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A Better Partnership

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Feb 2006
16
February 16, 2006

What Businesses Should Know About -- Employment Discrimination

This article gives an overview of the employment discrimination laws, explains how to prevent workplace discrimination and relates how to avoid litigation and enhance your chances of success if sued.

Who Is Protected?

Federal and Michigan laws prohibit an employer from terminating an employee, or otherwise discriminating against an employee, because of the employee's race, color, national origin, sex (including pregnancy), age, religion or disability. In addition, Michigan law protects individuals based upon their height, weight and marital status. An employer also may not terminate or take other adverse employment action against an employee in retaliation for engaging in certain protected activities, such as filing a workers' compensation claim, seeking leave under the Family and Medical Leave Act, trying to improve terms or conditions of employment, or bringing a discrimination complaint.

Sexual harassment receives a lot of attention, but it is really just one form of sex discrimination. Federal and state laws also prohibit harassment based upon other protected characteristics such as race or religion. The term "discrimination" in this article includes harassment.

An employer must be careful not to discriminate in hiring, discipline, termination, or in any other term or condition of employment, such as pay, benefits or promotions. Unlawful discrimination includes intentionally taking adverse action against a person because of the person's race, age or other protected characteristic. Unlawful discrimination can also include unintentional actions that have a disproportionate impact on one class of people, such as an employment qualification standard that tends to screen out racial minorities or women, if the standard cannot be justified by business reasons.

How Can You Ensure a Discrimination-Free Workplace?

Efforts to keep your workplace free of discrimination should first come from the top. All employees should be able to see that top management is firmly committed to equal employment opportunity, and that the company will not tolerate discrimination. Some concrete steps you can take to eliminate discrimination in your workplace include the following:

  • Adopt a nondiscrimination policy. Publish it in your handbook and post it on your bulletin boards. Make sure that all employees receive a copy of the policy. Educate your employees about the policy, and make it clear that your company will not tolerate discrimination in the workplace.

     
  • Include a reporting mechanism in your nondiscrimination policy so that employees can make the company aware of unlawful discrimination without any fear of retaliation.

     
  • Quickly and thoroughly investigate any complaints of discrimination, and discipline any offenders appropriately.

How to Protect Yourself From Litigation

There is no guarantee that you will never be sued, but there are steps you can take to minimize the chances of a lawsuit, and to maximize your chances of winning if you are sued. These include:

  • Follow the steps outlined above.

     
  • Treat employees consistently. Treat similar problems with similar discipline. Courts pay close attention to this issue, and it is very difficult to explain inconsistent treatment.

     
  • Make the punishment fit the crime. One tardy does not warrant discharge. On the other hand, do not overlook serious infractions or treat such behavior with a mere slap on the wrist.

     
  • Document performance problems. Be honest in performance evaluations and be sure to note weaknesses and problem areas, instead of sugarcoating things. If you terminate an employee for poor performance, and that employee sues you for discrimination, nothing is more damaging to your case than a long trail of stellar performance evaluations.

     
  • Even if you have not received any complaints of discrimination, keep your eyes open and address any known problems quickly. Once a company knows about discrimination, it is liable if it does not take prompt, corrective action. Do not let trouble fester.

     
  • Make sure that your employees' conduct and language would be acceptable in court, because you may have to explain it in court. Do not tolerate vulgarity, sexually explicit pictures, offensive slurs, and the like.

What If You Are Sued?

Employees can file a charge of discrimination with the Equal Employment Opportunity Commission, the Michigan Department of Civil Rights, or other federal or state agencies in appropriate cases, or in some cases they can proceed directly to court and file a lawsuit. In a discrimination case the court or agency is usually empowered to order reinstatement or a similar remedy, or to award monetary damages that may include back pay, front pay, damages for physical injury and emotional pain and suffering, and sometimes attorney fees. The stakes are high if you are sued, and so to protect yourself you should immediately consult with an attorney.

If you have any questions about employment discrimination or other employment law issues, contact your WN&J attorney.


The HR Basics Kit

Imagine the peace of mind of knowing that your HR policies are up-to-date and in compliance with the myriad of federal and state employment laws. Imagine being able to consult with an attorney when difficult questions arise, without fearing the size of the legal bill. Imagine having reference materials at your fingertips for those HR issues that arise every day. The Warner Norcross & Judd Human Resources Basics Kit provides all of this so that you can put your HR function on solid footing. For one low fee of $2,500, we will provide you with HR forms and policies tailored to your business, including an employee handbook, harassment policy, e-mail and Internet policy and much more. We'll also provide useful reference materials on various HR topics that you encounter frequently. Also included in the fee are five hours of attorney time, so that you can consult with one of our employment attorneys whenever those sticky questions arise. With the HR Basics Kit, you can rely on the legal expertise of the largest law firm in West Michigan while at the same time controlling your budget. For more information about the HR Basics Kit, contact your WN&J attorney.

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