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Workers who bring employment lawsuits to trial are increasingly victorious. In 1994, a plaintiff could expect a 49% chance of winning compared to 70% in 1999. The study also found that the medium compensatory damages award soared from $127,500 in 1996 to $200,000 in 1999. It is the area of harassment, sexual, racial and others, that has grown the fastest. This article discusses your liability. |
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As reported in USA Today on March 27, 2001, a recent study found that workers who bring employment lawsuits to trial are increasingly victorious. In 1994, a plaintiff could expect a49% chance of winning compared to 70% in 1999. The study also found that the medium compensatory damages award soared from $127,500 in 1996 to $200,000 in 1999. It is the area of harassment, sexual, racial and others, that has grown the fastest. Recognizing harassment when it occurs is a challenging proposition for many employers, particularly in an age where sexual innuendo and other harassing behavior saturates television and movies, or when a workplace formerly has enjoyed domination by a particular gender. Also, what one employee may find offensive, another employee may not, depending on their differing backgrounds, experiences and degrees of sensitivity. Although isolated instances of inappropriate behavior generally will not meet the law's "severe or pervasive" threshold, the best policy for employers is to prohibit all workplace conduct that potentially could lead to harassment claims. Title VII of the Civil Rights Act of 1964, as amended in 1991, applies to any company that employs 15 or more people. The Act bans discrimination based on race, color sex, religion, age, disability, handicap, or national origin, or other protected characteristics and states that employers, as well as their agents, can be sued for violating the law. Who is an agent? Some courts have correctly noted that supervisors and managers are agents and can be individually liable in Title VII cases. Other courts have said that supervisors and managers are merely employees and can never bear liability individually. Indiana, which is located within the jurisdiction of the 7th Circuit Court of Appeals, has rejected the notion of individual supervisor liability. Their rationale; supervisors and managers, no matter how much power they have, are merely employees. Therefore, employers are accountable for all of their employees' actions, so that is where Title VII victims must direct their claims. Caution, the liability issue can change if there is a split among the Circuit Courts, at which time this issue would come under review by the United States Supreme Court. All of the Circuit Courts (there are 12) agree that a company can reduce its liability for Title VII violations by doing the following: Ø Instituting a fair and thorough sexual harassment policy. Ø Ensuring that adequate venues for filing complaints exist. Ø Promptly investigating all workers' claims of discrimination. Ø Taking steps to discipline guilty managers and protect aggrieved employees. Ø Training its supervisors and managers about the laws of the workplace and how to address employee issues. As to the latter, the Supreme Court in two landmark decisions gave employers an affirmative defense to sexual harassment claims. However, to take advantage of that defense, employers are required to conduct in-house sexual harassment training for all employees on a regularly basis. Regularly has been interpreted to mean every six months, but not later than yearly. In addition, the Seventh Circuit recently made it clear in upholding the decision of a lower court (Mathis v. Phillips Chevrolet, Inc.), that failing to train employees regarding the basic features of discrimination laws is an "extraordinary mistake". Simply, untrained managers could place their employer in the position of paying large sums to a plaintiff in the form of punitive damages. Ø "Failing to Train Employees About Discrimination Law Linked to Punitive Damages". Ø Leaving Managers Untrained is an "Extraordinary Mistake". Ø Lack of Management Training is also an Extraordinary Mistake. The smart companies will try to root out acts of discrimination in an effort to prevent lawsuits or, at least, reduce their liability when a lawsuit arises. This means that all employers are under the microscope. Employees will be looking for employers to make a mistake, and mistakes can be all too easy to make when it comes to today's complex laws that regulate the workplace. All of this underscores the significance of training in the area of employment discrimination laws. The bottom line should be obvious-TRAIN YOUR MANAGERS-about the basics of discrimination laws. All Managers and Supervisors, especially those with the power to hire, fire, promote, demote, discipline and transfer, must have a rudimentary understanding of the civil rights laws and how they operate. Human Resources Consulting Services can assist you with all of your training needs in these areas. We will teach your managers and supervisors about the law and how they can recognize and resolve workplace issues before they grow into very costly problems. Human Resources Consulting Services Robert F. Conte Attorney & Counselor (574) 239-8555 E-mail: rconte@hrlawconsulting.com |
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