Allegations of discrimination pose unique challenges for employers. Unlike other types of employment-related claims, they may result in substantial reputational damage even when complaints are unsubstantiated. Employers may also have broad responsibility for the actions of their employees, customers and others coming into contact with employees because employees must be protected from discrimination and harassment by others. To prevent, address and defend against discrimination claims, employers should consult experienced employment attorneys regarding the best ways to minimize risks and liability.
What is workplace discrimination?
Workplace discrimination is the inferior treatment of an employee because of a characteristic protected by law. These include race, color, religion, sex, national origin, age, disability, pregnancy, sexual orientation and gender identity. Discriminatory conduct can occur in hiring, firing, promotions and other terms and conditions of employment. Harassment is also prohibited as a form of discrimination. Finally, employers cannot retaliate or take adverse action against someone who reports or threatens to report discriminatory conduct.
While most people think of discrimination as overt and intentional, employers may also be held liable for business policies that have an unintentional discriminatory effect. As a result, it is crucial for employers to have an attorney review their employment policies and practices for potential concerns. An employment lawyer can also advise regarding which laws apply to the employer as the requirements may vary under federal, state and local law.
How can employees minimize the risk of workplace discrimination?
Employers should develop appropriate policies and procedures to prevent or minimize workplace discrimination. A written employee handbook is essential and should set forth the company’s policies against discrimination and outline procedures for making a complaint. Employee training, particularly for supervisors and hiring managers, is also a good idea (and in some cases, mandatory) to minimize potential discriminatory conduct.
In developing these policies, it is important to consult an attorney regarding any specific requirements under federal, state and local law. For example, sexual harassment laws in California and other places have specific provisions regarding written policies and training of all employees.
If a complaint is made, employers must follow their own written procedures, conduct an investigation and respond as appropriate. Employee allegations and the employer’s response to them must be carefully documented to justify any actions taken.
How can employers defend against discrimination complaints in California?
California has its own discrimination laws and enforcement mechanisms governed by the California Civil Rights Department (CDR). This agency is charged with enforcing the law, and employees generally have to first file their complaint with the CDR and exhaust all other administrative remedies first prior to filing a lawsuit in California state court. However, employees are able to immediately sue their employers without having to go through a CDR investigation, by requesting a “right-to-sue letter,” although doing so would prevent their complaint from being investigated by the CDR.
The state of California
The California Civil Rights Department (CDR) handles enforcement of workplace discrimination laws. When an employee files a complaint with the CDR, the process begins with the CDR reviewing the complaint and conducting an intake interview with the employee to investigate said complaint. If the CDR decides that it will not pursue the action against the employer, it will issue a right-to-sue notice to the employee, and the employee will have the right to file a civil lawsuit in court on their own. If the employee’s claims have merit, prior to filing the action, the CDR requires and subsequently invites all parties to participate in a mandatory dispute resolution-also called a mediation-in the department’s internal dispute resolution division. The parties will then attempt to reach an agreement during the mediation and, if they do, the CDR will close the employee’s case file and that will end the CDR complaint process. If no agreement is reached, however, the CDR’s investigations will resume, and they will determine whether there is probable cause that the employer engaged in discriminatory conduct. This must be done within 150 days of the filing of the complaint.
When no probable cause is found for an employee’s complaint, the CDR will close the case, notify the employee-in writing- of the closure of the case and issue the employee a right-to-sue notice. However, when probable cause is found, the CDR is required to attempt to immediately end the unlawful employment practices the employer is engaging in via a mediation or a similar dispute resolution process entitled “conciliation.” If, at that time, the case has still not been resolved, the CDR can either close the employee’s case or require the parties to attend another mediation and then file a civil action, on the employee’s behalf, with the state court. Most notably, the CDR is entitled to reject a case, even if the case has merit, based on several factors.
Employees must file a complaint with the CDR within three years of the date that the last alleged act of discrimination occurred. When an employee has gone through the CDR process and has been issued a right-to-sue letter from the CDR, the employee will then have one year to file a lawsuit in civil court against the employer commencing on the date the right-to-sue letter is issued.
What defenses exist to harassment and discrimination claims?
Defenses to discrimination claims vary depending on the law at issue. Generally, there is a defense if the employer had a legitimate non-discriminatory motive for the conduct. For instance, an employee may have been passed over for promotion because others were more qualified. The best way to prove this defense is to keep careful records on employees, including conducting regular reviews. In addition, employers should take care to clearly define what criteria is being used to evaluate employees.
Where a seemingly neutral employment policy has a disparate impact on a protected group, the employer has a defense that the policy is job-related and consistent with business necessity. The employer must show that the policy is “necessary [for] the safe and efficient operation of the business and the challenged practice effectively fulfills the business purpose it is supposed to serve,” even if that policy has the potential to harm a protected group.
Under some statutes, employers have an obligation to provide reasonable accommodation to an employee who is adversely impacted by an employment practice, such as with religious or disability discrimination. However, in those cases, the employer still has a defense if a proposed accommodation would pose an undue hardship.
Under federal law, employers are generally liable if a supervisor is the harasser, but they have an affirmative defense. Employers are not liable if they can show they acted reasonably to prevent and correct the harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. If the harasser was not a supervisor, an employer is only liable if it knew or should have known of the misconduct.
Under California law, employers have a defense to the extent that they can prove they took appropriate steps to prevent and address the harassment, but that the employee unreasonably failed to take advantage of those protections.
Employers cannot afford to treat discrimination claims lightly. Best practice is to consult an attorney about establishing appropriate preventative measures. If a complaint arises, experienced legal counsel can help determine the best way to respond.
Romano Law can provide guidance on defending discrimination claims in New York, California and Florida.
Photo by: Lala Miklos on Unsplash
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