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How to Avoid Discrimination Charges

During the last few years, it has become more common for employees who experience a demotion or termination, or other adverse employment decision -- as well as job applicants who fail to obtain a desired position -- to file charges of discrimination with the Equal Employment Opportunity Commission (EEOC).

In filing discrimination charges, employees commonly allege that a supervisor based an adverse or unfavorable employment decision on race, gender, national origin, religion or disability rather than legitimate performance issues or qualifications.

Even though taking every possible precaution does not always deter an employee or a job applicant from filing a discrimination charge, certain precautions do assist in the defense of discrimination charges and greatly decrease the possibility that the EEOC will determine discrimination exists.

Perform Employee Evaluations

District policy requires annual job-performance evaluations of all employees, though many supervisors overlook this important requirement.

No supervisor looks forward to giving an employee a negative performance evaluation, but truthfully evaluating an employee's performance will later support an adverse employment decision. Some supervisors give underachieving employees positive evaluations hoping to encourage better performance. This
method often backfires when an employee's performance does not improve and the supervisor wishes to terminate the employee or selects a better performing employee to fill a vacant position.

Consider Jane, a management employee, who interviews with a committee for a promotion. She is one of three candidates referred to her supervisor for final selection.

The supervisor selects Jim, who the supervisor believes is an exceptional employee. Jane files a charge with the EEOC alleging the supervisor failed to select her based upon her race and sex. The supervisor contends Jane was not selected because of her insubordinate attitude and her inability to cooperate in a team setting. However, because the supervisor did not document Jane's
uncooperative and insubordinate attitude in performance evaluations and, in fact, Jane's evaluations mirror Jim's, the employer will have a difficult time defending Jane's charge.

Document Poor Performance

Supervisors should also document poor performance or inappropriate behavior between evaluations. A brief memo describing performance deficiencies and how the employee brief memo describing performance deficiencies and how the employee should improve will support a future negative evaluation and assist in defending discrimination charges. Supervisors should remember that an employee might use memos or e-mails in support of discrimination charges.

All communication regarding performance deficiencies should factually and concisely address the issue in question. This is especially true when an employee has alleged discrimination in the past and may allege a separate charge of retaliation.

Tell the Truth

When a supervisor does not select an employee for a promotion -- or makes other employment decisions adverse to an employee -- truth is often the best approach.

Consider Joe, an underperforming employee whose supervisor terminates him and orally informs him that the termination is necessitated by a reduction in program funding.

When Joe files a charge of discrimination claiming that his supervisor terminated him based upon his sex and race, the supervisor contends that Joe poorly performed his job duties.

Because the supervisor did not disclose to Joe the true reason for termination of his employment, the employer will have a difficult time defending Joe's charge. It is better to cite no reason for a negative employment decision than to cite an inaccurate reason.

Fill Positions Competitively

When a job vacancy arises, supervisors often believe reassignment of an employee to the open position will avoid delay in filling the position and reward a deserving employee. Unfortunately, filling position vacancies without a competitive hiring process invites discrimination charges by employees who believe they are qualified for the position but did not receive consideration.

Consider Jill, a long-time employee whose evaluations verify her hard work. When a supervisory position opens in her department, she waits for a job announcement and hopes to submit an application. When she discovers John obtained the job through reassignment, she files a charge alleging sex and race discrimination.

Because the employer did not fill the position competitively and Jill demonstrates her education and experience not only qualify her for the position but approximate Jim's, the employer will have difficulty defending Jill's charge.

A competitive hiring process provides the documentation necessary to demonstrate the employee selected is the most qualified for a position.

Taking simple steps to avoid discrimination charges will save the time, energy and resources necessary to defend charges and will improve communication and morale.

Published in the Winter 2001 Edition of In Brief

Questions or comments?
Contact Lee Combs @ 480.731.8878

Maricopa Community Colleges
Office of General Counsel
2411 West 14th Street
Tempe, AZ 85281-6942
480.731.8877 / 480.731.8890 fax

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