Almost every employer will face a discrimination claim someday. Federal, state and local laws protect nearly all employees from discrimination on the basis of gender, age, race, national origin, religion, sexual orientation, disability or workplace injury. They also protect employees from discrimination for whistleblowing, having their pay garnished and submitting workers' compensation claims. And the list goes on.
Discrimination or wrongful termination cases are increasingly common. Mere allegations of unlawful employment discrimination may disrupt the workplace, harm employee morale and can be very costly to the employer. It is important to remember that a claim is only that -- a claim -- and that the employer's everyday practices are the key to a successful defense.
Once in litigation, the burden quickly shifts to the employer to show a legitimate reason for a decision that appears, at first glance, to be discriminatory. Fortunately, employers have the ability to protect themselves in the face of such claims. Below are several preventive and investigative steps that employers should take to reduce the number of claims and prevail in those claims that arise.
Have an employee handbook, and follow it. An ounce of prevention is frequently worth pounds of cure. Handbooks establish the guidelines for employers and employees, and are the best way to communicate the company's policies and expectations. Handbooks are often written by employers, and should be reviewed by an attorney before its implementation. The handbook should contain, among other things, policies on nondiscrimination, performance review and discipline, and on confidential employee complaints.
Employers frequently rely on these handbooks to support decisions that may initially appear to be unlawful discrimination. For instance, say a female employee who is over 40 is late for work on three occasions in a month. The employee is terminated for her tardiness, and her position is filled by a man in his 20s. The employer in this situation is in a far better position if the handbook informs employees that they will be automatically terminated if they are tardy three times in one month. A word of caution: Employers must follow the handbook to a tee for all employees. Uneven application can be worse than no handbook at all.
Document, document, document. The single biggest factor in employers losing employment discrimination cases is lack of documentation to support the employers' positions. Remember, the contents of the documents create the story and timeline necessary to defend employers' actions. Employers must maintain records on each employee, including all disciplinary actions taken, special training provided (such as sexual harassment training), and regular employee evaluations that note any areas of deficiency.
For example, a male store manager who recently suffered an on-the-job injury is verbally warned several times to stop swearing around customers. He is eventually terminated because of his foul language. The employer never documented the multiple verbal warnings given to the male employee. When the male employee brings an injured worker discrimination claim against the employer, there is no documentary evidence to support the employer's legitimate actions. The case becomes one person's word against another, and is far more difficult to win.
It is also important to give attention to the document contents. Many employers have faced challenges to an employee's disciplinary record because a supervisor forgets to sign or date a document, or fails to completely describe a particular incident. A well-documented employee evaluation and record-keeping system can prevent costly litigation or settlements.
Investigate every claim immediately. If a candidate, employee or former employee makes an allegation of discrimination, prompt investigation is required. The investigation should be conducted within a few days of the allegation, should be completely confidential, and should follow any policies or procedures already in place. The employer should gather all relevant documents and interview any witnesses. The interviews should be documented, and should be conducted on an individual basis with open-ended questions. The witness should be assured that his or her honesty and cooperation are encouraged, and will not affect his or her employment in any way. Employers should keep an open mind during the investigation, and should treat the complaining person with respect despite any doubts about the allegations. Any negative reactions by the employer could be interpreted as retaliation. The investigation should be thoroughly documented and placed in a separate confidential investigative file. Employers should consider having a professional investigator or attorney investigate the allegations.
Fix any problems. Employers must address discrimination problems immediately. Ignoring the problem will only make it worse; and retaliating in any way against the complaining person can lead to severe penalties. Don't be afraid to take action. Mere verbal warnings are often insufficient to either correct a problem or protect the employer from liability. Written warnings, retraining, counseling, sensitivity training, demotion or termination of the offending employee are all options. Be sure to follow up with the complaining individual to let him or her know that the complaint has been investigated and action has been taken. Then encourage further communication, should the problem recur.
Contact your attorney with any questions. Employers are required to comply with dozens of federal, state and local laws simultaneously, some of which overlap or conflict. It is nearly impossible to keep abreast of all legal requirements while still running a business or human resources department. Attorneys specializing in employment law likely have immediate answers to your questions; our job is to help employers comply with the laws and reach reasonable, practical solutions to problems. Attorneys also provide assistance with employee handbooks, employment policies, employment practice audits and investigation of claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
