December 5, 2012
Mitigate the risk of discrimination lawsuits.
For many years, the federal and state governments have had legislation with the stated goal of preventing employment discrimination. They created departments to investigate and prosecute allegations, which can be damaging—even if they are determined to be false. Regulations against discrimination are complex. Many are not intuitive. Employers should comply carefully with federal and state law.
Whether these laws achieve their stated goals or reduce discrimination requires an examination of employment data and other factors over time. Economics has contributed much scholarship to understanding discrimination. This column does not examine the effectiveness of these laws or economic issues. Rather, it discusses litigation risks and suggests precautions that employers can take to mitigate them.
Prejudice and discrimination are not the same. Prejudice is an attitude and state of mind. Discrimination is an action whereby, for prejudicial reasons, one treats members of one group less favorably than one treats similarly-situated members of other groups.
The groups of people covered under discrimination laws are referred to as “protected classes.” Federally protected classes are based on race, color, religion, gender (including pregnancy), national origin, disability, age, and genetic information. State law may protect additional classes. Beyond the federal law, New York also covers people with regard to sexual orientation, marital status, domestic violence victim status, criminal convictions, and garnishment of wages. The Equal Employment Opportunity Commission (EEOC) enforces and prosecutes federal employment laws. States have their own enforcement divisions.
Employers should adopt neutral policies and practices. Wherever possible, policies should be related to the job and the business’ operations. Even where there is no discrimination, articulate and neutral policies help guard against accusations where nondiscriminatory factors, separate principled decisions, the pool of qualified applicants or employees, or mere chance result in disproportionate representation.
Nevertheless, even innocent disproportionate under-representation of a class can be problematic. Authorities could pursue a case based on statistical disparities even where no alleged victim claims to have experienced discrimination. The financial costs of defending against such charges can be enormous.
Employers should think carefully about all aspects of employment. Job advertisements should never express a preference for or discourage someone from a particular class from applying. For example, expressing a preference for women may discourage men. Seeking recent college graduates may discourage older candidates.
Employers should not withhold applications from anyone based on their membership in a class. If the employer administers a test to applicants, it should be used to determine a worker’s qualifications that are necessary and related to the job. Pre-employment inquiries should be limited to those things necessary to determine whether an applicant is qualified. Employers should not request applicants’ photographs or inquire into organizational memberships that would indicate the person’s membership in a class.
After hiring employees, employers must be cautious with regard to other issues and terms of employment. They should hang all posters and notices required by federal and state law. They cannot base job assignments, promotion decisions, pay differentials, discipline, discharge, or the issuance of references on employees’ membership in a class. The law prohibits harassment, which can take the form of slurs, graffiti, derogatory or offensive comments, and conduct. Offhand comments, simple teasing, and trivial isolated incidents are not actionable. If it is severe or frequent, and it creates an offensive or hostile work environment, it can constitute harassment, which is illegal.
In some instances, federal law requires a workplace or policy exception known as a “reasonable accommodation.” Employers may have to provide these on account of an applicant or employee’s disability or religious observance. Where applicable, employers are required to provide such an accommodation if it does not cause significant expense or difficulty for the employer.
Under the Americans with Disabilities Act (ADA) and the subsequent amendments, employers cannot discriminate because of an actual or perceived disability. An employer may have to provide disabled applicants and employees with an accommodation, such as a wheelchair ramp. An employer can establish a dress code that applies to all employees or those within certain categories of employment. If the code conflicts with an employee’s religious practice, the employer may need to provide an accommodation.
Employers who are unsure about how to handle a particular situation should consult with legal counsel.
Editor’s note: This column does not constitute legal advice.