How to keep your company How to keep your company out of the headlinesout of the headlines!!(on www.EEOC.GOV)

Joe Bontke

Houston District Office713 907 2855 joe.bontke@eeoc.gov

So what’s new?So what’s new?

Some new lawsSome new laws New programsNew programs The economy The economy The last legislative sessionThe last legislative session

My first GrandchildMy first Grandchild Cate Bontke-BowmanCate Bontke-Bowman Feb 8, 2011Feb 8, 2011 7lbs 5 oz7lbs 5 oz 19 ¾ inchs19 ¾ inchs

““OUCH! OUCH! That Stereotype Hurts”That Stereotype Hurts”

Joe BontkeJoe BontkeWhen first called “grandpa”When first called “grandpa”

We say a lot by the words we useWe say a lot by the words we use

Explore communication & collaboration Explore communication & collaboration

skills for promoting inclusion in the skills for promoting inclusion in the

workplaceworkplace

StereotypesStereotypesStereotypesStereotypes

An oversimplified image or statement An oversimplified image or statement

applied to a whole group of people, applied to a whole group of people,

without regard for the individual.without regard for the individual.

““The simple act of naming a bias as The simple act of naming a bias as

suchsuch

or objecting to it on the spot or objecting to it on the spot

establishes establishes

a social atmosphere that discourages a social atmosphere that discourages

it:it:

saying nothing serves to condone it.”saying nothing serves to condone it.”

““The simple act of naming a bias as The simple act of naming a bias as

suchsuch

or objecting to it on the spot or objecting to it on the spot

establishes establishes

a social atmosphere that discourages a social atmosphere that discourages

it:it:

saying nothing serves to condone it.”saying nothing serves to condone it.”

– – Daniel GolemanDaniel GolemanEmotional IntelligenceEmotional Intelligence

– – Daniel GolemanDaniel GolemanEmotional IntelligenceEmotional Intelligence

Obligations of EmployersObligations of Employers

Make the Make the workplace free of unlawfulworkplace free of unlawful discrimination, harassment and discrimination, harassment and retaliationretaliation

Promptly and confidentially Promptly and confidentially investigateinvestigate complaints of complaints of discrimination, harassment and retaliationdiscrimination, harassment and retaliation

Where discrimination, harassment and retaliation may Where discrimination, harassment and retaliation may have occurred, have occurred, take prompt and appropriate remedial take prompt and appropriate remedial

actionaction (i.e., discipline commensurate with the offense) (i.e., discipline commensurate with the offense)

What Is Conflict & how does it get to the level of Employment Discrimination?

When an Employee Has a ProblemWho are they going to call?

• Let them know they can discuss it with you (from the get-go)

• Define the problem

• Identify the motivation

• Suggest solutions

• Resolve the issue Keep it in your house!

• Follow up Not Mine (EEOC)

A Few Statistics…

95,402 Total Charges Filed!

Types of Charges Filed

33,937

28,37210,601

3,273

24,582

19,453954

RaceSexNational OriginReligionAgeDisabilityEqual Pay Act

*32,690 Retaliation Charges

Systemic cases @ the EEOCSystemic cases @ the EEOC

can be brought under any of the statutes can be brought under any of the statutes enforced by the EEOC. enforced by the EEOC.

cases usually involve company-wide practices cases usually involve company-wide practices or policiesor policies

investigators working on systemic cases investigators working on systemic cases typically must obtain and analyze extensive typically must obtain and analyze extensive electronic data and numerous documents, electronic data and numerous documents, conduct statistical analyses and interview conduct statistical analyses and interview many witnesses and class members. many witnesses and class members.

Systemic Cases are

on the rise

There are 2 types of systemic There are 2 types of systemic discrimination cases: discrimination cases:

1.) Disparate treatment … this refers to the 1.) Disparate treatment … this refers to the "intentional" discrimination of certain "intentional" discrimination of certain people groupspeople groups

2) Disparate Impact Cases – where an 2) Disparate Impact Cases – where an employer has a neutral selection employer has a neutral selection procedure, policy, or practice that has a procedure, policy, or practice that has a disproportionate adverse impact on people disproportionate adverse impact on people in a protected groupin a protected group

EEOC LITIGATIONEEOC LITIGATIONor HR or HR SchadenfreudeSchadenfreude

BlockbusterBlockbuster

12-14-11

Federal Court Signs Order for Blockbuster Inc. To Pay Over $2m to Settle EEOC Suit for Sex, Race and National Origin Discrimination, Retaliation

EEOC Said Retailer Created Hostile Environment for Female and Hispanic Workers

the EEOC charged  that the male supervisory staff engaged in and condoned the harassment of a  class of seven female employees, four of whom are Hispanic. The EEOC charged that the incidents of  harassment committed by Blockbuster supervisors included repeated requests for  sexual favors; yelling; insults; threats; unwelcome sex-related questioning; offense  racial remarks; touching women’s intimate body areas; and other discriminatory  conduct. This pervasive and unlawful  conduct culminated in the denial of work hours, discriminatory firings, forced  resignations and other discriminatory actions, according to the EEOC.

