Protecting Your Business Against Discrimination Claims

The threat of discrimination claims has become a basic part of the landscape for businesses both small and large. Particularly since Anita Hill became a household name, many if not most personnel decisions pose at least some risk of being construed, or misconstrued, as evidencing an employer’s intent to illegally discriminate against one or more employees.

The Pennsylvania Human Relations Act and Title VII of the federal Civil Rights Act of 1964, as amended, generally prohibit an employer from discriminating against an employee in hiring, firing, tenure and the terms, conditions and privileges of employment on the basis of race, color, religious creed, ancestry, age (defined to include persons between the ages of 40 and 70), sex or national origin. Sexual harassment is categorized as a form of discrimination on the basis of sex. The Pennsylvania Human Relations Act and the Americans with Disabilities Act also provide protections against discrimination on the basis of non-job related handicaps or disabilities. However, ADA claims involve considerations very different from race and gender-based discrimination, and are beyond the scope of this article.

It is impossible to entirely eliminate the risk of a claim for unlawful discrimination. In America, anyone can sue anyone for anything. However, the courts and administrative agencies charged with handling discrimination claims have various procedural devices available to dispose of frivolous claims prior to trial. In order to minimize the risk of discrimination claims and maximize the prospect for early resolution of non-meritorious claims, employers should consider the following insights from an attorney who has handled numerous cases on behalf of both employers and employees.

First and foremost, in any personnel decision the employer must put himself in the shoes of the employee, and should proceed upon the assumption that the employee is at least suspicious, if not altogether paranoid. Perception is everything. If an employee within a protected classification is given reason to believe that he or she is being treated differently from other employees not within the same protected classification, the employee is part way toward making out a viable claim of discrimination. Avoiding the appearance of unequal treatment can be particularly tricky in light of the many potential groups or combinations of groups whom an employer can be accused of discriminating either for or against. For example, in one workplace there may be a perception that younger women are favored at the expense of older women. In another workplace, there might be the perception that younger female workers women are being harassed by older men who are not being called to task for their boorish behaviors.

There is no failsafe insulation against the filing of a discrimination claim. But employers can minimize the risk of these claims by following a few basic guidelines.

Focus on Mid-Level Management

Many if not most discrimination claims involve charges of mid-level management (a) singling out minority workers for unequal treatment, or (b) failing to protect minority workers from harsh treatment at the hands of co-workers. It therefore makes sense to focus on mid-level management as a key to reducing risk. Regular and on-going training can help sensitize managers to the importance of appearing and being impartial. For those very few managers who bear ill will toward a minority group, training will at least convey the message that discrimination will not be tolerated. But even more important than training, upper level management must take workers seriously when they complain about unequal treatment from their supervisors. It is no doubt true that many of these complaints come from workers who were born to complain. It is also true that some mid-level managers draw more complaints than others. The manager who ignores these complaints does so at the company’s risk. Even if the complaints do not reflect discriminatory intent, they probably do reflect a certain insensitivity on the part of the manager—exactly the type of insensitivity that leads disgruntled employees to believe they are victims of discrimination. It is therefore critical that upper level management carefully and seriously investigate workers’ complaints against their supervisors.

Enforcement of “Zero Tolerance” and “Open Door” Policies

In recent years, many employers have adopted written policies promising “zero tolerance” of workplace violence. Others have personnel manuals offering an “open door” for employees to bring complaints about co-workers and supervisors to upper management without fear of retaliation. When implemented fairly and consistently, these policies can increase worker satisfaction and reduce the potential for discrimination claims. However, if the employer is not committed to enforcing these policies across the board, the existence of these policies can actually provoke discrimination claims. If an employer with a “zero tolerance” policy has turned a blind eye to fighting in the workplace, either ignoring the fights altogether or merely suspending the offending employees for a day or two, the employer had better have a particularly compelling reason for later firing an employee under the zero tolerance policy. Otherwise, the employer can expect to be called to task for discriminatory enforcement of the policy. Likewise, when an employee who has complained about a supervisor under a company’s open door policy later finds that the offending supervisor has not only not been reprimanded, but is in fact permitted to retaliate against the complaining employee, the employee’s expectations of fair treatment under the open door policy are violated. Even worse, the employer’s weak response to the complaint permits the inference that upper management condones the supervisor’s apparent discrimination. The bottom line is that if an employer is going to have zero tolerance and open door policies on its books, it must enforce these policies strictly and evenhandedly.

