Diversity Training for Sol Supervisors And Managers Part Ii

okay well it is 12:01 we are going to go ahead and get ready to start this presentation I'm going to turn it over to our Rocky Mountain Host So Ratna please take it away Hi this is Retna Gupta, on behalf Matt McAllen, Regional Solicitor at RMR I'd like to welcome you to our second part of diversity training We did the first training back in April and kinda the theme for April and kinda the theme for April and this one was the new work place para-dime In April you heard about multi-generation workforce and challenges and how to address those supervisors and transgender cases and in this time were going to continue that same theme of situational leadership Leading to success and awareness of the many facets of our workforce we're going to kick it off with some Indian law we're going to kick it off with some Indian law and tribal preference Mr. Stevens Simpson is a senior attorney with the division of Indian affairs and he handles matters involving Indian trust minerals, lands and leasing, _____ and cultural resources, He has been with Interior for 14 years and including to assistant solicitor for trust responsibility So he'll be kicking it off than will move to work place violence and this is sort of an emotional intelligence a kinda facet of diversity. To just to be aware of the signs and affect of work place violence, *** harassment vs. *** assault And a supervisor in our current time we hear a lot about EOC This will be a great topic for awareness Then will conclude with a case law update covering several facet of diversity, city law, and addressing the new divers workforce we have And I'll introduce today's speaker as we get to that block So Steven are you ready Yes, okay I'll kick it to you right now Okay, hmm So umm initially I was going to talk about the essential of Indian law, but i'm not going to talk about that I'm going to talk a little about preference Umm, so the initial slide said I'm going to talk about how Indian law is developed generally Mostly, what I'm going to talk about is how Indian law is developed a bit, generally and than the trust responsibility and how that works The umm and than I'll tell you about one particular case involves tribal preference and the inter-section of and employment preference and trust responsibility So first a little about Indian country The in general, their are 566 federal recognized tribes You see the breakdown here between the lower 48 and the Alaska native villages who are tribes This doesn't include the Alaska regional villages corporations who are not recognizably tribes They cover 33 different states You will note that not everyone has land There are over 275 land area recognized as reservations, either formal or informal across the country There are none of those in Alaska and their are not a lot of them in California So their are plenty of tribes up there that do not have land But the one that do have the largest Navajo Which as size is as large as the state of Virginia The smallest many of those California ones and others have just a few acres So how do those tribes relate to the United States? Much of this is related to case law and treaty the term that is used in the earliest is coined by Chief Justice, John Marshall in the 1830s Said that the relationship between tribes and the federal gov is that of a word to its guardian We generally do not use the word ward and guardian anymore We talk about trusty and beneficiary The language tends to change through the years But the tribes are sovereign government You'll see that I refer to nation tier The terms seem to change through the years But If your talking about a particular tribe than you want to use the term that tribe prefers But their a sovereign government Their the sovereignty started before the United States was ever established before contact and continuous on by the Federal Government It is not a delegation from Congress It is completely separate and distinct And that why their is a government to government relationship Or some call it a nation to nation relationship Between the US and tribes and that government to government relationship is not just interior government relationships It is the entire US Government the relationship and trust responsibility and other parts of that relationship goes to the entire US government So the US, not the dept. of the interior, not the BIA The US is trusty for tribes and individual that have a trust relationship So the beginning of that trust relationship are with proclamation King George III in 1763 Which decreed that land in the west the unsettled part of the colony could not be conveyed except with permission of the crown The constitution has two clauses to talk about Art 1 section 8 contains the Indian commerce clause Which gives Congress the authority to commerce with the Indian tribes And article 2 section 2 is the treaty clause which allows the president produce treaty with Indian tribes That was the main way of dealing with tribes with the federal government until 1871 when the house of representatives decided it didn't want to enroll in the process to and not just the senate So congress stopped the treaty making In 1790 congress passed part of Indian trade and intercourse act Congress modified upon for the US That no Indian land can be conveyed without the permission of the United States The version that's in the US code is from 1834 and that is commonly referred as the non-intercourse act because it inhibits intercourse for tribes The supreme court role is huge on Indian law Cherokee Nation v. Georgia i talked about earlier with Chief Justice Marshall known as the Marshall trilogy three cases Marshall done on Indian law of the 1830's This is the one that has that domestic language in it US v. Kagama 1886 confirms power of congress over Indian country That provision in the commerce clause giving congress that power to stop doing treaty in 1871 So by 1886 it's congress from the fine feared fellow I'm drive the of operation for try freedom say more 31 and land there are sure seventy for reservations if of I'll for their of I yourself one do you you for about safe and the smallest fury try fully say must have the relief 3d the using earliest wanna cases point John Marshall and their citizen and nation future more me 30 for the relationship between trying the federal government is for a or very we generally do not use the word word Guardian anymore from the beneficiary I'm the plantation change years by the the try are I and you see for the nation's here Friday free changeable if any of fair you're talking about thrived Friday fair free stars for the night safe staff use of night delegation for is their day and why there is a Starbucks governor relationship or pollination nation 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of what in fact 5 I I'm the firm for from haitian because first resources all outside so tonight for right for for is outside so gonna for this reference baby partially on the connection well completely actually off today for we have for for these for general first resources we often said anything about it for for under prior law 5 to develop for of we are now his or your CSR years see if he'll tonight surf service of it I and hopefully away I'm frightful with them for for sure for a only for I'm and first bien right where taking questions throughout on free will to the next topic %um anything wrong I'm a Stephen and wrote it is Matt can I have make a housekeeping note yes with my homie it it'll be a much more enjoyable experience for everyone I am if people have their phone W and they don't put this call on hold I heard a couple times that even got some musical accompaniment sidebar phone calls going on so just remember it's a big group think for everybody doesn't not think from from more like eighties bad synthesizer music them if you can't read the medication to me and here even think this is theory why fun said say one thing that he loses this love peabody was free for force for and at that point he's of course ball and facilities all meetings between here and you'll see in particular and tried come to a resolution use see not agree at all the for and that's what causes the go back to Hinata just an EEOC 25 so with it is houses larger 3 socialist sure pretty 3 his field see the Freeport for depending on the nice turf fellow of the the these is involved case were remanded images of recent were in forces litigation no ever the for me from even during force so force first thing that happen what I'm the end of last year from seen new regulations for leases service leases Rep and in response from I'm the new regulations include a provision that a try cancer a trial preference based on political affiliation forms from law in you leave we will for so we're being we have really explicit about and now we are and force are rather you go Street thank you and thanks so much for doing for I for very important on mission our mission and so I'd very fitting for David thank you for agreeing to participate i'd like you go ahead into each other next speaker not listed in their interests are lucky to have her here in employment law section Rocky