Benjamin Franklin once wisely proclaimed that “an ounce of prevention is worth a pound of cure.” If you are a business owner, this rings especially true when it comes to employment discrimination. The courts don’t mess around and the penalties are steep if you or your company is found guilty of employment discrimination. But how, exactly, does the court system define employment discrimination, what is the punishment, and how can you make sure you prevent it from happening in your company?
First, lets start off with some of the consequences of being accused of employment discrimination. The Office of the Attorney General of the California Department of Justice says employees who prevail on complaints of employment discrimination before the Fair Employment and Housing Commission “may recover back pay, out-of-pocket losses, and up to $150,000 in combined emotional distress damages . . . If the case moves beyond the Commission office and into court, the employee may recover unlimited monetary damages including back pay, emotional distress damages, punitive damages, any other out-of-pocket losses, and attorney’s fees and costs, including expert witness fees.”* Any business with at least five employees may have to at one point confront this commission on a complaint of discrimination.
On top of that, there is the federal Equal Employment Opportunity Commission (EEOC), which although limits lawsuit losses for employers with 15–100 employees to $50,000, is still more than enough to wipe out many businesses.
So what do you do to anticipate and prevent such complaints from reaching these dreaded commissions? The best preventive measure is to set up your own in-house process to hear, investigate, and resolve complaints before they get out of hand.
Make a Plan.
Here’s how: draft a detailed description of your in-house process and post it prominently where it cannot be overlooked. That way everyone will be aware that your business does not practice or tolerate unfair discrimination but investigates all complaints promptly and resolves them fairly. It may help to consult an attorney in drafting the description of your in-house employment discrimination complaint resolution process to make sure your company is covers all of it’s bases, legally speaking.
Know and educate your employees about the definition of offense. The EEOC definition of discrimination, treating people differently from similarly situated co-workers because of their race, color, religion, sex (including pregnancy), national origin, age (40+) or disability, offers a model. Give examples of unfair discrimination as when supervisors for the prohibited reasons fire employees, deny them just compensation, assignment, or classification, deny them promotions or target them in layoffs, use discriminatory recruitment or testing policies, deny them the use of company facilities, or refuse to offer them the same benefits and retirement opportunities.
Identify who should hear complaints of discrimination first. If the complaint is against an immediate supervisor the next higher in management or an employee designated for that purpose at all times may be appropriate. Emphasize that the supervisor or designee hearing the complaint should investigate it promptly, thoroughly, impartially, and confidentially to the extent possible.
Specify what evidence is necessary to substantiate or support an employment discrimination complaint of unfair favoritism toward someone of a different sex, race, religion, ethnicity, or disability status similarly situated. Statements not based on the personal knowledge or records of the person making them, for example, may be unreliable hearsay from gossip or rumor not credible as evidence.
Your investigator should interview everyone who knows anything about the complaint, preferably recording what they have to say, obtain copies of all relevant documented communications, and after weighing all evidence report findings and conclusions from the investigation in writing. A written report of why the evidence does or does not support the complaint helps the decision maker, if not the investigator, resolve facts in dispute and helps the complainant accept a decision favorable to the accused.
If your complainant does not accept the decision but persists in seeking redress, the written report makes a good record for the commissions or the courts of your honest efforts to enforce the laws against employment discrimination on your complaining employee’s behalf.
Remember, consulting an attorney during this process to make sure your company is properly preventing employment discrimination reflects Franklin’s astute comment that “An ounce of prevention is worth a pound of cure.”
* At http://oag.ca.gov/ publications/CRhandbook/ch2 (April 2013).
Keep in mind that this information is provided to help you make more informed decisions about your business but does not represent legal advice. We always recommend that you speak with an attorney should you have any questions or need more clarity on this subject.
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