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  1. This Webcast Will Begin Shortly If you have any technical problems with the Webcast or the streaming audio, please contact us via email at: accwebcast@commpartners.com Thank You!

  2. The Latest Trends In EEO Law: What’s Creating Risk in Your Workplace? Wednesday, March 26, 2008Association of Corporate Counselwww.acc.com

  3. Shanti Atkins, Esq. • President & CEO of ELT. • Specialist in online ethics and legal compliance training. • Advises clients across multiple industries and of all sizes about strategic risk management and compliance initiatives.

  4. Margaret Hart Edwards, Esq. • Shareholder, Littler Mendelson. • Litigated hundreds of employment law cases in state and federal courts since beginning practice in 1975. • Routinely advises employers on legal compliance and litigation prevention measures. • Trains extensively in harassment and discrimination prevention.

  5. Who We Are Created by Littler Mendelson in 1996 The nation’s largest employment law firm 1st to Launch Online Compliance Solution

  6. Used by more than1,000organizations More than 2,000,000employees and managers trained

  7. EEOC FY 2007 Charge Statistics • Discrimination charges for 2007 break down as follows: • Race: 37.0% • Sex: 30.1% • Retaliation under Title VII: 28.3% • Age: 23.2% • Disability: 21.4% • National Origin: 11.4% • Religion: 3.5% • Equal Pay: 1.0%

  8. Agenda • The Technology Revolution • Politics Can Be Divisive • The New Face of Sex & Gender Discrimination • Race In America • Sweet Revenge • Other Noteworthy Trends and Decisions

  9. 1. The Technology Revolution • Technology has changed all of our lives in ways we could never have predicted. • We started with cell phones and laptops. • We have now reached an entirely new age of technology. • Ever evolving risk profile for American businesses.

  10. Who Is Posting Content Online? “You” are doing it! • 55+ % of U.S. homes have a web-connected computer. • 40+% of adults get news from the web. • 54% of Gen Nexters use social networking sites. • 5% of employees have a personal blog (but could be as high as 10 million workers.) • Only 15% of companies have a policy that addresses blogging. Sources: 2003 U.S. Census Pew Research Poll 2006 Pew Research Poll 2007 Employment Law Alliance Poll 2006

  11. Blogging, MySpace, YouTube...New Ways of Posting Content Online Created Every Day!

  12. In the News • California AAA fired 27 employees for posting messages to MySpace that were offensive on the basis of weight and sexual orientation. • NY City investigator fired for making racist comments on his MySpace page. • Comcast employee fired after customer posted a video of the employee sleeping on the customer’s couch to YouTube. • Collectors Universe fired an employee for posting a photo of the CEO on his MySpace profile. The company called it identity theft.

  13. More and More Employment Law Cases Turn on Inappropriate Use of Electronic Resources • Legitimacy of demotion of a manager turned on whether e-mail comments that another employee was “stale” and “set in her ways” amounted to age discrimination. Erickson v. Farmland Indus., Inc., 271 F.3d 718 (8th Cir. 2001). • An employee was properly terminated in part because of the employee’s harassment of a fellow manager by means of an anonymous e-mail.Connell v. Consolidated Edison Co. of N.Y., 109 F. Supp. 2d 202 (S.D.N.Y. 2000).

  14. The Risks Are Real • Employees have access to and can share inappropriate content 24/7 and the employer could be liable. • Blakey v. Continental Airlines: NJ Supreme Court warns that, because employer must make reasonable efforts to prevent discriminatory and harassing conduct, employer may be held liable for discriminatory and harassing postings by employees if the employer had reason to know about them. 751 A.2d 538 (N.J. 2000). • No affirmative duty to monitor...yet.

  15. The Risks Are Real • Easier than ever to disclose confidential information...and get away with it. • In the News: Bank withdraws attempt to shut down a website that published its confidential documents provided anonymously by a disgruntled employee after New York Times story characterizes the lawsuit as an attack on the First Amendment. (March 2008)

  16. The Risks Are Real • Recruiting nightmares: • Ethnic, gender and age screening. • Are your recruiters misusing these sites?

  17. Have You Considered... What to do if an employee posts inappropriate contentanonymously? • Hosting ISP won’t reveal identity of poster without a subpoena. • “Anonymous Surfing” products route Internet traffic through an anonymizing server and can hide blogger’s IP address even from the ISP that is hosting the blog.

  18. Krinsky v. Doe 6 • California Court of Appeal refuses to subpoena Yahoo! for identity of poster on message-board who made sexual and highly offensive comments about a company’s senior executive, citing poster’s right to freedom of anonymous speech. Santa Clara County Super. Ct. No. CV059796 (Feb. 2008) • To subpoena identity of poster, Plaintiff must make effort to notify poster and demonstrate a prima facie legal violation.

