Recognize and Avoid Discrimination

Discrimination complaints can be the bane of your existence. They are time-consuming to defend and can require you to produce mountains of information. Is there anything to be done? Take heart from the actions of some of the employers below, and heed from others.  Every employer can take some preventive steps to forestall a complaint or make it right once you receive one.   Foundation Concepts

Federal law protects employees from discrimination in the workplace. The federal law applies to employers with fifteen employees in any twenty-calendar. Are you thinking, “Great, I’m a small company, no need to worry?” Not so fast. Every state in the union, and the District of Columbia, has its own laws governing discrimination, and those cover nearly all employers. Presume the law applies to you, and you can rarely go wrong. Why is it significant if federal law applies? Federal law allows successful employees to recover their attorney fees from the employer. This can often be more money than the employee recovered. You don’t want to pay your own lawyer and the employee’s. 

Weight-Bearing Walls

Employees who are treated less favorably because of race, sex, disability, age, national origin or religion receive protection under the law. Encompassed within sex discrimination are pregnancy and sexual harassment. Courts have interpreted the law to protect employees from harassment based on the other protected categories such as race and religion.  Many states also protect on the basis of sexual orientation, marital status and tribal affiliation to name just a few. 

According to the U.S. Equal Employment Opportunity Commission, last year  there were more than 75,000  discrimination claims made in the United States (this excludes state-only filings). While the number was slightly up from 2005 (75,428), it is 5 percent less than the ten-year average (79,482) of filings from 1997 to 2006.  As discrimination filings have decreased, the complexity of those cases has increased, which means that each individual case can have more that one type of discrimination charge associated with it. This is more challenging for you, which is why you need an attorney experienced in employment law.

Often, you may think of discrimination in the workplace as referring to sexual or racial discrimination, which seems to get the most press. While these protected categories see the highest number of discrimination filings, neither has seen an increase in charges since 2006 compared with the ten-year average. Discrimination charges for national origin, religion and retaliation have all seen increased filings over the last ten years, and business owners need to understand what this could mean to their business.

Step Up to National Origin Discrimination

A common misconception in discrimination law is that one must be of a different race, sex or age to discriminate against another. Not so. A Korean supervisor expected that Korean workers had to work harder and longer than Caucasian or Latino workers. He reinforced his message by screaming at and hitting Korean workers. When one worker finally complained, the court found that the supervisor had stereotypical ideas of Korean workers that amounted to unlawful harassment based on national origin. 

If a Norwegian supervisor makes Ole and Lena jokes, a female manager harshly criticizes only women or a light-skinned African-American supervisor refuses to hire dark-skinned African Americans, a company may still face harassment or discrimination claims.    Sharing certain characteristics with a subordinate doesn’t insulate one from discrimination claims. The wrongful conduct is treating an employee differently, or adversely, because of this protected characteristic.

Door to Religion

In an interesting twist, an employee objected to the employer’s religion being foisted upon him and lost his job because he objected. The employer had a new age mission statement that required employees to carry the tenets of the company around on a card and seek training and cleansing for negative energy. The owner believed that employees were punished in this life for bad deeds in a past life. When the employee refused to participate in some of the “training sessions” he was released. 

The court found that the company required an employee to violate sincerely held personal religious beliefs to keep his job. While we all like to have mission statements, you need to be careful that those statements don’t take on a religious overtone for which employees are punished for refusing to believe in them. 

Threshold for Retaliation

Employees have one more arrow in their quiver for protection in the workplace.  Retaliation claims can be alleged by an employee when discharged, threatened with discharge, demoted, suspended or when he/she suffers an adverse employment action for having made a claim for discrimination or participated as a witness in an investigation. This claim can survive even if the underlying claim of discrimination has no merit. A successful employee is entitled to the same. In addition to the state and federal statutory retaliation claims, most states recognize other types of retaliation: punishing an employee for jury duty, voting or refusing to commit an unlawful act or complaining about a safety or health hazard. If an employee comes to you with a complaint about a safety hazard on one of your jobsites, you must listen to the facts before making any rash decisions about that employee.

