I'm Brian Farrington I'm the head of the employment law section at Kohl's in Thompson and we're going to have fun and excitement talking about federal labor law today okay what is discrimination I look out here and I see this lady is wearing a garment that has leaves on it I hate that you're fired is that discriminatory it's stupid it's immoral it may even be fattening for all I know but that's not illegal because discrimination means more than just taking an adverse action against somebody for a bad reason it means taking an adverse action against somebody because of their membership in a protected group if I took action against her because she's a woman then that would be a different story that would be that would be legally cognizable discrimination so keep in mind that discrimination is an adverse employment action based on membership in one or more protected groups as created by Statute so we start with talking about the protected groups the probably the most significant law is Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination based on the following factors race color religion sex or national origin interesting stories about the passage of the Civil Rights Act first of all it was the object of the longest filibuster in Senate history as the southern Senators fought tooth and nail to try to prevent a civil rights act from being passed at the time what everybody was thinking about was the public accommodations part anyone who studied the history of the Civil Rights Movement knows the Montgomery Bus Boycott the the integration of bus stations and the Freedom Riders the sit-ins at lunch counters etc etc well now that sort of discrimination part of title one of the ACT has largely been eliminated I won't say entirely but has largely been eliminated but Title VII the prohibition against discrimination in employment continues to be a fundamental feature of the employment landscape another little piece of interesting information the original Bill did not prevent discrimination against women the phrase because of sex was added to the bill by its enemies they thought well you know we fought and fought fought against civil rights based on race we know we're going to lose that wait a minute why don't we put a poison pill in there let's also ban discrimination against women nobody will vote for that ha fooled them and uh Title VII has passed did in fact prevent discrimination based on sex and also of course race color national origin sex and religion so that's the the most important I I think you could say safely say the most important piece of anti-discrimination legislation ever passed okay now in 1978 76 the Supreme Court was faced with a gender discrimination case involving discrimination against pregnant women it was a case called Gilbert versus General Electric in that case the Supreme Court ruled in an opinion by Chief Justice rehnquist which will come as no surprise to those of you who have followed the history of the Court he said that discriminating against pregnant people was not discrimination against women was not sex discrimination two years later Congress said no that's not right and they amended Title VII to add that they passed What's called the pregnancy Discrimination Act and they added Provisions saying that you could not discriminate against people because of pregnancy specifically it said the term because of sex or on the basis of sex include but are not limited to and that phrase not limited to has a lot of weight today because of or on the basis of pregnancy childbirth or related medical conditions and women affected by pregnancy child birth or related medical conditions shall be treated the same for all employment related purposes including receipt of benefits as other people not so affected but similar in their ability or inability to work so we've now expanded the concept of sex discrimination to include discrimination against people who are pregnant because although it escaped chief justice rehnquist uh pregnant people tend to be female all right now so you got to treat pregnancy like any other temporary disability including health insurance seniorities if you're on a seniority system and somebody goes out to have a baby they've got to maintain their seniority and the exceptions what are called bfoqs are very narrowly interpreted bfoq by the way is not an obscene phrase it's an acronym for bona fide occupational qualification are there some jobs in which gender or in which the ability to become pregnant are in fact bona fide occupational qualifications well there are a few one case famously involved people who helped fit women with bras and they said yeah you could make sure those were female but the most fascinating case along these lines is a case called Gilbert first I've no I'm sorry is Johnson Controls uawv Johnson Controls very interesting case Johnson Controls had a battery plant that battery plant produced batteries batteries are made out of lead and Lead as everyone knows and as medical evidence proved beyond the shadow of the doubt causes birth defects so as a consequence Johnson Controls had a policy that if you worked at that facility you could not work in any job in which you could be exposed to lead or could be transferred into a job where you could be exposed to lead or you couldn't work anywhere near the plant if you were if you are a female of child bearing age they defined child-bearing age to be anybody between 16 and 59 who did not have medical evidence of sterility by the way the 59 upper limit we all know that's stupid but the lower limit of 16 was because of child labor you're not going to have any women under 16 working in a factory because that's a violation of the child labor laws so anyway this case goes to court the UAW the union United Auto Workers had unionized the plant this case goes to court the district court rules for the company pardon me it gets appealed to the seventh circuit the three-judge panel of the seventh circuit reverses the district court rules for the women the court that that case is then heard on Bonk as we say meaning that the entire I think there were 15 judges on the on the seventh circuit at that time they reversed the three-judge panel and went back to the uh to the favor of the company so it gets appealed to the Supreme Court and the Supreme Court was this a tough case obviously the lower courts agonized over it back and forth but the Supremes showed you why they're The Supremes nine to nothing they ruled in favor of the female plaintiffs and they said that just because there's a greater risk of birth defects if a woman becomes pregnant that is no business of the companies they cannot prevent them from taking those jobs which of course parenthetically were the best paying jobs at the plant and so the Johnson Controls case stands for the proposition that bona fide occupational qualifications involving sex or pregnancy must be very very narrowly drawn okay we're going to spend a lot of time by the way at the beginning of this on gender discrimination because it has developed over the years into some interesting directions okay uh let's talk about sexual harassment so that's the next step in the development of sex discrimination what do you do in situations where the company hires women promotes women but they're subjected to all kinds of misconduct and nastiness by their supervisors or co-workers but of course usually it's supervisors uh in the mid 70s we began to develop cases involving sexual harassment now interestingly these came out of early racial harassment cases there's some horrifying cases where African-American employees were subject to people hanging nooses on their lockers you know alluding to the terrible history of lynching in the south of scrawled KKK on their lockers vandalized cars did all sorts of things and the courts originally couldn't figure out well is that a violation of Title VII Title VII says you can't discriminate in terms of hiring or promotion or things like that but eventually the courts were able to come to the obvious conclusion which is that harassment is just as bad as discrimination is a violation of the law and then from that we we move to discrimination and harassment based on gender and so we get the early 70s or mid 70s cases and they codified sexual harassment as two kinds the first kind is called quid pro quo that's a Latin phrase it means this for that the exchange of job favors for sexual favors go out with me and I'll promote you if you don't go out with me I'll fire you by the way I mentioned this in one in my earlier presentation quid pro quo was Latin and under American Bar Association rules if I can say it in Latin I get to charge more per hour so quid