Filings of discrimination lawsuits are at an all-time high. This article is a refresher on EEOC’s prohibited employment policies and employer liability.
By Sue McCraven
As the owner of a small or medium-sized precast concrete production facility, you may feel confident that discrimination issues regarding sex, race or age are highly unlikely among your plant and office staff. But because employer discrimination lawsuits are at their highest levels ever and increasing rapidly, confidence in your management policies could be unfounded.
Employer retaliation tops the list
Litigation statistics from the U.S. Equal Employment Opportunity Commission (EEOC)1 show that more than 100,000 discrimination charges were filed in 2011. Of the nine categories involving workplace discrimination – race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, genetic information and retaliation – there have been dramatic increases in discrimination claims across all categories due in large part to our more litigious society and the speed and ease of obtaining claim strategies and legal information via the Internet and social media. But it is retaliatory discrimination charges that have seen the largest increase of all, as claimants are generally more successful in recovering damages at trial. This is another way of saying that juries don’t find the employer’s position as credible or as sympathetic as the employee’s position.
The causes of employment discrimination are easy to understand. Retaliation charges may result when an employee is subjected to management reprisal, reprimand, adverse reassignment or some illegal management action. An unjustified (poor) employee evaluation or an increase in plant or office surveillance (albeit well-intentioned) of an employee who has filed a harassment complaint are examples of retaliation. The increase in age-discrimination lawsuits is partly due to our current national economic slump, particularly the hard-hit construction industry, which has led to many forced layoffs and a corresponding increase in age-related lawsuits. For example, a commonplace age-discrimination “no-no” (of which we are all familiar) is the posting of a help-wanted notice stating a preference for a “recent college graduate.”
Free bilingual training and guidance
Precast plant managers can take advantage of professional guidance at staff safety meetings. On a limited basis and at no cost, EEOC will present seminars on workplace discrimination and recommended management policies. Often, EEOC can provide bilingual staff for plant presentations. Excellent, no-cost explanatory documents, such as “EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors,” and “Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors,” are available online at no cost.2
Sexual discrimination in the precast industry
Management complacency about antidiscrimination policies and training can lead to costly litigation based on legal definitions of employer liability. Because most workers in the construction industry are men, sexual discrimination in hiring and workplace practices can almost seem justified. Running a typical all-male precast concrete production staff is no protection from gender-related lawsuits.
In conclusion, consider these not-improbable precast industry scenarios:
• A woman with experience and excellent qualifications applies for the plant sales and estimating position. You reject her application because most of your company’s big customers and long-time clients are more comfortable dealing with men.
• You’ve just hired a young and very attractive female receptionist to help out in the office during the busy summer season. Your production supervisor routinely puts his arm around the young woman’s waist when he stops in the office, making her feel uncomfortable with his unwelcome attention.
Test your knowledge of workplace discrimination
Here is a True/False test that you can take at your next staff or employee safety meeting:
1. The Supreme Court ruled that employers are legally responsible for any form of illegal employee harassment by plant supervisors. TRUE OR FALSE?
2. A supervisor is someone who makes hiring and firing decisions, not the person in charge of employee daily work activities. TRUE OR FALSE?
3. If you meet the definition of a “small business,” you can fulfill your legal responsibility by a prompt, thorough investigation of a worker harassment complaint. TRUE OR FALSE?
4. Many small businesses (fewer than 15 employees) are not covered by EEOC laws. TRUE OR FALSE?
5. Retaliatory discrimination lawsuits have seen a dramatic increase, as management retaliation is often easier to prove in court and because research has shown that juries are predisposed to disbelieve employers. TRUE OR FALSE?
6. The only important management policy on EEOC-related issues is a comprehensive company antidiscrimination policy. TRUE OR FALSE?
7. It is important to encourage your employees to report any incidence of perceived harassment as soon as possible so that management can take appropriate remedial steps before actionable harm occurs. TRUE OR FALSE?
8. As part of a traditionally male-dominated industry, construction work sites can create a number of unintended barriers for women who are increasingly entering the profession.3 Because of the generally small number of females in construction, production plants and work sites can create what many women may perceive as a hostile environment (inadequate access to toilets, PPE that is too large, unwelcome sexual comments and off-color jokes). TRUE OR FALSE?
Answers to T/F test:
2. False. A supervisor is the person who has the authority to make employee job decisions (hiring, firing, promotion) or is in charge of daily plant production work.
4. True. Title VII of the Civil Rights Act of 1964 covers discrimination actions (including retaliation) for companies with fewer than 15 employees. Individual states also have employment discrimination laws for small businesses.
6. False. Management must also be able to prove that employees were aware of the company’s antidiscrimination policies and the process for reporting harassment.
Sue McCraven, NPCA technical consultant and Precast Solutions editor, is a civil and environmental engineer.
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