What Supervisors Need to Know about Discrimination Reference Guide Office of Human Resources Consulting Services 433 Archer House 292-2800 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Workshop Objectives Workshop participants will be able to: • Define discrimination and identify forms of discrimination; • Know and explain personal liability and Ohio State's institutional responsibilities; • Describe actions a manager/supervisor can take to prevent discrimination; and • Take affirmative steps to address inappropriate and or discriminatory behavior. Workshop Agenda 1. Introduction – why this topic is so important 2. Definitions 3. Legal framework and case studies 4. Employer liability 5. Supervisor responsibilities 6. Resources and additional training opportunities Page 2 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Definitions Prejudice = A prejudgment based on membership in a category; an inflexible generalization that is felt or expressed. Discrimination = To distinguish by class or category without regard to individual merit; show impermissible preference or prejudice. There are two types of discrimination: disparate treatment and disparate impact. Disparate Treatment = An employee suffers less favorable treatment than others because of protected status. Disparate Impact = An employment policy adversely impacts persons in a protected class. • • • • • • • • • • Direct discrimination Unequal treatment Intentional Prejudiced actions Different standards for different groups Indirect discrimination Unequal consequences or results Unintentional Neutral actions Same standards but different consequences Harassment = Verbal or physical conduct which results in a hostile, offensive or intimidating work environment, unreasonably interferes with work performance, or otherwise adversely affects employment opportunities. Harassment has been defined in case law as a form of discrimination. Page 3 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Definitions Continued Protected status = Members of a particular group covered by state or federal antidiscrimination laws. The protected categories are: • • • • Race Color Religion Age • Sex • National origin • Disability/handicap Additional protected classifications include military status, religion, pregnancy and sexual orientation. The University’s Non-Discrimination Policy 1.10, prohibits discrimination against any individual for reasons of sexual orientation. When an adverse employment action is taken based upon the employee’s protected status, discrimination has occurred. Equal Employment Opportunity = All tangible employment actions must be job and business related. It is illegal for employers to make employment decisions based on an applicant’s or employee’s race, ethnicity, national origin, religion, sex, age military/veteran’s status or disability. Ohio State's Non-Discrimination Policy = Incorporates all of the above protected classes into its Non-Discrimination policy and also extends this protection to sexual orientation. Page 4 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Legal Framework Precluding Discrimination Title VII, Civil Rights Act of 1964 Purpose – To prohibit employment discrimination or segregation based on race, color, national origin, religion and gender in all conditions of employment. General provisions – • Prohibits sexual harassment and harassment based on other protected categories. • Makes it illegal to discriminate because of pregnancy, childbirth or related conditions. • Provides equal opportunity to participate in training programs and opportunities for advancement. • Prohibits compensation practices that may be discriminatory, including extra pay plans, leave policies, maternity leaves and pension policies. • The employer’s best defense is making decisions based on seniority, merit or performance systems that measure quality and/or quantity of work. Exceptions – The following very narrow exceptions exist: • Work related requirements (i.e. lifting requirements for firefighters). • Bona fide occupational qualifications (BFOQ); (i.e. female officer to search female students) – “reasonably necessary to the normal operations of the business.” Very narrow exception that is carefully scrutinized. • Seniority systems. • Preferential quota systems - very limited and defined conditions, temporary in nature. Legal Test to Prove Discrimination: McDonnell-Douglas/Burdine Balancing Test Prima Facie Case – Presumption of discrimination based on • The applicant/employee is a member of protected class. • The applicant/employee is a qualified for job/successfully performing job requirements. • An adverse employment action has been made. • Another employee who is not a member of a protected class is treated better. Legitimate Business Reason The employer must come forward with a legitimate, business justification for the adverse employment action. Page 5 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Proof of Pretext • The applicant/employee must present evidence that the employer’s legitimate, business reason is false. • The evidence presented must be more than the evidence of the prima facie case (listed above). Legal Test to Prove Harassment • Harassment must be sufficiently severe and pervasive as to alter the terms and conditions of employment. • Evidence is evaluated from the point of view of the “reasonable person.” • If the challenged conduct would not substantially affect the work or academic environment of a reasonable person, no violation is found. Retaliation Federal and state anti-discrimination laws protect employees from retaliation for opposing discriminatory employment practices or for filing charges, testifying, or for in any other way participating in proceedings under the laws. What is Retaliation? Any adverse employment action taken as a direct result of an individual's opposition to illegal employment practices or participation in formal investigations and other proceedings is prohibited as retaliation. The Equal Employment Opportunity Commission takes the position that a retaliatory act violates the anti-discrimination laws if it is “reasonably likely to deter protected activity.” Some examples of retaliatory actions include: • • • • Demotions, terminations, loss of benefits and/or compensation. Harassment by supervisor or employees. Supervisors or co-workers creating and permitting a hostile work environment. Taking away normal work assignments or significantly reducing material responsibilities. • Making adverse statements to prospective employers. • Issuing unjustified poor evaluations and reports. • Altering employee's work schedule. Page 6 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Managers and supervisors must ensure that