Written policies and employee training are key to reducing the risk of a lawsuit.
In the employment context, lawyers are often summoned after a situation has rapidly deteriorated, a final disciplinary decision has been made, an employee has been fired or transferred, or a lawsuit has been filed. However, lawyers can also help minimize an employer’s risk before the lawsuit has been filed—and even before the employee has been hired. The key to avoiding a discrimination or retaliation lawsuit (or winning one) is consistency.
A jury, after the suit is filed, is going to be looking at the context of an employer’s actions. Are the reasons the employer gave for terminating the employee believable? What has the employer done in the past for other similar transgressions? Was the employee a poor performer? Can the employer prove it?
What foundational steps can employers take to prevent retaliation or discrimination claims?
- Have an attorney review the written materials that the employer will issue to its employees, including collective-bargaining agreements, employment contracts, offer letters, employment handbooks, policies, rules and procedures. All of these documents should contain an “equal employment opportunity statement.”
- Establish written policies prohibiting harassment based on protected statuses and provide for an internal reporting and investigation procedure.
- Employers should regularly reaffirm their commitment to the anti-discrimination/retaliation policy. Anti-discrimination/retaliation/harassment policies shouldn’t be something employees put in their desk drawer and never look at.
- Obtain a signed receipt from each employee acknowledging they have received, read and understood the anti-discrimination/retaliation/harassment policies.
How can employers avoid a lawsuit that may arise out of its hiring decisions?
All of the information and questions obtained through the application and interview process must be directly related to the job and should be limited to only that which is necessary to decide whether to hire the applicant.
The application form completed by prospective employees should inquire about limited information that will not elicit information that may support a discrimination claim, such as the applicant’s name, Social Security number, present and prior address, phone number, present and prior employment, educational background, reference information and emergency contacts.
During the hiring process, employers must be cautious about inquiring of the following topics:
- Criminal backgrounds. Effective January 1, 2015, employers are prohibited from asking about criminal convictions until after the applicant is deemed qualified and offered an interview. If no interview is conducted, an employer may not inquire until after a conditional job offer is made. Once the employee is offered the interview or conditional job offer, an employer may ask about criminal backgrounds, but written language should be included on the application stating that the answer to the question about criminal history won’t necessarily exclude an applicant from consideration.
- Dates of birth. Instead of asking someone’s birthdate, consider asking: “If hired, can you supply proof of age?” or “Are you over 18 years old?”.
- U.S citizenship. Consider asking: “If hired, can you prove within three days that you have the lawful right to work in the United States?” rather than asking if the applicant is a U.S. citizen.
- Physical condition. Ask the applicant: “Are you aware of any factors that would limit your ability to perform the essential functions of the job?” rather than inquiring into their physical abilities and health.
- Families. It may seem like small talk, but an unsuccessful applicant who is asked about his/her children or future plans has the building blocks of a gender or marital status discrimination claim.
A simple signed certification on the application form will also allow employers to terminate employees or refuse to hire employees who demonstrate dishonesty during the process. The certification should state: “By signing this application, the applicant certifies the information provided is complete and truthful. Information has neither been omitted nor misrepresented. Omissions, lies or misrepresentations can be cause to disqualify an applicant or terminate an employee if already hired.” Employers are also wise to include an “at will” disclaimer in the application.
How can an employer avoid a lawsuit arising out of your management decisions?
Employers should establish policies that document their expectations regarding employee performance and conduct, and then document any deviations from those expectations and policies on the part of the employees. It is helpful when defending these cases to establish that the employee was aware of the policy/criteria used in employment decisions, that the employee violated the policy, that the employee had an opportunity to respond in writing to the employment action, and that the response was placed in the employee’s personnel file.
Performance evaluations are often the centerpiece of an employment discrimination/retaliation lawsuit. Honesty and accuracy will help to insulate employers from lawsuits. Performance evaluations that “sugarcoat” or ignore an employee’s deficiencies may seem like the “easy” option in the moment. However, in the event of subsequent litigation, an employer will have difficulty explaining that the employee’s discharge was due to poor performance in the wake of only glowing reviews.
How can employers avoid a lawsuit arising out of discipline and discharge?
When communicating the discipline or discharge to an employee, employers should:
- Keep the basis for the discipline/discharge confidential. Illinois law prohibits divulging disciplinary information to third parties without prior written notice to the employee being disciplined.
- The reasons given to the employee for discharge should be true (and lawful).
- The discipline or discharge should be communicated to the employee in a way that maintains personal dignity.
- A witness, of appropriate rank, to the discipline or discharge should be present during the termination meeting to avoid future misunderstandings.
With the numerous people involved in hiring, discipline and discharge, along the way one of them may give an employee fodder to file a discrimination or retaliation lawsuit. Having written policies, training employees on the policies and how to properly discipline, and then consistently abiding by the policies will help you reduce the risk of a lawsuit. iBi