Updated: May 10
As a successful entrepreneur you have spent dozens, if not hundreds, of hours building your business. You developed a business plan, obtained start-up funding, decided on a business structure, and built your clientele. You have sacrificed time with your family and and you have built something that you are proud of. That last thing you want is to spend your hard earned money on attorney fees to fight an employment discrimination claim.
But according to the Equal Employment Opportunity Commission retaliation claims (whistleblower) as well as claims of discrimination based on sexual orientation and identity, disability and age have seen a dramatic increase since 2020. It is not clear whether this is due to an actual increase in employment discrimination, heightened awareness following the enormous social impact of the "me too" and BLM movements or simply because more people are out of work and looking for someone to blame. As an employer, the reasons may not be as important to you as how to eliminate discrimination from your workplace, how to address discrimination claims appropriately and effectively when they arise and how to avoid them in the first place.
IT'S HARD TO ARGUE WITH A TIGER WHEN YOUR HEAD IS IN ITS MOUTH:
The best way to prevent employment discrimination claims is to prevent employment discrimination. As an employer, you should know that discrimination based on race, sex, religion, age, disability, or sexual orientation/identity is wrong and it is illegal. Retaliating against an employee for making a good faith report of such discrimination is also illegal. Moreover, investigating and defending against such claims can cost you thousands of dollars in legal fees, not to mention the impact on company morale and productivity.
So what is the secret to avoiding discrimination at your workplace? There are two major classes of discrimination claim: direct action claims and hostile work environment claims. This blog post deals with direct action claims.
With respect to those claims, one of the most effective ways is to have policies and procedures in place to address employee performance, including an anti-discrimination policy. And you enforce the policy. It's that simple. Generally speaking, the law provides de facto protection for employers who implement and enforce performance standards and this can be particularly helpful when coupled with anti-discrimination policies and procedures for reporting discrimination, investigating such reports, and promptly addressing issues as they arise.
Those procedures can be modeled to suit the needs of your business, but examples include:
a. a policy handbook provided to all employees that outlines how performance will be evaluated and how sub-par performance or work related misconduct will be handled. You should also have procedures in place that state illegal discrimination or behavior which tends to create a hostile environment violates company policy and will not be tolerated (or words to that effect);
b. a dedicated phone number or staff member for employees to call and report discrimination or a designated individual for the same;
c. an interview process that allows the employee to detail the facts of her complaint, identify witnesses, and state how she would like you to address the problem;
d. an investigation process to interview the accused person, to interview witnesses, and assess the credibility of the report.
e. for cases that you find are credible, an interactive process that allows you and your employee to remedy the situation in a manner that is calculated to prevent further discrimination, redresses the harm done to your employee, and provides her with a safe workplace where she knows she will not be punished for reporting unlawful conduct.
TAME THE TIGER
Policies and procedures regarding both performance and discrimination are important because of the way Courts evaluate discrimination claims. In order to prevail the employee has to prove: 1) that they are part of a protected group; 2) that they suffered an adverse employment action; 3) that they were meeting the employers legitimate work related expectations at the time of the adverse action; 4) that similarly situated employees were treated differently. The burden then shifts to you to show that you took the action for a legitimate, nondiscriminatory reason. Unless the employee can show that the reason was a pretext for discrimination then you should win. It's that simple.
Note that the Employee has to prove that they were meeting job related requirements at the time they experienced the adverse action. If they cannot do so, you probably win. Note also, that if you can show a legitimate unbiased reason for your actions then you still win. So it's very important to implement performance standards and document any shortfall by your employees.
If you do not do so, the employee is likely to say that you are creating alternate facts in order to justify unlawful discrimination. Worse yet, they will subpoena their employment file and highlight the absence any record of misconduct or poor performance.
If you own a business and want to implement a comprehensive employment handbook to begin building your first line of defense to employmebt discrimination claims, call Hutson Law today to discuss your options.