supervisor training: the antidote to punitive damages in employment cases

1. SUPERVISOR TRAINING:The Antidote to Punitive Damages in Employment Cases Elizabeth Mata Kroger Martin, Disiere, Jefferson & Wisdom, L.L.P. kroger@mdjwlaw.com

2. WHY TRAIN? The law requires employers to undertake �good faith� measures to comply with Title VII. The EEOC expects it. Results in a more informed and effective management and supervisory team. Can insulate an employer from liability for punitive damages.

3. KOLSTAD AND ITS PROGENY Kolstad v. American Dental Ass�n (U.S. 1999): �[A]n employer may not be vicariously liable for the discriminatory employment decision of managerial agents where these decisions are contrary to the employer�s good faith effort to comply with Title VII.� Purposes of Title VII are advanced �where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII�s prohibitions.�

4. KOLSTAD AND ITS PROGENY Hatley v. Hilton Hotels (5th Cir. 2002) No punitive damage jury instructions where employer had: Well-publicized policy; Provided training; Had a grievance procedure for complaints; and, Had investigated employee�s complaints.

5. KOLSTAD AND ITS PROGENY White v. BFI Waste Services (4th Cir. 2006): Jury awarded $600,000 in compensatory damages and $2,000,000 in punitive. Evidence showed BFI had a policy prohibiting discrimination and it had conducted training seminars. Punitive damage award reversed.

6. WHAT HAPPENS IF I CHOOSE NOT TO TRAIN? Romano v. U-Haul (1st Cir. 2000) Jury awarded nominal damages of $15,000 $625,000 punitive damages/capped at $285,000 �Written [EEO policy], without more, is insufficient to insulate an employer from punitive damages liability.� Punitive damages upheld

7. WHAT HAPPENS IF I CHOOSE NOT TO TRAIN? Ogden v. Wax Works (8th Cir. 2000) $76,000 backpay; $40,000 compensatory $500,000 punitive/reduced to $260,000 Punitive damages upheld

8. WHO SHOULD I TRAIN? Executive Team Managers Supervisors Human Resource Personnel

9. WHO IS CONSIDERED A SUPERVISOR? A person with immediate or successively higher authority over the employee who exercises control over the employees� conditions of employment, including hiring and firing.

10. WHAT TOPICS SHOULD TRAINING COVER? DEPENDS ON THE TYPE OF COMPANY AND THE AUDIENCE TO BE TRAINED.

11. WHAT TOPICS SHOULD TRAINING COVER? (cont�d) Public Entities: Sarbanes � Oxley Fair Employment Practices Private Entities: Fair Employment Practices

12. WHAT TOPICS SHOULD TRAINING COVER? (cont�d) Executives: Federal and state FEP laws governing the company. Effective compliance with FEP laws.

13. WHAT TOPICS SHOULD TRAINING COVER? (cont�d) Managers/Supervisors: The federal and state FEP laws governing the company. Ways to avoid violating laws. Documentation pointers.

14. WHAT TOPICS SHOULD TRAINING COVER? (cont�d) HR Representatives: FEP laws and requirements. Managing leaves of absence. How to conduct an effective investigation. Proper documentation.

15. TRAINING DO�S & DON�TS DO: Create a 3 to 5 year training plan. Train regularly and make it part of your corporate culture. Have an executive or upper level manager sponsor and endorse each training session. Ensure your training is interesting and pertinent to your company.

16. TRAINING DO�S & DON�TS DONT�S: Don�t call it EEO training. Have HR solely responsible for training. Think you can do without it.