Avoiding Discrimination

The first thing to do in order to avoid an employment discrimination claim is to consider all of the different stages of the employment relationship that are susceptible to such claims.  Avoiding discrimination requires a comprehensive and methodical approach to every aspect of the relationship, from recruitment to termination.  This includes:

  • How the employer advertises for new recruits;
  • Hiring practices, procedures and testing;
  • How job descriptions are written’
  • How employee handbooks are written;
  • How jobs are assigned;
  • How employees are measured and evaluated;
  • How pay raises and promotions are awarded;
  • How, and to whom, training is offered;
  • How discipline is dispensed;
  • How compensation and benefits are structured;
  • How retirement program eligibility is determined;
  • How pension payment schemes are designed;
  • How administrative complaints are handled;
  • How employees are laid off or furloughed; and
  • How and when employees are terminated.

Many documents routinely generated by employers in the course of managing their relationships with employees are potential bombshells that can backfire in subsequent litigation.  Poorly worded phrases, suggestive or ambiguous references, and patterns of bias reflected in derogatory evaluations or inconsistent measuring tactics are all recurrent risks in employment litigation.  Of particular concern are the following documents;

  • Offer letters
  • Employment applications
  • Classified advertisements
  • Employee orientation sheets
  • Employee information forms
  • Insurance application forms
  • Performance appraisals
  • Collective bargaining agreements
  • Written warnings and other disciplinary notices
  • Exit interview questionnaires

Even the most well-intentioned and even-handed employers are at risk of employment discrimination claims as the American workplace becomes increasingly diversified and as litigious ex-employees become more mesmerized by news of high courtroom verdicts and settlements.  Developing internal strategies to prevent discrimination throughout the corporation (or the agency) is therefore likely the most important mission of the human resources department.

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