Equal Pay

• Despite significant gains in labor force participation and educational attainment, women still are paid an average of only 78 cents for every dollar paid to men

• The gap is even greater for women of color and women with disabilities

• In 2009, there was an 11 cent wage gap between men and women in the federal sector workforce

Why focus on ?

SystemicSystemic

BewareBeware: neutral employment : neutral employment policies and practices that have a policies and practices that have a disproportionately negative effect on disproportionately negative effect on applicants or employees who belong applicants or employees who belong to a protected categoryto a protected category

Ensure that policies and practices are Ensure that policies and practices are job-related and necessary to the job-related and necessary to the operation of the businessoperation of the business

EXAMPLEEXAMPLE

Race Bias: EEOC Race Bias: EEOC Slaps Walgreens Slaps Walgreens with Nationwide with Nationwide Class ActionClass Action

Walgreens To Pay Walgreens To Pay $24 Million In Race $24 Million In Race CaseCase

EXAMPLEEXAMPLE

Morgan Stanley Settles Gender-Bias Lawsuit Morgan Stanley Settles Gender-Bias Lawsuit for $54Mfor $54M

Morgan Stanley Settles Class-Action Racial-Morgan Stanley Settles Class-Action Racial-Discrimination Lawsuit for $16MDiscrimination Lawsuit for $16M

EXAMPLEEXAMPLE

DENNY’S SUED BY EEOC FOR DISABILITY DENNY’S SUED BY EEOC FOR DISABILITY BIAS AGAINST CLASS OF WORKERS BIAS AGAINST CLASS OF WORKERS NATIONWIDENATIONWIDE

EXAMPLEEXAMPLE

GLC RESTAURANTS DOING BUSINESS AS GLC RESTAURANTS DOING BUSINESS AS McDONALD’S RESTAURANTS TO PAY McDONALD’S RESTAURANTS TO PAY $550,000 FOR SEXUAL HARASSMENT OF $550,000 FOR SEXUAL HARASSMENT OF TEEN WORKERS BY MALE BOSSTEEN WORKERS BY MALE BOSS

EXAMPLEEXAMPLE

$8.9 MILLION $8.9 MILLION CONSENT DECREE CONSENT DECREE AT ONE FACILITYAT ONE FACILITY

HARASSMENT, HARASSMENT, WORK WORK ASSIGNMENTS, AND ASSIGNMENTS, AND DISCHARGEDISCHARGE

RACE, NATIONAL RACE, NATIONAL ORIGINORIGIN

EXAMPLEEXAMPLE

$19 MILLION CONSENT DECREE$19 MILLION CONSENT DECREE GENDER, FEMALE – FAILURE TO PROMOTEGENDER, FEMALE – FAILURE TO PROMOTE NATIONWIDE INVESTIGATIONNATIONWIDE INVESTIGATION

WHY SHOULD you BE CONCERNED?

Class Litigation is Costly and Time Class Litigation is Costly and Time Consuming!Consuming!

Damage to ReputationDamage to Reputation Spurs Additional Complaints & Lawsuits by Spurs Additional Complaints & Lawsuits by

OthersOthers Settlements Can Be Financially SignificantSettlements Can Be Financially Significant Distraction From Core Business ConcernsDistraction From Core Business Concerns

WHAT CAN I DO TO AVOID THIS?

Review your internal data on personnel Review your internal data on personnel actions (Hiring through Termination)actions (Hiring through Termination)

Make certain that criteria used for Make certain that criteria used for personnel related decisions are job related personnel related decisions are job related and dictated by business necessityand dictated by business necessity

WHAT CAN I DO TO AVOID THIS ?

Conduct training for all those involved in Conduct training for all those involved in personnel decisions ( from the top down)personnel decisions ( from the top down)

Publish policies and insure that they are Publish policies and insure that they are applied to everyone.applied to everyone.

Install an effective process for Install an effective process for investigating and resolving internal investigating and resolving internal complaints.complaints.

Look at your own statistics Look at your own statistics

WHAT CAN you DO TO AVOID THIS?

Understand employee retaliation Understand employee retaliation protections protections

Conduct exit interviews to obtain Conduct exit interviews to obtain information information

Make managers accountableMake managers accountable Never ignore a complaint about Never ignore a complaint about

harassment or unequal treatment!!harassment or unequal treatment!!

