When an employee alleges they have been the victim of harassment or discrimination, they can expect their employer to mount a vigorous defense. These companies have their own lawyers who will do their best to show the company did nothing wrong.
At Sattiraju & Tharney, we have experience with are familiar with both employees and employers, so we understand which arguments businesses usually raise in discrimination and harassment cases. Below, we highlight how employers may argue against discrimination claims and how we can defend against these arguments on behalf of our clients.
Discrimination Defense: The Employer Had a Non-Discriminatory Motive
Employers often claim that they had a non-discriminatory motive for any negative employment action they took. For example, they might claim they fired an employee because she was always tardy or failed to promote someone because another candidate was more qualified.
These defenses can be fought against by finding a lack of evidence supporting the decision. For example, an employee’s job performance reviews might have been satisfactory for years before the company let an employee go. If there’s no record of any problems, then the offered reason looks like a pretext to hide the true motive, which is discriminatory.
We can also look at the employer’s history. For example, if they have a tendency of always laying off African Americans or people over 60 during a recession, then this looks discriminatory.
Discrimination Defense: The Rule or Policy Advanced a Business Purpose
Sometimes, a rule or policy at work has a disparate impact on one group of people. For example, a requirement that employees be able to lift 50 pounds tends to negatively affect women more than men. Although this rule is facially neutral, its disparate impact could make it discriminatory.
Under federal and state law, a rule or regulation can have a disparate impact if it is justified by business necessity. For example, if a warehouse job requires lifting heavy boxes, then it is okay if fewer women qualify for this job.
Often, however, the alleged business necessity is a mere pretext. We can ask the employer if there isn’t another way that they could have accomplished their goal that doesn’t result in discrimination.
Harassment Defense: The Employee Welcomed the Conduct
By definition, harassment is unwelcome conduct. A worker has not been sexually harassed if he or she enjoyed the attention and encouraged it.
Thus, employers may try to argue that an employee was a flirt, and will comb through an employee’s emails to find anything off-color, such as sexual jokes or banter. They may also find other employees to testify that the employee enjoyed hugging, making jokes, flirting, etc.
Generally, the best approach is to point out that even if an employee told an off-color joke, that does not mean they welcomed the conduct at issue. For example, an employee might enjoy flirting, but that is not an invitation to be groped.
Harassment Defense: The Employer Didn’t Know
Employers are automatically liable when a supervisor harasses a subordinate. However, if non-supervisors engage in harassment, an employer is only on the hook if they knew about the harassment and failed to immediately and appropriately correct it.
This means someone needed to notify Human Resources about the harassment. If you didn’t, then your case is much weaker.
In this scenario, it is important to research whether management was aware of the harassment even if no formal complaint was filed. We can also look for instances of harassment from supervisors, which makes an employer liable.
Fight Back against Harassment & Discrimination
Bringing a complaint against an employer is never easy. Fortunately, our team at Sattiraju & Tharney have the experience necessary to protect your rights. Contact us today to schedule an initial consultation.