The EEOC puts out a chart that quantifies the “charge statistics” for each fiscal year. You can find it at: http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.   The statistics tell us how many complaints of discrimination they have received, and what categories of discrimination are cited. Here are some interesting nuggets.

*The total number of complaints held steady from 1997 to 2007, and then jumped up in 2008. During those first ten years, the numbers ranged from 75,428 in 2005 to 84,442 in 2002. In 2008, the numbers jumped into the 90,000s, and went over 99,000 for three years in a row from 2010 to 2012. In the latest year, 2014, they dropped back down to 88,778.

*In 2010, the number of “retaliation” claims exceeded claims of race discrimination for the first time. This was the first year that racial complaints were not the most frequently cited form of discrimination.   Retaliation complaints have remained “number one” in every subsequent year.

*In 1997, retaliation claims were cited in 22.6% of all complaints. In 2014, it was 42.8%.

*The percentage of complaints of sex discrimination has remained remarkably consistent—right around 30%.

*As the boomers age and develop physical problems, the number of age and disability complaints has gone up.

*For the most recent fiscal year, 2014, the numbers are as follows:

Retaliation:                      42.8%
Race:                                    35.0
Sex:                                       29.3
Disability:                         28.6
Age:                                      23.2
National origin:             10.8
Religion:                               4.0
Color:                                     3.1
Equal Pay Act:                  1.1
Genetic Information:   0.4

These numbers exceed 100% because many people cite multiple factors.

DAWG BONES: DON’T BE A STATISTIC! MAKE ALL OF YOUR PERSONNEL DECISIONS ON THE BASIS OF JOB RELATED, NON-DISCRIMINATORY, NON-RETALIATORY FACTORS.

We continue with our Dawg Bones about good documentation practices. Last Friday we offered a sample memo that bluntly expressed dissatisfaction with the performance of the custodian, and gave clear directives designed to improve performance. The custodian responds by claiming retaliation. He is being picked on unfairly. No one else is treated the same way. This must be about his race, age, bad knee, or political or religious beliefs. How do you respond?

Retaliation claims are on the rise across the country. From 1997 to 2014, claims of some sort of “retaliation” doubled with the EEOC. This is now the most common form of complaint, comprising over 42% of the EEOC complaints in 2014. Up until a few years ago, race was always the number one complaint. Not anymore.

So anyone in a position of supervision of others needs to be prepared for the charge that you retaliated against someone. In essence, a “retaliation” or “discrimination” complaint alleges that you are not acting on the basis of the employee’s performance—you are acting on the basis of the employee’s race, sex, age, disability, religion, or to punish the employee for the exercise of free speech rights.

The best defense to such a charge is to show that you have treated people equally. In fact, that’s really the only defense. But keep in mind that “equal” does not mean the same. You can, and should, treat different employees differently based on legitimate, job related circumstances.

I once defended a principal who was accused of discrimination when she recommended the nonrenewal of a teacher—let’s call the teacher Ms. Jones--who had been at the school a lot longer than the principal. Ms. Jones claimed that this new principal had “written her up” more frequently than anyone else. This was true. But the principal had a perfectly adequate explanation. Ms. Jones singled herself out through her own performance.

For example, one issue involved the “Drop Everything and Read” initiative. All classroom teachers in the elementary school were to “Drop Everything and Read” to their classes for the last 15 minutes of the school day. All teachers were reminded of this at the start of the school year. Three weeks in, the principal, assistant and counselor “blitzed” every classroom during the final 15 minutes. Five teachers, one of whom was Ms. Jones, were not reading to the kids. All five got a friendly written reminder the next day.

Two weeks later another blitz was conducted. Again, EVERY classroom was visited. This time there was only one teacher not reading to the kids.   You guessed it: Ms. Jones. She got a sterner warning.

It went on that way for the rest of the year. The principal treated people the same, until they gave her reason not to.

