Introduction

One of the most pressing issues in the business world today is the issue of discrimination. While federal laws and anti-discrimination programs have been implemented to discourage discrimination in any form, many business owners and managers still don’t know exactly what issues and practices they need to monitor in order to comply with anti-discrimination laws and affirmative action policies. Because of this lack of understanding of what exactly is considered discrimination, many businesses are putting themselves in jeopardy and leaving their business vulnerable to discrimination lawsuits and class actions that could negatively impact their public image and their abilities to do business. In order to protect your business from discrimination class action lawsuits you need to understand what discrimination is, who it applies to, and what employment behaviors you need to eliminate.

What is the Difference Between Discrimination, Equal Employment Opportunity, and Affirmative Action Policies?

Your first step to protecting yourself from being sued for discriminatory employment practices is to know what discrimination is and what the difference between discrimination, equal employment opportunity, and affirmative action policies are.

The main differences between discrimination, equal employment opportunity, and affirmative action policies are who the policies apply to and what administrative and legal consequences each carries for non-compliance.

Anti-discrimination Policies

Basic discrimination policies, or rather anti-discrimination policies, are based on federal anti-discrimination laws such as: the equal protection clause of the 14th Amendment of the U.S. Constitution, the Civil Rights Acts of 1964 and 1991, the Age Discrimination in Employment Act, the Vocational Rehabilitation Act, the Americans With Disabilities Act, the Pregnancy Discrimination Act, and the Vietnam-Era Veterans Readjustment Act. These laws provide federal penalties ranging from money paid for fines and retribution to victims of discrimination, to measures taken by the federal government against businesses that can severely impact their ability to function if they refuse to change their policies. Because of the stiffness of fines and punishments that can be imposed for non-compliance with anti-discrimination laws, most businesses have conformed to the requirements set out by these laws.

In general, to comply with anti-discrimination laws you and your managers need to treat all employees fairly and equally regardless of their sex, race, color, age, disability, marital status, etc.

Equal Employment Opportunity Policies

When a business claims to be an EEO company they basically are saying that they, either voluntarily or because of legal requirements, agree to maintain hiring and employment policies that uphold anti-discrimination laws and that their employees are also required to uphold such practices while at work. In addition to applying anti-discrimination laws to their companies, some EEO companies also implement anti-discrimination management plans that help to ensure that their employment practices remain anti-discriminatory in nature, and that they promote diversity within the workplace.

Affirmative Action Policies

Affirmative action policies are used, not as a tool of reverse discrimination, but as a recruitment tool for "qualified" applicants in an underutilized workforce pool. Affirmative action policies are only mandatory for companies that have federal contracts or that have an annual business revenue of $50,000 or more. If a company does not fall into one of these categories, its participation in affirmative action programs is voluntary.

Who is Protected by Anti-Discrimination Laws?

Your second defense against discrimination cases is to know who is protected by anti-discrimination laws, and what situations may, unbeknownst to you, create an instance of discrimination.

Anti-discrimination laws protect people from discriminatory practices based on race, color, gender, national origin, religion, days of worship, worship practices, religious attire, age, disability, pregnancy, and Vietnam Veteran Status. Employers should pay close attention to all of these groups, as they may not be aware that a few of these groups have federal protection against discriminatory hiring practices.

Race

Race is perhaps the most publicized discrimination that U.S. employers are faced with. Racial hiring preferences have been fought by many federal laws and programs in an attempt to give people of color an equal chance at getting good jobs and in higher positions within U.S. companies. The equal right to apply for and be considered for a job is protected by the 14th Amendment of the U.S. Constitution under its equal protection clause. This clause guarantees that the federal government is not permitted to allow discrimination to occur. However, suits filed under this premise must be able to prove that the employer had "intent" to discriminate. Because proving intentional discrimination is difficult to do, most employees will not try to use the Fourteenth Amendment as their justification for suing, but instead they will probably file suit as a violation(s) of the Civil Rights Acts of 1964 and 1991.