pro quo baby uh now because it's the exchange of job favors for sexual favors it must be done by an agent of the company in this case by a supervisor and because it's done by an agent of the company the company is strictly liable and an anti-harassment policy does not help if if quid pro quo happens now obviously you need to have one and we'll talk more about that but the point is that if a supervisor engages in quid pro quo harassment of an employee the company is strictly liable for that because what the supervisor does the company does what the supervisor knows the company knows now the other form of sexual harassment which is perhaps not as clear as quid pro quo is called hostile or offensive environment now hostile or offensive environment is a phrase that's frequently misused I often have clients call me and say well so and so says that their boss has created a hostile environment and it turns out that hostile environment means their boss is really getting on them because they don't do their work or in some cases the boss is just mean you just got people who are who are not particularly Pleasant but hostile in this case just like discrimination remember we started talking about discrimination means discrimination based on membership in a protected group similarly hostile or offensive environment has to be motivated by protected group membership I harass you because you're black I harass you because you're Hispanic nowadays we get cases I harass you because you're Asian and I blame China for the for the covet virus or I harass you because you're a woman that's harassment that is a violation of Title VII and action can be taken okay so uh hostile offensive environment is unwelcome sexual advances now unwelcome means unwelcome a consensual relationship is not unwelcome if two people in a company start dating voluntarily that's that's not unwelcome sexual advances it's still dangerous and the employer can still monitor to make sure that they're not in a reporting relationship that they're not spending all of their time making out in the storeroom instead of doing their work you know etc etc but the point is you don't just ban peer-to-peer dating the other reason that a consensual relationship can be dangerous is if they break up and one party wants to keep dating and the other party doesn't and all of a sudden now the advances which were previously welcomed ain't welcome anymore uh and of course you should always forbid as a company supervisor subordinate dating the obvious dangers of quid pro quo are there when a supervisor asks to subordinate out is it really just you know personal attraction or is there some pressure or leverage uh uh based on the fact that this is a person who is in a position of authority all right um and this while it's not a violation of the law is a morale thing there's a perception of favoritism one of the most interesting sets of cases are paramour cases and that's the that's the term the courts use so let's say I'm dating my secretary which is obviously highly implausible since I'm old I'm fat and I've been married for 49 years so that's not happening but if I were dating my secretary and uh I promoted her it would be obvious to everybody else who was a candidate for that promotion that she had an unfair advantage and even if she were the best candidate it would still look like favoritism so those are called paramour cases if I favor my paramour over other employees that's not a violation to Title VII it's bad management is what it is all right uh moving on you cannot forbid or should not forbid co-workers to date but you can apply nepotism rules so you CA the same rules that say you don't have uh uncle and nephew that's the classic nepotism or uh husband and wife in a reporting relationship you don't have uh lovers in a reporting relationship now sexual harassment is also unwelcome again unwelcome verbal or physical conduct of a sexual nature so it can be sexual advances which can be anything from pardon me would you care to go out with me Saturday night too hey baby let's get it out of the storeroom uh obviously one's a lot worse than the other but but those are sexual Advantage advances the other is is conduct verbal or physical of a sexual nature so uh there's some some strictures to that unwelcome means both objectively and subjectively objective means uh well let's say subjective means I feel offended but objective means any reasonable person in the place of the victim would be offended what we don't want to have is someone who is hypersensitive and and objects to conduct at no reasonable person would object to I got a call once from a museum up in I think it was Minnesota many many years ago and I said oh we have this problem this woman is is complaining about one of her her co-worker who has some pictures on on his desk and I said well what's what's the picture well apparently the co-worker and his wife his wife went to the Caribbean together and they went out on boats and you know did the things you do when you're in the Caribbean and there's a picture of them on the dock arms around each other in their bathing suits and this co-worker was horribly offended that this guy had a picture of his wife in a bathing suit on the desk I said okay here's my legal analysis tell her to get a life because because no reasonable person in the place of the victim would have objected to those pictures now it's another thing if the Boudoir photography or nude photographs or whatever sure but um but the the mere fact that I'm offended does not end the analysis I'm offended and it's reasonable for me to be offended that's that standard okay now the oops the conduct must be serious or pervasive not isolated or incidental physical conduct uh is serious it's ancient history now but how many of you remember Clinton V Jones the uh the Paula Jones lawsuit against then president uh Bill Clinton for conduct that was alleged to have occurred while Clinton was the governor of Arkansas Ms Jones was the lowest level employee in the state of Arkansas I mean basically she was somebody who worked for the Development and Tourism department and there was a conference kind of like this conference and she was at the desk uh and the governor came by and the governor found her quite attractive and asked her to come up to his suite so far this is agreed upon everybody agrees that this happened what happened when they got up to the suite is a different story she says that he took off his pants and invited her to perform a sexual act upon him he of course denied it said that never happened um the case went to trial lawsuit filed one day before the statute of limitations expired uh case goes to trial and the court says it Grant's summary judgment for Clinton and says even if the conduct occurred as Jones described it standing alone that one incident was not serious and of course it only happened once so it was not pervasive now opinions might differ as to whether or not that conduct if it happened the way Jones said it happened whether that would be serious in itself uh I suppose it depends on if you're the one in the hotel room right but the judge said even if that's what happened it's it's we're we're dumping the case now it was appealed and while it was on appeal Clinton's insurance company paid a bunch of money uh um before the appeal could be heard but the idea was uh it's got to be pretty bad in order to be serious under the law if it only happens once or a couple of times and typically that involves physical conduct I had a case once where a guy ran his hand under up under a woman's dress that'll do it that's serious um but it doesn't have to be that bad it can be low level stuff if it keeps happening pervasive so if I go to a co-worker and I say pardon me but you're quite attractive would you care to go out with me Saturday night you know she might say that's that's sexual harassment you can't do that no I mean that's again no reasonable person would find one time to be offensive but if it happens all the time if I'm constantly hitting on her then at some point the conduct becomes pervasive and becomes sexual harassment so hostile or offensive environment is unwelcome conduct verbal or physical of a sexual nature which is uh um either serious or pervasive okay and verbal comments on body clothing appearance dirty jokes uh vivid descriptions of your love life or pointed questions on her love life those things can all amount to sexual harassment uh I even had a case once where a woman had filed an EEOC charge because her boss among many other things that he was alleged to have done had a novelty plant in his office the leaves of which were made out of condoms really classy guy right