Transcript

Host: Hello, and welcome to Prevention and Protection, the United Educators Risk Management Podcast. Today, Christine McHugh and Hillary Pettegrew from UE’s Risk Research team will discuss lessons learned from discrimination and wrongful termination claims. Before we begin, a quick reminder that you can find other episodes of the Prevention and Protection Podcast, as well as risk management resources, on our website, www.ue.org. This and all podcast episodes are also available on iTunes. Now I’ll turn it over to Christine and Hillary.

Christine McHugh: Thank you. I’m Christine McHugh, and I’m pleased to be here with my colleague, Hillary Pettegrew. Hillary and I are lawyers, and we both started at UE in the Resolutions department, where we handled all kinds of education related claims with a focus on employment matters. Now we’re both in the Risk Management department at UE, and we research and write about challenges facing educational institutions.

We’ve both continued our focus on employment issues, especially discrimination and wrongful termination claims, which we’ll be talking about today. I’m going to start us off with a look at the current landscape, but first I want to give our usual reminder that although Hillary and I are lawyers, the guidance in this podcast is risk management advice, not legal advice.

Now let’s dive in. We know that understanding claim trends is a good first step toward reducing or avoiding similar claims on your campus. So let’s look at the employment claims that UE members face. Discrimination lawsuits are the most frequent type. And the discrimination suits involving wrongful termination allegations can be particularly tricky. Within the category of employment discrimination, the five most frequent subcategories of claims from 2020 were retaliation and discrimination on the basis of gender, race, disability, and age. Hillary, could you tell us about recent stats from the Equal Employment Opportunity Commission or EEOC?

Hillary Pettegrew: Sure. I’d be happy to. As most of our listeners know, the EEOC enforces federal employment laws, including Title VII, which prohibits discrimination based on race, color, religion, sex, and national origin, the ADA — or Americans with Disabilities Act — which forbids discrimination based on disability, and the ADEA — or Age Discrimination in Employment Act — which, of course, bans discrimination on the basis of age. Recently, the Seyfarth law firm released a preliminary analysis of the EEOCs activity in fiscal year 2021, which ended in September.

The agency now appears to be ramping up its enforcement activity after a comparatively quiet fiscal year 2020. For example, Seyfarth reported a spike in lawsuits and a surge in the monetary benefits it recovered, a record $535 million on behalf of alleged discrimination victims. And beyond that, the firm noted that the EEOC filed over half of its total lawsuits in the month of September 2021, or again, just before the end of its fiscal year.

Seyfarth cautions this may very well indicate that the EEOC will continue its high litigation activity into fiscal year 2022. And one more note here: The EEOC has various regional or field offices around the country and Seyfarth also observes some important differences in the number of lawsuits filed by these offices between fiscal year 2020 and 2021. In some cases, they increased pretty significantly. For example, the Philadelphia regional office jumped from eight filings to 14 new lawsuits year over year, while Dallas more than doubled their filings from five to 11. And Chicago tripled their filings.

Christine, do you want to share some details about which federal laws the EEOC focused on most in the fiscal year it just concluded?

McHugh: Sure. While the lawsuit numbers are higher, it turns out the percentage of cases by statute remained pretty consistent compared to what the EEOC filed in the two years before. The majority of EEOC lawsuits were Title VII cases. That was 62% of all filings, which was very comparable to the 60% in the two years prior.

ADA cases were the next largest category, totaling 36%. That was a slight increase from 30% in fiscal year 2020. And interestingly there was only one age discrimination case filed, but that was down from only eight the year before. So it seems those are not as common.

So while the EEOC activity does seem to be ramping back up, the areas that they’re focusing on remain generally the same, which means we can use the lessons we’ve learned from previous years to avoid the most common mistakes. We’ve sorted our tips into some broad categories: Policies, training, employee complaints, discipline, and dismissals, and we’ll walk through each one.

What strategies should institutions have in place related to policies that prevent discrimination?

Pettegrew: Policies really are the backbone of good employment practices. So you should begin by reviewing your school’s policies against discrimination. Sometimes discriminatory behavior happens because the rules haven’t been spelled out in formal policies. Other times the policies might exist, but they’re not properly publicized to employees or they aren’t integrated into the institutional culture. So as part of your review, ensure the policies explicitly prohibit discrimination on the basis of all characteristics protected by federal, state, or local law, as well as by institutional policy. And list the protected categories.

Also, keep in mind that liability decisions, whether by the EEOC or a court, are usually going to involve an analysis of the relevant policies. Lawsuits involving discrimination claims are much easier to defend when strong, visible policies are in place and those policies are followed and enforced.

And finally, don’t tolerate retaliation. Retaliation, which means an employer allegedly took an adverse or negative action against an employee who either complained about discrimination, helped someone else do so, or just participated in an investigation, is alleged very frequently in both EEOC charges and UE claims.

Retaliation encompasses a wide range of negative actions from outright termination to work schedule changes to denying training opportunities. And the claims are typically pretty simple for an employee to make. An institution not only needs to have a clear, written policy prohibiting retaliation, but it also must communicate that policy to all employees on a regular basis.

So let’s take a look now at training, which is another area that gives rise to quite a few claims.

McHugh: It is so important to carefully evaluate your school’s training for employees. Now, of course, the training should cover anti-discrimination laws and your written policies, but make sure that it also addresses your expectations for respectful workplace conduct, including policies you may have about workplace bullying.

