A B C’s OF EMPLOYMENT DISCRIMINATION FOR EDUCATORS HIRING AND TERMINATION ISSUES AT YOUR SYNAGOGUE.

Slides:



Advertisements
Similar presentations
Educating Managers About Disability Accommodations Parallax Education
Advertisements

The EEOC and Trends for Working Women: Current and Emerging Issues 2007 National Equal Opportunity Professional Development Forum Edana E. Lewis, Esq.
EFFECTIVE DOCUMENTATION In Search of Improved Performance.
Training Your Supervisors to Recognize Employment Law Danger Zones Lauri D. Chaudoin
Diversity, Patient Rights and Confidentiality. “You have the Right” The Basic Rights all Patients are entitled to while entrusting their care to us.
COMPLYING WITH HUMAN RIGHTS LAWS: WHAT FIRST NATIONS EMPLOYERS NEED TO KNOW Landon Young & Jeffrey Murray Stringer LLP Management Lawyers 110 Yonge St.
1 What You Don’t Know Can Hurt You Selected Employment Law Topics Gerard Solis Associate General Counsel.
The Legal Series: Employment Law I. Objectives Upon the completion of training, you will be able to: Understand the implications of Title VI Know what.
Sheheryar Sardar Sardar Law Firm LLC
Practical Tips for Investigating Discrimination Complaints
Top 10 Mistakes Employers Make and How to Keep from Making Them Ashley Scheer Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas (214)
Common Trial Procedures United States. Opening Statements.
Traditional Recruitment Practices Positive characteristics, rather than those things insiders find dissatisfying about the org, are communicated to outsiders.
JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy. 1 Drugs and Alcohol Under the ADA Linda Carter Batiste, J.D.,
Employment Law Chapter 18. Employment At Will Common law doctrine under which either party may terminate employment relationship at any time for any reason.
© 2004 Texas Southern University1 Texas Southern University Employee Education and Awareness Training L egal Essentials for Supervisors Employment Discrimination.
EQUAL EMPLOYMENT OPPORTUNITY/AFFIRMAT IVE ACTION All materials provided in this training, including the contents of linked pages, are provided for general.
HUMAN RESOURCES How to Avoid the Traps. TITLE VII CIVIL RIGHTS ACT n Signed by Lyndon Johnson in 1964 n Remains most important piece of EEO legislation.
CHAPTER SEVEN Gender Discrimination McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved. 7-3 Gender Myths 1.Women are better.
Big Data and Employment Discrimination Aaron Konopasky, J.D., Ph.D.
Test Review Chapter 27. Difference between EmployeeContractor Someone who agrees to be supervised for pay Works under YOU, therefore represents the business.
Hiring & Firing Chris W. McCarty, Esq. Lewis, Thomason, King, Krieg & Waldrop Knoxville – (865)
Kitty L. Fields, SPHR, CPM Employee Services Manager Sumter County Board of County Commissioners The Importance of Documentation Even in today’s virtual,
Employee Law Challenge. Requires employers to pay men & women similar wage rates for similar work? Name the Act… 2 point question 1. Civil Rights Act.
Legal Literacy for Supervisors Best Practices for Mitigating Risk.
2012 Annual Pupil Transportation Conference June 20, 2012 Roanoke, Virginia.
Hiring Legally. © Business & Legal Reports, Inc Session Objectives You will be able to: Identify requirements of fair employment laws Follow the.
What Job Applicants Need to Know About Employment Law Mary M. Williams September 21, 2009.
Problems Requiring Special Attention
SUPERVISING STUDENT EMPLOYEES August 13, 2002 Office of Human Resources Office of the General Counsel.
Title Line 1 Title Line 2 Attorney Name Michigan Works! Annual Conference October 13, :15-10:45 am Soaring Eagle Casino & Resort.
Employment and Personnel Matters. District employees  As public officials, you may hire employees to carry out the day to day responsibilities of the.
Discrimination Decisions made on the basis of characteristics which are not relevant to the position, which result in harm suffered by persons –on the.
Overview Of United States Labor Laws Heller Ehrman LLP James R. Hays.
… but were afraid to ask Joe Bontke Outreach Manager & Ombudsman
