How To Protect Your Small Business From Discrimination Claims

California has a well-deserved reputation as the "sue me state." With almost 300,000 lawyers in California , we are the largest state bar in the country. Nearly 200,000 of the state's lawyers are in active practices, and many of them are hungry to sue businesses as well as individuals. Here in Oakland, California, every business with employees is vulnerable to a discrimination lawsuit at any time unless the business is proactive in preventing and addressing discriminatory behavior in the workplace.

Every employer has a duty to manage the workplace in a manner that does not allow discriminatory practices to occur or take hold. California law also creates a broader scope of protection from discrimination than other states by including sexual orientation, gender expression, genetic information, linguistic freedom and reproductive health decisionmaking. The period of time in which a complaint must be filed is also longer, up to three years after the last act of discrimination, harassment or retaliation. California law does require at least five employees to apply to non-government employers.

The first step to protect your business from discrimination claims is to create, publish and share with your employees a clear statement that discrimination is illegal and will not be tolerated in your business. Posters are available online and upon request from the California Civil Rights Department. Secondly, every business should have a clear set of policies and procedures that protect workers' rights and define the employer's responsibilities to each employee such as a Personnel Manual or Employee Handbook. These policies and procedures should be part of the onboarding process and included in any orientation materials.

Businesses should regularly train all employees, both supervisors and non-supervisory employees on the prohibitions against discrimination and retaliation in the workplace. No business owner should ever assume that people know how to act in the workplace, or understand their rights and responsibilities. Nor should you believe that you are immune because you only hire friends or family members. Every employee is entitled to the protection of the laws, and it is not uncommon for businesses to be betrayed by people you trust.

Business should hold supervisors accountable for following the established policies and procedures when making employment decisions, particularly, promoting or firing an employee. Typically, everyone on a business, particularly a small business, is paying attention to what happens to someone else, and comparing their situation to another employee. Disparate treatment claims can sometimes arise out of simple jealousy or envy of another employee. The business can protect itself from discrimination claims by treating everyone according to the written policy when it comes to promotions, terminations, or discipline.

In cases of discipline, it is especially important to have clear and fair policies. For example, if you want to discipline one person for tardiness, make sure that you are treating that person the same way you treat all the other employees. You must hold all employees to the same standards unless there is a clear explainable reason for any discrepancy. Best practices also suggest the use of progressive discipline, with clear documentation of the steps taken to correct the behavior before any disciplinary action is taken. Without documentation, the business is vulnerable to claims of unfair treatment based on the person's characteristics instead of his or her performance.

It is especially critical to prevent retaliation in the workplace, as sometimes, the retaliation claim is easier to prove than the discrimination claim. This happens when an adverse employment action or personnel decision is made in close proximity to a complaint about discrimination. Even if the employee cannot prove actual discrimination, he or she may still be able to prove retaliation.

To protect a business from a retaliation claim, it is important to isolate the supervisor or the person who is accused of discrimination from the complainant as soon as possible. If necessary, move the accused person to another location or position. NEVER move the person who made the complaint, even if they ask to be moved. Moving the person who made the complaint is an open invitation to your checkbook.

Make sure you have a clear and confidential process for reporting, investigating and resolving complaints. Make it clear that if an employee has a complaint about his or her supervisor, they can take the issue to the next level supervisor to address the problem. Make it plain that the business takes all complaints seriously, and wants people to feel comfortable coming forward. Also, keeping the employee informed of the steps of your process or any investigation is critical to avoiding premature lawsuits. Supervisors should be able to quickly identify discrimination complaints or potential discrimination claims when vetting an employee's concerns.

Part of your business culture should be to protect your employee's rights and provide a safe workplace. That is the best protection from discrimination claims.

Don't wait for a discrimination claim to threaten your business. Take proactive steps now to create comprehensive policies, train your team, and build a workplace culture that protects both your employees and your business interests.