11 Employment Practices Exposures Solutions Insurance Bernd G.
Heinze, Esq. AAMGA Executive Director UFO Annual Meeting Whistler,
British Columbia September 5, 2008
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22 I.A.-F. Evolution of Non- Discrimination Laws Federal Laws
1.Civil Rights Act 1964 (a/k/a Title VII) 2.EPA 1963 3.ADEA 1967
4.ADA 1990 5.USERRA Common Law Claims 1.Defamation-Libel- Slander
2.Contractual Interference 3.Invasion of Privacy 4.Negligent
Hiring- Supervision-Retention 5.Emotional Distress/P&S
6.Economic Advantage 7.Loss of Consortium 8.Inability to Power Walk
{State Specific Law Applies}
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33 Fair Labor Standards Act (FLSA) Minimum wage Overtime Child
labor standards Federal statutes => state laws
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44 ISO EPLI Insuring Agreement Sums insured legally obligated
to pay resulting from an injury. Claims made trigger of claim
received and recorded with notification in writing to company as
soon as practical. Requires prompt notice of incident which might
result in a claim if insured has knowledge. [Not a notice of
claim]
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55 What Is Injury Per Contract? Demotion, failure to promote,
negative evaluation, reassignment or discipline of current employee
or wrongful refusal to employ. Wrongful termination Law/public
policy or violation of contract, other than contract stipulating
financial considerations if such action on consideration is the
result of a breach of contract. Wrongful denial of training, career
opportunity or breach of contract. [Continued]
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66 Injury Defined Continued Negligent hiring/supervision
resulting in any of the other offenses listed in definition.
Retaliatory action. Coercing employee to commit unlawful act or
omission. Work-related harassment. Employment-related libel,
slander, invasion of privacy, defamation or humiliation. Other
work-related verbal physical, mental or emotional abuse arising out
of discrimination.
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77 II. A. The Regulatory Maze Law Congress Federal Courts State
Courts Guidelines Executive Branch EEOC Labor Department
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88 B.1. General Remedies 1.Title VII and Americans With
Disabilities a. Injunctive order for promotion, promotion quotas
and hiring b. Backpay c. Attorneys Fees d. Compensatory/Punitive
damages between $50,000 and $300,000 for intentional
discrimination
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9 WHERE DID THE LITIGATION EXPLOSION COME FROM ? CHANGING
WORKFORCE UNION TO EMPLOYMENT AT WILL THE JURY TRIAL ITS ALL ABOUT
THE BENJAMINS HIGH PROFILE CASES EMPLOYEE AWARENESS OF RIGHTS &
CLASS ACTION LAWSUITS
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10 PROTECTED CLASSES UNDER TITLE VII HARASSMENT FROM: Race
Color Religion Sex National Origin Age Chewing Gum Debacle
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11 B.2. Equal Pay Act Equal Pay for Equal Work Act of 1963 a.
Back Pay b. Liquidated Damages Equal to Back Pay c. No Compensatory
or Punitive Damages
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12 C. Benchmark Developments 1.a. Burden of Proof Plaintiff
must go beyond proving an employers stated legal reason for its
actions were a pretext for discrimination and must prove that bias
was the motivating factor. St. Marys Honor Center v. Hicks,
(1993)
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13 Pretext Bias Cases Employee must establish a prima facie
case of discrimination The burden then shifts to the employer to
proffer a legitimate, non-discriminatory reason for the adverse
employment decision If employer meets the burden, the employee must
prove illegal pretext
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14 C.1.b.. Mixed-Motive Bias Cases U.S. Supreme Court in 2003
established a two step process: (Desert Palace, Inc. v. Costa)
1.Employee must prove impermissible motive played motivating role
in adverse employment decision 2.Employer must then counter that
action would have been taken in spite of the employees protected
status.
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15 C.2. Defense: Employee Misconduct McKennon v. Nashville
Banner Pub. Co. U.S. Supreme Court (1995) Prior wrongdoing by
employee does not necessarily shield an employer that has violated
law. Court ruled that such conduct does not have to be disregarded
and if proved the employee may receive limited damages. (Back
pay)
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16 C.3. Reverse Discrimination Murray v. Thistledown Racing
Club-1985 Harding v. Gray-1993 Requires direct evidence or
intentional discrimination Carry burden that employer is the
unusual employer that discriminates against the majority
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17 C.4. Individual Liability Under Title VII Johnson v.
University Surgical 1994 a. Title VII defines employee to include
any agent of employment b. Individual liability of a supervisor is
based on issue of authority over an employee c. Split Federal
Decisions
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18 What Constitutes A Supervisor? Mack v. Otis Elevator
Co.April, 2003 2 nd U.S. Circuit Court of Appeals ruling: Special
dominance over others at a work site is controlling factor 7 th
U.S. Circuit Court of Appeals ruling: Concisely defined as anyone
with authority to hire, fire, demote, promote or discipline an
employee
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19 III. Five Basic Unlawful Discrimination Theories A.Disparate
Treatment B.Disparate Impact C.Stereotype Class Assumptions
D.Failure To Accommodate Religion Or Disability E.Retaliation
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20 Winning & Losing 48% of Plaintiffs Win Average Defense
Cost - $107,000 Win or Loss!
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21 Winning & Losing Folks, this is your Captain speaking.
Please dont worry, the pumps are working perfectly, return to your
staterooms and await further instructions.
