Discrimination lawsuits are often long and costly procedures. It is a good idea for employers to review discrimination laws and consider whether they have polices or practices in place that may violate them. Federal employment equality laws cover a wide range of employment situations and prohibit both direct and indirect discrimination. With federal law providing basic protection, many states and municipalities offer additional protected categories and safeguards against discrimination. To be sure your company is compliant with all applicable laws, you may wish to consult an employment attorney who is knowledgeable about discrimination.
Discrimination is prohibited at all stages of employment, beginning with the application and hiring process. Employers may also not discriminate when it comes to promotion, compensation, reassignment, perks and benefits, training, disability leave, and retirement. Employers should also be careful about discriminatory practices when disciplining or firing employees.
Companies may not engage in either direct or indirect discrimination. Direct discrimination includes actions such as requiring applicants to belong to a specific gender, race or religion. It also can occur in the form of penalizing employees for failing to belong to a preferred category. Refusal to promote, unequal pay and denial of training opportunities can all be the basis for accusations of discrimination.
Indirect discrimination may occur when a company’s practices unintentionally affect a substantial proportion of a protected group. It is important for employers to know that they can be found to be engaging in discrimination even when they did not intend to. One way to effectively reduce the potential for disparate impact discrimination claims is to be sure to have a solid, job-related basis for every rule and requirement.
Other types of discrimination include harassment and retaliation. If an individual is harassed in the workplace based on his or her race, national origin, age, disability, gender or religion, the employer may be held responsible. It is up to each business owner to monitor the workplace and establish procedures to effectively deal with on-the-job harassment. Even if the head of the company is not the source of the harassment, he or she bears the responsibility of preventing it. Employers should have a clear and publicized process for employees to report harassment and for Human Resources to investigate and address such reports, including disciplinary consequences for employees who harass others.
Employers may also not retaliate against employees who are involved in discrimination allegations, no matter if that employee made the complaint, spoke with investigators or went on record to oppose discriminatory practices. In many workplaces, such employees may be seen and treated as troublemakers. However, adverse action against them, including reassignment or denial of promotions and bonuses, can be grounds for a separate discrimination claim. In addressing the issue of retaliation, it is important to note that an employer can be found guilty of retaliating even if the initial discrimination case ends up being dismissed. Thus, if the need arises to discipline an employee involved in a discrimination claim, be sure to thoroughly document the circumstances.
Legitimate Job Requirements
Sometimes, practices that may appear discriminatory can be necessary for the proper performance of the job. The law allows exceptions for bona fide occupational qualifications; however, once the existence of discrimination is proved, the burden is on the employer to show the business necessity of its requirements. For example, a church is allowed to require clergy to adhere to its particular religious denomination. Age limits, gender preferences and physical appearance or ability requirements can similarly constitute legitimate necessity. On the other hand, race and national origin are highly unlikely to ever be justified. If a potentially discriminatory requirement appears necessary, the employer should first consider whether there is a non-discriminatory way to address it. Instead of requiring employees to be U.S. citizens, employers may look for persons authorized to work in the United States.
Employment discrimination is a thorny issue for many employers. Familiarizing yourself with the basics of applicable federal, state and municipal law is a good first step in setting up company procedures that are legally compliant.
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