Statistics from the Equal Employment Opportunity Commission (EEOC) show that, despite a significant increase in the number of discrimination charges filed, the number of charges resulting in a "reasonable cause" finding is relatively unchanged.
Last year, only 3.1 percent of an all-time high 99,947 charges resulted in a reasonable cause finding. Despite these numbers, the amounts employers paid to settle these charges continue to grow. In 2011, employers paid a record $364.7 million to settle EEOC charges; and, in the last decade, the amount paid grew to more than $2.7 billion. That’s more than $3,000 for every charge filed, regardless of merit. These numbers do not include amounts paid if the dispute proceeds to litigation.
The most well-known protected classes from employment discrimination include gender, race, age and disability. But, there are also protections for leaves under the Family and Medical Leave Act and workers’ compensation, whistleblowers and veterans status, among others. With so many protected classes, missteps in compliance can be costly. Let’s take a look at common mistakes businesses make that might lead to a discrimination charge.
The first mistake begins with the hiring and interview process. Employment applications (not just résumés) are encouraged as a means to get uniform information, allowing for objective comparisons of qualified candidates. During the application and interview process, questions should focus on job-related topics. Questions about age, medical conditions or prior workers’ compensation claims should be removed from employment applications and avoided during interviews. Other seemingly innocent topics, such as questions about family and children, graduation dates or religious or ethnic clothing or apparel, might cause a rejected candidate to believe his or her protected status became a consideration in the hiring decision.
Once an employee is hired, it is important to document and address any performance problems. Performance evaluations should contain honest and candid assessments of the employee’s performance. Specifically, identify areas of concern and include examples, rather than mere conclusions. Clarify job expectations, and allow for employee objec-tions to the evaluation. Where permitted by policy or practice, performance improvement plans are valuable tools, allowing employees an opportunity to improve performance. They also can provide a future basis for termination should performance remain unsatis-factory.
If discipline is warranted, it should be done as soon as practical after the conduct occurs. Where appropriate, gather witness statements and document specific reasons for discipline. Discipline weeks or months after the fact may raise questions as to whether the incident truly merited action or if the discipline served an unlawful purpose.
Most importantly, businesses must avoid inconsistent administration of policies. When an employee within a protected classification is treated differently from an employee outside that protected classification, a jury may infer that the differential treatment occurred for nefarious reasons. An innocent bending of the rules sets a precedent for future consideration. Centralized oversight of discipline by a firm’s human resources department can serve as an important tool to ensure fair and even-handed administration of discipline.
The receipt and handling of internal complaints opens a business up for a number of liability issues. The discrimination statutes include provisions prohibiting retaliation against a person who makes a good faith complaint of discrimination — even if the complaint ultimately proves unfounded. An employer may be judged on its response to complaints. Complaints should be investigated promptly, thoroughly and impartially. Interview all potential witnesses, document facts, and follow up with the complaining party to ensure that he or she understands the company has handled the complaint.
Finally, if termination is warranted, it requires a thoughtful approach. Review applicable policies. Review past treatment of employees who have engaged in similar behavior and whether they were terminated or given a second chance. Consider the timing of the termination. Has the employee recently made a complaint of discrimination, taken a leave of absence under the Family and Medical Leave Act or filed a workers’ compensation claim? Proximity to protected activity may lead to allegations of retaliation. In high-risk terminations, separation agreements may provide the best option for protecting the company.
There are a myriad of ways for employees to pursue claims against an employer. While many lack merit, defending claims is a costly endeavor. Employers need to be ever vigilant in documenting employment issues and addressing them in timely manner, consistently applying policy and avoiding issues that can open a Pandora’s box of discrimination claims.
CHRIS BAILEY is an officer in the Labor and Employment Practice Group of the St. Louis law firm Greensfelder Hemker and Gale, P.C., which serves Illinois businesses with offices in Belleville and Chicago.