How to Safeguard Against Discrimination, Retaliation Claims

While the region’s economy has improved somewhat over the past few years, the job market remains sluggish, leaving people with limited opportunities for employment if they should lose a job for some reason.
In this climate, employers of all sizes must be diligent about protecting themselves from potential claims of discrimination and/or retaliation. And to do so, they must first know the law, and then make sure that all managers and employers remain in compliance with these laws. Failure to do so can result in lawsuits that can be quite costly in terms of time, money, and disruption of a business.
What follows is a primer on the laws in question and steps employers can take to limit their exposure to discrimination and retaliation claims.

Know the Law
Since the civil-rights movement of the 1960s, federal and state governments have enacted a number of laws that bar discriminatory practices against employees on many grounds, while also creating agencies to enforce these laws. Under both federal law (Title VII of the Civil Rights Act of 1964) and chapter 151B of Massachusetts General Laws, employees, non-employees, and other people are protected against discriminatory and retaliatory action.
The Massachusetts unlawful discrimination statute under 151B has more teeth than its federal counterpart and does not require a minimum of 15 employees like Title VII does. Rather, the Massachusetts statute requires only six or more employees and expands the language to include not only employers and employees but any person as a necessary actor (see Gen. Law 151B, sec. 1 for definitions).
Furthermore, the law states that an employer cannot coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted to them under the discriminatory protection laws.

The Adjudicating Body
The Mass. Commission Against Discrimination (MCAD) is the state’s chief civil-rights agency and the governmental adjudicatory body that promulgates and enforces anti-discrimination laws in Massachusetts. So, if you are an employer with six or more employees, you and other employees are prohibited from discriminating against people or groups on the basis of race, color, religious creed, national origin, ancestry, sex, age, handicap (disability), mental illness, retaliation, sexual harassment, sexual orientation, and genetics. In addition, employers have an affirmative responsibility to provide maternity leave to biological and adoptive parents, according to MCAD.

Reality or Legality
As an employer, one may be trained in business, but not necessarily in the law. In certain instances, situations may arise in the workplace where it is difficult to distinguish between what is a legally prohibited action, such as discriminating on the basis of a handicap, or what is a merited warning given to an employee, which is protected by law.
For example, one of your employees is habitually tardy and, in your mind, setting a bad example for the other employees. You have a brief meeting with this person and warn him that if his tardiness continues, you will be forced to terminate him. Specifically, you explain to him that he needs to get to work on time, and you are not willing to make any special accommodations for him, although he is handicapped and unable to transport himself. You end the meeting by giving him an official warning and move him into a probationary program for a period for 90 days.
Approximately 30 days later, you receive a complaint in the mail from MCAD, which states that you have engaged in a discriminatory practice against your handicapped employee. You immediately call your attorney’s office, and he informs you that, in certain Massachusetts cases, it is viewed as discriminatory if an employer does not make reasonable accommodations for a handicapped person. He also warns you be sure that you or any person within your business does not engage in any retaliatory action.

What Constitutes Retaliation
As the claim process moves forward through MCAD to determine whether or not your actions against the handicapped employee are discriminatory, how can you now interact with this employee within the purview of the law and without constituting retaliation? In the Massachusetts case Lysak v. Seiler Corp., an employee who files a discrimination claim against an employer is protected, at least in part, from an action motivated by an intent to punish, or rid the workplace of someone who complains of unlawful practices which they were subjected to on behalf of the employer.
For instance, you cannot purposely punish your handicapped employee by putting him on what is normally a rotating third-shift schedule every night unless it applies to all other employees as well. Furthermore, no person in the workplace is allowed to harass this employee by any means. A co-worker may not, whether knowingly to you or not, make any unwarranted comment to this employee such as bringing their pending claim up in an employee meeting with disapproval. In addition, the employee may neither be threatened nor subjected to a hostile work environment in order to persuade them to quit. You cannot stack their duties or make their environment uncomfortable in order to prompt their quitting.
It is also an obvious demonstration of retaliation if you were to terminate your handicapped employee immediately following the receipt of their MCAD complaint. Further, it is still considered retaliation if you were to fire an employee after hearing from one of your other employees in advance that your handicapped employee is going to file a discrimination claim next week. It is viewed in most cases as constructive discharge if your action to terminate the employee was motivated in part by learning that they will be filing a future discrimination claim against you.

Protect Yourself
A good business practice is to be courteous to all employees and treat them fairly. Create a culture in your workplace that promotes the same courteousness for all managers and entry-level employees.
Do not tolerate bad behavior in general or any discriminatory behavior among employees. Also, keep very concise and detailed records if any situations arise within your business, and be certain that all managers and employees know what actions are legally prohibited discrimination and what constitutes retaliation on the part of the employer.
This article gives only a brief overview discrimination law. Contact MCAD to provide training services for all employees. More information is available through the agency’s Web site, www.mass.gov/mcad.
Remember, employees who have been found to be discriminated against have received large awards levied against their employers. Consult an employment attorney if questions arise to specific situations within your business that may constitute discrimination or retaliation.
In conclusion, not only is it good business practice to establish clear, non-discriminatory guidelines, but, due to the consequences, it may be the difference between prosperity and bankruptcy.

Vittorio Coppa is a business-law specialist with an office in Holyoke; (413) 540-1930; wwwcoppalaw.