The Civil Rights Acts outlines specific employment behaviors that are illegal for any organization that has more than 15 employees, that has a labor union, that is an governmental agency, that has a contract with a governmental agency, or that is an educational agency. These behaviors include: (1) giving preferential treatment to one group over another in decisions in regard to hiring, promotion, wages, etc., and (2) segregating or classifying employees based on protected characteristics like sex, color, race, religion, or national origin.

While defending your company against a complaint filed under a violation of the 14th Amendment requires proof of "intent" to discriminate, discrimination suits filed under violations to the Civil Rights Acts requires no such proof of intent, only proof that discrimination has occurred.

Color

Discrimination based on color is often times confused with racial discrimination, however, in actuality it is slightly different. Discrimination based on color is often seen when the shade of skin is considered when making employment decisions. For example if only light-skinned African American applicants are hired, or only dark-skinned African American applicants are hired, color discrimination has occured. An employer may not be aware that they are making this distinction, and may even think that they are complying with affirmative action policies and anti-discrimination laws by hiring African American applicants. However, if a color preference is alleged by a person who was either not hired or who was terminated or denied a promotion because of their color, then the employer could get into some serious trouble.

Gender

Employment practices that give preferential treatment to one gender (sex) over another is also illegal based on the Civil Rights Acts of 1964 and 1991, and the Equal Pay Act of 1963. These acts prohibit employers from discriminating against one gender when making employment decisions. These acts do not, however, prohibit discriminatory practices against transsexuals.

Age

The Age Discrimination in Employment Act was created to protect workers over the age of 40 from being discriminated against. Therefore, with only a few exceptions, an employee can not be fired or forced into retirement simply because of his or her age.

Disability

Disability is another well-publicized discrimination issue. The Vocational Rehabilitation Act of 1972 was created to prevent the federal government from discriminating against people simply because of their disabilities. Employers that are not a part of the federal government and that have more than 15 employees are ruled by the Americans with Disabilities Act of 1990 which also prohibits discriminatory employment practices aimed at the disabled. The ADA also requires that employers make "reasonable" accommodations for people with disabilities so that they are able to work. The reasonableness of the accommodations are limited to those that the company can afford without incurring "undue hardship."

Pregnancy

Employers should also be aware that women cannot be discriminated against because they are pregnant. The Pregnancy Discrimination Act outlines that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefit programs, as other persons not so affected but similar in their ability or inability to work." What this is basically saying is that employers are required to treat pregnancy as a disability, and as such are required to make reasonable accommodations to allow the pregnant women to work.

Other Protected Groups

Religion is a protected classification that employers should know about. The protection of religious beliefs from discriminatory employment practices means that the employer has to make "reasonable accommodations" for people to allow them to practice their religion. This includes not requiring them to work on a day of worship or religious holiday, to make accommodations or modification to allow for worship practices like prayer and fasting, and to be allowed to wear religious apparel at work. While all of these employment practices are required in "reasonable" situations, if these practices impair the employee's ability to do their job, or if it puts them or other workers in physical jeopardy, then the employer does not have to comply with these types of requests.

Discrimination based on national origin and Vietnam Veteran Status is also illegal. Courts have ruled that language requirements like "English only" or "understandable English" are legal, however, these restrictions are only legal when applied to work related communications and not to break time or non-work times communications. Unlike other anti-discrimination laws, the 1974 Vietnam-Era Veterans Readjustment Act provides affirmative action programs that require any federal agency or company with more than $50,000 of federal contracts to actively recruit Vietnam Veterans.

Privacy Issues That You Should Be Aware Of

While general employment activities like hiring, terminating, and giving raises and promotions are most commonly examined when discussing discrimination, other issues can also be used against you in a discrimination suit. Issues like drug testing, office and locker searches, psychological tests, and electronic surveillance, if not handled correctly and legally, can be used as grounds for law suits against you for discrimination and/or privacy invasion.

Personal privacy is guaranteed by the Fourth Amendment of the U.S. Constitution, and it is intended to protect U.S. citizens against unreasonable, or unfounded searches and seizures. This amendment has been applied to drug testing in many courts across the country and the rulings have defined drug testing as a "search," and therefore to be legal, employers have to be able to prove such testing is done in a reasonable and fair manner, and that there was a direct cause for the testing. This means that random testing is not legal in most situations, especially if the agency is federally funded. Employers must show that there is just cause, such as allegations from employees, or physical evidence such as residue or paraphernalia.

