Litigation Process For Discrimination
litigation process for discrimination
Advice for New Managers to Avoid Nightmarish Discrimination Lawsuits
Worker-discrimination lawsuits – filed by the Equal Employment Opportunity Commission (EEOC) – are traumatic experiences, especially for new managers and entrepreneurs. So beware, the number of discrimination lawsuits is skyrocketing.
Two years ago, EEOC-related cases resulted in massive monetary damages – an aggregate $54.8 million. In 2008, the EEOC charged 95,402 companies with employment violations. The monetary damages totaled $102.2 million.
In 2009, there is seemingly an unending wave of EEOC investigations, as well. To meet the heavy caseload, the EEOC Web site indicates the agency is on a hiring binge – from attorneys to support staff and IT personnel.
And that’s just the federal cases. State courts across the nation are filled with discrimination cases, too, because complainants want to avoid the federal caps on monetary damages.
Historically, high-profile harassment cases are a catalyst for additional complaints by other workers. EEOC cases also lead to declining morale, retention problems and poor productivity, which are also costly.
So it is imperative for new managers to implement measures to prevent problems.
The six basics for micro-companies:
1. Get a mentor and join your local chamber of commerce.
2. Consider outsourcing your payroll.
3. Implement benefits and retirement plans.
4. Create a policy and procedures handbook (job descriptions, hiring, appraisals, compensation, firing and operations).
5. Stay aware of all employment laws.
6. Document everything.
For larger companies, every company’s situation is different. In my experience, it’s important to learn how and why complaints are filed, and to treat employees with respect and confidentiality.
The key is to start where the proverbial tire meets the road – when employees are hired.
To avoid EEOC headaches, here are 13 strategies:
Fully understand the required skillsets. Naturally, first decide what each job requires. When a person leaves, decide what additional qualities you want in the job description. While experience and skills are an important consideration for meeting your requirements, there are several other considerations, so take your time.
Keep in mind the three A’s of hiring: Attitude, appearance, and ability – in that order – to fit both your culture and customer service initiatives.
Review your application process. The appearance of discrimination can be unfortunate opportunities for applicants or the EEOC to file complaints regarding your hiring decisions. Review your interview checklist questions and employment applications so that you only inquire about applicants’ talent for the job and availability for attendance according to your required work hours.
When anyone requests an application stay safe by providing it, but don’t do it selectively to avoid the appearance of discrimination. Don’t set deadlines for applicants to apply unless you strictly adhere to them.
Interviewing. When you interview, ask open-ended questions to get the applicant to talk about any issues related to the job. Closed-ended answers in which an applicant answers with a “yes” or “no” won’t be productive. You’ll want to know about the person’s attitudes, expectations and values. A skilled interviewer is careful about commenting on an applicant’s answers.
Background checks. A background check is critical. If you ask questions of a reference or former employer, make certain to take the same precautions as you do with the applicant. If you utilize credit reports, adhere to the provisos in the Fair Credit Reporting Act.
Making an offer.Put your offer in writing to successful applicants, but stipulate that you’re an at-will employer. State the salary in weekly or monthly amounts – so that longtime employment tenure is not implied – and whether there are any contingencies, such pre-employment medical exams. Hopefully, you have highly trained interviewers, but make clear that the letter is your company’s last word in employment and that it supersedes any other representations by interviewers.
Drug testing is often valuable for screening purposes. Applicants with a drug history will sometimes withdraw their applications, but the test is effective for those who don’t. In my experience, drug users are the most dishonest employees – at a much higher rate than even alcoholics.
Insuring success. Make full use of your probationary period. Assuming an employee adequately demonstrates technical skills, remember the No. 1 employer-complaint about new hires is their lack of soft skills – a poor attitude and inability to communicate effectively with coworkers and customers. Appraise them accordingly.
Employee handbook. For legal and productivity reasons, the employee handbook should be utilized to inform employees of your expectations. But clearly state a disclaimer – it’s not an employment contract – employment is conditional. Either party may terminate without cause or notice. Preferably, employees will be given an acknowledgment form regarding their at-will employment status.
The handbook should include policies such as attendance, benefits, vacation, employee-monitoring systems, probationary periods, sick leave, and FMLA (family and medical leave, if you employ 50 or more workers).
Make clear the company will not tolerate harassment and the procedures for reporting it. Remember, employers are liable for behavior of their employees. Should harassment allegations be raised by an employee, be sure to follow through with an immediate investigation and discipline, if proven, and don’t tolerate retaliation. Sexual harassment training, in particular, should be regularly given.
Avoid favoritism. Be consistent make sure of adherence to policies.
Be proactive about workplace complaints. Do not avoid taking action. Make sure you are actively listening.
Safety counts. Be empathetic and show respect. Be safety conscious.
Wage and hour practices. Stay current with all state and federal wage and hour laws and regulations. Some companies have run into trouble because their hourly employees are working longer hours as exempt managers and not paid for overtime. Carefully document your records.
Of course, try to be competitive in pay and benefits.
Continuous policy training. To insure success, make certain managers, human resource interviewers and workers are knowledgeable about your business policies. You’ll be in a better position to prevent harassment, hire correctly and appraise employees accurately. You’ll also be in a stronger position, if you do encounter the threat of litigation. Stay on top of all details, but also be mindful of the protected classes of workers to avoid federal intervention.
Evaluations and terminations. Supervisors and managers must be schooled in worker behavior, performance and if necessary, terminations. Not to oversimplify, but remember every employee is entitled to know three things: What’s expected; what’s in it for them; and how they’re doing.
Make certain that terminated employees can’t conclude they’re being let go for reasons of discrimination. Again, that means documentation and thorough footwork.
These minimal reminders will help you to avoid employment and EEOC traps. However, if you do find yourself in the EEOC crosshairs, be careful how you respond in crafting your position.
Resource links:
- U.S. Department of Labor, http://www.dol.gov
- U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov
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