A Window on Sexual Discrimination

Women represent only 13 percent of all people employed in the construction industry (as identified by 2005 data from the U.S. Equal Opportunity Commission) are women.  This makes your industry particularly susceptible to sex discrimination claims. It goes without saying that you can’t presume women cannot do the same jobs as men, but what else gets you into trouble? An interesting case occurred on a construction site where a woman objected to that day’s job assignment from her foreman. After he grew frustrated with her recalcitrance, he told her to “get you’re a__ in the truck and go.” The court had little trouble disposing of that claim of sexual harassment correctly noting that “everybody has an a__.” Had he said, “Listen, b_______,” there might have been a different result. That word is a derogatory term typically used only for women.Another contractor got crosswise with its female employees who were fighting on the job. They were terminated for violence in the workplace; this seems reasonable, until you discover that male employees who engaged in fisticuffs were only warned or suspended. This employer treated women who fought more harshly than men. It’s worth remembering that discrimination applies to every aspect of the employment relationship, from application through termination. 

Working with Disability

Wal-Mart recently won a disability discrimination case because it was able to show that it had a strong policy that required the most qualified applicant be hired for a position.  An employee, who was injured on the job and could no longer perform her job, requested that she be transferred to an open position in another department. Wal-Mart denied that request finding that while she was qualified, she wasn’t the most qualified person for the job. Wal-Mart argued that requiring it to place a disabled person in an open position would unfairly require it to violate its own policy about hiring the most qualified applicant and that to do so would violate its nondiscriminatory policy. The court characterized a ruling that would make employers violate their nondiscriminatory policies as “affirmative action with a vengeance.”

Dealing with Pregnancy

The Pregnancy Discrimination Act protects women who are pregnant, give birth or have related medical conditions. Pregnancy can be a touchy subject for many reasons but particularly in the workplace. When making decisions about a pregnant employer, it helps to think of pregnancy as any other temporarily disabling condition—such as a broken leg. Would you fire a man who had a broken his wrist or refuse to accommodate his temporary situation? 

A South Dakota employer recently got crosswise with the EEOC and a jury when it revoked a job offer for one woman and terminated another when  the employer learned they were due to deliver in the summer months, which the employer characterized as its “busy time.”   The company was not able to show that it had a policy that disallowed absences during the “busy time.” To make matters worse, its EEO policy didn’t mention pregnancy as a protected category.  Because the women were able to show they were treated differently from non-pregnant employees, they were successful in their claims.   

This case really pointed out the absolute necessity to have a policy that clearly states you do not discriminate on any grounds protected by law. A good policy is your first line of defense against claims of discrimination. Failure to have a policy wrongly sends a message that you do not take your equal employment obligations sincerely.

Wiring Up Race

We typically think of employees as being the only ones who can complain about discrimination. In California, a company owned and operated by American citizens of Indian ancestry had a chain of gas stations. When company drivers who were Sikhs, who wore long beards and turbans, went to the distribution center to pick up or drop off fuel, they were subjected to abuse, harassment and delay because of their race, appearance and religious beliefs.  When the owners complained to the head of the distribution center, he promised to address it.  When nothing happened and they complained a second time, the distribution center cancelled the company’s contract.  The company sued claiming race discrimination in the operation of a contract.    The company said that it was damaged because the distribution center imputed the drivers’ racial identity to the company. The jury awarded a multi-million dollar judgment against the company under a law that prohibits race discrimination in contracts. The law worked to protect the company from the economic damage the discrimination caused.

Security System

What should you do if you do receive a complaint? Your first line of defense is to treat all complaints seriously. Thank the employee who came to you. You are getting the first chance to correct the problem before the employee seeks outside help—such as a lawyer or the local division of human rights. Once you have a complaint, you have an obligation to promptly investigate it. By investigating, and taking fast action to correct the situation, you may well avoid liability or greatly reduce it. If you aren’t sure what to do, be honest. Tell the employee, “I’m not sure how best to handle this, but I’ll find out and get back to you.” Call your human resources officer or your employment attorney. He or she can give you some advice and direction. After all is settled, be sure you reiterate your commitment to a discrimination and harassment-free workplace. Re-circulate your policies. Offer training to your supervisors on recognizing and addressing inappropriate conduct and avoiding retaliation. Make sure your supervisors know that they must report if they see or learn of inappropriate behavior. They can’t wait for a complaint. Employees who see your commitment and consistency will avoid improper actions or report ones they do see.

If your policies have not been updated in three to four years, now’s the time. A good employment law attorney can review your work to make sure you have the best protection possible in place. Be sure you document, even minimally, any warnings or directives you give to employees. Later, if you terminate, and the employee complains, you’ll have that information to demonstrate that failure to follow policy was the reason for termination, not any other reason. 

Construction Business Owner, November 2007