Where Workplace Discrimination Claims Start
A workplace discrimination claim starts when an employee challenges an employment decision and claims that the employer treated that employee differently because of a protected characteristic. Employment decisions that trigger discrimination cases span the full employment relationship, from not hiring an applicant or paying one employee less than another, to denying a promotion, acting on alleged misconduct or poor performance, ending employment, or mishandling a complaint.
To protect against discrimination claims, employers should document the reason for each employment decision and identify the person who approved it. Employers should also record the facts available to the decision-maker at the time and whether the employer applied the same standard in a comparable situation. When employer records are inconsistent or contain gaps, the decision becomes harder to defend once it is challenged.
Anti-Discrimination Policy Requirements and Supervisor Accountability
Written policies set expectations for workplace conduct, but supervisors control whether those standards are applied in practice.
Anti-Discrimination Policy Scope
An anti-discrimination policy should make clear which employment decisions it governs so employees and supervisors know where the rules apply. Coverage should extend to hiring, compensation, promotion, discipline, termination, leave, benefits, and workplace opportunities, and the policy should also prohibit retaliation against employees who report discrimination or participate in a discrimination investigation.
Reporting Procedures
Employees need more than one way to report discrimination so no one has to report to the supervisor or manager accused of the conduct. Complaints should go to HR as the primary contact, with a manager outside the employee’s reporting chain as an alternative. Managers who receive a complaint should send it to HR immediately and not investigate or resolve the issue on their own. The policy needs to state what information the employer will keep confidential and what information the employer will share during a discrimination investigation.
Supervisor Expectations
Supervisors take part in hiring, performance reviews, discipline, and promotion decisions and create the records that employees later challenge in discrimination cases, so the policy should set rules for how they handle those responsibilities. Supervisors should rely on job-related criteria and document the reason for each action when they make it, and accommodation requests should be referred to HR before denying a request or changing job duties.
Employment Decisions That Need Consistent Standards
Employers need to apply the same standards across common employment decisions and record how those standards are applied so the record shows why one outcome differs from another. Supervisors apply those standards in hiring, performance reviews, discipline, pay, and promotion decisions.
When an employer handles similar situations differently and cannot point to a documented reason, employees use that difference as the basis for a discrimination claim.
Hiring Standards and Interview Practices
A job description should identify the actual duties of the position and the qualifications required to perform those duties. Interviewers should ask candidates the same core questions and evaluate answers against the duties and qualifications so each candidate is measured against the same standard. Interview notes should tie each candidate’s answers to the duties and qualifications and show why one candidate was selected over another.
Pay
Employers should set employee pay using defined criteria and record how they apply those criteria to each employee. The record should show why one employee is paid differently than another in the same role. When employees in comparable positions are paid differently without a recorded reason, employees can use the pay difference as the basis for a discrimination claim.
Performance, Discipline, and Promotion
If a performance review shows that an employee is not meeting job expectations, the review should explain what the employee did or failed to do and how that conduct fell short of the employer’s standards. When a performance or conduct issue leads to discipline, the employer should apply the same level of discipline to employees who engage in the same conduct or record the reason for issuing a different level of discipline. When an employee meets or exceeds job expectations, promotion decisions should follow the same approach, with the record explaining why one employee was selected over another. When an employer treats employees differently for similar conduct or performance and does not record a reason, employees can use that difference as the basis for a discrimination claim.
Accommodation Requests
Employees ask for changes to their job duties or work schedules when a medical condition limits their ability to perform a job duty as assigned or when a workplace requirement conflicts with a religious practice. Federal law governs how employers respond to accommodation requests by requiring the employer to decide whether to provide an accommodation and to record the reason for the decision.
Disability Accommodations (ADA)
The Americans with Disabilities Act requires employers to respond to accommodation requests by determining whether the employee is unable to perform the job as it is currently structured and whether providing a reasonable accommodation would allow the employee to carry out the duties of the position. An accommodation request can be made when an employee states that they cannot perform a job duty because of a medical condition or when a supervisor observes that the employee is having difficulty performing the job and the employee indicates that the difficulty is related to a medical condition. Supervisors should route accommodation requests to HR and should not make accommodation decisions on their own.
