2012 DISCRIMINATION TRAINING FOR MANAGERS AND SUPERVISORS Michele Puiggari Puiggari & Associates (505) 690-4052

2012DISCRIMINATION TRAINING FOR MANAGERS AND SUPERVISORSMichele PuiggariPuiggari & Associates(505) 690-4052

Quiz H—SH—N Barbara is a supervisor in the Detention Center, and has known for some time about affairs between some women in her office and their bosses. These women have received perfect performance appraisals, and promotions, while other, more deserving employees were denied such things. hen Barbara comes up for a promotion she is told she will be expected to socialize more. She states that that is not part of the job description and shouldn’t be required. Barbara does not get the promotion instead she is given a poor evaluation. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

H—SH—N Linda and Kim are clerical staff for the Clerk and Recorder’s Office. Linda is now dating Kim’s ex-boyfriend. Kim knows when Linda is scheduled to work and repeatedly deletes items off Linda’s computer and sends sexual e- mails to others from Linda’s computer. Linda is already signed on to her computer and this is when she is away from her desk. You are the supervisor and are aware of the situation. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ H—SH—N Tom works as the receptionist for the Magistrate Judge. There is a mother that comes every week to see her child which one of Tom’s co-workers. during the time the mother is there she repeatedly tells Tom suggestive jokes, suggestively remarks on his appearance, and asks him on dates. Every once in a while the women reaches across the desk and touches Tom. This has been going on for over a month. You, as the supervisor are unaware of this behavior. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

H—SH—N Same scenario has above, but you are aware of the behavior. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ ________________________________________________________________________________ H—SH—N Anne and Mike work together in a juvenile corrections facility and work the 2-10 pm shift. Mike is responsible for training Anne. In the beginning Mike and Anne banter back and forth. Some of the bantering is very flirtatious. Mike is attracted to Anne. He asks her out on numerous occasions but she says no. Mike is persistent and keeps asking her out. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ ________________________________________________________________________________

H—SH—N Same scenario has above, but Paige, Anne’s co-worker sees Mike’s behavior and is offended. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ ________________________________________________________________________________ H—SH—N Same scenario has above, but Mike is Anne’s supervisor and when she refuses to go out with him he begins disciplining her for minor violations that he does not discipline any one else for. Paige is not an issue. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ ________________________________________________________________________________

H—SH—N Same scenario has above, but Anne likes Mike and agrees to go out with him. They wind up spending the night together. Anne is not demoted. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ ________________________________________________________________________________ H—SH—N Bruce is a gay man who works in a juvenile corrections reintegration center. A number of times he has been left hate messages or other employees will make disparaging comments about “fags” in front of him. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ ________________________________________________________________________________

H—SH—N Bruce is an elected official. He makes “off color” comments all the time. Sometimes it is about a woman looking really good in that new shirt, sometimes it is about gay men, a lot of comments are sexual innuendos. Some employees make comments back. In the last 3 years 2 employees have asked to be transferred. Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ ________________________________________________________________________________ H—SH—N Same scenario as above but a number of other elected officials in the building know about Bruce’s actions Your comments: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ ________________________________________________________________________________

H—SH—N Manny works at the Clerk and Recorders office. He regularly makes disparaging remarks about Native Americans (they are lazy) and illegal immigrants (we shouldn’t have to pay for their kids to go to school). One day a person that is clearly hispanic comes in to file a document and he asks to see their drivers license and then tells his co-worker to help them because he can’t understand them through “that accent”. Your comments: ______________________________________________________________________________________________________________________________________________ _______________________________________________________________________ ______________________________________________________________________________________________________________________________________________

GOALS FOR TRAINING • Understand harassment, discrimination and retaliation • Understand and support policy of your county (no discrimination) • Understand your responsibilities as a manager/supervisor

3 Relevant Laws Montana Human Rights Act: 49-2-303. Discrimination in employment. It is an unlawful to discriminate against a person because of race, creed, religion, color, or national origin or because of age, physical or mental disability, marital status, or sex *Political beliefs are also protected *Age is any age—not just over 40 : 49-3-201. Employment of state and local government personnel. State and local government officials shall recruit, appoint, assign, train, evaluate, and promote personnel on the basis of merit and qualifications without regard to race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin. All state and local governmental agencies shall: (a) promulgate written directives to carry out this policy and to guarantee equal employment opportunities at all levels of state and local government; (b) regularly review their personnel practices to assure compliance; and (c) conduct continuing orientation and training programs with emphasis on human relations and fair employment practices.

Governmental Fair Practices Act • 49-3-205. Governmental services. (1) All services of every state or local governmental agency must be performed without discrimination based upon race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin.

