Employment discrimination lawsuits have doubled in the past 10 years, due largely to provisions of the 1991 Civil Rights Act that give juries a say in financial settlements. Among the headlines: Publix supermarkets got slapped with an $82.5 million class-action sex discrimination settlement and Coca Cola paid nearly $192.5 million in 2000 to settle a class action.
We could cite many examples, but the point is that juries are ready and eager to shower aggrieved litigious former employees with millions of dollars at your business' expense.
"Plaintiffs don't win a huge percentage of lawsuits, but that percentage goes up a lot if there is a jury trial," says Michael D. Malfitano, attorney at Florida-based Constangy, Brooks & Smith, LLP (CBS). "After 1991, when jury trials came into play, the percentage of plaintiffs' wins increased and the dollar amounts increased."
"Most jurors are working people with family members who may have had problems with employers at some point," Malfitano says. "So there is a natural empathy with the working person who is the plaintiff."
The good news is that because of their relatively small size and close working relationships, physician practices are less likely than larger healthcare entities, such as hospitals and nursing homes, to find themselves in an employment suit, he says.
So what can you do to reduce your potential liability? Malfitano and his colleague, CBS attorney Cherie L. Silberman, have identified three pre-employment mistakes, errors committed during the recruiting and hiring process:
1. Failure to conduct an adequate background check on potential employees. Did you conduct a criminal background check, contact the references, ask about previous convictions, but not arrests, and check his or her driver's license?
2. Inconsistent recruiting and hiring practices. Are you thorough in the hiring process with some employees but not others? "When employers don't apply policies consistently, it looks to a juror like they may be discriminating," Silberman says.
3. Inappropriate interview questions and comments. This is a real minefield. Although you want to be thorough in your hiring process, you also have to be careful about what questions you ask. For example, you can ask about criminal convictions, but not arrests. You cannot ask about the status of military discharge, and questions about education must be thoroughly screened. Avoid questions related to religious or social issues, as well as those related to physical or mental health.
"Where employers get in trouble is where it may not seem so harmful, say in casual chatter," Silberman says. "[For example], if someone says they're moving into town and you ask if it's so they can be closer to their husband. The intent doesn't matter."