Tips for defending against a discrimination claim

Few things can evoke concern in a business owner like an allegation of discrimination. Whether it’s an internal notice from an employee, or a letter from either the Equal Employment Opportunity Commission (EEOC) or California’s Department of Fair Employment and Housing (DFEH), such a claim represents a potentially serious issue.

It happens even to the best-run businesses, however, and is no reason to panic as long as you act quickly and do the following right away to minimize or eliminate the discrimination claims.

1. Gather relevant documents and communications

When facing any type of potentially serious claims, evidence is key. Make sure to search for, gather and make accessible any relevant communications or documents pertaining to the case. This could be the employee’s personnel file, meeting minutes, company-wide memos and email conversations. Moreover, in California there is something called a “litigation hold”, which requires you, once you receive notice of a claim, to maintain all documents, records, emails and the like in the condition they were maintained in the ordinary course of your business, i.e., you must not delete or destroy any potential evidence.

It is also important to determine whether the employee ever reported the issue to the business. If not, then you were likely never given the opportunity to address it. If the employee did file an internal complaint, determine whether leadership took any action in response, and gather any documentation demonstrating that.

Needless to say, the better you document an employee’s personnel file at the time incidents occur, even if they appear minor at the time, will be invaluable to you and your attorney later.

2. Do not retaliate

Retaliation against an employee involved in a discrimination case or complaint is illegal and can come with serious consequences. Types of retaliation include:

  • Verbally abusing the employee
  • Reprimanding the employee
  • Demoting them
  • Altering their pay or work hours in a way that makes their job more difficult
  • Punishing the employee in any way
  • Threatening any type of retaliation

Not only is retaliation illegal, but oftentimes a retaliation case can be more difficult to defend than a discrimination case.

3. Hire a knowledgeable attorney with experience in employee matters

Employee claims are a fertile ground for lawsuits these days against California employers. The laws are stacked against the employer and highly favorable to the employee. Failure to address an employee’s claims (whether it be a claim for discrimination, wrongful termination, wage and hour or whistleblower) it is critical to engage an attorney to take immediate steps to both meet your legal obligations and mount your defense. Your attorney will establish guidelines for cooperation while at the same time endeavor to limit exposure – a delicate balance only experienced litigators will know how to effectively implement, and will typically retain an independent investigator to take witness statements and similar tasks.

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