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Shore up your defenses against employment discrimination claims

Many employers believe they’ve taken adequate steps to prevent employment discrimination. And yet, it happens. The Equal Employment Opportunity Commission (EEOC) received 76,418 charges of workplace discrimination in fiscal year 2018 and, as a result, obtained $505 million for victims employed in the private sector, as well as by local, state and federal government agencies.

In short, the financial cost of a single claim can be devastating. Even if you successfully defend yourself, you’ll still incur the expense of retaining legal counsel, not to mention the ill effects on employee morale, productivity and your reputation. To keep the likelihood of a claim low, you need to regularly shore up your defenses and ensure everyone is abiding by a strict antidiscrimination policy.

Implement a strong policy

The precise content and wording of your policy is something to work out and review with your employment law attorney and HR advisors. But, in general, the policy should:

  • Reflect Equal Employment Opportunity (EEO) laws and evolve based on the most recent court decisions, EEOC settlements and regulatory guidance,
  • Require HR managers and staff to keep up with EEO laws and regulations,
  • Mandate that managers, supervisors and employees regularly sign off on the policy’s content (even if it’s not updated),
  • Include a “no exceptions” clause stating that you’ll enforce the policy in all cases and hold anyone violating it accountable,
  • Promote an inclusive culture in the workplace by fostering an environment of professionalism and respect for personal differences,
  • Establish neutral and objective criteria to avoid subjective employment decisions based on personal stereotypes or hidden biases, and
  • Encourage open communication and early dispute resolution, which may minimize the chance of misunderstandings escalating into legally actionable EEO problems.

Hire and promote carefully

Although many discrimination claims arise from acrimonious terminations, the hiring and promotion process is also a common culprit. Here are some principles to keep in mind:

  • Implement EEO practices designed to widen and diversify the pool of candidates considered for employment openings, including positions in upper management.
  • Monitor EEO compliance by conducting self-analyses to determine whether current employment practices disadvantage people of protected groups or treat them differently.
  • Analyze the duties, functions and competencies relevant to each position; create objective and relevant qualification standards; and consistently apply them when assessing candidates.
  • Ensure that selection criteria, such as education requirements, don’t disproportionately exclude certain racial backgrounds or other protected groups.
  • Offer easy access to promotion criteria, as well as any internal job openings.

Think about it

The many points above may appear to be a daunting “to do” list — particularly if you haven’t given much thought recently to preventing workplace discrimination. But it’s worth the effort given that even the strongest safeguards against missteps can break down over time. Please contact us for more information.

© 2019

Laura L. Stover, SHRM-SCP, SPHR, lstover@sek.com

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