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Title: A%20B%20C


1
A B Cs OF EMPLOYMENT DISCRIMINATION FOR
EDUCATORS HIRING AND TERMINATION ISSUES AT YOUR
SYNAGOGUE
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OTHER IMPORTANT LAWS 1. FAMILY MEDICAL LEAVE
ACT (FMLA) (50 or More Employee) 2. REASONA
BLE ACCOMMODATIONS THAT MAY BE REQUIRED UNDER
THE AMERICANS WITH DISABILITIES ACT (ADA)

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WHO IS SUBJECT TO DISCRIMINATION LAWS A. TITLE
VII, ADEA, ADA ONLY APPLIES IF YOU EMPLOY AT
LEAST 15 PEOPLE B. BUT VARIOUS STATE, COUNTY
AND MUNICIPAL LAWS MAY APPLY EVEN IF YOU
EMPLOY A SINGLE PERSON C. JUST ASSUME YOU ARE
SUBJECT TO SOME LAW AGAINST DISCRIMINATION
REGARDLESS OF HOW MANY YOU EMPLOY
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PROVING A DISCRIMINATION OR RETALIATION
CLAIM A. DIRECT EVIDENCE 1. You Are Just
Too Old for this Job 2. You will pay for
filing that discrimination complaint
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PROVING A DISCRIMINATION OR RETALIATION
CLAIM B. DIRECT METHOD OR INDIRECT METHOD YOU
DONT NEED A SMOKING GUN 1. COMBINATION VARIOUS
STATEMENTS, ACTIONS AND CIRCUMSTANTIAL
EVIDENCE, THAT TOGETHER CREATES A CONVINCING
MOSAIC OF DISCRIMINATION. a. EXAMPLE 1
ASKING AN OLDER EMPLOYEE WHEN HE PLANS ON
RETIRING OR ASKING HIS AGE AND LETTING HIM GO
SHORTLY THEREAFTER DISCOVERING HE IS 40 OR
OLDER b. EXAMPLE 2 I DID NOT KNOW YOU WERE
GAY, FOLLOWED BY A NEGATIVE PERFORMANCE
RATING SHORTLY THEREAFTER
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  • 2. SUSPICIOUS TIMING
  • a. A TEACHER RECEIVED POSITVE EVALUATIONS UNTIL
    YOU LEARN SHE WAS IN A DRUG REHAB PROGRAM
  • SUSPICIOUS STATEMENTS OR ACTS
  • a. YOU DONT FIT OUR PROFILE
  • b. FAILING TO HIRE ANYONE OVER THE AGE OF 40
  • 4. TREATING SIMILARLY SITUATED EMPLOYEES OUTSIDE
    PLAINTIFFS PROTECTED CLASSIFICATION MORE
    FAVORABLY IN SIMILAR SITUATIONS
  • a. DISCIPLINING THE 65 YEAR OLD RUSSIAN
    TEACHER FOR NOT SUBMITTING HER LESSON PLAN
    ON TIME BUT TAKING NO ACTION AGAINST THE YOUNG
    AMERICAN EMPLOYEE FOR THE SAME THING

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C. PRETEXT 1. YOU CANNOT JUST MAKE UP ANY
FICTITIOUS REASON AS AN EXCUSE OR PRETEXT TO
TERMINATE THE EMPLOYEE 2. PRETEXT IS
ESTABLISHED BY EITHER PROVING THAT a. EMPLOYERS
ARTICULATED REASON FOR THE ACTION DID NOT
ACTUALLY MOTIVATE THE ACTION i. Allowing
Employee to be Tardy for the Last 3 Months
Without Counseling Her, But a Few Weeks after
You Discover She Is Pregnant, You Terminate
Her for Tardiness b. THE ARTICULATED REASON HAS
NO BASIS IN FACT c. OR THE ALLEGED
REASONS WERE INSUFFICIENT TO MOTIVATE THE
ACTION AGAINST PLAINTIFF. i. Female Teachers
Rarely Prepare Lesson Plans, but the You Fire
the Male Teacher Who Missed a Single Lesson
Plan
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YOU MAY THINK YOU DID NOTHING WRONG OR THAT THE
TEACHER IS MAKING IT ALL UP, BUT
..... A. PERCEPTION IS EVERYTHING NOT EVERY
PLAINTIFF IS LYING WHEN HE/SHE CLAIMS
