As I discussed in my earlier article, the number of charges of discrimination and lawsuits being filed against employers has increased during the past several years. In addition, awards against employers for violations of antidiscrimination laws have also increased during this period.
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Employers must publicize their anti-discrimination policy to all employees, demonstrating a management commitment to its compliance and enforcement. All employees should receive a copy of the policy and training about it. The publication of the policy to employees should take place when they are hired and be included in the employer’s orientation program, during which employees should be given an opportunity to ask questions. The policy should stress the importance of reporting discriminatory misconduct to the person or persons identified in the policy. As necessary, the policy should be republished to ensure continued awareness and compliance.
Manager training on anti-discrimination policy
Employers should train their managers about the anti-discrimination policy, and how to handle reports and complaints of discrimination, harassment, and retaliation. The training should stress the importance of taking all reports and complaints seriously, and of informing upper management when a report or complaint is received. In addition, managers must be trained to take action when they see something that could be discriminatory, even if there has been no report or complaint. Employers should provide periodic retraining of managers to ensure their continued attention to compliance and enforcement of the anti-discrimination policy.
Periodic anti-discrimination policy review
At least annually, employers should conduct a review of their employment policies, practices, and procedures to ensure they continue to comply with laws prohibiting unlawful discrimination, harassment, and retaliation, and that they are being effectively used. In addition, employers should review the policies to ensure they do not contain any promises that could jeopardize at-will employment. All employment-related documents should be reviewed, including the Equal Employment Opportunity (EEO) policy, policies prohibiting discrimination, harassment, and retaliation, policies covering electronic communications, the application for employment, employee handbook, job descriptions, performance evaluations, and benefit summaries, to ensure they cannot be construed as discriminatory or used as evidence of unlawful discriminatory intent against the employer.
Conclusion
In summary, employers must take all necessary steps to ensure they maintain a workplace free from unlawful discrimination, harassment, and retaliation. The necessary steps include the adoption, implementation, and publication to all employees of a clear policy or policies prohibiting such activity, the training of managers to ensure compliance and enforcement, the investigation of all complaints, the determination of the appropriate remedial action to stop the misconduct and prevent it from recurring, the avoidance of retaliation against the employee who makes a report or complaint, and the periodic review of anti-discrimination policies, practices, and procedures. Employers who take these steps will be in the best position possible to minimize the likelihood that a charge of discrimination or an employment lawsuit will be filed against them.
Tracy L. Moon, Jr. is a partner in the Atlanta office of Fisher & Phillips LLP, which represents employers across the country in labor, employment, civil rights, employee benefits, OSHA, and immigration matters. He can be reached at (404) 240-4246 or [email protected].
The information contained herein is not intended to constitute legal advice. Contact aFisher & Phillips LLP attorney or other legal counsel for guidance in dealing with specific cases or situations.
