7 Steps Your Business Can Take To Avoid Discrimination Claims

If your business has employees, you know that managing them is a daily process, and often challenging.  One challenge you want to avoid is a discrimination claim, in which an employee claims that they have been treated in some manner that violates federal or state employment law.

This is a complicated and evolving area of the law, and many employers find it hard to keep up with changes.  But there are some basic steps you can take to prevent a discrimination claim, including:

• Don’t base hiring, firing, promotion, and other employment decisions on color, race, sex, religion, disability, age, or national origin. Under federal and state law, these are “protected classes” and employers cannot use them in making employment decisions.  That does not mean an employer cannot make an employment decision, such as promotion or termination, involving an employee who falls into one of these categories as long as their being in that category is not the basis of the decision.  For example, you can decide not to promote an employee if their job performance doesn’t support the promotion, even if they fall into one of the protected categories, but you can’t refuse an employee a promotion because your clients say they don’t like dealing with that person because she is a woman, African-American, or over 40 years of age.

• Note that sexual orientation is not a protected class under federal or state law, but many employers are including this category voluntarily, stating that they will not discriminate on this basis in making employment decisions. You may find this is a positive in your hiring, even among applicants who are not gay or lesbian, but value your commitment to diversity.

• Have written policies in place that prohibit harassment of employees based on these protected categories. Make them part of your employee handbook, ensure that all employees, including managers, are educated on these policies, and have them sign a written acknowledgement.  Be prepared to investigate harassment claims and discipline the person doing the harassment if you determine that the claims are true.  Don’t ignore these claims or your company could be held liable in a lawsuit.

• Have a complaint process that employees know about and are required to follow. This will protect your company better than if you have no policy or a policy that you as the employer don’t follow. Tell claimants that you will handle their complaint as confidentially as possible, but do not guarantee confidentiality as this is not always possible.

• Pay male and female employees equally for doing the same work, unless you can justify the pay difference based on required education or experience. If you hire two entry-level employees to do the same work, but pay the male more than the female hire for no other reason than their sex, you are inviting a discrimination claim.

• Provide reasonable accommodations for an employee who discloses a disability and requires some changes to perform their job. This can be as simple as short breaks, or a different kind of chair or floor mat. Under the Americans with Disabilities Act (ADA), if an employee asks for an accommodation due to a disability, you have an obligation to discuss with them what kind of accommodation will be effective and reasonable, as long as they can still perform their duties.  If there is no reasonable accommodation, then you may not have to provide one.

• Keep good employment records! Document employment decisions as well as any counseling or disciplinary actions. If an employee brings a discrimination claim, good records can be critical to dismissing the claim.  Without documentation, you are at a real disadvantage in defending your actions.

Running a business with employees means dealing with employment law and employee issues on a daily basis. Remember that senior management of the business defines the culture of the company and sets an example for all employees.  Both your words and your actions should demonstrate that you value fairness, equity, and diversity, and will not tolerate discrimination or harassment.  This can only benefit your business in the long run.