DISCRIMINATION 1. THEIR PERCEPTION MAY
NOT BE ACCURATE, BUT THEY OFTEN BELIEVE WHAT
THEY ARE SAYING B. EVERYONE IS PREJUDICED TO
SOME DEGREE, THAT INCLUDES YOU, THE
EMPLOYEES WORKING FOR YOU, AND OTHER
SUPERVISORS AT YOUR SYNAGOGUE
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BUT I HAVE NO PREJUDICES!!! YES YOU
DO
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THERE IS NO LOGIC TO PREJUDICE AND IT IS NOT
TYPICALLY AN ALL OR NOTHING PROPOSITION FUNNY
THINGS HAPPEN WHEN ONE OF YOUR EMPLOYEES GIVES
YOU AN ATTITUDE OR RUBS YOU THE WRONG WAY, AND
THAT EMPLOYEE IS FROM A PROTECTED CLASSIFICATION
YOUR 65 YEAR OLD EMPLOYEE WHO IS STILL SHARP
AND COMPUTER LITERATE IS WONDERFUL
15
BUT YOU FEEL THAT THE OTHER 65 YEAR OLD WHO HAS
TROUBLE LEARNING THE NEW COMPUTER SYSTEM FOR
REPORT CARDS IS JUST TOO OLD
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BOTTOM LINE A. BE OPEN MINDED TO THE
POSSIBILITY THAT THERE MAY BE SOME MERIT TO AN
ALLEGATION OF DISCRIMINATION B. STEP BACK AND
CONSIDER THE POSSIBILITY YOU MAY HAVE SOME
BIAS, OR SAID SOMETHING OR ACTED IN A WAY THAT
WAS PERCEIVED AS SHOWING SOME BIAS C. YOU CAN
BE LIABLE FOR DISCRIMINATORY ACTS OF THE
TEACHERS YOU SUPERVISE 1. If a Male Teacher
Sexually Harasses a Female Teacher and You
Fail to Take Proper Action, Your Synagogue
Will Be Found Liable for Sexual
Harassment D. EXPEDITIOUSLY ADDRESS
COMPLAINTS OF DISCRIMINATION OR HARASSMENT MADE
BY YOUR EMPLOYEES. DO NOT REJECT THEM OUT OF
HAND
17
PROTECTING YOURSELF AGAINST THE PROBLEM EMPLOYEE
WHO HAS AN INACCURATE PERCEPTION OF EVENTS
A. FIRST RULE CONSISTENCY CONSISTENCY
CONSISTENCY MOST COMMON EVIDENCE . . . CASES
WHERE EMPLOYER TREATED A MINORITY EMPLOYEE
DIFFERENTLY THAN THOSE OUTSIDE HIS/HER PROTECTED
CLASSIFICATION THE YOUNG FEMALE TEACHER YOU
LIKE ONLY GETS A WARNING FOR NOT
SUBMITTING A LESSON PLAN BUT YOU REFUSE TO
RENEW THE CONTRACT FOR THE EMPLOYEE WHO
SUFFERS FROM DEPRESSION CLAIMING IT WAS DUE TO
NOT SUBMITTING LESSON PLANS
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YOU WILL FACE SITUATIONS WHERE YOU WANT TO BE
MORE LENIENT WITH ONE EMPLOYEE VERSUS ANOTHER
BE VERY SURE YOUR REASONS ARE STRONG ENOUGH TO
FULLY JUSTIFY THE DIFFERENT TREATMENT TO A JUDGE
OR (MAYBE WORSE) SOMEONE ON THE EXEC BOARD
WHO YOU BUMPED HEADS WITH
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B. SECOND RULE DOCUMENT DOCUMENT DOCUMENT
1. IF A TEACHER IS FREQUENTLY TARDY OR HAS
REPEATED PROBLEMS WITH THEIR LESSON
PLANS, START KEEPING TRACK AND DOCUMENTING AS
SOON AS YOU REALIZE THIS IS BECOMING A
PROBLEM. 2. DOCUMENT EACH DISCUSSION YOU
HAD WITH EMPLOYEE 3. BE CONSISTENT AND
DOCUMENT ALL EMPLOYEES AT THE SAME POINT a.
IF YOU IGNORE THE FIRST TWO PROBLEMS WITH THE
MALE DO NOT ISSUE THE PREGNANT TEACHER A
REPRIMAND THE FIRST TIME IT OCCURS WITH
HER 4. TERMINATING EMPLOYEE FOR ALLEGED
PERFORMANCE PROBLEMS NO PRIOR
DOCUMENTATION 189K JUDGMENT AND AWARD OF
200K IN LEGAL FEES
20
C. HAVING A STRONG DEFENSE TO A POSSIBLE
DISCRIMINATION LAWSUIT MAY DISCOUARGE A
PROSPECTIVE PLAINTIFF FROM TAKING THE CASE.
