Emtrain Blog

How to Avoid a Bias or Retaliation Claim

Posted by Phyllis Cheng

February 16, 2017

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Do you think your company is immune to gender bias, discrimination, and harassment claims? Think again. Read on to learn how you can protect yourself and your company from the common issues that lead to costly harassment or gender bias claims in the workplace.

Speaking of gender bias in the workplace, recent high profile cases show examples of how NOT to handle internal conflict. The two sides typically both feel they are doing the right thing and, to prove it, they are willing to take on an expensive lawsuit and a PR nightmare. If only the businesses had stronger, more developed workplace skills from the start, they could have avoided prolonged and costly litigation fights. Here are some best practices to help you stop discrimination in the workplace:

You need to think like an outsider.

Most people are so wrapped up in the details and specific personalities at issue that they often neglect to take a few steps back and look at a situation from an outsider’s perspective. Using a neutral perspective, free from office politics, personality conflicts, and other subjective feelings, you can better evaluate the situation without bias and come to a more accurate assessment. You always want to use an outsider’s perspective when tackling and documenting promotions, performance reviews, and internal communications. The better you are at adopting this perspective, the better protected you and your employees are from having to deal with an unnecessary and costly workplace lawsuit or claim. 


Handle workplace romance with care.

While some employers prohibit dating between supervisors and employees or between co-workers, and while others provide no restrictions on fraternizing, mutually consensual workplace romances should not disrupt or negatively impact the work environment.    

Maintaining respect of and privacy among the workforce is essential to a professional work environment. Thus, no favoritism should be given on account of a special relationship; and no retaliation should be meted out for a romance that has gone sour. Even if all seems above board, beware that the perception of favoritism or retaliation can develop and be just as harmful in the workplace.

Should discrimination, harassment or retaliation occur as a result of workplace romance, the assistance of a human resources professional or a trusted supervisor may be necessary. Know the internal grievance procedure and take appropriate steps to resolve the problem.

Inappropriate off-duty conduct can lead to workplace issues.

People often assume (incorrectly) that if something happens off-hours or outside the workplace, it would not be a workplace concern. If a situation involves people who work together and is likely to impact their working relationships, it can be a workplace concern. No matter where conduct occurs, if co-workers are involved, take great care to ensure that communication is handled in the same manner as it would be in the office.

To avoid a retaliation claim, consider how your actions might be interpreted.

Retaliation claims are your worst enemy. These types of claims are more successful than the underlying bias claims. Even when the bias claim fails, the retaliation claim often succeeds. We all know how difficult it is to work with someone who has complained about you or your company, but it is important for you to remain as objective as possible. Regardless of whether the complaint has merit, you need to run your actions and communications through a filter and consider whether they might be interpreted as retaliation. If you must act, clearly document the reason for the action in a manner that is supported by legitimate, objective business reasons. Stay away from subjective reasons that are easily disputed and can be perceived as retaliatory.

Conclusion

You can avoid most workplace claims and litigation if you take some time to analyze the situation and handle workplace issues proactively and strategically. Use the above guidelines to develop your own workplace skills, and if you need tailored best practices, don’t hesitate to reach out and ask one of our experts at experts@emtrain.com.

 

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Phyllis_Cheng  Phyllis Cheng            

Phyllis is an employment law expert and a partner at DLA Piper, the largest global law firm. Before joining DLA Piper, Phyllis was the Director of the California Department of Fair Employment and Housing, the largest state civil rights agency in the United States. During her nearly seven-year tenure at DFEH, the agency took in 140,000 complaints and prosecuted between 400-500 cases, including several class complaints. 

 

Do you have a question for Phyllis Cheng? Leave a comment or email her at experts@emtrain.com.

Topics: HR Compliance, Legal, Preventing Harassment