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Protecting Your Workplace from Expensive and Time Consuming Claims of Discrimination: Steps You Can Take Today
We shared with you our philosophy on the Four Cornerstones of a Sustainable Workplace several months ago.  For a reminder on the Cornerstones click here.
In recent months, we outlined Cornerstone One of the Sustainable Workplace, Sustainable Hiring and On-Boarding Systems, to help you begin the employment relationship with clear and shared expectations for performance.  To review the newsletters that describe Cornerstone One click here.   
Cornerstone Two is reducing risk and increasing productivity through Sustainable Performance Management Practices.  This is a broad subject, from enforcing sound, legal policies and practices to having the sometimes difficult conversations on performance.  Upcoming newsletters will include tips and tools on how you can reiterate and enforce the expectations you established in Cornerstone One. 
In this Newsletter you will find the following tools and information you can use this month:
     •     How Can We Help?
Our next issue will provide more ideas for avoiding, identifying and responding to harassment and discrimination in the workplace.
Five Steps for Protecting Your Workplace From Claims of Harassment or Discrimination
1.     Understand the Laws that Govern Discrimination and Harassment in Your Workplace.  In California, depending upon the size of your workplace, you may be prohibited from discriminating unlawfully against employees based on their sex, race, color, creed, religion, national origin, ancestry, age, disability, medical condition (which includes genetic disorders), gender identity, sexual orientation, marital status, veteran status, workers compensation claim, union participation, or political belief.  This means you may not unlawfully fail or refuse to hire or discharge or otherwise discriminate against any individual in compensation, terms, conditions, or privileges of employment based upon their status in one of these protected categories.  Things to know about discrimination laws are outlined below.
2.     Create a Shared Understanding of Prohibited Discrimination Through Your Policies.  In our prior Newsletters, we recommended that your handbook include a statement on your Company's commitment to equal opportunity.  We also outlined for you the key elements for a sexual harassment policy.  Remember, employees must receive, at least once in the employment relationship, an explanation of their rights under California law.  This either needs to be through your handbook or could be through, for example, the Department of Fair Employment and Housing's publication on harassment.
3.     Consistently and Regularly Enforce Your Performance Expectations.  We will address this in detail in later Newsletters when we talk about managing performance.  Realize that if you fail to consistently and in the moment provide consequences (positive and negative) for meeting or failing to meet performance expectations, you inadvertantly may increase the risk for claims of discrimination.   
4.     Investigate Discriminatory Behavior and Complaints.  When a manager observes or hears about harassment or discrimination, the Company investigates.  The benefits from investigating promptly and thoroughly include (a) eliminating the harassment or discrimination; (b) avoiding a claim for failure to protect employees; (c) possibly creating an affirmative defense, potentially minimizing compensatory damages and/or reducing the risk of punitive damages in the event of litigation; and (d) demonstrating to employees the Company's commitment to its policies against discrimination. 
5.     Educate Your Workforce.  In California, employers with 50 or more employees must train their managers on what is, and how to respond to, harassment.  No matter your size, remember: what a manager does, hears or says, and what a manager does not do in response to harassment, is what the Company does or does not do when it comes time for litigation.  Your best protection against claims of harassment is in educating your entire workforce to identify and eliminate inappropriate conduct and to alert the Company. 
Eight Important Facts About Discrimination in the Workplace
We do not expect you to be a legal expert, but you are expected to comply with the laws on discrimination.  Here are some big and small facts related to the principal discrimination laws. 
1.     What Does it Mean to Avoid Discrimination Based on Age?  If you have five or more employees in California (and 20 or more employees for purposes of federal law) you may not fail or refuse to hire, discharge or otherwise discriminate against any individual in compensation, terms, conditions, or privileges of employment, because of age (over 40).  You also may not limit, segregate or classify employees in order to deprive them of  opportunities or otherwise adversely affect their status as an employee, because of age.  It is unlawful to publish notice or advertise a preference, limitation or specification based on age except where age is a bona fide occupational qualification reasonably necessary to  normal operation or differentiation is due to reasonable factors other than age.  Food for thought: be careful if you are reducing your workforce not to target all the highly paid employees; this decision could have a "disparate impact" on older workers who often are the highest paid. 
2.     How Does an Employer Wrongfully Discriminate based on Disability?  We will be giving you a lot more information on understanding and applying the disability laws in future newsletters.  For now, understand that if you have five or more employees in California (and 15 or more for purposes of federal law), you may not unlawfully discriminate in recruitment, pay, hiring, firing, promotion, job assignments, training, leave, lay-off, benefits or any other employment activities based on an individual's known or perceived disability.  It also is unlawful to retaliate against an employee who exercises his or her rights under the law.  It is unlawful to fail to provide reasonable accommodation to  known limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of the business.  Did you know, it is also unlawful to discriminate against an applicant or employee because of the individual's family, business, social or other relationship or association with an individual with a disability?