Employment Discrimination.  Fifth Amendment – Prohibits the federal government from: ◦ Depriving individuals of “life, liberty, or property” without.
4/00/ © 2000 Business & Legal Reports, Inc. BLR’s Human Resources Training Presentations Grounds for Termination.
Understanding the Americans With Disabilities OSU For Supervisors Office of Equity and Inclusion.
Iowa Civil Rights Commission Disclaimer The information contained in this presentation is a brief overview and should not be construed as legal advice.
Interdepartmental Placement of Employees Returning to Work Following Approved Leave County of Los Angeles Department of Human Resources July 6, 2011.
DEALING WITH THE PROBLEM EMPLOYEE John Ashby
Unit 7 – Goals and Planning November AGENDA Follow Up Discussions Unit 7 Objectives Review Unit 7 Work on the Case of Lara Discuss Assignment Questions.
Law Firm HR Decisions and Policies ARTHUR R EHRLICH GOLDMAN & EHRLICH 20 SOUTH CLARK STREET SUITE 500 CHICAGO, ILLINOIS
EEO and the Legal Environment of HR. Chapter 3 What is Equal Employment Oppy? EEO is legal protection against discrimination. Race Religion Age Sex National.
EQUAL EMPLOYMENT OPPORTUNITY For MANAGERS/SUPERVISORS MANAGERS/SUPERVISORS Prepared by EEO Officer, WSMR, NM.
Ethical and Legal Aspects of T and D. Difference between T and D? Training – specific skills Training – specific skills Development – intellectual capital.
Chapter 24 Student Presentation. When is Discrimination Illegal? ●Discrimination: The unorthodox treatment of employees is recognized as illegal when.
Discrimination in Employment Chapter 23. Employment Discrimination Treating individuals differently based on differences Treating individuals differently.
Law and Justice. 1. Federal Discriminatory Statutes - 3 primary prohibit employment discrimination a. Title VI: Civil Rights Act of 1964 b. Age Discrimination.
EMPLOYMENT RIGHTS AWARENESS SLO: I can understand the terms and conditions associated with fair workplace practices.
The Legal Environment Chapter 3 Part 2 MGT 3513 Dr. Marler “I guess I should warn you, if I turn out to be particularly clear, you've probably misunderstood.
NOHRPS One Cleveland Center 20 th Floor 1375 E. 9 th Street Cleveland, OH Labor & Employment Law Update November 8, 2012.
© BLR ® —Business & Legal Resources 1408 Conducting Effective Performance Appraisals.
Communication Applications Chapter 9 Exploring the Interview Process.
1. On a blank sheet of paper… Write down one reason why you may be disciplined (written up) at work.
Interviewing Do’s & Don’ts. Introduction Always a difficult task, the job of hiring people has been made even more difficult in recent years by the myriad.
Manager: Interviewing Within the Law Manager Information.
TORTS: A CIVIL WRONG Chapter 18. TORTS: A CIVIL WRONG Under criminal law, wrongs committed are called crimes. Under civil law, wrongs committed are called.
ACCOMMODATING MENTAL HEALTH DISABILITIES In the Workplace Sylvie Gauthier Discrimination Prevention Officer, CHRC April 2016.
Christopher Jozwiak Baillon Thome Jozwiak & Wanta LLP Penelope Phillips February 19, 2016 Termination & Retaliation 1.
Legal Literacy for Supervisors Risk Research Bulletin, January 2008.
MANAGING OPIOID ADDICTION IN THE WORKPLACE Valerie C. Samuels, Esquire Posternak Blankstein & Lund LLP Prudential Tower 800 Boylston Street Boston, MA.
Chapter 13 Employment Discrimination Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written.
Chapter 7 Employment Law Halsey/McLaughlin, Legal Environment You will be able to answer the following questions after reading this chapter: What is an.
Legal Basics.
Protection from Discrimination
Employment Discrimination
Chapter 18: Employment Discrimination
Employment Discrimination
10 AVOIDABLE EMPLOYER MISTAKES
Presentation transcript:

A B C’s OF EMPLOYMENT DISCRIMINATION FOR EDUCATORS HIRING AND TERMINATION ISSUES AT YOUR SYNAGOGUE

OTHER IMPORTANT LAWS 1.FAMILY MEDICAL LEAVE ACT (FMLA) (50 or More Employee) 2.REASONABLE ACCOMMODATIONS THAT MAY BE REQUIRED UNDER THE AMERICANS WITH DISABILITIES ACT (ADA)

