Holly J. Culhane SPHR
September 21, 2009 — 2,639 views  
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"Joe Cool" may always be the most-invited person to every party and "swinging singles" to liven up any occasion; however, beware of praising these attributes in the workplace.  Of course, any organization is going to be a microcosm of society and there's little doubt that you may have some high-profile, cooler than ice, super-swingers working for your company - along with your aging baby boomers, stressed-out single parents, immigrants with differing cultures, and employees with disabilities.  While these young, dynamic, outgoing personalities may be the new "golden boys/girls" for your business, you want to encourage them without appearing to slight any other workers in the organization.  A newly signed federal law, the Lilly Ledbetter Fair Pay Act of 2009, has brought the possibilities of discrimination claims to a whole new level and companies need to be absolutely sure that all employees are treated equally in the workplace. 

The new law is significant because it eliminates the former restriction that barred pay discrimination lawsuits filed more than 180 days after the employee first received a discriminatory paycheck.  With the new act, the statute of limitations is extended and employers could be subject to lawsuits that go back many years, and in reality these suits could possibly even be brought by an employee's heirs.  ("Adjusting to the Ledbetter Pay Law," HR Disciplines, SHRM, February, 2009)  Because the definition of compensation under the new law is open-ended, as well as being open to interpretation, it is unclear just how far-reaching the impact may be on employers.

So, just what is the main concern for businesses with this new law?  Documentation has always been the key to success in fighting any discrimination claims that may arise; however, now companies are faced with keeping precise, complete documentation, including payroll information, employee evaluations, detailed written records of any formal and/or informal conferences, etc., for an extended period of time.  In fact, most companies do not keep this information indefinitely, for obvious reasons; however, organizations need to get creative on documenting and retaining files in order to prepare for future eventualities should they arise.  Javier Lozano, SPHR-CA, GPHR, Human Resources Manager for the City of Bakersfield (in central California) emphasizes, "The first lesson for any supervisor is ‘document, document, document!' Documentation must be complete and factual. Organizations should know the legal requirements for retention of all documents, including personnel files, I-9's, and Workers' Compensation records. Non-compliance can be costly."

As we all know, the economy is struggling and so it should come as no surprise that discrimination lawsuits are increasing.  When people are laid off, especially if they are in a protected class, and with concerns of finding new employment in the current business climate, they may resort to a discrimination claim in hopes of having their job reinstated, or at least obtaining a cash settlement.  Often, these claims may point to comments made by a supervisor or coworkers.  For example, in a recent lawsuit involving a former Kansas City police officer, Anthony Hogan, age discrimination was filed after the officer was let go.  He claimed his supervisor had told him on several occasions that he was "no longer a fireball" and that he was "dragging his feet."  Another officer referred to him as "Officer Dirt," because he was "older than dirt."  Although an internal investigation found no legitimacy to his claims, once Hogan filed his claim and it went to a jury, he was awarded $700,000 in actual damages and $2 million in punitive damages!  (Grossman, Robert J., "Defusing Discrimination Claims," HR Magazine, May 2009).

Obviously, the internal investigation should have been more aggressive and perhaps this case would never have gone to court.  In fact, the company had several chances to respond to Hogan and prevent this huge payout, but they failed to take his claim seriously and mishandled their opportunities to rectify the situation.  Lozano reminds us "Every termination should be handled on a case-by-case basis but just as importantly, every employee should be treated with respect and dignity through the termination process.  Investigations are critical in indentifying the facts and should be conducted in a manner that ensures thoroughness and neutrality by the investigator."

Be vigilant!  If you even suspect that any form of discrimination may be occurring, check it out.  Document it.  Keep written files and talk to everyone involved, having them sign or initial written statements.  If you should receive a "demand letter" from a complainant's lawyer - respond immediately.  Also, if a former employee files for unemployment, think carefully before denying the claim.  If the employee was fired for cause and doesn't deserve unemployment compensation, be sure you have documentation before refusing the claim.  Be sure to talk to your human resources professional and consider consulting your own attorney.  If offered, think about using mediation.  The EEOC (Equal Employment Opportunity Commission) encourages this approach and it can save everyone time and money.

Remember, treat all employees equally... and document, document, document!

Holly J. Culhane SPHR


Identified the need for human resource and organizational assistance for small- and medium-sized business­es and formed Profes­sional Administra­tive Systems in 1987. Now known as P A S Associates, this firm combines specialists in the fields of human resources, labor and employment law, affirma­tive action, and substance abuse policies and education, providing an unsurpassed Human Resource Center.