An airport manager whose job entailed a consistent survey of the airport, including walking the perimeter and sometimes going up on roofs, became wheelchair bound over the course of his seven-year employment. When the airport operator took issue with how this affected the execution of his job, there was an issue: the man had no official job description.
When the operator approached the manager with a job description after he was already wheelchair bound, the man did not want to sign it.
In a discrimination claim thereafter, “without that written job description signed by that employee, it was a hard case to defend,” said Peckar & Abramson PC Partner Kevin O’Connor, who represented the airport operator and co-chairs his firm’s labor and employment department. “Had the employer had a very clear job description from the inception, the case might not even have gotten off the ground.”
O’Connor was joined by Olender Feldman LLP Partner and litigator Howard Matalon and Susan Carrero, president and director of human resources for 7 Star HR a Division of Triton Benefits & HR Solutions at NJBIZ’s panel discussion on workplace discrimination at the DoubleTree Hotel in Somerset Tuesday morning.
Cristina Amyot, president and chief executive of Tinton Falls-based human resources consulting firm EnformHR, moderated the panel.
New Jersey’s Law Against Discrimination prohibits employment discrimination based on race, creed, color, national origin, age 18 to 70, ancestry, nationality, marital status, sex, gender identity or expression, disability, military service, sexual orientation, atypical cellular or blood trait, or genetic information.
Matalon most often sees gender and age discrimination in his practice, he said.
“If you look round this room, pretty much everyone here is in a protected class, whether they know it or not. The average age of American workers now is 39, so we’re almost all in a protected age class,” he said. “Discrimination is very insidious when it comes in the pay area because the individuals assume that they have a right to sue if they’re being let go for any reason. And the employer doesn’t help itself when it terminates 10 people and nine of them are 50 or older.”
Just about everything in this country is discriminatory one way or the other, he said. But human beings use bias filters every day, seeing life through “our own prism.”
“The problem is when we project that prism in the workplace,” Matalon said.
The write way
Performance reviews are important, the panelists explained. If the employer doesn’t let an employee know what he or she is doing wrong, when it comes time to terminate them, HR expert Carrero has some questions.
“Did you communicate that to them? Did you talk to them, did you write them up, did they know that this was wrong? How many other people in the workplace do you allow to come in 10 minutes or 30 minutes late? So if you’re going to terminate, are you discriminating? Are you just picking on this one individual?” she said.
Many employers who hire her want to terminate employees quickly. She looks at past performance — did the employer communicate and address the issue? Are they being consistent?
“Communicating performance reviews is critical,” she said.
To mitigate the risk of harassment or discrimination complaints, it’s important for employers to have an open door policy and to document everything, Carrero explained.
“Make [your open door policy] very clear. Have that safe place for employees to go to where they really feel it’s a non-biased person that’s going to listen. It could be an email, or it could be a five-minute conversation, but at the end of the day, document it,” she said.
She recommends whoever received the complaint to email the employee thanking them for the open door policy, and to send a form for them to document details of their complaint. The employer then needs to ask what the employee’s requested relief is: can they not work with them anymore, or do they just want it to stop?
“Within 24 hours of that person coming to you, you need to communicate, because within 24 hours of talking to you, they’re going to talk to everyone. They’re going to communicate through the workforce, to their spouse, their friends, a labor attorney. You need to jump on it quickly,” Carrero said.
When receiving the claim, assure the employee that the complaint is confidential, or on a need-to-know basis.
A company’s human resource department, or an outside HR group for small firms, will want to then investigate the claim, which is key to preventing legal issues thereafter.
“I firmly believe a botched investigation is one of the worst things that can happen,” moderator Amyot said. “It makes the culture and the climate for employees that much worse, and it has long term effects other employees feel like well, you can’t go to HR because look at what just happened. You clearly are just handing over a court case to the employee.”
Before it ever gets to the courtroom, O’Connor said employers need to know how to identify what will be considered a complaint in court.
“What is a complaint? It’s not necessarily someone filling out a form. It can be just someone expressing their concern,” he said. “Training can be so inexpensive in the grand scheme of things. A case I handle could range anywhere from $5,000 to $500,000. Training [to identify a complaint] is absolutely essential.”
Look for more coverage from the Oct. 29 panel discussion in our upcoming Nov. 4 issue of NJBIZ.