employees who have engaged in activity protected under federal or state law are treated the same way as others. Harsher treatment will raise the inference that retaliation has taken place. The Human Resource Professional at the Unit must address complaints based on retaliation or refer them to the Office of Human Resources, Consulting Services. Once the investigation is concluded and findings and recommendations are issued, it is appropriate to monitor the treatment of the employees who complained to ensure that further adverse actions are not undertaken. Age Discrimination in Employment Act (ADEA), 1967 What the law prohibits • Discrimination against individuals age 40 and older; • Mandatory retirement based on age; and • Limiting or classifying employees in a way that adversely affects their status because of age (i.e. discontinuing pension accruals after age 65). Exceptions to ADEA – • • • Genuine seniority or benefit plan; Discipline or firing for good cause; Top executive or policy maker – if he/she is 65 years old and is entitled to receive cosponsored retirement benefits of at least $44,000/annually. American with Disabilities Act (ADA), 1990 What is prohibited – • Discrimination against a qualified individual with a disability because of the disability. • Protection provided under the ADA encompasses all facets of employment including access to training and career development. Definitions – Disability = individual has a physical or mental impairment that substantially limits one or more major life activities, has a record of impairment or is regarded by others as impaired. Impairments include not only limitations to major life activities but also general conditions controlled by medications i.e., epilepsy, depression, etc. Qualified individual with a disability = a person who can perform the essential functions of the job with or without an accommodation. Page 7 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Major Life Activity = are basic activities the average person in the general population can perform with little or no difficulty, including: caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. Substantial Limitation = an impairment is a disability only if it substantially limits a major life activity. The nature and severity of the impairment, its duration, and its permanent or long-term impact are factors to be considered in determining whether a disability is substantially limiting. Essential function = primary job duty that a qualified individual must be able to perform with or without an accommodation. A function may be considered essential because it is required in a job or because it is highly specialized. Reasonable accommodation = modifying or adjusting a job application process, a work environment or the circumstances under which a job is usually performed to enable a qualified individual with a disability to be considered for the job. Examples of reasonable accommodations include: readers, ramps, altering physical facilities such as doors, drinking fountains, counters, providing alternate formats and devices, etc. Managing accommodations – The supervisor should consider the following factors when managing accommodations: • • • • • The employee’s needs and desires; The employee’s abilities and limitations in performing a specific job; The nature of the business and the job; The employer’s resources and options; and The extent of the hardship on the employing unit. Identifying a reasonable accommodation is an interactive process that includes: • Identifying barriers for performance of essential job functions; • Identifying possible accommodations; • Assessing the reasonableness of the accommodation – to what extent is the employer responsible? What is the hardship to the employer? • Choosing the most appropriate accommodation. Page 8 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services NOTE: Accommodations are not exclusive to individuals with physical or mental disabilities. The First Amendment of the Constitution guarantees religious freedom and Title VII prohibits discrimination in all aspects of employment when an individual chooses to exercise that Constitutional right. Religion is defined broadly in Title VII to include religious observances, practices and sincerely held beliefs. Employers must accommodate employee's religious needs, unless accommodation would cause an undue hardship. Examples of religious accommodations involve: • Leave = Permitting employees to take time off work for religious holidays or other Religious observances. • Dress and Appearance = Religious needs include dress and appearance i.e., hijab usage. Vietnam Era Veterans Readjustment Act, 1974 What is prohibited – Discrimination against qualified Vietnam disabled veterans, recently separated and other protected veterans. The Act requires employers doing business with the Federal Government to take affirmative action to employ and advance in employment, Vietnam era, and special disabled, recently separated, and other protected veterans. Definitions Vietnam Era Veteran - a veteran, of the U.S. military, ground, naval, or air service, any part of whose service during the period of August 15, 1964 through May 7, 1975, who (a) served on active duty for a period of more than 180 days and discharged or released with other than a dishonorable discharge, or (b) was discharged or released from active duty by service connected disability. (Service in the Republic of Vietnam between February 28, 1961 and May 7, 1975 also covered.) Special Disabled Veteran - a veteran who served on active duty in the U.S. military, ground, naval, or air service who was discharged or released from active duty because of a service connected disability. Recently Separated Veteran - a veteran who served on active duty in the U.S. military, ground, naval, or air service during the one year period beginning on the date of such veteran's discharge or release from active duty. Page 9 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Other Protected Veteran - any other veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized. Pregnancy Discrimination Act, 1978 What is prohibited – Discrimination on the basis of pregnancy, childbirth or related conditions. What it requires – • Employers to treat pregnancy the same as any other temporary disability. • Employers to provide access to medical benefits and sick leave. • Bottom line: It is illegal to refuse to hire, to fire, to force a woman to leave work (constructive discharge) or to stop the accrual of seniority because she is pregnant/gave birth to a child. Immigration Reform and Control Act (IRCA), 1986 and amended 1990 What is prohibited – Discrimination against individuals who are not citizens but who are