No Exceptions For The Little Guy | Small firms should be weary of discrimination rules
A business with only a handful of employees has to live up to the same anti-discrimination standards that a giant global conglomerate does, according to a recent Massachusetts Supreme Judicial Court decision.
In the case, IT firm SEI Boston hired a new employee, but, after learning she was pregnant, placed her on unpaid leave.
Because the firm had fewer than six employees, she was unable to sue under a state law typically used in employment discrimination cases, but the SJC ruled she was within her rights to file the suit based on a provision of the Massachusetts Equal Rights Act.
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Robert L. Kilroy, a partner in the labor and employment group at Mirick O’Connell law firm’s Westborough office, said the decision clears up the ability of employees at small companies to sue not just over pregnancy discrimination but over sexual harassment or discrimination on the basis of race, gender, national origin, handicap or age. Kilroy said he doesn’t see many of those sorts of cases in small firms, but with the new decision he said that may change.
“I do think we’ll see an uptick in these types of claims, particularly in a down economy,” he said. “That’s when the greatest danger arises.”
Kilroy said that, although employers may face accusations of discrimination over harassment, non-promotion and other issues, the majority of the cases come after a layoff or firing.
“A former employee has nothing to lose or salvage,” he said.
So, what can small companies do to protect themselves against discrimination suits? Pretty much the same things that most larger businesses have been doing for years.
Kilroy said one of the first steps is to have an antidiscrimination policy. Employees should get copies of the policy when they’re hired, and once a year from then on. They should also go through a training explaining what the policy prohibits.
In particular, he said, it’s important that anyone in a supervisory position is trained on the issues. And companies should have an open-door policy for complaints to deal with any problems that come up before they turn into something worse.
“If you can address it early you can often avoid the cost of litigation,” he said.
Kilroy said employers need to watch out for unsavory jokes being told in the office or forwarded by email that might provide evidence of a workplace that’s unfriendly to people of protected classes.
“Even if there was no intent to discriminate or harass someone it certainly provides evidence of an environment that’s not in keeping with the law,” he said.
It may cost some money for a tiny business to draw up official policies and get an expert to do an hour-long training, but Kilroy said it’s likely to be worth it. If a suit ever does get filed, an employer can easily spend $10,000 defending itself, even if it ends up winning.
And while many small businesses think of themselves as families, Kilroy said that’s not a reason not to protect themselves. Most employers who end up sued are surprised to see an employee “turn on them,” he said.
“They’re left wondering why this employee would do that,” he said. “Oftentimes it’s not reasonable to assume it can’t happen to you.
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