SO. . . 1. PATIENTLY BUILD YOUR DEFENSE
WHEN POSSIBLE UNLESS THE DECISION TO TERMINATE
IS A NO-BRAINER 2. IF IT IS A
PERFORMANCE RELATED PROBLEM , DOCUMENT YOUR
EFFORTS TO IMPROVE THEIR PERFORMANCE AND PROVIDE
THOSE MEMOS OR EMAILS TO THE EMPLOYEE 3. USE
PROGRESSIVE DISCIPLINE WHEN APPLICABLE
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HIRING DECISIONS A. SAME FEDERAL AND STATE
LAWS PROHIBIT HIRING DECISIONS
BASED ON DISCRIMINATION
AND RETALIATION B. EVIDENCE OF
DISCRIMINATION 1. HIRING ONE TEACHER THOUGH
HIS QUALIFICATIONS ARE NO BETTER THAN OR
NOT AS QUALIFIED AS THE ELDERLY FEMALE
PLAINTIFF a. THE BIGGER THE DISPARITY IN
QUALIFICATIONS, THE STRONGER THE CASE
AGAINST YOU IF YOU CHOOSE THE LESS QUALIFIED
YOUNG PERSON OVER THE MORE QUALIFIED ELDERLY
APPLICANT
22
2. ASKING QUESTIONS DURING THE HIRING PROCESS
THAT A LAWYER WILL RECOGNIZE AS EVIDENCE OF
DISCRIMINATION a. ANYTHING THAT REFLECTS
AGE i. e.g. ASKING DATE THEY GRADUATED
COLLEGE b. ANY QUESTIONS ABOUT MARITAL STATUS
OR CHILDREN c. IF YOU ASK THEM IF THEY
ARE PREGNANT OR PLANNING ON GETTING PREGNANT
AND THEN FAIL TO HIRE HER, THEN PLEASE GIVE
HER MY BUSINESS CARD BECAUSE THAT CASE WILL PAY
FOR MY SONS COLLEGE TUITION
23
C. EVIDENCE OF RETALIATION IN HIRING
DECISIONS 1. IF YOU DECIDE NOT TO HIRE THE
TEACHER BECAUSE A FELLOW EDUCATOR TOLD YOU HE
FILED A DISCRIMINATION SUIT AGAINST THAT
SYNAGOGUE. . . . . . THAT IS ALSO
RETALIATION
24
D. HOW TO PROTECT YOURSELF 1. BASE YOUR
DECISION ON THE INTERVIEW AND THEIR EXPERIENCE
AND QUALIFICATIONS 2. TAKE AND KEEP YOUR
NOTES OF THE INTERVIEW TO EXPLAIN WHY YOU
PREFERRED ONE CANDIDATE OVER ANOTHER SO YOU
REMEMBER IF YOU ARE SUED 10 MONTHS
LATER a. GOOD BETTER JUDAIC
KNOWLEDGE b. GOOD GREAT REFERENCE FROM
ANOTHER EDUCATOR COMPARED TO OTHER
PERSON c. GOOD COMMUNICATION SKILLS GREAT
(Especially in Comparison to the
Plaintiff) d. BAD RECENTLY DIVORCED,
PREGNANT, OR ANY CODE WORD REFLECTING
AGE e. REALLY BAD I HATE OLD PEOPLE
25
3. BE CAREFUL ON ANY EXPLANATION YOU GIVE THE
PEOPLE YOU DID NOT SELECT a. DO NOT SAY HE WAS
NOT A GOOD FIT, NOR THAT YOU WERE NOT WHAT
I WAS LOOKING FOR ESPECIALLY IF THERE IS A
LACK OF DIVERSITY IN YOUR WORK FORCE b. YOU
CAN SAY YOU FOUND A MORE EXPERIENCED OR MORE
QUALIFIED CANDIDATE
26
ACCOMMODATING DISABILITIES UNDER THE AMERICANS
WITH DISABILITIES ACT (ADA) A. TEACHER MUST
HAVE WHAT THE LAW RECOGNIZES AS A DISABILITY
WHICH IS A 1. SUBSTANTIAL LIMITATION OF A
MAJOR LIFE ACTIVITY 2. EXAMPLES a. M
ENTAL ILLNESS b. ALCOHOLIC OR DRUG ADDICT
c. HIV POSITIVE
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B. EMPLOYEE MUST STILL BE ABLE TO PERFORM
