

accommodate disabilities in the future, and post EEOC notice for 5 years

Counter Offer – Accepted No reinstatement $20K in damages Agree to non-economics

Questions?

Resources/Contact

www.LuskAlbertson.com

@LuskAlbertson

www.LuskAlbertson.com/wayneHR

KSutton@LuskAlbertson.com

248-988-5695 - Direct

734-377-7400 - Cell