Mountain region and under from they didn't also I returned to dedicate captain US Army she provides legal support soldiers and their families and that's what actually give her a lot I think clout to do this premeditation may be hearing on her because come in the topic she's trained on include *** assault *** harassment for working for the up selector experience served at the investigators University Colorado injured now located at Lake boulder Colorado I don't know if you heard underwater as an investigator he get a lot accomplished investigation prior to that he worked for Holland & Hart the prestigious law firms and under to an employment and labor law I'm gonna turn it over to her and this is gonna be a great topic very excited to present thank you run a I'm the workplace violence is a really important top that level yet not something that occurred very often which i think we're all appreciate for but the thing and when it does occur it something that we want to know exactly how to handle on because the issues are going to be very delicate and we're gonna make sure that we have different procedures in place on to know how to respond to any workplace Islands issue let workplace violence thank you to find any after threat physical violence harassment intimidation or other threatening destructive behavior that occurs in the workplace an important thing to note it include threats I know a lot of people think the workplace Island the name indicate stepping up to the call violent behavior may include dresses well in the important part about addressing got judges seriously and we do physical conduct in threat we have an opportunity to address the contact address threatened before it actually becomes call behavior to convict on workplace beilin it doesn't come up more often than on some people think and slideshow got 2 million American complaint each year on they had up and become the workplace violence and accounts for about 17 percent evolved fatal work injuries Catherine 2012 on from last year there were 757 workers were killed a result that workplace violence and include just saying about on homicide and suicide and American protection board actually did a study and 2010 and that he had that out thirteen-percent federal workers saying that in the last two years they had been a witness to workplace violence let alone more than one in ten on employees so again it doesn't come up more often I think some people think it what kind of workplace violence what we talking about their deadly categorized into four types: the first one I'll act like I'm not letting didn't something that we have to worry about out monthly thing that comes along up a lot and industry and where people are retailers are they working capital strengthen bank does kind shot on but account for what i want. unexplained a large percentage up the workplace violence you out it had a violent in finance director that employees by customers on client patient again you know this is something that comes up a lot friend in the medical industry with a lot with hospital on you know you're dealing with a lot of patience you many are well maybe they're they're on a psychological hold on so that kinda aggravated work environment where those kinda wish you'd come out and I get it that include pretty little adult actors well that report include places like print I'm where your customers are your client maybe in me on so that could be a Western population can't hide 3&4 the one will talk about a little more detail type 3 and violence against coworker and actually amana PB study that was conducted in 2010 the majority of the workplace violence ever went that was witnessed by federal employees one coworker again coworker a colour grow on another coworker said fourth title violent it file cabinet *** by someone who works at known enough by an employee someone who connected to employees on how that comes up a lot is with a violent South a violent significant other to you know it that and bring their relationship issued workplace potentially violent not only with that out but with other individuals who work in offices well setting up her tight workplace Island the one that act like criminal at the slideshow did eighty percent of the workplace homicides that it quite which which I think makes sense on you know 17 preventive strategies I think are often largely have in place already physical security measures I think you know we that and to get into work on employer policies what to do with a friend you see someone walking around the building I'm walking around the office you don't know you should be telling other and that you should question here can I help you with something and peering out with a report so it does kinda quality what to do if the individual in the office place that aren't supposed to be there and then employee training on how to respond violence directed employees by customers arm again that typically involve Paul simply by customers 10 the service and it usually happens during the normal work hours somebody's completing their work and and neither did employees rental are number types with doctor in health care 3&4 *** the one that I think we should be most concerned with on one because it it's likely the one that we're going to DENR kind of work environment into because really the most opportunity to protect her that the potential for violent it anywhere it someone in the workplace or someone faster than other week and potentially be fine problematic behaviour for him he have the opportunity to address it but before it becomes an issue and Justin noted that can be on turbo current employees as well and you know I know for to continue work in a person now lost and we remove people from federal event that a concern can be okay we have %uh part I'll employees people milled from the workforce what our concerns with respect to simply coming back and internet based on discussion will have a little bit later about what we can do it we have concerns now either prior or current employees what we can do to alleviate concern no preventive practices because they were gonna federal government to nine Friday that we can summitted anyway headed by gannett dying and streaming out screening out violent people for hiring I'm you know a lot of jobs don't necessarily do background check think you know they're pretty service level and they don't don't you deeply something to note that I think and think that I'm not sure all of it you is the that the reference check and that it's something really important and it into a background check you know yet in the reference to their own gonna tell us night thing why would somebody if that makes sense that someone would put them on their reference she if they're not going to say good things about them but you would be different and that you know you can call a referendum don't handle say though they were they were violent they were fired for being %uh explosive so doing a reference check that'll help with respect to you know screening out employees who have that kind tried Tennessee didn't let you know all the letters pretty consent that there is no profile there is no way for us to get a chat box they yep gonna be a violent person I know there's not there's certainly problematic behavior that employees engage in they get other hand potentially issue here %uh total literate I'm on it or specific threat and again you any happy even if a lot hundred-point say I'll I don't really know I'm gonna shoot him I was just joking ball that not a joke having any kind of threat that received whether don't do it made and Jeff turned on it to be taken seriously an address haven't done it hypersensitive to credit on you know they have a recent fascination with left and they talk about and all the time at work on they have an obsession with provider or even outbursts of anger I mean we're gonna don't want to look for anything and look at your interpersonal exhibiting a number up these behaviors something that we're gonna want to address and you know we can address that probably true performance are not hard to conduct certainly at the person acting in an inappropriate manner and they are yelling at their coworkers on they are doing have another outburst in anger that are inappropriate we can address the road through conduct and nothing to think about it environmental factors unfortunately in the financial situation that we're in right now particularly in the federal doctor I'm there can be two minutes after beating after that make for and and more up work like that four subjects you workplace violence on you know when people have financial stresses when people are stressed at home that's something that unfortunately they will bring to work them get after that contribute to work my something to think about understaffing our employees being overworked on you know whether job passed on to find well army downsizing and large numbers you know what things like do we have low morale in the unit in there a reason why employees are at on and meaningful workplace violence issues but is there anything you can do that doesn't of anything in the budget address the concerned employees have about the work environment to the trend