and and we settled that case we didn't want that one to go any further than it had to um all right now employers must protect their employees even against third party harassment so if the copier repairman comes in frequently yes it's often the case uh and constantly hits on the receptionist every time every time uh he's there the employer may not have any authority over the copy repairman but he is responsible or they are responsible for protecting their employee from being harassed by Third parties an action must be taken whether that's a phone call to the repair man's boss or or whatever it has to be done I once had a client that was in the Staffing business and they got a call from a major client who said don't send us any more black employees we don't want any black applicants and so my client called me up and said you know what am I going to do here you tell them to go to hell where you know you are not going to go along with that even though it's important business but after that every time anyone filed a discrimination complaint against that client I always said and you know what else they turned out a big clad who was racist and so you know it's also it gives you some credit right it's nice to do the right thing it's nice to get some credit for doing the right thing and that's what in fact happened okay now what is the company's liability for sexual harassment I already pointed out that the liability for quid pro quo total now for SEC for hostile environment if it's done by a co-worker it's really what we call a negligence standard so if Sally harasses Sam or Sam harasses Sally and their co-workers it's not the company's fault if the company didn't know of the conduct and had no reasonable way of knowing and one way the company defends itself is you have an anti-harassment policy in place where a complaint mechanism is there and unreasonably the company does not the the employee doesn't take advantage of it I didn't know it was happening because you didn't complain if you'd complained I'd fixed it well we hope that that's true but that is a defense now the employer can't walk through the company with blinders on you know if I don't see it it didn't happen the company is responsible for exercising reasonable diligence in in detecting sexual harassment if it's happening but if the the company exercising diligence doesn't know about it they don't have liability that's different if it's a supervisor if it's because remember what I said earlier that if a supervisor acts the company Acts so if a supervisor does hostile or offensive environment and there is a tangible job detriment that's the words of the Supreme Court so I harass somebody so badly they they quit or I or I harass somebody she doesn't give in to my advances and I transfer her or demote her to a worse position then strict liability but if the supervisor does it and there is no tangible job detriment the company stays liable but can raise an affirmative defense to damages the affirmative defense is that um there was an anti-hero I showed it earlier an anti-harassment policy and a complaint mechanism in place and the employee did not the employee unreasonably failed to take advantage of it now note unreasonably let's say that that the employee who is harassed by a supervisor knows seven co-workers all of whom got harassed they all complained and the company never did anything well then it's reasonable for her not to complain right because she knows it's futile but if it's unreasonable for her not to give the company a chance to fix it then the company can avoid damages so supervisor does IT job detriment strict liability supervisor does it no job detriment uh companies liable but can defend and its defenses we had this wonderful harassment policy in place we'd have fixed it if we could you didn't complain and it was unreasonable of you not to complain okay now recent developments this is why I've spent a lot of time on sexual harassment and sex discrimination in general in general because we've had a lot of important developments employees can no longer be forced to take sexual harassment complaints to arbitration this is one of the biggest complaints that employee organizations and plaintiff's lawyers have had for a long time you know these days everybody has to sign a an arbitration agreement how many people here work for companies that have arbitration agreements in place I see a few hands there's probably more who don't want to admit it but uh um famously there was a lot of heat on Jimmy John's the sandwich makers because they made their sandwich makers sign arbitration agreements like you know if you try to what take your sandwich to some sandwich-making techniques elsewhere you know that kind of thing um but sexual harassment now even if there is an arbitration agreement in place it is trumped by the law and they can demand that they have a jury trial in front of an article three court uh and and uh and employers don't like that but that's what happens the other thing that employees have been complaining about are ndas non-disclosures famously for example president Trump makes everybody sign non-disclosure uh agreements in a if there's a settlement of a sexual harassment complaint so Sally files sexual harassment playing against the company the company realizes then we better get out of this one and they offer her a settlement but they insist on a confidentiality Clause I've settled hundreds of cases I always have a confidentiality clause can't do it in sexual harassment anymore well you can but if you do guess what the amount of the settlement itself and the attorney fees are not tax deductible so it suddenly becomes really expensive to you if you insist on covering it up now this is controversial it's brand new it only took earlier this year I think maybe late last year and a lot of employees don't like it at first it seems that's great we should punish them for hiding their misconduct think about you know Harvey Weinstein and the me too movement and all that but if you're an employee and you settle a sexual harassment complaint do you really want every future company that you uh that you're applying to to know that you were involved in one of these actions maybe you do but if you don't you may have you may not have a choice and obviously companies really don't like to admit that they're you know manager of operations is a perv and so they they really prefer to have a non-disclosure agreements but that's the that's the the new aspect and this is at the federal level now here in the state of Texas there's been some real changes you know Title VII at the federal law applies with 15 employees used to apply and it still does apply to the Texas law as well in every other aspect but right now the 15 employee coverage doesn't apply in sexual harassment you could have one employee you harass that employee uh you got a problem and and this is a kicker supervisors can be personally liable for harassment now at the federal level at a wage in our case at the federal level supervisors can be sued personally but not under Title VII not under an eeo thing the company can be liable but the individual supervisor the individual harasser for example can't be liable but now in Texas Texas of all places super conservative bright red Texas there's personal liability on supervisors who are guilty of sexual harassment so if you don't want to get a bill for several hundred thousand dollars and lost wages and com compensatory and punitive damages don't harass your employees word to the wise Pro tip don't harass your employees okay now oh I this slide kind of got out of place I mentioned this before the affirmative defense that companies assert is that they have a widely disseminized and effective internal complaint process uh and that the employee unreasonably fails to take advantage of it I make reference to Boca Raton there were a pair of cases that the Supreme Court decided some years ago that came up with this structure one was a fariger and the other was ellerth I think farrager versus Boca Raton and ellerth versus somebody else but the Boca Raton case is interesting because it demonstrates how dangerous it is if you don't train your first line supervisors the city of Boca Raton Florida had lifeguards you know it's a Beach town and people go swimming in the ocean and apparently and here's a reference that shows how old I am apparently the way the Lifeguard outfit worked is kind of like Baywatch you know you had all these handsome well-built men and women all very young all sexy and apparently things got out of hand well this one lady MS farrager uh 19 years old was constantly harassed out there and she went to her supervisor and