Every employee must be able to identify the recognized “protected classes” on which discrimination claims are based. These include claims based on race, ethnicity, national origin, color, religion, age, gender, and disability. In many corporations and government entities, the list also includes discrimination based on military or veteran status, marital or parental status, political affiliation, and sexual orientation or gender identity. As the discrimination categories continue to evolve and expand, and as new legislation is adopted, the number of protected classes will likely increase over time.
Employees should be required to participate in diversity and sexual harassment training sessions. A comprehensive program informs employees what kinds of conduct are considered potentially discriminatory, involves role plays and invites questions. Training programs also enable the employer to explain its complaints handling procedures.
Employees must be instructed how, and through whom, to file complaints about discrimination or sexual harassment. They should be assured that they will not be punished for making a complaint, and no retaliation against them will be permitted. Confidentiality should be provided at every stage, and the employee’s privacy should be maintained to the extent possible. An employee’s subsequent failure to invoke the complaints handling procedure may invalidate the complaint.
As soon as an employer is advised of a discrimination complaint, immediate actions should be taken to address or resolve the issue. Timely investigations, followed by prompt curative action, will assist an employer in a subsequent legal claim. Delayed reactions and inadequate responses, by contrast, encourage litigation and frustrate the employer’s attempt to defend itself in court.
Managers should be trained to conduct performance appraisals. The appraisal process should be standardized and uniform, to the extent possible. Managers should be guided on how to maintain objectivity, fairness, and integrity in the process, how to interact with employees and to invite their participation in the process, and how to control the choice of words they use in any narrative entries they write on evaluation forms.
No Personal Questions
In the interviewing and recruiting process, and in subsequent conversations with employees, the employer should avoid asking personal questions. Asking an employee about age, birthplace, ethnic background, credit rating, medical condition, criminal record, sexual preference, marital status, military experience, or political affiliations are all potentially dangerous questions.
Employers should also conduct criminal background searches, prior employment checks, educational background checks, and other searches before hiring employees. Occasionally, such searches reveal a pattern or record of behavior that suggests a high risk of discriminatory conduct.
A member of the HR department or other trained employee should be designated as a compliance officer, to ensure that the corporation is complying with all applicable federal and state statutes and regulations. A compliance officer can be asked to screen advertising and recruitment materials and other publications issued by the corporation. This officer can conduct regular internal audits to determine if the company is meeting EEOC guidelines, satisfying recordkeeping rules, and complying with the practices mandated under each of the major anti-discrimination laws.
Employers should periodically run a system-wide audit of their pay scales. Salary and compensation levels should be compared to each other and measured against written job descriptions and actual job duties and functions. They should also be compared to industry standards. Increases in compensation levels should be made only after gathering and evaluating the evidence, and should be implemented in a non-discriminatory manner with respect to all employees affected by the change.
Be sure that the employee handbook contains an anti-discrimination policy. The policy should describe what constitutes discrimination in the broadest terms. It should instruct employees that discrimination embodies all forms of harassment, including sexual harassment and ethnic harassment, as well as less overt forms of impoliteness, such as poking fun at one’s clothing or religious symbols. It should encourage reporting of all suspected violations of the policy and outline the complaints handling procedure. It should promise anonymity and confidentiality to the extent possible.
The employee handbook should also contain an anti-retaliation provision that prohibits any kind of overt or subtle retribution directed toward employees who report discrimination, who file claims, or who cooperate in discrimination investigations.
Documentation and Explanation
Recruiters and hiring managers must be trained to document all of the criteria for each job vacancy and then to document how each applicant satisfies (or fails to satisfy) those criteria. Documentation should be retained in order to demonstrate that negative hiring decisions were based on job-related criteria. Rejected applicants should be told why they weren’t hired (for example, “we felt that another applicant’s experience was more closely connected to this particular job opening.”) Then, employers should invited rejected applicant’s to re-apply, advise them of future openings, and encourage them to try again. By communicating the job-related reasons for not giving an applicant the job, and then inviting them to re-apply in the future, the employer can often dispel any thoughts about discrimination.
Employers should avoid telling job applicants that they didn’t get the job because they’re over-qualified. Saying such things, or perhaps asking “why would a person with your experience want a job like this?” suggests that the interviewer thinks the applicant is too old for the job.
Never ask for documents that might disclose a job applicant’s age, sex, ethnicity, citizenship status, disability, or other protected information before making the decision to hire. Doing so may be misconstrued as an attempt to establish the applicant’s age, race, sex, religion, or national origin as part of the decision-making process. So, for example, when immigration law requires new employees to sign an I-9 form and produce several forms of identification as proof of U.S. citizenship, employees should not be required to do so until after the job has been offered. The employer may then rightfully explain that the job is contingent upon satisfactory production of the requested documentation.
It may be necessary, from time to time, to consider the demographic makeup of the workplace. A factory setting with 50 all-white employees can create the impression of discrimination, even if every employee was legitimately hired based on skill and experience alone. Where companies visibly lack diversity in the workforce, they should consider expanding their recruiting efforts in order to broaden the demographic mix.
Employee workloads typically vary from person to person, day to day, and department to department. Company-wide uniformity is seldom a reality. However, managers should periodically review their assignments and the level of worker productivity to ensure that workloads are not being inordinately delegated to one group or another.
Public and private employers, especially in larger organizations, may find that they can identify and resolve potentially discriminatory actions preemptively by using feedback groups and advisory councils composed of employees, HR officials, and other managers. For example, it may be useful in some organizations to convene a council or committee of African-American employees, women in the workplace, military veterans, or older workers. Allowing these groups to voice their concerns and serve as discussion panels keeps the employer informed about concerns long before legal problems materialize.
Mediation and Arbitration Agreement
Employees should be asked to execute agreements to mediate and/or arbitrate employment disputes. A mediation agreement would require employees to participate with the employer in a session run by a trained mediator who would assist the parties in finding a mutually acceptable solution to the complaint. An arbitration agreement would require the parties to participate in a more formal proceeding, managed by one or more professional arbitrators, who would rule on the employee’s complaint (serving in the place of a judge). Most arbitration agreements are binding and non-appealable, and by signing the agreement, the employee consents not to litigate any future employment claims in a court of law.
A severance package, consisting primarily of a monetary gift at the end of the employment relationship, can be given to employees in exchange for their signature on a termination agreement that waives any and all legal claims they may have against the employer and forbids them from ever filing a lawsuit. Not uncommonly, employees are offered several weeks or months of continued salary and/or benefits in exchange for leaving the job quietly and signing the waiver and release agreement.
As part of a separation package, an employer may also request that the employee agrees not to communicate with others about the nature of the dispute, or of any complaints raised by the employee, and not to communicate about the terms of any settlement reached between the parties. Such an agreement often has the more generalized effect of laying the issue to rest.
Where a large number of employees is facing layoffs sue to downsizing, it is sometimes helpful to organize a board of managers who will review the reduction in force and identify any questionable categories or individuals facing layoff. Such a board can also function as an appellate tribunal for any employees who wish to challenge the layoff decision, and may thereby prevent those employees from taking their challenge to a courtroom. A layoff board may also assist an employer in following the mandates of the Worker Adjustment and Retraining Notification Act (WARN).
Employers should maintain ongoing relationships with legal counsel and should engage them, as necessary, to address discrimination risks and concerns throughout the hiring, retaining and terminating process. Attorneys are likely to be the first ones to learn about new employment discrimination statutes and regulations, as well as new court decisions that may impact upon their clients’ businesses.