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Again what we're going to talk about here is if we were presenting a case in front
of EEOC, what are they looking for? What an investigator is going to be looking
for. As a matter of fact, what is the Supreme Court
going to look for if an EEO case comes to this.
We'll start out with some theories. Pretty self explanatory.
We get into the theories, and there's five of them.
We'll go into those five. Before that we'll talk about fair treatment.
This one word, we'll talk again, treating somebody different.
As a matter of fact, you will be treating somebody different sometimes.
Again. But there may be justification for doing that.
Remember, we're all members of a protected class.
All of us meet one of those seven. Let's talk about the first proof.
The three burdens shifting analysis. Again, this is even up to the Supreme Court
they're going to look at this analysis. First of all is, establish a prima facie case.
I'll define that in a minute or so. Do they establish a prima facie case.
Can management articulate a legitimate nondiscriminatory reason why they did what they did.
Why did you choose not to hire that person? Why did you choose to suspend that person?
Why did you choose to cancel that person's training?
What's the reason why you did it? And the then complaint the complainant or
the individual has to come back and say, you know what, management gave a reason that there's
no budget why I couldn't go to training, but I think they're lying and here's why.
I've got documentation showing we have $15 million in budget where I could have been
sent to training. Again, why management is lying.
That's when we talk about pretext. Okay?
Also the employee, complainant, has a burden of production.
Again, they say we know management has $15 million extra money stowed around somewhere.
Here's my proof that I have it, that they had the money, they could have sent me to
training. And burden of persuasion.
They have to be the one to persuade the EEOC judge, the Supreme Court, whoever, again,
that management is lying in what they're saying or they're doing a pretext and it's not the
truth. It's really because of my race, sex, age,
whatever, national origin, why I'm being discriminated, why this is happening to me.
Okay? How you establish a prima facie case.
Again, a member of a protected class. Remember those seven items and the additional
three. But for sure the 7, every person in this world
meets one of those seven criteria. So, fine, we know that's going to happen.
Again, even if it's simply, I'm sorry, I can't let you go early today until you get this
project done. As simple as that.
How were they treated different? How would it compare to somebody similarly
situated? For example, you got the one male who was
not allowed to go to training but the two female employees did.
Or vice versa. It could be the female employee and two males
were allow to go to training. They were treated different in some way.
Again, like we talked about, this can happen. It could happen, but it could be legitimate
why it happened. Let's keep that in mind.
The second theory, impact. What we're saying here is one action, one
decision, something that affects numerous people, and I've I gave the example of,
but if you think about a case that happened within the last two months or so, that decision
on Walmart, the woman who filed there was a class action suit against Walmart that went
to the Supreme Court that was basically overturned, and one of the reasons why was that and
I think to put it in a nutshell, the complainant or that class needed to prove this policy
of not promoting women, unequal pay, some other areas, was permanent throughout Walmart's
company, and we're talking about China and everywhere versus maybe they should have focused
on that store or that district area. They had to prove there was a single policy
to discriminate against women throughout Walmart's company.
They just couldn't do that. I think we talked about the Connecticut firefighters
for those who weren't familiar with that, you know, where a group of firefighters filed
a complaint against the this one town of Connecticut for reverse discrimination because
a test was given and turned out in the top 20%, 10%, whatever, there was no diversity.
So the city decided to scrap the test. Those firefighters, it was 20 white and one
Hispanic, filed a race discrimination claim and they won the case.
They won the case based on some simple things that were really basic, and when you talk
about how were people being treated different. In this case there was the test was not
illegal. It was not developed by the city itself.
They had an outside consultant. So there were no barriers there.
There were no barriers where folks were allowed to take the test, given extra help, those
type of things. Also, nobody challenged it.
Nobody challenged it and said the test was unfair.
The city just dropped it. Said we're going to change for diversity.
Really, the city should have let individuals challenge it, whoever that might have been,
and move forward with it. What they didn't do, probably should have
done, is looked at what happened. Do we have enough diverse candidates in our
lower level. What is our applicant pool?
What is our pool within the lower level of our organization?
They didn't do that. Here's a big one you always here, especially
supervisors, I'm being subject to a hostile work environment.
I was given a letter to come to work, I was on leave, and now I'm in a hostile work environment.
You'll hear that a lot. Don't get rattled when you're just doing your
job. It's got to change some condition of employment.
Let's talk about the second item, severe and pervasive.
Okay. You get a letter give a person a letter
saying you haven't been coming to work, only out of two weeks you've only been here a day,
and it's time to come to work, and I think we're going to put you on leave restrictions.
Is that severe and pervasive? No.
No, it's not that case. A person can holler that all they want, but
again they have to show, hey, I've been subject to this ongoing.
It's been just it's just been happening to me every day.
It's disrupted my conditions of work. Like I say, a series of acts, too.
One letter doesn't constitute an incident. Or in that matter, let's face it, real world,
employees get into arguments. Two employees get at it, argue with each other,
sometimes it goes to blows, but, still, once that one person has been just riding them
for the last six months or so? That's not the case.
It's one argument that happened. Again, we shouldn't get caught up in the idea
of hostile work environment. Somebody has to prove they have been subject
to it on an ongoing basis and along with that management has not done anything about it
either. And also harassment, kind of what I talked
about before, the person has been spoken to on an ongoing basis, badgering them or whatever.
What's worse, too, had management talked to them and not done anything about it.
I think important about issues coming to your attention and dealing with it, even though
it may be trivial on the surface. The thing about it is, and what you have to
remember, is it's a work environment, not a personal action.
Because you issue a letter saying you're on leave restrictions, you need to come to work
on time, here's what you need to do to get a leave approved, that's not harassment, not
a hostile work environment. It's just telling them, giving instructions
you haven't been coming to work and we want you to correct your behavior.
Keep that in mind. It's environment, not personal actions.
The force theory we'll talk about this later failure to make accommodations, and the keyword
is reasonable accommodations. It's one thing to say I need a building modified
to $100,000 versus saying I need to have my screen adjusted or one small device that doesn't
cost anything. about reasonable accommodations, we'll talk
about disability accommodation. if there's somebody who is disabled,
maybe that job could be adjusted where could do the job.
Maybe could be adjusted. So, again, disability discrimination.
The last one, retaliation, reprisal. What's key about this one, again, people say,
well, I got this letter or I got this thing done to me because the decision was made because
of retaliation. Well, a person's got to be able to prove for
sure they were involved in protected activity and by protected activity doesn't mean filing
a grievance or anything like that. What it means is a person had to be somewhere
in the EEO process, they either filed the complaint, were witnessing a complaint, even
if it's a situation where they saw something going on to another employee and went to management
and said, listen, Joe over there, Jane, is being discriminated, we need to do something
about that and all of a sudden their leave is being canceled or things are happening
to them because they stood up and said something about an employee, that could be subject to
some type of retaliation claim. Again, they still have to do the burden of
proof. They still have to establish a prima facie
case. They have to go through that process.
When so when we say reprisal, retaliation, we shouldn't get caught up in using those
words.