complained now her Supervisor was a grizzled old veteran of about 22. and he and he said oh cool dude whatever you know just live with it and then a few months later three four months later when the conduct continued she went to the city manager well a city manager uh having a little more experience than the the dude in the Lifeguard uh outfit uh uh promptly acted to solve the problem but it was too late the courts held that because the company did not act promptly to resolve this situation there was no defense available to them this is why it's the lesson here is every supervisor down to the lowest level supervisor the foreman the crew leader whatever uh has to know enough about sexual harassment law to know when to say I better go talk to my boss about this you know the crew leader may not know enough to fix it but the crew leader should know enough to say possible problem better go talk to the district director or the you know the operations manager or whomever it might be so prompt remedial action if you're going to have any kind of Defense all right now same-sex sexual harassment and this is leading somewhere there's a famous case out of the fifth circuit here called ankali versus Sundowner offshore oil services at that time the position the legal position and precedent in the fifth circuit which is our circuit does not was that same-sex harassment did not violate Title VII well Mr Roncalli was a small soft-spoken slightly built young man who went to work on an offshore oil drilling rig bad choice right I don't know if you know much about the oil business or the all businesses we say but it is the only business I know where roughneck is an official job description all right and Mr ankali was brutally treated by his co-workers because they perceived him to be effeminate uh you know you'd have in the shower they'd threatened to rape him they did all kinds of horrible things and Mr ankali had a problem or rather his lawyer had a problem who are you going to sue you're going to sue the co-workers now you know oil workers get paid on Friday by Monday morning they got nothing left so the day one in law school they teach you do not Sue insolvent defendants uh but you can't sue the company because the entire Title VII uh precedent in the fifth circuit is it doesn't violate the law but he did it anyway and of course the fifth circuit ruled against him but another circuit had had ruled that same-sex harassment was forbidden so when you got a split of authority between two courts of a field circuits then it can go to the Supreme Court and it did and again the Supreme Court showed why they're The Supremes nine to nothing they supported on Kali and the opinion was by Scalia you know one of the super right-winning conservative justices but uh but the the K the court said uh EEOC has taken the position that existing sex discrimination protects such people and uh and this oh I I took that long quote out maybe I shouldn't have but anyway ankali said that the conduct in question must be severe not horseplay they use the example Scalia being a colorful writer uh that if the coach slaps a football player on the butt to send him out to the Huddle that's one thing if you slap your secretary on the butt that's quite another but basically said that perception was the key the reason they harassed on Kali was because he didn't live up to their image of what a man should be so it was conduct because of sex right because of the perception of what a male versus a female should be well guess where that train of reasoning LED okay that led to Bostic County which is the the new case we'll talk about so EEOC has always said that Title VII protects LGBT employees but but Congress never has amended Title VII to this day Title VII does not say it protects sexual preference or or transsexual transgender status Etc but there was a case in 89 called price Waterhouse V Hopkins a woman was who was an excellent CPA everybody said she did a great job working for Price Waterhouse company said yeah but we don't like the way you interact with our clients you're too masculine you should go to charm school that's one of our on one of her performance appraisals she needs to go to Charm School well the court said that's that's because of sex because she didn't meet the traditional image of what a woman should be well then you got on on call he comes after that we are beyond the day said the pricewaterhouse court when an employer could evaluate employees by assuming or insisting that they match The Stereotype associated with their group for in forbidding employers to discriminate against individuals because of their sex Congress intended to strike at the entire Spectrum of disparate treatment of men and women resulting from sex stereotypes well I'm not sure Congress did in fact mean that but that's what the Supreme Court said that and their understanding of the term because of sex had had deepened and had increased okay then we get on Kali Supreme Court said males harassing another male who was perceived not to meet the traditional image of masculinity was harassment because of sex we talked about that uh and then um Congress has never amended Title VII I mentioned that protection of gay and lesbian employees from sexual harassment is well established under Cub under on Kali but protection of lgp employees from General discrimination was not clear until 2020. on 2020 on 420 to 19 the Supreme Court announced that it would Grant cert in altitude Express visarda out of the second circuit uh the second circuit found Title VII protected LGBT employees whereas the 11th circuit had decided in Bostic versus Clayton County the opposite conclusion and that gave the court the chance to hear it Zarda is an interesting Case by the way Mr Zarda was a skydiver and he worked for a company that would take you up and jump out of a plane with you and so he went up with a couple and he was the one who was helping the wife and you know you gotta hook yourselves together and hold on and he made some passing remark to the husband don't worry about this I'm gay meaning don't worry about the fact that I'm holding tight onto your wife because I'm I'm not really interested in women well somehow this offended the husband who complained to the employer the employer fired Zarda and zarda's case went to trial and then it went up on appeal unfortunately Mr Zarda was not there to enjoy the victory at the second circuit because one day his parachute didn't open and and he was dead but his uh but his estate carried on on the case and so now you got Zarda you got Bostock it's a split of authority by the way the fifth circuit in in a case called Whitley was staunchly against protecting LGBT employees seventh circuit had a case called Hively and they were in favor so you had several cases on different sides in Bostock the court issued a somewhat surprising six to three decision overturning the 11th circuit and previous similar cases they ruled that the protection in Title VII against discrimination because of sex those prohibitions do protect LGBT individuals the court said the statues statutes message for our cases is equally simple and momentous an individual's homosexuality or transgender status is not relevant to employment decisions that's because it is impossible to discriminate against the person for being homosexual or transgender without discriminating against that individual based on sex now that opinion was by Anthony Kennedy who has since left the court replaced by Kavanaugh in the wake of Dobbs the case overturning Roe v Wade a number of conservative commenters have suggested that the court will come after obergefell which is the same-sex marriage case and may well come after Bostock and try to try to overturn that I don't know I don't have a crystal ball when it comes to the Supreme Court but as for now uh theoretically even if Kavanaugh went the other way you should still have a 5-4 majority for the for the outcome in Bostock but who knows but anyway so so now we see that the phrase because of sex expanded to pregnancy expanded to harassment expanded to same-sex harassment and has now expanded to all LGBT people as well as as traditional sex roles so uh I suspect that when Congress wrote the law in 1964 they didn't mean all of that but their words clearly can apply in the way the courts have applied them all right now after all that let's talk a little bit about religious discrimination and all I got to say about religious discrimination is you clearly cannot discriminate against people you know there's no Jews need a plier we don't hire Catholics here it's not going to fly unless you're a religious organization I mean you know a religious a church can