How to Better Avoid Harassment and Discrimination Lawsuits
You can’t escape the stories on the news these days. Some very high profile names are being brought down with charges of harassment and even more companies are being charged with discrimination. The EEOC statistics for 2016 say that every day over 300 managers face their worst fears: being caught in the middle of lawsuits brought on by employees. You can’t afford to be unprepared for these legal nightmares for which managers can be held personally liable. Harassment and discrimination lawsuits are no longer something that happens in “other companies”.
If this happens in your organization, the amount of damages could run into hundreds of thousands of dollars … a cost to your organization you don’t want to be responsible for causing. Plus, you could find yourself paying penalties, judgments, and fines out of your own pocket!
Don’t be caught off guard with a discrimination, leave, or harassment lawsuit! You need to be armed with the knowledge that will help you handle these tough situations and prevent them from happening to you and your organization.
Here are 50 best practices top companies live by to try and prevent harassment and discrimination on the job:
- Make the business case for anti-discrimination, harassment, and retaliation practices. When training management, don’t just explain the law—be clear about why it matters to the business and its customers, management, and employees.
- Check state and local laws and reference them in organization policies and procedures.
- Include the EEOC 1980 Guidelines wording in policies, but also reference all protected class harassment prohibitions.
- Help managers and supervisors understand the two forms of unlawful harassment; provide lots of commonsense and easy-to-understand examples of acceptable and unacceptable conduct—blatant as well as subtle forms.
- Distinguish unpleasant vs. unlawful conduct—but prohibit both.
- Include retaliation prohibitions in policies, procedures, and practices. Consider a stand-alone policy for additional emphasis.
- Emphasize the cost of individual liability when training managers and employees about expected conduct.
- Remember that members of the same race can discriminate against each other.
- Review selection or screening practices dependent on technology as well as background checks to ensure no adverse impact.
- Don’t view the validity of religious beliefs narrowly, permit proselytizing that impinges on others’ rights, or allow intolerant conduct based upon religious beliefs.
- Consider the legal difference between the reasonable accommodation requirements under Title VII, the ADA, and USERRA.
- Emphasize the business need to foster a reasonable accommodation mind-set.
- Develop objective, measurable guidelines for compensation decisions to be applied consistently and uniformly within job classifications, work groups, departments, or business units.
- Revise document retention policies to determine how long compensation decision documents are maintained.
- Audit past compensation practices to collect data on factors, such as prior work experience, that may be critical in explaining the historical development of current pay differences.
- Audit compensation decisions and practices going forward to ensure sufficient documentation supporting compensation decisions and address inexplicable statistical disparities.
- Revise pay systems, as permitted by business considerations, to emphasize incentive or bonus payments instead of large base pay increases, and avoid accumulation of pay differences over time.
- Review treatment of employees with temporary disabilities and monitor to ensure pregnancy is treated no differently than other temporary disabilities.
- Before adopting an English-only rule, consider whether there are any alternatives that would be equally effective in promoting safety or efficiency.
- Beware of trigger words in job ads, such as “young,” “college student,” “boy,” “girl,” “excellent first job,” “recent grad,” “retired persons,” “supplement your pension,” or “all- American type.”
- Prohibit ethnic, gender, or related jokes; “over the hill” birthday celebrations, etc.; and other forms of questionable teasing.
- Write releases to be easily understood by the average employee. Add an express disclaimer clarifying it doesn’t limit the employees’ right to file a charge or participate in an investigative proceeding of the EEOC or other governmental agency.
- Don’t reuse legal documents such as settlement/release documents, employment contracts, non-compete agreements, etc., without first consulting counsel.
- Review the use of pre-employment personality tests that may reveal the existence of a mental disability to avoid allegations of an ADA-prohibited medical examination.
- Formalize an internal process for addressing reasonable accommodation requests. Review existing procedures for ADA compliance at every stage, including hiring, medical testing, accommodation, leave, and termination.
