Understanding Job Discrimination Basic Training for MSPTA
Transcription
Understanding Job Discrimination Basic Training for MSPTA
Understanding Job Discrimination Basic Training for MSPTA Troopers and Sergeants The Contract and the Early Days • The MSPTA contract adopted this contract language in 1980: Section 13. Prohibited Discrimination > The parties agree that this Agreement shall be applied without unlawful discrimination as to race, color, national origin, religion, sex, sexual orientation, age, disability, political affiliation, or genetic information that is unrelated to the person's ability to perform the duties of a particular job or position. Claims that allege violation(s) of the Americans with Disabilities Act (ADA) may be processed through Step 3 of the grievance procedure provided in Article 9, without prejudicing the employee's right to file suit or other procedures established by law. Any other employee(s)’ charges of employment discrimination shall be handled exclusively by and through the appropriate State or Federal agencies, or through appropriate judicial proceedings. ©SHRM 2008 2 Why the Contract Evolved the Way it Did • Why the contractual “carve out” for discrimination claims? The MSPTA did not want to waive its members’ right to a jury trial in discrimination cases. > The MSPTA wanted Judges, not Arbitrators, to decide these important issues affecting its members. > Since 1980, the MSPTA has sometimes employed or utilized advocates at arbitration who were not lawyers who would not have the expertise to pursue constitutional and/or statutory claims. > ©SHRM 2008 3 Federal Laws FEDERAL DISCRIMATION LAWS Title VII of the Civil Rights Act of 1964 Americans With Disabilities Act (ADA) Age Discrimination in Employment Act (ADEA) Genetic Information Nondiscrimination Act (GINA) These are federal laws which prohibit all employers, including unions, from discriminating in employment based on certain immutable characteristics. They also prohibit retaliation against persons who complain of discrimination or participate in an Equal Employment Opportunity (EEO) investigation, either as a complainant or a witness. ©SHRM 2008 4 Protected Characteristics • • • • • • • • Race Color Religion Sex (including gender identity, change of sex and/or transgender status) National origin Disability Age (over 40) Genetic information ©SHRM 2008 5 Purpose of this Presentation The purpose of this presentation is to provide MSPTA members with a basic understanding of three key concepts within these laws: • What is discrimination? • What is harassment? • What is retaliation? • • To help our members recognize and avoid actions prohibited by the law and to insure they treat co- and subordinate employees with respect and dignity. These slides, prepared by the SHRM, have been customized as much as possible to refer to Michigan’s corresponding laws and the MSP’s own Official Orders. ©SHRM 2008 6 Objectives of this Presentation At the end of this presentation, the goal is that participants will be able to: • • • • • • • • Understand what federal and state discrimination laws are, and their basic provisions. Define discrimination. Define harassment. Cite categories of harassment. Define retaliation. Understand the costs involved with violations of federal and state discrimination laws. Describe the MSP policy on discrimination, harassment, and retaliation. Understand the responsibilities supervisors (including sergeants) have in complying with federal discrimination laws. ©SHRM 2008 7 What is Title VII, ADA, ADEA, and GINA? Title VII, the ADA, the ADEA, and GINA are the federal laws which protect MSP employees from discrimination, harassment and/or retaliation based upon certain “protected characteristics” • • • They prohibit employers, including unions, from discriminating in employment based on race, color, religion, sex (including gender identity, change of sex and/or transgender status), national origin, disability, age, or genetic information. They prohibit retaliation against persons who complain of discrimination or participate in an EEO investigation. They help to create a workplace where employees are treated with respect and dignity. ©SHRM 2008 8 What are the Basic Provisions of Title VII? Title VII, the ADA, the ADEA, and GINA prohibit discrimination in all aspects of pre-hire and the employment relationship including: • • • • • • • • • • • Recruiting Interviewing Hiring Promotion Demotion Job transfer Compensation Training Discipline Benefit Administration Termination/Dismissal ©SHRM 2008 9 What is Discrimination? “Discrimination” is any policy or action undertaken by an employer (typically by a supervisor or manager) related to recruiting, hiring, promotion, pay or training practices that results in an unfair disadvantage to either an individual or group of individuals who are considered part of a protected class. ©SHRM 2008 10 What is Discrimination? (cont’d) Discrimination also includes: • • • Retaliation against an individual for making a charge of discrimination, participating in an investigation, or opposing discriminatory practices. Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities. Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group. Source: Equal Employment Opportunity Commission (EEOC), Discriminatory Practices Overview ©SHRM 2008 11 What is Discrimination? (cont’d) The discriminatory employment action must result in a “tangible employment action” which is a change in employment status or the privileges of employment AND the basis for doing so must be due to the employee’s protected status. Discrimination is: • • • • Illegal Costly Disrespectful Violates the MSP value statement: "A PROUD tradition of SERVICE through EXCELLENCE, INTEGRITY, and COURTESY" ©SHRM 2008 12 Group Discussion- Are these discriminatory actions? Why or why not? A Post Commander: • • • • • Increases Jane’s workload but not Juan’s. Assigns Juanita to the “days” because she is always late. Changes Mohamed’s job description so he can leave early on Friday. Reassigns George’s work assignments which limit his opportunities for overtime, salary increases and promotions. Changes Maria’s job title with no change in pay, bonuses, salary increase or opportunities for advancement. Leave the collective bargaining agreement aside for this discussion, and think only about federal and state law. ©SHRM 2008 13 Michigan Discrimination Laws • Michigan’s anti-discrimination law, named the “Elliott-Larson Civil Rights Act” is very similar to the federal law, but adds the following “protected categories” not found in federal law: Height > Weight > Marital status (married, single, divorced, etc.) > Familial status > • Michigan also has a law named the “Persons with Disabilities Act” It is very similar to the Americans with Disabilities Act (ADA) > Exceptions will be discussed later > ©SHRM 2008 14 What is “Illegal Harassment?” In the employment and legal context, “harassment” is defined as conduct or actions, based on race, religion, sex (including gender identity, change of sex and/or transgender status), national origin, age, disability, genetic information, military membership or veteran status, severe or pervasive enough to create a hostile, abusive or intimidating work environment for a reasonable person. State laws and local ordinances may further define harassment to include additional protections, such as sexual orientation, marital status, trans-sexualism or cross-dressing, political affiliation, criminal record, prior psychiatric treatment, occupation, citizenship status, personal appearance, "matriculation," tobacco use outside work, Appalachian origin, receipt of public assistance or dishonorable discharge from the military. ©SHRM 2008 15 What is Harassment (cont’d) Harassment is a form of discrimination that violates federal law when it is: • • • • Unwelcome verbal or physical conduct based on a person’s race, color, religion, sex or gender, national origin, age (40 and over), disability (mental or physical), or genetic information. Severe, pervasive and persistent conduct that unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment. An occurrence where an employee’s status or benefits are directly affected by the harassing conduct of a manager or person of authority. Adverse employment actions (retaliation) against employees who complained of harassment or discrimination, who participated in a complaint procedure, or who rebuffed a supervisor’s romantic or sexual advances. ©SHRM 2008 16 Harassment Related to Protected Status National Origin • It is illegal to discriminate based on an employee’s birthplace, ancestry, culture or linguistic characteristics common to a specific ethnic group. For example, it would be discriminatory harassment to require employees to speak only English unless an employer shows that the requirement is necessary for conducting business. Disability • The Americans with Disabilities Act prohibits workplace discrimination on the basis of disability. Illegal harassment occurs when a disabled worker is subjected to pervasive and severe harassment due to his/her disability and which results in a hostile work environment for the employee. ©SHRM 2008 17 Harassment Related to Protected Status (cont’d) Sex Discrimination • It is illegal to discriminate on the basis of gender. Requests for sexual favors in exchange for preferential treatment as well as workplace conditions that create a hostile environment for persons of either gender constitute sexual harassment. This includes “same sex” harassment. Pregnancy Based Discrimination • Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions and not used for discriminatory treatment. Harassment for this protected status, for example, would be ridiculing an employee for her appearance during pregnancy. ©SHRM 2008 18 Harassment Related to Protected Status (cont'd)) Age Discrimination (ADEA) • Protects individuals who are 40 years and older from discrimination. An example of harassment based on age would be referring to an older worker as “gramps” or “granny,” thus creating a hostile work environment. Race/Color • It is illegal to discriminate on the basis of race or color. Slurs or jokes, offensive or derogatory comments, or other verbal or physical conduct based on an employee’s race/color constitutes discriminatory harassment if that conduct creates an intimidating, hostile or offensive work environment and prohibits an employee from performing their job. ©SHRM 2008 19 Harassment Related to Protected Status (cont’d) Religion • An employer cannot discriminate based on an employee’s religious beliefs or practices. Harassment based on religion occurs when an employee is antagonized or ridiculed because of his or her religious, moral or ethical beliefs. Another type of religious harassment occurs when a co-worker or supervisor “preaches” or proselytizes to an employee and the employee perceives that behavior to be unwanted and offensive, amounting to a hostile work environment. ©SHRM 2008 20 Additional Examples of Harassment Unwanted/unwelcomed Behavior or Conduct: • • • • Flirting, advances and/or propositions of a sexual nature. Remarks, insults, humor, jokes which are demeaning to an individual including their body or clothing, national origin, culture, race, age, religion, disability. Offensive displays of sexually suggestive objects or pictures. Offensive touching, such as