Employers have a legal obligation to investigate claims involving a variety of different types of alleged discrimination in the workplace. Given recent events, claims of race and sex discrimination in the workplace are making headlines. If you are faced with a claim of race or sex discrimination, it is imperative that you understand the law and know how to respond.
The Law
The Civil Rights Act of 1964 prohibits discrimination in the workplace based on a number of characteristics including race and sex. When faced with a claim of race or sex discrimination, it is vital to understand exactly what Title VII prohibits.
Race discrimination involves treating an applicant or employee unfavorably because he/she is of a certain race or because of personal characteristics associated with race, such as hair texture, skin color, or certain facial features. Color discrimination involves treating someone unfavorably because of skin color complexion. It is also considered discriminatory under Title VII to treat someone unfavorably because he/she is married to or in a relationship with someone of a certain race/color.
Sex discrimination involves treating an applicant or employee unfavorably because of that person’s sex. It is also unlawful to harass someone because of his/her sex. This includes both sexual harassment and harassment aimed at a person’s sex in general. The recent decision handed down by the U.S. Supreme Court added additional protection for members of the LBGTQ community under Title VII. Writing for the majority, Justice Neil Gorsuch said “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
How to Respond
Update the Company’s Written Policies In light of both the recent protests against racial discrimination and the Supreme Court decision adding protection for LBGTQ members under Title VII, now is a good time to review your company’s written policies relating to discrimination in the workplace and make any necessary updates or revisions. Once you are certain your written policies reflect the current state of the law, distribute the updated manual and consider conducting a seminar to ensure that supervisory and management personnel are clear on what constitutes discrimination in the workplace.
Meeting with the Employee/Applicant When faced with a claim of discrimination, addressing the complaint promptly is key to potentially preventing an escalation of the situation that can lead to litigation. Specifically, ask the employee/applicant why he believes he was treated differently than other employees or applicants, and make sure to find out if others of a different sex or race were treated more or less favorably than the complainant If examples of unfavorable or unequal treatment are offered, be sure to take note of the employees involved so you can speak to them directly if necessary.
Determine if an Investigation is Needed: After meeting with the employee/applicant, determine if a full investigation is warranted. If no evidence of discrimination on the basis of race or sex was uncovered then determine if the matter needs to be addressed with the employee’s supervisor in order to resolve the concerns or if other remedial action needs to take place. And always follow up with the complainant to close the matter out. However, if your preliminary investigation was inconclusive, or did uncover signs of potential discrimination, it is time to launch a full investigation.
Investigating the Claim: A full investigation may include official interviews with a supervisor and additional witnesses, as well as reviewing company records and documents in an effort to determine if the complainant was treated unfavorably because of his/her race or sex. If the employee/applicant was turned down for a position, find out why and consider whether race or sex was a factor in that decision. If an employee was disciplined, find out if the disciplinary action taken was in line with company policy and was similar to action taken with other employees.
Consider Using Outside Investigators: Because of the nature of race and sex discrimination claims, emotions can run high internally – regardless of the professionalism of HR staff or others involved in resolving claims. Bringing in an external investigator who can truly be an unbiased reviewer can help ensure investigations are conducted in a thorough manner and demonstrate your company’s commitment to addressing discrimination allegations in an appropriate manner.
If you have additional questions or concerns regarding claims of race or sex discrimination in the workplace, contact Ablin Law by filling out our online contact form or by calling 312.288.2012.
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