Friday, February 22, 2013

Texas Employment Law - Avoiding a Discrimination Claim

Discrimination is only unlawful when it is based on one or more of the following “protected classes” of people: race/color, sex/gender (this includes both men and women), pregnancy, age (40 and older), national origin, religion, sexual orientation, marital status, disabilities (whether physical or mental), or veterans’ status. Differential or disparate treatment is the typical test for discrimination.

Employers can best avoid a claim of discrimination by applying employee rules and job criteria consistently. Try to treat every employee the same. Don’t give anyone special treatment or favors, or accept excuses for one employee that you would not tolerate from a different employee. Do not let some employees ignore company procedures and penalize others for failing to follow the rules. Avoid saying the following kind of things:

  • jokes or frequent conversations about any protected class;
  • verbal slurs or insults – even something as simple as “honey,” “your people” or “over the hill” can be taken out of context or misunderstood;
  • frequent references to someone’s membership in a protected class – “hey, it’s the white girl” might seem funny at the time, but think about how it may sound when repeated to a jury or judge;
  • tolerating such statements from one of your managers; and
  • permitting employees from engaging in such conduct without reprimand or warning.

Treating everyone the same is harder than it sounds. We naturally like some people more than others, and employers are often willing to “cut some slack” for high performers. It is easy to justify exceptions for any number of reasons. But that one-time favor has the danger of becoming a pattern or habit that can become evidence of differential treatment.

If an employee has complained about discrimination, or simply being treated differently, don’t act in haste or immediately become defensive. Advise the employee that you take his or her concerns seriously and will look into the matter. Consider the entire situation to see if there has been any differential treatment that should be addressed. For more serious or numerous complaints, you may wish to consult with an HR or employment law specialist before responding to the employee’s complaint.