HR Solutions: Documentation best defense against discrimination lawsuits

Lynne Haggerman is president/owner of Haggerman & Associates, an employment, management training, human resources consulting and outplacement firm.

Lost lawsuits due to failure to comply with the mandates of the three primary human resource laws will cost a company approximately $350,000 per violation. Standardized, written human resource practices, preparation and maintenance of required documentation, regular management training, and routine human resource audits remain the key prevention tactics for organizations.

The Civil Rights Act of 1964, Title VII, concerns the protected classes of race, color, religion, national origin and sex. The Age Discrimination in Employment Act of 1967 protects those age 40 and over. The Americans with Disabilities Act of 1990, Title I, covers qualified individuals with a physical or mental impairment that substantially limits one or more major life activities.

All three laws prohibit discrimination, harassment and retaliation due to protected-class status. Discrimination is not allowed in job advertisements, recruitment, testing, hiring, transfers, promotions, assignment, classification, training and apprenticeship programs, usage of business facilities, compensation and pay, fringe benefits, disability leave, retirement plans, layoffs and recalls, terminations, and other terms and conditions of employment.

Also, an individual may not be denied employment opportunities due to marriage or association with a person of a protected class, or participating in a school or place of worship with those of a protected class.

For harassment to be illegal, the behavior must be unwelcome and affect a term, condition or privilege of employment. The harassment must be so severe that the behavior interferes with job performance or limits employment opportunities. A person who files a charge, participates in an investigation or opposes a discriminatory practice may not experience retaliation.

Several strategies and practices will greatly assist an organization in avoiding lawsuits under all three laws, and if a lawsuit should arise, the company will have a significantly greater probability of winning the case.

Develop a strong, written anti-harassment policy to help prove the exercise of reasonable care to prevent harassment. Include a clear complaint procedure, which if not utilized by the complainant, will work to the advantage of the employer.

Publish, republish and post the written policy in staff areas. Maintain documentation in personnel files proving each team member received a copy. Properly conduct confidential investigations, ensure no retaliation occurs, take the appropriate level of corrective action to rectify the situation, discipline the offender and ensure future harassment does not occur.

Continually review job advertisements and recruiting practices for compliance. For example, secretarial ads should not state "female preferred," and don't write "only men need apply" for construction worker ads.

Prepare and maintain a job description for each position in the corporation. The content must consist of the job duties, education and experience prerequisites, and personality traits necessary to be successful in the position. For ADA compliance, state physical and mental requirements, document the results or outcome of each task, and list essential and nonessential functions/job duties in two separate sections. Be sure to behaviorally define each personality characteristic/mental requirement.

Provide similar pay for jobs similar in skill, responsibility and working conditions. Accordingly, job descriptions need to specify these criteria, also. Document a legal rationale for starting salaries and raises. Legitimate, job-related standards or business practices permitting differences in pay include job market conditions, experience, prior salary, and pay systems such as seniority, incentive and merit.

Incentive systems require documented numerical standards for quality and quantity criteria. Merit systems must utilize a performance appraisal system, with the format similar across positions. The content, however, will significantly vary between positions, since the content must come from each job description. Develop and utilize a numerical rating scale to quantify the system and prove nondiscriminatory reasons for salary increases.

Document new hire, promotion and transfer selection processes to prove legal compliance and ensure management adherence. Write nondiscriminatory reasons for rejecting each candidate during the resume and application paper-screening procedure. If conducting telephone screenings, write all questions asked and confirm each person considered for the same job or type of job is asked similar questions. Document nondiscriminatory explanations for rejecting applicants at this phase of the process.

If utilizing a test, secure the manual prepared by the producer stating the legality of the test. Keep in mind, however, that in a lawsuit, the company must prove the test is legal, not the producer.