here have a workplace finance department handbook %uh that actually suggest that you know that each unit having a on threat process and I don't know that everyone actually haven't even played lightly on the notice from might have a different organization something that most on offices have as a matter of course and ended know that when you do you have somebody that report the workplace violence issues you know how you're supposed to respond because I think it really emotional issue and something weird safety is in danger potentially you worse than the reporting it you pretty in your employees of it and you want to be able to respond in a way and have some things were purchased day okay it on her part threat or maybe even acted violently here's what you hear handle it Senate recommend having a threat assessment on p right hewlett team including management you don't wanna have you know a higher level manager from of it you don't have an HR employee relations person I can help walk you through conduct how to address contact the employee assistance program is going to be important for having a resource for that employees either the one is potentially I maybe violent tendencies and lowered I any picked up any alleged victim have a resource stick out you security you do recall I had you know the Burgundy in the office whom I had hoped to call to report that I know that number of are located remotely so you want to know what local resources there are calling there some kind of an emergency and an officer lesser generally a client call within 20 internal but our clients have called situation that had demand security calling settlers on anything so I think I wanted is night ok goodnight to rate your client yen certainly unit thing I always invite people in look at the end of the day it you feel like they're in it imminent threat you feel like you are threatened on in the workplace threatened friends right now you should be contacting on local law enforcement or appropriate security personnel you know you'll have to wait and information and something where we can get you know someone made a threat but it doesn't seem like anything can happen right now then we can address it appropriate certainly not my and think you know in you know home security call please if you're in doubt that should be the report me go to you went look at what we're gonna look at the nature of the contact threat you know did the person say I'm gonna shoot someone did they say I'm gonna break state water and another two completely different thing booking should be addressed should be breaking think of it on that should be traffic on the issue through me you know the threatening to hurt someone is gonna be bigger concern factual run itself who is the target of a trend the entire of it to the person say I'm gonna hurt everyone of it specific individual that'll help I'm determined you know how to address this threat whether what safety procedures should be put in place whatever the motivation wherever percent getting there anger when is it coming from on does a person actually have the ability to concentrate unified threatened to take down good Eli computer system that's not actually something I have the capability and doing I would have no idea where to start gonna be individual actually have to believe you cannot carry out that threat to date made and never gonna look at that rendered background on you know how they made threats Ford a criminal record is there any kind mental health history on he didn't think that threatened people evaluate in determining you know it yes that and they were just trying to express their frustration or do we have a reliable pressure that we need to address right now I'm how should you were responded to one used the term violently small first informant is you remove that employees from the workplace plate on a ministry you can address the conduct issue after you know hey determine how to tap into traffic on that issue after that person is new you take away the identification accesskey we don't remove an employee and then make it so that they still have access to our building ideally even should be better distorted security personnel local law enforcement again that may be more realistic for us tonight and our clients may have more remote locations where on you know it may be a couple hours anybody get there so in that case should be a manager but we're at all possible threat everyone somebody to it cannot handle a that kinda person taking away their keys and then we're gonna wanna get immediately thereafter documentation on from individual with women at who went around can we get witness statement that when we go to address the conduct we have that documentation to support whatever action we're gonna end up taking at the end today so I hockey threatening to the note and you know people sometimes make bread and they're not at work let's say on Facebook I have a really terrible day and then I'm date but I say you know what I had a terrible day I'm gonna go and it should not everybody at the Department the interior landed at work but that doesn't mean that the threat that they get entrapped and it doesn't mean you can address it kinda issue I particularly now with Facebook went social media a lot of people are holding kinda threat on those left side and that is getting I'd rather appropriate by on employers I have a question about that is very gay to on what type of thread by social media I'm for federal employees now it's certainly something I can look I'm sure there might be on it's not something that I have off the top of my head but I do know with respect to you know other employment issues that i've addressed over the years that more and more on you know I'd had a *** harassment case for Scotland avatar was sexually harassing someone else's at now it's just that friend whenever an environment now you know we have the story that the employees getting fired for on containing their employer or going to a job interview in saying you know I can really want to take this job with Microsoft I didn't get it for the money Microsoft Word and poston fires simply so I just think that media that the place that would likely to see some threatening behavior feel safer online think it I'll protected plan and we know it still I think people are communicated more yet technology and not direct threats anymore in person it is *** United wanted a in women and ample they're headed read it criminal charges %uh in it today Facebook a Haiti or fit here and why you know and every there where are they having it school and on a bloody already face Ford in jail %uh while you're trying to work out situation he was a be okay say thing %uh demanded my first day I made an active threat or people but at least it they believe it and already kid around all and for aidid threat because they didn't know he really three-way it it's likely that we might see more that employment there are issue coming up employment thank you for letting that way I do you think that this is something that's gonna come up often and the bigger think I wanted think not apply that you know how we're going to evaluate off-duty threat really is into behavior clearly related to the workplace yes certainly and employees and making a threat shoot workplace it just so happens you're doing it off-duty hours what not going to matter up with respect to how we're going to handle that hot how to handle that conduct and how we're gonna traffic hitting take the threat seriously on contact law enforcement contact HR talk about being the person on administrative leave and what what it did to plan and any other appropriate a baby in this is Matt what what lookin avatar for the character that you create online are on no on the computer that represent yourself so it's like a cartoon is character online represent you in like it that I had a case for someone can't complain that's your for another worker at home worker bear computer character with sexually harassing their online computer to the minute you know what they are it's all a bit and although it does kinda world people are all on well you know at home it didn't work environment you have to look you other places where these issues might come up don't let resources are available to you didn't have to work late Island fellow question find out and is there any anywho out there even any better management practices that are suggesting and today's hi sled managers have a responsibility to the trust try and monitor what employees are doing outside of work environment to monitor what their posting on Facebook et cetera are we just talking about it becomes to come to your attention and them to come to your attention actually there are talking about what people write cannot deal with respect to monitoring their employees Facebook under the law case law talking about you cannot require your employees to give you access to their Facebook and other social media accounts on our time still working where people are friendly with their providers or their coworkers their friend with one another and a report to the provider I just felon I'll post something on Facebook and that's how I received a lot of complaints on a key