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July 5, 2010

Simple Steps To Avoid Discrimination Lawsuits

Every now and then it catches an eye – $5 million to a harassed chef, another $2 million to a fired heart attack victim. Still, small companies commonly ignore employment discrimination threats until they are defendants in a lawsuit. Only then will they deal with the issue and its effects.

As the saying goes, you get what you pay for. Employment discrimination lawsuits commonly cost tens of thousands to those who win them and hundreds of thousands more to those who don’t.

Employers face damages for lost wages, emotional injuries, an employee’s legal fees, and more. They can be ordered to train employees or submit to state oversight of their policies. Worst of all for defendants in employment discrimination lawsuits, they ultimately realize that the whole mess was preventable.

The recent experience of a Shrewsbury employer illustrates the point. After receiving a sexual harassment complaint against a supervisor, the company investigated and labeled the complaining employee a “trouble maker.” Though it verified his claims, the company did nothing — no discipline, no apology, and little follow-up. So the employee sued. Late in 2009, the company paid more than $125,000 in damages and legal fees. It is now fighting an order to train managers that will cost it hundreds of thousands of dollars more.

The lesson might be lost on that local employer, which has since lost $875,000 in a separate discrimination lawsuit, but others should take notice.

Thinking Ahead

Discrimination cases are common — about 3,000 claims based on race, handicap, gender or other immutable characteristics were filed against employers in 2008, for example.

But they are also largely preventable. Preemptive steps are worth the relatively little time and effort they require. Whether you hire a professional to help or educate yourself about employment discrimination, positioning your company to avoid lawsuits makes good business sense.

The goal is straightforward: To instill a general awareness of what employment discrimination is and how to deal with it before a case reaches the Massachusetts Commission Against Discrimination, the state agency that handles this type of lawsuit.

To reach that goal, employers should consider discrimination training for managers along with strong anti-harassment policies. They should learn the warning signs of employment discrimination and approach personnel actions carefully. Most important, they should get out the message that workplace discrimination will not be tolerated from anyone.

Here are a few of the steps every employer should take.

Review (or create) your policy manual. This is probably the easiest first step. Every company with more than a handful of workers should have a manual that includes a thorough anti-harassment policy (a requirement of Massachusetts law) and a strong statement against discrimination.

Policy manuals are an easy and effective way to communicate a broad array of goals and expectations to workers. Creating them yourself can be daunting, so hiring help may worthwhile.

Educate of decision makers. Managers and supervisors should have at least a rudimentary understanding of what discrimination is in its various forms.

Training them through an in-house program is probably the most effective way to convey needed information, though certainly not the only way. What’s essential is that management knows the warning signs and knows how to react to them. Key personnel should be well-trained to take complaints and investigate them where necessary.

Plan personnel decisions well. The most assured route to a costly discrimination suit is a poorly planned or poorly executed job termination.

Employers should carefully analyze facts and circumstances before disciplining employees who might be protected by law. In those cases, documentation should be carefully collected and maintained. Where potential problems lurk, counsel should be consulted before final action is taken. 

Jack K. Merrill is a lawyer at the Framingham-based firm of Mayer, Antonellis, Jachowicz & Galvani LLP. For more information, visit

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