DAWG BONE: TREAT EMPLOYEES EQUALLY. THIS DOES NOT MEAN “THE SAME.”

A GOOD CORRECTIVE MEMO IS LIKE A GOOD NEWSPAPER EDITORIAL—FIRST THE FACTS, THEN THE CONCLUSIONS.

A custodian who works under your supervision is not doing a good job. You have discussed the matter with the employee, heard his side of the story, and come to the conclusion that corrective action is called for. You are going to write a corrective memo, setting out your conclusions and your expectations for the future.

Don’t lead off with the conclusions. The opening sentence should not be: “Your performance as a custodian is unacceptable and needs to change.” Rather, come to your conclusions only after laying the groundwork with a recitation of facts. Like a good editorial in the newspaper, the conclusions should rest comfortably on a firm foundation of facts. A third party reading the memo later (like a judge, your school board, or an EEOC investigator) should be able to see that the conclusions you reached were only logical, given the facts.

For example, your memo to the custodian should reflect that 1) numerous teachers have complained about the condition of their classrooms in the morning; 2) you have personally looked into this, and found that the classrooms are not being properly prepared; 3) you cite specific examples of problems; and 4) you have discussed this matter with the custodian (and give the date for that conversation).

With that factual foundation, you are ready to issue your conclusions and your directives, e.g.:

Your performance as a custodian is unacceptable and needs to change. I am directing you to have each classroom on your wing properly prepared for class the next morning. Since most of the problems have been in Mr. Jones’s class and Ms. White’s class, I am directing you to personally meet with those two teachers to be sure that you are aware of their expectations. I will review your performance again in three weeks, and hope to find a significant improvement.

So what are you going to do if our custodian now claims that you are picking on him unfairly? We will take that up on Monday. Enjoy the weekend!

DAWG BONE: CORRECTIVE MEMOS LEAD OFF WITH FACTS BEFORE COMING TO CONCLUSIONS.

REMEMBER THIS: IF YOU HAVE TO MAKE AN ADVERSE PERSONNEL DECISION, EVERY GOOD THING YOU HAVE EVER SAID ABOUT THAT PERSON WILL COME BACK TO HAUNT YOU.

If I’m the lawyer representing the teacher who is facing nonrenewal, I’m going to want to scour the file for any kudos or comments that reflect well on my client. If the latest evaluation shows that my client was doing a great job, you can be sure that I am going to emphasize that.   If the principal has recommended nonrenewal of the band director, you can be sure that I will introduce into evidence the email the principal sent last semester bragging about the great performance of the band in the UIL competition.

This does not mean that you should cease putting out kudos, brags and “attaboys.” Positive reinforcement is a good thing. We are just suggesting that positive reinforcement should be given when you genuinely mean it—not as a “motivational tactic.” I recall the principal who confessed to me that some of the things he had put into memos to the teacher were not a genuine reflection of the performance of the teacher. “I was just trying to pump him up with some positive reinforcement.”

For a supervisor, this is a counterproductive tactic. If the band won first place in the competition, by all means, brag on the band director. Provide recognition in ways that are meaningful. We are just suggesting that positive documentation should be based on positive performance—not wishful thinking.

DAWG BONE: EVERYBODY LOVES POSITIVE REINFORCEMENT. SO GIVE IT OUT WHEN IT IS EARNED—BUT NOT UNTIL THEN.

TODAY IS THE MOST ASSERTIVE DAY OF THE YEAR: MARCH 4^th (MARCH FORTH!!). THUS, LET US TALK ABOUT HOW TO WRITE A DIRECTIVE THAT DIRECTS.

If you supervise people, you want to be ASSERTIVE when appropriate, without being aggressive. An assertive person simply knows what is important, and expresses it clearly.   When you give an employee a directive, be sure that it directs.   One thing that lawyers who represent teachers clearly understand is that the principal has the authority to issue directives, and that directives must be complied with. I’ve seen testimony like this at nonrenewal hearings:

TEACHER’S LAWYER: Now I understand that Mrs. Smith, a parent of one of your students, complained about you to the principal, and that you and the principal discussed the matter. Is that right?

