Avoiding Workplace Pitfalls: Domestic and Foreign Employee Compliance. Employment Law Breakfast Series Sponsored by Cowles & Thompson, PC & The International Business Council of the Frisco Chamber Handout for Session II - Avoiding Discrimination Claims

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Avoiding Workplace Pitfalls
Domestic and Foreign Employee Compliance
Session II – Preventing and Defending Discrimination Claims
Agenda
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2
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Discrimination Claims and
North Texas Businesses
Immigration Anti-Discrimination Pitfalls
How to Prevent and Defend
Employment Discrimination Claims
Discrimination Claims &
North Texas Businesses
Mark Hill
Shareholder, Cowles & Thompson, P.C.

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Legal Landscape
 100s of claims are filed in North Texas
State and Federal Courts everyday.
 Employment claims against local
businesses are an increasing part of the
legal landscape in Collin, Dallas and
surrounding counties.
Most Common Business Claims
Fiduciary cases Contract cases
EMPLOYMENT
cases
Employment Cases
Non-compete
Confidentiality
& Trade Secret
FLSA Discrimination

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Common Types of Discrimination
Disability
Race, National
Origin
Age
Gender Religion
Discrimination Claims Filed within
Last 2 Weeks!
Disability Claims
Oil & Gas Company
•Amnesia, Medications (pro se)
Consulting Business
• Carpal Tunnel
Retail Business
• Cancer, Treatment

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Race/National Origin Claims
Automotive Business
•Terminated, Retaliation Claim
Telecommunications Company
• Performance
Hospitality Business
• Harassment
Age Claims
Retail Business
• Harassment, Policy
Financial Institution
• Termination
What can the Business
Owner do?

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(…and how to help your case)
Written Policy
Consistent Documentation
Preserve Records/File
(…and how to help your case)
Evaluate Termination Basis
Witness ID & Review
Be Cautious with
Communications
Recent Experiences
DFW Medical
Center
Plano Technology
Manufacturer

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How to Prevent and Defend
Employment Discrimination Claims
Brian Farrington
Shareholder, Cowles & Thompson, P.C
Discrimination
What is Discrimination?
-not necessarily unfair or unreasonable
What is the legal meaning of discrimination?
-Adverse action against people because of
protected group membership.
So, it’s illegal to discriminate because of:
Who is Protected?
-Race (Title VII of Civil Rights Act of 1964)
-Color (Title VII)
-National Origin (Title VII)
-Religion (Title VII)
-Sex (Title VII)
-Age, 40 and up (Age Discrimination in Employment
Act—ADEA)
-Disability (Americans With Disabilities Act—ADA)

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Who is Protected?
In Texas, these laws only apply to employers
who have:
-15 or more employees
-on the payroll
-for at least 20 weeks
-of the current or preceding calendar year
Other states have lower thresholds, or even
cover all employers
Who is Protected?
States can also create additional protected
groups—e.g.,
-Sexual Orientation
-Marital Status
-Off Duty Use of Legal Products
Direct Evidence of Discrimination
How do employees prove discrimination?
One way is where there is DIRECT EVIDENCE of
employment decisions motivated by protected
group membership—e.g., Slack v. Havens

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Disparate Treatment
Where there is no direct evidence, there may
be INDIRECT EVIDENCE.
The most common model of a discrimination
claim is DISPARATE TREATMENT (a/k/a the
“SHIFTING BURDEN analysis”).
Disparate Treatment
Step 1: Employee must make a prima facie case.
In a typical firing case, for example, here are
the elements:
-Member of protected group
-Suffers an adverse action
-Qualified for the job
-Replaced
Disparate Treatment
Step 2: Employer must “articulate” a
“legitimate, non-discriminatory reason” for
the adverse action. At this point, the Employer
relies on:

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Disparate Treatment
DOCUMENTATION
-write-ups, performance appraisals,
production records, attendance, etc.
CONSISTENCY
-with what Employer said it would do (e.g.,
policies); and
-with what Employer has done in similar
situations in the past
Disparate Treatment
Step 3: Burden shifts back to the Employee:
-PROVE that the reasons given by the Employer
are false
-In the past, Employer would then have to show
false reason was “pretext” for discrimination
-Now, just giving false reasons allows jury to
infer a discriminatory motive
In Hiring, Promotions:
Where a “facially neutral policy” has a harsher
result for one or more protected groups than
for others, it can be discriminatory.
Examples:
-Height requirements in police departments
-Unnecessary education/training
requirements
Disparate Treatment