- Review and revise job descriptions—they’re the starting point for individualized assessments regarding required accommodations.
- Review employee referrals that may replicate the demographic makeup of the existing work force and perform an adverse impact analysis.
- Prohibit social media use or other digital communications by employees that harass, threaten, defame, libel, embarrass, disrespect, or offend coworkers and customers. State prohibitions don’t apply to Section 7 activity.
- Create an “acceptable use of employer’s systems” policy that provides employees have no reasonable expectations of privacy, acknowledges management rights to access equipment and passwords, requires authorization for software downloads, and emphasizes respect for online intellectual property.
- Require employee consent on dual-use devices for the following:
- Monitor the device, including data stored or transmitted.
b. Remotely wipe the device, including any personal information stored on the device.
c. Install security software to manage the device and secure the data stored on it.
d. Comply with security measures, such as password use and locking of devices.
e. Copy data to meet litigation hold demands and record retention obligations or delete data to meet record destruction requirements.
- Address electronic or social media harassment by applying an anti-harassment policy applicable to all unlawful conduct—virtual and real.
- While being mindful of state privacy laws, utilize carve-outs for investigation of unlawful conduct, such as trade secret violations, discrimination, and harassment.
- Encourage assertive communication about unwelcome conduct to put harassers on early notice. Review what to do if a witness to or a victim of harassing behavior. Discuss how to respond appropriately when the subject of a complaint.
- Make solid business decisions about becoming a government contractor using a cost-benefit analysis.
- Review and apply OFCCP’s definition of “applicant” to online recruiting situations and harmonize with benchmark/utilization goal requirements.
- Use the impact ratio analysis to decide if selection, promotion, and termination procedures result in a disproportionately negative impact upon protected group members.
- Broaden the definition of mandatory reporters under the organization’s harassment prevention policy if the supervisory team is spread too thin and not in a position to be aware of harassment.
- Mandate any supervisor who becomes romantically involved with a subordinate must report it in order for the organization to reassess reporting relationships.
- Quickly and thoroughly investigate allegations of inappropriate conduct when the accused is a high-level manager/officer, there’s repetition of a previous problem, or there’s a time delay in reporting the problem—to forestall enhanced organizational exposure.
- When dealing with reluctant complainants, suggest they put their thoughts in writing to help them preserve a record of their complaint and to organize their thinking so they don’t forget or leave out key pieces of information.
- Perform follow-up interviews when the investigator discovers new information that requires asking additional questions not relevant at the time of the previous interview, or needs answers to reconcile conflicting evidence.
- Understand the scope of the attorney-client privilege and bring in counsel on a timely basis.
- Ensure if the organization is audited by the OFCCP or receives an EEO charge that the documentation, including applicant flow, promotions flow, and termination flow logs supports, not contradicts, the organization’s assertions.
- Write up documentation close to the time an event was observed, occurred, or reported. If there’s a delay between the time an action occurred and when it was reported, note that in the documentation.
- If the disciplinary warning for a protected employee is contradicted by performance appraisals, explain in the warning why that earlier information is now incorrect.
- Tell the truth and never rework documents. The quickest way to lose a case is to alter, create, or forge documents. This will give rise to a separate cause of action called “spoliation” and may constitute perjury.
- To address unconscious bias, identify and analyze it. An effective tool for testing one’s unconscious bias is the Implicit Association Test (IAT), created by Project Implicit. To take the IAT without charge, go to https://implicit.harvard.edu/implicit/selectatest.html
- Offer a confidential third-party complaint channel, such as an ombudsperson. Treat all complaints seriously, have a robust investigation process—objective, thorough, and completed in a reasonable amount of time—and act on reports of inappropriate behavior.
- Identify, support, and collaborate with effective programs that increase diversity in the pipeline. Find the bright spots—managers who develop their people and create inclusive environments—and showcase these leaders.
- Design and implement objective measures that provide individual and collective feedback on organizational performance with respect to inclusion.