authorized to work in the U.S. on the basis of national origin or citizenship. Discrimination takes the form of exclusion due to "accent," place of birth of "foreign look." What it requires – • Employers must verify employee’s eligibility to work in the U.S. within three days of hiring. • An I-9 form must be completed verifying (a) identity and (b) right to work in the U.S. • Employment determinations to be based upon valid business related reason rather than national origin or citizenship. Employer will be liable only for "knowing and intentional discrimination" or for a "pattern or practice" of intentional discrimination. Family and Medical Leave Act What it requires – • Upon meeting eligibility and medical requirements, employees are entitled to 12 weeks of unpaid, job protected leave for: Page 10 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services • the birth/adoption/foster care placement of a child, • serious health condition of self or • serious health condition of an immediate family member. Uniform Guidelines on Employee Selection Procedures, 1978 Purpose – • This is a procedural document that covers all aspects of the selection process, including recruiting, testing, interviewing and performance appraisals. • It assists employers in complying with federal regulations against discriminatory actions. • It enables the employer to review all selection procedures to establish if there is an adverse impact on the hiring of any race, gender of ethnic group. Adverse impact is when the selection rate for a protected group is less than 80% of the rate for the group with the highest selection rate. Ohio Revised Code Section 4112.02 Purpose The Ohio Revised Code Section 4112.02 prohibits discrimination based upon race, color, religion, sex, national origin, handicap, age or ancestry. This section also provides for individual supervisor liability for violations of the Code. Employer Liability for Discrimination • The employer is liable for discriminatory acts that lead to adverse employment actions. • Relief may be monetary and may require reinstatement or other equitable remedies. Employer Liability for Harassment The employer is strictly liable for harassment where an adverse employment action results. Burlington Industries, Inc. V. Ellerth. The employer may have affirmative defense to harassment where: Page 11 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services • The employer exercises reasonable care to prevent harassment, establishes an effective procedure for reporting harassment and acts promptly upon complaints, AND • The employee unreasonably fails to use the employer’s complaint procedure. Supervisor’s Responsibilities Prevention • Be familiar with the laws and university policies related to discrimination. • Establish clear standards of behavior and conduct. • Communicate and post the University’s non-discrimination policy and sexual harassment policy and procedures on a regular basis. • Provide training opportunities for staff and student employees to increase awareness. Management of Complaints • Take every complaint seriously. • If you receive a discrimination complaint, contact your unit's Human Resource Professional and/or Consulting Services. • If you receive a sexual harassment complaint, refer the case to the Unit's designated Investigator or contact Consulting Services. Implementing Investigatory Findings Upon notification of the results of the investigation, you must: • Follow appropriate university policies i.e., sexual harassment, discrimination, etc. • Consider and balance the nature of the behavior or conduct with the appropriate level of corrective action. • Review past practices and disciplinary decisions to ensure consistency of application. • Talk privately with the person to discuss implementation of the recommendations. • Explain the impact of the behavior on the receiving party. • Depending upon the finding, notify employee that further incidents of that nature will not be tolerated. • State the disciplinary consequences if the behavior continues to occur. • Do not tolerate any discrimination or harassment, however inconsequential it seems to you or others. • Document your discussion and follow-up with the employee. Be factual and objective in your documentation, as your notes constitute public record. Page 12 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Inconclusive Cases There will be instances where the result of the investigation is inconclusive or there is insufficient evidence to make a finding. In such cases you should: • Review inconclusive findings with both parties. • Provide educational tools to ensure that the perceived behavior does not re-occur i.e.; issue a copy of the sexual harassment policy and/or non-discrimination policy and procedures. • Conduct random follow-ups to ensure that there are no further concerns. • Consider implementing a program of yearly training to ensure employee compliance. Warning Signals and Considerations for Supervisors • Is the employee a member of a protected class? • Are you applying policies and procedures consistently to all regardless of protected status? • If applying a new practice, does it have a disparate impact upon a class of individuals in a protected class? • In interviews, job applications or reference checks have you asked about a person’s disability? • When writing a job description, does it accurately reflect the actual functions of the job? Is it outdated? • Are you treating similarly situated employees in protected groups differently? Why? • Have you taken a tangible employment action that can be connected to a protected leave? • Have you considered providing religious or disability connected accommodations to those that have requested it? • Do you manage all employees’ performance regardless of protected status? • Do you apply discipline consistently for similar offenses? Page 13 of 14 Revised 11/2002 What Supervisors Need to Know About Discrimination Office of Human Resources-Consulting Services Resources for Supervisors Office of Human Resources Consulting Services 292-2800 Office of Academic Affairs (for faculty issues) 292-5881 Office of Legal Affairs – Kimberly Shumate 292-0611 To request a training session on sexual harassment call Organization and Human Resource Development 292-4500 For a complete listing of OSU Human Resources policies and materials such as the Guide to Effective Searches, etc. see: http://hr.osu.edu/policy/policyhome.htm Related workshops: • • • • • Can’t We All Get Along? Managing Conflict in the Workplace Understanding the Corrective Action Process Understanding Family and Medical Leave Introduction to Sexual Harassment Americans with Disabilities Act: Keys to Access Page 14 of 14 Revised 11/2002