provider that report from another employee that their coworkers coated something that's an appropriate or post something that's threatening and I thought someone to do something about it love it being reported to you then you have the right to a drug that but yeah I think it when it comes up and and I would be cautioned that out on becoming involved in employees online social media accounts darnell we need he said right to investigate you have an obligation yes yet did you get red you get report to you a threat at work led by under actual workplace violence and you do have an obligation to you investigated and addressed that conduct to make sure that you're dropping you know anything to be concerned with respect to of it independent there you obviously be getting law enforcement depending on let it and you know you're talking with the HR I think involving human resources and that conversation is really important because they can help you identify click the correct individualist to conduct an investigation and again go on have good pinpoint on what it but it's gonna be consistent %uh with that kinda whatever the threat was the 1i conduct live & Co with respect to restart its gonna look at that time you know can be employed given point in time on Family Medical Leave there any medical issues that came up it departed no workplace violence and then local retarded make sure you know your area where can you look for somebody who's been a victim of workplace violence I'm gonna try to move it over running a little behind I'll but now just wanted it this is ready to get done %uh lately and the media Lee to the last you know several non idiot didn't hide it under fire for on *** assault 90 whole new branch be created to create victim advocate he killed so with energy and cooler in the airport now actually s now where you can I would hear the giant victim I think it can wrap on active duty did whether it's also allotted a issues that have come out dnt we thought it would be appropriate YouTube instrumentation because the are reaching a stack *** assault on army it's not just not you know rate it can't be you know in the workplace or out that would please read at Unity door you cannot he then *** assault %uh are alive and well believe it or not in our modern 20 38 society on and QDs front that LA and and other president me statement our community make a statement about it we actually custom issues free the first commercial going on a few of them %uh got emergency red piled high onto defense counsel's because technically one commander in chief makes comment that everybody should try unlawful command influence which then kicked in do we overturned do we can keep this case out and complicated get overturned so I'll it cut for me he is an adequate 703 retracted from the white house so fortunately a lot of cases have renewed now and couple go forward in October at least in my nobody else was that I workers two cases that are gonna go for it I'm sure you've heard about the San Antonio Lackland Air Force Base cases surrounding area in here in October on but exigent don't lie any the effect is over from social thought that we know what we should be concerned about it and even if it's not healthy you know in the workplace it's something to be aware because it affects Commission I have played effected work people do in effect relationship between the people is stirred involvement even as I and co workers involved in binding consent their ability to sell and just humanity emotional issue so if you don't like right now than it used to be that bit late actual solid look at is you know how can we get them not to be *** Kb all victims focused don't wear hair in a ponytail the no I remember circulating around know where your hair in a ponytail because when you wear your hair in ponytail make the easier for if they want to grab you pull you down on the ground in *** you well smartly I think the approach to become okay so maybe we shouldn't talk to the dugout what they can do not not be a *** victim maybe we should talk about Fight Center intervention welcome even ID see on a change in behavior and address maybe content *** harassment stage are we more competitive look out for our peers so that they don't become victims of *** assault basically the change from the old approach would let a long time you know %um from the days where you couldn't get me fight about there was no way in a lot needs to be done you were married your husband or your flight could not wait on so there's been a lot of change in my kids to be happy going from become centric few bystander intervention and there's a lot of like every week we get a lot in this training in the in the effort to leave by entertaining and a lot of videos about people just not wanting to do anything not wanting to get involved not that's where the train and show people where and how did you get involved with our what you know hurting themselves and it think you know largely it you your either addressing *** harassment on and then concerned *** assault or your commitment and i think im the idea you know you need to address first time that thing anybody mitigating and program actual behavior especially at the workplace it needs to be addressed one thing that's what women want her at here look like on a kid actually reported the effort have weekend there ninety-five percent I'll reported Katie involve alcohol in Jax and they're generally happening at unit cohesion on tell one thing to be aware and managers and you know solicitor giving advice to clients is to the land situation that employees are being put in and party jury eddie Van as well and the other thing to think about it that event from the Department of Defense army on about a third of the reported *** assault on every for that reported *** harassment thinking and yesterday thinking and that you know it we can address we can potentially prevent *** assault we addressed *** harassment and I think that's the point with respect our offices you know we really need to address *** harassment even that small one of common and make sure that it stop and it doesn't go any further and become worse contact I think zero-tolerance policy is should be in effect you know any and I and you know seated in a client when we get cases it just right up front it generally not and i'm looking up to take it no fear all the time he said fear training probably double time go yeah we should note that happened to me to be verbal nonverbal or conduct find with actual on all complain well the birthing and taken seriously and deal with it properly you know there is a on Kennedy especially attorney to want to judge the facts in a key to another someone come to us complaint a number that they want to do with it that there's a play and see what the strengths and weaknesses are well into conflict with a complaint about football but not really our job right and that were not acting in their account or we're not gonna represent them in any kind of legal proceedings our job is really to make sure that the product is getting trapped and than that you know what occurred at work by a coworker that we have safety mechanisms that are taking place making sure that we're they've got everyone conduct for everyone in office on so we know what we're gonna do we get it going to be just like other workplace violence its gonna depend on the nature and severity I'll the conduct that reported how we're gonna drive a really good quality same procedures who contact on human resources he on those kinds resort and you and again it yes and we look at what time let me try to drive a little simply what we made available what local resort there are and then again in there any trendy simply another thing to think about it employees at reporting a *** assault to you on Justin evident question %uh you know what immediately should be done with that person should they be seeking medical care have they done it yet something they should be doing it does kinda question should be things that come up in your mind on and then again threadgill I didn't wanna know that the National *** Violence Resource Center hotline that you can call on as well as on the he okay website state domestic on violent resource that you click on your safety it'll tell you what resources are available in your locality to refer potential victims you this is Kate Murphy can I come in here for just a second tour I'm we had a circuit that come up not in doubt about it actual of an area away with it a general workplace violated on scenario where the employee acting goes out there denver somewhere on you know the employee had a history of violence that there were documented and made threats against the provider in team leader and I it company employees there when and reported to the Federal Protective Services and they were on they were told by the that he asked to go get restraining orders and that they did that they went to court the Court issued the restraining orders but the employees paid with it paid for it with their own money and then they were seeking reimbursement the question came to us from and appropriations standpoint I as to whether or not you could pay for that you basically reimbursing