Top Ten Ways to Avoid Discrimination Claims
by: Donna M. Ballman
Donna M. Ballman, P.A.
5001 S. University Drive, Suite G
Ft. Lauderdale, FL 33328
I’m constantly asked by employees what they can do to prevent discrimination claims or, if they receive a charge of discrimination, to increase their chances of defeating the claim. Here are the top ten ways that I find savvy employers can prevent discrimination claims.
- DOCUMENT YOUR ACTIONS : always put a memo in the file, keep notes of meetings, and give written warnings and terminations.
- HAVE A WITNESS : if you are about to fire or warn someone, have the human resources director, company officer, your trusted secretary who will not gossip, or someone else who reasonably should know about the action present in case there is a problem about the meeting later.
- INVESTIGATE ALL CLAIMS THOROUGHLY : if you fail to investigate a claim or take it seriously, you will set yourself up for a claim that the violation was intentional. If you just fire the accused harasser or discriminator, you set yourself up for a defamation claim.
Act promptly to all reports of discrimination and harassment. Interview the complainant and the alleged discriminator/harasser. Ask questions in a way that is neutral, not accusatory or impartially supportive. Ask open-ended questions to invite a full exploration of the facts. Make sure all witnesses are identified and interviewed. Identify alleged similar acts of discrimination/harassment. What did the employee do in response to the alleged discrimination/harassment? What action does the employee want the employer to take?
Advise both the accuser and the alleged discriminator/harasser of the time by which a resolution will be reached. Make a prompt determination as to whether any immediate, temporary action should be taken to separate the parties during the investigation, such as transfers or assigning a new supervisor.
Advise the alleged discriminator/harasser that no retaliatory action may be taken against the complainant, particularly if they supervise the complainant. Advise the complainant that if any retaliation occurs that she should report it immediately.
Impose appropriate sanctions if necessary, and finalize the investigation promptly. Advise the complainant of the action taken. If no discrimination/harassment is found, advise the parties, restate the company policy against discrimination/harassment to both parties, and advise that no adverse action will result to either party as a result of the complaint.
- NEVER ANNOUNCE THE ACCUSATION COMPANY WIDE: if you spread an accusation that turns out to be false beyond the circle of management personnel who should reasonably know, you set up a defamation claim. Even though investigations of discrimination are privileged, excessive publication defeats the privilege.
- HAVE WRITTEN DISCRIMINATION AND GRIEVANCE POLICIES: sexual harassment and discrimination claims should be addressed, including who the employee should report to. Employees should have alternatives in case the designated person is the harasser. If the policy requires the victim to report harassment or discrimination to her supervisor and the supervisor is the discriminator/harasser, the company will be liable even if the discrimination was not reported. Have an alternative, preferably several, such as the human resources department head, the officers or partners, or other alternatives. Do not put procedures such as training in the policy unless they can and will be followed. Establish a clear investigation and remediation procedure. Make sure the reporting procedure is clear and widely distributed.
Define discrimination clearly. Ban all behavior that has the purpose or effect of unreasonably interfering with work performance, or creating an intimidating, hostile, or offensive work environment to any member of any protected class. Include examples, but make it clear that the list of examples is not intended to be all-inclusive.
Make clear that it is the administration’s responsibility to take action once a report is made. Have a statement of confidentiality, but make it "to the extent possible under the circumstances" because sometimes complete confidentiality is impossible. State that the company’s policy is one of non-retaliation for making a report of discrimination.
State that anyone, including managerial employees, found to have engaged in discrimination is subject to discipline, including termination. State that the complaining employee will be informed of the results of any investigation and of the remedial actions taken, if any.
- HAVE WRITTEN TERMINATION POLICIES: have set policies for warnings, terminations, and what will justify termination without warning. Have an appeals process within the company if possible, but make sure the process is followed in all cases.
- TRAIN ALL INTERVIEWERS AND PERSONNEL MANAGERS : if your interviewers and managers are not familiar with the new laws, such as ADA, they can inadvertently violate the law. See, for example, EEOC guidelines, "Preemployment Disability-Related Questions and Medical Examinations.
Deal with the uncomfortable topic of sexual harassment. Make a clear and unambiguous statement of the company’s position against discrimination. Define the different types of discrimination clearly, who is protected, and the legal consequences of discrimination. Discuss and disseminate information about possible solutions to problems. Clearly define the roles of the employee, the managers, and the company in the resolution of discrimination.
- AUDIT YOUR POLICIES REGULARLY : many lawyers will review policies for you to update on a regular basis. They may also conduct training on new laws for your supervisors. The laws change on an almost daily basis as courts interpret new statutes and new situations.
- DON’T LIE TO ALLOW SOMEONE TO GET UNEMPLOYMENT: what you put down on the form as the reason for termination will be used against you.
- PUT ARBITRATION AND MEDIATION CLAUSES IN CONTRACTS AND SEVERANCE AGREEMENTS: Arbitration clauses have been upheld in employment contracts. The arbitration process can benefit both parties because it is quicker and less expensive than full-blown litigation.
A little prevention and education will go a long way toward making sure that you don’t have a constant stream of discrimination cases. When in doubt, contact an employment attorney to discuss the situation.