How Can I Prove I Did Not Unlawfully Discriminate against My Employee?
There are several ways to show you did not discriminate against your employee. These will differ depending on the kind of discrimination being charged and whether the employee is claiming intentional discrimination or discriminatory effect.- Intentional Discrimination ¿ You can defend against most charges of intentional discrimination by proving you had a non-discriminatory reason for the alleged discriminatory action. Such reasons may be anti-discrimination laws¿ exceptions for certain groups or situations, or not specifically prohibited by such laws, such as nepotism or bribery. While these last reasons may not violate anti-discrimination laws, they may violate other federal or state laws.
- Discriminatory Effect ¿ You can defend against most charges that your employment practices have such an effect by proving one of the following:
- Your employment practices have no discriminatory effect on the employee¿s protected class
- There is no direct relationship between your employment practices and the employee¿s protected class being underrepresented or disadvantaged
- Your employment practices are job related and reasonably necessary to achieve an important objective of your business and any suggested alternative employment practices would also have an undesirable effect, or would not be as effective in achieving your business¿ important objective
What Are Some Common Exceptions to Anti-Discrimination Laws?
Exceptions commonly provided by anti-discrimination laws include:- Decisions based on a bona fide seniority system, merit system or system that measures earnings or privileges by quantity or quality of production
- Decisions based on business considerations that cause you to eliminate positions
- Bona fide occupational qualifications
- Businesses giving preferential treatment to Indians (Native Americans)
- Religious organizations with respect to employment of individuals of a particular religion to perform work directly related to the organization¿s religious activities
- National security programs making a position or access to the workplace subject to requirements an individual does not meet
Do Some Types of Discrimination Have Unique Defenses?
While you can defend against most discrimination claims using a variation of the above defenses or exceptions, some types of discrimination have unique defenses. For example:- Sexual Harassment ¿ You can defend against such charges by proving you took reasonable care to prevent or promptly correct harassing behavior and the employee unreasonably failed to use your anti-discrimination policy, or to otherwise avoid or reduce any harm done. You may also defend against such claims by proving the harasser would or has harassed both sexes alike.
- Disability ¿ You can defend against most charges of failure to reasonably accommodate an employee¿s disability by proving doing so would cause undue hardship.
How Will My Employee Attempt to Undermine My Defense?
Even if you establish a defense to employment discrimination charges, the employee will have a chance to prove that:- Your defense is mere pretext for actual discrimination
- There are other employment practices that would not have a discriminatory effect
- It is only reasonable and fair that an exception to the defense should be made in the employee¿s particular situation
When Is a Defense Pretext for Actual Discrimination?
A defense is considered pretext when the court does not believe it is the real reason for the alleged discriminatory action. The employee will attempt to show your reason is mere pretext by persuading the court that a discriminatory reason is more likely to have motivated the action, or that the defense is not believable under the circumstances.
Do I Need a Lawyer Experienced with Defending Employers in Discrimination Cases?
If you are being sued for employment discrimination, an employment lawyer will be able to help you establish if you have a valid defense to the charges and assist you in any state or federal proceedings the employee may initiate. |
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