employees you know for that the filing fees and whatnot for obtaining the it restraining order on and you know with the baby crying starting point is moved to the Hive a restraining order would be a personal expand on and not be available for to be funded by appropriating money on it K you did the department and certainly in the Occupational Safety and Health Act I every possible to participate the employment free from recognized hazards likely to cause death or serious physical harm to employees on that's what we relied upon to basically say a restraining order or something like that could be paid for by the department to the extent that we could really establish the lane to the workplace here without fear %uh because %uh the former employee and right for me supervisors and team leaders on so and just throwing that out there it in what we didn't do anything formally with an after-the-fact thing we and but it we we worked with GA 01 at an ATM to buy the an hour this no field along those lines on might be available to you but you don't they just want to make sure that that you you from the identified the link to the workplace if you are going to pay for something on using military turned in the civilian world that way would be helpful to protect your employees thank you your straight financial relationship to the next speaker anywhere AT walker any came to it family government and ready that he's got a little bit but he didn't look at any unwanted title of body yet here with us here specializing in our personnel are labor and you know employment union matters and read it before and after that RJ chant he's ready when you are he read our minds law working on wind for now lot along with look at it again in an agreement article didn't ordinary and he can kill Colorado 17 Judicial District where he worked I judicial law clerk to the Honorable Robert now teach in your district judge collection champ and including %uh mutation on case like it will be a bday any did in here with for not and she were Plano you know for it for ESPN PB and any previously worked 2100 US Postal Service sold love and knowledge there anti-military and great great thanks thanks right now um we have a number of cases to go over today in and kinda short period of time so we're probably gonna go a little faster than we originally anticipated but wanna get started because there's a couple cases that in the year old rules for this last year so that kinda addressed a what's called mixed-mode doing it makes more banal in cases so we kinda want you phone looked ever go on wanna try to describe a little bit about Nick motive and and how it really some other cases basically what it is each Umicore cases where you have discriminatory conduct and non-discriminatory or non illegal reasons for taking whatever action that was taken so I'll up and so there's a laundry list the items summer summer lawful summer unlawful and what are you doing that certain situation and case what kinda developed it at least for the each related discrimination cases on where where they looked at it and in the chest really between as long as you would have taken the conduct anyway despite did non-discriminatory reasons then you were generally considered okay %uh no word to vote for analysis so I'll for the be discriminatory conduct with the agency is still have taken the same action and so that that was kinda became a test for each related cases but for all the other classes I'll I'll protected classes a the test was still whether or not the action was a with the motivating factor so whether or not to discrimination all that was a motivating factor then the the agency was still liable and and so there's been a couple cases that have really it kinda touched on that and that's really where we kinda get into our first case I'll stereo salt the first case that we want to talk about his the Roy overseas department veteran affairs and Brawley cases we have citations with for anyone who's interested in looking them up but basically what we had here was the a 76 year old male Hispanic a who also had some some disabilities with the non-selection case and all the claims were dismissed in that case except for the %eh related claims and what the Commission found here was that there was some direct evidence that age discrimination there was some some testimony that supervisor ed said the person with dual a and wanted someone around for a long time I and it was a some some type of comment to the effect that this person should enjoy your retirement on but there are also some legitimate reasons for non selecting this individual and the Commission noted that in the private sector BAE requires up but your test for the a for each claims up with the the Commission noted that there's another section PDA that uses much more broader language related to the federal sector in it specifically uses the language the actions will be free from any discrimination and so that the the the Commission I interpreted as much more broad so basically what they determine what that you need basic cages up at least in the federal sector you still have to use your mix motel states are naked then is is about the next couple days is actually are race-based discrimination claims in in some issues that come up there first one is brown versus US Postal Service here we had an african-american woman a who claimed a hostile work environment due to the return I'll be worker a coworker to her workplace and what happened here would the coworker I had been actually fired for possessing racist material other person in the workplace and it didn't go into any specifics as to what they were but it must have been at least sufficient enough to war termination of this this person however the colour remember while the co worker who was fired filed a grievance over her termination actually won %uh and partner that she was required to be reinstated so the agency up brought her back to work and a as a result the the original person who was a believe that this person was creating a hostile work environment %uh sued the agency and and one and and basically the the commission said a in these types of situations the the agency still have to consider the FX love up this person on the other people in the workplace and can't just rely on the fact that the the the grievance procedure required them to put her back in into the workplace should have been some other up consideration the agency did I and putting it back together so that's why was a liability ultimately determined on the next page is the broomfield verses Department of Treasury case and the cases interesting from the perspective that %uh sometimes you see some cases that are just so bad factually that a the the agency is almost doomed and in this particular case I the II don't see how E %uh who is actually became kinda totality of the circumstances Kevin L up because the number of incidences and basically what we had here was an african-american police officer he'd been suspended for two days for for refusing to wear a gas mask or for not wearing his gas mask after he had been order to during an incident that up there was some kinda security incident where a people one police force will require two to put on gas mask with the way the Commission look at the case in and initially the the the claims were dismissed because the a individual incidents that were or cited were looked at I guess you know kinda individually under the microscope in can determine that i think i neva wanna bases in they work a that harmful however when when the Commission took a step back and look at the totality of the circumstances they found that the situation is really much more grievous then what kinda appeared initially in and you were the with a statement allocate other read this paragraph because I think it really kinda captures what took place to the EEOC found at the agency subjected the officer to racially hostile work environment jokes were made about all rock all Summa unquote and after after a hurricane several workers commented that they should hunt down looters were black coworkers also me rude.com remarks about female officers biracial child and commented that the officer with the father the officer said the coworkers read your resistance and diversity training also the officer said that he heard about the chief using a racial slur the EU feed number in gravity of the incident and that backed the evil posters were openly debated in the work environment undermine the agency's argument its officials were unaware of the racially charged atmosphere after reading a paragraph like that a case like this I find shocking that even made it to this level up but you can see I'll how kind of just a snowball effect of up a number of different incident incidents good up ultimately reach the level pervasiveness and in creating a hostile work environment I'll okay the next case then also a race discrimination case and but this isn't a federal sector case a what happened here what we had a an african-american female workers who work in the catering division at this University and basically she felt that she had been intimidated by another coworker in the cafeteria who had been a kind of