Pointers for Supervisors: 11 Ways to Avoid Workplace Lawsuits

by Rita M. McKinney

Supervisors can be an employer’s frontline of protection against costly discrimination claims — if they’re armed with the right information and training. Here are 11 important things every supervisor needs to know.

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1. Discrimination. Supervisors should understand that federal law prohibits unlawful discrimination in six primary areas: race, sex, national origin, religion, age, and disability. There are state laws that also prohibit various forms of unlawful discrimination.

2. Hiring — the interview. Job applicants are protected from discrimination under the federal law Title VII of the Civil Rights Act of 1964. Supervisors participating in the hiring process should be careful to ask only appropriate questions when interviewing candidates, focusing on applicants’ credentials and matters that are specifically related to the job. They should understand that any notes taken during an interview can be used as evidence.

Preparation for an interview is a must. Interviewers should review the job requirements, the job description, and any information available on the candidate in advance. A list of questions should be prepared, and those questions should be asked of all candidates. The questions should be related to the job and geared toward determining if the applicant is a good fit for the job. Questions related to ethnicity, national origin, the applicant’s religious beliefs or practices, family planning, children, and dating or sexual orientation should not be asked. Questions related to an applicant’s primary language should not be asked unless language requirements are part of the job duties.

3. Employee performance evaluations. Accurate performance evaluations can be important tools in making a variety of personnel decisions, including merit pay raises, transfers, and selections for reductions in force. Employers should develop and adopt an evaluation system that includes job descriptions, implementation of the system, an evaluation form, and how to conduct meetings with the employees. Supervisors should be thoroughly trained on the employee performance evaluation system.

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4. Dealing with problem employees. You should deal with problem employees — through your supervisors — up-front and with a systematic approach. Problem employees should be dealt with as soon as the problem comes to light. The fact that an employee is in a protected class should have nothing to do with how you deal with him. Supervisors should consider handling a problem employee by:

• reviewing in advance the company’s disciplinary system;
• having a one-on-one meeting with the employee;
• explaining their responsibility for getting work done and their responsibility to evaluate employees;
• explaining to the employee that they are being honest and need to tell the employee whether he is doing a good or poor job;
• if the employee’s previous evaluations have been good, exploring any reasons for a change in performance and discussing the current situation honestly with the employee; and
• following the company’s disciplinary system and documenting the meeting.
• Above all, don’t reward bad behavior by allowing it to continue.

5. Discipline. The company, through its supervisors, should investigate employee misconduct before implementing any disciplinary measure. The investigation should include reviewing the employee’s personnel file, interviewing coworkers, witnesses, and the offending employee, securing any physical evidence, documenting all interviews, and determining the appropriate discipline, if any.

6. Termination of employment. Terminating an employee is a serious decision. Before implementing your decision, ask yourself the following questions:

• Have I reviewed the company’s policies and procedures on terminations?
• Has a thorough investigation been completed?
• Will the termination come as a surprise to the employee?
• Has the employee’s file been appropriately documented?
• Is the employee a member of a protected class?
• If the employee is being replaced, is the replacement a member of a protected class?
• Is there a potential claim for retaliation?
• Is the reason being given for termination true and accurate?

The decision to terminate an employee should not be made lightly. When the time comes, be sure to meet with the employee in a private setting with another company representative, and be straightforward regarding the reasons for termination.

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7. Harassment. Part of a supervisor’s job is to prevent harassment in the workplace. Harassment is a form of discrimination and an unlawful employment practice. It is any verbal or physical conduct that denigrates or shows hostility or aversion toward an individual based on his race, sex, national origin, religion, age, or disability. Harassment can include jokes, banter, or horseplay. Supervisors should understand that harassment can occur between employees of the same protected class (e.g., sex, race, national origin, or age).

8. Investigations. Employers should always investigate alleged employee misconduct before implementing any discipline. If disciplinary action results in discrimination or becomes a factor in litigation, your thorough, fair, and documented investigation will be critical in convincing the agency, judge, or jury that you acted legally. Sloppy, incomplete, or abbreviated investigations can suggest that the reason given for a disciplinary action was an afterthought and perhaps the result of some ill motive. Thus, the investigation should be conducted carefully and be well documented.

Supervisors participating in an investigation should understand that interviews with witnesses should be documented and take place in the presence of two company representatives. Interviews should be conducted of witnesses, coworkers, the alleged offending employee, and anyone identified by the accused. Each person should be interviewed to show that the investigation was thorough and impartial. If the investigation involves monitoring of e-mail, Internet use, or voice mail, the supervisor should follow the company’s written policy on monitoring electronic communications systems.

9.  Retaliation. Supervisors should understand that federal and state laws make it illegal to retaliate against an employee who has filed a charge of discrimination, testified, assisted, or participated in an investigation, proceeding, hearing, or trial, or opposed an unlawful employment practice. Supervisors should understand that employees cannot be fired, demoted, transferred to a less desirable position, or otherwise suffer an adverse employment action for engaging in protected activity. Further, employment decisions must be based on legitimate nondiscriminatory reasons.

10.  Employee threats. Employee threats must be taken seriously. Threats can lead to violence and other negative consequences in the workplace. Supervisors should not allow threats, bullying, fighting, or jokes that are disguised as threats to go on in the workplace. When those incidents occur, supervisors should be encouraged to involve HR — and if necessary, security — immediately.

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11. Family and Medical Leave Act (FMLA). This complicated federal law should be explained to supervisors, although matters involving leave under the Family and Medical Leave Act (FMLA) should be referred to HR or the appropriate department. Supervisors must understand that (1) no magic words are needed from an employee to trigger FMLA coverage and (2) it is unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided under the FMLA. You cannot retaliate against an employee for exercising his FMLA rights.