require that people be members of that church if they're going to be employees and that extends to schools as well so if you're a Baptist school you can hire Baptist teachers you know but but outside of that discrimination against people because of religion is not permitted the the real issue that comes up in a day-to-day is religious accommodation uh I don't know how many of you were in my class this morning where we talked about covid but one of the things that came up was religious exemptions and if you asked for a religious exemption from a vaccination requirement um the employer doesn't have to Grant it if it's more than a de Minimus cost and that comes out of a Title VII case called Hardison versus TWA apologize to those of you who have heard this before but for those who didn't TWA was an airline and it was a union Airline and they assigned shifts based on seniority to get a a Monday through Friday shift and not have to work the weekend you had to be there 15 20 years well Mr Hardison went to work for TWA this was no problem for him for a couple of years then he converted to the worldwide Church of God the worldwide Church of God recognizes a strict Saturday Sabbath just like Seventh-Day Adventists or Orthodox Jews and and Hardison said you got to give me Saturdays off I can't work on the Sabbath and the company said well yeah but the problem is we got a seniority system and if we give you that accommodation we're screwing up our seniority system went all the way to the Supremes and The Supremes had no problem saying that if it that for religious discrimination if it's anything more than a minimal cost to accommodate the company doesn't have to do it under Ada reasonable accommodation you really have to have an undue hardship means it's really tough not to accommodate but under religion you don't have to have much hardship at all to get out of the accommodation why First Amendment right Congress shall make no law establishing a religion or prohibiting the free exercise thereof if you go too far to support free exercise to support Mr Hardison you're establishing religion if you go too far with the establishment you may be hitting somebody in a in a unusual religion from free exercise so you got to balance Establishment Clause free exercise clause and that's how the court came down on this all right age discrimination for the past 30 years I've I've been in the protected age group which says that you may not discriminate against people age 40 and up that's the protected group there is no reverse discrimination I mean if you say I only want old people like Brian I don't want young people well that's okay um my experiences that doesn't happen much but but that would be okay but you cannot discriminate against persons who are in the protected age group which is 40 and up now um and and that applies that 20 employees uh in Texas though it's 15 employees so the stricter standard applies now the biggest impact of ADEA is that there is no mandatory retirement with some public sector and safety related exceptions like airline pilots the law has been amended back and forth several times on whether you can have mandatory retirement uh there's there is a provision that if you're entitled to a golden parachute you know some big retirement plan you can be involuntarily laid off but most employees cannot the exception are safety things like like airline pilots uh this this example is like a lot of my examples dated somewhat but some years ago there was an airline pilot who was flying over Hawaii when 27 feet of the fuselage blew out at about 20 000 feet amazingly a pilate landed This Plane safely a flight attendant was killed sucked right out of the hole it was a terrible thing that pilot was aged 59 years and seven months and this was scheduled to be his last flight maybe I should update it Sully sullenberger was what 59 years old when he miraculously landed that jet in the middle of the Hudson River nobody was killed as a as a result of it so can you really say that at age 60 magically nobody's qualified to be a pilot the answer clearly is no but what the courts have consistently said is statistically the likelihood of you suffering a stroke or a heart attack or some other impairment that would create an in-flight emergency is a lot greater when you're 60 and above and so the courts have upheld that because they don't want some 62 year old guy having a heart attack and crash on a plane you know that's basically what it amounts to but for most people there's no mandatory retirement in the United States all right the most common claim is older worker replaced by younger worker you know you you fire some guy who's not doing a good job you hire some guy who's you know 27 years old to replace him and the older employee says um it's age discrimination and clearly you have to be able to establish that in fact he wasn't doing a good job and that the 27 year old was the best uh possible candidate but the the comparable doesn't have to be like 62 and 27. uh if there's 10 years difference there can be a complaint so if a 59 year old is laid off and replaced by a 41 year old even though the 41 year old is in the protected group that's still a cognizable sexual harassment charge and has to be investigated and could be litigated all right Ada this is the most recent of the anti-discrimination laws in that it was passed in and signed in 92 the Ada again applies at 15 employees general rule no discrimination against qualified individuals with the disability what constitutes discrimination under the Ada in addition to the obvious I don't want to hire you because you're in a wheelchair or I make fun of you because you are not making reasonable accommodation to the known physical or mental limitation of an otherwise qualified applicant with a disability who is an applicant or employee unless such covered entity can demonstrate that the accommodation would impose an undue hardship an undue hardship means really tough what is a disability it is a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment or being regarded as such an impairment the three r's real record regarded sometimes the three p's present past perceived this is so weird I mentioned this again this morning when we were talking about covet I can't make you black or white or Hispanic I can't make you male or female but I can make you disabled simply by regarding you as disabled so let's suppose I have a bad burn scar on my face and you run a high fashion boutique and you don't want somebody who looks like me working in your store even though that impairment doesn't in fact prevent me from doing anything as a retail employee you apparently regard it as a disabling condition and you have made me eligible now to make a charge of discrimination under under the Ada it's kind of remarkable uh qualified individual means somebody who with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires now let's say I can't drive I have some physical or mental reason that prohibits me from driving well obviously if you don't hire me to be a truck driver you're going to win that case but what if you like it to be able to occasionally toss me the keys at lunchtime and say go get burgers or pizza for the crew and I can't do that well that's not an essential function so my inability to do an essential a non-essential function doesn't even enter into the conversation uh applicants or and employees but must be otherwise qualified meaning they meet the other qualifications for the job and employ with a disability who applies for an accounting position but has no education or training in accounting is obviously not otherwise qualified and we don't even have to get to the equestion of that employee's disability because they're not otherwise qualified all right now Texas state law generally tracks the federal law with that amazing exception where you've got sexual harassment personal liability other states have similar laws but many cover employers fewer than 15. all right so where are we I've spent a lot of time maybe more than I should talking about who is protected by these laws what are the protected groups membership in which make discrimination and harassment a violation you've learned that that includes race color national origin sex religion age if you're 40 or up and disability qualified individual disabilities knowing that background let's talk a little bit about from a practical purpose what uh what does that mean when you're hiring people what does it mean when you're firing people and then we'll talk about what you have to do or can't do when you're responding to a charge of discrimination okay when you are hiring employees a general rule on applications and