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First articulated in Griggs v. Duke Power Co.:
-prior to July 2, 1965, company would not hire
Blacks
-started hiring Blacks on July 2, 1965, but also
started requiring high school diploma
-in N. Carolina, only 11% of Blacks had diplomas
(31% of Whites)
So HS graduation requirement had DISPARATE
IMPACT on Black applicants.
Disparate Treatment
If a criterion has a disparate impact, it is NOT
automatically illegal.
BUT:
Employer must PROVE that the standard is “job
related” and “consistent with business
necessity.”
Disparate Treatment
EEOC is looking very hard at such disparate
treatment issues as:
-Criminal background checks (“ban the box”)
=must consider nature of offense, elapsed
time, subsequent history, relation of offense
to job.
-Credit checks
Disparate Treatment

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“4/5ths” Rule:
-if pass rate of any group is less than 80% of
pass rate for other group(s), there is a
disparate impact
Disparate Treatment
Testing: How does Employer prove a test that
has a disparate impact is job related and
consistent with business necessity?
Uniform Guidelines on Employee Selection
Procedures—29 CFR 1607
Three ways to show test is valid
Disparate Treatment
1.Measures a skill or aptitude required by the
job—e.g., typing test.
2.Identifies personality traits or aptitudes which
are important to the job—e.g.,
communication skills in sales employees
3. Predicts success on the job—history shows
that the better candidates do, the more likely
they are to succeed.
Disparate Treatment

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Pregnancy
Gilbert v. General Electric, 1976—discrimination
against pregnant people NOT sex
discrimination
Pregnancy Discrimination Act, 1978—Oh yes it
is!
Pregnancy must be treated as any other
temporary medical disability (but no special
treatment or accommodation required)
Health insurance and income maintenance
benefits must be equal
Seniority of female on maternity leave continues
Exception (BFOQ) very narrowly interpreted
-UAW v. Johnson Controls: as long as pregancy
does not interfere with ability to perform job,
employee must be allowed to work
Pregnancy
PDA does not require maternity leave, but FMLA
does.
Family Medical Leave Act: covered employers
must provide up to 12 weeks job protected
leave for pregnancy (and other serious health
conditions).
“Covered Employer” has 50 employees, or is
government agency.
Pregnancy

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Eligible Employee:
-worked for employer for 12 months
-in 12 months preceding leave, worked 1,250
hours or more
-works at a location where employer has at least
50 employees within 75 miles
Pregnancy
Although PDA does not require
“accommodations,” and ADA does not define
pregnancy as a disability, EEOC is looking very
hard at ways to protect pregnant employees.
New guidance issued by EEOC recently points
out that many conditions associated with
pregnancy can be disabilities, and would
require accommodation.
Pregnancy
Sexual Harassment
"Quid Pro Quo“
-Exchange of job favors for sexual favors.
-Done by Supervisor/Agent
-Company is responsible.

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Hostile or Offensive Environment
-"Unwelcome" sexual advances.
-Objectively offensive—reasonable person in
the place of the victim would find conduct
offensive
Sexual Harassment
"Unwelcome" Physical or Verbal Conduct of a
Sexual Nature
-"Unwelcome" - both objectively and
subjectively
-Must be serious and pervasive, not isolated
or incidental
Sexual Harassment
-Physical conduct - touching, etc. - even one
incident may be enough.
-Verbal
=Comments on body, clothing, appearance
=Jokes
=Description/questions on love life
=Miscellaneous—Pictures, novelties
Sexual Harassment

