8 ways to minimize discrimination claims
On Board Online • May 27, 2013
By the New York State Association of School Attorneys
Harassment, discrimination and retaliation claims pose a costly and time-consuming problem for employers, including school districts. Verdicts and settlements in employment litigation can be substantial. In its 2012 fiscal year, the U.S. Equal Employment Opportunity Commission (EEOC) secured a record $365.4 million in monetary relief from private and state and local government employers through its administrative process, which includes resolution of complaints through mediation or settlements. The EEOC also recovered $44.2 million in damages through litigation. Those monetary recoveries do not include damages awarded in other discrimination and harassment actions, such as claims brought under the New York Human Rights Law or the Family and Medical Leave Act, or claims that were pursued without the EEOC involvement.
Even when the underlying claim is meritless, the legal fees incurred in defending such a claim can exceed hundreds of thousands of dollars.
What can school districts do to avoid or minimize costly discrimination, harassment, or retaliation claims? Here are eight ways to protect employees and avoid liability.
1. Know the law. School district administrators are generally aware that they cannot discriminate against a covered individual on the basis of race or religion, but they may not be familiar with other forms of unlawful discrimination under laws ranging from the Americans with Disabilities Act to the Genetic Information Nondiscrimination Act. For example, an employee receiving workers’ compensation benefits may have a discrimination claim if he or she is discharged or demoted while receiving such benefits. While there are many nuances to these laws, administrators and board members should recognize what categories of individuals are protected by law.
2. Be aware of the impact of new laws and rulings. The law on discrimination and harassment is a moving target. With the promulgation of anti-bullying laws, school districts have new obligations to protect students from harassment, and courts can expand the reach of existing laws. As noted recently in On Board (“Second Circuit adopts new standard for employer liability in harassment cases,” March 11), a federal court with statewide jurisdiction ruled that school districts and other employers have a duty to protect their employees from harassment by outside third parties, such as contractors, vendors or other professionals [Summa v. Hofstra University (2d Cir. 2013)].
3. Recognize unlawful conduct. The law is not a civility code, and school districts are not expected to police every single exchange or interaction among their employees. The law only requires school districts to prevent and address unlawful conduct. But what is unlawful? Generally, teasing, offhand comments, and isolated incidents of offensive comments, unless extremely serious, will not support a claim of discriminatory harassment. The plaintiff’s burden in hostile work environment claims is much higher. According to the Second Circuit, “[T]he workplace must be permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” in order for a plaintiff to prevail on such a claim [Ben-Levy v. Bloomberg (2d Cir. 2013)].
In cases of alleged sexual harassment, the employee must establish that the hostile or abusive treatment is due to his or her sex. Having a basic knowledge of the legal standards for harassment and discrimination will assist school districts in determining what conduct is potentially unlawful, and when to take remedial action.
4. Implement EEO policies and train employees. Implementation of anti-harassment and discrimination policies and procedures reflects compliance with the law and may exculpate a school district from liability in certain circumstances. Such policies should identify to whom complaints of harassment or discrimination should be made and provide alternative reporting mechanisms if the employee cannot complain to his or her immediate supervisor. Such policies should also state that all complaints will be investigated, so as to encourage employees to come forward with complaints, and that complaining employees will be protected from retaliation.
School districts must also provide their employees with appropriate training concerning their anti-harassment and discrimination policies and procedures for addressing unlawful conduct. Employers that have failed to do this have been subject to punitive damages. For example, a federal court upheld a $100,000 award in punitive damages against an employer because its harassment training was inadequate [EEOC v. Management Hospitality of Racine, Inc. (7th Cir. 2012)]. Similarly, another federal court upheld a $1 million award in punitive damages, citing the employer’s lack of anti-harassment training for employees [Swinton v. Potomac Corp. (9th Cir. 2001)].
5. Investigate all allegations of unlawful conduct. Once a school district learns of possible harassment, it has a legal duty to investigate the allegations of such conduct. Even when the complaining employee requests that no action be taken with respect to his or her complaint, the district has an obligation to investigate. In the event of litigation, an internal investigation may become the school district’s best defense. Thus, it is important to conduct such investigations promptly and properly, as well as ensure they are in accordance with the district policy.
An investigation generally involves speaking with the complainant and any witnesses, following up on leads, and reviewing personnel files of the individuals involved. Depending on the circumstances of the case, it may be necessary to place the individual under investigation on leave pending the outcome of the investigation. Confidentiality of witnesses should be maintained, to the extent possible but cannot always be guaranteed. And witnesses’ statements should be documented, at the time they are given by the witnesses. Investigators, however, should also prepare notes summarizing their observations and conclusions, with precise dates and times. Any adverse action taken against the complaining employee or the object of the investigation should be documented, as well as the reasons for such adverse action.
6. Implement remedial action promptly. Remedial action must be swift and directed towards effectively ending the unlawful conduct [Williams v. Consol. Edison Corp. (2d Cir. 2007)]. School districts have a variety of available approaches to respond to allegations of unlawful conduct, including implementing corrective action procedures and policies. In cases where the misconduct is perpetrated by a third party vendor, remedial action may include banning the specific employee of the vendor from continuing to provide services to the district. While the facts of each complaint may vary, it is important to be fair and consistent in administration of remedial action.
7. Don’t retaliate against the complainant. While a school district may do everything right to prevent and address discrimination or harassment, its actions toward the complaining employee after the complaint is made may form the basis of a retaliation complaint. A close connection in the time between the filing of the complaint and the adverse action against the complainant may be enough to establish causation for a retaliation claim, absent a persuasive showing by the school district that the adverse action was unrelated to the filing of the complaint. Therefore, before taking adverse action against an employee who has previously filed a harassment complaint – or, for that matter, any complaint under a law providing retaliation protection – the district should consult with its human resources support within the district and/or its legal counsel to assess the risk of liability for retaliation.
8. Consult legal counsel and advise insurers. School districts should notify their counsel as soon as allegations of unlawful conduct arise. Counsel can guide districts in conducting an investigation, administering discipline, and implementing remedial plans. If the matter progresses to formal legal action, having been involved in the case from the outset, legal counsel will be well-equipped to defend the claim. Finally, prompt notice to the district’s insurance carriers will increase the likelihood of coverage in the event a suit is commenced.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Emina Poricanan and Jeff Swiatek of Hodgson Russ, LLP.
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