in interviews is if you need to know ask if not don't so I know the management textbooks I'll tell you to have wide ranging interviews and to ask big open-ended questions but there's a lot of questions that you kind of want to not ask for example do you really want to say is there any reason why you can't work weekends yeah I'm an orthodox Jew and I can't work Saturdays oh I didn't want to know that what I wanted to know was this job occasionally requires work on weekends can you do so yes can you do so no because I I don't even want to know why you can't I just need to know that you can't so I I'm being a little facetious here but it's important that you focus on what's relevant to the job and don't Wade off into people's personal lives any further than you need to uh age date of birth you should only ask these things for child labor purposes and you may need to know it if you do background checks but you know in the old days they used to say how old are you well I'm 57 well I ain't going to hire you um uh you can certainly ask if the person looks like they're about 12 you could ask how old you are because we don't want to violate the child labor laws putting you to work and admittedly as more and more employers utilize background checks you kind of have to have date of birth especially if you know if the person is named Jane Doe you kind of really want to be able to distinguish that Jane Doe from all the other Jane Dove uh you never ask about race you never ask about religion unless you're a religious employer you never ask about national origin oh I notice you're pretty dark complected where'd you come from I came from Texas you know you know the fact that my parents might have been born in India or Vietnam or someplace else you don't ask those questions that's stupid stupid uh don't ask for photos I had a case years ago in deep east Texas those of you who are from Texas know what I mean when I'm talking about deep east Texas and at this particular employer um if you it's just it was a chain of fast food places and the local managers could hire you for regular positions sight unseen but if you applied to be an assistant manager or manager they had to send your application to the home office for consideration with a photograph well somebody said I think they're using that photograph to weed out the black applicants and I don't know if they were or not they said they weren't but more importantly I did a regression analysis now if you ask me what the heck a regression analysis is as I sit here today or stand here today I don't know but I knew enough to go look in a book and the book said that if you're going to decide whether or not the hiring patterns what percentage of applicants are minority versus non-minority what what percentage of those that you hire are minorities versus non-minorities here's the formula and I applied the formula and by golly it came out okay and and we won that case but the fact is when the EEOC hears that you're asking for photographs of applicants that's gonna that's gonna raise a major red flag they may they this employer probably didn't wasn't intending to discriminate they certainly didn't admit it to me if they did but generally speaking employers who ask for photographs are asking for discrimination charges now once they're hired if you want to do stuff like that that's okay now under the Ada every applicant should be given an essential function job description not just you know I've hiring you to be a cook here's our written job description and it lists all of the the things you're going to do and how much you have to lift and whether you can you know walk in Slippery surfaces and whatever it may be I have a lot of clients who when you come apply for the job they they will give you the job description and say sign here saying you can do this or do you need a reasonable accommodation to perform these essential functions and if so we'll talk about it that's that's the way you're supposed to approach it that way if somebody does need an accommodation you know up front and you can talk about it only ask if they can perform essential functions you don't suggest accommodations they have to initiate it but then you have to talk crazy example comes to mind let's say somebody rolls into my office in a wheelchair and I'm hiring people to climb radio towers well it doesn't look to me like that person might be able to do it so I can ask that person if they can perform that function I can even ask them to according to the law demonstrate or describe how they're going to do it now I sure as heck don't want to try to demonstrate that because I don't want them suing me when they fall but the point is that you're only interested in whether they can perform the essential function and if they say I can't do it without an accommodation but I can do it with that's the time you talk about reasonable accommodation the law says You must enter into a flexible interactive process and you can lose Ada cases simply because you didn't talk about accommodation not because you didn't Grant an accommodation because maybe you couldn't but you didn't talk about it and if you don't talk about it that's a violation all right ask about education only to the extent that it's relevant and this and this goes back to one of the most famous uh early Supreme Court cases in Title VII history Griggs versus Duke Power Company Griggs versus Duke power company is the case that that introduced the concept of disparate impact disparate impact means I have a Criterion for employment that appears on its face to be neutral but in practice screens out more of one protected group than another in the late 60s in North Carolina Duke power company well Duke Power Company in the 50s and 60s didn't hire blacks at all they just didn't uh starting July 2nd 1965 they started hiring black people purely a coincidence that that was the effective date of Title VII of the Civil Rights Act Right well they started hiring black people for low-level positions like janitor and they demanded that they have a high school education in North Carolina in 1965 only 12 percent of black people had a high school education now only 36 percent of whites out of high school education which does not speak well for North Carolina's educational system but the point is that after a century or so of Jim Crow and and separate but equal and all of that nonsense the high school diploma requirement screened out more black applicants than it did non-black applicants and so the question is raised was there a good reason for having that did you need a high school education to be a janitor answer no so it became illegal and the whole concept of disparate impact comes from that case um if I'm hiring accountants can I require that they carry a hundred pound sandbag up five flights of stairs no the requirement must be job related and consistent with business necessity if I'm hiring firefighters could I make them do that yeah it's probably right because I'm measuring a an ability that can come up in the performance of the job and if if you know Sally is the hundred pound person that needs to be carried out of a burning building we kind of need to know that this applicant can do that can do that um but you know if if if you give a typing test and I know I'm dating myself now it's a keyboarding test if I give a typing test to somebody who's going to be a secretary sure that measures something that's done on the job or predicts success on the job but otherwise you limit the the testing you limit the criteria you limit the questioning to things that are relevant to carrying out the job so that's the education thing don't ask about gender don't ask about marital status don't ask about family this is a big one by the way because here's another one uh you have kids right well are you going to be able to work late if we need you it's another one of those things I didn't want to know how about this job occasionally requires you to work late work overtime on short notice can you do it yes I can't can you do it no because I don't want to know why you can't I just want to know whether you can or can't uh that's discriminatory in a lot of ways because in our society still the the majority of child care burden falls on women and so if you have a Criterion that tends to exclude more women than men you've got a problem all right arrest conviction deferred adjudication you may ask about convictions only you got to have a disclaimer and of course under Fair Credit Reporting Act data about lawsuits Etc can't go back to more than seven years this doesn't apply to actual convictions you know also that the EEOC says that in considering convictions you're supposed to consider