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Three Tips for Employers From an Employee Attorney’s Perspective

While O’Connell & Plumb, P.C. primarily represents employees in employment discrimination cases, we have a substantial number of employers that we represent as well.  As attorneys who represent employees, we often have a different perspective to offer our employer clients when faced with possible discrimination claims.  This article will share three of those tips (free of charge).

  1. Don’t Adopt a Zero Tolerance Policy for Discrimination Unless You Actually Plan to Follow it

Often times in a Personnel Policy Handbook an employer will state that they have a “zero tolerance policy” for sexual harassment and/or discrimination.  That sounds good on paper.  An employer that never tolerates sexual harassment – who could disagree with that?  The problem comes when the employer doesn’t follow their own policy.

Let’s say a long-term employee named Joe (a manager) decided to share some of his sexual exploits in the lunch room one day.  Jan was present, was understandably offended and went to Human Resources to complain.  Joe admits to the comment, admits it was wrong and voluntarily apologizes to Jan for his comments.  Joe’s not terminated, but instead is given a verbal warning.  It never happens again.  Assuming that this isolated event would be enough to constitute an actionable claim of sexual harassment (which it probably would not be), an attorney for Jan could easily argue that the company clearly violated it’s “zero tolerance” policy by failing to fire Joe.  By giving Joe a verbal warning, the company has essentially “tolerated” the conduct and is in violation of its own policy.  That’s a big no-no in the world of litigation, and an employee’s lawyer will happily use that to their advantage.

  1. Don’t Always Contest Unemployment

Contesting unemployment is not always a good idea.  For example, if an employer anticipates that a former employee is going to bring a discrimination claim in the future, not contesting a claim of unemployment may be a very good idea.  First, a Plaintiff (the employee) has a duty to mitigate her damages.  This means she will have to try to limit her lost wages.  If she is allowed to collect unemployment, then she is already reducing their lost wages (and the employer’s potential exposure).  Second, at an unemployment hearing current employees may be required to testify under oath as to what occurred.  If an employer contests unemployment, the employer has now committed itself to the defense that it will need to take in the future and the Plaintiff’s attorney has now been given a lot of “free” information prior to filing suit.  Finally, in some jurisdictions, contesting unemployment can be considered to be a form of retaliation (i.e. a further reason to sue the employer).

  1. Don’t Fail to Conduct an Investigation Even if the Employee Has Quit

An employee will commonly put an employer on notice of discriminatory events while they are walking out the door.  Often times employers make big mistake by not investigating the claim because they think “why?  Fred quit.  Who cares?”  Well, the employer should care.  A jury could easily get upset with an employer’s failure to investigate and hold that against the company.  Just as important, failing to investigate and appropriately respond may open an employer up to future claims.  For example, say Sally, a site-supervisor, routinely used racial slurs in the workplace against African American individuals.   Sam, an African American, decides he cannot take it anymore and quits.  When he quits he sends an email outlining all the times that Sally has used these inappropriate terms.  The company doesn’t investigate because Sam is no longer a current employee.  Sally continues to use such terms and now offends Rachel.  The employer now has two potential claims on its hands, and Rachel’s claim is even stronger because the employer had notice of Sally’s conduct and failed to do anything.

Bottom line – an investigation should always be done.


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