THREE KEYS TO CUTTING DISCRIMINATION CLAIMS
By WILLIAM M. SLOANAKER SR. AND ANN C. WENDT

While the cost of employment discrimination claims may have become a routine expense, it can be cut. Employers spend unnecessary time and money battling these claims. Moreover, claims may expose organizations to harmful publicity that can frustrate recruitment efforts, especially within minority communities. Workers who perceive that they are the subject of discrimination will likely not be motivated toward performing at their best and may even negatively affect the performance of co-workers.

Senior executives and their legal counsel also have perceptions regarding discrimination claims. They often perceive that claims are baseless, frivolous, and instituted by employees in bad faith to exact some measure of revenge for employment actions imposed against them. The issue of whose perceptions are correct is ultimately pertinent only in court. The real business issue for employers is how to avoid the perceptions and costs of discrimination.

What can senior executives do to reduce or eliminate employment discrimination perceptions and claims? This article suggests three key steps. These recommendations come from analyzing years of discrimination data and constructing the most complete database on employment discrimination in the United States . Working in close partnership with the Ohio Civil Rights Commission, the authors have analyzed a stratified random sample (9,452—nine percent) of all claims handled by the Commission from 1984 through 2005. The data reveal three major characteristics common to most claims, regardless of industry, job, adverse employment action, or other variable. (1)

Focus Training and Selection on Front-Line Supervisors

In an ideal world, organizations would have unlimited training time and dollars and could educate all employees about discrimination. In reality, however, training time and resources are limited, and the question becomes where best to devote them. The answer is front-line supervisors. This is based on the fact that more than half (55 percent) of employees identified their supervisor as the source of their perceived discrimination.

Too often, supervisor training consists of signing for an updated copy of the employer's handbook of policies and procedures. It may minimally describe what discrimination is, and may give a few examples. Employers sometimes also include supervisors in annual or biannual anti-discrimination training sessions conducted for all workers, typically lasting from a half-hour to an hour. These sessions often concentrate on sexual harassment, which receives a lot of press yet accounts for only four percent of all discrimination claims. This is not what we mean by focusing training on supervisors.

We recommend separate, professional training for all front-line supervisors. If the organization does not have this capability in-house, then experienced outside trainers need to be found. Training for newly promoted supervisors should be held as soon as reasonably possible after they have been promoted. Professional training for all front-line supervisors should be conducted at least annually, and requires a minimum of four to eight hours to cover the relevant topics and provide for interactive learning exercises. Such training should include attention to: the nature of bias and prejudice; the various protected bases (race, sex, etc.); interacting with women and minorities who may be culturally different; effective communication skills; legal implications; consequences and costs to employers of discrimination. There should also be plenty of examples and opportunities for interactive learning, such as role-playing, so supervisors understand how to engage in honest, sincere, factual discussions with employees.

A related issue is the manner in which front-line supervisors are selected. Traditionally, supervisor selection has focused on a candidate's proven ability to do the job(s) that they will be supervising. While important, an equally important dimension should be a candidate's people skills. Have they been a positive or negative influence within the work environment? What will the environment be under their tenure? Will they be honestly receptive to the recommended professional training?

Watch Discharges

Top management has become accustomed to ensuring their organization recruits and selects qualified minorities and women. Nonetheless, it is discharges that trigger most (53 percent) discrimination claims. Understandably, terminated employees have nothing further to lose, so why not file a claim? In light of this, employers should implement a review policy for all decisions that could result in a job loss. Indeed, except for the time involved in conducting the review (a much smaller cost than the price of litigation), an employer has nothing to lose by having a senior manager review this type of decision before implementation.

Reviewing a front-line supervisor's termination decision will not undermine his/her authority. Supervisors will understand from their training that preventing discharge-related claims is important. If the senior manager's review confirms a termination decision, then the front-line supervisor should conduct the dismissal, thereby reinforcing his/her authority.

Such a review policy should include: an unbiased review by a senior manager who does not have line authority over the affected employee's department and supervisor; fact-finding conversations between the manager, supervisor, employee, and any others involved; and a documentation of the review. A consultation with the corporation's legal counsel can also be appropriate.

Personnel in the employer's human resources (HR) department should conduct the review only if they are members of senior management. HR personnel are often caught in the middle, pressured to comply with the wishes of a middle or senior-level operations manager. For example, if an influential plant manager clearly does not want women or minorities working on the plant floor, then HR staff might not refer such job applicants to that plant manager. Although this is illegal, HR might defer to the manager's wishes rather than fight and risk incurring the manager's wrath. Whether the reviewer is from HR or not, that person must be sufficiently senior so he/she can conduct the review free of pressure from other managers and executives.

“Fill in the Blank”

We are convinced that a substantial, but unquantifiable, portion of discrimination claims result from a lack of communication. When legitimate reasons for employment actions are not effectively communicated, employees are left to fill in the blank—often with a discrimination explanation. “It must be because I am . . . a woman . . . Black . . . 55 years old . . . have a disability” or the like. Employees want input into their jobs, and they want feedback on their performance. They want reasons for actions that affect them. Employers should turn negatives into positives. For example, when an employee is not promoted, explain the reasons why they were not the best qualified and develop an action plan to improve their qualifications in preparation for future openings. This type of communication helps reduce discrimination claims and has a positive effect on employee motivation and job performance.

Improving communications does not mean adding a second paragraph to what otherwise would have been a one paragraph e-mail or memo to the affected employee. The largest part of effective communication is non-verbal, with meaning coming from all aspects of body language. We suggest a traditional, face-to-face, confidential, sit-down meeting, between a supervisor and subordinate, to discuss/communicate the employment action. In short, by effectively communicating the reasons for an employment action, a supervisor fills in the blank. An employee may not be satisfied with the explanation, but at least the reason is not left open to his/her imagination.

Be Proactive

Organizations should focus training resources on front-line supervisors, review termination decisions before they are implemented, and “fill in the blank” for employees by communicating the reasons for negative job actions. These three key actions are based on insights gained from analyzing 9,452 discrimination claims spanning 21 years, and on two major findings from our database: 55 percent of all claims identify the immediate supervisor as the source of the discrimination; and that 53 percent of claims are filed by discharged employees. Taking these actions can help an employer reduce discrimination claims. When it comes to preventing discrimination, how proactive is your workplace?(2)

Notes

1. Slonaker Sr., W. M. and A. C. Wendt. 2005. The Ohio Employment Discrimination Studies 1984-2005. Private Database.

2. The authors acknowledge the cooperation and encouragement received from the Ohio Civil Rights Commission, especially Pastor Aaron Wheeler, Sr., G. Michael Payton, Keith P. McNeil, and Mark V. Kautzmann. The article is part of The Ohio Employment Discrimination Studies , supported by grants from Wright State University and the Raj Soin College of Business. We further acknowledge graduate assistants Jacquie Bernstein and Cynthia Rutherford, who contributed to the development of this article.

William M. Slonaker Sr. is professor of business law at Wright State University.

Ann C. Wendt is professor of management at Wright State University.

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