Investigate carefully – but promptly

VERIFY FACTS

A retaliation claim is the victim’s best friend:

The plaintiff in a retaliation case does…

NOT NEED A VALIDUNDERLYING CLAIM

know the difference know the difference between exempt and between exempt and nonexempt employees. nonexempt employees.

working a nonexempt working a nonexempt employee "off the clock" or employee "off the clock" or during an "unpaid lunch during an "unpaid lunch break or meal period" can break or meal period" can violate the Fair Labor violate the Fair Labor Standards Act. Standards Act.

each time supervisors each time supervisors prepare a performance prepare a performance evaluation, they are evaluation, they are preparing a piece of preparing a piece of evidence that could be used evidence that could be used in a lawsuit. in a lawsuit.

Know how banter or jokes Know how banter or jokes based on a protected class based on a protected class can result in valid can result in valid harassment charges, even if harassment charges, even if the banter and jokes are the banter and jokes are between people of the same between people of the same race, sex, etc. race, sex, etc.

Why discrimination on the Why discrimination on the basis of sexual orientation basis of sexual orientation or sexual preference may or sexual preference may not be against federal law not be against federal law (although it is against the (although it is against the law in some states and law in some states and municipalities), municipalities), harassment can be. harassment can be.

Appropriate action to take Appropriate action to take when an employee claims a when an employee claims a disability under the disability under the Americans with Disabilities Americans with Disabilities Act and requests a Act and requests a reasonable accommodation. reasonable accommodation.

What to do when an What to do when an employee makes a request employee makes a request for a religious for a religious accommodation. accommodation.

Understanding employee Understanding employee privacy rights (monitoring privacy rights (monitoring emails, telephone emails, telephone conversations, etc.). conversations, etc.).

The next Equal Pay Day is Tuesday, April 20, 2012. This date symbolizes how far into 2012 women must work to earn what men earned in 2011.

The Implicit Association TestThe Implicit Association Test https://implicit.harvard.edu/implicithttps://implicit.harvard.edu/implicit

Project Implicit is a long-term research project based at Project Implicit is a long-term research project based at Harvard University that aims to measure people’s Harvard University that aims to measure people’s preferences for certain social groups over others. preferences for certain social groups over others.

The IAT is designed to examine which words and concepts The IAT is designed to examine which words and concepts are strongly paired in people’s minds.are strongly paired in people’s minds.

Is taken anonymously, requires only about 5-10 minutes to Is taken anonymously, requires only about 5-10 minutes to complete and provides insight into personal biases, complete and provides insight into personal biases, including race, gender, sexual orientation, etc.including race, gender, sexual orientation, etc.

The test requires Macromedia Flash PlayerThe test requires Macromedia Flash Player More than 4.5 million people have completed the online More than 4.5 million people have completed the online

demonstration tests since 1998.demonstration tests since 1998.

“Are Emily and Brendan More Employable than

Lakisha and Jamal?,”Marianne Bertrand and Sendhil Mullainathan – 2002

Hypothetical applicants with “white” names were 50% more likely to receive call backs than those with “black” names.

Improvement in resume quality significantly improved the call-back chances for white applicants only.

http://gsb.uchicago.edu/pdf/bertrand.pdf

Post 9/11 BacklashPost 9/11 Backlash Between 9/11/2001 and 9/11/2008, 1,108 charges were filed under Between 9/11/2001 and 9/11/2008, 1,108 charges were filed under

Title VII alleging post-9/11 backlash employment Title VII alleging post-9/11 backlash employment discrimination. discrimination. 59% had discharge (termination) as an issue59% had discharge (termination) as an issue 42% had harassment as an issue42% had harassment as an issue

Charges received by EEOC based on Religion-Muslim:Charges received by EEOC based on Religion-Muslim: 4,186 during the period 9/11/2001 to 9/11/2008 (7yrs)4,186 during the period 9/11/2001 to 9/11/2008 (7yrs) 1,844 during the period 9/11/1994 to 9/10/2001 (7yrs)1,844 during the period 9/11/1994 to 9/10/2001 (7yrs)

Types of employers/industries named in the charges: Types of employers/industries named in the charges: airlines, health care facilities, car dealers, retail stores, hotels, airlines, health care facilities, car dealers, retail stores, hotels,

info technology, restaurants, public schools, state and municipal info technology, restaurants, public schools, state and municipal agencies, universities, manufacturing and others.agencies, universities, manufacturing and others.

any questions, comments, concerns or complaints

• Joe Bontke

• EEOC

• Outreach Manager and Ombudsman

• 713 907 2855 cell

• joe.bontke@eeoc.gov

questions, concerns,questions, concerns, comments, or criticisms? comments, or criticisms?

Joe BontkeJoe Bontke 713 907 2855713 907 2855 joe.bontke@eeoc.govjoe.bontke@eeoc.gov www.eeoc.govwww.eeoc.gov 1 800 669 40001 800 669 4000