Top 5 Ways to Mitigate a Charge of Discrimination
This resource has been written by guest author Katherine Mazaheri. Ms. Mazaheri is an Oklahoma trial lawyer who regularly represents plaintiff employees in all areas of employment law, including litigation in state and federal courts, in mediation, before administrative agencies such as the EEOC, Department of Labor and Oklahoma Employment Security Commission. She also trains employers and management on Title VII, sexual harassment and other employment-related issues. For over a decade, Mazaheri Law Firm has gained a powerful reputation for taking on cases that attack various social injustices leading to extensive recoveries for clients.
As a plaintiff’s employment lawyer for the past 15 years, the amount of drama that comes from a claim of discrimination in the workplace can range implausible to downright horrific. As lawyers, we know that there is an elevated standard in the workplace for colleagues, different from a relationship an individual may have with friends outside of work. But what happens when a personal relationship develops with that colleague? Oftentimes, this is when lines get blurred – friendly jokes through texts can quickly turn into offensive messages, unwelcome advances, or a highly inappropriate comment with underlying discrimination. When this happens, employers can often be left wondering where the line should have been drawn, and how to handle matters prior to the utterance of the word “litigation.”
Having experience both as a firm owner and an employment law attorney, I am often approached by attorneys who have found themselves as plaintiffs in an employment law matter, as well as firm owners and managing attorneys who have found themselves in a precarious position – having just received a Charge of Discrimination from a current or former employee. In order to calm your risk adverse heart, I’ve compiled my top five tips for managing a Charge of Discrimination, should you receive one in your office.
Here are the top five ways to manage a discrimination claim:
- Expect the Unexpected: Know What Can Come and Get that Handbook Ready. Ensure that you are not only familiar with the process of a receiving a Charge of Discrimination, but what it means for your company. Be familiar with the Equal Employment Opportunity Commission (EEOC) and the Office of Civil Rights Enforcement, and be ready to anticipate what may come if an issue arises with an employee. Staying prepared is key in this area, and having an updated employee handbook is the best way to set forth requisite policies within the office. Make sure it is clear what is considered inappropriate conduct, and how employees can report a matter internally. Update this handbook regularly to stay compliant with state and federal laws, and make sure each updated version is reviewed and approved by someone with an employment law or Human Resources background. Make sure your employees fully understand the handbook, and have each employee sign an acknowledgement that they received the handbook, and that they have understood the standards of the office. Each time a handbook is updated, make sure the employees receive an updated copy.
- Get Your Training on. The best way to prepare for a potential matter is to always stay informed, and get your human resources and management team the training they may need. Whether done internally, or by hiring an outside team to provide some training, those involved in the decision-making process and enforcement should receive sufficient training on the most important laws being enforced. Specifically, ensure that training on Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, Title I of the Americans with Disabilities Act of 1990, the Genetic Information Nondiscrimination Act of 2008, Sections 102 and 103 of the Civil Rights Act of 1991, and the Oklahoma Anti-Discrimination Act is necessary to ensure that employees in charge of enforcement know when a potential claim may have risen. The training needs to include sufficient explanation of what the law is – and what may be considered a protected class, but also how to spot and manage potential claims in the workplace.
- Be Consistent: The Good, the Bad, the Ugly. Many times, our clients bring forth claims of discrimination on the basis that they are singled out in a disciplinary action. As employers, it is not only important to enforce any disciplinary steps laid out in an employee handbook, but to exercise the discipline consistently and to all employees. Failing to discipline individuals who do not fall within a protected class, and then disciplining an individual of a protected class may be considered disparate treatment. It is important to always treat all employees similarly: for the good, the bad, and the ugly.
- Be the Sherlock Holmes of the team and I N V E S T I G A T E. Upon receiving notice that there has been a complaint to human resources or a supervisor, do your due diligence and investigate. Talk to potential witnesses, talk to the claimant, and make sure you know exactly what is going on. Oftentimes employers believe they have an option to investigate a matter when a complaint arises, this is not true. Companies have a duty to take prompt action to end the discrimination and harassment, as well as fully investigate the matter. Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983). When conducting an investigation, make sure it is done promptly and seriously, to ensure no facts are missed. Employers may also hire a third party to conduct an investigation, to provide a non-biased perspective on potential liability. Conducting a true, objective investigation will provide a great defense to show that an employer has done its due diligence in addressing a potential claim of discrimination or harassment.
- Suit up For Battle. Put your armor on, and grab your paper swords. Keeping a paper trail of your investigation will be one of the best weapons to have if a matter is filed with the Equal Employment Opportunity Commission, the Attorney General’s office, or moves forward and goes to litigation. At this point, be prepared to discuss with outside counsel and present all facts and evidence showing that you have done your diligence as the employer.
Firms and management at firms are often the most careless at protecting themselves from claims of discrimination that can arise from small issues that are left unaddressed, avoided, or swept under the rug. Employers need to know the importance of investigating any potential claim of discrimination or harassment, to prevent any claim of a hostile work environment or retaliation. Remember to follow these five steps, and consult with an employment law attorney if a potential matter arises.