Top Tips For Avoiding Claims Of Employment Discrimination

For businesses in today’s job market, avoiding claims of employment discrimination is a constant struggle. Whether based on race, sex, national origin, disability, religion, color, or age, discrimination claims are taken very seriously in both state and federal court. While you, as an employer, may have done absolutely nothing wrong, a great majority of employment discrimination claims cost employers money and always cost them time.
However, there are ways to limit your exposure to allegations by discharged or disgruntled employees. Today, we list 5 policies to consider implementing intended to prevent and subsequently defend claims of employment discrimination. Without further ado:

• Have a Written Policy Defining Grounds for Termination in the Workplace: What do I mean when I say a “termination policy”? Provide your employees, in writing, with a pamphlet or document which explains your expectations and lays out the procedure for terminating an employee. If you have a “one-strike” policy, make it clear. If you base terminations on the number of warnings or suspensions, be sure to publicize it [perhaps post it in the break room] and rely upon it to justify an immediate termination. The only caution I will provide is that if you’re going to put a termination policy in writing, you better follow that process you describe in all cases!
  
  
• Document the File: This tip ties in directly with the first policy listed above. Documenting employee performance and any instances of misconduct can be a critical piece of evidence if later accused of discrimination. If you’ve had problems with an employee, it should be reflected in performance reviews, and any performance deficiencies should be documented immediately. Some employers even go so far as avoiding performance reviews altogether and instead only putting to paper instances of misconduct or under-performance. Here’s the key: don’t think you can rely solely on what you’ve said to employees verbally, put it in writing!
  
  
• Have a Fair Hiring Policy: People often believe discrimination claims come only from current or former employees. Au contraire my friends! The majority of federal statutes dealing with discrimination in the workplace define employees as those currently employed, formerly employed, and also job applicants. If you have a policy or pattern of refusing/failing to hire applicants from a certain protected class (age, disability, religion, race, color, etc.), expect a call from the Equal Employment Opportunity Commission. Be careful about asking any questions which could be viewed as an attempt to determine if the applicant is in a protected class, and be conscientious of all job postings to ensure they don’t demonstrate bias in your hiring process.
  
  
• When Firing, Don’t Do It Alone: This is critical. While terminating an employee is often a difficult, emotional experience, having a third party witness who can attest to your version of the events can go a long way in discrediting an employee’s later version of the events. If you have a HR manager, they should be the first person you consider. Alternatively, unless there are union or contractual provisions dictating otherwise, do not allow an employee to bring anyone else into the meeting.
  
  
• Be Careful in Not Heaping Too Much Praise on an Employee: While company and employee morale are both critical components to any successful business, good luck explaining to a judge that a now terminated employee has been a problem for years when he or she has in her hands glowing performance evaluations for the same time period. Avoid the temptation to exaggerate your review of your employees and be very careful in how often you hand out that “exceeds expectation” cookie!

Five tips alone cannot possibly cover the myriad of ways to prevent and defend against claims for discrimination in the workplace. One thing is certain, however: every company with more than three employees should have an employment policy manual. Creating an effective and legally sufficient manual is no easy task, so employers would be wise to consider seeking the assistance of competent legal professionals in the drafting process.
The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP are skilled in employment and business law. If you are interested in creating a policy to better insulate yourself from potential discrimination lawsuits, call now to arrange for a free consultation at 215-947-6240 or visit us online.

​Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.