In fiscal year 2012, 99,412 charges of discrimination were filed against employers, and the Equal Employment Opportunity Commission (EEOC) collected a record high of $365 million from employers. The EEOC pursued 580 systemic investigations, resulting in the collection of $36 million (four times more than 2011). On top of this, government agencies have refocused their efforts on enforcement. This article provides an overview of the basic legal responsibilities of employers in relation to laws that prohibit discrimination, harassment, and retaliation.
Legal responsibilities of employers
To safeguard against such claims, employers must first understand their legal responsibilities. Employers are required to maintain a workplace free from unlawful discrimination, harassment, and retaliation. Everyone, including applicants, employees, supervisors, managers, customers, and vendors, are covered. Employees are protected from discrimination and harassment based on their race, color, religion, national origin, sex, age, pregnancy, childbirth or related medical conditions, disability or handicap, citizenship status, veteran status, and any other category protected by federal, state, and local law. All employment decisions are covered, including those involving selection and hiring, assignment, reassignment, promotion, transfer, compensation, discipline, and termination.
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Employers must listen to and take seriously every complaint of discrimination, harassment, and retaliation. After they receive a complaint, an investigation must be conducted. The scope of the investigation will vary depending on the circumstance, but should be sufficient to obtain information necessary to determine the “appropriate action” needed by the employer to ensure the misconduct does not recur. It is important to note that termination of the offending employee may not be the “appropriate action” necessary to ensure the unlawful conduct does not recur.
Employers must not retaliate against any employee reporting or participating in an investigation of discrimination or harassment. Virtually every employment law has some sort of retaliation or whistleblower protection, and employees know it. Nearly one out of three charges filed with the EEOC include some form of retaliation claim. Not only is retaliation unlawful, it may deter employees from reporting discrimination or harassment. Employers should encourage employees to report all violations of their antidiscrimination policy to minimize the likelihood that they will seek help from attorneys, courts, or government agencies that could result in a discrimination or employment lawsuit.
Before employers can implement policies and procedures that minimize claims of discrimination, harassment, and retaliation, they must understand their legal responsibilities. After they develop this understanding, employers can take the necessary steps to ensure legal compliance. I will address the implementation of specific policies and procedures in an article next month.
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 your Fisher & Phillips attorney or other counsel for guidance in dealing with specific cases or situations.