How To Get Sued
One of the best ways to stay out of court is to (1) keep tabs on what sorts of things the EEOC is suing employers for and then (2) don’t do those things.
The EEOC announced a whopping 38 new lawsuits this past week. If you’d like to spend more time with lawyers, judges and juries, just do any of the following . . .
Sexual Harassment and Gender Discrimination
Almost a third of the new cases fall into this category. Here’s what not to do:
- ignore repeated complaints about “higher-ups” who use “sexual epithets” and engage in “threatening physical and verbal sexual conduct” (here);
- apply anti-nepotism policies inconsistently to male and female employees (here);
- fail to have a clearly articulated harassment complaint procedure and fail to take steps to stop a manager from using his position to harass several female employees (here);
- punish an employee who complains of sex harassment by cutting her hours, taking away her company vehicle and then firing her without explanation (here);
- fail to take adequate steps to address a “campaign of sexual comments, threats and unwanted touching” by managers against female teenage employees (here); and
- fail to stop repeated sex-based harassment such as unwelcome touching, requests for sexual favors, physical intimidation, name-calling, anonymous notes and/or retaliation (here, here, here, here, here, here, here and here).
Pregnancy Discrimination
Please don’t:
- make sexist comments like ”a pregnant woman should be at home,” fire a pregnant employee the day she turns in her maternity leave paperwork and then fire her husband three weeks later for “associating” with her (here);
- remove a pregnant employee from a position for safety/risk reasons without an in-depth analysis (here);
- refuse to accommodate a pregnant employee’s request for additional leave time due to doctor-ordered bed rest (here); and
- fail to rehire an employee after she resigned due to a pregnancy-related medical condition (here).
Disability Discrimination
What not to do in this area . . .
- refuse to provide reasonable accommodations to disabled applicants during pre-employment training (especially if you’re a disability services company) (here);
- refuse to hire someone solely because of a back ailment (here) or learning disability (here);
- refuse to discuss a deaf employee’s accommodation requests, “pick on” the employee, force the employee to “work in the back of the store away from the public,” and then “eliminate her work hours entirely” (here); and
- discharge an employee who was involuntarily hospitalized (here).
Race and National Origin Discrimination
Don’t:
- tell a minority applicant during the hiring process that she is “obviously qualified,” then refuse to hire her because she is “unqualified” and then hire a less qualified non-minority applicant (here);
- refuse to hire non-Hispanic applicants for housekeeping positions (here);
- refuse to hire an applicant solely because they don’t speak Spanish when it’s not required for the job (here);
- screen out applicants on a nationwide basis based on credit history and criminal charges/convictions without considering potential job-relatedness (here);
- systematically favor employees of one national origin over another (here); and
- fail to take adequate steps to address a racially hostile work environment, including racial slurs, graffiti and nooses (here, here, here and here).
Age Discrimination
Somewhat surprisingly, there was only one new age-discrimination suit.
Don’t:
- make hiring decisions based on age and then fail to retain employment records related to the hires (here).
Retaliation
Many of the above cases also included retaliation claims. Here are some “what not to do’s” from other new cases that focus almost exclusively on retaliation.
Don’t:
- fire an employee for refusing to drop a discrimination complaint against another employer with whom management has a “close relationship” (here);
- terminate an employee for refusing to drop a restraining order against a co-worker (here); and
- retaliate against employees who complain of discrimination (here, here and here).
All of the above are merely allegations made by the EEOC and are not established facts at this point. Stay tuned to see how these cases play out.
