Author: Michael Arnold, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC
Most employers are well aware that they must and should prevent discrimination in the workplace. Indeed, failing to curb discrimination can be costly and result in increased employee turnover and absenteeism, lower employee morale and productivity, and higher insurance premiums and defense costs, among other things. Therefore, it is important for employers to be proactive and prevent discrimination from occurring in the first place. To accomplish this goal, employers should consider the following steps:
Step 1: Become Familiar With All Applicable Antidiscrimination Laws
As a starting point, employers should obtain a firm understanding of the various discrimination laws applicable to them. Employers often mistakenly believe that compliance with federal antidiscrimination laws, like Title VII is sufficient. However, many employers must also comply with antidiscrimination laws at the state and local levels. Those laws may offer greater protections against discrimination than federal antidiscrimination laws.
For example, some states have state antidiscrimination laws which, unlike Title VII, prohibit employers from, among other things, discriminating against employees on the basis of sexual orientation. While an employer would not violate Title VII if it terminated an individual because of his or her sexual orientation, that employer would violate the state antidiscrimination law.
Employers can familiarize themselves with these laws by having the appropriate employer representative(s) periodically attend training seminars and review literature regarding discrimination in the workplace.
Step 2: Develop and Implement a Comprehensive Antidiscrimination Policy
After developing a sufficient understanding of the applicable antidiscrimination laws, the next step is to create a broad, or broaden an existing, antidiscrimination policy. Some state antidiscrimination laws may even require employers to maintain an antidiscrimination policy. Such policies allow an employer to make clear to its employees the types of behaviors that it will not tolerate in the workplace. Any antidiscrimination policy should use clear and concise language, be easily understood by the employee and include the following:
- A broad and explicit policy that the employer strictly prohibits discrimination and harassment in the workplace.
- Clear definitions of discrimination and harassment, including examples where appropriate. It should also identify each class protected against discrimination and harassment (e.g., race, color, sex, age, religion, etc.).
- Language regarding the policy's application of its protections beyond the workplace. It should apply anywhere employees act on behalf of the employer (e.g., at an off-site client meeting) or attend an employer-sponsored event (e.g., holiday party).
- Workable complaint and reporting mechanisms. Any policy should encourage employees to report discriminatory or harassing conduct through the appropriate channels, outline the employer's investigation procedures, and promote confidentiality.
- Broad antiretaliatory and disciplinary provisions. Any policy must have teeth. Employees must believe that they can complain without fear of reprisal in any form, and that the employer will issue the appropriate sanction, including termination, against any individual found to have discriminated, harassed or retaliated.
Employers are well-advised to consult experienced employment counsel to assist them draft a policy. Once the policy is finalized, it should be distributed to all new employees upon hire, and to all existing employees at least annually, and on an as-needed basis. Employers should require that each employee review and acknowledge the policy each time it is distributed, and retain employee acknowledgments in personnel files. Employers should also review their antidiscrimination policies periodically and modify them to account for any changes in the law (or to otherwise make them consistent with their business objectives).
Step 3: Develop and Institute Mandatory Antidiscrimination Training Programs
Employers need a policy that is put into practice. Therefore, it is necessary to develop and institute appropriate antidiscrimination programs designed to train employees on how to understand and abide by the employer's antidiscrimination policy. More generally, however, these programs should highlight the employer's goal of eliminating discrimination and harassment and otherwise reinforce the employer's values of professionalism and mutual respect in the workplace.
Training should occur periodically (at least annually) and attendance should be mandatory. In fact, some state laws require employers to conduct these training programs. All employees should be required to sign acknowledgments regarding their attendance and that they were encouraged to ask questions about the company's antidiscrimination policies and procedures. Employers should maintain these signed acknowledgments in the employees' personnel files. Further, any program should be comprehensive in nature and should:
- Ensure that employees are aware and continue to be aware of the employer's policies and procedures regarding discrimination and harassment, including how to report allegations of discrimination and harassment and prohibitions against retaliation;
- Extend well beyond issues related to sexual harassment to ensure that employees become familiar with all aspects of discrimination, harassment and retaliation; and
- Encourage employees to participate during the program and provide real world examples. This not only makes the training program more interesting and fulfilling, but will allow employees to better recognize and report discrimination and harassment when it actually happens.