the nature of the job how long ago the conviction was and what the conviction was for um the fifth circuit rejected the eeoc's guidelines but those are principles that you should follow it's one thing if you if you you want somebody to be a maintenance worker and get keys to people's apartment and he was convicted of rape or assault or something I don't think so on the other hand if you get some guy 20 years ago he was convicted of shoplifting and he's LED an exemplary life thereafter then you know that's that you probably should ignore that because remember in our society still uh minorities tend to be arrested tend to be convicted uh far more frequently than non-minorities so it's a disparate impact question you can still ask a disparate impact question it's just got to be job related and consistent with business necessity so the fact that convictions may have a disparate impact on minorities if the conviction is for something that that really raises serious questions then it's okay that's consistent with business necessity yes sir pardon me uh yeah yeah um the EOC takes a position that credit checks for example can have a disparate impact um more minority people tend to be poor than non-minority people on the other hand broadly speaking there's probably a lot of business necessity justification but I would I would consult with your lawyer and talk about that on a case-to-case basis because it's possible that you could have a problem probably not but possible all right do you ask about wage garnishments I know as payroll people you know what a pain in the took us it is to have to deal with garnishments but you can't uh you can't use that as a you can't make that inquiry you know you can terminate people from multiple garnishments for different indebtednesses uh you can't do it for multiple garnishments for the same indebtedness but as we all know that's one of the toughest things in payroll you can't ask about bankruptcies you cannot ask about citizenship now if you're a police department some of this stuff doesn't apply but you can't ask about citizenship what you can ask is in compliance with the immigration reform and Control Act of 1986. we require all employees to demonstrate with documentation their identity and their eligibility to work in the United States you know the I-9 form right uh if hired can you present such documentation that's a legitimate question I mean clearly you're not going to hire someone if they don't have documentation of their Identity or of their eligibility to work but you can't ask about citizenship because lots of non-citizens have work authorization on your application form you should have an eeo statement you should authorize any testing you're going to do you should say that misleading inaccurate information or omissions or grounds for for rejecting the application or for terminating you if we find out about it later uh you should authorize previous employer schools to provide information and release them from liability and like everywhere else you should have a statement of at will status pre-employment inquiry guide the EEOC in a number of states have a listing of what you can and can't ask rather than try to you know pull it out of the air get get a hold of the efc's pre-employment inquiry guy it'll tell you what you can and can't ask it's a good thing to have uh retain all applications and resumes for a year you cannot give lie detector tests you can do some psychological testing um personality profiles but be careful about ADA implications and as we talked about you can have credit reports but you got to be able to justify it as a matter of business necessity let me mention this psychological testing I had a client once I don't have them anymore who if you were going to get promoted to manager they would test you they would apply What's called the Minnesota multiphasic inventory the mmpi now this is a diagnostic tool that's used to determine mental illness and it was clearly a medical exam and uh I told them you shouldn't be using that well they went public hired some big law firm and boy did they get the heck suit out of them so it's okay to do some of that testing but be careful what you do uh all right remember that the general rule in Texas is employment at will employment at will means that either party to the employment relationship can terminate it for any reason or no reason at all now the employment at will Doctrine seems harsh and in some ways it is Harsh it's better than what it replaced slavery endangered servitude you know we had some bad stuff before but employment at will is the general rule in Texas it goes back to an 1890-something case called east line railroad it's the general rule in Most states not all states some states notably places like California basically you have to have a good reason to fire people Texas you can fire them for having bamboo leaves on their on their shirt that kind of thing um but but just to say Texas is an at-will state doesn't end the process of course because there are many many limitations on employment at will the most obvious one is what we've been talking about for the last hour federal and state law I can fire you for any reason or no reason at all but I can't fire you for your race sex Age religion national origin all that stuff obviously uh be careful of of falling into contracts with employees that that they may bring up when you try to fire them now what do I mean by an accidental contract most of you are far too sophisticated and this is old stuff but don't use terms like permanent status you've been here 90 days you're over your your probationary period now you're a permanent employee yeah I don't want you to be a permanent employer and that will employ uh disclaimers emphasizing employment at will are usually effective in Texas supervisor comments uh famous case involving Ford Motor Company where basically the boss said to this group of employees I don't care what the manual says as long as you do a good job you got a job with us well they laid them off and they said hey you made us a promise and the court at that time said yeah they made him a promise it's a violation so uh uh it now of course the case law says there must be a clear and unequivocal promise of job security any of the laws that we're talking about plus a bunch of other laws have retaliatory discharge prohibitions uh somebody files a complaint under flsa or the National Labor Relations Act or Title VII et cetera et cetera and you fire them because of that that in itself is a violation and I have to emphasize this to clients because somebody files a complaint of discrimination this bogus as it can be and we win on that on that uh complaint but if the employer turns around and and retaliates against that employee then we lose that one in other words employees have a right to be wrong about whether or not they have been discriminated against uh okay when you're going to go fire someone I suggest you be analytical think about the consequences of what you're going to do have you given them a warning and a chance to improve unless you know unless they took a swing at their supervisor or showed up drunk or something like that have you adequately documented it document document document Louis B Mayer one of the founders of Metro golden wear Studios was famous for his malapropisms and at one point he said an oral contract isn't worth the paper it's written on well uh Louis may have gotten the details wrong but essentially he was correct uh if you're going to fire somebody I want to see a written paper trail unless it's just a sudden blow up I mean if the person comes in and starts shooting well then you can go ahead and get rid of them but I like to see adequate documentation have you been consistent with your own policy our policy says oral warning written warning termination this guy did something bad and I fired him right away I skipped all the steps why you could you know maybe the right thing to do but wherever possible be consistent with what you said you were going to do and be consistent with previous actions in similar situations you know I've had nine white employees do something wrong and I wrote every one of them up and the 10th employee happens to be black and I fire her him or her well that's a real good question as to why I I acted one way with the wine employees and another way with the black employees and that raises an inference of discrimination do an effect what's the effect on your eeo profile is it your oldest person is the person pregnant uh have you a replacement in mind if you're going to replace a woman with a woman an old guy with an old guy a pregnant woman with a pregnant woman not strong stuff