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Company Liability—If hostile environment
created by co-worker, company is not liable if:
-Company did not know of conduct.
-Company had no reasonable way to know.
-Anti-harassment policy/complaint
mechanism is in place
Sexual Harassment
Hostile or offensive environment if supervisor
does it:
-If supervisor does it, and a tangible job
detriment occurs (e.g., demotion, discharge),
employer is strictly liable
-If supervisor does it, and no tangible job
detriment occurs, company is liable but can
raise affirmative defense
Sexual Harassment
Affirmative Defense
-Company has widely disseminated and
effective internal complaint process
-Employee does not take advantage of internal
complaint process
Sexual Harassment

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Disability
Americans with Disabilities Act (ADA)
Definition of "disability:"
-any physical or mental condition which
substantially limits one or more of an
individual's major life activities; or
-a record of such impairment; or
-being regarded as having such an impairment
Disability
Qualified individual with disability
-meets basic qualifications (education,
experience, etc.)
-can, with or without reasonable
accommodation, perform essential functions
of job
Disability
-Requires "reasonable accommodation" unless
"undue hardship" - tough definition of undue
hardship
-Forbids any pre-offer inquiries about
health/disability

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Age Discrimination
-Protected group is age 40 & up
-NO MANDATORY RETIREMENT!
-RIF's, layoffs - modified prima facie case
=RIF criteria applied uniformly
=statistics alone don’t make a case (but
support one)
Religion
Reasonable accommodation required, unless
more than de minimus cost
Conflict with dress and grooming codes
Observance of holidays, etc.
Interviews/Applications
If you need to know, ask; if not, don't:
-Age, date of birth - child labor only
-Race, religion, national origin - NO! (not even
a photo)

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Interviews/Applications
Disability, etc.
-Have job description listing essential
functions
-Ask only if can perform essential function
-If applicant initiates it, discuss reasonable
accommodations
-Education - only to the extent relevant
-Sex, marital status, family, etc. - don't ask
-Arrest, conviction, deferred adjudication - you
may ask about convictions only - have
disclaimer
Interviews/Applications
-Garnishment - No
-Bankruptcy - No
-Citizenship - No. Say that the company, in
compliance with IRCA, requires proof of
identity and eligibility to work. (I-9)
Interviews/Applications

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Application Form
-EEO statement
-Authorization for pre-employment testing
-Misleading, inaccurate information or
omissions grounds for termination
Interviews/Applications
-Authorization for previous employers, schools,
etc. to provide or confirm information.
Release these from liability.
-Statement of at-will status (cannot be varied by
anyone except --)
Interviews/Applications
Pre-employment inquiry guide – lists acceptable
and unacceptable questions – most states
with anti-discrimination laws have them—get
one!
Interviews/Applications

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Terminations
Do a risk profile:
-Warning and chance to improve (unless must
fire ASAP)
-Consistent with own policy
-Age
-Sex (pregnant?)
-Effect on EEO profile
-Seniority
-Replacement
-Adequate documentation
-Consistent with previous actions in similar
situations
-Recently on medical/workers comp leave
Terminations
Termination Interview
-Rehearse
-Employer witness (who takes notes)
-Choose time and place to minimize discomfort,
embarrassment, humiliation
Terminations

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-Brief and clean - not too specific
-Don't argue
-Don't let them down too easily
-Explain any benefits, last paycheck, payment of
vacation/sick/severance, COBRA, etc.
Terminations
-Allow opportunity to vent (he may even agree -
good at trial!)
-No improper comments, and don't be trapped
into making them
-Detailed narrative later - signed by both
Terminations
Immigration Anti-Discrimination Pitfalls
Angela M. Lopez
Shareholder, Cowles & Thompson, P.C

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Department of Homeland Security
U.S. Citizenship and Immigration
Service (USCIS) www.uscis.gov -
immigration benefits and
services
U.S. Customs and Border
Protection (CBP) – www.cbp.gov
– border patrol and
international travel facilitation
Department of Homeland Security
Immigration and Customs Enforcement
Investigates employers for
compliance with employment
employer verification rules
and removes undocumented
aliens from the United States
www.ice.gov
U.S. Department of Labor
Investigates employer verification
compliance, visa compliance,
violation of worker rules
www.foreignlaborcert.doleta.gov

