Employers that prepare as if they will be sued over every employment decision will win most discrimination cases. That’s because those employers are most likely to:
- Have a clear set of rules for employees to follow
- Document all rule violations
- Be prepared to show that they enforced those rules consistently and evenhandedly
Employers that get sloppy most often lose lawsuits.
If you follow the guidelines above, chances are no fired employee will successfully sue you for discrimination or retaliation.
Recent case: Jimmy Gibson and several co-workers sued Fluor Enterprises, their former employer, alleging they had worked in a racially hostile environment and had been retaliated against after they complained. All the workers are American Indians.
They claimed the portable toilets they used on site had ugly racist graffiti on the walls, and that sometimes others made offensive remarks about their heritage. All the workers said they were fired after they complained about the hostile environment.
The court first dismissed their hostile-environment case, explaining that the graffiti and comments simply weren’t severe enough to warrant a lawsuit. But the court took more time to consider whether they had been retaliated against for making the complaint in the first place.
The court reviewed each discharge. The company said it fired one for threatening a supervisor with a welding tool, another for overturning a truck, yet another for working within six feet of the edge of an elevated platform without a safety harness and yet another for getting into a fight. The co-workers couldn’t point to others who had committed similar offenses who had not been punished, or to any obvious link between their complaints and the . The court dismissed the rest of their case. (Gibson v. Fluor Enterprises, No, 07-1881, 4th Cir., 2008)
Advice: Take the time to conduct a disciplinary audit to check for uniform punishment.
- Check severity of harassment allegations when facing hostile environment claim
- Single crude incident doesn't warrant lawsuit
- Beware reverse discrimination risk of overly aggressive minority recruiting
- Intentional bias can spur court to install applicant into job.
- Downside of providing a recommendation on an employee's social media page?