What Are the Main Areas of Employment Discrimination Claims?
Consider These Four Issues before Firing or Downgrading an Employee:
To avoid violations, we must be aware of what constitutes employment discrimination. Age discrimination, sexual harassment, disability terminations and discrimination based on race or ethnicity are made unlawful by G. L. Ch. 151B. This complex statute is enforced by the Massachusetts Commission against Discrimination (MCAD). The following touches upon some of what an employer should be aware of. Providing seminars for management and employees by us or others is a wise preventive measure that MCAD endorses.
1. Age Discrimination
Be aware that anyone over age 40 is in a “protected” or suspect class for age discrimination. If you failed to promote when qualified a more senior employee and hire or promote a much younger less qualified person, or terminate that older person and hire a much younger person without documentation of valid reasons not pretext for discrimination, you face greater exposure for age discrimination claims.
What can you expect if you get caught up in an age discrimination situation? You could face the double damages discussed in the “advice to employees” section of this web site. Such punitive awards are among the most potentially detrimental in the employment field.
2. Sex Discrimination / Sexual Harassment
Sex discrimination covers a broad range of prohibited actions from failure to treat different sexes the same or those with different sexual orientations the same to failure to protect the rights of pregnant employees. Sexual harassment lawsuits have been a growing field in employment discrimination law for years. As long as human nature is what it is, a business is at risk for sexual harassment claims. Number one in prevention is to establish a strong, no tolerance policy, communicated to all employees, through periodic training in sensitivity and prevention. Additionally, there needs to be careful monitoring by and, in particular, of managers as well as line employees.
The next step to handle sexual harassment issues is prompt investigation of complaints and appropriate remedial action. This can require outside help in conducting the investigation, because false accusations that can damage a career may result in a lawsuit as well.
Elements of sexual harassment include traditional “quid pro quo” situations, where a manager seeks sexual favors for advancing an employee or for not taking a negative employment action. We have handled an unusual case of a consensual love affair between a CEO and a high level manager that led to a wrongful termination claim. Creation of a “hostile work environment” is the often misunderstood basis for claims of sexual harassment.
3. Handicap or Disability Discrimination
The third area of discrimination claims that many companies face with frequency is Disability (the federal Americans with Disability Act) charges or under handicap discrimination under Massachusetts law. When an employee reports a medical problem and requests a reasonable accommodation, it is often time to consult an employment attorney. Both the legal definitions of whether that person qualifies as a handicapped person and how the definitions are applied are constantly being litigated and are very fact specific.
G.L. Ch. 151B defines a “handicapped person” as any person who “(a) [has] a physical or mental impairment which substantially limits one or more major life activities. . . (b) [has] a record of such impairment; or (c) [is] regarded as having such impairment.”
Attorney Morse had a case before the Massachusetts Court of Appeals involving the definition of handicap in the case of an employee who has Attention Deficit Disorder and Dyslexia. A major defense in such situations is that an employee is unable to meet the essential requirements of the job or unable to show that the handicap meets other requirements such as that it impairs the ability to function in a broad range of jobs. These can be potent defenses when raised by knowledgeable employment counsel.
4. Race (Ethnicity)
Employment discrimination claims based on race and ethnic disparate treatment still occur in the workplace if our firm’s practice is any indication. If you fire a poorly performing employee who falls within a protected class, he or she may well try to claim discrimination. The good news is that the MCAD cases show an even-handed approach when a race neutral employer fairly applies honest employment standards in the workplace. It dismisses a significant share of discrimination claims for lack of probable cause. As in any claim of employment discrimination, a policy of fairly promoting minorities, women and gays and properly documenting employment problems beforehand or getting statements of performance or other problems from managers and fellow employees on a regular basis is the best defense to false claims of discrimination.