Discrimination is one of the most significant areas of legal exposure for employers. Employers face potential liability for discrimination claims throughout every stage of the employment relationship. Avoiding employment liability requires sensitivity to a wide variety of legally protected characteristics, including race, color, religion or creed, national origin or ancestry, age, physical or mental disability, sex (including gender and pregnancy), marital status, civil union status or domestic partnership status, familial status, affectional or sexual orientation, gender identity or expression, veteran status, and genetic information.
Most employers are subject to federal and state laws prohibiting employment discrimination, but not all employers appreciate the related legal risks. In 2015, the Equal Employment Opportunity Commission (EEOC) reported 89,385 total individual charges alleging discrimination. These numbers are likely to remain high, in part, because claimants may be awarded significant sums without a great deal of personal cost. In contrast, employers sued for discrimination violations often face large financial losses. It is common for employers to pay thousands of dollars in legal fees defending against meritless claims and thousands more settling well-founded claims.
Solution: Employers can minimize the risk of legal exposure by understanding the legal basics and taking the following preventative measures during the employment relationship.
Discrimination does not need to be blatant or intentional to be the basis of a successful lawsuit. Employers are often aware that overt discrimination, otherwise known as disparate treatment, is prohibited, but they must also understand the more subtle forms of discrimination that can present just as great a legal risk. For example, policies and procedures having a disparate impact on a protected class could lead to a potential discrimination suit. The related claims of harassment on the basis of protected class status and retaliation for seeking to eliminate discriminatory practices or other protected behavior present additional legal pitfalls. To help protect themselves against potential discrimination claims, employers can take the following preventative measures:
- Post required notices on-site: Comply with notice posting requirements to inform employees about their rights.
- Provide accommodations as needed: Individuals with disabilities and those affiliated with a particular religion may be entitled to reasonable accommodation. Be sure to engage in the interactive process when faced with a request for accommodation.
- Encourage employees to use the internal complaint mechanism: Encourage employees to raise concerns internally before they escalate to an EEOC charge or litigation.
- Recognize that any adverse employment action, including demoting or failing to promote, may prompt litigation: It is important to understand that employees can complain of discrimination, even though they have not been terminated. Employers can reduce the risk of litigation by documenting the legitimate business reasons for all adverse employment decisions.
- Create, enforce, and make available appropriate policies and procedures: Policies prohibiting discrimination, harassment and retaliation should provide employees with a mechanism for reporting any alleged acts. These policies should be made available to employees through handbooks and stand-alone policies that are distributed either individually or posted throughout the employer’s office. When initially distributed, it is important that employers obtain and retain an acknowledgment form from each employee.
- Train employees: Employees should attend diversity and non-discrimination training that focuses on the types of behaviors prohibited, including harassment and retaliation. Moreover supervisors should be trained in how to respond promptly and appropriately to complaints or questions regarding discrimination.
- Promote and document compliance: Employers should retain all employer prevention efforts, including policies, acknowledgments and training. It is important to also keep copies of any employee complaints, responses to complaints, witness statements and investigation files.
- Respond to internal complaints promptly: A prompt and thorough response to an internal complaint is essential to a successful defense. Interviewing the complaining employee, the accused employee as well as any witnesses are mandatory steps once a complaint has been made. Employers should be careful to document every element of the investigation, including any findings, as both will ultimately be incorporated into a detailed investigation report.
These general safety measures are just some of the precautions employers can take to protect themselves against discrimination claims in the workplace. For answers to specific questions and/or concerns, please contact our office directly.