bullying her in and making a our faces and even declaring looks and that sort of thing I'll and ultimately the university did take action against this person who was who is taking the bowling activity but a apparently it wasn't sufficiently continue until the the employee sued and I'll what is important in any case was whether or not the the person who is acting hot style or or discriminating in against the other person was in a supervisory position iron the case of basically said the agency is liable for the actions of a supervisor I'll but in this case the the question was is this other person there is coworker a supervisor for purposes of the EEOC an EEOC had a head implemented a fairly broad view was supervisor was basically they said as long as the employees had the ability to direct some level labor effort up the other employees then there's a supervisor relationship so it would be like I a team leader or something like that I'll would trigger the supervisor status however the pic dedicated actually Supreme Court decision %uh and as a prank or basically said the EEOC had taken %uh too broad you and that taking that kind of love you would basically subject every case to to a hearing because you'd never be able to determine without a question of fact that a specific person was a supervisor or not you know you could always have to get into the question about what level of control they actually had so you'd never be able to get rid of the kids on motion for example um but what the supreme court said was no a more narrow porches is more appropriate and that so that would be this I will test was or the test should be that arm it as long as are that the the quarter would have to have the ability to to effect a significant change in the status up the other employees not hire fire feel to promote that sort of thing up so it's a it's a much more clear standard at least in the eyes to the supreme court and that that's why they went with that so that kinda that the peace to pull out here I guess the the other the other pieces also know is that the the agency even if the the co worker was not a supervisor the agency's doping ultimately be liable if they negligently failed to deal with a coworker who was who is a the source of the harassment alone okay the next case then is up games versus the postal service in this is the national origin %uh and retries clean I'll and in this case really kinda shows you how little evidence can really be needed to do to survive it leads to the point where you can get a hearing and a in this case we had a a woman who was from India %uh who so he was claiming national origin and race a discrimination and the really the solo piece of evidence that the the Commission kept this case to live on was a statement from the supervisor who said I'll quote you have to go there after launch don't you understand English and so that that hurt were being questioned about her ability to understand English I'll was enough at least in the minds of the Commission to say that she stated a claim and all again ultraviolet a clear indication there being sufficient to state a claim and big are allowed to get past the summary judgment stage me we have to go to a hearing so it doesn't necessarily mean it when the cage it just means that now we have to go to hearing so now we're going to be subject to at least some costs and so we should be considering settlement on so that that's basically what happened there I love them the next case is female singers the Postal Service a good deal with the postal service is pretty busy last year with the eel claims I'll so anyway this this next one is actually a room religion or religious discrimination case in gets into what kind of accommodation you have to make %uh if somebody is asking for or letting you know that they have religious restrictions on this particular complain it was a letter carrier and he said that he could work on Saturdays due to the Sabbath and be post office rejected the outright accommodation ok having him not work any Saturdays because they claimed that he had an Evo you with the union that required that %uh sir they'd be required rotation were on Saturday so that all the letter carriers would be required to work at least on Saturday and I'll the agency did accommodate most Saturday's through other means by by granting him leave by swapping ships doing some other things up but what they want they didn't give him every Saturday of he still did at work occasionally on Saturdays and basically the rule that the quarter the EEOC a came down with what that %uh agencies are required to accommodate a these types of situations unless it cause an undue hardship to the agency so it's free pretty high level %uh that few me that the happy to me in order to a good avoiding the accommodation in fact the the commission said the agency actually had the up for into to facilitate finding accommodation with the employees and that would include things like he lateral transfers and changes the job assignments if necessary and I really do this now to be much more in line with I'll the going through the interactive process for a disabilities so I i think those are much more closer together now as far as what kind of obligations that the agency's gonna have to do a 42 comedy a religious restrictions arm see the next case is recovers the postal service again you can see there still busy in this this gets into up *** harassment and and time and really more the unique approaches *** harassment now bit a *** orientation and things like that have really become more commonplace are or at least more open in the workplace in the issues at head have to pay a lot more now I'll spree case involved a male who was with openly gay too although his his coworkers and I in this particular case eat complained that the coworkers had made up %um derogatory comments about him alone and in the first the the the claim was initially kinda structured so that it looked like it was I'll Campbell one-time occurrence or at least not he and I'm going in pervasive activities so up *** orientation is not wanted to protect the classes under title 7 arm and so the the court had to look to see whether or not that many of the other up protected class discrimination likes it scenarios so I am third so initially was dismissed but they're done it was reversed because there was some testimony that the comments about this particular individual were ongoing and pervasive and not just a a one-time incident so that then created are factual dispute which a lot about this particular case to survive summary judgment state up molded and it preceded the hearing and basically what the the commission said was welded the evidence of these ongoing comments being made could represent a pattern %uh that would be severe enough to and pervasive enough to to reach the level of *** harassment and so that's why it was a question of fact they had to actually take testimony on that particular issue alone so again in another case that was not able to be resolved summary judgment low around the neck cage is another interesting case that the kitchen to you the *** orientation discrimination harassment I issues and %uh this particular case though he there was a use them male I'll Andy he was claiming that he was up being discriminated against on based on *** orientation or at least is perceived *** orientation as a gay man and Sony in this particular case I number of his coworkers or at least with testimony that number up his coworkers at at openly called him gay and used other up very insensitive *** type epithets up against him in the workplace and a it but again the problem was that you *** orientation is not want to protect the classes however here I'll the Commission recognized that these types of upwards and habitat are often used to expressed the belief that a male is not masculine %uh in other words it's more the sex stereotyping then sex Korean *** orientation tight up interpretation and so and looking at Andy's and the sex stereotyping cases bended knee the the criteria for a sex harassment %uh case and so this one again with able to go through past summary judgment stage and this is again and probably another where the totality of the circumstances really I think all push the Commission into finding a way to hold the agency liable because the facts were so bad I was read will be here from what took place in your understand is coworkers repeatedly called in Boulder sex-based at that and his gun bag will be faced with offenses sex base learners also sexually explicit gay and lesbian magazine for letting agency vehicles with agent would find them the deal he said close temporal proximity but the events made unlikely the magazines were coincident more likely than not they were further harassment because the collar workers believe he did not conform to their gender-based stereotypes masculinity the record also supported the agency allegation that he was called retaliatory names supervisor said he treated 3 the aged differently after he learned to the agency he'll complain numerous supervisors warned the employees to be careful around needed because if the EU activity any also losses he was also awesome