How Employers Can Avoid Gender Discrimination Charges

By Judy Greenwald

Mar. 6, 2011

Employers can take several steps to prevent gender discrimination charges and, if they are made, address them and limit any potential damages, experts say.

The first step is an effective policy.

Keep it simple, says Robin Shea, a partner with law firm Constangy, Brooks & Smith in Winston-Salem, North Carolina. Simply say, “We will not discriminate” on the basis of protected categories.

Employers’ anti-discrimination policies should not be “too elaborate,” Shea says. “In fact, sometimes, I think, too much detail can cause problems, because if the employer doesn’t follow it to the letter, they get into trouble for not following their policy,” she says.

But employers must move beyond merely having a policy, observers say.

If “you just have a paper policy nobody really pays attention to, or nobody spends much time emphasizing or enforcing, that’s when, in my view, problems can arise,” says Paul Starkman, a partner with law firm Arnstein & Lehr in Chicago.

“Make sure that the policy is adhered to and that decision-makers generally aren’t making decisions based on stereotypes about gender roles,” says Richard Tuschman, a partner with law firm Duane Morris in Miami. “For example, an employer should not pay a man more because he’s the breadwinner of the family if, in fact, that’s the case, which in many cases these days, it’s not.” That “would be discriminatory,” he says.

If managers are trained “to promptly spot and correct a problem, more often than not it’s not going to grow into litigation,” Starkman says.

Shea says employers “do need to make sure, as a matter of practice, that they are conducting regular harassment training. Probably once a year would be ideal.”

Tracey Kennedy, a partner with law firm Sheppard Mullin Richter & Hampton in Los Angeles, says, “I think many employers see training as too costly,” but “it’s the difference between investing in something and paying for it at the back end” in the form of lawsuits.

Starkman says employers should have “a good structure and procedures in place where employees can have a place where they feel safe about raising these issues, even if they don’t need to or want to file a formal complaint.”

Gregg Lemley, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart in St. Louis, says employers also should be wary of “unexplained disparities in pay for people who are performing similar work.”

Many companies “aren’t really making an effort to be sure they have consistent benchmarks to be sure there’s no adverse impact” with regard to either the salary at which they hire people, or in how their salary increases over time, he says.

Shea suggests that employers conduct a pay audit annually to look for “any discrepancies that can’t be explained,” and make appropriate corrections.

Communications also are important.

Shea says sometimes employers “don’t do a very good job” of explaining that someone failed to get promoted not because he or she was being discriminated against, but for another “very good reason.”

“You just have to sit down sometimes with the employee, and say, ‘Here are your qualifications. This is why we thought [another employee] was more applicable to this position,’ ” she says. “Nobody ever wants to do this because it has the potential of being an unpleasant conversation, but I think this makes a big difference to people if you can try to explain those things to them.”

This issue should be considered during recruitment, as well, says Martha Zackin, of counsel to Boston-based law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. It is “very tempting for people who do recruitment to go by word of mouth and recruit the people that you know, who are like you.” Instead, employers should seek to have a more diverse workforce.

Miles says once a complaint is made, “it’s important to have an interactive dialogue with the employee to understand exactly what their problem is and what they’re expecting to be done about it.”

“Certainly, if the concern hasn’t been brought to the attention of the employer” before a charge is filed, “it’s very important that the employer promptly investigate the allegations and make a determination if there’s any merit to the allegations” and try to address it, says Emily Borna, a partner with law firm Jackson Lewis in Atlanta.

If the employer finds that there has been disparate treatment “or adverse action because of someone’s protected status,” it should be resolved right away and appropriate action taken to stop it, Borna says.

Furthermore, if the person bringing the charge still is in the workplace, it is important “to be sure there’s no unlawful retaliation” against that person, says Borna. “But at the same time, that person isn’t entitled to special treatment … or to be insulated from any action if there’s wrongdoing on some other basis,” she says.

Workforce Management Online, March 2011Register Now!

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

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