Employment discrimination claims are all too common and can be difficult to navigate for large and small corporations.
Does your company have policies and procedures in place to address allegations of workplace discrimination? Many companies do, but has your company also considered strategies to avoid workplace discrimination before claims arise?
Below, we will discuss some strategies that your corporation can implement to prevent both intentional and unintentional employment discrimination claims before they happen, including:
- Workplace discrimination and harassment policies,
- Procedures for investigation of employment discrimination claims,
- Employee training in workplace discrimination and harassment, and
- Other considerations to prevent discrimination claims in your workplace.
Clear, Written Policies Help to Avoid Employment Discrimination Claims
The first step to control and minimize workplace discrimination claims is to have comprehensive, written policies in place.
Employment discrimination policies should be distributed to employees and each worker should sign a form acknowledging that they have read the policy and that they understand what it means.
What should be included in the policy?
A Procedure for Investigating Discrimination Complaints
Employees need to know where to take their complaints. They also need to know that their complaints will be handled professionally and confidentially to the extent possible. The company policy should outline who is responsible for receiving discrimination complaints, how those complaints will be investigated, and how and to what extent confidentiality will be maintained.
The policy should be clear that the company will maintain confidentiality whenever possible, but that the company must act once a report is made and must investigate the claim. It should be made clear that the company’s policy is that there will be no retaliation when a report is made.
Definitions of Discrimination and Harassment
The company’s workplace discrimination policy should include clear definitions of employee discrimination and harassment, including discrimination based on race, national origin, age, gender, religion, or military status.
The policy should ban all behavior that would interfere with work performance or create a hostile work environment for members of any protected class, include specific examples, and reference federal and Texas state law where employees can learn more about what is prohibited.
Who to Report Discrimination Claims To
There should be a designated person to whom employees can make reports, but there should also be alternatives in case the designated person is the harasser, or in case the affected employee is not comfortable reporting to the designated person.
- The employee’s supervisor
- Corporate officers
- Human resources
Consequences for Discrimination or Harassment
The policy should specify the consequences for any employee, including management, who engages in discrimination or harassment, including potential discipline or termination, and that the complaining employee will be informed of the investigation’s conclusions and any actions that are taken.
Time Frame for Investigations
Both accuser and accused should be informed of the length of time an investigation and resolution will take, and an immediate decision should be made in each case as to whether it is necessary to separate the parties during the investigation by transferring one to another location or by assigning a different supervisor for the complaining employee.
Your company should also have clear, written policies that specify when an employee can be terminated, when an employee will receive a warning, and when a termination without warning is justified. The policy should be followed in every case without exceptions.
Adopt a zero-tolerance policy for workplace discrimination and harassment and make sure that all employees are aware of 1) what conduct is prohibited and 2) the consequences for engaging in that conduct.
Other Considerations for Avoiding Workplace Discrimination Claims
What else can your company do to prevent workplace discrimination claims and to competently handle them once they arise?
Investigate All Claims Promptly and Thoroughly
Take immediate action and take all claims seriously. Interview all affected employees and witnesses, and document everything.
Do not fire the accused employee without first conducting a thorough investigation – if you do, you are setting yourself up for a defamation or wrongful termination claim.
Do not fire the accuser/ complaining employee for making the claim – if you do, you are setting yourself up for a retaliation claim. Make it clear to the accuser and accused that no retaliatory action will be taken against the complaining employee, and tell the complaining employee that, if there is any retaliation, they should immediately report it.
Ensure that All Management and Corporate Officers are Familiar with the Definitions
Learn the definitions of discrimination and harassment under federal law and under Texas state laws, including the different classes of persons that are protected under federal and state law.
Avoid Discrimination in Hiring
Use objective standards when hiring new employees, including their qualifications, background, education, and references.
Be aware of your company’s demographics and ensure that it matches the general workforce and community. When there is a racial discrimination complaint, for example, the EEOC may look at the racial make-up of your company’s employees and look into prior terminations and treatment of employees of the same race to see if there is a pattern of discrimination.
By eliminating both 1) actual and 2) perceived discrimination in your company, you will reduce the potential for both 1) valid discrimination claims and 2) invalid claims made by disgruntled employees.
Document Everything and Always Have a Witness
Take written statements, keep notes of your meetings and interviews, write memos for the file, and provide all warnings or terminations in writing.
Whenever you are interviewing employees regarding a discrimination claim, giving a warning, or terminating an employee, have a relevant witness present like the HR director, a corporate officer, or the employee responsible for receiving or investigating complaints, and have them complete a memo for the file after the meeting.
Maintain Confidentiality to the Extent Possible
Although an investigation must be completed and reports must be made, rigorously maintain confidentiality to the extent that it is possible. Do not discuss the discrimination claim with any person outside of management or corporate officers who need to know – if you spread an accusation that turns out to be false, you open yourself up to a defamation claim and potentially other causes of action.
Interviewers, HR personnel, managers, supervisors, and corporate officers must be familiar with state and federal anti-discrimination laws, how discrimination and harassment are defined, and what to do when an employee makes an allegation.
There should be ongoing, regular training to stay abreast of changing laws and regulations, and you should review your company’s workplace discrimination policies regularly. Incorporate new laws on employment discrimination into employee training and your company’s policies and procedures.
Please feel free to contact any of our Murray Lobb attorneys with questions about employment discrimination claims or investigations and proceedings before the Texas Workforce Commission, EEOC, and Department of Labor.
We also remain available to help you with all your general business, corporate, and estate planning needs.