HR Lawsuits: Three Critical Mistakes Managers Must Avoid

Introduction

Work has changed in many significant ways over the past decade. The workforce is more diverse, and working from home is now common practice in many offices. But one thing that has not changed is the need for the human resources department to avoid lawsuits. Lawsuits may arise due to intentional bad actions on the part of managers, or unintentional violations that are misconstrued. Regardless, managers must avoid both the appearance of impropriety and deliberate violations during the hiring, evaluation, and termination process.

Hiring: Be Professional, Not Chatty

Being professional means phrasing employment advertisements in a way that is not intentionally discriminatory. Requested education and experience should directly relate to the needs of the advertised position. For example, demanding that a candidate be able to lift fifty pounds as a requirement for a desk job could be viewed as discriminatory against physically disabled persons. Avoiding questions during the interview process that could unintentionally reveal race, religion, ethnicity, disability, pregnancy status, or other protected characteristics of a potential employee is also critical (2020 top 11 actions, 2020).

Sometimes employers who wish to build rapport and engage in icebreaking conversations with candidates can mistakenly fall into a minefield. For example, asking a prospective employee whether they have children, or whether the candidate had a good Christmas, can expose the employer to claims of discriminatory inquiry.

Evaluation: The Importance of Documentation

Often, employers who wish to be positive and avoid discouraging employees may not include the full range of reasons an employee's performance is unsatisfactory in their written reviews. Not only does this undercut the effectiveness of performance evaluations, but if the employee must eventually be terminated, the employee may claim he or she was discriminated against because of a protected status — pointing to a lack of negative comments on prior performance reviews (2020 top 11 actions, 2020). If the employer makes accommodations for the employee, such as allowing the employee to work from home during an extended illness, this should also be documented to demonstrate that the employer takes reasonable steps to meet employee needs.

Managers should also be briefed on how to communicate criticism in a positive and respectful manner, without referencing protected employee characteristics. For example, saying to a parent, "I know it's been hard to give full attention to your work because the kids are home on winter break," introduces a protected characteristic into a performance discussion in a way that could later be used as evidence of bias (5 best practices, 2015). Employers should additionally avoid favoritism, including informally socializing with small groups of employees in ways that may disadvantage others — such as going out with male employees to a sports bar, or holding a faith-based optional leadership seminar (5 best practices, 2015).

Conclusion

Employees can and must be accorded all of the protections to which they are entitled, and treated like the valuable assets they are for the organization. By maintaining professional hiring standards, thoroughly documenting performance and accommodations, and taking all employee complaints seriously, HR departments can significantly reduce their organization's legal exposure while fostering a fairer and more productive workplace.