TEACHER: Yes, that’s right.

LAWYER: What did the principal tell you to do about it?

TEACHER: Nothing specific. We just talked about it, and she gave me her thoughts about what I might do.

LAWYER: Did the principal direct you to apologize to the parent?

TEACHER: No!

LAWYER: Did the principal give you any directives as a result of this conversation?

TEACHER: No. No directives, just some ideas of how it might be handled.

LAWYER: Has your principal ever given you a directive?

TEACHER: Yes.

LAWYER: Did you comply with her directives?

TEACHER: Of course! Every time!!

LAWYER: But on this occasion, you received no directive.

TEACHER: That’s correct.

LAWYER: If your principal had directed you to apologize to Mrs. Smith, would you have done so?

TEACHER: Absolutely! I always comply with my supervisor’s directives.

You see the point that the lawyer is making: the teacher is not guilty of “failing to comply with directives” because no directive was given.

When you write a directive, make sure that it is clear and unambiguous. This is not the time to make nice suggestions and hope that the employee reads between the lines. Directives must be in the lines—not between them.

DAWG BONE: MAKE YOUR DIRECTIVES CLEAR AND UNAMBIGUOUS—NOT BETWEEN THE LINES, BUT RIGHT THERE IN THE LINES THEMSELVES!

FOR THE REST OF THIS WEEK AND NEXT, WE ARE GOING TO TALK ABOUT DOCUMENTATION OF PERSONNEL CONCERNS. FIRST OF ALL, LET’S REMEMBER THAT THERE IS GOOD DOCUMENTATION AND THEN THERE IS BAD DOCUMENTATION.

But before we get into that, we have to offer a mea culpa. Yesterday’s Dawg claimed that March 2^nd is President Lincoln’s birthday. NOT! As most of you know, March 2^nd is Texas Independence Day. Lincoln’s birthday is February 12. The Dawg hangs his tail in shame. We shall be more observant of what Dawg Bone is sent out on which day in the future. Now…on to our topic for today!

The lawyers are fond of telling you “Document. Document. Document.”   That’s good advice. But we need to always keep in mind that documentation will either make you look good or make you look bad. You want documentation that reflects that you are a wise, prudent, fair minded supervisor, holding your staff to high (but fair and equal) standards.   Unfortunately, some documentation does not reflect on us so well.

Here’s an example: We expected better behavior out of a WOMAN of YOUR YEARS. Your conduct was hardly in keeping with your CHRISTIAN values. I thought that your HEART ATTACK last year would get your attention and lead to an improvement in your performance.

I made that one up to demonstrate that it is possible to give a plaintiff four causes of action in a three-sentence memo. If this lady is nonrenewed or terminated she will use this memo to claim discrimination based on 1) sex; 2) age; 3) religion; and 4) disability.

Here’s an example that is not made up: in Mayeaux v. Houston ISD (2014 WL 1340083, S.D. Texas 2014) an at-will employee was terminated for mishandling funds. However, there were corrective memos in her file that also mentioned her excessive absences from work. Those “excessive” absences were all due to her military service. Absences due to military service are “protected,” meaning that they may not be used to justify an adverse personnel decision. The mention of the military-related absences was like a skunk at the garden party. It was enough for the court to refuse to dismiss the case. The court said that Ms. Mayeaux was entitled to a trial to prove that her service in the National Guard was a motivating factor in the district’s decision. Thus the “bad documentation” created by the district came back to haunt the district.

So don’t be writing people up based on factors that are legally protected, such as race, gender, religion, active military service, or a health condition that does not impede performance. That’s the essence of what we mean by “bad documentation.”

DAWG BONE: NOT ALL DOCUMENTATION IS GOOD.