What You Don't Know

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Ignorance may be bliss, but it won’t keep you out of court. Here are a few scenarios in which what you don’t know could truly hurt your organization.

Scenario 1: Till adverse employment action do us part

Here’s what you know. Joe and Mary are husband and wife. They both work for your organization. Joe’s performance and attendance is poor. Despite multiple meetings, warnings and disciplinary actions, he consistently doesn’t show up and even when he does, he doesn’t get much accomplished. As a result, you plan to let Joe go later this week.

Here’s what you don’t know. For the last three months, Mary’s new supervisor has been harassing her. The conditions have gotten so bad that she just filed a sex discrimination charge with the EEOC.

Here’s how this could hurt you. If you fire Joe, you may also get sued for retaliation – and lose. In early 2011, the U.S. Supreme Court ruled that an employer unlawfully retaliated against an employee after his fiancée filed a sex discrimination charge with the EEOC and it then fired him three weeks later. As a result of this ruling, employers must be mindful of the relationships between employees when taking any adverse employment actions that could be construed as retaliatory in nature, even if the potential third-party “person aggrieved” wasn’t engaged in any protected activity.

Scenario 2: It’s in the details

Here’s what you know. Emily works for your organization. She recently applied for a new position in the organization that would give her a promotion and an increase in pay. While considering Emily for the promotion, you note that she has displayed a consistent pattern of clerical errors and a lack of attention to detail in her work. You tell Emily that you believe she may lack the concentration or mental capacity to handle the additional responsibilities of the new position, and as a result, you deny Emily the promotion.

Here’s what you don’t know. Emily was recently diagnosed with a learning disability.

Here’s how this could hurt you. Based on the final rules for the Americans with Disabilities Amendments Act of 2008, taking an adverse employment action because an employee is “regarded as” having a disability is a no-no, and the definition of “disability” has been greatly expanded. In this scenario, Emily could file a claim with the EEOC that you regarded her as having a mental impairment or learning disability, and as a result, discriminated against her by denying her a promotion.

Scenario 3: Unemployed need-not apply

Here’s what you know. You have a job opening for a production manager at a facility in New Jersey. You’ve had a lot of turnover at this position, which your management team at your headquarters in Canton, Ohio, believes is the result of a lack of qualified job candidates. As a result, two weeks ago they ordered that you change your online job ad to include “must be currently employed” as a requirement of the position. You made the change at the beginning of the month, and have already started interviewing candidates this week.

Here’s what you don’t know. This week an unemployed former production manager filed a discrimination charge against your company with the Commissioner of Labor and Workforce Development in New Jersey.

Here’s how this could hurt you. As of June 1, 2011, employers in New Jersey are prohibited from knowingly or purposefully publishing a job posting in print or on the Internet that states, among other things, that current employment is a job requirement. In this case, your organization could be fined $1,000 for its first violation – up to $10,000 for a third (or subsequent) violation.

New Jersey is the first state to enact a law protecting unemployed workers from employment discrimination. New York has adopted the same legislation.