Early Detection Is Key to Workplace Compliance

 

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​Samantha Grant, attorney with Sheppard Mullin in Los Angeles, and Joseph M. Sellers, attorney with Cohen Milstein in Washington, D.C., speak at the 2019 SHRM Employment Law & Legislative Conference.

​HR professionals probably agree that the best workplace compliance scenario is when employers can prevent legal issues before they ever happen, said Ari Melber, chief legal correspondent for MSNBC.

So Melber put this question to a panel of employment attorneys at the 2019 Society for Human Resource Management Employment Law & Legislative Conference: How can employers identify and address risk factors before they turn into complaints or lawsuits?

Employers need to stop problems before they start, the panelists responded.

When matters result in complaints or litigation, there's already a loss of trust and an impact on work relationships, said Joseph M. Sellers, a plaintiffs' attorney with Cohen Milstein in Washington, D.C.  

Find the Risks

The Equal Employment Opportunity Commission's select task force on the study of harassment in the workplace identified the following risk factors:

  • Homogenous workforces. If most of the employees in a work group come from similar backgrounds, there may be an elevated risk of employees who don't conform to workplace norms feeling excluded or vulnerable, Sellers said.
  • Workplaces where some workers don't conform to workplace norms.
  • Cultural and language differences in the workplace.
  • Coarsened social discourse outside the workplace.
  • Workforces with many young workers.
  • Workplaces with "high-value" employees who may think workplace rules don't apply to them.
  • Workplaces with significant power disparities.
  • Workplaces that rely on customer service or client satisfaction.
  • Workplaces where work is monotonous or consists of low-intensity tasks.
  • Isolated workspaces.
  • Workplace cultures that tolerate or encourage alcohol consumption.
  • Decentralized workplaces.

Focus more attention on the work groups with more risk factors and try to anticipate problems before employees feel so desperate that they make a complaint or file a lawsuit, Sellers said.

Go Beyond Legal Requirements

Workplace legal requirements set the basic standards, but employers can do more to create an inclusive workplace. Create a diversity and inclusion program to ensure everyone feels welcome, said Samantha Grant, a management attorney with Sheppard Mullin in Los Angeles. Make sure job descriptions are tailored to the actual job being performed and have a hiring process in place that involves multiple people who review candidates, she added.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Importantly, employees should understand that everyone plays a role in preventing discrimination and harassment, from the chief executive officer to the front-line employees, she said.

When it comes to harassment-prevention training, some employers cover only what's necessary to comply with the law, but simply watching a harassment-prevention video may not be effective for every work environment, Grant said. "Target training to your particular workforce and include real-life examples."

Employers also may want to develop a civility code, which goes beyond legal requirements and focuses on treating employees respectfully, she said.

Grant noted that state laws may afford more legal protections to employees than federal law. For example, California law protects workers from discrimination based on sexual orientation and gender identity, while federal courts' and agencies' views are "all over the map." The U.S. Supreme Court has yet to decide whether to review several cases addressing sex discrimination under Title VII of the Civil Rights Act of 1964 and whether the act protects sexual orientation and gender identity.

Beware of Retaliation

Each federal equal employment opportunity (EEO) law prohibits employers from retaliating against employees and job applicants who engage in protected activity—such as making a harassment complaint or serving as a witness in an EEO matter.

Employers have to be very careful not to treat an employee who complains differently from how they treated that employee before the complaint, Sellers said.

Retaliation cases are the hardest to defend in court, Grant noted. An employee may lose the underlying discrimination or harassment claim but still win a retaliation claim.

Once the employee is treated differently, it's hard for an employer to show that the difference in treatment was not retaliatory. Be careful about moving the person who complained to another location or shift, Grant said. It's a good practice to ask the employee who complained what he or she would like to happen while the complaint is being investigated, she added.

Make sure to document the response. "If you learn nothing else from me today: document, document, document."

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