ESSENTIAL FUNCTIONS OF HER JOB WITH OR WITHOUT
AN ACCOMMODATION 1. EXAMPLES a. ATTENDANCE
b. ABILITY TO COMMUNICATE WITH STUDENTS
28
C. REASONABLE ACCOMMODATIONS REQUIRED IF
ACCOMMODATIONS ALLOW TEACHER TO PERFORM
ESSENTIAL FUNCTIONS OF JOB 1. TEACHER IN A
WHEEL CHAIR SHOULD BE ASSIGNED A CLASS ON THE
FIRST FLOOR IF THERE IS NO ELEVATOR 2. PROVIDIN
G A TEACHER AIDE WOULD BE A REASONABLE
ACCOMMODATION FOR. . . a. TEACHER WITH
LIMITED EYE SIGHT (BEING THE EYES FOR THE
TEACHER), OR b. TO ENABLE A DIABETIC TO
QUICKLY CHECK THEIR BLOOD SUGARS AS THE AIDE
WATCHES THE CLASS
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D. WHAT IS REASONABLE DEPENDS, IN PART, ON YOUR
ABILITY TO PROVIDE THE ACCOMMODATION WITHOUT TOO
MUCH DISRUPTION OR UNREASONABLE
COST 1. PURCHASING AN EXPENSIVE ERGONOMIC DESK,
CHAIR, OR SMART BOARD SYSTEM MIGHT BE
CONSIDERED A REASONABLE ACCOMMODATION, IF THIS
IS NECESSARY, FOR A LARGE SYNAGOGUE THAT HAS
MONEY 2. SAME REQUEST MIGHT BE UNREASONABLE FOR
A SMALL SYNAGOGUE WITH A VERY LIMITED BUDGET
E. ACCOMMODATIONS ARE VERY FACT DEPENDENT
SPEAK TO AN ATTORNEY BEFORE DENYING THE REQUEST
30
CONTRACTS A. IF TEACHER CONTRACT STATES THAT
THEY WILL BE HIRED TO TEACH FOR A SPECIFIC TERM
( SEPT 5 TO JUNE 10), YOU ARE LEGALLY REQUIRED
TO KEEP PAYING THEM THROUGH JUNE 10, UNLESS YOU
CAN PROVE JUST CAUSE FOR TERMINATION B. SO,
CLEARLY SPELL OUT THE EXPECTATIONS AND
REQUIREMENTS AND POSSIBLE CONSEQUENCES FOR
FAILING TO COMPLY 1. ATTENDANCE AT ALL TEACHER
MEETINGS IS MANDATORY 2. LESSON PLANS
MUST BE PROVIDED TO THE PRINCIPAL AT LEAST 24
HOURS BEFORE CLASS
31
C. CLEARLY SPELL OUT POTENTIAL CONSEQUENCES IF
THEY FAIL TO MEET THESE REQUIREMENTS 1. BE
CONSISTENT IN ENFORCING THIS D. INCLUDE A
PROVISION GIVING A NON EXCLUSIVE LIST OF WHAT
WILL BE CONSIDERED GROUNDS FOR TERMINATION 1. NO
CALL NO SHOW 2. REFUSAL TO FOLLOW REASONABLE
DIRECTIONS OF THE EDUCATOR 3. FAILURE TO
IMPROVE PERFORMANCE AFTER BEING NOTIFIED IN
WRITING OF THESE DEFICIENCIES 4. TOTALLY
DISABLED, FINDING OF DISABILITY BY SSI OR
UNABLE TO WORK FOR EXTENDED PERIOD BE
CAREFUL ABOUT THIS ONE. SPEAK TO ATTORNEY
FIRST
32
  • E. MAKE SURE YOU ARE CONSISTENT IN ENFORCING
    THESE EXPECTATIONS AND IN THE DISCIPLINE YOU
    IMPOSE
  • MAKE SURE THE EXPECTATIONS AND GROUNDS FOR
    TERMINATION ARE REASONABLE

33
TODAH RABAH SHALOM
  • ARTHUR R EHRLICH
  • GOLDMAN EHRLICH
  • 19 SOUTH La SALLE STREET
  • SUITE 1500
  • CHICAGO, ILLINOIS 60603
  • 312-332-6733
  • Arthur_at_GoldmanEhrlich.com
  • www.GoldmanEhrlich.com
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