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U.S. Department of Justice
Office of Special Counsel (OSC)
Investigates and prosecutes
charges of immigration-related
unfair employment practices
www.usdoj.gov/crt/osc
Prohibited Conduct
Citizenship or
Immigration
Status
Discrimination
National Origin
Discrimination
Document Abuse
Retaliation or
Intimidation
Citizenship/Immigration Status
Discrimination
Prohibits different
treatment because of
citizenship or
immigration status
Protects US citizens,
recent permanent
residents, temporary
residents, asylees or
refugees only

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National Origin Discrimination
Prohibits different
treatment because of place
of birth, country of origin,
ancestry, native language,
accent, or looks or sounds
“foreign”
Protects ALL work authorized
individuals
Document Abuse
Prohibits request for
more or different
documents than
required or rejection
of genuine-looking
documents
Prohibits requirement
of specific documents
based upon
citizenship status or
national origin
Protects ALL work
authorized individuals
Common Mistakes
Your supervisor catches you before
you start interviewing applicants for
a job. She says, “Find out if those
two near the door have their ‘green
cards’ before you waste your time.
Did you discriminate in hiring?

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Common Mistakes
As president of your company, you
issue a memo stating, “Please be
careful when hiring people who look
like they crossed the border
illegally.”
Have you committed national origin discrimination?
Common Mistakes
You find two equally qualified
candidates to fill one position.
In deciding between the two,
you decide on one because he
is a permanent resident and
the other, an asylee, only has
a temporary work permit
(EAD).
Have you committed citizenship status discrimination?
Common Mistakes
You implement an employee
referral program. Unofficially,
you tell employees that you
prefer they only refer
applicants who are U.S.
citizens.
Are you in compliance with the INA?

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Common Mistakes
You hire Angela Lopez and are
surprised when she hands you
a state-issued driver’s license
and an unrestricted Social
Security card for her I-9 form.
You say, “I must see a card
issued by the USCIS.”
Does Angela have a case against you?
Penalties for Anti-Discrimination
Violations
$100 to $16000
depending upon
the violation
Back pay (no
more than 2
years before
claim was filed)
Hire or re-hire
Personnel
Training
Attorney Fees

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Recent OSC Settlements
June 12, 2014
Violation: Commercial Cleaning Systems required work-
authorized non-U.S. citizens to present specific documents
issued by the USCIS in order to verify their employment
eligibility, while U.S. citizens were permitted to present their
choice of documentation.
Settlement: $53,500 in civil penalties, $25,000 back pay fund
a result of the company’s discriminatory document practices,
and government oversight of its employment eligibility
verification practices for one year.
Recent OSC Settlements
May 7, 2014
Violation: Master Klean Janitorial subjected work-authorized
non-U.S. citizen new hires to unlawful demands for specific
documentation issued by the U.S. Department of Homeland
Security in order to verify their employment eligibility, while
U.S. citizens were permitted to present their choice of
documentation.
Settlement: $75,000 in civil penalties, undergo training on
the anti-discrimination rules, revise employment eligibility
verification policies, and government oversight of its
employment eligibility verification practices for one year.
Recent OSC Settlements
April 24, 2014
Violation: El Rancho required lawful permanent residents to
present a new employment eligibility document after being
hired when their Permanent Resident cards expired, even
though the Form I-9 and E-Verify rules prohibit this practice
because lawful permanent residents have permanent work
authorization in the United States, even after their Permanent
Resident cards expire.
Settlement: $43,000 in civil penalties, undergo training on
the antidiscrimination rules, and government oversight of its
employment eligibility verification practices for one year.

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OSC Stats and Trends
During Fiscal Year 2013, the Office of
Special Counsel set a new record by
collecting almost $900,000 in civil penalties
under the anti-discrimination provision of
the INA. Over the same period, the Office
also collected over $250,000 in back pay
relief for victims of discrimination.
OSC Referral Sources
USCIS
Department
of Labor –
Wage &
Hour
Legal Aid
Bureaus
Immigrant
Advocacy
EEOC

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What to Do Next?
Facts of each case are different.
The general information provided
here should not be relied and is
not legal advice.
Consult with an experienced
attorney to get the right
advice for your specific
circumstances.
901 Main Street
Suite 3900
Dallas, Texas 75202
214-672-2000
info@cowlesthompson.com
www.cowlesthompson.com
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