When possible, use hypotheticals in the training so that employees can see the real life application. For example, you could show conduct that qualifies as bullying and therefore violates your policies, even though it may not necessarily be illegal discrimination.

Also, don’t forget you’ll need separate supervisor training. So often we see employees get promoted into supervisory positions without receiving training about that new role and all the employment law implications that their new responsibilities may have.

So make sure your training not only focuses on the policies and procedures, but emphasizes how important it is that they treat supervisees consistently and equitably. Arbitrary decisions are often what get us into trouble. Documentation should also be a focus for supervisors. Train them to document performance accurately and honestly, and make sure that they’re well versed in your processes for evaluations or whatever other methods you’re using to assess and memorialize employee performance.

Hillary, can you share some recommendations for how to best handle employee complaints?

Pettegrew: Definitely. First, you need to make internal reporting easy. If your school has a reporting or complaint mechanism that’s simple to understand and use, employees are far more likely to raise discrimination allegations internally, and that gives you a chance to address them early and hopefully avoid a legal claim altogether.

Second, you need to establish clear procedures for handling any employee complaints. Many wrongful termination claims, and those could include wage-and-hour issues, harassment allegations, or claims of wrongdoing by whistleblowers. Ensure your institution has a process for receiving and directing complaints to the correct personnel to handle them. And then don’t neglect educating employees about how to raise concerns. Your school’s response to internal complaints should be thorough and professional.

Third and to that point, you need to investigate discrimination complaints fairly and honestly. Don’t just reflexively defend the staff involved or your institution because, in most cases, that’s just going to hinder a thorough investigation.

In addition, it’s important to designate trained investigators, which can really help avoid some serious mistakes.

And last, try to use complaints as a growth opportunity. You can carefully assess the environment that gave rise to the allegations and be receptive to fixing any problems you find. Similarly, don’t just assume an employee’s experience is isolated. In some cases we’ve seen that one discrimination lawsuit is followed by claims from other employees months or even years later. You should demonstrate a willingness to change and be open to taking concrete action towards improving.

Now, of course, handling employee complaints often involves disciplining an employee. Christine, can you cover those tips?

McHugh: Sure. First, all institutions should have clear policies so that you can take prompt, fair disciplinary action. It’s really important that the discipline be timely and consistent. Not only because it holds the offender accountable, but it also stops the discrimination going on and it can deter future offenders.

Make sure that supervisors not only understand the disciplinary protocols but know that they are required to use them. It is not optional. We don’t want supervisors taking matters into their own hands or failing to discipline altogether. And on that note, we need to emphasize fairness and not allowing exceptions.

The disciplinary processes should be applied to all employees, no matter their position or status. Failing to discipline properly or doing it unfairly often leads to liability claims. When the discipline leads to actual termination of employment, that’s another time when mistakes often happen. Termination of employment is often called dismissal, separation, firing, or termination.

For our purposes here, we’re generally going to use the term dismissals. Hillary, will you share the issues we’ve noticed in claims?

Pettegrew: It should be standard operating procedure to carefully consider all potential dismissals before you actually take action on them. Keep an open mind when you’re reviewing the basis for separation. And that means looking at historical information about the employees, such as performance reviews, any discrimination complaints, accommodation requests, medical leaves, or any other complaints or conflicts involving that employee.

And if an employee has had their contract renewed or received good reviews over multiple years, you want to really look closely at why this year is different. One problem I saw regularly in claims I handled — and I think you did as well, Christine — was that an employee who was supposedly being terminated on the basis of poor performance had either no performance reviews in their file or, even worse, in most cases, a series of reviews stating the employee was meeting expectations. And a discrepancy like that has to be explained. Ensure the employee’s dismissal isn’t due to discrimination by the immediate supervisor or the ultimate decision-maker, if it’s someone else.

In addition, if you’re dealing with written employee agreements or annual contracts, carefully scrutinize all those provisions. Wrongful termination claims frequently arise when employees are dismissed without appropriate notice or the terms of the agreement are otherwise violated. Reach out to your institution’s counsel for guidance on understanding and navigating legal obligations. It’s also critical to take special care with group separations, such as reductions in force or layoffs. Those need to occur fairly and without any discriminatory impact.

So if your institution has to lay employees off, get advice from an experienced employment attorney as soon as you begin planning. Review your employee’s selection criteria and your candidate lists with counsel before finalizing any decisions. And keep in mind that layoffs often generate age discrimination claims in particular.

And finally, always separate employees with compassion. Dismissals are sometimes just a necessary part of employment relationships, but in most cases they can be accomplished without destroying the personal relationships. So develop discharge processes that are considerate and respectful and train your staff to act with compassion throughout the separation process.

I want to emphasize here: we’re not advising that staff say anything that might confuse employees such as “I didn’t agree with this decision” or give them false hope the decision might be reversed. It just means treating people with care and dignity at a difficult and emotional time.

McHugh: Those are really important tips. Thank you, Hillary. And thank you to everyone joining us for this podcast. We have hope we gave you some useful guidance for handling these matters on your campus and hopefully avoiding legal claims.

For more resources on these and other risk management issues, including checklists and guides on topics like retaliation, supervisor training, and discrimination prevention, please check out our website.

Host: From United Educators Insurance, this is the Prevention and Protection Podcast. For additional United Educators resources, please visit our website, www.ue.org.