Transcript Document

Avoiding Civil Rights and
Employment Practices Claims
Division of Risk Management
Department of Insurance
Total Paid and Projected Costs
Linear Analysis Projected in Red
$32,983
$27,643
$22,304
$17,374
$15,000
$17,169
$20,080
$20,000
$5,000
$8,480
$10,000
$8,370
$ in 000's
$25,000
$24,974
$30,000
$30,313
$35,000
$0
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Loss Experience of the State
Regarding Civil Rights and
Employment Claims
The frequency of employment claims and the
amount paid (severity) on both types of claims
have increased dramatically
Courts have expanded the scope of what can be
claimed as violation of rights and relief available
Attorneys have recognized that broader recovery is
available under federal law (no caps, can obtain
attorney’s fees awards) than if only a negligence
claim is pursued
Civil Rights Claims
42 U.S.C. 1983 Claims
Section 1983 Imposes Liability On:
Persons (individual state employees), who, acting
under color or authority of state law, deprives a
citizen of any rights, privileges or immunities
secured by the Constitution and laws
Constitutional Amendments
1st: right of freedom of speech, press, religion
and assembly
4th: security from unreasonable searches and
seizures; no warrants issued without probable
cause
8th: no cruel or unusual punishments inflicted
11th: states may not be sued in Federal or State
court by a citizen unless the state has consented to
the suit (does not confer rights – used by states to
dismiss suits)
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Amendment – Due Process
Procedural Due Process: State will not
deprive a person of life, liberty, or property
unless fair procedures are used in making the
decision
Substantive Due Process: State will not
deprive a person of rights for an arbitrary
reason regardless of how fair the procedures
used to make the decision
Will not deny equal protection of the laws
Civil Rights Claims
Importance of s.1983 law to state officials:
Claims for monetary damages are against the state
official as a “person” in their individual capacity,
not against the state agency; assets of the state
official can be taken to satisfy a judgment if
insurance program is not available
If employee clearly “intended to cause the
harm,” Risk Management cannot provide a defense
or pay judgment
Risk Management cannot pay punitive damages
There are no monetary caps on damage awards
Attorney fees and costs can be awarded to
prevailing claimants
Civil Rights Claims
Importance of s.1983 law to state agencies
Claims for declaratory or injunctive relief may be
brought against agencies
Injunctive relief could cost agency millions and
disrupt programs
Attorney fees and costs can be awarded to
prevailing claimants
Agency must pay to defend D&I suits
Defenses to FCR Claims
Employee did not commit the act
Employee did not act under color or
authority of state law
Employee actions did not deprive claimant of
a constitutional right or privilege
Absolute immunity (Judges, Prosecutors,
Legislators)
Qualified or “good faith” immunity
Qualified Immunity
Claimant must show employee violated
clearly established statutory or constitutional
rights of which a reasonable person would have
known
Would a reasonable employee have thought
their actions were lawful in light of clearly
established law and the information they
possessed at the time the conduct occurred?
Court ruling – “Should protect all but plainly
competent or those who knowingly violate the law”
Tips on Preventing FCR Claims
Examine FCR claims. Determine problem. Take
corrective action (training, education, discipline,
procedure change, etc.)
Educate employees about their rights and the rights
of citizens they deal with. Supervise. Discipline.
Examine agency statutes, rules, policies,
procedures, and programs. Make sure they are
constitutionally sound and in compliance with state
and federal rules
Use monitoring systems or have at least 2 staff
members present in “FCR” situations
Employment Discrimination
Claims
Employment Discrimination: Treating a
person differently with respect to terms,
conditions, and privileges of employment due to
_________(an unlawful reason).
Disparate Treatment (individuals)
Disparate impact (usually groups)
•Neutral policy or practice that has a discriminatory
impact
Employment Discrimination
Claims
Both state and federal laws exist that allow
claims by state employees against state
agencies. Examples are:
Title VII of the Civil Rights Act of 1964
• Enacted to eradicate employment on the basis of race,
color, religion, national origin and/or sex. Every aspect
on the employment process is covered, including
recruitment, hiring, job classifications, transfer,
promotion, compensation and termination
Employment Discrimination
Claims
The Florida Civil Rights Act of 1992 (Chp. 760,
F.S.)
• This act protects employees from discrimination based on
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race, color, religion, sex, national origin, age, handicap
or marital status
This act is broader than Title VII and is the only avenue
to bring an action for age, handicap or marital status
against the state because recent US Supreme Court
decisions have held that the Americans with Disabilities
Act and the Age Discrimination in Employment Act of
1967 are not applicable to the state (for monetary
damages) due to 11th Amendment immunity
Sexual Harassment
(A Form of Sex Discrimination)
Quid pro quo (this for that): Employee
benefits are conditioned on sexual favors
(usually supervisor/subordinate)
Hostile work environment: Unwelcomed
conduct pervasive and severe
Cost of Employment
Discrimination Claims Statewide
1996-2000
Equal Pay
Age
National Origin 4%
1%
3%
1% Fair Labor Standards
10%
34%
Sex
Race
Other
14%
15%
Disability
18%
Sexual Harassment
Defending Disparate Treatment
Cases
Claimant presents direct and circumstantial
evidence to establish their case
Employer presents evidence that the
employment action was based on legitimate,
non-discriminatory reasons
Claimant attempts to show employers’ stated
reasons are merely a pretext for discrimination
Judge or jury renders a verdict
Damages Available in
Employment Claims
Back pay, front pay, reinstatement
Compensatory damages (pain and suffering,
mental anguish, loss of dignity, etc.)
Attorney fees to prevailing claimants
Claims are often “personal” in nature and
litigation is antagonistic and costly
Tips for Preventing Employment
Claims
Examine your claims. Identify problem practices,
employees, work units, etc. Correct the problem
Have independent, knowledgeable, party review all
employment decisions
Make sure employment decisions can be justified
with legitimate, objective, non-discriminatory reasons
Document, Document, Document! – Decision maker is often not available
Educate and train employees about discrimination
and proper employment practices
Service First
Service First legislation
Allows state managers flexibility in hiring by
requiring only documentation that selected
candidate meets minimum qualifications and has
KSA’s to perform job
Does not by itself protect agencies from discrimination
claims
Does not prohibit documentation adequate to protect
an agency from claims
Service First
Agencies retain oversight for:
Selection
Discipline
Discrimination
Outsourced functions:
Attendance and leave
Performance appraisals
Classification and pay
Benefits
Final Word
Best avoidance technique is to seek advice
and independent review if any doubt exists
about the possibility of violating the public’s or
a state employee’s rights
If state agencies do not take proactive
measures to reduce the number of claims, more
and more state funding will be directed to
payment of these claims, redirecting funding
available for state programs