By Jeffrey M. Beemer
Even though laws prohibiting discrimination and harassment of employees have been around for over 50 years, this unlawful conduct still plagues many companies. Take Uber, for example, which has been under major scrutiny recently for its poor handling of sexual harassment and discrimination claims. The HR disasters culminated in the firing of more than 20 people – including some senior executives – for inappropriate conduct and CEO Travis Kalanick’s resignation.
In 2016 alone, U.S. employees filed over 90,000 charges of discrimination in the Equal Employment Opportunity Commission (EEOC), a third of which included allegations of retaliation. A recent study by Hiscox found that 19 percent of these charges cost companies an average of $125,000 in defense and settlement costs, which does not include the lost time and aggravation companies incur while defending them.
The EEOC recently issued its updated Proposed Enforcement Guidance on Unlawful Harassment. Now is an optimal time for employers to educate their supervisors and employees on what conduct constitutes unlawful discrimination and harassment and create effective policies that prohibit this conduct and promptly address it if it arises.
What Constitutes Unlawful Discrimination?
Federal laws protect applicants and employees from discrimination, harassment, and retaliation based on the following protected classifications: age, disability, genetic information, national origin, sex (including pregnancy and gender identity), race, color and religion. The law does not elevate applicants and employees who fall in one or more of these protected classes over those who do not. The law protects these employees from disparate treatment based on protected classes in all terms and conditions of employment. The law also protects employees from facially-neutral personnel policies and decisions that have a disparate impact on members of protected classes.
How Can You Protect Your Business and Employees?
Create an effective anti-discrimination and anti-harassment policy — Employers often make the mistake of thinking that because they have an anti-discrimination and anti-harassment policy in their employee handbook, they are covered. Those policies are often cookie-cutter ones that are filled with passive voice and not specifically tailored to the organization. An effective policy leaves no doubt as to what conduct is prohibited and how an employee should report unwelcome conduct. An effective policy includes the person to whom an employee should report prohibited conduct, how the employee should report it, and what the employee should do if the person designated to receive the report is the person who is harassing the employee. Employers should read their policies to make sure that a brand new employee would know exactly what to do if he or she is discriminated against or harassed in the workplace.
Educate employees thoroughly on company policies and anti-discrimination laws — Again, just having the policy in the handbook is not enough to prevent prohibited conduct from occurring. Employers should conduct periodic training with supervisors so that they know how to recognize prohibited conduct in the workplace and understand their roles in addressing it promptly. Supervisors who are not trained in how to respond when faced with a complaint of harassment may ignore it and hope it will go away on its own, which almost always makes the situation worse. Make sure that the policy is accessible to employees at any time in convenient locations, such as their employee handbook and the break room.
Establish a procedure that allows employees to feel safe in reporting harassment or discrimination complaints to a human resources professional — Employees must feel like the company will take their complaints seriously and be discreet, or they will not come forward. Employers must address all complaints in accordance with the policy and avoid making snap judgments about the validity of a particular complaint. Employees must know that the company will protect their identity to the extent possible, but the company may need to disclose the complainant’s identify in order to conduct a thorough investigation.
Conduct prompt, thorough internal investigations of all claims — The HR Department must have the mindset that all employee complaints will be investigated promptly, thoroughly, discreetly, and impartially, regardless of who has been accused of harassment or how long the complainant has been with the company. Taking prompt, corrective action where warranted could be the difference between a successful resolution and a lawsuit.
Emphasize the illegality of retaliation — Many victims of workplace discrimination or harassment are afraid to come forward due to fear of retaliation. All employees should know that it’s not only prohibited to retaliate against someone who files a complaint or participates in an investigation, but it is also illegal and will not be tolerated.
Jeffrey M. Beemer is a member attorney in the Nashville office of Dickinson Wright, PLLC. He regularly represents employers in employment law matters, including policy drafting, employee training, and internal investigations. Reach him at jbeemer@dickinsonwright.com.
