It's easier than you think to protect your company from
discrimination lawsuits-it just takes good documentation and no,
well, discrimination.
"Most employers don't discriminate. They're trying
to run a business and want to promote the most productive
employees," asserts attorney Jon Miller of Berger, Kahn,
Shafton, Moss, Figler, Simon & Gladstone in Irvine, California.
The fact that an excellent employee is from a minority group, over
age 50 or coping with a disability wouldn't stop you from
moving that employee into a job you need done right. Even so, when
you have two assistant managers who've been working for you for
three years, and you promote the white man to manager and not the
black woman, it can look like illegal discrimination. That's
why entrepreneurs must be careful when deciding who to promote and
ensure that decision is well-documented.
It's true that charges of discrimination stemming from
failure to promote someone are less common than charges of
discrimination when hiring or firing-but don't let your guard
down. Sharona Hoffman, assistant professor of law at Case Western
Reserve University School of Law in Cleveland, says that during the
six years (from 1992 to 1998) she worked for the Equal Employment
Opportunity Commission (EEOC) in Houston, she saw quite a few
discrimination claims over failure to promote. But, adds Hoffman,
"these are difficult cases to prove because it's very
subjective;" employers normally assert that the person they
promoted was performing better. She notes that many such cases
never even go to trial, because an employer offers a cash
settlement or promises that the next promotion will go to the
employee complaining of discrimination.
Content Continues Below
More commonly, the claims turn up in lawsuits charging wrongful
discharge: Former employees claim they were fired because of age,
gender, national origin, race or another factor, and say it all
started when the boss kept passing them over for promotions. Or a
group of current or former employees perceive a pattern and then
sue the employer for not promoting people of a particular race,
nationality or other characteristic.
If It Looks Like Discrimination . . .
There's a lot you can do to make sure your practices
don't appear discriminatory. "You can't stop people
from suing you, but you can be in a position to defend
yourself," says Eve Rachel Markewich, a litigator of
employment law with New York City firm Tenzer Greenblatt LLP.
"And you can run [the kind of] workplace [where] employees
won't want to sue you. Make them believe that what matters is
the job they do, not what they look like."
First, make sure your business has a policy of not
discriminating on the basis of age, gender, disability, national
origin or race, and post the policy where employees can see it.
"Train managers to promote based on job requirements, not
whether they're more comfortable with men," Markewich
says.
You'll also need to clearly state your expectations (such as
meeting deadlines) and create job descriptions for all positions.
Use them in regular evaluations. Point out any weaknesses and
discuss how to address them. That way, employees will know how you
think they're doing and won't be surprised if passed over
for a promotion. Keep a copy of your comments in the employee's
personnel file so he or she knows what's in there. Hoffman
notes many employers prefer to avoid conflict and hurt feelings by
insisting employees are doing fine when, in reality, their
performance has been marginal. "One scenario we often saw [in
EEOC complaints] was the employee being told year after year he was
doing fine, but he was never promoted," she says. "It
begins to look like the company just never promotes
minorities."
Jan Fink Call, an employment law attorney with Hoyle, Morris and
Kerr LLP in Philadelphia, advises employers to list several
criteria for the job the promotion will fill. Does seniority count?
Are particular skills needed? Post your criteria when you announce
the job opening, and refer to the criteria when considering
employees for the promotion. Preparing a sheet listing the criteria
and taking notes on it as you interview each candidate will help
keep the process objective and give you a valuable record in case
there are any questions or claims later. "If someone is just
plucked from the ranks when others have no knowledge there was a
job opening, they wonder why this person was chosen," Call
says.
With objective criteria in place, there's no need to be
nervous just because one of the candidates for the position happens
to belong to a protected class. "I tell employers not to look
at that," Call says. "Don't deviate from your
procedures just because there's an African American or Latino
in the mix." She adds that it may also help to have two or
three people involved in the decision, especially when considering
several candidates. In a recent court case, one member of the
management team made an inappropriate comment about the
candidate's age, but the judge determined that wasn't
enough to show age discrimination because two others were involved
in the decision.
Make sure you keep a record of why you decided to promote one
person and not others. "The problem a lot of employers have in
litigation is that they had a reason at the time, but didn't
bother to write it down," says Miller. "You say
you'll make notes tomorrow, but tomorrow never comes until the
lawsuit gets filed. In litigation, it doesn't play very well to
say you were too busy."
Page 1 |
2 