Managing for the Future: How to Sustain Excellence Through Diversity & Avoid Legal Risk

1. Managing for the Future: How to Sustain Excellence Through Diversity & Avoid Legal Risk Michele Coyle Chief Campus Counsel UC Riverside Therese M. Leone Vice President & General Counsel Mills College UC Riverside May 29, 2009

2. The Changing Face of Employment By Year 2050, more than 50% of Americans Will Be Non-Caucasian

3. 1970 – 80% White non-Hispanic population • 1998 – 52% White non-Hispanic population • 30 % Hispanic • 11% Asian • 7% Black • By 2025, Hispanics will be the largest ethnic group in California California’s Changing Demographics Public Policy Institute of California

4. Colleges/Universities Have Increasingly Diverse Students 31 % of undergraduates students are minorities • 14.0 % Black • 10.8% Hispanic • 5.1 % Asian • 1.0 % Native American 2004 Report by the U.S. Department of Education

5. Majority of Americans Report Feeling Racial Tension Daily • 60% of Americans feel “unpleasant” thoughts or emotions when encountering people of different races: • Racial Breakdown: • 60% Caucasian • 58% Black • 52% Latino 2004 Gallup Poll

6. Who Works in Most Diverse Environment? • 72% of Blacks • 59% of Latinos • 32% of Caucasians 2004 Gallup Poll

7. You have to “Sweat the Small Stuff” • Retaining diverse talent means you have to ensure that employees feel included and can do their best work. • Avoiding litigation means that you have to put out the small fires before they become 4-alarm problems. • Educate yourself: set the example. • An ounce of prevention is worth a pound of cure.

8. Good Managers/LeadersMinimize Litigation • Whether in employment or other areas, having effective leadership that is responsive to and knowledgeable about diversity and legal concerns helps avoid litigation and retain key talent. • Hiring, training/educating and supporting good managers is the key to avoiding employment litigation.

9. What is the cost of getting it wrong? University of CaliforniaEPL Litigated ClaimsReported to TPA 7/1/2003 - 6/20/2008

10. What is the cost of getting it wrong? University of CaliforniaEPL Litigated ClaimsReported to TPA 7/1/2003 - 6/20/2008

11. Group ExercisePerspective Matters . . . • Mulberry School

12. ~Spot the Issues~ What Policies or Laws Apply? • Protected Categories • Race/ethnicity Gender • Sexual Orientation Religion • Age Disability Status • National Origin Veterans Status • Other Protected Leaves Marital Status

13. ~Spot Issues~ What is Prohibited? • Refusal to hire; • Discipline; • Termination; • Denial of training; • Failure to promote; • Paying less or demotion • Harassment • Retaliation

14. ~Spot the Issues~ California Non-Discrimination Laws • Fair Employment and Housing Act (CA state law) prohibits discrimination race or color; religion; national origin or ancestry, physical disability; mental disability or medical condition; marital status; sex or sexual orientation; age, with respect to persons over the age of 40; and pregnancy, childbirth, or related medical conditions. • California Family Rights Act (CFRA)

15. Applicable Laws • 14th Amendment – Equal Protection Clause • Title VII (employers with 15 or more employees) • Title VI (prohibits race/national origin discrimination in admissions/employment for federal fund recipients) • Title IX (prohibits gender discrimination in admissions/employment for federal fund recipients) • Executive Order 11246 – requires federal contractors to implement affirmative action programs (race, religion, color, natl. origin, sex)

16. ~Spot the Issues~ Federal Non-Discrimination Laws • Title VII prohibits discrimination based on race, sex, color, national origin, or religion. • The ADEA prohibits discrimination based on age (if forty or over). • Title I of the ADA prohibits discrimination based on disability. • FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons • HEERA and the NLRA prohibits discrimination based on an employee's union activity or concerted activity.

17. Group ExerciseHypothetical Number 1

18. Do applicants really sue? ~SpottheIssues~ • BALTIMORE – The U.S. Equal Employment Opportunity Commission (EEOC) announced today (Dec. 2, 2008) that it has resolved its pattern or practice sex discrimination lawsuit against LA Weight Loss Centers, Inc., (renamed Pure Weight Loss, Inc., in early 2007), for $20 million and other significant relief. • 6/22/2005 – INDIANAPOLIS – The owner of senior communities in 14 states will pay $650,000 to settle a race discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC charged that a Fort Wayne senior community refused to hire African Americans and members of other racial groups for many years. The agency also said the facility failed to keep employment records, specifically application papers, as required by law.