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22 Disparate Treatment Direct or Indirect Evidence Four Point
Test 1.Member of Protected Class 2.Qualified Employee/Applicant
3.Adverse Effect on Employee or Applicant 4.Other Qualified, Non
Protected Not Adversely Affected by Action
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23 Disparate Impact Applies Even in the Absence of Intent
Federal Courts Three Point Test: 1.Practice that discriminates on
basis of race, color, religion, sex, origin 2.Plaintiff must show
adverse effect falls more heavily on protected class 3.Plaintiff
must show practice caused a disparity (Real harm)
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24 IV. Scope of Regulation-ADEA Ground Rules 1. Employees 40+
2. Employee 20 + 3. Disparate Treatment: Requires proof of intent
ADEA Covers Disparate Impact & Treatment 4. Disparate Impact
not recognized in ADEA 5. Willful Violation Doubles Damages / What
is Knowing or Reckless Disregard? Case Law Rulings Employer must
prove a training program about age discrimination exists to avoid
willful violation (2001) Mixed motive may apply (2000)
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25 Disparate Impact Claims.. Smith v. Jackson, MS. 2005 WL
711605 (2005) The U.S. Supreme Court noted that, to state a
disparate impact claim, an employee must isolate and identify the
specific employment practice responsible for the age-based
disparate impact. Recognizes the reasonable factors other than age
provision when action is attributable to a non-age factor that was
reasonable from a business perspective.
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26 B. Sex Discrimination Title VII 1.Pregnancy Related Issues
2.Paramours Advantage 3.Inadequate Mentoring or Training 4.Sexual
Harassment Opposite Gender Original Intent Same Gender Expanded
Reality Split by Districts
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27 SEXUAL HARASSMENT What is it? Unwelcome sexual advances
Requests for sexual favors Verbal or physical conduct of a sexual
nature Incidental and unintentional exposure of sexual or explicit
materials, e-mails, photographs, etc.
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28 SEXUAL HARASSMENT Inappropriate Behavior Looks Like:
Sexually harassing behavior Leer Grope Off color joke, banter
Taunt, tease, flirting Dare Reckless conduct Targeting Would you do
this to your Mother?
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29 SEXUAL HARASSMENT Under what circumstances? When submission
to such conduct is made either explicitly a term or condition of an
individuals continued employment (quid pro quo) Submission to or
rejection of such conduct by an individual is used as the basis for
employment decisions affecting such individual Such conduct has the
purpose or effect of unreasonably interfering with an individuals
work performance or creates an intimidating, hostile or offensive
work environment
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30 More Lawsuits on the Horizon
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31 WHO CAN BRING A COMPLAINT? FEDERAL LAW Employees Applicants
for employment Those not promoted or given a raise Those who are
laid off, subjected to consolidation or reduction in force
Reference checks/Recommendations
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32 WHO CAN BE SUED FOR DISCRIMINATION? FEDERAL LAW EMPLOYERS
with 15 or more employees LABOR ORGANIZATIONS EMPLOYMENT AGENCIES
VENDORS SUPERVISORS & MANAGERS STATE LAW EMPLOYERS (no minimum
number of employees) LABOR ORGINZATIONS EMPLOYMENT AGENCIES
INDIVIDUALS WHO AID AND ABET
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33 MOST LIKELY DEFENDANTS BANKS INSURANCE AGENCIES AEROSPACE
INDUSTRY MUNICIPAL ENTITIES SCHOOLS
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34 FROM WHAT ACTIVITIES? HIRING TESTING TRAINING ON THE JOB
ACTIVITIES SUPERVISION, EVALUATIONS, PROMOTIONS DISMISSAL OR
TERMINATION
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35 WHEN ARE YOU MOST LIKELY TO HAVE A PROBLEM? DISMISSAL OR
TERMINATION HIRING ON THE JOB ACTIVITY
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36 WHY DO PLAITNIFF ATTORNEYS LIKE THESE CASES? MOST PLEADINGS
ARE ALREADY TEMPLATES AND ARE AVAILABLE ON-LINE PUBLICITY
REPRESENTING THE SMALL CLAIMANT AGAINST THE BIG CORPORATION TITLE
VII ALLOWS AN AWARD OF ATTORNEY FEES IF SUCCESSFUL
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37 WHY BRING A COMPLAINT? THREE SIMPLE LETTERS: S E X
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38 WHERE IS THE COMPLAINT BROUGHT? FEDERAL LAW MUST EXHAUST
ADMINISTRATIVE REMEDIES COMPLAINT MUST BE FILED WITH THE EEOC
WITHIN 180/300 DAYS MUST OBTAIN RIGHT TO SUE LETTER ACTION FILED IN
FEDERAL COURT COMPLAINT CAN INCLUDE STATE LAW CLAIMS OR OTHER
RIGHTS TO RECOVERY DEFAMATION; LOSS OF CONSORTIUM; BREACH OF
CONTRACT;
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39 PROVING SEXUAL DISCRIMINATION UNDER STATE AND FEDERAL LAW
TYPES OF DISCRIMINATION Hostile Environment Explicit or implicit
physical contact or conduct as a term or condition of employment
Comments, slurs or innuendos
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40 HOW DOES THE PLAINTIFF PROVE IT? Must establish sexual
harassment and its prima facie case by a preponderance of the
credible evidence Claim (negligence/breach of contract/common law
& derivative) Damages (compensatory/punitive/equitable/attorney
fees) Employer must then show a legitimate non- discriminatory
basis for the conduct or treatment Plaintiff then has the chance to
prove by a preponderance of the evidence that legitimate reasons
offered by the employer or actor were a pretext to cover a
discriminatory motive
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41 PRIMA FACIE CASE OF HOSTILE WORKPLACE HARASSMENT TITLE VII
1.Discrimination was pervasive and regular; 2.Discrimination
detrimentally affected employee; 3.Employee suffered intentional
discrimination because of his or her sex; 4.Discrimination would
detrimentally affect reasonable person of same sex in that
position; and 5.Existence of respondeat superior liability