WHO IS SUBJECT TO DISCRIMINATION LAWS A.TITLE VII, ADEA, ADA ONLY APPLIES IF YOU EMPLOY AT LEAST 15 PEOPLE B.BUT VARIOUS STATE, COUNTY AND MUNICIPAL LAWS MAY APPLY EVEN IF YOU EMPLOY A SINGLE PERSON C.JUST ASSUME YOU ARE SUBJECT TO SOME LAW AGAINST DISCRIMINATION REGARDLESS OF HOW MANY YOU EMPLOY

PROVING A DISCRIMINATION OR RETALIATION CLAIM A.DIRECT EVIDENCE 1.“You Are Just Too Old for this Job” 2.“You will pay for filing that discrimination complaint ”

PROVING A DISCRIMINATION OR RETALIATION CLAIM B.DIRECT METHOD OR INDIRECT METHOD YOU DON’T NEED A SMOKING GUN 1.COMBINATION VARIOUS STATEMENTS, ACTIONS AND CIRCUMSTANTIAL EVIDENCE, THAT TOGETHER CREATES A “CONVINCING MOSAIC OF DISCRIMINATION.” a.EXAMPLE 1: ASKING AN OLDER EMPLOYEE WHEN HE PLANS ON RETIRING OR ASKING HIS AGE AND LETTING HIM GO SHORTLY THEREAFTER DISCOVERING HE IS 40 OR OLDER b.EXAMPLE 2: “I DID NOT KNOW YOU WERE GAY”, FOLLOWED BY A NEGATIVE PERFORMANCE RATING SHORTLY THEREAFTER

2.SUSPICIOUS TIMING a. A TEACHER RECEIVED POSITVE EVALUATIONS UNTIL YOU LEARN SHE WAS IN A DRUG REHAB PROGRAM 3.SUSPICIOUS STATEMENTS OR ACTS a.“YOU DON’T FIT OUR PROFILE” b.FAILING TO HIRE ANYONE OVER THE AGE OF 40 4.TREATING SIMILARLY SITUATED EMPLOYEES OUTSIDE PLAINTIFF’S PROTECTED CLASSIFICATION MORE FAVORABLY IN SIMILAR SITUATIONS a.DISCIPLINING THE 65 YEAR OLD RUSSIAN TEACHER FOR NOT SUBMITTING HER LESSON PLAN ON TIME BUT TAKING NO ACTION AGAINST THE YOUNG AMERICAN EMPLOYEE FOR THE SAME THING

C. PRETEXT 1.YOU CANNOT JUST MAKE UP ANY FICTITIOUS REASON AS AN EXCUSE OR “PRETEXT” TO TERMINATE THE EMPLOYEE 2.PRETEXT IS ESTABLISHED BY EITHER PROVING THAT a.EMPLOYER’S ARTICULATED REASON FOR THE ACTION DID NOT ACTUALLY MOTIVATE THE ACTION i.Allowing Employee to be Tardy for the Last 3 Months Without Counseling Her, But a Few Weeks after You Discover She Is Pregnant, You Terminate Her for Tardiness b.THE ARTICULATED REASON HAS NO BASIS IN FACT c.OR THE ALLEGED REASONS WERE INSUFFICIENT TO MOTIVATE THE ACTION AGAINST PLAINTIFF. i.Female Teachers Rarely Prepare Lesson Plans, but the You Fire the Male Teacher Who Missed a Single Lesson Plan

YOU MAY THINK YOU DID NOTHING WRONG OR THAT THE TEACHER IS MAKING IT ALL UP, BUT..... A.PERCEPTION IS EVERYTHING NOT EVERY PLAINTIFF IS LYING WHEN HE/SHE CLAIMS DISCRIMINATION 1.THEIR PERCEPTION MAY NOT BE ACCURATE, BUT THEY OFTEN BELIEVE WHAT THEY ARE SAYING B.EVERYONE IS PREJUDICED TO SOME DEGREE, THAT INCLUDES YOU, THE EMPLOYEES WORKING FOR YOU, AND OTHER SUPERVISORS AT YOUR SYNAGOGUE