patting, pinching, hugging or repeated brushing against an individual's body; sexual assault; and/or suggestions that submission to or rejection of sexual advances will affect decisions regarding an employee's work assignments, status, salary, benefits or other terms or conditions of employment. ©SHRM 2008 21 Whistleblowing • The Difference between Whistleblowing and Retaliation: Employees are typically the persons who “blow the whistle” > Supervisors or management are the ones who engage in retaliation, typically against those who have engaged in “whistleblowing > • The Michigan Whistleblower’s Protect Act It does not protect Troopers and Sergeants or other State employees. > The law explicitly excludes state employees from its coverage > • The laws forbidding retaliation for voicing or filing a civil rights complaints protect most problems that would be handled in the private sector as a “Whistleblower’s complaint.” ©SHRM 2008 22 What is Retaliation? • In the employment context, retaliation occurs when an employer takes an adverse action against a covered individual because the employee engaged in a protected activity. • Terminating employment, demoting or illegal harassment of employees for their filing a charge of discrimination or, participating in a discrimination investigation or proceeding, or their opposing discrimination would be retaliatory action. • Retaliation is illegal, disrespectful, and costly. ©SHRM 2008 23 What is Retaliation? (cont’d) Retaliation does NOT include: • petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history. Source: EEOC Fact Sheet ©SHRM 2008 24 Costs for Violating Discrimination Laws Employer penalties/damages may include: • • • • • • • • Prospective pay. Back pay. Lost benefits. Compensation for emotional damage. Actual and hidden costs associated with your organization’s reputation in the community. Punitive damages if the EEOC finds an employer intentionally discriminated. Punitive damages are capped, depending on the number of employees. Maximum amount of damages based on the size of your organization and range from $50,000 to $300,000. ©SHRM 2008 25 Costs for Discrimination Laws(cont’d) Costs to supervisors include: • • • Increased work load and lost productivity = More work for you! Your reputation in the organization if you are the subject of an EEOC charge or law suit. Direct or indirect legal costs which may affect your budget or the organization’s profitability. ©SHRM 2008 26 Group Discussion --You Be the Judge • • Mary filed an EEO grievance with HR six months ago. She has always been hard to supervise. You want someone else to manage her and you asked HR to reassign her to another unit. HR says the only available position may involve a change in title and less overtime. Would transferring her be considered discrimination, harassment or retaliation? Bill constantly complains that his back hurts. You are so tired of hearing his complaints that you told him he cannot work until he provides you with proof that he has seen a doctor and the doctor says he is fit to work. Furthermore, he must provide you with a copy of the diagnosis and any prescriptions. Although Bill complains a lot there are no significant attendance or performance issues. Are your actions illegal discrimination, harassment or retaliation? ©SHRM 2008 27 MSP Policy & Procedures for Discrimination, Harassment, and Retaliation • • Official Order #12 is included in the handout materials. It describes the MSP policy on reporting and handling discrimination matters, including harassment. Official Orders, however, can never “override Federal or State law.” ©SHRM 2008 28 A Sergeant’s Responsibilities as a Supervisor Know and comply with MSP policy and procedures Immediately report any complaint that you receive from your employees or incidents that you witness involving other supervisors’ employees to the Human Resources Director When handling harassment complaints from your employees: • • • • • • Respond to employees’ complaints as soon as possible. Demonstrate your willingness to hear and objectively discuss complaints. Inform the employee that you must report all complaints to the HR Director. Tell the employee that confidentiality will be respected as much as possible but cannot be assured in order to fully and properly investigate employee concerns/allegations. Do not object if an employee prefers to or actually bypasses the standard chain of command. Do not engage in retaliation against an employee who complains of harassment or discrimination. ©SHRM 2008 29 Your Responsibilities as Supervisors (cont’d) Investigations are conducted by the HR Director or by the Professional Standards Unit • • Be available for interviews and provide as much information as possible. Make employees available for interviews. Once an investigation has been completed, if disciplinary action is to be taken, work with the HR Director to make sure that: • • The victim is not adversely affected. The harassment stops and does not recur. ©SHRM 2008 30 Group Discussion --You Be the Judge An employee hired about one month ago after working in the company as a temporary employee, has been involved in confrontations with other employees and has claimed sexual harassment and age discrimination. An internal investigation of his allegations did not support his claims of sexual harassment or discrimination. You think he is a trouble maker and would like to terminate his employment. Furthermore your company policy says that the first 90 days of employment is a trial period. The purpose of the trial period is not only to provide employees with a learning period but also to give the company an opportunity to evaluate employee suitability to the company