How Employers Can Avoid Discrimination, Harassment, and Retaliation Lawsuits

In employment discrimination, harassment, or retaliation lawsuits, the employer always loses. Even if there is little to no financial loss to the organization, the diminished reputation alone is reason enough for companies to ensure they are creating a work culture and environment for employees that encourages diversity and discourages discrimination in any form. There have been quite a few cases recently that highlight the types of lawsuits organizations should avoid. 

One recent case involved a food distributor in Hawaii who settled a case brought by the Equal Employment Opportunity Commission (“EEOC”) that alleged the food distributor subjected an African American employee to racial harassment and retaliation.

The EEOC brought the lawsuit after the African American employee faced unwelcome comments about his race and was later fired after complaining to management about the unwelcome comments. The food distributor will pay $90,000 and agreed to put in place remedial measures to address and prevent discrimination in the workplace. Anna Park, regional attorney for the EEOC’s Los Angeles District stated that “even though Hawaii is a racially and culturally diverse state, we continue to see race discrimination and harassment complaints filed with our agency.”

Employers should take note of EEOC lawsuits because employees state that they face discrimination at an alarming rate. In fact, according to a 2021 Gallup report, about 1 in 4 black employees in the United States reported that they faced discrimination in the workplace.

These feelings can turn into lawsuits, like the one that four black employees brought against the Sacramento Municipal Utility District. The employees alleged that their employer did not choose them for promotions that they were qualified for. Instead, the employees claim, the hiring officials harbored racial bias and continually showed that bias when they hired white employees. After complaining about the bias, the employees allegedly faced retaliation from their employer. Even though the employer denies the allegations, it will still face possible litigation and costs associated with litigation. 

Possible Lawsuits

Most discrimination, harassment, and retaliation actions brought against employers are brought under Title VII of the Civil Rights Act of 1964.

Under that statute, it is unlawful for an employer to discriminate against an employee on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity) or religion. According to the Department of Justice (“DOJ”), discrimination in the workplace is prohibited under Title VII in:

• Hiring and firing;
• Compensation, assignment, or classification of employees;
• Transfer, promotion, layoff, or recall;
• Job advertisements and recruitment;
• Testing;
• Use of company facilities;
• Training and apprenticeship programs;
• Retirement plans, leave and benefits; or
• Other terms and conditions of employment.

Specific examples of the types of lawsuits that are brought under the statute can be found here. Actions brought under this statute are typically brought by the EEOC after an employee files a complaint, but the EEOC can refer actions against state and local government employers to the DOJ. Penalties under the statute can include damages, which are capped based on the size of the business or organization. For employers with 15-100 employees, the limit is $50,000 and the cap continues to increase per employee size. For employers with more than 500 employees, the limit is $300,000.

Avoiding Lawsuits 

Fortunately, there are ways to avoid potential lawsuits like the one mentioned above.

First, employers should ensure that they are not subjecting employees to racial discrimination and harassment. In the food distributor case, the EEOC and the food distributor agreed to create measures that would prevent a hostile workplace from forming, which helps prevent racial discrimination and harassment. These measures include the designation of an equal opportunity monitor to ensure compliance with Title VII; reviewing, revising, implementing, and distributing companywide policies addressing discrimination and harassment which include a clear explanation of prohibited conduct; creating mechanisms to take prompt corrective action; outlining an internal complaint process; providing anti-discrimination training; and revising performance evaluations that include measures for compliance with the company’s harassment policy. These measures help employers avoid potential litigation and provide employees with a robust avenue for potential complaints.

Further, the EEOC recommends that employers train both Human Resource (HR) professionals and all other employees on the Equal Employment laws to ensure that all members of the business or organization are equipped to prevent racial discrimination and harassment. HR professionals should promote an inclusive culture, foster open communication about the culture, and avoid subjective decisions based on stereotypes or hidden biases. All other employees should respect cultural differences in the workplace through professional conduct and speech that does not initiate, participate, or condone discrimination or harassment.

Second, to avoid potential retaliation lawsuits, employers should implement complaint processes that shield the employee from potential animus. These complaint processes should include clear and unequivocal assurances that employees will not receive retaliation if they make or provide information for complaints. Employers should outline a clear complaint process that provides multiple, accessible avenues to make a complaint. Employers should guarantee that the complaint will remain confidential and provide a prompt, thorough, and impartial investigation. 

How Traliant Can Help

Consistent with EEOC guidelines and court decisions, Traliant’s interactive, online harassment training covers not just sexual harassment, but all forms of workplace harassment, discrimination, and retaliation. 

The online course is fully customizable; each organization can include their logo, workplace images, introductory messages, and the company’s unique policies and procedures for preventing and addressing workplace discrimination.

Learn more about Traliant’s full suite of online sexual harassment training. Traliant is also proud to offer harassment prevention compliance packages, which include required policies, notices, and postings for each jurisdiction in which employers operate.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances