Five Ways Employers Get Themselves Sued

There are several practices that get insurance industry employers into legal trouble when disciplining employees.

In no particular order, they are:

Not Treating Your “Similarly Situated” Employees Equally

For the most part, the anti-discrimination laws require you to be consistent with raises, disciplinary action, application of your policies, and all other “terms and conditions” of employment. For example, when you are ready to discipline an employee, look at the way you’ve treated other employees who committed the same or similar offenses. Treat your current bad apple the same way.

Favoritism or nepotism are not illegal in themselves, but if you play favorites you are that much more likely to be accused of unlawful discrimination by employees who happen to be in a protected class. Chances are they qualify for at least one protected class status.

Treating Your “Similarly Situated” Employees the Same

What? Didn’t I just read that we must be consistent? Yes, but there are a few laws that require insurance industry executives to treat employees inconsistently. If an employee has a disability, a pregnancyrelated condition, or a religious need, you can’t refuse accommodation on the ground that “we’ve never done that for anybody,” or “if I did that for you, I’d have to do it for everybody.” Consistency is usually a good thing, but if an employee needs a reasonable accommodation, you are required by law to at least consider treating that employee differently from the way you treat your other employees.

Not Periodically Monitoring Your Compensation for Equity

You can be sued for pay discrimination even if you don’t discriminate! The best way to avoid any issue, and to avoid legal fees defending a case where you are innocent, is to conduct periodic equal pay audits. When you do, you’ll invariably find at least one or two people whose pay just doesn’t seem right – for whatever reason. When you find a pay disparity for which there is no good explanation, you can quietly make a correction, and everyone will live happily ever after. It may not be so easy to do that if you wait until after you’re embroiled in an OFCCP audit or named in a discrimination charge or lawsuit.

Failing to prevent harassment in the workplace, or to act promptly when a harassment complaint is received

Every employer should have a no-harassment policy, and it should be in plain language that employees can understand. (If you have a multilingual workforce, then it should also be in the languages that your employees speak and read.) Harassment training should be conducted on a regular basis, especially in New York State, which requires such training annually, ideally about once a year. And the current “best practice” is to train not only leadership, managers and supervisors, but also nonmanagement employees.

Once you determine to the best of your ability what really happened, make sure that the penalties, if any, are appropriate in light of what you found. That means no “slaps on the wrist” (unless the behavior really was trivial).

Mishandling medical leaves

It’s not uncommon for employers to be hit with the dreaded “triple whammy”: (1) an employee with a disability (Americans with Disabilities Act), (2) resulting from an onthejob injury (workers’ compensation), (3) who needs a leave of absence (Family and Medical Leave Act) and in New York State and New York City (be sure to check other local sick leave laws). If you don’t have a solid understanding of all of these laws and their interactions, then you will mess up, so consult with someone who is familiar with all these rules before you act.

Finally, a word about retaliation

It would be unlawful for the employer to take adverse action against an employee for asserting rights under any of these laws we’ve discussed complaining about workplace discrimination; asking for reasonable accommodation or complaining that one wasn’t granted; complaining about discriminatory pay; making a complaint of harassment; or requesting FMLA leave, filing a workers’ compensation claim, or claiming unfair treatment based on an ADAprotected disability.