BUT I HAVE NO PREJUDICES!!! YES YOU DO

THERE IS NO LOGIC TO PREJUDICE AND IT IS NOT TYPICALLY AN ALL OR NOTHING PROPOSITION FUNNY THINGS HAPPEN WHEN ONE OF YOUR EMPLOYEES GIVES YOU AN ATTITUDE OR RUBS YOU THE WRONG WAY, AND THAT EMPLOYEE IS FROM A PROTECTED CLASSIFICATION YOUR 65 YEAR OLD EMPLOYEE WHO IS STILL SHARP AND COMPUTER LITERATE IS WONDERFUL

BUT YOU FEEL THAT THE OTHER 65 YEAR OLD WHO HAS TROUBLE LEARNING THE NEW COMPUTER SYSTEM FOR REPORT CARDS IS JUST TOO OLD

BOTTOM LINE: A.BE OPEN MINDED TO THE POSSIBILITY THAT THERE MAY BE SOME MERIT TO AN ALLEGATION OF DISCRIMINATION B.STEP BACK AND CONSIDER THE POSSIBILITY YOU MAY HAVE SOME BIAS, OR SAID SOMETHING OR ACTED IN A WAY THAT WAS PERCEIVED AS SHOWING SOME BIAS C.YOU CAN BE LIABLE FOR DISCRIMINATORY ACTS OF THE TEACHERS YOU SUPERVISE 1.If a Male Teacher Sexually Harasses a Female Teacher and You Fail to Take Proper Action, Your Synagogue Will Be Found Liable for Sexual Harassment D.EXPEDITIOUSLY ADDRESS COMPLAINTS OF DISCRIMINATION OR HARASSMENT MADE BY YOUR EMPLOYEES. DO NOT REJECT THEM OUT OF HAND

PROTECTING YOURSELF AGAINST THE PROBLEM EMPLOYEE WHO HAS AN INACCURATE PERCEPTION OF EVENTS A. FIRST RULE: CONSISTENCY CONSISTENCY CONSISTENCY MOST COMMON EVIDENCE... CASES WHERE EMPLOYER TREATED A MINORITY EMPLOYEE DIFFERENTLY THAN THOSE OUTSIDE HIS/HER PROTECTED CLASSIFICATION THE YOUNG FEMALE TEACHER YOU LIKE ONLY GETS A WARNING FOR NOT SUBMITTING A LESSON PLAN BUT YOU REFUSE TO RENEW THE CONTRACT FOR THE EMPLOYEE WHO SUFFERS FROM DEPRESSION CLAIMING IT WAS DUE TO NOT SUBMITTING LESSON PLANS

YOU WILL FACE SITUATIONS WHERE YOU WANT TO BE MORE LENIENT WITH ONE EMPLOYEE VERSUS ANOTHER BE VERY SURE YOUR REASONS ARE STRONG ENOUGH TO FULLY JUSTIFY THE DIFFERENT TREATMENT TO A JUDGE OR (MAYBE WORSE) SOMEONE ON THE EXEC BOARD WHO YOU BUMPED HEADS WITH

B. SECOND RULE: DOCUMENT DOCUMENT DOCUMENT 1.IF A TEACHER IS FREQUENTLY TARDY OR HAS REPEATED PROBLEMS WITH THEIR LESSON PLANS, START KEEPING TRACK AND DOCUMENTING AS SOON AS YOU REALIZE THIS IS BECOMING A PROBLEM. 2.DOCUMENT EACH DISCUSSION YOU HAD WITH EMPLOYEE 3.BE CONSISTENT AND DOCUMENT ALL EMPLOYEES AT THE SAME POINT a. IF YOU IGNORE THE FIRST TWO PROBLEMS WITH THE MALE DO NOT ISSUE THE PREGNANT TEACHER A REPRIMAND THE FIRST TIME IT OCCURS WITH HER 4.TERMINATING EMPLOYEE FOR ALLEGED PERFORMANCE PROBLEMS + NO PRIOR DOCUMENTATION = $189K JUDGMENT AND AWARD OF $200K IN LEGAL FEES

