In Utah, there was more than a 140 percent increase in the number of workplace discrimination claims brought in the last decade. Moreover, in the wake of the #MeToo movement, there has been a substantial increase in the number of charges of discrimination filed against employers nationwide, particularly sexual harassment charges. In FY2018, the EEOC’s litigation attorneys filed 41 separate sexual harassment federal lawsuits, which was more than a 50 percent increase from the previous year, and the EEOC recovered nearly $70 million for victims of sexual harassment through administrative enforcement proceedings and litigation – an increase of more than 22 percent over FY2017.
Responding to a charge of discrimination puts an enormous burden on a company’s financial and human resources. As a result, it is critically important for employers to take steps to prevent discrimination charges before they are ever filed. Employers need to be vigilant during all phases of the employment relationship – during the hiring process, the firing process and all the time in between.
The Hiring Process
Discrimination in the hiring process happens when an employer selects a candidate based on criteria other than the applicant’s qualifications. To avoid discrimination claims in the hiring process, an employer first needs to carefully analyze the duties required for the position being filled. The employer should determine the specific education and experience qualifications for job candidates for the position and should require only those qualifications necessary to perform the required duties of the position.
During the interview process, the interviewer(s) should only ask questions designed to determine whether the applicant meets the qualifications for the position and should avoid asking questions that are not specifically geared to finding out that information, such as: How old are you? How many children do you have? What church do you go to? Have you ever filed for workers’ compensation benefits? Interviewers should have training about the nuts and bolts of how to properly conduct interviews. They should also receive training regarding the basics of Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), etc., so they avoid asking questions that would likely lead to a charge of discrimination, if the candidate did not get the job.
During the Employment Relationship
A company’s culture is the single most important factor in avoiding charges of discrimination. If the highest-level executives in a company make it clear that all employees are to be treated with dignity and respect and that the company has zero tolerance for discrimination or harassment, that attitude will permeate throughout the workforce.
To avoid charges of discrimination, a strong, well-written and easy-to-understand policy prohibiting all forms of discrimination or harassment is essential. It is critical that the policy provide for at least two, and preferably several, different persons to whom complaints or reports can be made. When a complaint or a report of discrimination or harassment is made, it should be taken seriously and investigated promptly and thoroughly.
Periodic training of all employees about the company’s policy and the prohibition against discrimination and harassment is also vital in avoiding charges of discrimination. In addition, managers and supervisors should be trained to understand that eliminating discrimination and harassment in the workplace is their responsibility.
The Firing Process
Although most employees are at-will employees and can be fired for any reason or no reason (except an unlawful reason), the reality is that there is always a reason for every discharge. To avoid a charge of discrimination, employers should be sure that the reason is legitimate. This is even more important if the employee being discharged is a member of a protected class. The employer should create and maintain all relevant documents that support the reason for the termination, including performance reviews, disciplinary warnings, etc. The person responsible for delivering the termination message – oftentimes HR is involved – should always be sensitive, respectful and professional. The message should be truthful, succinct and consistent with the relevant documents.
To speak to Derek about this or other employment-related questions, call (801) 532-1234 or send an email to dlangton@parsonsbehle.com.