Religious Accommodations
Under Title VII of the Civil Rights Act of 1964, employers are required to respond to accommodation requests based on an employee’s sincerely held religious belief or practice. Employees tend to raise religious accommodation requests when a work schedule conflicts with a Sabbath or religious holiday, or when a workplace rule requires conduct that conflicts with a religious practice. An accommodation request can be made when an employee states that a workplace requirement conflicts with a religious belief practice or when a supervisor observes a conflict and learns that it is tied to a religious practice. Supervisors should route accommodation requests to HR and should not make accommodation decisions on their own.
Documentation and Decision-Making for Accommodation Requests
To comply with the Americans with Disabilities Act and Title VII, HR should document what accommodation the employee requested and record the job duty or workplace requirement the request relates to. HR should also record what job duty the employee could not perform without an accommodation or what workplace requirement conflicted with the employee’s religious practice, and what accommodation the employer provided or refused. If the employer denies the request or provides a different accommodation, the record should explain why the requested accommodation was not provided and what accommodation the employer will provide instead. When employees request similar accommodations and receive different responses, the employer should record the reason for the difference. When the employer does not record a reason, employees can use the different response as the basis for a discrimination claim.
Complaint Response, Investigations, and Retaliation Review
Even when employers apply consistent standards, employees may raise discrimination complaints. Discrimination complaints typically center on one employee mistreating another because of a protected characteristic, or an employer taking action against an employee after the employee reports discrimination or takes part in an investigation. How the employer responds to a complaint determines whether the issue is resolved or becomes a formal case.
When an employee reports conduct that may violate anti-discrimination laws, the steps below can help guide the response:
- Send the complaint to HR immediately. Supervisors should not question employees about the complaint or attempt to resolve it.
- Write down exactly what the employee reported, including what happened and when it occurred.
- Match the reported conduct to the company’s anti-discrimination or anti-harassment policy that reflects anti-discrimination law.
- Speak with the employee who made the complaint and the employee accused of the conduct, and write down what each person says.
- Review emails, messages, or other records that relate to the complaint.
- Decide what occurred and apply the same standard used in prior situations with similar conduct.
If the employer disciplines an employee or takes other action, the record should state the conduct and the rule it breaks. If the employer decides not to discipline the accused employee, the record should state that the employer did not find support for the conduct reported or that the conduct does not break the policy. When similar complaints lead to different outcomes and the employer does not record a reason, employees can use that difference as the basis for a discrimination claim.
Internal Review of Employment Practices
Employers should review employment practices on a regular basis to confirm that supervisors apply the same standards and follow the same procedures across the workplace. A comprehensive review process could include the following steps:
- Pull a set of recent employment decisions and compare each one to the written policy to confirm that the employee’s conduct and the employer’s response match the rule.
- Examine hiring decisions and confirm that each one states the candidate’s qualifications and the rule used to select that candidate.
- Review discipline, promotion, and pay actions and be sure that each one states what the employee did and the rule used to reach the decision.
- Inspect accommodation requests and confirm that each one states what the employee requested and what the employer provided or refused, along with the reason for that decision.
- Analyze discrimination complaints and verify that each one states what the employee reported and how the employer responded.
- Compare similar situations and make sure that the same conduct leads to the same outcome, or that the reason for a different result is stated.
Employer Guidance From Conn Maciel Carey LLP
Conn Maciel Carey LLP’s national Labor & Employment Practice helps employers prevent discrimination cases by reviewing policies against employment decisions and the documentation that supports them. Supervisors are trained to document what happened and apply the rule that governs the conduct, and employers are guided through investigations and accommodation requests so every response is recorded and defensible. To speak with one of our attorneys, contact us at (202) 715-6244.