C.HAVING A STRONG DEFENSE TO A POSSIBLE DISCRIMINATION LAWSUIT MAY DISCOUARGE A PROSPECTIVE PLAINTIFF FROM TAKING THE CASE. SO... 1.PATIENTLY BUILD YOUR DEFENSE WHEN POSSIBLE UNLESS THE DECISION TO TERMINATE IS A NO-BRAINER 2.IF IT IS A PERFORMANCE RELATED PROBLEM, DOCUMENT YOUR EFFORTS TO IMPROVE THEIR PERFORMANCE AND PROVIDE THOSE MEMOS OR S TO THE EMPLOYEE 3.USE PROGRESSIVE DISCIPLINE WHEN APPLICABLE

HIRING DECISIONS A.SAME FEDERAL AND STATE LAWS PROHIBIT HIRING DECISIONS BASED ON DISCRIMINATION AND RETALIATION B.EVIDENCE OF DISCRIMINATION 1. HIRING ONE TEACHER THOUGH HIS QUALIFICATIONS ARE NO BETTER THAN OR NOT AS QUALIFIED AS THE ELDERLY FEMALE PLAINTIFF a.THE BIGGER THE DISPARITY IN QUALIFICATIONS, THE STRONGER THE CASE AGAINST YOU IF YOU CHOOSE THE LESS QUALIFIED YOUNG PERSON OVER THE MORE QUALIFIED ELDERLY APPLICANT

2.ASKING QUESTIONS DURING THE HIRING PROCESS THAT A LAWYER WILL RECOGNIZE AS EVIDENCE OF DISCRIMINATION a.ANYTHING THAT REFLECTS AGE i.e.g. ASKING DATE THEY GRADUATED COLLEGE b.ANY QUESTIONS ABOUT MARITAL STATUS OR CHILDREN c.IF YOU ASK THEM IF THEY ARE PREGNANT OR PLANNING ON GETTING PREGNANT AND THEN FAIL TO HIRE HER, THEN PLEASE GIVE HER MY BUSINESS CARD BECAUSE THAT CASE WILL PAY FOR MY SON’S COLLEGE TUITION

C.EVIDENCE OF RETALIATION IN HIRING DECISIONS 1.IF YOU DECIDE NOT TO HIRE THE TEACHER BECAUSE A FELLOW EDUCATOR TOLD YOU HE FILED A DISCRIMINATION SUIT AGAINST THAT SYNAGOGUE THAT IS ALSO RETALIATION

D.HOW TO PROTECT YOURSELF 1.BASE YOUR DECISION ON THE INTERVIEW AND THEIR EXPERIENCE AND QUALIFICATIONS 2.TAKE AND KEEP YOUR NOTES OF THE INTERVIEW TO EXPLAIN WHY YOU PREFERRED ONE CANDIDATE OVER ANOTHER SO YOU REMEMBER IF YOU ARE SUED 10 MONTHS LATER a.GOOD: BETTER JUDAIC KNOWLEDGE b.GOOD: GREAT REFERENCE FROM ANOTHER EDUCATOR COMPARED TO OTHER PERSON c.GOOD: COMMUNICATION SKILLS GREAT (Especially in Comparison to the Plaintiff) d.BAD: RECENTLY DIVORCED, PREGNANT, OR ANY CODE WORD REFLECTING AGE e.REALLY BAD:I HATE OLD PEOPLE

3.BE CAREFUL ON ANY EXPLANATION YOU GIVE THE PEOPLE YOU DID NOT SELECT a.DO NOT SAY HE WAS NOT A “GOOD FIT”, NOR THAT “YOU WERE NOT WHAT I WAS LOOKING FOR” ESPECIALLY IF THERE IS A LACK OF DIVERSITY IN YOUR WORK FORCE b.YOU CAN SAY YOU FOUND A MORE EXPERIENCED OR MORE QUALIFIED CANDIDATE

ACCOMMODATING DISABILITIES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) A.TEACHER MUST HAVE WHAT THE LAW RECOGNIZES AS A DISABILITY WHICH IS A 1.“SUBSTANTIAL LIMITATION OF A MAJOR LIFE ACTIVITY” 2.EXAMPLES: a.MENTAL ILLNESS b.ALCOHOLIC OR DRUG ADDICT c.HIV POSITIVE

