There is no place for discrimination in the workplace, and there are laws that prevent employers from treating employees unfairly due to race, gender, disability, religion, and age.

However, employees and employers can have opposing perspectives on a workplace decision, potentially resulting in discrimination complaints. In these situations, employers should know how they can defend against such serious accusations.

Know the Laws

First and foremost, employers should know what they can and cannot do under federal and state laws. Federal laws, such as Title VII of the Civil Rights Act of 1964 (Title VII), prohibit discriminating against members of protected classes and retaliation against employees engaged in protected activity.

In this state, the Fair Employment and Housing Act and the California Family Rights Act provide additional protections for workers. 

Employers must familiarize themselves with these laws and should speak with an experienced employment attorney to better understand how to comply with them.

Keep Detailed Records

Most employment relationships are at-will, which means both the employer and employee can terminate the relationship at any time, with or without cause. However, there is an important exception to this rule: employers cannot take an adverse action such as termination of employment against someone for discriminatory reasons.

Thus, when making the decision to fire an employee, employers need to have clear documentation showing that the decision-maker had legitimate, non-discriminatory reasons for making the decision to terminate. Such documentation could include:

  • Poor performance reviews;
  • Customer complaints;
  • Time reports detailing work absences or tardiness in excess of those allowed by the company’s policies;
  • Prior warnings were given to the employee specifying the job performance issues and the need to correct these issues;
  • If the company has a policy of “progressive discipline,” that the steps and procedures in the policy were followed prior to making the decision to terminate.

Remember the adage that experienced trial lawyers know well: “it’s not what you know, but what you can prove.” Thus documented evidence is crucial in defending an employment decision should an employee make a claim of unlawful discrimination.

Take Every Complaint Seriously

Even if employers disagree with the claim that an employee experienced discrimination, it is of paramount importance that employers take every complaint of discrimination seriously.

This means investigating each situation diligently, interviewing the parties involved, and addressing the issue immediately. It also means being open, fair and respectful to the person asserting the claim during the investigation process. And also remember: each step of the investigation process should be documented. Furthermore, be sure to keep the matter and the reasons for the investigation private and confidential from other employees and third persons..

Employers would be wise to refrain from taking immediate disciplinary action, which could be also construed as unlawfully retaliatory or unnecessary. Instead, as noted above, if the company has a progressive discipline policy, or other applicable procedures or rules such as those that may be described in an employee handbook, the employer should follow them.

Employers do not want to be accused of discrimination, but preparation and an appropriate response can be crucial if it happens. Contact me at [email protected] or 415-403-4441 if you have questions or need guidance regarding discrimination claims.