and its needs. During the 90 day trial period, an employee can be terminated for any reason at the sole discretion of company. Is terminating this employee, discrimination, harassment, retaliation or a good employment decision which will save the company at lot of money and trouble in the future? Explain your answer. ©SHRM 2008 31 Summary • Title VII, the ADA, the ADEA, and the GINA are federal laws which protect employees from discrimination, harassment and retaliation. • The Elliott-Larson Civil Rights Act is a Michigan law which protects employees from discrimination, harassment and retaliation. • The Michigan Person’s with Disabilities Act is modeled after the ADA and prohibits discrimination against persons with an actual or perceived disability. It also requires the Employer to accommodate person’s with a disability, if it can do so without reasonable hardship to the agency. ©SHRM 2008 32 Summary (continued) • Discrimination is any policy or action taken related to recruiting, hiring, promotion, pay or training practices that result in an unfair disadvantage to either an individual or group of individuals who are considered part of a protected class. • In the employment and legal context, harassment is defined as conduct or actions, based on race, religion, sex (including gender identity, change of sex and/or transgender status), national origin, age, disability, genetic information, military membership or veteran status, severe or pervasive enough to create a hostile, abusive or intimidating work environment for a reasonable person. ©SHRM 2008 33 Summary (continued) • In the employment context, retaliation occurs when an employer takes an adverse action against a covered individual because the employee engaged in a protected activity. • Penalties/ damages for violations of federal laws may include prospective or back pay, lost benefits and punitive damages, as well as payment of a prevailing plaintiff’s litigation costs, including reasonable attorney fees. Jury verdicts often exceed $1.0 million dollars, even in non—discharge cases. • Supervisors are responsible for knowing and complying with MSP policy and procedures, reporting immediately any complaints or incidents, and cooperating with investigations and any disciplinary action. ©SHRM 2008 34 What To Do if You Have a Complaint • • • • • The steps for filing a complaint under Federal law and Michigan law are very different. Under federal law, damages are capped. Under Michigan law, damages are not capped. In order to bring a charge under federal law, you must first file a complaint with the EEOC. In general, the time limit is 180 days from the incident(s) about which a complaint is made. That time limit is extended to 300 days in Michigan because this State also has anti-discrimination laws and an agency that handles claims (MDCR). Wondering about a federal claim? The EEOC provides a handy assessment tool on its website: https://egov.eeoc.gov/eas/ ©SHRM 2008 35 Do I have to go to the EEOC to file my claim? • • • • • The EEOC recommends that you personally come to their office if you live within 50 miles of an office. In Michigan, the only EEOC office is in Detroit. Alternatively, you can complete the EEOC intake questionnaire and fax, email or mail it back to the agency. This is not the same thing as filing a claim, but it begins the process and allows the EEOC to make certain it has jurisdiction over the claim. In the questionnaire, you can request an investigation, or you can request that a charge be issued if the EEOC finds sufficient evidence to issue a charge. The EEOC website is an outstanding resource and the best place to start evaluating whether you may have a claim. ©SHRM 2008 36 How do I File a Complaint with the Michigan Department of Civil Rights? • • • Within 180 days, you can go to one of the three MDCR offices in Michigan: Lansing; Detroit; or Grand Rapids; or You can file a request for a complaint online at: http://www.michigan.gov/mdcr/ and a civil rights representative will contact you to assist in drafting a complaint. MDCR will serve the complaint upon the employer and offer the employer the option to answer questions or seek an amicable resolution through mediation. ©SHRM 2008 37 Do I need to have a lawyer when filing an EEOC or MDCR claim? • No, but many victims of discrimination choose to have a lawyer assist them with their administrative claims. • • • • • Important note: Under Michigan law, it is not necessary to first file a claim with the MDCR. You can go directly to circuit court. Of course, you will need a lawyer for court. If you choose to go to court, the statute of limitations is three years, not 180 or 300 days. You can opt to have your case heard by a judge or jury. If you win, the court can order the employer to pay your reasonable litigation expenses, including attorney fees. Most Civil Rights lawyers take cases on behalf of plaintiffs of a contingent fee or combination flat fee/contingent fee. ©SHRM 2008 38 Conclusion • • • • • The MSPTA opposes illegal discrimination or harassment of its members in any form, regardless of the rank of the person perpetrating the discriminating or harassment. The MSPTA has always been willing to arrange for member’s to have legal guidance and advice upon request with inside or retained legal counsel. The MSPTA cannot offer no-cost legal representation in Civil Rights cases (or Worker’s Compensation cases) because the costs would be prohibitive. The MSPTA can and will assist members in identifying lawyers who specialize in civil rights or workers’ compensation cases affecting our members. The MSPTA does not recommend the selection of a lawyer through phone book or internet ads. ©SHRM 2008 39