I've had many clients tell me they can't believe they're being sued for discrimination. They tell me they treat their employees fairly, that they're not bigoted, that they would never discriminate against employees on the basis of their race or ethnicity or age or disability. They tell me they believe in equal opportunity, that their own nephew has a disability, and that their grandfather came to America on a raft, or through Ellis Island, and spoke of the pain of discrimination. They point to their multicultural, multiracial, age-diverse workforce and ask, "Does it look like we discriminate? Are you kidding me?"
I get it. But here's the thing: Even good employers can be accused of discrimination. Even a champion of women's rights such as Oprah Winfrey can have her company be the target of a pregnancy discrimination lawsuit. Even the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal discrimination laws, can be accused of disability discrimination against one of their own employees. Bad things happen to good employers.
There are many reasons for this. Here are a few:
- You don't know your managers as well as you think you do. Sure, that manager you repose so much trust in seems like a really nice guy – when he's around you and other managers. But do you really know how he behaves around his subordinates? If he's a bigot, he's not going to make this obvious, not in this day and age. Bigots used to wear their bigotry on their sleeve. Today discrimination plays out in more subtle ways.
- Some employees have a persecution complex. These employees have a tendency to attribute disciplinary actions to discrimination rather than their own shortcomings. Treating such employees fairly will not insulate you from a discrimination lawsuit.
- Some employees claim discrimination in bad faith. Sensing a disciplinary action coming, they claim discrimination as a preemptive strike, knowing that any subsequent action taken against them may be seen as retaliatory.
- Sometimes employees and employers have legitimate disagreements over whether an action is discriminatory. Take "English-only" policies in the workplace. Generally they are impermissible except when necessary to promote safety or efficiency. But what is "necessary" is often in the eye of the beholder. Similarly, the Americans with Disabilities Act may require an employer to offer a reasonable accommodation to a disabled employee. But reasonable people may disagree over what is reasonable.
The bottom line is that no employer large enough to be covered by employment discrimination laws is immune from a discrimination lawsuit. But knowing the law, and keeping abreast of enforcement patterns, new legislation and regulations, and developments in case law can help you reduce your risk.