Top Ten Tips – No Eleven – To Avoid Employment Discrimination Claims
List lovers — this one’s for you. You like a quick and easy to read (or even memorize, or cut out) list – like the Ten Bill of Rights, or the Ten Commandments, or the Four Tops, or The Three Amigos, or the Doobie Brothers, or . …
Well, here’s a list of 11 tips to help you manage the risk of employment discrimination or harassment lawsuits.
One caveat: Not everything is reducible to a simple list. The entries on the list below (each of which could be the subject of a long seminar or even a law school course) should be just a quick reminder or a prompt to further explore and act.
In any event, I think it is a good working list to start with, and add to, to lower your risk of being sued for employment discrimination.
1. Hire a knowledgeable and experienced HR person or persons. They are worth their weight in gold — your gold! They know what you likely don’t: proper and improper hiring questions; best practices with respect to employment policies and procedures, employee manuals and handbooks; compliance with the myriad federal, state and local anti-discrimination laws; harassment training and remediation; etc.
Which leads to the second tip:
2. If you cannot afford or justify hiring an in-house HR person, make sure that you have a trained professional to whom you can turn who can identify an employment issue before it blows up — it can be an attorney, or even an outside vendor who works with employers and know the workplace and it’s peculiar issues.
Which leads inexorably to the third tip:
3. You — yes, you! — should at least be glancingly familiar with the basic elements of the anti-discrimination laws. Know at least what the many “protected categories” are, and, generally, what Title VII, the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”) prohibit; what “harassment” means and consists of; what you can and cannot ask in an interview; what constitutes “retaliation” and an “adverse action,” and what to do if an employee complains of discrimination or harassment.
4. Draft and keep current an employment manual or handbook which incorporates all of your company’s policies and procedures, and make sure that it is distributed to all employees and, better still, have each employee signs a receipt for it.
5. Maintain a “zero-tolerance” anti-discrimination and anti-harassment policy in your company. Enforce it — fairly and consistently. Make sure that it includes a procedure for reporting complaints of discrimination and harassment, and the process which you will follow after a complaint is made — such as investigation and remediation. This could get complicated.
6. Respect and compliance in the workplace comes from the top down – be a good role model and exemplar of fairness and probity.
7. Conduct periodic training programs for all employees, as well as managers, in anti-discrimination, anti-harassment and anti-retaliation policies and practices. There are a ton of professionals out there who do this — as well as your employment law expert.
8. Maintain good and complete records which document everything relevant in the workplace, such as employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support and justify disciplinary measures, termination or reductions in force. This is critical if a complaint arises.
9. Inform all employees as to where and to whom to go to register a complaint, so as to give an aggrieved employee recourse if he/she experiences discrimination or feels aggrieved. Provide the name of a person designated as an EEO officer to whom such complaints can be made. Treat all employee complaints seriously and confidentially – if requested to, and investigate all claims promptly and even-handedly.
10. Know who you hire. Consistent with the anti-discrimination laws, and without violating laws relating to, by way of example, credit and criminal record privacy, the ADA, GINA (look it up!), and health record confidentiality, do a good and thorough — but legal and proper — due diligence before you hire someone.
11. As much as possible, maintain a fair, honest, and transparent workplace, and be fair and consistent with employees. Communicate with employees — in my experience the failure of communication is a major contributor to employee unhappiness and therefore employee complaints — which can easily morph into legal complaints of discrimination. And dreaded lawsuits.
Double secret bonus tip: A diverse workplace is generally a more satisfied workplace. And more productive. With employees less likely to have grievances (if the employer is fair and honest). And less likely to transform their grievances into employment discrimination claims.