This month's column is a bit of a departure from my usual "Frontline" column, which ordinarily presents traditional liability issues arising under the FDCPA or similar California law. However, I am increasingly asked by agency owners questions outside of this context, particularly with regard to employment law, discrimination, and harassment issues. As you are aware, claims under federal and state employment laws are becoming increasingly more prevalent. Because those laws typically permit the prevailing employee to receive attorneys fees and costs, a modest--or even very small--judgment can expose an employer to potentially devastating liability for the employee's attorney's fees and costs.
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My co-author, Barbara Cotter, located in Murphy, Pearson, Bradley & Feeney's Sacramento office, specializes in the defense of employers who have been sued for employment-related misconduct, including discrimination and/or harassment under federal and state law. Given the number of employment-related questions I now receive, I thought it would be of interest to CAC members to occasionally read columns regarding this area of legal concern. Here is the first one from the Frontline. . .
|" What many (employers) do not realize . . . is that claims of bias can be made with little evidence of direct bias."
Let's face it, life is not becoming any easier for California employers. Increasingly, courts, juries and employees expect employers to do more than provide a job and a paycheck. Employers are also expected to provide a “sanitized” workplace free of rudeness, teasing, and embarrassment. Employers are understandably reluctant to assume such obligations, as business owners do not relish undertaking the role of babysitter. Moreover, monitoring break room conversations or policing the water cooler is thankless, time-consuming, and costly.
Fortunately, there is a middle ground for employers who seek to reduce the potential for troublesome lawsuits. Although not a guarantee, the adoption, implementation, and promotion of a genuine “open door policy” helps not only to ensure a more civilized workplace, but it may also provide an affirmative defense to an employment discrimination claim. And it need not cost a lot.
The effective establishment of an open door policy requires an understanding of the rules governing workplace conduct and how those rules are interpreted. Most employers know that California law prohibits unlawful discrimination, that is, treating employees differently because of their race, gender, age, sexual orientation, disability, religion, or other protected status. See, e.g., California Fair Employment and Housing Act (FEHA) Government Code §§ 12900-12996. What many do not realize, however, is that claims of bias can be made with little evidence of direct bias. Thus, an employee claiming age discrimination need not show that a supervisor said he or she was “too old” for the job or “too close to retirement”. The employee need only show that he or she was treated adversely and differently than other similarly situated employees.
As a result, claims of bias or discrimination can be based upon language or actions that have no relation whatsoever to the employee’s race, gender, medical status or other protected class. They can be based, instead, simply on the grounds that a supervisor was harsh or unfair. They can also be based on grounds that co-workers subjected him or her to ill treatment, including teasing, horseplay, pranks, or foul language.
The catch, of course, is that such claims are actionable only where the employee can show that the adverse conduct was “severe or pervasive”. See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609. Isolated instances of harassment are not actionable. Id. This is where the open door policy comes into play. An employer with an effective open door policy can rebut discrimination or harassment charges by showing that it invites employee feedback and resolves problems as soon as they arise.
The specific structure and operation of an open door policy will depend, of course, on the size and nature of your workplace. At the very least, you should attempt to implement a policy which includes the following:
1. Maintenance of an employee personnel handbook that invites, if not requires, employees to bring work-related complaints to your attention.
2. Adoption and dissemination of a clearly written anti-discrimination and anti-harassment policy.
3. Adoption of a “user-friendly” complaint reporting policy and procedure. This policy should allow employees choice as to the manner of making the complaint – oral or written. It may be helpful to designate a variety of managers, supervisors, or even third parties to process complaints.
4. Incorporation of an opportunity for complaints to be voiced in all personnel reviews – whether oral or written. Make the review process interactive. Any discussion of employee performance should also include an opportunity for the employee to comment on his or her perception of the position and his or her criticisms, if any, of the workplace, the supervision and the overall job environment.
5. Posting of all open door and anti-harassment policies in highly visible areas.
6. Adoption of a policy to ensure that key managers and supervisors establish and adhere to a regular “open door” day or afternoon to hear and administer employee complaints.
7. Inclusion of, as a regular agenda item, discussions of employee concerns at regularly held staff meetings.
8. Provisions for annual training on the employer’s anti-harassment and discrimination policy and complaint procedures.
Following these steps serves three objectives. First, it should help to create a more harmonious workplace. Second, it will help ensure that routine problems do not grow into major disasters. Third, it will discourage litigation. An employee complaining that he or she was desperately unhappy at work, but who failed to take advantage of readily-available complaint procedures, will, at the very least, lose credibility and may find any subsequent claim subject to dismissal for failure to use the complaint mechanism. See, e.g., Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1168, 1181-1182 (9th Cir. 2001) (applying California law, the court found that an employee's failure to use a complaint mechanism when she was allegedly sexually harassed by a “hostile” work environment required dismissal of the employee's action as a matter of law); accord Faragher v. City of Boca Raton, 524 U.S. 775, 807-808 (1998) (an affirmative defense to a sexual harassment claim under federal law exists where (1) the employer has taken reasonable care to put into place procedures to prevent and correct harassment; and (2) the employee unreasonably fails to take advantage of these preventative procedures); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (same).
Of course, you, as the employer, must back up your “open door” policy with more than mere words. Promises of employer concern must be kept, regardless of inconvenience or the often unpleasant nature of the task. In the short run, these steps may seem onerous and unnecessarily time-consuming. In the long run, however, such steps may save you tens of thousands of dollars in legal fees and insulate you from countless hours of unproductive time in avoidable and unpleasant legal proceedings.
This article is not to be considered legal advice by the author or Ellis Law Group, LLP. Any person or agency with specific legal questions must consult with the legal counsel of their choice.
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