3 Ways to Avoid Employment Discrimination Claims in 2013

Take labor laws seriously to stay off the EEOC radar

Posted by Dawn Lomer in Code of Conduct, Human Resources on March 14th, 2013

Judging by the 99,412 private sector workplace discrimination charges filed with the EEOC during fiscal year 2012, it’s clear that employers still need some help understanding how to avoid discrimination claims. The year-end report from the EEOC also showed that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were the most frequently filed charges.

The total cost of those claims to employers: $365 million. That’s a lot of money paid out for discrimination claims that could have been avoided.

So how do employers make sure they don’t become one of these EEOC enforcement and litigation statistics in 2013?

Understanding labor laws is the first step in knowing how to hire, fire, promote and discipline employees lawfully. In some organizations, systemic discrimination happens unconsciously, but it’s doubtful the EEOC will accept that as an excuse. Review and monitor policies, practices and your organizational culture.

Hire Fairly

Discriminating against job applicants from a protected class is a surefire way to have the EEOC knocking on your door. Never ask questions that directly or indirectly solicit information about a candidate’s inclusion in a protected category. These can include questions about the candidate’s:

  • Age
  • Disability
  • Religion
  • Race
  • Color
  • Gender
  • Marital status

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Asking about these subjects before or during an interview can be seen as an intention to discriminate.

Ensure job postings are written in a way that doesn’t exclude members of a protected class, and even some unprotected classes, from applying.

Fire Fairly

Not only do employers need to use fair hiring practices, they also need to avoid wrongful termination lawsuits. A CIO article by Meridith Levinson, “How to Fire People the Right Way,” reports that employers can expect to pay between $50 000 – $250 000 for wrongfully terminating an employee.

Avoid these claims by documenting employee performance and any instances of misconduct. If you’ve had problems with an employee, it should be reflected in performance reviews, and any performance deficiencies should be documented.

Many managers fire employees after having multiple conversations with them about their performance, but if they have not documented any of the conversations in employees’ HR files there is no proof that the employee was notified of any deficiencies and given a chance to fix them. Without documentation an employee may have a strong case for wrongful termination.

Stick to company policies and disciplinary procedures and let the employee know why they are being reprimanded or terminated – don’t leave them guessing, and don’t dance around the truth. If an employee complains about a co-worker harassing them, make sure you investigate the claims before drawing conclusions about terminating the employee.

Take Complaints Seriously

When an employee or group of employees complains about harassment, discrimination or any other type of misconduct, take it seriously. Document the complaint, start an investigation and keep the complainant(s) informed.

An employee who thinks you’re not taking his or her complaint seriously may decide to take it to an outside agency. Once that happens, you will be on the defense before you have even had a chance to rectify a problem that may have been easy to fix.

Pay careful attention to complaints of retaliation. In 2012, 38.1 per cent of the total number of charges received by the EEOC were for retaliation, the highest percentage for retaliation charges in history, and the  largest number of any basis for a discrimination charge.


Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.