Employers should also develop a separate or enhanced program for supervisory or managerial employees that also focus on how to recognize and report discrimination and harassment, as these employees serve as the employer's first line of defense to its prevention efforts. They must also be aware that they will be disciplined for failing to report discrimination or harassment or for retaliating against a complaining employee.
Employers should ensure that an experienced HR professional or employment counsel conducts any training program.
Step 4: Be Prepared to Investigate Complaints of Discrimination or Harassment
In addition to a broad antidiscrimination policy and training program, employers must also create the appropriate investigatory procedures in order to effectively resolve complaints of discrimination and harassment once they are reported. Employers should consider the following when investigating a complaint of discrimination or harassment.
Investigate PromptlyDo not delay - as soon the complaint is reported, begin to investigate. Employers should treat all complaints seriously, no matter how trivial they may appear from the outset.
Select an InvestigatorSelect an individual, usually an HR professional, who is well-versed in handling discrimination or other employee complaints, to investigate. Selection of a third-party investigator such as outside counsel or a consulting firm may be appropriate depending on the severity of the alleged incident, if an employee levels discrimination charges against a high-level official within the employer's organization, and/or if the employee decides to publicize the complaint.
Conduct Interviews and Review EvidenceConduct the appropriate interviews and review documents. Start with the complaining employee, and inform him or her that the complaint is being taken seriously. Encourage the employee to be open and honest about the events surrounding the complaint so that a fully-informed decision can be made. Next, interview the alleged wrongdoer and obtain his or her version of the events. Finally, interview any other employee that could assist in determining whether any discrimination occurred. Also review any relevant documents, such as emails between the employees.
Consider ConfidentialityInform the complaining employee and other interviewed employees that, to the extent possible, steps will be taken to ensure confidentiality and to protect against unnecessary disclosures. Communications made to others should be made on a limited need to know basis.
Prevent RetaliationMake sure that the complaining employee is not retaliated against under any circumstances. Employers must be aware that unlawful retaliation extends beyond standard adverse personnel decisions such as terminations, demotions and salary reductions, and includes any action that would have dissuaded a reasonable person from having complained in the first place. Further, unlawful retaliation may occur even if no discrimination did, and it is not uncommon for an employer to prevail on a discrimination claim, only to lose on a retaliation claim.
Document the InvestigationThe investigator should take detailed notes during the interviews. Document each and every step taken to conduct the investigation, including who was interviewed, when and where, and who was present for the interview. Identify any documents (including emails) reviewed as part of the investigation. Prepare a report summarizing the findings from the investigation and recommending proposed disciplinary actions. If no disciplinary action is warranted, state the reasons why.
Take Appropriate Disciplinary ActionWhen the investigation is complete, inform the participants, and immediately take the appropriate disciplinary action against the alleged wrongdoer. The type of disciplinary action will always depend on the circumstances, including the severity of the action, and may range from further antidiscrimination training or counseling, to a warning or suspension, or even termination. Even if an investigation proves inconclusive, additional antidiscrimination training or counseling may be warranted.
Step 5: Analyze Business Decisions for Unintentional Discrimination
Employers must also be aware that discrimination may result when an employment practice that is seemingly neutral on its face (e.g., a standardized test for applicants), negatively impacts a protected class of employees. In this case - called disparate impact discrimination - the discrimination is not the product of any bad intent; instead it results from neutral decision-making.
For example, consider a reading proficiency test given to job applicants. While a reading test is not discriminatory on its face, it could disproportionately affect learning disabled individuals. To defend against a disparate impact discrimination claim, the employer would be required to demonstrate that the reading test is job-related and consistent with business necessity. If the employer at issue here was a manufacturer seeking to hire manual laborers to populate its assembly line, then it is unlikely the employer could make this showing. If, however, the employer operated a tutoring business seeking to hire reading tutors, then it could possibly make this showing. The employee would only be able to prevail if he or she could then show that a less discriminatory alternative practice was available.
To prevent this type of discrimination from occurring, employers should carefully analyze their business decisions to determine whether they adversely impact a protected class of employees, including by running statis tical analyses, or where appropriate, validation tests, and if the business decision does adversely impact a protected class of employees, the employer should then determine whether it is related to the skills necessary to perform the job or is otherwise necessary to operate the business, and even if so, whether a less discriminatory or even neutral alternative practice is available.