Posted on March 26th, 2018
99,109 discrimination claims were settled by the EEOC in 2017. But more than 70% were found to be “No Reasonable Cause”.
The cost to defend against even one claim?
According to specialty insurer Hiscox it cost employers $160,000 for defense and settlement of cases.
On the average, Hiscox notes that it will take 318 days to resolve the claim.
You see how this is setup for us to lose right? Even if you did nothing wrong can you as a business owner, afford the wasted time, distracted employees and money this type of situation causes?
Avoid discrimination claims by proactively creating strong policies from the beginning.
Read on for more.
California 46% More Likely to Report
The EEOC also reports the number of charges broken down by state.
- Texas tops the list again in 2017 with 8,827 charges, 10.5% of the nationwide total.
- Florida holds second place with 6,858 charges, 8.1% of the nationwide total.
- Third place California has 5,423 charges, 6.4% of the nationwide total.
Given the populations of these states, the total figures aren’t shocking. But working in employer defense exclusively in California I was surprised that there are 2 places with more claims than us!
On a national basis, employers had a 10.5% chance of employment discrimination claims. Californians were 46% MORE likely to file discrimination claims.
In California, employees can file their charge with the California Department of Fair Employment and Housing in addition to the EEOC. This additional level of scrutiny is both a blessing and a curse as it allows two opportunities for an employer to de-escalate a situation as well as an employee an opportunity to claim the same incident twice.
Most Common Discrimination Claims
More than half of all discrimination claims are for retaliation. To be quite clear: a complaining employee is protected whether or not the claims are true.
It is illegal to retaliate against (including harassment, elimination, demotion or termination) job applicants or employees for these reasons:
- filing a discrimination claim
- complaining to their employer about workplace discrimination
- participating in an employment discrimination action
Retaliation in any aspect of employment is against the law. Any action, including hiring, firing, pay, benefits and any other terms of employment need careful scrutiny. You could very well be seen as harassing the employee.
Second to retaliation claims are claims of racial discrimination, gender discrimination and age discrimination.
Protected classes include:
- Age
- Gender
- Race
- Ethnicity
- Skin Color
- National Origin
- Mental or Physical Disability
- Genetic Information
- Relationship to someone who may be discriminated against
- Pregnancy or Parenthood
Harassment, while no less serious takes third place. Creating a hostile work environment by bullying, “jokes” or even alluding that someone is “too fat, too dumb or too drunk” for a job has been proven actionable in court.
California regulations emphasize the duty of the employer to prevent harassment, discrimination, and retaliation in the workplace.
Training for all management is essential. Make sure to clearly define what constitutes retaliation and set a company policy against retaliatory practices.
Best practices also include carefully reviewing discipline and termination decisions, especially if the individual has participated in a discrimination investigation or complaint.
What You Can Do to Prevent Discrimination Claims
Establish workplace expectations and norms. Create a work culture that is free of discrimination, all forms of harassment or retaliation. It should be part of every job description, within the goals in a performance planning process, and in every employee review and evaluation.
Stating the obvious, over and over might seem like overkill, but it sets the tone.
Make Sure You and Your Managers Walk the Walk
Implement a clear, unambiguous policy that makes harassment, discrimination or retaliation of any sort is unwelcome in your workplace. Do not tolerate exceptions in your management. Swift, consistent action is the key.
Train your managers in your anti-discrimination policy and create the expectation that prevention is their responsibility.
Your policy must cover employment discrimination, harassment, and retaliation.
Include a process for reporting any complaints of employment discrimination, harassment or retaliation to the company.
Employees should be given several confidential avenues for reporting situations in addition to a direct supervisor.
Training For All
Your managers must be sensitized to recognize the signs of discrimination, harassment, or retaliation. Make sure there is a procedure to address these potentially serious claims. Managers must understand and embrace that they are responsible for setting the tone in the workplace.
Train your managers to understand the company’s policy and to recognize, correct and de-escalate work occurrences that might result in discrimination claims. Address all forms of employment discrimination and harassment in a holistic manner.
Recognize actions like:
- Denying certain employees benefits based on their gender
- Paying equally-qualified employees in the same position differently
- Discriminating when assigning leave
- Denying the use of company facilities
- Denying a reasonable accommodation to a disabled worker
- Intimidation, bullying, or violence in any form
These are not individual behaviors. These are all considered discrimination, harassment, and if following a complaint, possibly retaliation. They are unacceptable and illegal.
Effective training must teach not only that the negative behaviors are unacceptable, but also point out the cultural ideals you wish to reflect in your workplace.
All employees should also be thoroughly educated in your company policy. Address the concepts, expected behaviors, and reporting procedures verbally and in writing. Make sure to document an employee’s understanding and acceptance of the policy.
Investigate Promptly
Your policy should have a documented mechanism to report and investigate all employment discrimination claims or incidents. Your procedure should be:
- prompt
- professional
- confidential
- well-documented
- part of your policy
As with any situation, document all aspects of policy, training, investigation, practices and procedures, management training, and any action. Determine what happened. If any discrimination, retaliation or harassment occurred, then de-escalate and make it right.
Good faith efforts to prevent discrimination and retaliation in the workplace are less costly than a lawsuit.
Proactive is Better Than Defensive
Creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is the first step.
- Prevent the behavior
- Educate employees and managers
- Recognize and correct immediately (even without a complaint)
- De-escalate and document
Employers who have strong documented policies and training in place to prevent and address employment discrimination can possibly avoid discrimination claims and litigation.
Your policy must address the procedure to follow if a complaint is made.
- Investigate all complaints
- Keep it confidential
- Document
- De-escalate and rectify the situation
If you need help formulating a comprehensive employee policy and procedures package or other specific assistance, our firm specializes in California employers. We do not represent employee side claims.
Contact us with your questions and comments or book your free consultation today.
