What to do if an employee claims discrimination


In the mail is an unexpected letter from the Illinois Department of Human Rights.  A brief review of the document reveals that a charge of discrimination has been filed against your company by a former employee. You recall that the employee, let’s call him “Bob,” was very upset when he learned that he was being terminated, and you thought a claim might be filed, but now what?  When faced with a charge of discrimination, there are a few considerations that small businesses may wish to keep in mind to avoid digging a deeper hole.

One of those considerations is to determine who will be the designee to respond to any inquiries about Bob. If Bob is looking for a new job, it is likely that your company will be contacted by a potential employer seeking a reference.  If it’s a small business, typically, only one person should be given that responsibility to provide reference information. Usually, this is the human resource representative or a person acting in that capacity.  The last thing you want are coworkers or former supervisors offering their opinions about how great or awful Bob was as an employee. Such comments could give rise to other claims in addition to the charge of discrimination.

Secondly, a proper custodian should gather all of the information you have about Bob so as to avoid inadvertent destruction or loss of information.  You will need this documentation to adequately defend whatever decisions were made concerning Bob’s employment. For example, it’s not very credible to claim that Bob was terminated for poor attendance, but for some reason, you can’t locate any of Bob’s attendance records.

In preparing your formal response to the charge of discrimination, conduct an internal investigation, and in doing so, be sure to obtain information about the specific claims from people who actually know what occurred.  While this may sound simple, good investigations often require a skilled interrogator who is knowledgeable about what information is meaningful and relevant, versus extraneous data.  Also, understanding applicable legal defenses are critical to ask the right questions.

Finally, do not procrastinate.

Ultimately, the Illinois Department of Human Rights will issue a decision based primarily on the information provided by Bob and your company.  For all concerned, it usually makes sense to resolve this type of dispute at the earliest possible stage to avoid a lengthy administrative processor further protracted litigation. Thus, conducting a thorough investigation and well-prepared response in a timely manner is worth the initial time, effort and expense that may be required to adequately respond to such charges.


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