3.     What Are Other Protected Categories under Discrimination Laws?  Under federal law, it is unlawful to fail or refuse to hire, discharge or otherwise discriminate in compensation, terms, conditions, or privileges of employment, due to race, color, religion, sex, or national origin.  California adds to this list ancestry, color, creed, marital status, medical condition (cancer, genetic characteristics), pregnancy, gender identification, domestic partner status, sexual orientation and veteran status.  You may not unlawfully discriminate because an applicant or employee has opposed an unlawful practice or made a charge, testified, assisted, or participated in an investigation, proceeding, or litigation.  You may not recruit with a preference, limitation, specification, or discrimination, based on the protected categories, unless you can demonstrate a bona fide occupational qualification.  Did you know,  that the California Assembly and Senate have approved the Gender Non-Discrimination Act which would add "gender identity and expression" to other protected categories in California?  The law was presented to Governor Brown on September 13, 2011. 
4.     Harassment is ProhibitedEmployees are protected in the workplace from unlawful harassment that is based upon their status in one of the protected categories described in (5) above.  Sexual harassment is a form of gender discrimination, and prohibits harassment in which (a) the acquiescence to sexual demands is made the condition of job benefits or continued employment or is used as the basis for employment decisions (quid pro quo harassment) or (b) an employee suffers unwelcome conduct, based on sex, that is severe or pervasive when viewed by the totality of the circumstances which alters the terms and conditions of employment and creates an abusive work environment for the complainant and for a reasonable person of the same gender as the complainant (hostile work environment).  We will cover this in more detail in an upcoming newsletter.  Keep in mind, your managers are your best defense against a claim of discrimination or harassment; be sure they understand how to identify and stop harassment.    
5.     You May Not Unlawfully Discriminate Against an Employee Because They Have a Workers Compensation Claim.  Employers are prohibited from discriminating against an employee who is injured in the course and scope of employment.  Specifically, you may not discharge or threaten to discharge or in any manner discriminate against an employee because he or she has filed or intends to file a workers’ compensation claim.  Remember, whether an employee on a workers compensation leave may be terminated must be considered in conjunction with other leave of absence law requirements.  We will cover this in more detail when we discuss leaves of absence in upcoming newsletters.
6.     You May Be Covered by the National Labor Relations Act Even If You Do Not Have a Unionized Workplace
The National Labor Relations Act (the "NLRA") prohibits (in relevant part) interference, restraint, or coercion upon employees with respect to their right to organize and bargain collectively.  It also prohibits discrimination in regard to hiring, dismissal or any term or condition of employment where the action is taken to encourage or discourage membership in any labor organization.  Employers also may not discriminate against any employee who files charges or gives testimony under the NLRA.  Two Little Known Facts: (1) you may not be able to take action against an employee who complains about working conditions on Facebook: this could be protected activity even in a non-unionized company; (2) beginning November 1, you are required to post information about the NLRA even if you are a non-union shop.  Click here to learn more.  
7.     Water Cooler Debates: Political Affiliations are Protected.  No California employer may make, adopt, or enforce any rule, regulation, or policy that forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office.  It is also unlawful to control or direct the political activities or affiliations of employees, and to coerce or influence or attempt to coerce or influence employees through threat of discharge in order to force an employee to adopt or refrain from any particular course or line of political action or
political activity.
8.     What Are the Most Common Examples of Discrimination?  The cases we see generally arise out of (1) Unequal treatment of similarly situated employees (for example, if you pay male employees more than similarly situated females); (2) Rules with disproportionate effect (if you deny vacation to employees who work on the production line, and they all hail from the country of Utopia); (3) Decisions based on stereotypes or assumptions (for example, if you assume men cannot manage employees); (4) Harassment for membership in a protected group; (5) Failure to reasonably accommodate disability or religion; (6) Retaliation against good faith claims.
Your Turn: Take the Sustainable Workplace Quiz
Read through this short story, and take our quick quiz.
Salvatore is a warehouse supervisor for a large logistics company.  Salvatore is in the process of undergoing sex reassignment surgery to become Sally.  Salvatore has begun dressing as a female, and feels more comfortable using the women’s restroom even though the sex reassignment has not been completed.
How should the company address Salvatore’s wishes? 
Female employees complain about Salvatore using the women’s bathroom, how should the Company respond?
Certain employees complain that the presence of a male employee violates their religious beliefs on modesty between men and women.  How should the Company respond?
To see our thoughts and recommendations, click here.
How Can We Help?
Above are some tools for creating sustainable practices to protect your workplace from claims of discrimination or harassment.  
If you would like additional help, we offer the following resources:
1.     The Workplace Review: Practices Preventing Harassment and Discrimination.  If you want to be certain your policies and practices are protecting you from unwanted liability, we are happy to review your practices and make recommendations.  
2.     Educating Your Workforce.  We provide training to managers in compliance with legal requirements, and can also educate your employees to help you enforce your commitment to a discrimination free workplace.  
3.       Don't Forget: An Interactive Webinar for You: Protecting Your Workplace and Increasing Profitability Through Your New Hire Practices.  In this one hour webinar beginning at 8:00 a.m. on September 28, 2011 we will highlight our top recommendations for new hire practices.  Please let us know if you would like to participate.  
Give us a call at 619 906 2400 or e-mail Schor Vogelzang & Chung if we can be of any help in this process.   
Keep an eye out for next month's newsletter, where we will share more ideas for avoiding, identifying and responding to harassment and discrimination in the workplace. 

Schor Vogelzang & Chung LLP

Partnering to create your great workplace!

2170 Fourth Avenue, San Diego, CA 92101
P: 619.906.2400 F: 619.906.2401


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