IN DEPTH: LAW TODAY
From the April 1, 2005 print edition
Guest Column
Heather J. Van Meter and Sharon Peters
Almost every employer will face a discrimination
claim someday. Federal, state and local laws protect nearly all employees from
discrimination on the basis of gender, age, race, national origin, religion,
sexual orientation, disability or workplace injury. They also protect employees
from discrimination for whistleblowing, having their pay garnished and
submitting workers' compensation claims. And the list goes on.
Discrimination or wrongful termination cases are
increasingly common. Mere allegations of unlawful employment discrimination may
disrupt the workplace, harm employee morale and can be very costly to the
employer. It is important to remember that a claim is only that -- a claim --
and that the employer's everyday practices are the key to a successful defense.
Once in litigation, the burden quickly shifts to
the employer to show a legitimate reason for a decision that appears, at first
glance, to be discriminatory. Fortunately, employers have the ability to
protect themselves in the face of such claims. Below are several preventive and
investigative steps that employers should take to reduce the number of claims
and prevail in those claims that arise.
Have an employee handbook, and follow it. An ounce
of prevention is frequently worth pounds of cure. Handbooks establish the
guidelines for employers and employees, and are the best way to communicate the
company's policies and expectations. Handbooks are often written by employers,
and should be reviewed by an attorney before its implementation. The handbook
should contain, among other things, policies on nondiscrimination, performance
review and discipline, and on confidential employee complaints.
Employers frequently rely on these handbooks to
support decisions that may initially appear to be unlawful discrimination. For
instance, say a female employee who is over 40 is late for work on three
occasions in a month. The employee is terminated for her tardiness, and her
position is filled by a man in his 20s. The employer in this situation is in a
far better position if the handbook informs employees that they will be
automatically terminated if they are tardy three times in one month. A word of
caution: Employers must follow the handbook to a tee for all employees. Uneven
application can be worse than no handbook at all.
Document, document, document. The single biggest
factor in employers losing employment discrimination cases is lack of
documentation to support the employers' positions. Remember, the contents of
the documents create the story and timeline necessary to defend employers'
actions. Employers must maintain records on each employee, including all
disciplinary actions taken, special training provided (such as sexual
harassment training), and regular employee evaluations that note any areas of
deficiency.
For example, a male store manager who recently
suffered an on-the-job injury is verbally warned several times to stop swearing
around customers. He is eventually terminated because of his foul language. The
employer never documented the multiple verbal warnings given to the male
employee. When the male employee brings an injured worker discrimination claim
against the employer, there is no documentary evidence to support the
employer's legitimate actions. The case becomes one person's word against
another, and is far more difficult to win.
It is also important to give attention to the
document contents. Many employers have faced challenges to an employee's
disciplinary record because a supervisor forgets to sign or date a document, or
fails to completely describe a particular incident. A well-documented employee
evaluation and record-keeping system can prevent costly litigation or
settlements.
Investigate every claim immediately. If a
candidate, employee or former employee makes an allegation of discrimination,
prompt investigation is required. The investigation should be conducted within
a few days of the allegation, should be completely confidential, and should
follow any policies or procedures already in place. The employer should gather
all relevant documents and interview any witnesses. The interviews should be
documented, and should be conducted on an individual basis with open-ended
questions. The witness should be assured that his or her honesty and
cooperation are encouraged, and will not affect his or her employment in any
way. Employers should keep an open mind during the investigation, and should
treat the complaining person with respect despite any doubts about the
allegations. Any negative reactions by the employer could be interpreted as
retaliation. The investigation should be thoroughly documented and placed in a
separate confidential investigative file. Employers should consider having a professional
investigator or attorney investigate the allegations.
Fix any problems. Employers must address
discrimination problems immediately. Ignoring the problem will only make it
worse; and retaliating in any way against the complaining person can lead to
severe penalties. Don't be afraid to take action. Mere verbal warnings are
often insufficient to either correct a problem or protect the employer from
liability. Written warnings, retraining, counseling, sensitivity training,
demotion or termination of the offending employee are all options. Be sure to
follow up with the complaining individual to let him or her know that the
complaint has been investigated and action has been taken. Then encourage
further communication, should the problem recur.
Contact your attorney with any questions.
Employers are required to comply with dozens of federal, state and local laws
simultaneously, some of which overlap or conflict. It is nearly impossible to
keep abreast of all legal requirements while still running a business or human
resources department. Attorneys specializing in employment law likely have
immediate answers to your questions; our job is to help employers comply with
the laws and reach reasonable, practical solutions to problems. Attorneys also
provide assistance with employee handbooks, employment policies, employment
practice audits and investigation of claims.
Heather J. Van Meter, an attorney with Williams Kastner & Gibbs in Portland, focuses her practice on litigation in federal and state courts. She can be reached at 503-228-7967 or at hvanmeter@wkg.com. Sharon Peters, also a Portland attorney with Williams Kastner & Gibbs, focuses her practice on employment law advice and litigation. She can be reached at 503-228-7967 or at speters@wkg.com.