  19. Ahead of the Trends – Practical Steps • Your Cyber Policy should: • Address new technologies. • Address the employer’s right to control communications; dispel “free speech” myths. • Set clear rules for making statements about the workplace, employees, clients etc. • Set clear rules about accessing sites. • Explain privacy rights and responsibilities. • Emphasize trademark and confidentiality issues. • Remember to train on the policy and clearly explain the consequences for violating it.

  20. 2. Hot Politics: The Presidential Race Very divisive and emotional issues: • Abortion • Healthcare • Environment • Economics • Immigration • War on Terror Massive Media coverage encourages constant discussion.

  21. Have You Considered... That the 2008 presidential race has prompted even more discussion than usual about sensitive subjects? • Race: Did Obama do enough to denounce the “divisive” remarks associated with his campaign? • Gender: Is Clinton playing the “gender card”? • Age: McCain as the oldest first-time presidential candidate?

  22. Not All Speech is Protected! • “Fighting words” - words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. • Harassing or discriminatory comments. • “Captive Audience” nature of workplace limits free speech rights: The workplace is different from sidewalks and parks - workers are not so free to leave to avoid undesired messages. Aguilar v. Avis Rent a Car, 21 Cal.4th 121 (1999)

  23. Not All Speech Is Protected! • Piggee v. Carl Sandburg College: Community college's sexual harassment policy, which precluded instructor from giving a student religious pamphlets on sinfulness of homosexuality, is not an unconstitutional prior restraint on free speech. 464 F.3d 667 (7th Cir. 2006) • Ng v. Jacobs Engineering Group: Employer can terminate employee pursuant to its anti-harassment policy for sending religious emails to unwilling employees. Employer is not required to accommodate an employee’s religious belief by allowing employee to impose that belief “personally and directly on fellow employees.” 2006 Cal. App. Unpubl. LEXIS 9142 (Cal. Ct. App. Oct. 2006)

  24. Where Do You Draw The Line? • Peterson v. Hewlett-Packard Co: Employee terminated for violating harassment policy and insubordination when he disregarded the employer's instructions to remove anti-gay scriptural passages from his cubicle that he posted in response to employer's workplace diversity campaign. 358 F.3d 599 (9th Cir. 2004) • Protected speech?

  25. “Core Political Speech” • No. Comments were not protected because they were intended to demean or degrade coworkers. • Comments would have been protected if they were “core political speech” - expressed political views about a controversial political issue and not meant to hurt the plaintiff. • Also not protected religious speech.

  26. Ahead of the Trend – Practical Steps • Train employees about prohibited conduct and dispel “absolute free speech” myth. • Update yourpolicy, which should: • Be based on realistic and enforceable rules regarding workplace speech. • Teach your employees that respect and inclusion are core values. • Inform employees that workplace policies are broader than the law.

  27. 3. The New Face Of Sex And Gender Discrimination “Next generation” claims emerging: • Sexual favoritism gets noticed • It’s not just about women anymore • Sexual Orientation and Gender Identity • Family Responsibility Discrimination

  28. Romance & Work • 41% of workers between 25 and 40 admit they have had an office romance. • 76% of workers think office romance is more common than it was 10 years ago. • Why? • Employees are working longer hours. • Sexual taboos have relaxed. • Natural to look for and find a mate at work. Source: Harris Interactive and Spherion Corp Poll

  29. Sexual Favoritism Is A Time Bomb • CA court recently ruled that sexual favoritism is actionable if widespread. • Both men and women can sue. • It doesn’t matter that relationship was consensual. • Don’t need to show that you were subject of sexual advances. • You sue because you were negatively impacted by the favoritism. • You did not get the promo, job, or raise because you were not sleeping with the boss. Miller v. Department of Corrections (Cal. Sup. Ct. 2005)

  30. Sexual Favoritism Is Newsworthy • Detroit Mayor Kwame Kilpatrick involved in text-messaging sex scandal with a former aide. Accusations that taxpayer funded-security was used to cover up the relationship. Scandal further muddied by recent “racially charged statements.” Kilpatrick charged with perjury, obstruction of justice and official misconduct on 3/24/08. • Mark Everson’s immediate resignation sought by Red Cross Board because of his romantic involvement with subordinate. (11/07) • Paul Wolfowitz’s integrity questioned because of his romantic relationship with a female World Bank executive and subordinate. (4/07)

  31. Ahead of the Trend – Practical Tips • Consider a policy that: • Bans or discourages supervisor / subordinate relationships. • Mandates disclosure and separates partners. • Applies to all forms of intimate relationships. • Train managers and employees: • Employees frequently unaware that the employer even has a policy. • Training program should address risks of sexual favoritism.

  32. It’s Not Just For Women Anymore….

  33. Sexual Orientation & Gender Identity Protections Are Expanding

  34. Employment Non-Discrimination Act • Passed by House of Reps. in November 2007. • Prohibits discrimination on the basis of sexual orientation. • Gender identity was specifically removed.

