Education is Key to Avoiding a Discrimination Suit

The field of employment discrimination law is incredibly complex and littered with pitfalls for the uneducated employer.  There are more laws and regulations in place now governing employer-employee relations than at any other time in history.  What’s more, employees are becoming increasingly aware of their rights and are more willing to bring a lawsuit when they think these rights have been violated.  The result is that more employers each day are finding themselves on the receiving end of accusations of unlawful discrimination by their employees.

Part of the difficulty in complying with these anti-discrimination laws is that there are so many of them.  Nearly everyone knows that certain laws passed by the federal government prohibit discrimination based on such classifications as race, color and religion.  Yet most people are usually completely unaware that individual states, counties and even cities may each have in place their own unique anti-discrimination statutes and ordinances.  Complicating matters further is the fact that these laws often differ in their application. 

For example, the Federal Age Discrimination in Employment Act generally prohibits employers from making employment decisions based on an individual’s age.  Because the Act was designed to address age bias against older workers, it protects only those individuals who are forty years of age or older.  An employer might think, then, that it need not be concerned about issues of age discrimination in connection with employment decisions concerning an employee who is less than forty years old.  This is not the case.  The State of New York’s Human Rights Law also prohibits age discrimination in the workplace; but this statute protects persons eighteen years of age or older.

There have been many developments lately in the gay rights arena concerning rights to privacy and marriage.  As can be expected, there have been similar developments in the employment context.  While there is, as yet, no Federal law prohibiting employment discrimination based on sexual preference (i.e. homosexuality), in January 2003 New York State passed the Sexual Orientation Non-Discrimination Act (SONDA), which makes unlawful, among other things, the making of employment decisions based on a person’s perceived sexual preference.  Similarly, the New York City Administrative Code also prohibits such discrimination within the city’s limits, but unlike SONDA, the city code extends its protection to transgender individuals.  While SONDA does not permit the recovery of punitive damages or attorneys’ fees by a successful plaintiff, the city code does.

Even assuming an employer is aware of the different laws that apply to it, common sense and good intentions alone will not guarantee that the employer does not run afoul of these laws.  A real life example will explain.  The Family and Medical Leave Act (FMLA) requires private employers with fifty or more employees to provide their employees with up to twelve weeks of unpaid job-protected leave under certain circumstances.  One of my clients is a company with less than fifty employees, and so is not subject to the FMLA.  However, the client advised me that, because it felt sympathy for a long time employee who was experiencing some emotional problems, it had provided the employee with twelve weeks of leave despite the company having no obligation to do so.  Though the company was trying to do what it thought was right, it failed to see that by permitting this employee to take such leave, it had opened itself up to a potential claim of discrimination should it refuse to do the same for any other employee who subsequently requested the same or similar leave.

It is often very difficult for an employer to determine what its obligations are under these anti-discrimination statutes.  The federal Americans with Disabilities Act (ADA) requires that employers provide reasonable accommodations to qualified job applicants and employees who are defined by the Act as disabled.  Most people rightly assume that the ADA does not define as disabled, and so an employer need not accommodate, illegal drug users.  But many are surprised to learn that that the ADA does define as disabled a drug addict who is no longer using drugs.

Maintaining compliance with employment anti-discrimination laws is a difficult endeavor.  It is an area of the law where doing what feels right is not always the right thing to do. To minimize the risk of non-compliance, employers are increasingly turning to attorneys specializing in employment law for guidance. The outgrowth of consulting firms specializing in compliance training provides employers with an additional resource.  These firms possess the expertise to conduct compliance audits and to train management, staff and human resources personnel in all aspects of employment law compliance.

The Equal Employment Opportunity Commission (EEOC) is a federal agency created to enforce several of the federal anti-discrimination statutes.  Although the EEOC generally applies a more liberal interpretation to these statutes, the “Quick Start – Employers” and “Publications” sections of its website, at www.eeoc.gov, are good starting points for an employer that wants start educating itself in this area.  Another good resource is the New York Employment Law Letter; an eight page monthly newsletter that provides information about current developments in New York employment law and offers advice to management on employment issues.  You can view sample articles and subscribe to this publication by visiting its website at www.hrhero.com and clicking on the “State-Specific News” link.

Whether or not outside assistance is sought, it is in every employer’s best interest to educate itself and its employees in the area of employment law.  Knowing what type of conduct is and is not prohibited, and teaching employees to be sensitive to discrimination issues, is an employer’s best defense to a potentially costly discrimination lawsuit.  Here, as much as anywhere, the old maxim holds true: An ounce of prevention is worth a pound of cure.