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How to Handle the Aftermath of Discrimination Claims

One of the most rigorously litigated fields of US employment law is discrimination. Employers are vulnerable to discrimination claims throughout the entire employment relationship, from application to separation and everything in between. Moreover, US protections on the basis of age, race, religion, sex, disability, and many other characteristics mean that most employees are members of at least one protected group.

With relatively few other employment protections available to US workers, it should not be surprising that the US Equal Employment Opportunities Commission (EEOC) reported a total of 91,503 charges alleging discrimination or retaliation in Fiscal Year 2016. Employers that have faced discrimination claims can help avoid future litigation, or put themselves in the best position to defend against these claims, by following a few key steps.

Refresher on fundamentals

Getting back on track after a discrimination claim begins with brushing up on the basics. Employers should review the essential legal requirements of the most significant federal employment statutes, including:

-    Title VII of the Civil Rights Act of 1964 (Title VII);
-    Title I and Title V of the Americans with Disabilities Act (ADA);
-    Age Discrimination in Employment Act (ADEA);
-    Genetic Information Nondiscrimination Act (GINA);
-    Uniformed Services Employment and Reemployment Rights Act (USERRA);
-    Section 1981 of the Civil Rights Act of 1866 (42 U.S.C. § 1981); and,
-    Equal Pay Act (EPA).

These federal laws operate hand-in-hand with state and local laws, so a thorough assessment of jurisdiction-specific law should be a top priority, as well. Specifically, employers should understand how many employees are required for coverage, which protections these statutes offer, what sorts of activities (including harassment and retaliation) constitute a violation, and what remedies are available to prevailing parties.

An ounce of prevention

Knowing the law is an excellent start, but employers must act on that knowledge to better handle compliance. Employers should review and adjust their practices throughout the employment relationship to promote a strong workplace free from unlawful discrimination.

In saying hello

Best practices start even before the employee's first day on the job. Employers should draft thoughtful job descriptions and job postings that avoid preferences on the basis of protected characteristics and adhere closely to the true nature of the job. A select subset of protected characteristics can, in very rare instances, be regarded as legitimate job requirements, otherwise known as bona fide occupational qualifications (BFOQs). Sex, religion, national origin, and age can be BFOQs under special circumstances, such as gender requirements in therapy jobs for traumatized children. Employers should only use BFOQ exceptions, however,  in the most exceptional circumstances.

Advertise open positions in a variety of venues that are likely to draw upon a diverse applicant population. Employer representatives that are evaluating candidates should represent diverse backgrounds and perspectives. Employers should offer training to managers and human resources professionals to keep unlawful bias out of screening and interviewing. Certain jurisdictions specifically require sexual harassment prevention training, and additional training beyond the minimum is even better.

When interviewing, adhere to consistent protocols and objective standards to avoid the appearance of discrimination. Document all decisions to reflect those standards. Exercise sensitivity in accommodation of candidates on the basis of religion or disability and in communication with candidates who did not secure the position. Often, simply treating candidates with respect will help curb the kind of frustration that may prompt legal action.

In good times

Savvy employers proactively work to avoid discrimination throughout the employment relationship. Key compliance metrics include displaying required posters, offering appropriate policies and affinity groups, providing relevant training, and implementing appropriate procedures.

First, federal and state laws require notice postings on various issues, and non-discrimination is among them. At a minimum, be sure to display all required posters. Not only is this a legal imperative, it also sets an inclusive and welcoming tone in the workplace.

Employers should create handbook policies articulating equal employment opportunities and hosting groups putting those ideas into action are vital. Policies should make it clear that the employer has a zero-tolerance standard for discrimination, harassment, or retaliation on the basis of any protected characteristic. These policies should be visible and accessible to all and revised as needed to reflect changes in the law.

In addition, employees should sign acknowledgments that they received and reviewed relevant policies. Companion policies describing the process for requesting reasonable accommodations further promote non-discrimination objectives. Policies are a good foundation, but supporting workplace affinity groups also helps employers advance diversity goals. Examples of affinity groups include women's groups or Hispanic employee associations.

Another essential tactic to avoid discrimination lawsuits is training. Investing in awareness about the ills of bias and the importance of diversity is an investment in the company and its compliance efforts. Again, sexual harassment prevention training is required in select states, but should be implemented even absent legal mandates. This sort of training pairs well with programs on rooting out unlawful discrimination and promoting an inclusive workplace.

Finally, establishing protocols for internal complaint, investigation, and resolution procedures helps employers address problems before they evolve into legal action. This should include making more than one avenue for complaints available to employees and referring complaints to a centralized human resources department to conduct an investigation.

By outlining mechanisms for employees to voice concerns and employers to respond quickly and appropriately, employers should assure employees they have been heard and that inappropriate behavior will not be tolerated. This also gives employers the opportunity to redress situations and fix institutional problems before they appear in court records.

In bad times

With good internal procedures in place, employers are in a strong position to nip problems in the bud. However, procedures are useless unless you actually follow them. Ensure that all relevant actors understand the internal complaint system and have ready access to the tools necessary to use it. Train supervisors and managers on how to respond to discrimination complaints, including referring any complaints to human resources and avoiding retaliation claims. Respond in a consistent manner to avoid the appearance of discrimination in handling of internal complaints.

As many employers know, there are three important words to remember in internal investigations: document, document, and document. Should the complaining employee file a legal action against the employer, ensure the employer has put their best foot forward to defend itself by creating a written record of the complaint, the investigation, and its resolution. All other efforts to promote diversity and avoid discrimination should be equally well recorded.

The combination of proactive efforts to eliminate discrimination and robust practices to combat it not only creates a more diverse workplace, but also strengthens legal defenses. It may help employers to establish the Faragher-Ellerth defense, under which certain claims of hostile work environment can be thwarted if the employer can demonstrate that it took reasonable care to prevent and effectively remedy the issue and the employee failed to take advantage of the opportunities presented.

Once any necessary investigations are concluded, follow up with the complaining parties to let them know you have taken the issue seriously and responded promptly. Consider offering (but not requiring) the employee an opportunity to make modifications in their own job to reduce additional exposure, such as changing roles or reporting lines. Impose the appropriate discipline on any parties who have violated company policies.

Remember that allegations of discrimination and related claims can stem from a variety of situations throughout the employment relationship, including termination, failure to hire, failure to promote, harassment, retaliation, bias in compensation, and others. Understanding the ways in which claims may arise can help employers be mindful of the greater universe of risk and take steps to minimize these risks.

In saying goodbye

No matter the circumstances, smart employers should take steps to avoid the appearance of bias in all employee departure situations. Document termination decisions and make those decisions for legitimate, non-discriminatory reasons only after careful analysis by a diverse group of decision makers. Create legally compliant separation agreements and offer those to employees with sufficient consideration and time to consider. Treat those leaving your employ with respect. Again, common decency even in difficult times will often go a long way toward avoiding legal challenges.

About the Author

Kate BallyKate Bally is the director of labor and employment at Practical Law. She gratefully acknowledges the collaboration with David Greenhaus of Jackson Lewis LLP on the original work on which this is based.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.