Despite an employer’s best intentions and efforts, there may come a day when a current or former employee makes an allegation that the employer, or other employees, discriminated against them. When an employee raises those types of complaints, it is important to get professional advice. Far too often employers try to handle allegations of discrimination or other violations on their own. The sooner an attorney gets involved the more likely it is the employer will get a good result.
An employee can claim employment discrimination based on a lot of different theories:
(5) National Origin
(8) Sexual Orientation
(9) Gender Identity
(10) Workers’ Compensation Retaliation
(12) FMLA interference and retaliation
(13) ERISA retaliation
The Burden Shifting Analysis
The vast majority of employment discrimination and wrongful termination lawsuits end up evaluated based on the McDonnell-Douglas burden shifting analysis. The burden shifting analysis focuses on three different stages.
In the first stage, the prima facie case, the employee must prove:
(1) they are a member of a protected class or engaged in protected activity;
(2) they suffered an adverse employment action, retaliation or harassment; and
(3) a causal connection between (1) and (2).
In the second stage, the burden of production switches to the employer. The employer will be called upon to present those legitimate and legal reasons for an adverse employment action. In the alternative the employer will be called upon to discuss measures the employer took to prevent harassment. In the third stage, the burden of production shifts back to the employee to prove that the employer’s explanation is pretext for illegal conduct.
The second stage is the most important for employers. An employer that is disorganized in their policies or actions towards employees will struggle to adequately present the legitimate, nondiscriminatory justification for the employer’s action. An employer without policies, with a poorly written handbook and inadequate documentation struggles to put forward a credible justification for their action.
For an employer to be in the best position possible during the second stage it is necessary to be proactive. It is not safe to assume that all employees are going to agree with the reasons for their termination or failure to get promoted. Your employees are human beings. Human beings have egos. Those egos can create a perception of unfairness that is not apparent to others. You, as an employer, must remain vigilant when it comes to handling employment issues.
Our employment law attorneys can help you with all stages of this process, help craft your employment handbook, or perform investigations of employee misconduct. When litigation breaks out, you can call on us to provide your legal defense.
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