side but you provide coworkers and was subjected to more strict scrutiny by supervisors all things you together screen discrimination and harassment and in this particular case he would he was he was claiming *** orientation although the quarterly Commission properly a re categorized this the sex stereotyping case and and that's why that was live believe ultimately on the next couple cases I have here are are again stonewalling sex discrimination and a the first the first one again is another *** orientation type cases that the Commission looked at and repair or I'd the sex discrimination case up here we had a female who was known to be a lesbian in the workplace and she had been promoted to supervisor status and they wanted some point during her probationary period she was counseled by her supervisor because she had been taking breaks and had been seen having lunch with another female in the workplace who was also known to be a lesbian and this particular supervisor believe that created an improper perception among the employees in the workplace and that was why she had been counseled the only now for this purpose person then also received three other letters a counseling and a letter O a reprimand for other reasons %uh legitimate reasons %uh and she also had been actually propose for removal as a supervisor and then that's when she filed a claim on and the the commission said that this is properly know she's she's finally *** orientation discrimination claim that this is really a properly a sex discrimination claim under the sex stereotyping scary because this particular supervisor in her in his comments it left the impression that he believed that it was a at least inappropriate or the you her acting outside of the the typical stereotype email apparently I so that's why his comments were clearly I think in line with with that type of analysis and that's why I love the Commission up upheld the plane on the last case that I am going to discuss this morning is the the of versus Department of Interior and I thought it would be good that I at least ended my segment pages on a good note a this this particular case involves female who was not selected for for two different positions she applied for with them the department and a she any she had been interviewed by the selecting official but not there was no channel in place for either one I and during each interview with for each position the selecting official Bowl noted that this particular a complainant I didn't perform very well in the interview in fact she came off kinda a Rob and a not like a team player in really almost not interested in getting the job really more just more interested in getting the promotion and I'll levy complaints Sudan said to do is discrimination and said that her evidence of discrimination want the fact that she had up up in working there for twenty years and handle being used there would have chosen differently the Commission in again this is another selection caisson so the Commission noted that in any type cases you can show discrimination through a disparity in qualifications but have to it have to be absurdly superior to the other person in fact there some cases out there that uses you think what I put before that had to be so obvious that slap you in the face and I love that language because it it really hammers home the below up discrimination I think that had to be shown in this kind occasion just showing indifference and qualifications or you know she worked eighteen years she won't work fourteen year so I'm or of ideal that that not enough and in fact the Commission notes that you number years alone is not sufficient and so this is actually case with the easy one because they did properly follow procedures and up there was no other evidence for discriminatory a mode so that in my case is I think RG she is in essence of him stuff like okay I'm running wilshire runtime: I mean it really came down to it my presentation here I may be talking about retaliation which is really neat exclaimed unlike other cling to discrimination that are based on in here characteristics of the individual retaliation find its region employee contact another big difference as witnesses regarding title seven that retaliation claims and status the flames were found in different sections statute and that is what the big difference that was seized upon by the Supreme Court nurseries cheese which is that here in Texas Southwestern Medical Center verses miss our and in this case basically traditionally when it came to title seven claims because Asian standard was seem to have a motivating factor causation standard for both status page and retaliation claims although the issue never been addressed and the 1991 actually tree which basically may change due to the Status page portion the statute but not to the retaliation fortunate statute and Supreme Court decision that was that made all the difference I'm so because the retaliation fashionable that you still had use the word because instead of motivating factor that now plaintiff complaint actually had to show that retaliatory act action will not happen but for there and taking opposing it stay practice or purchased any any CEO process so the core of the reason that trying to but for standard in retaliation claim with reduced number filing frivolous claims I would be considered an actual problem because drastic increased so that for the next case which was I'd like to know actually decided before sky the Nahar case on in even coffee complaint actually have recreation protected you activity this even work from the administrative judge water uphill for attorneys still active and she ended up going to a performance review and complaint supervisor gave a good performance rating level work CDX exceed expectations explain to residents and the performance rating to the chief of staff will review and approval but the cheapest effort earned a performance appraisal to the supervisor stating that it was poorly written swollen not justified by the writing and schools too high for that please few years of service in a position to the trainee after seeing further explanation from the chief staff complaint supervisor from me eventually gave that complain from training 3 the chief staff for so complaint filed a claim I'm and agency filed a motion for two out here aging granted the motion and founded the company know that chip uses a cane retaliation reading that the agency had articulated legitimate not rich discriminatory reasons for lowering the performance up when he got Commission the Commission numbers finding that playing at had actually established imitation case I and then went to determine continue to be now since and into the now the burner persuasion shifted to the agency shows legitimate nondiscriminatory me returned which they had shown then wanted burns which back to the complainant the complaint supervisor basically demonstrated that the legitimate reasons were actually pre-tax so at the the mission actually reversing granted and been ruled in favor the complaint on and all those decision came out before and after I don't do that they will probably would be dissing on Katrina Autobody are shown to be pretext in the only thing left is discriminatory conduct further discriminatory motive which would satisfied but for causation and also the ticket want to take away from this case is that you have too many genuine issue of material fact Commission can conclude problem more likely than not needed next case is I'd she me that the US Postal Service hear the complaint received seventies attention on the chart unsatisfactory work performance affiliate work safe manner suspension due to discussion to the grievance process so the eighties dismissed the complaint saying that the complaint not actually harmed now the complete appeal the Commission noted that it had previously held at a later one reduced to discussion no longer constituted disciplinary action this not report that was not a private plane which have a different standard and the case reprisal standard is whether it's really like me heater pointed from engaging in protected activity and here they found it was I'm exchange still John to the US Postal Service I'm there's really not much here for the old English that being burdened with to position action that's really liking to determine who is engaging in protected activity all right now we talk about percy retaliating which are staying my supervisor or manager could have a chilling effect into your participation in the ER process basically in the season in in Leo King James supervisor wonderfully to complain problem he openly out onto the pros percy retaliation in the Thomas Crown King director mentioned during a leadership meeting going to have your complaint you me personally CNN story family for a series of family million back in case a third it combines an oblong what all but one were not retaliation on basically with Gateway any comment discovered in a plea persistent your profits by a little later either I V E regulation ever perceived violation law here comment about trust on been had round two winter point participation in the process apologizing doesn't help so 