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Discrimination / Harassment

Make pre-firing investigation truly independent

03/09/2009

You might have rogue managers in your midst without even knowing it. If one of your supervisors has it in for a subordinate for discriminatory reasons, and you rely on his recommendation to terminate an employee, you may be in trouble.

Use solid research to back business-necessity defense when deciding not to accommodate

03/09/2009

Few employers win ADA cases by using a business-necessity defense. That’s probably because few employers take the time to really lay out why their business cannot accommodate a particular disability. Now the 11th Circuit has decided a business-necessity case that can serve as a blueprint for employers that want to use it effectively.

Proactively stamp out racist behavior to cut liability for hostile environment

03/09/2009

When employees claim they were forced to work in a racially hostile environment, the law says they can go back far into the past to show a pattern of harassment. Taken together, isolated acts that wouldn’t be severe enough to create a hostile environment may create liability. But an employer doesn’t have to be a hostage to its past.

Warn bosses: Preconceived notions about disability can violate the ADA

03/09/2009

Some conditions aren’t serious enough to constitute disabilities, but some supervisors wrongly assume they do. That’s a major problem: By assuming a condition is disabling, they’re “regarding” the employee as disabled—something the ADA prohibits. Thus, the ADA protects even employees who aren’t disabled.

Lilly Ledbetter Fair Pay Act already spurring more cases

03/09/2009

The Lilly Ledbetter Fair Pay Act has opened the litigation floodgates. Already, federal courts hearing Florida cases are reinstating lawsuits they would have easily dismissed just weeks ago.

Track shift assignments to ensure fairness to all

03/09/2009

If your organization operates several shifts to get its work done, you probably have a system in place to make sure shift assignments are drawn up fairly. If you don’t, consider implementing such a system now.

Offer alternatives to layoffs—but don’t expect your good deed to go unpunished

03/06/2009

Courts understand that today’s economic climate is difficult. They aren’t likely to assume a company is restructuring or downsizing solely to “get” some employees. That’s especially true for employees lucky enough to be offered an alternate position—and then turn it down in order to sue.

Take strong stand against harassment with policy—and punishment for harassers

03/06/2009

There’s no sure way to protect your organization from a rogue supervisor who sexually harasses a subordinate. However, you can reduce your liability with a strong, proactive stand against any supervisor/subordinate personal relationships.

Post promotion opportunities, keep records of applications

03/06/2009

Base your promotion process on a well-publicized system of posting opportunities and tracking applicants—not word of mouth or personal recommendations. It’s the best way to prevent failure-to-promote lawsuits. After all, if you can show an employee didn’t apply for a promotion, the case disappears.

No sovereign immunity for public school bodies

03/06/2009

Generally, state agencies can’t be sued in federal court for federal employment law violations unless they have explicitly agreed to give up their right to sovereign immunity. Even so, federal courts are reluctant to leave employees out in the cold.