if not then you got to make sure your ducks are in a row uh seniority that doesn't mean a thing under the law but it means a lot to juries if you fire somebody's been working their tail off for you for 30 years and now all of a sudden you're going to dump them I guarantee you the jury's going to be looking for a reason to give that person some money and if you don't get out of that case on summary judgment you do not want to go see a jury uh detrimental reliance I have a business in Miami and I recruited somebody from Seattle they pull their kids out of school they sold their house they quit the job they've been working at for 20 years they get down to Miami and two weeks later I fire them technically probably not a violation of law but a court will find that they relied to their detriment on your assurances of employment that's called a quasi-contract remedy and they'll find some money for that person somebody's been out on leave or on on workers comp and you fire them they're going to say it's because of workers comp have your ducks in a row termination interview gonna fire Sally rehearse that doesn't mean right out of script and rehearse every word but it means think through what you're going to say and anticipate what Sally's going to come back at you with so that you will not sit there looking like a gibbering idiot when she does to always always always a management Witness you go to fire somebody you want to have one manager do the firing and the other manager sitting there as a witness taking notes and after the interview the notes get written up into a detailed statement and signed by both of you that way if one of you gets hit by a bus and I have to defend you I got two signatures even though one is unavailable choose the time and place to minimize discomfort embarrassment humiliation do not fire people in the lunchroom okay and avoid the traditional escort by security unless it's necessary that's a defense a defense plan or something like that sure but do not embarrass people you humiliate people and they're looking for blood they'll go talk to a lawyer if you're shooting uh brief and clean not too specific if you you know if somebody said you're constantly late you were late on this report by seven days and and and the employee says no it was only six now you're arguing over nothing uh don't argue if there's room for argument you shouldn't be firing the person you're delivering the final determination don't let them down too easy oh you're a wonderful employee I'm so sorry I had to do this well then why am I getting fired um explain any benefits so often employers I don't know where how much leave you got I don't know when your last paycheck will get here make sure all of that's lined up before the interview including if you're not going to fight their unemployment and tell them that get some mileage out of that okay allow them to vent he may even admit it good at trial no improper comments and don't be trapped into making them ah you're fired me because I didn't learn the new computer system well Brian guys your age have a real problem sometimes with technical oops you know there's nothing wrong with saying Brian we're firing you because you did not learn our computer system or are you saying I'm too old I'm just saying you didn't learn it don't be trapped in the sand something dumb uh detailed mayor I said that uh now let's talk about charge of discrimination so you fired somebody or did something bad to somebody they think it was for a prohibited reason they file a charge how does that work all right they must first exhaust their administrative remedies under Title VII in the Ada before they can file a lawsuit this means they got to file a charge with the EEOC or a state or local human rights agency and the agency has to investigate and reach a conclusion and issue a right to sue letter uh the charge must be filed within you can skip that 180 days it's 300 days of of the act of discrimination so the first thing you get is a is a complaint from an employee that you know has been gone for a year and a half you're probably in good shape uh they can file it with the EOC itself or with the Texas Workforce Commission civil rights division local agencies like Fort Worth or Austin Human Rights Commission the EEOC may offer mediation both parties must agree or the case goes to investigation when do you mediate you mediate when somebody in the process screwed up when you're when you have a weakness when you have a vulnerability then you want to settle the case you don't want to take a risk of losing but if you didn't do anything wrong and all they're trying to do is Blackjack some money out of you don't go to mediation uh EEOC investigations are not in person you submit a position statement with supporting evidence witness statements policies documents Etc uh they can determine no cause dismissal and right to sue most of them get dismissed the employee must file a child a lawsuit within 90 days of receipt of the charge if they find cause to believe discrimination occurred they conciliate and then they either Sue or issue a right to sue they don't Sue all the time they're lousy at negotiation you can negotiate with wage and hour you can't negotiate with EEOC they want 100 percent um now sometimes the charging party has a lawyer and they file it and then they ask for right to sue they don't want to mess with anything they just want to sue your butt and the EOC will frequently go along with that now under age employees must file a charge the EEOC has 60 days to resolve through informal conciliation conference and persuasion if it's not resolved in 60 days the employee can file a suit but if the employee doesn't file a suit and waits for EEOC they get the same 90-day dismissal and notice of Rights most common types of cases direct evidence slack against Havens 1975. boss comes to the disgusting dirty old factory boss comes to the employee employees and says okay all of the black employees have to clean the plant the white employees can go somewhere else black employees say uh sounds wrong to us why why are we being required to clean when they're not the boss's response colored people clean better than white people now how much analysis do you need I mean it's so clear from what the boss did and said that the that discrimination discrimination was the motive that case is over most cases though are no direct evidence or indirect evidence disparate impact we talked about Griggs versus two power company disparate treatment that's the most common type the shifting burden analysis derived from some Supreme Court cases basically an employee files a charge they must show they were a member of a protected group they suffered an adverse action they were qualified for the job and either they were replaced by someone outside the protected class or treated worse than other similarly situated employees outside the protected class easy peasy to make a prima facial case then the burden shifts to the employer to articulate a legitimate non-discriminatory reason for taking the action that they took I fired the guy because he punched me in the mouth well that's a that's articulating a reason uh I'd sure like to see some evidence though so even though all you have to do is articulate the reason at this point you are probably better your lawyer writes out a position statement that that goes over everything and demonstrates that this guy was a bad guy and had been warned for violence 20 times before had punched three other guys uh here's your medical record showing you broke your no I mean I'm making all this stuff up but clearly you want to respond to the EEOC with as much evidence as possible supporting the reason you gave being the real reason and not just a pretext because at this point the burden shifts to the plaintiff to show that the original reason is false and is in fact a pretext for discrimination this means usually that the employee must come up with additional evidence of discrimination Beyond merely showing that the employers articulated reason was false however the court said that in certain circumstances the mere fact that you come up with a bogus reason is enough for a jury to believe you're guilty so if you say I fired him because he was the worst salesperson we had and he comes up with five years worth of sales figures showing he was the best uh that alone could be enough to to infer a discriminatory motive uh so merely showing the employer lied about the adverse action could be enough for the Trier effect to describe to conclude that discrimination occurred I hope that's helpful I will as I said stick around for individual questions and thank you very much for your attention thank you