3 really take away from retaliation honesty is well standard for filing income the to get past the initial he's pretty well cordesman pretty much anything for some purchasing process Supreme Court decision on a master key me quite hard actually the prevail claims I don't know supreme court correctly 100 actually for blossom I think bill still a person combined with Holly still other crime but doesn't have a harder time for them engine ARJ this is Matt before you move up retaliation with you share with for any any whatever you want to sure with the matter phone what what are some good ideas about what to say or how to respond to an employee who informed you that if engaged in protected activity and dignity me and I i would and honestly I widget explain to them that they they that definitely have the right to do so and if they need anymore any contact information on an office to go to it there looking up filing I would give a mat and then just move on I would not recommend dwelling on it referencing and bring it up again in pewter conversation because it always only pot this problem right we're gonna on here its ability and you have fight there have been a lot of changes in the type analysis and that we do I need very indicate that you heard how the age analysis she have retaliation announces change and here's another one disability discrimination left and we gave the presentation we presented the bottle in case hand and blurred am in PB had actually were it decision and had made a determination that a mixed mode analysis doesn't buy and disability discrimination cases under the Ataa and I'm not gonna leave it at that there if you guys ever wanted this line from a show me cases I you have add more information and be held on the cave in netscape Italy emerged head particular one the individual in the mail handler for the postal service and he alleged discrimination based on disability in retaliation and wanna be issued but he was complaining about what that a work schedule would come get next to a bad track and a hat L flash be which separate limited duty lifted next to his name it ultimately derp didn't find that posting the fact that didn't believe it on limited duty which usually him disability and with a violation of the confidentiality provisions to the rehab act and to take away from this particular matter it do not post do not email do not cap about your employees and get to the latest added think we status I am aware that something we've got issues in the office where at the provider has email the group they fill it with that today you whatever condition may have do not do that because we run into problems I'm would population we have act in the confidentiality clauses in that situation we're gonna go on a hill University Department of Interior and particular case where the hell out of me and technicians additional outlet fervent he left the hostile work environment based on disability its ability within 30 prevent military disability for and left me condition and even clean retaliation now %uh individual what %um government quarter then he owned a dog and the dotted tended to escape from the quarter and relieve him now all over the hatchery grounds where the individual working yeah I'm on would-be relieving himself in the house in the provider is becoming very frustrated with their and so he ended up sleeping feces that he had stepped over multiple times and which gets pounded the entry in the hatchery ground he planted on the complete care Jan the complaint claiming that you know he did it based on his disability animal tribal and the what ended up happening AT&T that no be am in particular situation the the provider didn't pay he didn't like it one day and did the wrong thing it was not in any way to harass the complainant I would simply angry at the moment about him not cleaning up after his dog made a bad choice and he agreed with him that he did make a very important right but he they found at Goodwill not discrimination it was not based on the individual disability and actually found the complete with not a disabled individual because they did not provide the appropriate medical documentation Jim dating the United 30 percent disability and from the military it did not and okay and he actually won ninety now the why shouldn't be a cape and I think you're going to get a little bit more detail because I think it quite relevant right now it's about how we work and that particular case the individual work at the Chiefs you the high level manager to be a and he was born with congenital hip display to and her ability to walk with severely impaired in I would gradually getting worse still he underwent hip-replacement surgery he asked for hello work Eddie temporary accommodation together through the recovery the surgery and ultimately asked for eight prominent homework accommodation to permitted her with her disability to get your work done the first line the provider hope to complete it fill out the telework form but the picket line the providers the one who actually did not hide the telework request be effectively people rightly stated that he did not believe any service keep should work from home under any circumstances he believed there had to be debate supervision with her deportment in Cleve that it wouldn't send you a bunch in her position Ende if he did not agree with that and stated at the AT&T did not hurt properly purchase repeatedly interactive process it down and that that they did not really comedy individual the ERP stated that it can be a reasonable accommodation to modify it might make it work policy when it is needed advocated by an individual get to Billy related limitation okay it really did coming up a lot we get a lot retaliated telework at it is right now to get me very cautious you cannot just say it when I get no nobody told what we can do and you do you really need is individually assessed the situation the next decade it John Kane and get a good look you don't want to go into did specific back some that particular matter the takeaway is that and sometimes restriction change throughout say time frame a weenie if needed we need to make sure that we are properly accommodating we didn't get to meet medical researchers change spineta cases remain okay scant fine I actually find quite important the the individual with the senior correctional officer I'm for might be even get Federal Correctional Complex in North Carolina he had a disability a back in here and and and in this particular case the fun the individual providing medical information because he had it back injury and the there was conflicting medical and business leaders here it for additional medical it was back and forth to gather even the cat a lot of medical information the complainant had a union representative adapt to meet with the warden in the HR Manager in the EO camp learn in particular case it when they were in that meeting in the complaint happy about it medical documentation HR Manager replied that it would be address action file me each our department and the Dundee 8 a.m. Commission affirmed it was a direct violation at the Rehabilitation Act by placing completed medical record in the human resource department actually I'll that be even know the half protection for health are restricted written up I'll he would not separated by medical information it was a direct violation at the rehab act it should be noted that even though no one else actually started individual medical ingredient didn't matter for it we hey the department very very bad at separating individual medical information from the rested their case probably strongly recommend that everyone including a treat or giving in I unemployment matter separate that medical information to protect a bit up immediately about men que the next one is away basically night after that it'll be related question during the daring crop that and I might add that in the violation in you cannot do that David K at the invitation to lead that we did ATL the investigator game had alleged disability discrimination in the investigator apt it be witnesses including his coworkers specific question up its ability any claim that was a paid perky by later the Rehabilitation Act anyway not the court said that the agency have to be cannot be reasonable accommodation and happy about the matter with the prof and the last one yet g'night and actually the fact that particular case aren't all that interesting and most important part about this particular case the long hate invaded actually framework to analyze Agena genetic information non-discrimination Act clean and if you ever get a dedicated to be the one to look at on to make your argument and handful escaped I have for the day a question threatened again done I wanna happen at the calendar here strength I want to thank you guys for patient be a question they were actually me safe because think simply and the on my Chinese Traditional Chinese to helped something before everybody dreamed of I have one question hugh have the initial are be G at me okay okay that hurdle okay alright attorney Mark everybody dependent my all contact can't okay thank you thank everybody for precipitating thank God sweet okay