Protecting Yourself from Discrimination Lawsuits

Thomas S. Brandon, Jr. Attorney
This article provided by the Engstrom Institute

(Note: CMA is not in the business of providing legal counsel. The below legal advice is based on laws from the state of Texas, so be sure to check your state's laws with a lawyer before putting any policy statements into effect for your organization.)

No one likes to terminate an employee's employment. It is an unpleasant experience for everyone involved, but sometimes it is the best option for both the employer and the employee. So how can we prepare ourselves for the reality that at some point, we will probably have to terminate a person's employment? When this situation arises, how can we do it in a way that protects us against lawsuits?

Our goal is to reduce the risk of litigation of adverse action related to personnel actions and to administrate personnel policies that are consistent with the law and scriptural admonitions. There is nothing we can do to guarantee that we will never get sued, but we can safeguard ourselves in ways that shrink the target, making it almost impossible for someone to score against us. There are 3 key words when it comes to protecting ourselves against the accusation of discrimination.

Preparation

First of all, be aware of how an employee's termination is going to affect your organization. Unless the employee was terminated for gross misconduct, you will have to pay unemployment compensation and/or COBRA.

In addition to the financial implications, it's important to have policies in place so that you are prepared to deal with an employee who needs to be terminated. It is important to have a written policy related to each of the following issues:

1. General personnel issues. This needs to be an orderly, written handbook that is distributed to all employees. It could also be posted on your organization's intranet.
   
   
2. Employee and volunteer screening policy. This document should go beyond asking if they have ever been convicted of a felony. What about a misdemeanor or deferred adjudication? Also, be sure to ask if they have lied about the answers to any of the questions you've asked and if there is anything else about their past or moral conduct that is necessary for you to know.
   
   
3. Mediation arbitration agreement. This is a document which employees must sign in which they agree to mediate and/or arbitrate any dispute with a Christian mediation arbitration process.
   
   
4. Intellectual property policy. Who owns the rights to work done on company time?
   
   
5. Internet and e-mail abuse policies. As long as the employee is using your computers, they have no expectation of a right of privacy. Their instant messaging and e-mails may be monitored. Employees must be warned that the policies are applicable for every time they use that computer, even if work is done on personal time or at home. You do not have to have a search warrant to look in their Web browser.
   
   
6. Drug screening policy.
   
   
7. Harassment policy. This includes sexual harassment, but also religious harassment, disability harassment, gender harassment, and age harassment.
   
   
8. Prolonged absence policy. This policy states that if you are gone for any reason—including a worker's compensation injury—for 90 days, termination is automatic. Usually you try to make it as gentle as possible, stating that should they be able to return to work, they can apply again and you will consider them for whatever jobs are available.
   
   
9. Moral conduct policy. This is a policy that regulates the moral conduct of your employees when they are off the job. Secular organizations can't put this into place, but religious organizations have a responsibility to protect themselves in the case of an employees whose behavior off the premises negatively impacts their ministry. This type of conduct would have to either affect their performance on the job or have such a negative impact on the organization that you really have no alternative but to terminate.
   
   
10. Disclaimer. Employee policy handbooks must contain a disclaimer that it does not constitute a contract. They are an at will employee, and can be terminated at any time.
    
    
11. Discipline policy. This should be clearly stated in the employee handbook, and usually consists of 4 steps: oral warning (documented in their personnel file), written warning accompanied by withholding of a pay increase, probation and/or suspension if prior warnings are ignored, and termination. Some organizations also choose to include mandatory counseling as one part of the discipline process.

Consistency

In addition to adopting the policies as described above, you have to implement them consistently over time and for every employee. Every time you make an exception to your policies, you run the risk of someone declaring that they have been discriminated against. Any policy you adopt must be applied to everyone, so you want to adopt policies that are good for the entire organization, not just to get you out of hot water or make your life easier by dealing with the actions of one or two people.

One obvious component related to consistency is that every employee must be aware of your policies. They need to receive the employee handbook (either via hard copy or intranet) and sign an acknowledgement that they have received it, read it, and agree to abide by the terms contained in it. Changes in personnel policies must also be consistently disseminated to employees.

Another key component of consistency is keeping an up-to-date personnel file for each employee. It should contain the following:

• I-9,
• W-4,
• the agreement to the terms of the employee handbook, and
• regular, thorough, and honest performance evaluations.

Fairness

Policies must be administered fairly, as well as consistently. Employees, particularly in a Christian organization, have a right to be treated fairly. The president's son-in-law must be subject to the same rules as every other employee, not given preferential treatment. Similarly, if one employee is given a severance package, another employee at the same level of seniority should receive the same severance package.

The material above was adapted from a presentation at the 2006 Christian Management Association annual conference by Thomas Brandon, Jr. Brandon is a partner with the Whitaker, Chalk, Swindle & Sawyer law firm in Fort Worth, TX. He has extensive experience in employment law litigation and litigation prevention, including over 25 years experience representing non-profit organizations and churches. He received his undergraduate degree at Baylor University and his law degree at Baylor Law School.