Ten Ways To Avoid An Employment Discrimination Lawsuit: Part Two
| Posted in Legal on Dec 19, 2011 by |
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Human Resources professionals know—as well as anybody—that employment discrimination claims are on the rise and that minimizing the risk of these claims must be on the collective conscious of any organization. In my last article, I discussed five ways a business can avoid, or at least minimize the risk, of being sued by an employee or former employee. This article will discuss an additional five "Best Practices" to keep in mind.
6. Consistency. When an employer disciplines employees, does it do so in a consistent and even-handled matter? In employment discrimination lawsuits, it is commonplace for the lawyers to develop evidence to answer that question. Indeed, the answer to that question can mean the difference between winning and losing. The anti-discrimination laws require that similarly situated persons be treated similarly. For example, if an African American employee routinely violates an absenteeism policy and is terminated, the employer better be able to show that similarly situated Caucasian employees who violated the same policy were also terminated. This consistency is even important in situations short of termination. If a female employee is give a written warning for arriving at work late, other male employees must also be given written warnings if they are tardy to work. I understand that this entire discussion may seem obvious. However, it can be very difficult to implement since different supervisors may handle personnel issues in a different ways. Supervisors must be reminded, therefore, that personnel policies have been adopted for a reason and it is their responsibility to enforce them.
7. Document, Document, Document. Ensuring that an employee's personnel file is adequately documented can be a significant burden and, in some cases, may seem like overkill. Notwithstanding, it can be critically important down the road if a dispute arises between that employee and your business/organization. For example, if an employee excessively uses his or her computer for personal reasons in violation of policy, it may be sufficient to simply pull that employee aside and let them know that their computer use has become a problem. However, if the problem continues or other performance-related problems arise and the employee is discharged, he or she may simply deny that the computer use issue was ever brought to their attention. In all likelihood, in fact, the employee will deny that he or she used the computer for personal reasons. In the context of a lawsuit, this classic example of "he said-she said" could have been avoided with proper documentation. This is but one in an endless list of scenarios where adequate documentation is important. Other prime examples when personnel files should be well-documented include: (a) when an employee complains of discrimination or harassment, (b) when an employee complains of wrongdoing by another employee or even the organization itself ("whistle-blowing"), (c) when any type of workplace investigation is performed (for example, an investigation into a harassment complaint), or (d) when an employee requests an accommodation for an illness or medical condition.
8. Be Proactive. Ignoring a work-place related problem or issue, or procrastination in addressing it, can have serious consequences in an employment discrimination or wrongful discharge claim. In fact, in certain circumstances, the law actually requires an employer to act promptly. For example, if a female employee complains that she has been sexually harassed, an organization's liability may actually hinge on whether a prompt investigation and appropriate remedial action was taken in response to the complaint. If your organization responds appropriately to such a complaint, but delays in doing so, liability may attach. In more subtle situations, supervisory and management level employees should be instructed to report any personnel issue or workplace-related dispute to the human resources manager. After all, the human resources manager is trained to recognize what issues may have legal ramifications and what issues require prompt attention or response.
9. Be Honest. Most businesses, whether for profit or not, have a performance evaluation program on an annual or semi-annual basis. This process can be a difficult one for managers and supervisors. In many workplaces, employers encourage cooperation, teamwork and camaraderie among the employees. In such situations, it is inevitable that friendships will arise, including friendships between managers/supervisors and their subordinates. Given this fact, supervisors and managers tend to "sugar coat" performance evaluations or worse ignore real problems when evaluating an employee. The end result is a performance evaluation which provides a less than honest account of the employee's performance. Although this may not present a current problem, it will be problematic if, in the future, that employee is demoted or discharged for job performance reasons and then files a discrimination, retaliation, or wrongful discharge lawsuit. In such a case, the employer can defend itself by articulating a legitimate, non-discriminatory (or non-retaliatory) reason for its decision to discharge the employee. If the reason articulated, however, is contradicted by a sugar-coated performance evaluation, both the employer's credibility and its ability to defend itself is significantly and negatively impacted.
10. Be Respectful. Supervisors and managers must recognize that all employees, even those who underperform, must be treated with respect. This is especially true when the employer makes the difficult decision to terminate an employee. Obviously, an employee who is being fired is going to be very unhappy. In certain circumstances, the disgruntled employee may file a discrimination or wrongful discharge claim out of pure spite. Often times, this can be avoided simply by delivering the termination message in a respectful manner. First, it goes without saying, that the message should be delivered in-person (not by letter, voicemail, or email). Second, the employer should be prepared to answer the question "why"—even if that means telling the employee that the decision has been made and it was based on job-performance issues which are not going to be addressed or discussed at this time. Third, if at all possible, all post-termination paperwork (COBRA, final check, etc.) should be provided to the employee. Finally, and perhaps most importantly, the employer should have job-placement information available for the employee. For example, information about unemployment benefits, temporary employment agencies, etc. The bottom line is that an employer must convey the message that it cares about the employee, wants the employee to land on his or her feet, and wants the employee to prosper in his or her future endeavors.
If you have any questions regarding this article, or any other employment law matter, please feel free to contact me at (314) 588-7000 or rkorn@foxgalvin.com.
Richard Korn is a partner at the law firm of Fox Galvin, LLC, a boutique litigation law firm located in downtown St. Louis. For more information on Richard’s practice, please feel free to visit Fox Galvin’s website at foxgalvin.com. Contact Richard at rkorn@foxgalvin.com or (314)588-7000.
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Employment Law Employment Discrimination Lawsuit Missouri Human Rights Commission Nonprofit Fox Galvin Richard Korn
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