Seven steps that could save your company millions.
by J. Brian Hittinger and Carrie L. Flores
Would a $39 million settlement of a gender discrimination claim or a $160 million settlement of a race discrimination claim create an immediate need to shore up your company's anti-discrimination program? It probably would if you were Bank of America or Merrill Lynch, both of which agreed to settle discrimination claims brought by employees claiming that each company systematically gave out work assignments that negatively impacted either female or African-American employees. An employer should put a strong anti-discrimination program into place before an employee “breaks the bank” by filing a discrimination claim. Here are some tips for avoiding that scenario:
1. Adopt, publish and obtain written acknowledgements from employees of your company's EEOC statement advising employees that your company does not discriminate on the basis of protected classes.
2. Identify which federal and state non-discrimination laws apply to your company based on the number of employees you have. For example, most companies are prohibited from discriminating against applicants or employees on the basis of race, gender, national origin, religion, disability, age, genetic information and veteran status.
3. Determine if any local ordinances provide protected status to applicants and employees on the basis of gender identity or sexual preference. Many large metropolitan areas have local ordinances that do just that. In May 2012, the Equal Employment Opportunity Commission ruled that Title VII of the Civil Rights Act of 1964 protects transgendered employees from unlawful sex discrimination. Transgendered individuals are those who self-identify as a different gender from their biological sex. Though the Supreme Court has long recognized that an employer may not take a person's biological sex or gender into account in making employment decisions, the EEOC decision is important because it was the first time the EEOC has addressed whether Title VII covers transgendered individuals.
4. Include non-discrimination and non-harassment provisions in your company policy or employee handbook. Include specific directions on how an employee who believes unlawful discrimination or harassment is taking place can file a complaint about or report the situation to a supervisor, the human resources department or top-level management. Promptly investigate any complaint or report and, if necessary, take immediate corrective action. Document this process.
5. Implement the heightened requirements for the use of criminal background checks (including arrest and conviction records) before taking an adverse employment action, e.g., refusing to hire. In 2012, the EEOC provided updated guidance for using criminal background checks so that those checks do not adversely impact applicants of certain races or national origins. For example, the EEOC now requires employers to show that the use of criminal background checks is “job related and consistent with business necessity,” which may include the employer's development and use of individualized assessment for those excluded by background checks.
6. Train managers in all of the above areas. When training managers to prepare employee performance evaluations, make sure that the supervisor is using measurable criteria that are non-discriminatory. Use the same performance criteria tool for all genders, all races, all ages, etc. Measure employee performance in terms of productivity; goals met; percentage compliance with rules; or rates of error. Managers and supervisors should also systematically check employee progress by confirming that all employees are receiving similar training; similar tasks or assignments; and even-handed opportunity for advancement.
7. Seek assistance from an employment law attorney before letting an everyday problem erupt into a workplace crisis or, worse yet, a lawsuit against your company.
J. Brian Hittinger is a partner and Carrie L. Flores an associate with Krieg DeVault LLP.
