Know your legal responsibilities for preventing retaliation ...

Federal anti-discrimination laws carry anti-retaliation provisions barring employers from taking adverse action against employees for exercising their rights.

THE LAW: The EEOC enforces the nation?s anti-discrimination laws, and the anti-retaliation provisions of these laws: Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), the Pregnancy Discrimination Act (PDA), the ADA and the Genetic Information Non??discrimination Act (GINA).

Title VII bars discrimination based on race, color, religion, national origin or sex. The ADEA protects workers age 40 or older from discrimination. The EPA requires employers to pay men and women the same amount for the same work.

Employers may not discriminate against disabled workers who can perform the job?s essential functions with or without reasonable accommo??dation without violating the ADA. Employers have responsibilities to protect employees? genetic information and not use it when making em?ploy??ment decisions.

WHAT?S NEW: The EEOC received almost 100,000 discrimination charges in federal fiscal year 2011.

The most notable trend in the recent figures is the continued rise in retaliation filings. Fiscal year 2010 represented the first year that retaliation charges for all statutes topped those of racial discrimination charges. For 2011, the gap is even greater.

Clearly, plaintiffs and their attorneys have discovered that retaliation is easier to prove than discrimination.

A 2011 Supreme Court decision also affects retaliation claims. In Staub v. Proctor Hospital, the court put employers on notice that they must conduct thorough investigations before authorizing firings, demotions or other adverse employment actions.

HOW TO COMPLY: Employers can minimize retaliation complaints by having fair policies and procedures governing employee discipline. Even in cases of egregious behavior, a suspension while the employer sorts out the facts may be the best approach. Supervisor training is key to stemming national origin, disability and religious discrimination complaints.

National-origin discrimination

National-origin discrimination is a natural consequence of increased immi?gration. Regardless of how diverse the workforce becomes, employers have a responsibility to ensure a harassment-free workplace. Here are key tips to limit national-origin discrimination:

• Assign jobs based on skills, not national-origin or immigration status.
• For jobs where employees interact with the public, don?t permit customer prejudices to determine who gets assigned to which job.
• Train supervisors and workers that harassment based on national origin is not permitted. Don?t let joking get out of hand to the point it becomes hurtful.
• If a worker complains of national-origin discrimination or harassment, investigate promptly and professionally.

Religious discrimination

There are two common types of religious discrimination: (1) disparate treat????ment based on religion and (2) failure to accommodate a particular religious practice. The law requires employers to accommodate religious practices when doing so does not constitute an undue burden for the employer.

Employers need to train managers to not reject religious accommodation requests out of hand, but instead collect the details of the employee request so the matter can be considered. Employers that wish to deny a specific request should conduct a cost-benefit analysis of the requests? impact on the workplace to show that the practice constitutes an undue burden.

Employers should also keep a file of all religious accommodations they accept and reject. When deciding whether to accept an accommodation request, the employer should look at past accommodation requests to ensure the new decision is consistent with old ones.

Disability discrimination

Disability discrimination falls into three categories: (1) disparate treatment based on disability, (2) perceived disability and (3) failure to accommodate a disability. Employers may not segregate or deny an employee any rights or benefits of employment based on their disability status or their need for reasonable accommodation.

If a disabled employee is eligible for a promotion, the employer should determine if the employee needs an accommodation to perform the new job and if so, whether a reasonable accommo?dation is available. It?s illegal to deny a promotion because an em??ployee needs accommodation.

Employers may not assume an em????ployee is disabled or needs an accom??modation unless the employee has an obvious disability or has indicated a need for an accommodation. Employers violate the ADA if they refuse to hire or promote an individual because they assume that person to be disabled.

Disability accommodation is more complicated than religious accommodation. The employee must meet the law?s definition of disability and that disability must affect the employee?s ability to perform the job?s essential functions. If the employee?s condition meets that threshold, the employer must discuss accommodation options.

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