Making a Paper Trail

Almost every employer has hired and ultimately fired an employee who has been unable or just plain unwilling to follow workplace rules. No matter how often the employee is warned or given second and third chances, there is no change in the offending behavior. In time, there is no choice but to terminate the employment relationship. If the employee thereafter files an unlawful discrimination charge with the Pennsylvania Human Relations Commission or the federal Equal Employment Opportunity Commission, one of the first inquiries investigators for either Commission will make is whether the employee was given oral or written warning about the offending behavior prior to the termination. If no warning was given, the employer’s reason for firing is immediately suspect. The employer’s undocumented claim to have given the employee oral warning prior to termination is only marginally better. However, if the employer can point to a personnel file containing two or three written warnings given to the employee prior to termination, this is sometimes all the employer will need to persuade the Commission that the employee’s claim is without merit.

At a minimum, written warnings to employees should be dated, and should specify the exact nature of the offending conduct, the action the employee is expected to take to bring his or her conduct into compliance with company requirements, and some indication of what future consequences the employee may face if the conduct is not corrected. Obviously, one copy of the warning should be given to the employee, and another copy retained in the employee’s permanent personnel file. Warning memos not only provide the employer with evidentiary support if a discrimination claim is filed, but also tend to discourage the filing of discrimination claims in the first place. If an employee is fired in the wake of clear written warnings about the nature and consequences of continued misconduct there is little room for the employee to believe that illegal discrimination was at play.

Paid Days Off for Problem Employees

Extreme cases call for extreme measures. Not every employee will respond rationally to written warnings. Occasionally, we encounter an employee who will assume that the employer or a particular supervisor is “out to get me” no matter what the circumstances. Under these conditions, the employer should at least consider sending the employee home with a paid day off and a written memo. The memo should outline the exact nature of the problem as the employer perceives it, and should instruct the employee to use the paid day off to consider whether and how the employee can work out the problem to the satisfaction of the employer. While it certainly cuts against the grain to give a problem employee a paid day off, the cost is minimal compared to the cost of later defending the discrimination claim the disgruntled former employee is likely to file. Further, it gives the employee an opportunity to both cool off and either solve the problem or recognize that the problem cannot be solved. Giving a problem employee a paid day off is a remedy to be used in only the most extreme circumstances. However, it can make the difference between an amicable resolution and protracted litigation.

Company Demographics

When a current or a former employee does file a discrimination claim with the Pennsylvania Human Relations Commission or the Equal Employment Opportunity Commission, the investigator will typically request that the employer provide detailed information about the demographics of the Company’s current and former workforces. In a racial discrimination case, the Commission will look carefully at the racial make-up of the work force, and will inquire into reasons for the termination of employment of other employees with a similar racial background. The Commissions will make similar inquiries into age and gender demographics in age and gender cases. If employees with backgrounds similar to those of the claimant have been hired and either retained or promoted, the employer’s appropriate treatment of employees of the same race, color, religious creed, ancestry or age, as the case may be, would go a long way toward a finding that there was no probable cause for the employer’s discrimination complaint.

Prevention beats litigation. The employer who devotes time to eliminating actual and perceived discrimination in the workplace will not only reduce the potential for discrimination claims, but will also reduce the potential for breeding the disgruntled worker who will later pursue a discrimination claim.

The attorneys of Wolf, Baldwin & Associates, P.C. have experience representing both employers and employees in discrimination, sexual harassment, and other employment claims. We can also advise you about potential workers’ compensation or unemployment compensation rights. We can help victims of discrimination, and we can counsel businesses regarding actual and potential employment claims. Our lawyers can help you learn your employment law rights and protect those rights. We invite you to contact us today to schedule an appointment, so that we can discuss your employment situation. We look forward to speaking with you.

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