B.EMPLOYEE MUST STILL BE ABLE TO PERFORM ESSENTIAL FUNCTIONS OF HER JOB WITH OR WITHOUT AN ACCOMMODATION 1.EXAMPLES: a.ATTENDANCE b.ABILITY TO COMMUNICATE WITH STUDENTS

C.REASONABLE ACCOMMODATIONS REQUIRED IF ACCOMMODATIONS ALLOW TEACHER TO PERFORM ESSENTIAL FUNCTIONS OF JOB 1.TEACHER IN A WHEEL CHAIR SHOULD BE ASSIGNED A CLASS ON THE FIRST FLOOR IF THERE IS NO ELEVATOR 2.PROVIDING A TEACHER AIDE WOULD BE A REASONABLE ACCOMMODATION FOR... a.TEACHER WITH LIMITED EYE SIGHT (BEING THE EYES FOR THE TEACHER), OR b.TO ENABLE A DIABETIC TO QUICKLY CHECK THEIR BLOOD SUGARS AS THE AIDE WATCHES THE CLASS

D.WHAT IS REASONABLE DEPENDS, IN PART, ON YOUR ABILITY TO PROVIDE THE ACCOMMODATION WITHOUT TOO MUCH DISRUPTION OR UNREASONABLE COST 1.PURCHASING AN EXPENSIVE ERGONOMIC DESK, CHAIR, OR SMART BOARD SYSTEM MIGHT BE CONSIDERED A REASONABLE ACCOMMODATION, IF THIS IS NECESSARY, FOR A LARGE SYNAGOGUE THAT HAS MONEY 2.SAME REQUEST MIGHT BE UNREASONABLE FOR A SMALL SYNAGOGUE WITH A VERY LIMITED BUDGET E.ACCOMMODATIONS ARE VERY FACT DEPENDENT SPEAK TO AN ATTORNEY BEFORE DENYING THE REQUEST

CONTRACTS A.IF TEACHER CONTRACT STATES THAT THEY WILL BE HIRED TO TEACH FOR A SPECIFIC TERM ( SEPT 5 TO JUNE 10), YOU ARE LEGALLY REQUIRED TO KEEP PAYING THEM THROUGH JUNE 10, UNLESS YOU CAN PROVE “JUST CAUSE” FOR TERMINATION B.SO, CLEARLY SPELL OUT THE EXPECTATIONS AND REQUIREMENTS AND POSSIBLE CONSEQUENCES FOR FAILING TO COMPLY 1.ATTENDANCE AT ALL TEACHER MEETINGS IS MANDATORY 2.LESSON PLANS MUST BE PROVIDED TO THE PRINCIPAL AT LEAST 24 HOURS BEFORE CLASS

C.CLEARLY SPELL OUT POTENTIAL CONSEQUENCES IF THEY FAIL TO MEET THESE REQUIREMENTS 1.BE CONSISTENT IN ENFORCING THIS D.INCLUDE A PROVISION GIVING A NON EXCLUSIVE LIST OF WHAT WILL BE CONSIDERED GROUNDS FOR TERMINATION 1.NO CALL NO SHOW 2.REFUSAL TO FOLLOW REASONABLE DIRECTIONS OF THE EDUCATOR 3.FAILURE TO IMPROVE PERFORMANCE AFTER BEING NOTIFIED IN WRITING OF THESE DEFICIENCIES 4.TOTALLY DISABLED, FINDING OF DISABILITY BY SSI OR UNABLE TO WORK FOR EXTENDED PERIOD BE CAREFUL ABOUT THIS ONE. SPEAK TO ATTORNEY FIRST

E.MAKE SURE YOU ARE CONSISTENT IN ENFORCING THESE EXPECTATIONS AND IN THE DISCIPLINE YOU IMPOSE F.MAKE SURE THE EXPECTATIONS AND GROUNDS FOR TERMINATION ARE REASONABLE

TODAH RABAH SHALOM ARTHUR R EHRLICH ARTHUR R EHRLICH GOLDMAN & EHRLICH GOLDMAN & EHRLICH 19 SOUTH La SALLE STREET 19 SOUTH La SALLE STREET SUITE 1500 SUITE 1500 CHICAGO, ILLINOIS CHICAGO, ILLINOIS