Information for Employers

Employment discrimination occurs when an employer singles out an employee because of that employee’s characteristics or traits, such as age, race, gender, religious preference or disability. Such discrimination occurs in many forms but is most common in the areas of termination, promotion, wages and harassment.

Employment discrimination, under most circumstances, is illegal and prohibited by a host of constitutional provisions and statutes. Some state laws actually give more protection to workers than federal law does by prohibiting discrimination based on factors not covered at the federal level, such as sexual orientation.

How to Prevent Discrimination

One of the most effective measures that an employer can take against discrimination claims is to simply prevent them. Instead of waiting to react to such a claim, preventing the claim from ever occurring will save the employer time, money and frustration. This is particularly evidenced in the Equal Employment Opportunity Commission‘s latest figures: In 2007 alone, more than $345 million was paid to employees whose discrimination claims were successful. Thus, it is definitely worth an employer’s time and money to try to make discrimination claims a rarity.

The principal step in preventing discrimination is becoming familiar with what the law allows and, more importantly, what it prohibits. Familiarity should cover all areas of work practices, including interviews, pre-employment tests, pay grades, benefits, raises and promotions.

The second step in preventing discrimination claims is publicizing the law to employees, making them aware of the importance of discrimination matters and, likewise, conveying the fact that such behavior will not be tolerated.

Possibly the best way to do this is to hold a meeting — possibly periodically — to discuss discrimination matters. The EEOC offers free publications and posters. The law requires employers to post notices regarding federal law as it pertains to discrimination.

Responding to Discrimination Claims 

If a discrimination claim is filed, the employer will receive notice of the claim within 10 days. The notification will give the employer basic information about the charge (the claimant, the basis for the charge, the allegation and the date of the alleged discrimination). The notice will also give instructions to the employer on the upcoming process as well as the employer’s duties regarding the claim (such as retaining records regarding the claim).

The law strictly prohibits employers from retaliating against employees who have filed a discrimination claim. Such employees are to be treated as if nothing has happened. Engaging in retaliatory behavior may subject the employer to another claim in addition to the original discrimination claim.

After the notice has been mailed, the employer most likely will be asked to provide a statement and information regarding the investigation. Additionally, EEOC investigators may visit the employer’s business and interview other employees. Although hiring an attorney during this process is not required, each step of an EEOC investigation is important, and an employer might benefit from the knowledge and experience of an attorney familiar with the process. Once the investigation is complete, the EEOC will rule on whether the discrimination claim is valid.

If it decides that discrimination has occurred, it will send notices to the parties to enter into mediation. If mediation talks are not successful, the EEOC or the employee may file a lawsuit.

If the EEOC determines that the claim has no basis, it will dismiss the charge and notify the employee that he or she has a right to retain a lawyer and sue the employer.

Defenses to Discrimination Claims

Many defenses exist in a discrimination suit; the defenses available to a certain employer often depend on the claim.

One defense that is always available is that the employee simply did not comply with the employer’s policies. This may include arriving to work late, taking a long lunch, not getting work done on time or simply refusing to follow an order. This defense relies on an employer’s meticulous records regarding the employee’s behavior. The more documentation an employer has regarding employee insubordination, the better his or her chances are of showing that the adverse action taken against the employee was not because of discrimination but because of the employee’s actions.

Another defense sometimes available is a bona fide occupational qualification (BFOQ), which is a legitimate qualification for a job not aimed at any particular class of people. For example, commercial pilots have mandatory retirement ages. That requirement is a bona fide qualification for that job, even though it incidentally singles out older pilots. The BFOQ defense is sometimes used in discrimination claims based on age or disability; however, the defense is almost never available in any other case of discrimination (such as race, religion or sex) because it is almost impossible to justify a legitimate policy that just happens to target a particular group, such as black, Muslim or female employees.

Claims based on both the Americans with Disabilities Act and sexual harassment have specific defenses available because of the way the law is written.

Last update: Nov. 5, 2008