19. ~SpottheIssues~ A federal judge approved the settlement of an employment discrimination lawsuit brought by the (EEOC) against a Washington construction company that rejected a qualified and experienced job applicant with one arm due to his disability. Pacific Commercial Equipment, Inc., refused to hire an applicant with one arm for a heavy equipment operator position -- even though the applicant had successfully operated heavy construction equipment for over six years. Rather than attempting to verify what equipment the applicant could actually operate, the company manufactured reasons for denying him employment. The company then hired other non-disabled applicants as heavy equipment operators in the weeks afterwards. As part of the settlement, the company agreed to pay the disabled applicant$105,000; reaffirm its commitment to the laws prohibiting employment discrimination and retaliation; train managers and supervisors on compliance with the ADA; voluntarily provide information to the EEOC concerning its handling of disability discrimination complaints for a period of four years. (September 2005)

20. Basic Interview Guidelines

21. Basic Interview Guidelines

22. Basic Interview Guidelines

23. ~SpottheIssues~ Disability AccommodationsInteractive Process • Communicate with employee (representative) to explore possible accommodations, • consideration of any accommodation requested by the employee, • offer of a reasonable and effective accommodation, if one exists, without causing the employer undue hardship.

24. ~Spot the Issues~ Disability AccommodationsInteractive Process • Implement the accommodation that is most appropriate for the employee and the employer under all the circumstances. The decision is the Employer’s ultimately. • The accommodation must work effectively. If not, try again. The process goes on until the employee no longer needs accommodation or the employee refuses to participate in the process in good faith or we determine there is no reasonable accommodation Humphrey v. Memorial Hospitals239 F.3d 1128 (9th Cir. 2001).

25. ~Spot Issues~ First Amendment Issues • Statement made by public employees pursuant to their official duties are not protected under the 1st Amendment and such communications are not insulated from employer discipline Garcetti v. Ceballos 126 S. Ct. 1951(2006).

26. ~Spot Issues~ First Amendment Issues Religious Speech • Regulation of speech in the workplace by a governmental employer, religious or otherwise, is subject to the same balancing test under the First Amendment Berry v. Dept. Of Social Services 447 F.3d 642 (9th Cir. 2006).

27. ~Know the UC Policy~ Policies Are NOT Meant To Be Broken! • Only Thing Worse Than Not Having A Policy Is Not Following The One You Have • Hawkins v. Anheuser-Busch, Inc. 2008 U.S. App. LEXIS 3430

28. ~UC Policies~ Ignoranceisnotbliss. . . • PPSM -staff • APM - faculty • Union contracts • Whistleblower • Sexual Harassment

29. Group ExerciseHypothetical Number 2

30. ~How to Avoid Claims~ Don’t Make Promises You Can’t Keep • Applies to Both Applicants & Employees • Avoid Reference to “The Future” • Promotion • Retirement • Bonus • Employees Have Long Memories • Stehm v. The Nordam Group, Inc. 2007 Ok Civ. App. 94 (September 28, 2007) • Lulaj v. The Wackenhut Corp. 512 F.3d 760 (6th Cir. 2008)

31. ~How to Avoid Claims~ Be Fair And Consistent • Don’t Play Favorites • Follow The Rules • How would this play outside the University? (external view) • Holcomb v. Iona College 521 F.3d 130 (2nd Cir. 2008). • Lockett v. Bayer Healthcare 2008 U.S. Dist. LEXIS 16173

32. ~How to Avoid Claims~ Discipline, Don’tPunish • Don’t Retaliate • Avoid Adverse Employment Action Claims • Jones v. Lodge at Torrey Pines Partnership Cal. 4th No. S151022: No Individual Liability for Retaliation

33. ~How to Avoid Claims~ EffectivelyManage Leaves And Accommodations • Managers Need To Understand Their Role/Responsibility Under the Myriad of Leave and Disability Laws • Involve Experts Early On • EEOC v. Federal Express Corp. 513 F.3d 360 (4th Cir. 2008).

34. UCR RESOURCES Associate Vice Provost Conflict Resolution • Yolanda Moses 951-827-7741 Associate Vice Provost For Faculty Equity & Diversity • Marlene Zuk 951-827-3952 Ombudsman Office • Indumati Sen 951-827-3213 Affirmative Action • Gladys Brown 951-827-5604 Title IX Office • Debbie Artis 951-827-7070 Labor Relations/Employee Relations • Tony Giorgio, Jadie Lee 951-827-3641 Disability Management Coordinator • Marsha Marion 951-827-4785 Campus Counsel • Michele Coyle 951-827-2228

35. Thank you for your kind attention! Michele Coyle Chief Campus Counsel UC Riverside Therese Leone Vice President & General Counsel Mills College UC Riverside May 28, 2009