A. Dean BennettHolland & Hart LLP

Idaho Healthcare Compliance BootcampDiscrimination Laws:

What You Need To Know

Today’s Agenda

• Recognizing the Issue  • Discrimination overview – federal and state

laws• Developing issues - sexual orientation and

pregnancy discrimination

• Investigation and Enforcement - EEOC / IHRC

• Responding to EEOC and other agencies • Best Practices

Recognizing the Issue

• Employers cannot unlawfully discriminate based upon protected characteristics

• Anti-discrimination laws prohibit:– adverse actions (e.g., firing, failing to hire,

pay differences, etc.)– harassment (quid pro quo and hostile work

environment)– retaliation

Idaho Anti-Discrimination Law

• Idaho Human Rights Act - I.C. § 67-5909

“It shall be a prohibited act to discriminate against a person because of, or on a basis of, race, color, religion, sex or national origin . . . and on the basis of age or disability . . . .”

Federal Anti-Discrimination Laws

• Title VII of the Civil Rights ActProhibits discrimination on the basis of race, color, religion, sex, and national origin

• Age Discrimination in Employment Act (ADEA)• Americans with Disabilities Act (ADA)• Genetic Information Nondiscrimination Act

(GINA)• Pregnancy Discrimination Act (PDA)• Equal Pay Act (EPA)

Disparate Treatment

• Treating applicant or employee differently based on protected characteristics

• Examples:• Female secretary paid less

than male secretary• Conducting background

checks on African American applicants but not on white, Hispanic or other race applicants

Disparate Impact

• Neutral conduct that has an adverse effect on a protected group

• Examples:• Requiring a college degree – screens out

more blacks than whites• Minimum 5’6’’ height requirement –

screens out more females than males

Harassment

• Quid Pro Quo – benefit in exchange for sexual favors

• Hostile Work Environment– Unwelcome physical or verbal conduct– Based on gender (but may be same sex), or another

protected characteristic such as race, religion, age– Sufficiently severe or pervasive to create an abusive

working environment and alter working conditions– Employer knew or should have known of the

offensive environment

Who is Liable for Harassment?

• Supervisors may be individually liable

• If tangible employment action - Strict liability

• If no tangible employment action -Liability where the employer knew or should have known of the conduct, and failed to take appropriate corrective action

Defense to HWE Harassment

Only available when no tangible adverse action:•Employer used reasonable care to prevent & correct bad behavior AND•Employee unreasonably failed to take advantage of corrective opportunities or otherwise avoid harm

Retaliation

• Opposition to discrimination– Filing or threatening to file a complaint or charge– Complaining about discrimination or harassment– Refusing to obey an order– Requesting reasonable accommodation– Oral Complaints

• Participation– Assisting in an investigation– Testifying in a case

Hot Issues In Discrimination

• Sexual Orientation

• Pregnancy

Sexual Orientation

• Federal enforcement – executive order covers federal contractors and application to public employees

• State enforcement – current debate regarding “Add the Words” – bill failed in early 2015

• Local Enforcement – currently ten cities in Idaho

Boise Anti-Discrimination Ordinance

• Enacted in 2013 • Passed for other cities: Coeur

d’Alene, Ketchum, Moscow, Pocatello, Sandpoint, Idaho Falls, Lewiston, Victor, Driggs (2015) and Hailey (2015)

• Some prohibit gender identity discrimination too

What Boise’s Ordinance Does

• Prohibits discrimination on basis of gender identity and sexual orientation in matters of employment, housing, and places of public accommodation

• Violation is a criminal misdemeanor punishable by a fine of up to $1,000 and/or up to six months in jail

• No private right of action

Takeaways

1. Be aware it exists2. Good business not to discriminate on any

basis3. Risk of citation minimal4. Lots of ways to resolve5. Avoid bad publicity and risk of becoming

first business to set precedent6. Stay tuned: could see state or federal

legislation

Pregnancy Discrimination

Pregnancy Discrimination Act Of 1978

• Amended Title VII to cover pregnancy discrimination

• Covers hiring, firing, promoting• Must be treated the same as

non-pregnant employees who are similar in ability or inability to work

• July 2014 – Enforcement Guidance on Pregnancy Discrimination

• Called into question recently by U.S. Supreme Court (Young v. UPS)

• Reasonable accommodations for pregnant workers under ADA

EEOC Guidance

State Level•Idaho Human Rights Commission

Federal Level•Equal Opportunity Employment Commission

Administrative Enforcement

Idaho Statistics

EEOC Statistics for Idaho

  FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014

TOTAL CHARGES

81 79 97 80 77 67

% of US total charges

0.1% 0.1% 0.1% 0.1% 0.1% 0.1%

Internal Response Before Claim

• Take swift action upon receipt of claim or if aware of issue

• Consider insurance coverage and notice• Conduct internal investigation • Involve counsel to preserve privilege• Be aware of retaliation and shunning

issues• Consider preservation obligation and

implement litigation hold

Agency Investigation

• EEOC or other Responsible Agency will investigate alleged unlawful discrimination

• Generally claims must be filed within 300 days of alleged discrimination (only 180 days if only covered by federal law)

• Agency will conduct investigation• Includes interview with charging party

Responding to Charge/Complaint

• Important to do it right; statements made in early stages will remain relevant later in litigation

• Well crafted response can foreclose litigation

• Be proactive in defense; interview witnesses and relevant parties

• Prepare detailed response statement• Defend and participate in interviews

Litigation

• Private party can file suit; generally 90 days after receiving disposition or “right to sue” from agency

• Agency can also file complaint

• Will trigger litigation process

Best Practices for Avoiding Liability For Discrimination And Harassment Claims

How To Prevent Claims

1. Policies

2. Recordkeeping

3. Training

4. Fairness and consistency

Policies On Discrimination/Harassment

• Conduct not tolerated• Define• Reporting responsibility• Applies not just to acts by employees• Complaint, reporting, and handling• Will promptly and fully investigate • No retaliation

Language In Evaluations And Discipline

What type of language to include:–Detail specifics–Facts not

opinions–Do not include

language about protected class

Evaluation Best Practices

• Have supervisor complete evaluation• Be honest – don’t sugar-coat• Evaluation should contain no surprises• Have process to contest• Purpose is to ensure fairness of process• Request employee signature at bottom

of review

Get HR Involved Or Train

Internal Investigations

• Timely and thorough• By the right person• Must demonstrate your business took

it seriously and was fair• Follow your policies• Limit it to those involved• Update alleged victim

Best Practices - Recap

• Be mindful of protected classes when making decisions

• Consider whether employment practice results in disparate treatment or disparate impact

• Implement training to ensure no discrimination• Recruit, hire, and promote with these principles

in mind; do not rely on stereotypes or assumptions

• Ensure effective investigations• Consider and update policies

THANK YOU!

QUESTIONS?

Dean BennettHolland & Hart LLP

ADBennett@hollandhart.com208-342-5000

THANK YOU!