Workplace Discrimination Employer Guide
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Most employers do not intentionally discriminate against their employees. And yet fear of an employee discrimination lawsuit is one of the top concerns we hear from small employers.
Why is this? Because in most workplaces, the majority of your employees will belong to one or more "protected classes" under the law, even if you as their employer are not aware of it. Being in a protected class does not mean an employee can never be disciplined or terminated. What it does mean is that you may have to demonstrate a legitimate, non-discriminatory reason for the action you decide to take. Below is some basic information about employment discrimination in Massachusetts to help you navigate these issues if you need to take action against an employee who is hurting your business. |
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What is a Protected Class Under Discrimination Laws
Both Federal and Massachusetts law protect against discrimination in the workplace based on certain characteristics.
These include:
Being in a protected class basically means that if an employee challenges a termination or other action on the basis of discrimination, the burden then shifts to you, the employer, to demonstrate a legitimate, non-discriminatory reason for your actions. If an employee is not in a protected class, then the at-will employment doctrine applies, meaning they can be fired for a good reason, a bad reason, or no reason at all.
These include:
- Race
- Color
- Religion
- National Origin
- Sex
- Age (over 40)
- Pregnancy
- Disability or Perceived Disability
- Gender Identity
- Sexual Orientation
- Genetic Information
- Ancestry
Being in a protected class basically means that if an employee challenges a termination or other action on the basis of discrimination, the burden then shifts to you, the employer, to demonstrate a legitimate, non-discriminatory reason for your actions. If an employee is not in a protected class, then the at-will employment doctrine applies, meaning they can be fired for a good reason, a bad reason, or no reason at all.
Termination of an Employee in a Protected Class
A "legitimate" reason does not necessarily mean a fair or correct reason. It means a reason that is not based on discrimination. Of course, the more the reason makes sense to the average person the more likely to are to be able to persuade a judge or jury that it was legitimate and non-discriminatory.
There is no requirement in the law that you use any particular kind of progressive discipline, or even give any warning before terminating an employee. It is, however good practice to at least document and communicate your concerns about an employee before taking that action.
One reason is that an employee is much more likely to think there was discrimination if the decision comes as a surprise to them, and they didn't know you had concerns about their performance or behavior previously.
Another reason is it helps you document the legitimate reasons for your action, in case anyone later claims discrimination.
Another thing to consider is whether your concerns about the employee are related in any way to their protected class- even if you don't believe you are discriminating. This often comes up in the context of age and disability. These things can affect how people do their work or interact in the workplace. But they can't be the reason for termination if the employee is able to perform the essential functions of their job with reasonable accommodations.
The bottom line: you should not feel hostage to a negative employee situation just because of discrimination laws. But you should seek out an employment attorney before disciplining or terminating someone who you think might raise these issues, to make sure everything is handled correctly and you are not putting your business at risk.
There is no requirement in the law that you use any particular kind of progressive discipline, or even give any warning before terminating an employee. It is, however good practice to at least document and communicate your concerns about an employee before taking that action.
One reason is that an employee is much more likely to think there was discrimination if the decision comes as a surprise to them, and they didn't know you had concerns about their performance or behavior previously.
Another reason is it helps you document the legitimate reasons for your action, in case anyone later claims discrimination.
Another thing to consider is whether your concerns about the employee are related in any way to their protected class- even if you don't believe you are discriminating. This often comes up in the context of age and disability. These things can affect how people do their work or interact in the workplace. But they can't be the reason for termination if the employee is able to perform the essential functions of their job with reasonable accommodations.
The bottom line: you should not feel hostage to a negative employee situation just because of discrimination laws. But you should seek out an employment attorney before disciplining or terminating someone who you think might raise these issues, to make sure everything is handled correctly and you are not putting your business at risk.
Other Forms of Discrimination in the Workplace
A hidden danger for employers is behavior that is happening in the workplace but not known to the owner or manager. Your business can be liable for this behavior if you know about it or should reasonably know about it, and if it is unlawful under the discrimination and harassment laws.
Examples:
Examples:
- A female employee is being sexually harassed by a supervisor. This is a form of gender discrimination and also actionable under the sexual harassment laws. Once you are on notice as an employer, you have a duty to prevent the ongoing behavior.
- An employee with a disability has asked for a different chair to accommodate his disability. You have approved the request, but his supervisor won't allow him to use the chair. Once you are on notice of this, you have a duty to make sure the reasonable accommodation is made for this employee.
- An older employee is being kept from desirable assignments and given negative reviews by her younger supervisor, who makes comments that she is "too slow," "doesn't understand technology," and "might be getting senile." Though the comments and the evaluations by themselves probably don't give rise to a legal claim, if she is ever terminated they are very strong evidence of age discrimination, which should be addressed by the employer.
Discrimination Can Be Complicated
You may be in a protected class yourself. The same could be true for the supervisors in your business who are interacting with employees. That does not mean you are insulated from a discrimination claim.
Someone who is in a racial minority could be accused of discriminating against a female, an older employee, a disabled employee, or sometimes an employee who is a member of a different minority group. Women can discriminate against women. And the list goes on.
A "discriminatory motive" can also be something you are not aware of yourself. It could result from sterotypes or assumptions about certain groups of people. It could just be a belief you have that you never thought of as discriminatory.
The bottom line is that you can't afford to rely on your own good intentions to protect you from discrimination claims. Any time you have to make a difficult decision about an employee, it is good practice to discuss that decision with a trusted professional, preferably an experienced employment attorney.
Someone who is in a racial minority could be accused of discriminating against a female, an older employee, a disabled employee, or sometimes an employee who is a member of a different minority group. Women can discriminate against women. And the list goes on.
A "discriminatory motive" can also be something you are not aware of yourself. It could result from sterotypes or assumptions about certain groups of people. It could just be a belief you have that you never thought of as discriminatory.
The bottom line is that you can't afford to rely on your own good intentions to protect you from discrimination claims. Any time you have to make a difficult decision about an employee, it is good practice to discuss that decision with a trusted professional, preferably an experienced employment attorney.
Time Limits for Discrimination Claims
In most situations, the statute of limitations for discrimination lawsuits is 300 days, or approximately 10 months. You may see articles on the internet that say the deadline is 180 days or six months. This is true under federal law but in Massachusetts employees have some additional time even for federal claims.
From the employer's perspective, 10 months is a long time to wait and wonder if a discharged employee is going to sue.
This is why many employers, if in doubt about whether an employee will bring a claim, offer some sort of severance in exchange for a release of claims. This is also something an employment lawyer can help you think through to come up with the right amount and draft an enforceable agreement.
From the employer's perspective, 10 months is a long time to wait and wonder if a discharged employee is going to sue.
This is why many employers, if in doubt about whether an employee will bring a claim, offer some sort of severance in exchange for a release of claims. This is also something an employment lawyer can help you think through to come up with the right amount and draft an enforceable agreement.
How Our Employment Lawyers Can Help
We can help you navigate these issues and get clarity on your rights and obligations in the face of an actual or imminent employment termination. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