  35. State and Local Law Protection • 10 of 19 state laws that prohibit sexual orientation discrimination include gender identity. • Maffei v. Kolaeton Industries, Inc: Employer who harasses an employee because the person, as a result of surgery and hormone treatments, is now a different sex, violates New York City’s prohibition against discrimination based on sex. 626 N.Y.S. 2d 391 (1995).

  36. Don’t Forget Anti-Harassment Laws • Even though Title VII does not provide a cause of action for sexual orientation discrimination, employees can sue for same-sex sexual harassment. Cromer-Kendall v. District of Columbia 326 F. Supp. 2d 50 (D.D.C. 2004).

  37. Family Responsibility Discrimination • May 2007: EEOC issues enforcement guidelines for unlawful disparate treatment of workers with caregiver responsibilities. • The guidelines offer 20 concrete examples of conduct the EEOC considers illegal, such as treating male caregivers more favorably than female caregivers.

  38. Family Responsibility Discrimination • FRD Claims have risen from 97 cases in 1996, to 481 in 2005. • During a period when discrimination claims overall have been dropping, FRD bases have increased at an astonishing rate of 400%. • Source: Hastings College of Law Worklife Center

  39. But Don’t Forget the Other Stuff • In 2007, sex discrimination was one of the top 3 charges filed with EEOC (30.1%). • Sexual harassment in all forms still exists. • “Old school” stuff is still around. • Groping, jokes, and pornography. • Demeaning conduct. • 26% of employed adults say they have experienced sexual harassment at work: • 17% of men • 35% of women Sources: EEOC Charges Statistics (2007), Harris Interactive/lawyers.com Poll (2004)

  40. Have You Considered... That discussions in the workplace of front page headlines may be sexual harassment? • Discussion and jokes regarding Eliot Spitzer’s recent resignation could be environmental harassment. • Conversations may create an intimidating, hostile or abusive work environment that unreasonably interferes with an employee’s work performance.

  41. It Is Expensive If You Get It Wrong • EEOC sued Custom Cut Companies on behalf of 3 female, former sales reps • Traditional harassment • Jokes, touching, retaliation, etc. • $1.1 million verdict (3/07) • Court also ordered company to provide sexual harassment training for all employees Source: EEOC Press Release March 8, 2007

  42. Ahead of the Trend – Practical Tips Ongoing harassment training is critical and it should: • Explore the grey areas, not just the blatant stuff. • Explore emerging issues such as sexual favoritism, sexual orientation, gender identity, and gender stereotyping. • Comply with CA’s stringent training mandate (even if you’re not in CA). Source: http://www.HarassmentTraining.com

  43. 4: Race In America – Still A Big Issue • Percentage of Americans who believe that racism is still a serious problem: • 84% of Blacks/African Americans • 66% of non-Hispanic Whites • 80% of white Americans have racist feelings, and many may not even recognize them as racist. Sources: Gallup and CNN Polls U. Conn. Professor Jack Dovidio Estimates

  44. But What’s Happening At Work • Percentage of Americans who have experienced discrimination in the workplace in 2006: • 31% of Asian Americans • 26% of African Americans • 18% of Hispanic Americans Compared to… • 12% of White Americans Source: Gallup Poll 2006

  45. And The Trend Continues In 2007, the top EEOC charge is, once again, Race Discrimination. Race discrimination charges make up 37% of all EEOC charges.

  46. EEOC Fights Back • EEOC E-Race Initiative (2/07) • Eradicate racism and colorism from the workplace. • Education and outreach efforts. • Combined with EEOC’s new focus on systemic and persistent forms of discrimination. • We Can Expect: • Larger plaintiff cases • Big $$$ • Big publicity • And more individual claims as a result of outreach efforts

  47. 5: Sweet Revenge: Retaliation Basics • Retaliation: taking adverse action against an employee or job applicant because that individual engaged in protected activity such as: • Filing a complaint or lawsuit, • Making an internal complaint, or • Participating in an investigation. • Victim does NOT need to prove the underlying claim of harassment or discrimination to win a retaliation lawsuit. • Most managers just don’t get it!

  48. The Retaliation Explosion In 2007, retaliation claims made up 32.3% of all EEOC claims.

  49. SOX & Retaliation • Right to be free from retaliation is expanding. • Sarbanes-Oxley created a new cause of action to protect employees from retaliation because they complained of or reported violations of federal securities/shareholder law (Article 8). • Separate and distinct from an EEO retaliation claim. • Long arm reach of SOX protections? O'Mahony v. Accenture Ltd., 07 Civ. 7916, 02/05/08 (S.D.N.Y.)

  50. The New Burlington Northern Standard • Standard for what may constitute retaliation has been lowered. Not limited to clear-cut actions like termination or demotion. • Title VII’s “anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” • No bright line test – will require individual case assessment making jury trials rather than summary judgment more likely. Burlington Northern & Sante Fe Railway Co. v. White (U.S. Sup. Ct. 2006)

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