Manager’s Role • Reporting and enforcement of Policy • Role model • INVESTIGATE ALLEGATIONS; • Make sure that information given to them by subordinates (that cause adverse employment action is accurate and not based on discriminatory motive)

Check Information • Cat’s Paw Theory upheld: Title VII can impose liability on employers for discrimination if the decision maker acts as the cat’s paw and relies on input from lower level supervisors who have discriminatory intent even if the decision maker did not share those discriminatory motives

What is Discrimination • Making an employment decision NOT based upon the employee’s performance or qualifications but based on impermissible factors in a protected category • Decisions made for other reasons but have a discriminatory impact (decide that a job requires employee to lift 50 lbs) • New MT case—illegal to limit age of Firefighter applicants • Class Examples

WHAT IS HARASSMENT? • Sexual Harassment is Discrimination • Participant examples: visual, verbal, physical (e-mail) Quid Pro Quo or Hostile Environment • Unwelcome or unsolicited words or conduct that are sexual in nature • Recipient is offended, does not encourage the behavior, and does not return the behavior • Conduct impacts conditions of employment

HOSTILE WORK ENVIRONMENTLEGAL TERM • Must be sexual in nature • Inappropriate words, conduct or objects that are pervasive and severe • Resulting in a change to the conditions of employment NOT: MY BOSS IS MEAN TO MEAN, THEY DO NOT TREAT ME WELL, THEY AREN’T NICE

What constitutes hostile work environment? • Statements, signs, screen savers, posters, objects, etc. • Sexually charged or offensive • Based on race, gender, religion, age, etc.(maybe) NOT: NO ONE LIKES ME, I HAVE AN OLDER COMPUTER THAN EVERYONE ELSE, MY BOSS DISCIPLINED ME FOR BEING LATE AND HE IS TRYING TO GET RID OF ME

WHAT SHOULD A MANAGER DO WHEN AWARE OF HARASSMENT OR DISCRIMINATION • Prompt Remedial Action • Follow policy • Report to supervisor or • Bypass: Human Resources/commissioners/maco • Leave no doubt with respect to inappropriate behaviors • Rule of Thumb: daughter, wife, mother, son

Pregnancy Discrimination ActEEOC focusing on this • MT has separate state law on pregnancy • Illegal to discriminate against any woman in any aspect of employment because of pregnancy, childbirth or related condition. • Must treat same manner as other applicants or employees with similar abilities or limitations. • Does not provide leave (MT State law does and FMLA does-unpaid) • Can’t be forced to take leave, can’t prohibit employee from returning to work for pre-determined period, must hold job open as would for other employees if sick)

WHAT SHOULD A MANAGER DO WHEN AWARE OF HARASSMENT OR DISCRIMINATION? • Document file • Date and time of report or observation, names of witnesses, facts • What you did to promptly stop the harassment or discrimination • Notification to Human Resources/commissioners/maco • Follow up: 5% rule;

Judgments • JUDGEMENTS AND ASSUMPTIONS ARE BAD AND NOT HELPFUL • OFTEN WRONG • Employees don’t have to put in writing • Employees often don’t tell right away • Employees don’t tell others to stop for a number of reasons (embarrassed, afraid, think it will stop) • Employees are often afraid of retaliation (with good reason)

We Don’t ACT • Recent NY Times article. University professors of 30 years at lunch with colleagues. One tells blatantly homophobic not funny joke. At table only silence, professor just walked away because did not want to be confrontational.

When Report Made • Supervisor should: • Explain what will happen • Explain retaliation and what employee should do • Be closely on look out for retaliation • Explain person will not be told what discipline is meted out • Employee should be told in general terms outcome

Non-negotiable rules • Co. x has a newly hired employee that is a Jehovah’s Witness. • Jehovah’s Witnesses have a yearly religious service that is a Memorial of Christ’s Death. • Employee was given his first schedule. The schedule conflicted with the Memorial. • Employee explained his religious beliefs and requested he either start a different day, start later than his scheduled start time or be given an hour’s leave during his shift to attend the ceremony and return to work. • Co denied the request and said his scheduled start date and time was non-negotiable. • Employee attended the Memorial instead of reporting to work and told co. that was what he would do. • Co terminated him and assigned him a do not hire status and refused to hire him when he applied for a different position. • Is this discrimination. • Why

RETALIATION • An action or failure to act with respect to a person who made a complaint or participated in an investigation • Cannot punish or deprive an employee of a benefit, privilege, right or courtesy available to other employees because a complaint was made • Does not include enforcement of workplace rules • False allegations can result in disciplinary action, too

Retaliation—why is this so hard? • Percentage of Retaliation Cases increasing • Easier to Win for employee • WHY? • How do you react when accused • Right or Wrong • Ex’s.

MANAGER’S RESPONSIBILITY WHEN RETALIATION IS SUSPECTED • Report to HR • Must intervene to prevent others from retaliating • Document file carefully with the business related reasons as to why you requested the employee to do something or you denied employee something • Supervise the actions of co-workers

Investigations Employee works for a train country. She reported a coworker made derogatory comments about her sexual orientation. After she complained to the employer, someone came to her house pounded on her door and yelled “come out bitch”. You cost me my job, I’m going to get you, come on out. Employee started getting almost daily threatening her at her home. Employee informed her employer about what was happening. Co. did demote the co-worker based on the overheard derogatory comments, but allowed him to use his union status to transfer to another position where he reported directed to Employee. Employer did not investigate the co-workers alleged off site comments. Employer refused to transfer employee and eventually put employee on administrative leave out of concern for her safety and fear of what actions if any co-worker might take in retaliation for being demoted Is company liable to Employee. Did company promote a sexually hostile work environment

PROFESSIONAL DECORUM IN THE WORKPLACE • Treat others fairly and consistently • Demonstrate respect for other employees • Respect legitimate privacy and sensitivities of co-workers • Do not tolerate inappropriate conduct in the workplace • Lead by example • Exercise professional judgment

2012 DISCRIMINATION TRAINING FOR MANAGERS AND SUPERVISORS Michele Puiggari Puiggari & Associates (505) 690-4052