Office and locker searches are also legal as long as the employer has just cause, or reasonable suspicion that the employee is in possession of an illegal or dangerous piece of property. Employers should note here that if they allow their employees to put their own lock on their lockers then they lose their right to search the locker even with just cause.

Psychological tests, once very popular personnel management tools, have recently been removed from the personnel arsenal because of their tendencies to invade personal privacy rights of the tested. This decision is based on the fact that many psychological tests, especially those that deal with psychopathology, ask questions about the test subject’s religious and sexual preferences.

Electronic surveillance is the final privacy issue that employers need to address. With modern advancements in electronics and technology, electronic surveillance has steadily replaced physical security guards and supervisors. However, employers should note the legal limitations of such devices. In general electronic surveillance either by video camera or the monitoring of company based emails is legal. This is based on court rulings that state that employees don’t have the right to expect privacy when at work in open spaces. However, in order to protect yourself from possible suits it is important to document your surveillance policies and to have every employee read and sign a copy of these policies when they are hired. That way you have proof that the employee knows they will be working in an environment that is monitored, and that they have agreed to such terms.

Sexual Harassment, You Could Be Liable

Sexual harassment is the final issue that employers need to address. Sexual harassment can be either quid pro quo (submit or face the consequences), or it can be an accumulative effect of many events that lead to a hostile work environment. In either situation, and regardless of whether it is the employer or an employee that is causing the harassment, the employer is liable for damages caused by such actions especially if they know about the situation and fail to take action. To reduce the chance of facing a sexual harassment suit employers should take the following actions for every complaint of sexual harassment that they receive regardless of how insignificant it seems:

• Investigate every complaint.
• Draw up a written organizational policy for sexual harassment that states the company prohibits any and all sexually harassing behavior, and that outlines how a person should file a complaint, and how the company will respond to complaints.
• All complaints must be kept confidential to reduce retaliation and further hostility.
• Actions must be taken to protect the accuser and the accused during the investigation.
• The company needs to provide both sides of the situation with due process and allow both sides of the situation to be heard before making any decisions or assignments of guilt or innocence.
• All findings and final decisions need to be put in writing and given to both sides of the complaint.
• The company needs to make sure that the punishment fits the crime. Otherwise other law suits for wrongful termination or other discriminatory suits may follow.

How to Determine if Your Employment Practices are Legal

To determine if your company has illegal or legal employment practices you should ask yourself the following questions:

1. Am I selecting applicants based on "bona fide" occupational qualifications?

What this question is asking is, am I looking for job specific skills or am I looking for specific types of people? In order to reduce your chances of discriminating against any specific group of people, focus your applicant search only on "skills" and not on physical characteristics that are unrelated to the job. I make this distinction because some jobs require physical strength and agility that an employer needs to look for when hiring; however, physical requirements cannot include such things as gender preferences or ethnicity requirements.

2. Do my employment practices violate a local, state, or federal law?

This may be difficult for some employers to ascertain without a little work. In general, make sure that you do not give preference for physical characteristics that are not related to the job in question and that you have a company policy that makes "reasonable accommodations" for ALL employees. By reasonable accommodations I mean flexibility to work around family and religious responsibilities, modifications to work space to allow easy access for employees, etc…

3. Can any of my employment practices negatively impact a person in a protected category?

Here you will want to specifically look for outdated company policies that still have gender biased wording and connotations. Especially in regards to segregating jobs by sex, race, age, etc.

4. Do I have proof that the requirements I have outlined for a specific job are really "job" related?

Again look for biased wording in the job description and training materials, etc. that could be used to support a claim of discrimination against you. Keep written company materials gender/race/age neutral. To prove that the skills that you are looking for are really job specific you will need to conduct a job analysis periodically to update what the job entails, what the minimum skills for the job are, and to determine the physical requirements for the adequate performance of the job.