Strategies to Reduce Discrimination Claims:
Basic Procedures for Minimizing Exposure to Claims of Employment Discrimination from Job Applicants and Employees.
Massachusetts employers (under both State and Federal law) may not, of course, discriminate against prospective or present employees based on race, color, religious creed, national origin, ancestry, sex, age, criminal record, handicap (disability), mental illness, retaliation, sexual harassment, sexual orientation, and genetics. In addition, employers have an affirmative responsibility to provide maternity leave to biological and adoptive parents. We need to be aware that any negative employment action not just termination may be considered discriminatory if it can appear that it discriminates.
As a start, for reducing or eliminating employment discrimination claims:
- In the case of any “problem employee,” we advise that employers begin to document performance problems, attitude problems, tardiness, or interpersonal issues and there is more to be done.
- The sooner you begin documentation, the better. Include information and even quotes referring to any discussion or dialogue you have had with the employee, and put the detailed notes in the personnel file and notify the employee under the new law.
In employment discrimination cases, the issue is frequently pretext – whether the reasons given were an excuse for intent to discriminate – in firing or other negative employment decision. “Pretext” is in the eye of the beholder, but we can help steer you away from such claims.
Keep in mind that, if a claim arises, the first thing an experienced plaintiff’s employment attorney will request from the company is to have a copy of the personnel file under Massachusetts law to see if you have a good defense. The employee’s personnel file is something you must make available to the employee for copying within five business days and up to twice a year. Employee records should be kept up to date.