If your business has employees, then you have the potential for employee-related issues. You may have unintentionally created a contract with an employee, you or one of your employees may say or do something that creates a hostile work environment, or you may have wrongfully terminated an employee. Any of these scenarios can lead to a lawsuit costing $50,000 or more.
Pennsylvania is an “at will” employment state. But, by simply creating a company policy manual, you may have unwillingly entered into an employment contract with your employees. And there is no magic wand to undo what you’ve done. You may need to create new policies and provide current employees with consideration for the new policies to be enforceable.
FEDERAL CLAIMS UNDER VII
Is your company prepared if an employee or former employee were to bring a claim of discrimination based on sex, race, color, national origin, or religion? Have you or one of your managers discriminated against an employee’s religious beliefs? Have you violated the rights of an employee that is pregnant? These are federal claims and you need an attorney who understands these specific issues. As a former small business owner, Attorney Charles Dutko, has more than 10 years of employment law experience.
WHAT DOES THE COURT LOOK AT?
In most instances, if you have 15 or more employees there is the potential for a federal claim under Title VII of the Civil Rights Act of 1964. An employee or former employee can sue because of direct, intentional discrimination, know as Disparate Treatment. A discrimination claim can also be brought because of the result of a policy that is not discriminatory on its face, known as Disparate Impact.
In McDonnell Douglas the Supreme Court created a tripartite framework for the allocation of proof in disparate treatment cases based on circumstantial evidence. The plaintiff (employee) must establish a prima facie showing of discrimination. To prove a prima facie showing of discrimination in hiring or promotion, the employee needs to show:
They are a member of a protected class;
They were qualified for the position;
That an adverse employment action was taken against them; and
That a similarly situated employee, not within the plaintiff’s protected class, was treated better.
Once the plaintiff meets his/her prima facie showing, the burden shifts to the defendant (employer) to articulate a “legitimate, nondiscriminatory reason” for taking the adverse employment action. If the employer meets its burden, the burden shifts back to the employee to show that the employer’s proffered reason was pretext.
To prove a Disparate Impact claim the plaintiff does not need to prove intent. The plaintiff’s prima facie case must show that 1) a facially neutral police or practice is in place, 2) that the plaintiff’s protected class has been adversely effected by the policy, and 3) demonstrate a causal connection between the policy or practice and the adverse effect. The Equal Employment Opportunity Commission has adopted a “4/5 Rule” for triggering liability. For a company that requires a pre-employment test where men pass the test at a rate of 50%, women must pass the test at 40% or greater for the company’s pre-employment test to be deemed non-discriminatory.
HOW CAN I PROTECT MY COMPANY?
At Dutko Law we will work to minimize your risk. We can assist your company with document review, employee manual review, and, if the need arises, litigation. As a business owner you need to take these matters seriously. You have worked hard to create a successful business and to provide for your family. Don’t allow it to be taken from you because you failed to protect yourself.
Contact Dutko Law, for a FREE CONSULTATION and learn how we can protect your small to medium-sized business.